As predicted, one big takeaway from yesterday’s NSA hearing (the other being the obviously partial disclosure about location tracking) is Keith Alexander’s admission that rather than 54 “plots” “thwarted” in the US thanks to the dragnet, only one or maybe two were. Here are some examples.
But they’re missing this real scandal about the government’s lies about the central importance of Section 215.
That scandal started 4 years ago, when an example the FBI now admits had limited import played a critical role in the reauthorization of Section 215 without limits on the dragnet authority.
First, note that even while Leahy got Alexander to back off his “54 plots” claim, the General still tried to insist Section 215 had been critical in two plots, not just one.
SEN. LEAHY: Let’s go into that discussion, because both of you have raised concerns that the media reports about the government surveillance programs have been incomplete, inaccurate, misleading or some combination of that. But I’m worried that we’re still getting inaccurate and incomplete statements from the administration.
For example, we have heard over and over again the assertion that 54 terrorist plots were thwarted by the use of Section 215 and/or Section 702 authorities. That’s plainly wrong, but we still get it in letters to members of Congress; we get it in statements. These weren’t all plots, and they weren’t all thwarted. The American people are getting left with an inaccurate impression of the effectiveness of NSA programs.
Would you agree that the 54 cases that keep getting cited by the administration were not all plots, and out of the 54, only 13 had some nexus to the U.S. Would you agree with that, yes or no?
DIR. ALEXANDER: Yes.
SEN. LEAHY: OK. In our last hearing, Deputy Director Inglis’ testimony stated that there’s only really one example of a case where, but for the use of Section 215, bulk phone records collection, terrorist activity was stopped. Is Mr. Inglis right?
DIR. ALEXANDER: He’s right. I believe he said two, Chairman; I may have that wrong, but I think he said two, and I would like to point out that it could only have applied in 13 cases because of the 54 terrorist plots or events, only 13 occurred in the U.S. Business Record FISA was only used in (12 of them ?).
SEN. LEAHY: I understand that, but what I worry about is that some of these statements that all is — all is well, and we have these overstatements of what’s going on — we’re talking about massive, massive, massive collection. We’re told we have to do that to protect us, and then statistics are rolled out that are not accurate. It doesn’t help with the credibility here in the Congress; doesn’t help with the credibility with us, Chairman, and it doesn’t help with the credibility with the — with the country. [my emphasis]
Here’s the transcript at I Con the Record from the previous hearing, where Inglis in fact testified that Section 215 was only critical in the Basaaly Moalin case (which was not a plot against the US but rather funding to defeat a US backed invasion of Somalia).
MR. INGLIS: There is an example amongst those 13 that comes close to a but-for example and that’s the case of Basaaly Moalin.
That is, in fact, Inglis said it had been critical in just one “plot.”
After he did, FBI Deputy Director Sean Joyce piped in to note the phone dragnet also “played a role” by identifying a new phone number of a suspect we already knew about in the Najibullah Zazi case.
MR. JOYCE: I just want to relate to the homeland plots. So in Najibullah Zazi and the plot to bomb the New York subway system, Business Record 215 played a role; it identified specifically a number we did not previously know of a —
SEN. LEAHY: It was a — it was a critical role?
MR. JOYCE: What I’m saying — what it plays a —
SEN. LEAHY: (And was there ?) some undercover work that was — took place in there?
MR. JOYCE: Yes, there was some undercover work.
SEN. LEAHY: Yeah —
MR. JOYCE: What I’m saying is each tool plays a different role, Mr. Chairman. I’m not saying that it is the most important tool —
SEN. LEAHY: Wasn’t the FBI — wasn’t the FBI already aware of the individual in contact with Zazi?
MR. JOYCE: Yes, we were, but we were not aware of that specific telephone number, which NSA provided us. [my emphasis]
So, when pressed, Joyce admitted that Section 215 wasn’t critical to finding Adis Medunjanin, one of Zazi’s conspirators. (And if you read Matt Apuzzo and Adam Goldman’s Enemies Within, you see just how minor a role it played.)
That’s important, because the Administration’s use of Section 215 in the Zazi case was crucially important to the defeat of two efforts to rein in the dragnet in 2009.
As I noted the other day, in her ruling that she could not halt the force-feeding at Gitmo, Gladys Kessler described the treatment as “degrading,” potentially invoking our obligations under Article 16 of the Convention again Torture to prevent degrading treatment. Kessler actually explicitly invoked International Covenant on Civil and Political Rights, which includes a similar prohibition on degrading treatment.
