Robert Gates

Protect America Act Was Designed to Collect on Americans, But DOJ Hid that from the FISC

The government released a document in the Yahoo dump that makes it clear it intended to reverse target Americans under Protect America Act (and by extension, FISA Amendments Act). That’s the Department of Defense Supplemental Procedures Governing Communications Metadata Analysis.

The document — as released earlier this month and (far more importantly) as submitted belatedly to the FISC in March 2008 — is fairly nondescript. It describes what DOD can do once it has collected metadata (irrespective of where it gets it) and how it defines metadata. It also clarifies that, “contact chaining and other metadata analysis do not qualify as the ‘interception’ or ‘selection’ of communcations, nor to they qualify as ‘us[ing] a selection term’.”

The procedures do not once mention US persons.

There are two things that should have raised suspicions at FISC about this document. First, DOJ did not submit the procedures to FISC in a February 20, 2008 collection of documents they submitted after being ordered to by Judge Walton after he caught them hiding other materials; they did not submit them until March 14, 2008.

The signature lines should have raised even bigger suspicions.

Gates Mukasey

First, there’s the delay between the two dates. Robert Gates, signing as Secretary of Defense, signed the document on October 17, 2007. That’s after at least one of the PAA Certifications underlying the Directives submitted to Yahoo (the government is hiding the date of the second Certification for what I suspect are very interesting reasons), but 6 days after Judge Colleen Kollar-Kotelly submitted questions as part of her assessment of whether the Certifications were adequate. Michael Mukasey, signing as Attorney General, didn’t sign the procedures until January 3, 2008, two weeks before Kollar-Kotelly issued her ruling on the certifications, but long after it started trying to force Yahoo to comply and even after the government submitted its first ex parte submission to Walton. That was also just weeks before the government redid the Certifications (newly involving FBI in the process) underlying PAA on January 29. I’ll come back to the dates, but the important issue is they didn’t even finalize these procedures until they were deep into two legal reviews of PAA and in the process of re-doing their Certifications.

Moreover, Mukasey dawdled two months before he signed them; he started at AG on November 9, 2007.

Then there’s the fact that the title for his signature line was clearly altered, after the fact.

Someone else was supposed to sign these procedures. (Peter Keisler was Acting Attorney General before Mukasey was confirmed, including on October 17, when Gates signed these procedures.) These procedures were supposed to be approved back in October 2007 (still two months after the first PAA Certifications) but they weren’t, for some reason.

The backup to those procedures — which Edward Snowden leaked in full — may explain the delay.

Those procedures were changed in 2008 to reverse earlier decisions prohibiting contact chaining on US person metadata. 

NSA had tried to get DOJ to approve that change in 2006. But James Baker (who was one of the people who almost quit over the hospital confrontation in 2004 and who is now FBI General Counsel) refused to let them.

After Baker (and Alberto Gonzales) departed DOJ, and after Congress passed the Protect America Act, the spooks tried again. On November 20, 2007, Ken Wainstein and Steven Bradbury tried to get the Acting Deputy Attorney General Craig Morford (not Mukasey, who was already AG!) to approve the procedures. The entire point of the change, Wainstein’s memo makes clear, was to permit the contact chaining of US persons.

The Supplemental Procedures, attached at Tab A, would clarify that the National Security Agency (NSA) may analyze communications metadata associated with United States persons and persons believed to be in the United States.

What the government did, after passage of the PAA, was make it permissible for NSA to figure out whom Americans were emailing.

And this metadata was — we now know — central to FISCR’s understanding of the program (though perhaps not FISC’s; in an interview today I asked Reggie Walton about this document and he simply didn’t remember it).

The new declassification of the FISCR opinion makes clear, the linking procedures (that is, contact chaining) NSA did were central to FISCR’s finding that Protect America Act, as implemented in directives to Yahoo, had sufficient particularity to be reasonable.

The linking procedures — procedures that show that the [redacted] designated for surveillance are linked to persons reasonably believed to be overseas and otherwise appropriate targets — involve the application of “foreign intelligence factors” These factors are delineated in an ex parte appendix filed by the government. They also are described, albeit with greater generality, in the government’s brief. As attested by affidavits  of the Director of the National Security Agency (NSA), the government identifies [redacted] surveillance for national security purposes on information indicating that, for instance, [big redaction] Although the FAA itself does not mandate a showing of particularity, see 50 U.S.C. § 1805(b). This pre-surveillance procedure strikes us as analogous to and in conformity with the particularly showing contemplated by Sealed Case.

