McClatchy reports today that the Senate Intelligence Report will include no details on the White House role in torture.
The Senate Intelligence Committee report also didn’t examine the responsibility of top Bush administration lawyers in crafting the legal framework that permitted the CIA to use simulated drowning called waterboarding and other interrogation methods widely described as torture, McClatchy has learned.
“It does not look at the Bush administration’s lawyers to see if they were trying to literally do an end run around justice and the law,” the person said.
McClatchy’s story is interesting, in part, because I had heard that the report was going to admit what has been in the public domain for years: the torture program, contrary to almost all reporting, was authorized by Presidential finding, not primarily by the memos that garner all the attention.
If the Torture Report is no longer going to confirm that, it is far bigger news than McClatchy has conveyed. It would mean someone — presumably the White House! (though remember the Finding’s author, Cofer Black, was involved in reviewing the document) — had won concessions in the declassification discussions to hide the role of President Bush in personally authorizing torture.
That would be consistent with President Obama’s rather remarkable efforts to keep a short mention of the September 17, 2001 Gloves Come Off Memorandum of Notification suppressed in ACLU’s torture FOIA (something that’s in the public record, but which I have been the only one to report).
But if President Obama’s White House has, a second time, intervened to prevent public confirmation that the President authorized torture, we really ought to start demanding to know why that’s the case. Remember when the 2nd Circuit backed White House efforts to keep mention of the MON suppressed, the White House said it was still using the MON.
The other reason I find McClatchy’s report curious is because it leaves something utterly central out of its narrative.
As Katherine Hawkins noted yesterday, McClatchy missed a key detail in the chronology of when and how Republicans backed out of the torture review.
Obama DOJ investigation into torture is not “prior” to SSCI report. Launched after SSCI, & is reason GOP withdraws
But there’s one more part of that chronology — one McClatchy might actually review if it wants the things it says it wants: the Office of Public Responsibility report into OLC lawyers’ role in the torture memos. Reporting in 2009 made it clear that Eric Holder launched the John Durham investigation in response to reading the OPR Report. So the chronology goes OPR Report, Durham investigation, GOP withdraws from SSCI Torture Report which (McClatchy argues) is when the Democrats could have turned and pushed to get documents implicating Bush White House figures.
While both David Addington and Tim Flanigan refused to be interviewed for the OPR report, it made it clear (especially Jay Bybee and John Yoo’s rebuttals) that both had had a direct role in setting up the legal loopholes CIA used to conduct torture. Between that and other public (largely unreported by anyone but me) documents, it is fairly clear that in response to concerns raised around July 10, 2002, CIA tried to get DOJ to give “advance” declination of prosecution (though for conduct that surely had already occurred). On July 13, Michael Chertoff refused, probably because Ali Soufan had already raised concerns about the conduct (his concerns probably relate to the use of mock burial) to give advance declination for torture. This led John Yoo to freelance a July 13, 2002 fax laying out how CIA could avoid accountability; that appears to be what Jonathan Fredman relied on in his advice to the torturers, not the more famous Bybee Memos. Nevertheless, at a July 16, 2002 meeting at the White House, it was decided (Yoo and Addington differ, it appears, on who did the deciding, but it is a rock solid bet that Addington did) that the Bybee Memo would include Commander of Chief language on how to avoid prosecution.
There are a number of other moments in the history of the program where White House responsibility is clear. But at that moment on July 16, 2002, David Addington got John Yoo to provide legal cover for anything the President ordered CIA do; he did so, of course, after CIA had been torturing for months on Presidential orders.
The answers to many of the questions McClatchy says have gone unanswered are sitting right there in the OPR report. And those answers are crucial to understanding the dance over declassification going on right now.