Dianne Feinstein and Dick Durbin sent Obama a letter yesterday, using Kessler’s ruling to connect the two explicitly.
U.S. District Court for the District of Columbia Judge Gladys Kessler also expressed concern about the force-feeding of Guantanamo Bay detainees. The Court denied detainee Jihad Dhiab’s motion for a preliminary injunction to stop force-feeding due to lack of jurisdiction, but in her order, Judge Kessler noted that Dhiab has set out in great detail in his court filings “what appears to be a consensus that force-feeding of prisoners violates Article 7 of the International Covenant on Civil and Political Rights (ICCPR) which prohibits torture or cruel, inhumane, and degrading treatment.” The United States has ratified the ICCPR and is obligated to comply with its provisions. Judge Kessler also wrote, “it is perfectly clear from the statements of detainees, as well as the statements from the [medical] organizations just cited, that force-feeding is a painful, humiliating, and degrading process.” (emphasis added).
The judge concluded by correctly pointing out that you, as Commander in Chief, have the authority to intercede on behalf of Dhiab, and other similarly-situated detainees at Guantanamo. The court wrote: “Article II, Section 2 of the Constitution provides that ‘[t]he President shall be the Commander in Chief of the Army and Navy of the United States. …’ It would seem to follow, therefore, that the President of the United States, as Commander-in-Chief, has the authority—and power—to directly address the issue of force-feeding of the detainees at Guantanamo Bay.”
Feinstein only by association makes the next part of her argument. We comply with these treaties by complying with our Eighth Amendment prohibition on cruel or unusual punishment. And the government has long said that if we can do something elsewhere in a our gulag system, we can do it in Gitmo.
In a letter to Chuck Hagel last month — which Feinstein noted in yesterday’s letter but did not quote from — she laid out how our force-feeding at Gitmo differs from that used in the Bureau of Prisons.
In addition to the allegation that the Department of Defense’s force-feeding practices are out of sync with international norms, they also appear to deviate significantly from U.S. Bureau of Prison practices. Based on a review by Intelligence Committee staff, the significant differences between force-feedings at Guantanamo Bay and within the U.S. Bureau of Prisons relate to the manner in which the detainees are force-fed, how often detainees are force-fed, and the safeguards and oversight in place during force-feedings.
Within the Bureau of Prisons, force-feeding is exceedingly rare. The Intelligence Committee staff has been told that no inmate within the Bureau of Prisons has been force-fed in more than six months. When force-feedings do occur within the Bureau of Prisons, we have been told that nearly 95% of the time they are conducted with a fully compliant inmate requiring no restraints. At Guantanamo Bay, on the other hand, all detainees being force-fed–regardless of their level of cooperation–are placed in chairs where they are forcibly restrained. The visual impression is one of restraint: of arms, legs, and body. Further, at Guantanamo Bay, detainees are fed twice a day in this manner, potentially over a substantial period of time. This also is inconsistent with the practice of the U.S. Bureau of Prisons.
Additionally, the U.S. federal prison guidelines for force-feedings include several safeguards and oversight mechanisms that are not in place at Guantanamo Bay. These guidelines require the warden to notify a sentencing judge of the involuntary feeding, with background and an explanation of the reasons for involuntary feeding. Further, the Bureau of Prisons requires an individualized assessment of an inmate’s situation to guide how force-feedings are administered, a practice that I found largely absent at Guantanamo Bay. Finally, all force-feedings must be videotaped within the Bureau of Prisons.
It’s almost as if DiFi knows or suspects there’s an OLC memo that — parallel to the ones that found torture to be legal because it vaguely resembled practices elsewhere (as when they noted that members of the military undergo SERE training, so reverse-engineered SERE techniques used in different situations were legal) — finds our force-feeding at Gitmo to be legal because judges have approved the way we force-feed people in federal prisons. In any case, Gitmo officials have said their treatment is similar with BOP treatment.
Between these two letters, she has laid out why that is not the case. Indeed, that’s the import of Kessler’s language, a federal judge finding the treatment we use in Gitmo to violate our obligations under ICCPR.
Say what you will about DiFi (lord knows I’ve often said the same, where I thought it appropriate), but she has just told a President from her own party that he’s breaking the law.
Update: Alexander’s office has conceded Udall and Wyden’s point about the classified inaccuracy. It also notes:
With respect to the second point raised in your 24 June 2013 letter, the fact sheet did not imply nor was it intended to imply “that the NSA has the ability to determine how many American communications it has collected under section 702, or that the law does not allow the NSA to deliberately search for the records of particular Americans.”
He then cites two letters from James Clapper’s office which I don’t believe have been published.