In fact, these procedures were submitted to FISC and FISCR precisely to support their discussion of particularity! We know they were using these precise procedures with PAA because they were submitted to FISC and FISCR in defense of a claim that they weren’t targeting US persons.

Except, by all appearances, the government neglected to tell FISC and FISCR that the entire reason these procedures were changed, subsequent to the passage of the PAA, was so NSA could go identify the communications involving Americans.

And this program, and the legal authorization for it? It’s all built into the FISA Amendments Act.

SPCMA: The Other NSA Dragnet Sucking In Americans

Screen Shot 2014-02-16 at 10.42.09 PMIn December, I wrote a post noting that NSA personnel performing analysis on PATRIOT-authorized metadata (both phone or Internet) can choose to contact chain on just that US-collected data, or — in what’s call a “federated query” — on foreign collected data, collected under Executive Order 12333, as well. It also appears (though I’m less certain of this) that analysts can do contact chains that mix phone and Internet data, which presumably is made easier by the rise of smart phones.

Section 215 is just a small part of the dragnet

This is one reason I keep complaining that journalists reporting the claim that NSA only collects 20-30% of US phone data need to specify they’re talking about just Section 215 collection. Because we know, in part because Richard Clarke said this explicitly at a Senate Judiciary Committee hearing last month, that Section “215 produces a small percentage of the overall data that’s collected.” At the very least, the EO 12333 data will include the domestic end of any foreign-to-domestic calls it collects, whether made via land line or cell. And that doesn’t account for any metadata acquired from GCHQ, which might include far more US person data.

The Section 215 phone dragnet is just a small part of a larger largely-integrated global dragnet, and even the records of US person calls and emails in that dragnet may derive from multiple different authorities, in addition to the PATRIOT Act ones.

SPCMA provided NSA a second way to contact chain on US person identifiers

With that background, I want to look at one part of that dragnet: “SPCMA,” which stands for “Special Procedures Governing Communications Metadata Analysis,” and which (the screen capture above shows) is one way to access the dragnet of US-collected (“1st person”) data. SPCMA provides a way for NSA to include US person data in its analysis of foreign-collected intelligence.

According to what is currently in the public record, SPCMA dates to Ken Wainstein and Steven Bradbury’s efforts in 2007 to end some limits on NSA’s non-PATRIOT authority metadata analysis involving US persons. (They don’t call it SPCMA, but the name of their special procedures match the name used in later years; the word, “governing,” is for some reason not included in the acronym)

Wainstein and Bradbury were effectively adding a second way to contact chain on US person data.

They were proposing this change 3 years after Collen Kollar-Kotelly permitted the collection and analysis of domestic Internet metadata and 1 year after Malcolm Howard permitted the collection and analysis of domestic phone metadata under PATRIOT authorities, both with some restrictions, By that point, the NSA’s FISC-authorized Internet metadata program had already violated — indeed, was still in violation — of Kollar-Kotelly’s category restrictions on Internet metadata collection; in fact, the program never came into compliance until it was restarted in 2010.

By treating data as already-collected, SPCMA got around legal problems with Internet metadata

Against that background, Wainstein and Bradbury requested newly confirmed Attorney General Michael Mukasey to approve a change in how NSA treated metadata collected under a range of other authorities (Defense Secretary Bob Gates had already approved the change). They argued the change would serve to make available foreign intelligence information that had been unavailable because of what they described as an “over-identification” of US persons in the data set.

NSA’s present practice is to “stop” when a chain hits a telephone number or address believed to be used by a United States person. NSA believes that it is over-identifying numbers and addresses that belong to United States persons and that modifying its practice to chain through all telephone numbers and addresses, including those reasonably believed to be used by a United States person, will yield valuable foreign intelligence information primarily concerning non-United States persons outside the United States. It is not clear, however, whether NSA’s current procedures permit chaining through a United States telephone number, IP address or e-mail address.

They also argued making the change would pave the way for sharing more metadata analysis with CIA and other parts of DOD.

The proposal appears to have aimed to do two things. First, to permit the same kind of contact chaining — including US person data — authorized under the phone and Internet dragnets, but using data collected under other authorities (in 2007, Wainstein and Bradbury said some of the data would be collected under traditional FISA). But also to do so without the dissemination restrictions imposed by FISC on those PATRIOT-authorized dragnets.

