As if on cue in response to my post noting that while the NSA may not be like the Stasi for most Americans, it may well be closer for Muslims, Glenn Greenwald teams up with HuffPo’s two Ryans to disclose that the NSA has been snooping on online porn habits.
The National Security Agency has been gathering records of online sexual activity and evidence of visits to pornographic websites as part of a proposed plan to harm the reputations of those whom the agency believes are radicalizing others through incendiary speeches, according to a top-secret NSA document.
Beyond the eye-popping lede, however, I find the underlying premise just as troubling.
The NSA calls the 6 targets it describes as “radicalizers.”
DNI flack Shawn Turner suggests these are valid terrorist targets.
“Without discussing specific individuals, it should not be surprising that the US Government uses all of the lawful tools at our disposal to impede the efforts of valid terrorist targets who seek to harm the nation and radicalize others to violence,” Shawn Turner, director of public affairs for National Intelligence, told The Huffington Post in an email Tuesday.
Former NSA GC Stewart Baker characterizes them as “trying to recruit folks to kill Americans.”
“If people are engaged in trying to recruit folks to kill Americans and we can discredit them, we ought to,” said Baker. “On the whole, it’s fairer and maybe more humane” than bombing a target, he said, describing the tactic as “dropping the truth on them.”
But consider the profile presented in the story and underlying documents. None have been tied to any terrorist plots.
None of the six individuals targeted by the NSA is accused in the document of being involved in terror plots.
The English speaking ones have minimal ties with people characterized even as extremist groups (which may be different than a terrorist group; and the Arab speakers do have such ties).
The NSA accuses two of the targets of promoting al Qaeda propaganda, but states that surveillance of the three English-speakers’ communications revealed that they have “minimal terrorist contacts.”
In particular, “only seven (1 percent) of the contacts in the study of the three English-speaking radicalizers were characterized in SIGINT as affiliated with an extremist group or a Pakistani militant group. An earlier communications profile of [one of the targets] reveals that 3 of the 213 distinct individuals he was in contact with between 4 August and 2 November 2010 were known or suspected of being associated with terrorism,” the document reads.
And the messages these so-called “radicalizers” promote range from 9/11 trutherism to intolerance for non-Sunni Muslims to justifying the killing of non-Muslim invaders.
One target’s offending argument is that “Non-Muslims are a threat to Islam,” and a vulnerability listed against him is “online promiscuity.” Another target, a foreign citizen the NSA describes as a “respected academic,” holds the offending view that “offensive jihad is justified,” and his vulnerabilities are listed as “online promiscuity” and “publishes articles without checking facts.” A third targeted radical is described as a “well-known media celebrity” based in the Middle East who argues that “the U.S perpetrated the 9/11 attack.” Under vulnerabilities, he is said to lead “a glamorous lifestyle.” A fourth target, who argues that “the U.S. brought the 9/11 attacks on itself” is said to be vulnerable to accusations of “deceitful use of funds.”
And that well-known cleric who opposes Al Qaeda’s targeting of civilians and approves killing invaders of his country even adopts a pragmatic approach to the Arab Spring — which is more than our Saudi allies can say.
While some of these 6 targets may count as extremist propagandists, several of them, at least, might better be described as outspoken opponents to unfettered American dominance.
And the NSA proposes not just to discredit these people with smut (a tactic they attempted to use, unsuccessfully, against Anwar al-Awlaki), but to accuse them of — gasp! — charging exorbitant speaking fees.
So, yeah, this does prove that the NSA is using its considerable resources to repeat J Edgar Hoover’s tactics.
But it also shows that it is deploying such efforts against men who may not be the bogeymen NSA’s apologists make them out to be.
Update: Juan Cole takes the same angle on this story I did.
Update: DNI flack’s name corrected, thanks to SA.
Technically, I suppose, Erik Prince’s latest disclosure (unlike some earlier ones) is not gray mail, as he seems intent (as Jeff Stein reported months ago) to exact revenge no matter what and claims the CIA has already done whatever damage it can to him.
Which makes me wonder whom he’s trying to exact revenge on with his claim that Abdulrahman al-Awlaki was deliberately targeted (a claim Jeremy Scahill reported back in April, though sourced it to a former Senior Administration Official).