Out of courtesy to him, I’m going to rewrite this post to help him understand it. The issue is not whether the US can “target” a US person without a warrant. They can’t. The issue is what the US does with US person data they collect incidentally off a legal target (which must be a foreigner overseas collected for a legitimate intelligence purpose).
At issue is this sentence in the Mark Udall/Ron Wyden letter to Keith Alexander.
Separately, this same fact sheet states that under Section 702, “Any inadvertently acquired communication of or concerning a US person must be promptly destroyed if it is neither relevant to the authorized purpose nor evidence of a crime.” We believe that this statement is somewhat misleading, in that it implies that the NSA has the ability to determine how many American communications it has collected under section 702, or that the law does not allow the NSA to deliberately search for the records of particular Americans.
The passage says that the claim, “any inadvertently acquired communication of or concerning a US person must be promptly destroyed” is “somewhat misleading,” for two reasons:
Now, before I get into bullet point 2, which is the one in question, note that this entire passage is talking about “inadvertently acquired communication of or concerning a US person.” This is not information on someone who has been targeted. It discusses what happens to information collected along with the communications of those who’ve been targeted (say, by emailing the target). Therefore, this entire passage is irrelevant to the issue of what happens with the targeted person’s communication. The Udall/Wyden claim is not about targeting in the least; it is about incidental collection.
Okay, bullet point 2: Udall and Wyden claim that Alexander’s fact sheet is misleading because it implies the law does not allow the NSA to deliberately search for the records of particular Americans. They could be wrong, but their claim is that it is misleading for Alexander to suggest that the law does not allow the NSA to deliberately search for the records of particular Americans. That means they believe the law does allow the NSA to deliberately search for the records of particular Americans, otherwise they wouldn’t think his statement was misleading.
Now, if it were just Udall and Wyden making this claim, it’d be a he-said/he-said. But pointed out that this claim is not new at all. It’s not even one limited to Udall and Wyden. In the FAA report released by Dianne Feinstein last year, it said,
Finally, on a related matter, the Committee considered whether querying information collected under Section 702 to find communications of a particular United States person should be prohibited or more robustly constrained. As already noted, the Intelligence Community is strictly prohibited from using Section 702 to target a U.S. person, which must at all times be carried out pursuant to an individualized court order based upon probable cause. With respect to analyzing the information lawfully collected under Section 702, however, the Intelligence Community provided several examples in which it might have a legitimate foreign intelligence need to conduct queries in order to analyze data already in its possession.
First, the report describes a debate the committee had:
The Committee considered whether querying information collected under Section 702 to find communications of a particular United States person should be prohibited or more robustly constrained.
The committee debated two things:
Bullet point 1 makes it clear they were debating whether they should prohibit this activity. If they had to consider that, it means that it is not prohibited (which is precisely what Udall and Wyden say–that the law allows it). Bullet point 2 says they also considered whether they should “more robustly constrain” it, which suggests (though does not prove) that it is going on now, otherwise there’d be nothing to constrain.
The IC IGs won’t tell us how much of this goes on–they claim they have no way of counting it, which ought to alarm you, because it says they’re not actually tracking it via some kind of auditing function.
I defer to his conclusion that obtaining such an estimate was beyond the capacity of his office and dedicating sufficient additional resources would likely impede the NSA’s mission. He further stated that his office and NSA leadership agreed that an IG review of the sort suggested would itself violate the privacy of U.S. persons.
Now, as I already laid out, what we’re talking about is not targeting a US person–focusing collection on that person. What we’re talking about is what you can do with the US person data collected “incidentally” with the communications collected of that targeted person. That information–as the minimization guidelines describe–is lawfully collected. The big question is what you can do with it once you have collected it, and in many but not all cases there are restrictions against circulating that information before you’ve hidden the identity of the US person in question.
The last part of the passage from the SSCI says,
With respect to analyzing the information lawfully collected under Section 702, however, the Intelligence Community provided several examples in which it might have a legitimate foreign intelligence need to conduct queries in order to analyze data already in its possession.
Again, some amount of US person data is collected under Section 702 along with the data of the targeted person (if it weren’t, they wouldn’t need minimization procedures). It is lawfully collected. The question is what you’re allowed to do with it. And as part of the debate the committee had about whether they were going to “prohibit” or “more robustly constrain” the querying of US person data that was lawfully collected as incidental data, SSCI describes the Intelligence Community (which includes, in part, the NSA, the CIA, and the FBI) providing several reasons why it might need to conduct queries of this data. And the committee agreed that these reasons were “legitimate foreign intelligence needs.”