Aside from whatever else the Torture Report is, it is also a report that dodges the underlying power structure, in which the President orders the CIA to break the law and later ensures CIA avoids any accountability for doing so. At some point in this Torture Report process — fairly recently too! — Democrats seemed interested in exposing that dynamic, a dynamic President Obama has benefitted from at least as much as Bush did, going so far as to permit him to have CIA kill a US citizen with no due process. (That’s probably why Leon Panetta told some fibs in his memoir on this point.)
Ultimately, we’re never going to rein in CIA until we expose the mutual embrace of complicity the White House and CIA repeatedly rely on. Now it looks like the Senate Intelligence Committee has — in bipartisan fashion — decided to back off doing so here.
As you likely know, I’m firmly of the belief that one should call DC memoirs — especially those written by National Security figures — autobiographical novels, because they tend to stray so far from the truth (that’s true of all autobiographies, but in DC it seems far more motivated). Turbo-Tax Timmy Geithner is about the only DC figure whose memoir has ever been treated with any of the skepticism it deserves.
With that in mind, I wanted to look at this detail from Leon Panetta’s book, which Katherine Hawkins alerted me to.
To illustrate how Obama’s micromanagement hurt relations with Congress, Panetta describes the negotiations with Dianne Feinstein over the cables that went into the torture report.
She requested access for her staff to every operational cable regarding the program, a database that had to be in the hundreds of thousands of documents. These were among the most sensitive documents the agency had. But Feinstein’s staff had the requisite clearances and we had no basis to refuse her. Still, I wanted to have some control over this material, so I proposed a deal: Instead of turning over the documents en masse to her staff, we would set up a secure room in Virginia. Her staff could come out to the secure facility and review documents one by one, and though they could take notes, the documents themselves would stay with CIA.
When the White House found out, they went apeshit, calling Panetta into the Situation Room for a spanking.
“The president wants to know who the fuck authorized this release to the committees,” Rahm said, slamming his hand down on the table. “I have a president with his hair on fire, and I want to know what the fuck you did to fuck this up so bad.”
I’d known Rahm a long time, and I was no stranger to his language or his temper, so I knew when to worry about an outburst and when it was mostly for show. On this occasion, my hunch was that Rahm wasn’t that perturbed but that Obama probably was and that others at the table, particularly Brennan and McDonough, were too. Rahm was sticking up for them by coming after me.
It went back and forth like this for about fifteen minutes. Brennan and I even exchanged sharp words when I, unfairly, accused him of not sticking up for the agency in the debate over the interrogation memos. Finally, the White House team realized that whether they liked it or not, there was no way we could go back on our deal with the committee. And just like that, the whole matter was dropped.
Rahm and Brennan spanked Panetta, he claims, but then the whole thing blew over.
There are just three problems with this story.
First, according to the quotations Dianne Feinstein revealed from her agreement with Panetta, the CIA wasn’t supposed to “have … control over this material.”
Per an exchange of letters in 2009, then-Vice Chairman Bond, then-Director Panetta, and I agreed in an exchange of letters that the CIA was to provide a “stand-alone computer system” with a “network drive” “segregated from CIA networks” for the committee that would only be accessed by information technology personnel at the CIA—who would “not be permitted to” “share information from the system with other [CIA] personnel, except as otherwise authorized by the committee.”
Far more significantly, Panetta doesn’t mention the documents that disappeared during Panetta’s tenure — ostensibly, on orders from the White House.
In early 2010, the CIA was continuing to provide documents, and the committee staff was gaining familiarity with the information it had already received.
In May of 2010, the committee staff noticed that [certain] documents that had been provided for the committee’s review were no longer accessible. Staff approached the CIA personnel at the offsite location, who initially denied that documents had been removed. CIA personnel then blamed information technology personnel, who were almost all contractors, for removing the documents themselves without direction or authority. And then the CIA stated that the removal of the documents was ordered by the White House. When the committee approached the White House, the White House denied giving the CIA any such order.
After a series of meetings, I learned that on two occasions, CIA personnel electronically removed committee access to CIA documents after providing them to the committee. This included roughly 870 documents or pages of documents that were removed in February 2010, and secondly roughly another 50 were removed in mid-May 2010.