“I am all in favor of killing terrorists,” Prince said. “But the fact that [Anwar] al-Awlaki was killed and his 16-year-old son, born in Colorado, was killed with no due process other than that he got on the ‘kill list’ is troubling to me.” The Obama administration has claimed that Awlaki, an American citizen who was killed in a drone strike in 2011, was an operational leader of al Qaeda’s affiliate in Yemen.
Prince said he believes al-Awlaki’s son was deliberately targeted in a second strike after the one that killed Awlaki. The Obama administration has said that strike was not targeting Awlaki’s son, but someone else.
Prince also said the over-reliance on drone warfare in the Middle East and South Asia would likely reap “a bitter harvest,” because of the scale of collateral damage from drone strikes. He said it was wiser to send in small teams to such denied areas to find and target terrorists, or outsource this kind of work to local surrogates.
In the other day’s installment of Erik Prince’s complaints, after all, he blamed his plight on Leon Panetta, who cut off his assassination training program and pulled some drone targeting activities away from Blackwater, reportedly in 2009. Panetta was Secretary of Defense at the time Abdulrahman was killed, having moved over from running CIA and its drone assassination months earlier. David Petraeus had his button on CIA’s drone killing machine by the time of Anwar and Adbulrahman’s deaths.
That said, there were reports JSOC targeted Abdulrahman…
Daoud Adel is a 20-year old US citizen from suburban Chicago who was charged last year in an FBI sting in which he allegedly tried to set off a car bomb outside a night club. Last year, during the debate on FISA Amendments Act reauthorization, Dianne Feinstein named his case directly, suggesting he had been busted using the legislation before the Senate. His legal team first demanded the FAA material she suggested existed back in May. And in September, they requested discovery for materials relating to FAA.
The government, however, strongly suggests none of the communications used to charge him were collected under FAA. It even suggests he misunderstands the meaning of DiFi’s comment.
Any discovery based on the FAA is unwarranted here because the FAA is simply not at issue in this case. As the Government explained in a previous filing, it “does not intend to use any such evidence obtained or derived from FAA-authorized surveillance in the course of this prosecution.” (DE 49, at 2).
The defendant’s claim that the Government should disclose “the nature of the FAA surveillance in this case even, for instance[,] Defendant’s communications themselves were not intercepted” is perplexing. (DE 52, at 15 n.11). If Daoud’s communications were not intercepted, or his facilities not targeted, he would not be aggrieved and have no basis to challenge the collection. The Government sees no legal relevance to his broad discovery request.
Moreover, the defendant has also made multiple claims, in this motion and others, based on his interpretation of a single public remark. While the Government appreciates the defendant’s position in litigating FISA-related matters, it offers that the defendant may misunderstand this public remark, which is not a revelation that has any legal implication.
As the Government has explained, this case singularly involves “traditional” FISA surveillance. [my emphasis]
Soapbox Orator’s comments in response to one of my posts on back door searches led me to examine the government’s response closely and I now suspect Daoud may have been identified using a back door search on traditional FISA collection.
Much of this debate centers on comments DiFi made on December 27, 2012, which seemed to suggest the 8 cases she named involved FAA. But those comments were in response to comments Ron Wyden had just made. In that speech Wyden described (among other problems with FAA) back door searches.
The fact is, once the government has this pile of communications, which contains an unknown but potentially very large number of Americans’ phone calls and e-mails, there are surprisingly few rules about what can be done with it.
For example, there is nothing in the law that prevents government officials from going to that pile of communications and deliberately searching for the phone calls or e-mails of a specific American, even if they do not have any actual evidence that the American is involved in some kind of wrongdoing, some kind of nefarious activity.
The Senate Intelligence Committee just released their Intelligence Authorization for next year. As part of it, they include “Targeted Lethal Force Reform.” Part of it — a useful part — requires the government to produce unclassified numbers on the total combatant and non-combatant deaths through targeted force (it exempts Afghanistan — though remains mute about Pakistan — and any new wars authorized by new Congressional authorizations).
But I’m even more interested in this.
(1) NOTIFICATION OF DIRECTOR.—Upon a determination by the head of an element of the intelligence community that a particular, known United States person is knowingly engaged in acts of international terrorism against the United States, such that the United States Government is considering the legality or the use of targeted lethal force against that United States person, the head of the element shall, as soon as practicable, notify the Director of the determination.
(2) INDEPENDENT ALTERNATIVE ANALYSIS.