The minimization procedures from 2009, at least, require destruction of US person data if it is “clearly not relevant to the authorized purpose of the acquisition (e.g., the communication does not contain foreign intelligence information).” (3(b)(1)) What is not immediately destroyed may be kept for up to 5 years. But it only destroys the stuff that is “clearly not relevant,” not data that might be relevant to the purpose of the investigation.
Now, while the language is not exact, the SSCI report’s description of data that has a “legitimate foreign intelligence” surely includes “foreign intelligence information.” This is kind of backwards (which may be part of complaint from Udall and Wyden), but unless the information is clearly not relevant — and the intelligence community says some of this data has legitimate intelligence purposes — then it is retained. This is probably why Udall and Wyden think Alexander’s “must be promptly destroyed” is misleading, because if the IC thinks they might need to query it because it would serve a legitimate foreign intelligence purpose, then it is not.
So who makes this decision whether to keep the data? “NSA analyst(s) will determine whether it … is reasonably believed to contain foreign intelligence information.” (3(b)(4)) The NSA, not FBI or CIA.
And this data cannot just be retained. It can also be “forwarded to analytic personnel responsible for producing intelligence information from the collected data.” (3(b)(2))
Now, in most cases, that information must be anonymized (which is what Kurt Eichenwald discusses here, which Foust cites). But it has always been the case there are exceptions to that rule. Some exceptions are if:
There are actually a slew more exceptions but these two should suffice. Again, these rules on distribution (except as they affect technical data base information, which might be relevant here, but not necessary) are not new with FAA. They’ve long been in place.
Again, this is all about what happens to incidentally collected data, not the data of the person actually targeted. Which is why these two passages are irrelevant to the entire point (the second of which Foust thought I was leaving out because it hurt my point).
As already noted, the Intelligence Community is strictly prohibited from using Section 702 to target a U.S. person, which must at all times be carried out pursuant to an individualized court order based upon probable cause.
The Department of Justice and Intelligence Community reaffirmed that any queries made of Section 702 data will be conducted in strict compliance with applicable guidelines and procedures and do not provide a means to circumvent the general requirement to obtain a court order before targeting a U.S. person under FISA.
What they say is that the government is prohibited from targeting a US person without a warrant and that any other things done with incidentally collected data must be conducted in strict compliance with applicable guidelines, which are the minimization procedures I just reviewed (though again, those are from 2009 so they may have changed somewhat). The passage very clearly envisions making queries of the data and very clearly considers such queries to be distinct from the targeting of a US person.
And the minimization procedures make it clear that if data is not “clearly not foreign intelligence,” (that is, if it might be foreign intelligence, as this queried data is, according to the IC) then it is retained, at least through the initial (NSA-conducted) review. Where it can be queried, so long as the other minimization procedures are met.
One final thing. Foust is actually wrong when he suggests the IC asked for new authority (in any case, the only conclusion would be that they got it). Rather, in both the SSCI and the Senate Judiciary Committee, Senators tried to limit this authority. In SJC, Mike Lee, Dick Durbin, and Chris Coons submitted an amendment to (among other things) prohibit,
the searching of the contents of communications acquired under this section  in an effort to find communications of a particular United States person…
…Except with an emergency authorization.
Dianne Feinstein fought the amendment by arguing such a prohibition would have made it harder to find Nidal Hasan (whom we didn’t find anyway, and whose communications with Anwar al-Awlaki may well have been traditional FISA collection). But at one level that makes sense.
Sheldon Whitehouse said that such a restriction would “kill this program.”
I may not like what Whitehouse stated. But I do trust his judgement about how central to this program is access to US person communications.
That doesn’t say how much of this stuff goes on (though it does seem to suggest it does). But it does say we ought to at least track it.
Yesterday, the Senate Armed Services Committee announced a hearing to revisit the 2001 Authorization to Use Military Force. In addition to a bunch of DOD figures (but not the recently departed Jeh Johnson, the DOD-connected person who said the most interesting things about the AUMF), it’ll have (I’ve linked their most salient comments on the AUMF):
Rosa Brooks, Professor of Law, Georgetown University Law Center
Geoffrey Corn, Professor of Law, South Texas College of Law
Jack Goldsmith, Professor of Law, Harvard Law School
Kenneth Roth, Executive Director, Human Rights Watch
Charles Stimson, Manager, National Security Law Program, The Heritage Foundation
Curiously, John Bellinger who (as far as I understand) started the discussion of a new AUMF is not slated to testify. Also note that the Deputy Director of Special Operations for Counterterrorism will testify, but no one from CIA is scheduled to; while JSOC can operate under the President’s inherent authority, it likely prefers the legal cover of an AUMF (and therefore may be one of the entities pushing for an AUMF that matches reality on the ground).