And Panetta also doesn’t mention what may or may not be the same set of documents, those withheld by CIA on behalf of the White House, as described by Stephen Preston in response to Mark Udall.
With specific reference to documents potentially subject to a claim of executive privilege, as noted in the question, a small percentage of the total number of documents produced was set aside for further review. The Agency has deferred to the White House and has not been substantively involved in subsequent discussions about the disposition of those documents.
In other words, CIA didn’t live up to its deal with Feinstein, not with respect to this set of documents, anyway. After turning over all the cables it believed SSCI had a right to obtain, it then took some back. As far as we know, it never did provide them.
We know that one of the Torture Report’s conclusions is that the CIA lied to the White House.
While there’s good reason to believe CIA lied to Condi Rice, there’s also abundant reason to believe that Dick Cheney and David Addington knew precisely what was going on. If I had to guess, the documents CIA stole back probably make that clear.
Panetta would have us believe that, after his spanking by John Brennan and others, the whole matter was dropped. Which is a convenient tale, except that it obscures that the White House succeeded in clawing back documents CIA originally believed SSCI was entitled to.
Recall that last fall, Barack Obama spent some time altering the public record on when CIA-trained death squads first entered Syria to move the date from just before the Ghouta sarin attack to just after (while also trying to shrink the size of those first groups). But the US was a month behind Pakistan’s Taliban, who also sent fighters to Syria, ostensibly on the same side as us this time, to fight pro-Assad forces. But while these efforts on the same side in Syria are having little success as Assad remains in power and might even be gaining the upper hand, the work of the CIA and Taliban on opposite sides in Pakistan has produced a devastating result, with the World Health Organization announcing yesterday that it has declared a Public Health Emergency of International Concern over the spread of polio to countries where it previously had been eradicated:
After discussion and deliberation on the information provided, and in the context of the global polio eradication initiative, the Committee advised that the international spread of polio to date in 2014 constitutes an ‘extraordinary event’ and a public health risk to other States for which a coordinated international response is essential. The current situation stands in stark contrast to the near-cessation of international spread of wild poliovirus from January 2012 through the 2013 low transmission season for this disease (i.e. January to April). If unchecked, this situation could result in failure to eradicate globally one of the world’s most serious vaccine preventable diseases. It was the unanimous view of the Committee that the conditions for a Public Health Emergency of International Concern (PHEIC) have been met.
Although fundamentalist Islamic groups have long accused vaccination campaigns, and especially polio vaccinations, of being efforts by the West to sterilize Muslims, the very high profile case of Dr. Shakeel Afridi carrying out a hepatitis vaccination ruse on on behalf of the CIA in an effort to obtain blood samples from Osama bin Laden’s compound in Abbottabad provided a refreshed incentive for attacks on vaccine programs.
Marcy pointed out the stupidity of Leon Panetta’s confirmation that Afridi worked with the CIA in the ruse the day before Panetta’s 60 Minutes segment ran:
Not only does this presumably put more pressure on Pakistan to convict Afridi of treason (he remains in custody), but it exacerbates the problem of having used a vaccination campaign as cover in the first place, confirming on the record that similar campaigns in poor countries might be no more than a CIA front.
I presume someone in the White House gave Panetta permission to go blab this on 60 Minutes; I assume he’s in no more legal jeopardy than Dick Cheney was when he insta-declassified Valerie Plame’s identity.
But shit like this discredits every single claim national security experts make about the need for secrecy. I mean, how are CIA officers ever going to recruit any more assets when the assets know that the CIA director may, at some time in the future that’s politically convenient, go on 60 Minutes and confirm the relationship?
Afridi was eventually sentenced to 30 years imprisonment, not on treason but on other dubious charges and in a shopped venue. And the fallout in Pakistan’s tribal areas from US confirmation of the vaccination ruse was exactly as might be expected: multiple deadly attacks on polio vaccine workers and many new cases of paralyzed children.