(A) REQUIREMENT FOR ALTERNATIVE ANALYSIS.—Not later than 15 days after the date the Director receives a notification under paragraph (1), the Director shall complete an independent alternative analysis (commonly referred to as ‘‘red-team analysis’’) of the information relied on to support the determination made under paragraph (1).
It may be that SSCI put this into place to provide more “due process” to someone like Anwar al-Awlaki. And while that might have changed things back in December 2009, when they apparently tried to kill him before they believed him to be operational, it wouldn’t have changed things in the long run because his killing was so thoroughly discussed in at least 3 different Agencies of government.
Rather, this language would seem to prevent an Agency head — which, particularly giving confirmation of what I’ve been saying for years (that CIA would remain in charge of the drone campaign), means CIA — from killing someone without someone outside the Agency getting review.
Which is more like what happened to Abdulrahman al-Awlaki than his father. As Jeremy Scahill reported, John Brennan came to believe the 16 year old American citizen was purposely killed, though no one will release the report on the killing Brennan ordered.
The now-former SAO goes on to describe how pissed the Moral Rectitude Drone Assassination Czar John Brennan was about the strike, because he believed Abdulrahman was deliberately set up to be killed (though Scahill’s source doesn’t appear to specify whom Brennan thought was setting up an American teenager for death, JSOC, Yemeni partners, or the Saudis).
However, John Brennan, at the time President Obama’s senior adviser on counterterrorism and homeland security, “suspected that the kid had been killed intentionally and ordered a review. I don’t know what happened with the review.”
So Brennan sets up a review … that apparently got stashed in the same black hole as every other report on drone killing.
Yes, this language will provide a tiny modicum of protection to the Anwar al-Awlakis of the United States. But I’m far more interested in whether it’s an admission that Awlaki’s son could have been saved by a simple Red Team review.
For a post on back-door searches, I’m re-reading the William Webster report on whether the FBI could have anticipated Nidal Hasan’s attack. In the light of the Edward Snowden disclosure, I’m finding there are a number of passages that read very differently (so expect this to be a series of posts).
As you read this, remember two things about Webster’s report. First, FBI and NSA’s failure to find Umar Farouk Abdulmutallab in spite of texts he sent to Anwar al-Awlaki was probably prominent on the Webster team’s mind as they completed this (and surely factors significantly in the classified version of the SSCI report on the UndieBomb). So some of the comments in the Webster report probably don’t apply directly to the circumstances of Nidal Hasan, but to that (and Webster notes that some of the topics he addresses he does because they’re central to counterterrorism approaches). And the Webster report is perhaps the most masterful example of an unclassified document that hides highly classified background.
All that said, in a section immediately following Webster’s description of Section 215, Webster discusses how Roving Wiretaps, Section 6001 of IRTPA, and Section 215 were all reauthorized in 2011.
When FISA was passed in 1978, the likely targets of counterterrorism surveillance were agents of an organized terrorist group like the Red Brigades, the Irish Republican Army, or the Palestinian terrorist organizations of that era. Given the increasing fluidity in the membership and organization of international terrorists, the FBI may not be able to ascertain a foreign terrorist’s affiliation with an international organization. Section 6001 of the Intelligence Reform and Terrorist Prevention Act of 2004 (IRTPA) allows the government to conduct surveillance on a non-U.S. person who “engages in international terrorism or activities in preparation therefor” without demonstrating an affiliation to a particular international terrorist organization. Pub. L. 108-458, § 6001, 118 Stat. 3638, 3742 (2004).
Sections 206 and 215 of the PATRIOT Act and Section 6001 of IRTPA were scheduled to “sunset” on December 31, 2009. In May 2011, after an interim extension, Congress extended the provisions until June 1, 2015, without amendment. [my emphasis]
I find this interesting, first of all, because it doesn’t mention the Pen Register and Lone Wolf language that also got reauthorized in 2011 (suggesting he lumped these three together for a specific reason). And because it puts the language, “engages in international terrorism or activities in preparation therefor” together with roving wiretaps (“continuous electronic surveillance as a target moves from one device to another”), and Section 215, which we now know includes the phone dragnet.
As we’ve seen, DiFi’s Fake FISA Fix includes the language from IRTPA, on “preparation therefor,” which I thought was an expansion of potential targets but which I presume now is what they’ve been using all along. While I don’t recall either the White Paper nor Claire Eagan’s language using that language, I’m wondering whether some underlying opinion does.