Politico reports that this hearing is more than speculative: Levin and no-longer-SASC-Ranking-Member-but-he-might-as-well-be John McCain are planning to rewrite the AUMF, with help from Bob Corker, Dick Durbin, and Lindsey “all detainees must be military” Graham.
And if the inclusion of Graham in that group doesn’t scare you, remember that this crowd is substantively the same one that enshrined military detention in 2012′s NDAA. While that effort might be regarded as “reasonable” Carl Levin and John McCain’s attempt to present something more reasonable than House Armed Services Committee Buck McKeon was pushing for, and while the NDAA originally included exceptions for US citizens, in the event, the White House pushed Carl Levin to effectively rubber stamp its claims to unlimited authority, including detaining (or killing) US citizens.
And if that doesn’t have you worried enough about this effort, consider this quote, which mocks the contributions Rand Paul or Ted Cruz might make to this debate.
“Can you imagine what Paul or Cruz would do with this?” said one top Democratic aide. “It could be a disaster. And it would be worse in the House.”
As a threshold matter, a top aide who can’t distinguish between Paul’s more heartfelt libertarianism from Cruz’ authoritarianism pretending to be libertarianism is a concern. But to call the influence of both as “a disaster” is troubling.
Ultimately, though, what is likely to happen with this debate is that all players will be unwilling to discuss openly what we’ve actually been doing in the name of war against al Qaeda, up to and including waging war in the “homeland.” That’s one thing the 2001 AUMF was written to exclude. And I can almost guarantee you, it’s an authority the President — and the top Democratic aides who mock Rand Paul — will want to preserve.
Just before the hearing, however, DOJ agreed to provide the documents. Goodlatte, the chairman, announced he would postpone the meeting to authorize the subpoena and cancel it once arrangements are made for viewing the documents.
“It’s unfortunate that it took a subpoena notice for the Department to cooperate with the House Judiciary Committee,” Goodlatte said. “The House Judiciary Committee is charged with oversight over the Justice Department and U.S. Constitution and it is imperative that we explore the issues raised by the Administration’s policy.”
Though, from the context, it sounds like DOJ agreed to hand over only the memos authorizing Anwar al-Awlaki’s killing. I’m checking on this, but if this is the case, it’s the partial cave I’ve been expecting from DOJ for some time.
The Administration really doesn’t want to share its signature strike memos.
But that’s just memos. The Administration still refuses — as it did earlier when the House Judiciary Committee held a hearing on drone killing — to send a live body to talk about its killing program.
“We do not currently plan to send a witness to this hearing and have remained in close contact with the committee about how we can best provide them the information they require,” Caitlin Hayden, a National Security Council spokeswoman, wrote in an email to McClatchy.
She added that the White House would continue working with lawmakers “to ensure not only that our targeting, detention and prosecution of terrorists remains consistent with our laws and system of checks and balances, but that our efforts are even more transparent to the American people and the world.”
Hayden declined to say why the administration doesn’t plan to provide a witness for the hearing.
Add this to John Brennan’s refusal to answer Jan Schakowsky’s questions about drones last week, and the Administration really just refuses any oversight on this issue.
But really, they promise they’re being transparent.
Update: I was correct. House Judiciary Committee will only get what the Senate Judiciary Committee got, which is understood to be the Awlaki memos.
Adding the letter that Barbara Lee, as well as a list of all Members of Congress who have, at one time or another, requested the targeted killing memos.
February 2011: Ron Wyden asks the Director of National Intelligence for the legal analysis behind the targeted killing program; the letter references “similar requests to other officials.” (1)
April 2011: Ron Wyden calls Eric Holder to ask for legal analysis on targeted killing. (2)
May 2011: DOJ responds to Wyden’s request, yet doesn’t answer key questions.
May 18-20, 2011: DOJ (including Office of Legislative Affairs) discusses “draft legal analysis regarding the application of domestic and international law to the use of lethal force in a foreign country against U.S. citizens” (this may be the DOJ response to Ron Wyden).