While the polio virus circulating in Syria doesn’t appear to have come directly with the Taliban fighters sent from Pakistan, it is indeed a strain from Pakistan’s tribal areas that is in Syria now:
Thirteen cases of wild poliovirus type 1 (WPV1) have been confirmed in the Syrian Arab Republic. Genetic sequencing indicates that the isolated viruses are most closely linked to virus detected in environmental samples in Egypt in December 2012 (which in turn had been linked to wild poliovirus circulating in Pakistan).
WHO is recommending drastic measures, primarily calling for all travelers from Pakistan, Cameroon and Syria to be vaccinated for polio, preferably at least four weeks prior to international travel, but at least at departure if it hasn’t been done earlier. WHO is also calling for increased efforts in vaccinations in countries (Afghanistan, Equatorial Guinea, Ethiopia, Iraq, Israel, Somalia and Nigeria) where the virus is known to be present but from which transmission has not been seen.
So the fears from two years ago on the impact of the CIA’s actions on polio eradication are now met. But keep in mind that it’s not just vaccine programs that were put at risk by this incredibly stupid move. A large alliance of humanitarian groups complained directly to the CIA that all humanitarian groups were put at risk by the move, since the CIA ruse was carried out under cover of a humanitarian organization. Will John Brennan be able to heed this advice?
Five years ago, I reported (BREAKING) that the Bush Administration (aka Dick Cheney) made the torture program a Special Access Program in unusual fashion. Rather than CIA Director George Tenet make torture a SAP, as mandated by the Executive Order governing such things, unnamed people in the National Security Council did so.
Panetta tells a funny story about how (but not when) the torture program became a special access program.
Section 6.1(kk) of the Executive Order defines a “special access program” as “a program established for a special class of classified information that imposes safeguarding and access requirements that exceed those normally required for information at the same classification level.” Section 4.5 of the Order specifies the U.S. Government officials who may create a special access program. This section further provides that for special access programs pertaining to intelligence activities (including special activities, but not including military operations, strategic, and tactical programs), or intelligence sources or methods, this function shall be exercised by the Director of the CIA.
Officials at the National Security Council, (NSC) determined that in light of the extraordinary circumstances affecting the vital interests of the United States and the senstivity of the activities contemplated in the CIA terrorist detention and interrogation program, it was essential to limit access to the information in the program. NSC officials established a special access program governing access to information relating to the CIA terrorist detention and interrogation program. As the executive agent for implementing the terrorist detention and interrogation program, the CIA is responsible for limiting access to such information in accordance with the NSC’s direction. [my emphasis]
See the funny bit? The first paragraph says the Director of the CIA “shall” “exercise” the function of creating special access programs pertaining to intelligence. But then the very next paragraph says “NSC officials established a special access program.” One paragraph says the Director of CIA has to do it, but the next paragraph admits someone else did it.
Since that time, I’ve asked experts in classification and they agree that something funky went down (note, too, that torture wasn’t a SAP at the very beginning).
I believe torture’s odd SAP status is one of the things that has implicated the Presidency, which the Obama Administration went to some lengths to cover up.
But it also should dictate the White House take the lead on declassification of the torture program.
Don’t take my word for it — take Dianne Feinstein’s word. In a letter to the White House, she invoked torture’s status as a “covert action program under the authority of the President and National Security Council” to call for the White House to lead declassification.
In a letter to the President dated April 7 and obtained by McClatchy, Dianne Feinstein, D-Calif., called for swift action on the summary and the findings and conclusions of the report, which members voted last week to declassify. The summary, Feinstein said, should be released “quickly and with minimal redactions.”
“As this report covers a covert action program under the authority of the President and National Security Council, I respectfully request that the White House take the lead in the declassification process,” the letter reads.