Now consider how the roving wiretap goes with this. One reason — probably the biggest reason — they need all phone records in the US is so they can use it to find targets as they move from one burner cell phone to another. Indeed, one passage from DiFi’s Fake FISA Fix seems specifically designed to authorize this kind of search.
(C) to or from any selector reasonably linked to the selector used to perform the query, in accordance with the court approved minimization procedures required under subsection (g).
That language “reasonably linked” surely invokes the process of using algorithms to match calling patterns to calling patterns to find a target’s new phone. And note this is the only query that mentions minimization procedures, so the Court must have imposed certain rules about how you treat a new “burner” phone ID until such time as you’ve proven it actually is linked to the first one.
What’s interesting, though, is that the Webster report also lumps roving wiretaps in with this. What’s at issue in Nidal Hasan’s case was effectively roving electronic communication; he emailed Awlaki from several different email addresses and one of the problems FBI had was in pulling up Hasan’s communications under both identities (you can see how this relates to the back door loophole). But the inclusion of roving wiretaps here seems to suggest the possibility that a court has used the existing of roving wiretap approval for the use of the phone dragnet to find burner phones (which shouldn’t have been an issue in the Nidal Hasan case but probably was for Abdulmutallab).
One more comment? The notion that identifying an Al Qaeda target is any harder than identifying an IRA-affiliate is utter nonsense. If anything, US-based IRA affiliates were harder to identify because they were completely and utterly socially acceptable. But I guess such myths are important for people advocating more dragnet.
I’m going to take a break from noting how Lawfare ignores the public record on NSA spying — both of past failures to inform Congress, and of Intelligence Community lies about having done so — to note how Lawfare ignores the public record on drone killing.
On Sunday, Lawfare posted a long review of Jeremy Scahill’s book Dirty Wars. While it is not entirely negative, it stakes a claim on what the public record shows to argue that Scahill glossed over what a dangerous man Anwar al-Awlaki was. Yet the review itself ignores key details in the public record.
First, full disclosure. I’m friends with Scahill, and he acknowledged me in the book. But given that I’m not quoted, I suspect he acknowledged me because I’ve followed certain aspects of the narrative he covered — especially the evidence in the Umar Farouk Abdulmutallab case and the shoddy OLC case to support Awlaki’s killing — in more detail than most other reporters.
It’s for that reason that I find the review to be so problematic.
After spending two paragraphs praising the on-the-ground reporting Scahill did, Lawfare reviewer Nick Basciano complains,
Scahill simply skips over facts that don’t promote his narrative of Awlaki. One such example comes in Awlaki’s relationship with Umar Farouk Abdulmutallab, the “Christmas Day Bomber” who attempted to detonate almost three ounces of PETN aboard Northwest flight 253 on its descent to Detroit. A publically-available and widely-cited sentencing memorandum for Abdulmutallab describes how Awlaki housed Abdulmutallab in Yemen and took him to AQAP’s primary bomb-maker, Ibrahim Al Asiri. There, they “discussed a plan for martyrdom mission” and Awlaki himself gave the bombing plot “final approval and instructed Defendant Abdulmutallab on it.” Awlaki’s “last instructions,” the memorandum continues, “were to wait until the airplane was over the United States and then to take the plane down.” Without dealing with this evidence from the Abdulmutallab trial, Scahill admits that Awlaki was only “in touch” with Abdulmutallab, insisting that “no conclusive evidence [was] presented, at least not publicly, that Awlaki had played an operational role in any attacks.” Why such a relevant piece of evidence isn’t included in Scahill’s retelling of the Abdulmuttallab plot is unclear, but it isn’t the only instance of turning a blind eye to evidence linking Awlaki’s directly to terrorism.
The trial, of course, took place several weeks after the final event of Scahill’s narrative, the killing of Abdulrahman al-Awlaki [Correction: The trial took place on October 11 and 12, 2009, before Abdulrahman's death. But as I note, the narrative presented there differs in key ways from the one Basciano adopts]. The sentencing took place several months later. That doesn’t mean Scahill couldn’t have included the evidence from “the trial.” But it was not part of the narrative arc Scahill told in the book.
Moreover, Basciano’s description ignores the reporting Scahill did do on Awlaki’s role in Abdulmutallab’s attempted attack, reporting based on talking to people who knew of Abdulmutallab’s movements in Yemen.