October 5, 2011: Chuck Grassley sends Eric Holder a letter requesting the OLC memo by October 27, 2011. (3)
November 8, 2011: Pat Leahy complains about past Administration refusal to share targeted killing OLC memo. Administration drafts white paper, but does not share with Congress yet. (4)
February 8, 2012: Ron Wyden follows up on his earlier requests for information on the targeted killing memo with Eric Holder. (5)
March 7, 2012: Tom Graves (R-GA) asks Robert Mueller whether Eric Holder’s criteria for the targeted killing of Americans applies in the US; Mueller replies he’d have to ask DOJ. Per his office today, DOJ has not yet provided Graves with an answer. (6)
March 8, 2012: Pat Leahy renews his request for the OLC memo at DOJ appropriations hearing.(7)
June 7, 2012: After Jerry Nadler requests the memo, Eric Holder commits to providing the House Judiciary a briefing–but not the OLC memo–within a month. (8)
June 12, 2012: Pat Leahy renews his request for the OLC memo at DOJ oversight hearing. (9)
June 22, 2012: DOJ provides Intelligence and Judiciary Committees with white paper dated November 8, 2011.
June 27, 2012: In Questions for the Record following a June 7 hearing, Jerry Nadler notes that DOJ has sought dismissal of court challenges to targeted killing by claiming “the appropriate check on executive branch conduct here is the Congress and that information is being shared with Congress to make that check a meaningful one,” but “we have yet to get any response” to “several requests” for the OLC memo authorizing targeted killing. He also renews his request for the briefing Holder had promised. (10)
July 19, 2012: Both Pat Leahy and Chuck Grassley complain about past unanswered requests for OLC memo. (Grassley prepared an amendment as well, but withdrew it in favor of Cornyn’s.) Leahy (but not Grassley) votes to table John Cornyn amendment to require Administration to release the memo.
July 24, 2012: SSCI passes Intelligence Authorization that requires DOJ to make all post-9/11 OLC memos available to the Senate Intelligence Committee, albeit with two big loopholes.
December 4, 2012: Jerry Nadler, John Conyers, and Bobby Scott ask for finalized white paper, all opinions on broader drone program (or at least a briefing), including signature strikes, an update on the drone rule book, and public release of the white paper.
December 19, 2012: Ted Poe and Tredy Gowdy send Eric Holder a letter asking specific questions about targeted killing (not limited to the killing of an American), including “Where is the legal authority for the President (or US intelligence agencies acting under his direction) to target and kill a US citizen abroad?”
January 14, 2013: Wyden writes John Brennan letter in anticipation of his confirmation hearing, renewing his request for targeted killing memos. (11)
January 25, 2013: Rand Paul asks John Brennan if he’ll release past and future OLC memos on targeting Americans. (12)
February 4, 2013: 11 Senators ask for any and all memos authorizing the killing of American citizens, hinting at filibuster of national security nominees. (13)
February 6, 2013: John McCain asks Brennan a number of questions about targeted killing, including whether he would make sure the memos are provided to Congress. (14)
February 7, 2013: Pat Leahy and Chuck Grassley ask that SJC be able to get the memos that SSCI had just gotten. (15)
February 7, 2013: In John Brennan’s confirmation hearing, Dianne Feinstein and Ron Wyden reveal there are still outstanding memos pertaining to killing Americans, and renew their demand for those memos. (16)
February 8, 2013: Poe and Gowdy follow up on their December 19 letter, adding several questions, particularly regarding what “informed, high level” officials make determinations on targeted killing criteria.
February 8, 2013: Bob Goodlatte, Trent Franks, and James Sensenbrenner join their Democratic colleagues to renew the December 4, 2012 request. (17)
February 12, 2013: Rand Paul sends second letter asking not just about white paper standards, but also about how National Security Act, Posse Commitatus, and Insurrection Acts would limit targeting Americans within the US.
February 13, 2013: In statement on targeted killings oversight, DiFi describes writing 3 previous letters to the Administration asking for targeted killing memos. (18, 19, 20)
February 20, 2013: Paul sends third letter, repeating his question about whether the President can have American killed inside the US.
February 27, 2013: At hearing on targeted killing of Americans, HJC Chair Bob Goodlatte — and several other members of the Committee — renews request for OLC memos. (21)
March 11, 2013: Barbara Lee and 7 other progressives ask Obama to release “in an unclassified form, the full legal basis of executive branch claims” about targeted killing, as well as the “architecture” of the drone program generally. (22)
All Members of Congress who have asked about Targeted Killing Memos and/or policies
In your speech at the National Archives in May 2009, you stated that “Whenever we cannot release certain information to the public for valid national security reasons, I will insist that there is oversight of my actions — by Congress or by the courts.” We applaud this principled commitment to the Constitutional system of checks and balances, and hope that you will help us obtain the documents that we need to conduct the oversight that you have called for. The executive branch’s cooperation on this matter will help avoid an unnecessary confrontation that could affect the Senate’s consideration of nominees for national security positions.