Note, Dianne Feinstein has just formally confirmed the same detail the Obama Administration appealed to keep secret: torture was authorized by the President, not by OLC, not by George Tenet, not by John Rizzo. The President.
Which is why the President should take responsibility for releasing the report.
On several occasions, I have pointed to the arbitrary system our classification system constructs. It asks government employees to spy on their colleagues. It permits agencies to conduct fishing expeditions into personal information as part of the polygraph process. It permits Agencies to selectively approve propaganda under the guise of pre-publication review (most notably in the case of Jose Rodriguez and John Rizzo). By stripping sensitive unclassified jobs of their Merit Board protection, even lower level staffers who don’t receive a clearance-related income boost are now subject to this arbitrary system. And Congress even tried to use pensions as another leverage point against cleared personnel.
The arbitrary nature of this system is perhaps most clear, however, when it comes to prosecutions.
Which is a point John Kiriakou made in an op-ed yesterday. In it, he suggests Leon Panetta and James Cartwright could be sitting next to him in Loretto Prison.
The [Espionage Act] states: “Whoever, lawfully having possession of, access to, control over, or being entrusted with any … information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates … the same to any person not entitled to receive it … shall be fined under this title or imprisoned not more than 10 years, or both.”
A transcript obtained by the organization Judicial Watch shows that, at a CIA awards ceremony attended by Boal, Panetta did exactly that. The CIA seems to acknowledge that Panetta accidentally revealed the name of the special forces ground commander who led the operation to kill Osama bin Laden, not knowing that the Hollywood screenwriter was part of an audience cleared to hear him speak. But intent is not relevant to Espionage Act enforcement.
U.S. District Court Judge Leonie Brinkema ruled in my case that evidence of the accidental release of national defense information was inadmissible, and she added that the government did not have to prove that a leak of classified information actually caused any harm to the United States. In other words, the act of disclosing the kind of broad information covered by the Espionage Act is prosecutable regardless of outcome or motive.
The sensitivity of what Panetta revealed is not in question. The spokesman for the former CIA director said Panetta assumed that everyone present at the time of the speech had proper clearance for such a discussion. When the transcript of the speech was released, more than 90 lines had been redacted, implying that Panetta had disclosed a great deal more classified information than the name of an operative.
If an intent to undermine U.S. national security or if identifiable harm to U.S. interests are indeed not relevant to Espionage Act enforcement, then the White House and the Justice Department should be in full froth. Panetta should be having his private life dug in to, sifted and seized as evidence, as happened to me and six others under the Obama administration.
If Panetta and Cartwright aren’t accountable while Drake, Kim and I have been crucified for harming U.S. national security — all of us accused of or investigated for the same thing: disclosing classified information to parties not authorized to know it — then what does that say about justice in America or White House hypocrisy?
Kiriakou goes on to call for changes in the Espionage Act to focus on issues of intent and harm.
Kiriakou is, of course, correct that he got punished for things that Panetta and Cartwright have (so far, at least) escaped such levels of punishment for. (I’d also add the unnamed real sources for the UndieBomb 2.0 leak, who are being protected by the scapegoating of Donald Sachtleben.)
But I’d go even further. Given reports that FBI is investigating whether Senate Intelligence Committee staffers violated the law for obtaining proof the Agency they oversee was hiding evidence from it, it’s crucial to remember how Kiriakou’s prosecution came about, which I laid out in this post.
It started when CIA officers claimed that when Gitmo defense attorneys provided photos of their clients torturers to them–having independently discovered their identity–the torturers were put at risk. DOJ didn’t believe it was a security risk; CIA disagreed and went to John Brennan. And after Patrick Fitzgerald was brought in to mediate between DOJ and CIA, the prosecution of John Kiriakou resulted.
As a reminder of where this all started, it’s worth reading this March 15, 2010 Bill Gertz article which was, AFAIK, the first public report of the investigation into the John Adams Project. It describes a March 9, 2010 meeting between Fitzgerald and the CIA.