A local trial leader from Shabwah, Mullah Zabara, later told me he had seen the young Nigerian at the farm of Fahd al-Quso, the alleged USS Cole bombing conspirator. “He was watering trees,” Zabara told me. “When I saw [Abdulmutallab], I asked Fahd, ‘Who is he?’” Quso told Zabara the young man was from a different part of Yemen, which Zabara knew was a lie. “When I saw him on TV, then Fahd told me the truth.”
Awlaki’s role in the “underwear plot” was unclear. Awlaki later claimed that Abdulmutallab was one of his “students.” Tribal sources in Shabwah told me that al Qaeda operatives reached out to Awlaki to give religious counseling to Abdulmutallab, but that Awlaki was not involved in the plot. While praising the plot, Awlaki said he had not been involved with its conception of planning. (318)
After having complimented Scahill’s efforts to speak to people on the ground, Basciano did not mention that he had done so, too, in regards to the Abdulmutallab attack.
Moreover, if Scahill had used the material released in relation to the trial, the evidence would be much muddier than Basciano lays out. Continue reading
In truly bizarre testimony he will deliver to the House Intelligence Committee next week, Paul Rosenzweig argues that “too much transparency defeats the very purpose of democracy.” He does so, however, in a piece arguing that the government needs what amounts to be almost full transparency on all its citizens.
The first section of Rosenzweig analysis talks about the power of big data. It doesn’t provide any actual evidence that big data works, mind you. On the contrary, he points to one failure of big data.
When we speak of the new form of “dataveillance,” we are not speaking of the comparatively simple matching algorithms that cross check when a person’s name is submitted for review¾when, for example, they apply for a job. Even that exercise is a challenge for any government, as the failure to list Abdulmutallab in advance of the 2009 Christmas bombing attempt demonstrates. The process contains uncertainties of data accuracy and fidelity, analysis and registration, transmission and propagation, and review, correction, and revision. Yet, even with those complexities, the process uses relatively simple technologically—the implementation is what poses a challenge.
By contrast, other systems of data analysis are far more technologically sophisticated. They are, in the end, an attempt to sift through large quantities of personal information to identify subjects when their identities are not already known. In the commercial context, these individuals are called “potential customers.” In the cyber conflict context, they might be called “Anonymous” or “Russian patriotic hackers.” In the terrorism context, they are often called “clean skins” because there is no known derogatory information connected to their names or identities. In this latter context, the individuals are dangerous because nothing is known of their predilections. For precisely this reason, this form of data analysis is sometimes called “knowledge discovery,” as the intention is to discover something previously unknown about an individual. [my emphasis]
Nevertheless, having not provided evidence big data works, he concludes that “There can be little doubt that data analysis of this sort can prove to be of great value.”
The reference to Abdulmutallab is curious. At the beginning of his testimony he repeats the reference.
In considering this new capability we can’t have it both ways. We can’t with one breath condemn government access to vast quantities of data about individuals, as a return of “Big Brother” and at the same time criticize the government for its failure to “connect the dots” (as we did, for example, during the Christmas 2009 bomb plot attempted by Umar Farouk Abdulmutallab.
This formulation — and the example of Abdulmutallab even more so — is utterly crazy. Having big data is not the same thing as analyzing it correctly. Criticism that the Intelligence Community failed to connect the dots — with the UndieBomb attack, but even with 9/11 — assumes they had the dots but failed to analyze them or act on that analysis (as the IC did fail, in both cases). Indeed, having big data may actually be an impediment to analyzing it, because it drowns you. And while Rosenzweig suggests the only big data failure with Abdulmutallab involved not placing him on a watch list, that’s false. The NSA had wiretaps on Anwar al-Awlaki which, according to the government, collected information tying Abdulmutallab to an attack.
Yet they didn’t respond to it.
And you know what? We measly citizens don’t know why they didn’t respond to it — though we do know that the FBI agents who were analyzing the Awlaki data were … you guessed it! Overwhelmed.
Before anyone involved in government claims that big data helps — rather than hinders — they should have to explain why a full-time tap on Anwar al-Awlaki didn’t find the guy who was texting him about a terrorist attack. Continue reading
After years of questions about certain oddities in the Federal government’s treatment of Anwar al-Awlaki, Robert Mueller said this in one of his last public comments as Directof the FBI.