And asks — yet again — for “any and all memos.”
Specifically, we ask that you direct the Justice Department to provide Congress, specifically the Judiciary and Intelligence Committees, with any and all legal opinions that lay out the executive branch’s official understanding of the President’s authority to deliberately kill American citizens.
But perhaps the most important part of this letter is that it refers not just to John Brennan’s nomination, but to “senior national security positions.”
As the Senate considers a number of nominees for senior national security positions, we ask that you ensure that Congress is provided with the secret legal opinions outlining your authority to authorize the killing of Americans in the course of counterterrorism operations.
There are just 11 Senators on this list:
And just three of these — Wyden, Mark Udall, and Collins — are on the Intelligence Committee. That’s not enough to block Brennan’s confirmation.
But it may be enough to block Hagel’s confirmation, given all the other Republicans who are opposing him.
It took transcribing the debate in the July 19 Senate Judiciary Committee hearing for me to realize it, but Democrats are running very serious interference to keep the Anwar al-Awlaki targeted killing memo secret. Not only did Dianne Feinstein basically roll John Cornyn, telling him she’d introduce language that would accomplish his goal of getting all the oversight committees the memo when, if hers passes, it will only, maybe, get the Intelligence Committee the memo. Not only did the Democrats vote on a party line vote to table John Cornyn’s amendment to require the Administration to share it–in classified or unclassified form–with the Judiciary and Armed Services Committees. Not only did Pat Leahy get pretty snippy with Cornyn for offering–and asking to speak on–the Amendment.
Most stunning, though, is Dick Durbin’s comment on it.
Durbin: Thank you Mr. Chairman. My staff briefed me of this on the way in, and I asked the basic question, “would I ask this of a Republican President? Of course. And I did ask it, in a different context, of the previous President, when it came to questions of interrogation, torture, and surveillance. I might say to the Senator from Texas I had no support from the other side of the table when I made that request. But I do believe it is a valid inquiry and I would join the Senator from Texas and any who wish in sending a letter to the Attorney General asking for this specific information on a bipartisan basis. And certainly we can raise it the next time the Attorney General appears before us. I do have to say that I’m going to vote to table because I think that as flawed as this [the FAA extension] may be without the Lee Amendment which I think would help it, I do believe we need to pass this and bringing in these other matters are going to jeopardize it. But I think it is a legitimate question to be asked of Presidents of either party, and I will join you in a letter to this President and his Attorney General for that purpose. [my emphasis]
This partisan retort (one Leahy repeated) says, in part, that the Democrats aren’t going to cooperate with Cornyn’s effort to get the memo because Cornyn didn’t cooperate with Durbin’s efforts to get the torture and illegal wiretap memos. Durbin and Leahy are right: Cornyn and the rest of the Republican party did obstruct their efforts.
That doesn’t make obstructing Cornyn’s effort right, of course, particularly given that Durbin purports to support Cornyn’s intent.
But remember, Republicans obstructed the release of the torture and illegal wiretap memos because, well, they showed the Executive had broken the law. When we all got to see the torture memos, they made it clear CIA had lied to DOJ to get authorization for torture, had exceeded the authorizations given to them, had engaged in previously unimagined amounts of torture, and had ignored legal precedent to justify it all.
And while we’ve only ever seen part of Jack Goldsmith’s illegal wiretap memo (after the Bush Administration purportedly fixed the data mining and other illegal problems with it) and a teeny fragment of an earlier John Yoo memo, those showed that Yoo relied on gutting the Fourth Amendment, there is an additional secret memo on information sharing, they were hiding their flouting of the exclusivity provision, and–possibly–the illegal wiretap program violated an earlier decision from the FISA Court of Review. We also learned, through some Sheldon Whitehouse persistence, that these memos revealed the President had been pixie dusting Executive Orders and claiming the right to interpret the law for the Executive Branch.
The Republicans had good reason to want to help Bush bury these memos, because they showed breathtaking efforts on the part of the Bush Administration to evade the law.
And that’s the fight that Dick Durbin analogized this one to.
I noted yesterday that the government, in its cynical attempt to play dumb about what the ACLU and NYT were FOIAing in their Anwar al-Awlaki memo lawsuits, had exhibited the same problems with basic definitions as Clinton had over the definition of “is.”
Plaintiffs do not define, and it is otherwise unclear from their response, what is meant by “targeted killing program.”
Interestingly, Tom Junod revealed that one of his sources got squeamish about his use of the word “program.”