The dispute prompted a meeting Tuesday at CIA headquarters between U.S. Attorney Patrick J. Fitzgerald and senior CIA counterintelligence officials. It is the latest battle between the agency and the department over detainees and interrogations of terrorists.
According to U.S. officials familiar with the issue, the current dispute involves Justice Department officials who support an effort led by the American Civil Liberties Union to provide legal aid to military lawyers for the Guantanamo inmates. CIA counterintelligence officials oppose the effort and say giving terrorists photographs of interrogators has exposed CIA personnel and their families to possible terrorist attacks.
According to the officials, the dispute centered on discussions for a interagency memorandum that was to be used in briefing President Obama and senior administration officials on the photographs found in Cuba. Justice officials did not share the CIA’s security concerns about the risks posed to CIA interrogators and opposed language on the matter that was contained in the draft memorandum. The memo was being prepared for White House National Security Council aide John Brennan, who was to use it to brief the president.
The CIA insisted on keeping its language describing the case and wanted the memorandum sent forward in that form.
That meeting, of course, would have taken place the day after Fitzgerald was appointed. So immediately after Fitzgerald got put in charge of this investigation, he presumably moderated a fight between DOJ, which didn’t think detainee lawyers pursuing their clients’ torturers via independent means threatened to expose the torturers’ identity directly, and CIA, which apparently claimed to be worried.
What happened with Kiriakou’s sentencing today is many things. But it started as–and is still fundamentally a result of–an effort on the part of CIA to ensure that none of its torturers ever be held accountable for their acts, to ensure that the subjects of their torture never gain any legal foothold to hold them accountable.
I’m watching the confirmation hearing for Caroline Krass to be General Counsel of the CIA.
When his turn, Mark Udall just started by saying that after the review process between CIA and Senate Intelligence Committee, “I’m more confident than ever of the factual accuracy of the Committee’s 6300 page study.” He then repeated it again.
He went on to reveal that CIA is still withholding certain cables the Committee needs to finish the report.
Finally, he revealed that Leon Panetta did a review of the torture program. And that review came to the same conclusion as the Senate Intelligence Report.
Which raised two questions, for Udall. First, given that Panetta, as CIA DIrector, came to largely similar results as the Senate did, why has the CIA spent a year fighting the release of the Torture Report?
More importantly, why has — as Udall revealed — refused to turn over the Panetta review to the Committee?
Very good questions.
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…
In what is sure to be some interesting book publicity, Erik Prince has gone sobbing to the WSJ about the shoddy treatment the government that paid him billions treated him. In the piece, he continues to reveal new details about some of the operations CIA paid him to do, including the kill team training first revealed in 2009.
A chief target of Mr. Prince’s ire is Mr. Panetta, who in 2009 shut down the covert training operation for CIA “hit teams” that former Blackwater officials said took place on Mr. Prince’s Virginia property.
The CIA had been sending officers for training at Blackwater’s North Carolina training facility. But it wanted something closer to its Langley, Va., headquarters, former company officials said. So they asked Mr. Prince to build a small shooting range on his rural Virginia land.
“They needed a place that was only 35 minutes away from work,” said Gary Jackson, the former Blackwater president. “Erik was OK with that, and he has the property, and we had the money.” The trainings, including live-fire exercises, drew some complaints over the years from neighbors, Mr. Jackson said.
When that information became public in 2009, right after Mr. Panetta canceled the Blackwater hit-team training, the CIA director ended the company’s role in maintaining the drones.
Mr. Prince said he is convinced that Mr. Panetta outed him as a CIA “asset” at a closed congressional hearing that year, adding that it was unthinkable for a CIA director to reveal the real name of a covert operative to lawmakers.