“I am not personally familiar with any effort to recruit Anwar al-Awlaki as an asset – that does not mean to say there was not an effort at some level of the Bureau (FBI) or another agency to do so,” Mueller said.
Previously, members of the Joint Terrorism Task Force have responded to similar questions relating to whether or not the FBI, Boston Police, Massachusetts State Police or other members of the Joint Terrorism Task Force knew the identities of the bombers before the shootout. Members of the Joint Terrorism Task Force did not know their identities until shortly after Tamerlan Tsarnaev’s death when they fingerprinted his corpse. Nor did the Joint Terrorism Task Force have the Tsarnaevs under surveillance at any time after the Assessment of Tamerlan Tsarnaev was closed in 2011. The Joint Terrorism Task Force was at M.I.T., located in Cambridge, MA, on April 18, 2013, on a matter unrelated to the Tsarnaev brothers. Additionally, the Tsarnaev brothers were never sources for the FBI nor did the FBI attempt to recruit them as sources.
There has been recent reporting relating to whether or not the FBI, Boston Police, Massachusetts State Police or other members of the Joint Terrorism Task Force knew the identities of the bombers before the shootout with the alleged marathon bombing suspects, and were conducting physical surveillance of them on April 18, 2013. These claims have been repeatedly refuted by the FBI, Boston Police, and Massachusetts State Police.
To be absolutely clear: No one was surveilling the Tsarnaevs and they were not identified until after the shootout. Any claims to the contrary are false. [my emphasis]
I mean, sure, “No one” ought to include “not any agency or private entity, including those not listed here,” but maybe it doesn’t.
Jane Mayer has obtained a set of questions Mark Udall made CIA General Counsel Stephen Preston answer before he would release a hold on the latter’s confirmation as DOD General Counsel. They address CIA’s response to the Senate Intelligence Committee torture report. I will have more to say about these answers later (see also this post from Katherine Hawkins).
But for now I want to point to one of the few questions Preston really didn’t answer. While the non-answer is not at all surprising, it does have implications far beyond torture.
The CIA response to the Committee Study states: “while it would have been prudent to seek guidance from OLC on the complete range of techniques prior to their use, we disagree with any implication that, absent prior OLC review, the use of the ‘unapproved’ techniques was unlawful or otherwise violated policy.”
The comment does two things.
First, it confirms CIA tortured before John Yoo authored memos authorizing that torture.
That confirmation is news, though we’ve long known it to be true.
But it also reflects CIA’s view that the legality of specific torture techniques did not stem from OLC review and authorization of them.
Udall asked Preston,
Please state whether you agree with this legal determination and explain your legal reasoning.
To which Preston responded,
On the particular point raised in (c) of the question, I also agree that CIA should have sought guidance from OLC with regard to the complete range of interrogation techniques prior to their use. I understand the Agency’s response to the SSCI’s study to acknowledge this point, noting only that failure to so engage with OLC did not, in and of itself, render any given technique unlawful.
Preston doesn’t actually say whether he agrees with the Agency’s legal determination or not, which was, after all Udall’s question. Which gets him out of answering Udall’s question about his legal reasoning.
But Preston has, for all intents and purposes, already answered that question in his speech last year on CIA’s use of lethal force. In it, he laid out was required for the use of lethal force (he doesn’t say it, but this includes lethal force against an American citizen) to be legal under US law.
Let’s start with the first box: Authority to Act under U.S. Law.
First, we would confirm that the contemplated activity is authorized by the President in the exercise of his powers under Article II of the U.S. Constitution, for example, the President’s responsibility as Chief Executive and Commander-in-Chief to protect the country from an imminent threat of violent attack.
In addition, we would make sure that the contemplated activity is authorized by the President in accordance with the covert action procedures of the National Security Act of 1947, such that Congress is properly notified by means of a Presidential Finding.
As I’ve noted elsewhere, Preston doesn’t even acknowledge the National Security Act’s requirement that covert actions be legal under US law.
His speech makes it clear he agrees with the CIA’s response on torture. The CIA doesn’t need OLC approval for covert operations (which torture was during its early years), the implication seems clear, because the only thing needed to make covert operations legal is Presidential authorization with adequate Congressional notice.
This is a stance that most discussions on drones and torture miss. The CIA doesn’t believe it needs OLC memos — whether authorizing belly slaps or the assassination of Anwar al-Awlaki. It may consider it prudent to have OLC authorization in hand, mind you. But it does not believe such authorization gives covert operations any more legal sanction that simply the President’s authorization.