But there is someone else who has received at least a cursory white paper introduction to the Administration’s targeted killing of American citizens who is on the record calling it a program: John Cornyn.
In his efforts (thwarted by all the Democrats on the Senate Judiciary Committee) to pass an amendment requiring the Administration to share all legal analysis on its authority to engaging in targeting killings of Americans overseas, he said this:
Cornyn: This is an amendment I alluded to earlier which would require the Executive Branch to share with Congress the legal basis for their decision to engage in a program of targeted killings, including apparently American citizens abroad. This is, just to be clear, not asking about the program per se, just asking about the legal rationale. I think all of us are troubled at least initially, without further explanation, about the use of targeted killings that involve American citizens. We all understand that even American citizens may become traitors and declare war, in essence, against their own country. But there has to be a rationale for this in law. And I think this is about transparency, this is about accountability, and it’s also important for Congress–the only branch that can actually legislate–if there are aspects of this legal argument or rationale which Congress would choose to hold hearings on, conduct appropriate oversight, or legislate on, this is the kind of information that Congress is entitled to as part of our Constitutional role. I know we can all agree that the decision to use this program bears heavily on core national values. [my emphasis]
Elsewhere in the debate (I’ve included my own transcription of it below), Pat Leahy reveals the Administration provided a white paper on the program (though Cornyn suggests–and Leahy seems to confirm–that didn’t include the legal analysis). Which suggests Cornyn is working from the presentation the Administration gave to Congressional overseers of DOJ.
And based on that presentation, Cornyn seems to believe it’s a program.
My transcript of this part of the hearing–which begins around 98:32–is below the line. Continue reading
Things got a little crazy when the Senate Judiciary Committee FISA Amendment Markup turned to targeted killing.
John Cornyn used the opportunity of this must-pass intelligence bill to propose an amendment to require the Administration to share its authorization for targeting killing. Cornyn rather modestly said that “I think all of troubled w/o further explanation” for the authority. [All quotes in this post are my inexact transcription] Chuck Grassley went further, saying something to the effect of “We [the Administration] has got a license to kill, and we don’t know about that license and we won’t get it until we legislate it.”
But Democrats prevented Cornyn and Grassley from attaching legislation mandating the Administration share the authorization with Congress.
Now, Cornyn claimed (incorrectly, given his inaction on Bush’s torture and wiretapping) that he wasn’t pushing for legislation on this just because the President is a Democrat; he would have done so if the President were a Republican too. To which Dick Durbin reminded him of all the times he refused to back legislation requiring oversight and transparency under Bush.
Which was Dick Durbin’s opportunity to call for writing a letter on this issue rather than legislating. Pat Leahy suggested he could just use his letter, which was already sent and ignored. Then Grassley reminded he has sent a letter on this subject too, and been ignored.
It was a bunch of Senators recounting the number of letters demanding oversight into the President’s unchecked authority to kill, including American citizens, only to be blown off. America, fuck yeah!
Again, John Cornyn came off sounding like the adult. “We’re not mere supplicants of the Executive Branch. It is insufficient to say, “Pretty please, Mr President, please tell us about the legal authorization.”
Nevertheless, that didn’t prevent Dianne Feinstein from promising that the Senate Intelligence Committee would include language about this in their authorization, and insisting that they let SSCI, not SJC, impose requirements. She suggested (though did not make explicit) that such a requirement belongs in SSCI because targeted killing is a covert program. Which is how the entire effort got tabled, leaving everyone to write more letters.
Cornyn had one more measure, requiring the President provide notice to the Gang of Eight. Dianne Feinstein, as she has repeatedly, assured her colleagues that she and Saxby Chambliss provide all the oversight on this front that is needed. To which Cornyn asked, “Is notice of targeted killing given before or after killing?” DiFi responded, “Sometimes before, sometimes during, sometimes just after.” Cornyn replied, “I don’t think Congress should delegate all authority to one or two members. Make sure not just you, but bicameral gang of eight.”
Curiously, DiFI had no response to that, leaving the impression that the Obama Administration, even on the matter of targeted killing of US citizens, has continued the Bush Administration violation of the National Security Act by briefing just the Gang of Four, not the Gang of Eight (which would add Harry Reid, Nancy Pelosi, John Boehner, and Mitch McConnell to the Intelligence Committee heads being briefed).
But again, Democrats voted to table that amendment on a party line vote.
This is a problem. Not only is it taking legislation to even get the Senate Intelligence Committee adequately briefed on this topic, but Democrats are using partisan obstruction to prevent the Judiciary Committee from learning enough to assess for themselves whether the targeted killing of a US citizen violates the Constitution.