“No one was out to scapegoat anyone in the relationship with Blackwater, but there were some issues that arose that prompted a serious look at contracts with the company,” said one former CIA official involved in the discussions. “There was a perception that they were trying to run some of their own operations untethered from agency oversight.” [my emphasis]
Only the last bit is really new (though it is suggested in a profile of the mafia hitman involved in the program).
But remember this real point is not that Panetta outed Prince to the House Intelligence Committee, it’s that he briefed these “programs” at all. According to Jan Schakowsky, under Cheney Blackwater had been working directly with the White House on counterterrorism policy (which makes sense since Cofer Black came up with that policy in the first place).
I reminded, by the way, that Barb Milkulski told John Brennan that Panetta was the only CIA Director who didn’t “jerk around” the intelligence committees.
Imagine how sad Prince must be that his mercenary company beginning to do its own operations got cut off when Congress actually learned about it!
While the nation grieves over the senseless death of Trayvon Martin and the missed opportunity to hold his killer responsible for that death, there is another senseless death of an American teenager of color where an attempt is continuing, after previous failures, to hold accountable those responsible for the lawless way in which this life was arbitrarily ended.
Exactly one year ago today, the American Civil Liberties Union and the Center for Constitutional Rights filed a lawsuit (pdf) on behalf of Nasser al-Awlaki (father of Anwar al-Awlaki and grandfather of Abdulrahman al-Awlaki) and Sarah Khan (wife of Samir Khan). The defendants in the case are former Defense Secretary Leon Panetta, Commander of Special Operations Command William McRaven, Commander of Joint Special Operations Command Joseph Votel and former CIA Head David Petraeus. The complaint cites violation of the Fourth and Fifth Amendments as well as violation of the Bill of Attainder Clause in the targeted killings of Anwar al-Awlaki, Abdulrahaman al-Awlaki and Samir Khan. Oral arguments on the suit begin tomorrow.
Given what is known about the role of Barack Obama in these killings and his personal authorization of the “kill list” in his Terror Tuesday meetings, I find it perplexing that he is not also a defendant in this case.
The complaint seeks damages in an amount to be determined at the trial and any other relief the court deems just and proper.
Coincident with the filing of the complaint in the United States District Court for the District of Columbia a year ago, the video above was released. Today, an op-ed by Nasser al-Awlaki was published in the New York Times, helping to focus attention on tomorrow’s opening arguments. The video and op-ed are truly gut-wrenching.
From the op-ed:
I LEARNED that my 16-year-old grandson, Abdulrahman — a United States citizen — had been killed by an American drone strike from news reports the morning after he died.
The missile killed him, his teenage cousin and at least five other civilians on Oct. 14, 2011, while the boys were eating dinner at an open-air restaurant in southern Yemen.
The grandfather describes his anguish as he seeks answers to the question of why his grandson was killed:
Nearly two years later, I still have no answers. The United States government has refused to explain why Abdulrahman was killed. It was not until May of this year that the Obama administration, in a supposed effort to be more transparent, publicly acknowledged what the world already knew — that it was responsible for his death.
Nasser al-Awlaki describes the huge impact an education in the United States made on his life and how he put that education to use when he returned to Yemen. More importantly, he puts the actions of the United States in killing his son and grandson significantly at odds with the values of the United States when he was a student here:
A country that believes it does not even need to answer for killing its own is not the America I once knew. From 1966 to 1977, I fulfilled a childhood dream and studied in the United States as a Fulbright scholar, earning my doctorate and then working as a researcher and assistant professor at universities in New Mexico, Nebraska and Minnesota.
After returning to Yemen, I used my American education and skills to help my country, serving as Yemen’s minister of agriculture and fisheries and establishing one of the country’s leading institutions of higher learning, Ibb University. Abdulrahman used to tell me he wanted to follow in my footsteps and go back to America to study. I can’t bear to think of those conversations now.
The op-ed closes with a direct and haunting question:
The government has killed a 16-year-old American boy. Shouldn’t it at least have to explain why?