Roughly four years ago, then National Security Advisor James Jones submitted a nearly unprecedented sealed declaration to the Second Circuit in the ACLU’s torture FOIA lawsuit. In it he argued the government needed to keep secret a short reference making it clear the torture program operated under Presidential authorization.
The following May — perhaps not coincidentally just months after America’s first attempt to execute Anwar al-Awlaki by drone strike and as OLC was scrambling to come up with some justification for doing so — the Second Circuit granted the government’s request, deeming the language an intelligence source or method, and giving the request particular weight because the language pertained to intelligence activities unrelated to torture.
At the hearing, this exchange occurred.
JUDGE NEWMAN: In one of your sealed excerpts from your briefs, I am not going to disclose a secret. There is a statutory reference from Title 50. You’re probably familiar with it. It has to do with whether affidavits are sufficient. It’s Title 50. I think it’s Section 430(f)(2). Does that ring a bell at all?
MS. SWINGLE: I believe so, your Honor.
JUDGE NEWMAN: Is that a correct citation? Because I couldn’t find it.
MS. SWINGLE: I can check and provide the information for your Honor. Off the top of my head, I can’t say that I know either.
JUDGE NEWMAN: Do they have it there?
MS. SWINGLE: Again, your Honor, that would be information we could provide separately to the Court, to the extent it is something that’s only in the classified part.
JUDGE NEWMAN: Just the statutory reference. Is it the right statute? That’s all I want to know.
Citing this passage, on Thursday the government asked to submit an ex parte filling clarifying both the answer Swingle gave, as well as the answer to an unidentified question raised in the hearing.
During the oral argument on October 1, 2013, a member of the panel asked the government to clarify a citation contained in a classified declaration in the record. See Tr. 73-74. The government’s proposed supplemental classified submission provides the clarification requested by the Court. The proposed supplemental classified submission also provides an additional answer to a question posed during oral argument that could not be adequately and completely answered in a public setting.
Both the NYT and the ACLU objected to this ex parte clarification of the answer (the NYT doesn’t object to such a filing pertaining to the citation), given that the Court didn’t ask for any further clarification.
The Government’s motion does not at any point include information about the nature of the “additional answer” that the Government is providing to the Court or the question to which it is addressed. The Court did not request such a supplemental answer, and there is no basis for a party to unilaterally provide itself with a further opportunity to extend argument – especially in secret – after the conclusion of oral argument.
Now, it’s entirely unclear what the erroneous citation in the classified government brief is. Though 50 USC 431(f) may describe this section of the National Security Act on to CIA files being FOIAed (though 50 USC 403 includes definitions and roles of CIA).
(f) Whenever any person who has requested agency records under section 552 of title 5, United States Code (Freedom of Information Act), alleges that the Central Intelligence Agency has improperly withheld records because of failure to comply with any provision of this section, judicial review shall be available under the terms set forth in section 552(a)(4)(B) of title 5, United States Code, except that–
(2) the court shall, to the fullest extent practicable, determine issues of fact based on sworn written submissions of the parties;
In which case, surprise surprise, this is about hiding CIA files.
But we already knew that.
And unsurprisingly, the two questions that DOJ’s Sharon Swingle referred back to the classified documents to answer also pertained to the CIA’s SEKRIT role in drone killing Americans.
One — which gets repeated several times — pertains to why DOJ’s prior disclosure that OLC wrote one drone killing memo for DOD forces DOJ to use a No Number No List response because admitting there were other OLC memos would also entail admitting an Other Government Agency carries out those drone killings.
JUDGE NEWMAN: I come back to saying, why can’t you have a redacted Vaughn index, at least on legal reasoning. Because I don’t understand your argument that if we say there are five of them, that somehow tells people more information. What does it tell them? It says five lawyers were working.
MS. SWINGLE: With respect, your Honor, it says that OLC on five separate instances wrote advice memoranda about the use of targeted lethal force. It now tells us, and I do think this is critical, that on four of those instances, it did not involve the Department of Defense. Because we have acknowledged there is a single responsive document as to the Department of Defense. I think that is really significant information. And it is not information that has been made public by the U.S. government.
JUDGE NEWMAN: That’s a secret.
MS. SWINGLE: It is.