Sadly, we can state with confidence that even before the proceedings open the government will argue that it does not have to explain why it killed Abdulrahman. Because terror. Even more sadly, it is quite likely that the court will side with this senseless and lawless argument. Because terror.
What has our country become?
I wanted to point to one more detail from the DOD Inspector General’s report on Leon Panetta’s leaks to Zero Dark 30′s filmakers.
The very last page of the report describes how Admiral William McRaven responded after realizing the SEALs who had participated in the raid on Osama bin Laden’s compound had all hung around a Hollywood producer with their name badges exposed.
According to ADM McRaven, the DoD provided the operators and their families an inordinate level of security. ADM McRaven held a meeting with the families to discuss force protection measures and tell the families that additional protective monitoring will be provided, and to call security personnel if they sensed anything. ADM McRaven also directed that the names and photographs associated with the raid not be released. This effort included purging these records to another Government Agency. [my emphasis]
The report doesn’t reveal when SOCOM purged its records and handed the documents to, presumably though not definitely, CIA, though if McRaven directed it, it happened after he took command in August 2011. (Update: That’s probably not right, as he was in command of the operation in any case.)
But it’s a relevant question because Judicial Watch had FOIAed pictures of OBL on May 3, 2011, and sued 10 days later, so before all the leaking and presumably therefore the purging began. On June 26, 2011, just two days after Panetta’s leaky party, the government stalled on the suit, saying Judicial Watch had not exhausted its administrative remedies. By September 26, DOD claimed they had no pictures of OBL (though earlier this year there were reports 7 new photos had been found) and CIA claimed none of the 52 pictures they had could be released. Along with that filing, McRaven submitted a declaration explaining why these photos couldn’t be released, though the interesting parts remain redacted. John Bennett’s declaration for the CIA does not describe when the Agency searched its files for photographs, and therefore doesn’t indicate whether they searched before or after DOD purged its files.
Now, none of this timing would mitigate CIA’s claims about the extremely grave harm that would arise from releasing OBL death porn.
But it is, at the very least, very sketchy — and all that’s before having a really good sense of when the purging and the FOIA response occurred.
Update: I spoke to Judicial Watch’s lawyer for this FOIA, Michael Bekesha, and they have never been informed of this purge. Though it may explain some other details about the progress of the FOIA, including some funkiness with the classification of the photos.
Update: Here’s DOD’s declaration about their search from September 26, 2011.
It’s interesting for two reasons. First, they make claims about SOCOM files that is the exact opposite of what DOD said in the NYT/ACLU FOIA for Anwar al-Awlaki related OLC memos. Whereas in the drone FOIA, they claimed CENTCOM handled SOCOM’s FOIA responses, this one says,
The mission of USSOCOM is to provide Special Operations Forces to defend the United States and its interests. A priority of USSOCOM is to “Deter, Disrupt, and Defeat Terrorist Threats,” and a primary aspect of this priority is to plan and conduct special operations. When a special operation is conducted, the military service Components of USSOCOM (U.S. Army Special Operations Command, Navy Special Warfare Command, U.S. Air Force Special Operations Command, and Marine Corps Special Operations Command) provide Special Operations Forces (personnel and equipment) to the operation. Accordingly, it is DoD FOIA policy that documents created or maintained by these military service Components during or for a joint special operation come under the cognizance of USSOCOM and not the military services for purposes of the FOIA. Therefore, USSOCOM and not the military services, is responsible for the searches of records responsive to plaintiff’s FOIA request at those service components that may have participated in the subject operation.
And like CIA, they don’t date their search description at SOCOM, so don’t say whether it happened pre- or post-purge.
USSOCOM searched the Headquarters and relevant Components, and no records responsive to plaintiff’s request were located. The specific filing systems searched at the Headquarters USSOCOM offices and relevant Components were all hard copy and electronic records including all email records during the inclusive dates of May 1, 2011, through May 31, 2011.