In addition (whether this was one of the goals or not), SPCMA defined metadata in a way that almost certainly permitted contact chaining on metadata not permitted under Kollar-Kotelly’s order.

“Metadata” also means (1) information about the Internet-protocol (IP) address of the computer from which an e-mail or other electronic communication was sent and, depending on the circumstances, the IP address of routers and servers on the Internet that have handled the communication during transmission; (2) the exchange of an IP address and e-mail address that occurs when a user logs into a web-based e-mail service; and (3) for certain logins to web-based e-mail accounts, inbox metadata that is transmitted to the user upon accessing the account.

Some of this information — such as the web-based email exchange — almost certainly would have been excluded from Kollar-Kotelly’s permitted categories because it would constitute content, not metadata, to the telecoms collecting it under PATRIOT Authorities.

Wainstein and Bradbury appear to have gotten around that legal problem — which was almost certainly the legal problem behind the 2004 hospital confrontation — by just assuming the data was already collected, giving it a sort of legal virgin birth.

Doing so allowed them to distinguish this data from Pen Register data (ironically, precisely the authority Kollar-Kotelly relied on to authorize PATRIOT-authorized Internet metadata collection) because it was no longer in motion.

First, for the purpose of these provisions, “pen register” is defined as “a device or process which records or decodes dialing, routing, addressing or signaling information.” 18 U.S.C. § 3127(3); 50 U.S.C. § 1841 (2). When NSA will conduct the analysis it proposes, however, the dialing and other information will have been already recorded and decoded. Second, a “trap and trace device” is defined as “a device or process which captures the incoming electronic or other impulses which identify the originating number or other dialing, routing, addressing and signaling information.” 18 U.S.C. § 3127(4); 50 U.S.C. § 1841(2). Again, those impulses will already have been captured at the point that NSA conducts chaining. Thus, NSA’s communications metadata analysis falls outside the coverage of these provisions.

And it allowed them to distinguish it from “electronic surveillance.”

The fourth definition of electronic surveillance involves “the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication …. ” 50 U.S.C. § 1802(f)(2). “Wire communication” is, in turn, defined as “any communication while it is being carried by a wire, cable, or other like com1ection furnished or operated by any person engaged as a common carrier …. ” !d. § 1801 (1). The data that the NSA wishes to analyze already resides in its databases. The proposed analysis thus does not involve the acquisition of a communication “while it is being carried” by a connection furnished or operated by a common carrier.

This legal argument, it seems, provided them a way to carve out metadata analysis under DOD’s secret rules on electronic surveillance, distinguishing the treatment of this data from “interception” and “selection.”

For purposes of Procedure 5 of DoD Regulation 5240.1-R and the Classified Annex thereto, contact chaining and other metadata analysis don’t qualify as the “interception” or “selection” of communications, nor do they qualify as “us[ing] a selection term,” including using a selection term “intended to intercept a communication on the basis of … [some] aspect of the content of the communication.”

This approach reversed an earlier interpretation made by then Counsel of DOJ’s Office of Intelligence and Policy Review James A Baker.

Baker may play an interesting role in the timing of SPCMA. He had just left in 2007 when Bradbury and Wainstein proposed the change. After a stint in academics, Baker served as Verizon’s Assistant General Counsel for National Security (!) until 2009, when he returned to DOJ as an Associate Deputy Attorney General. Baker, incidentally, got named FBI General Counsel last month.

NSA implemented SPCMA as a pilot in 2009 and more broadly in 2011

It wasn’t until 2009, amid NSA’s long investigation into NSA’s phone and Internet dragnet violations that NSA first started rolling out this new contact chaining approach. I’ve noted that the rollout of this new contact-chaining approach occurred in that time frame.

Comparing the name …

SIGINT Management Directive 424 (“SIGINT Development-Communications Metadata Analysis”) provides guidance on the NSA/ CSS implementation of the “Department of Defense Supplemental Procedures Governing Communications Metadata Analysis” (SPCMA), as approved by the U.S. Attorney General and the Secretary of Defense. [my emphasis]

And the description of the change …

Specifically, these new procedures permit contact chaining, and other analysis, from and through any selector, irrespective of nationality or location, in order to follow or discover valid foreign intelligence targets. (Formerly analysts were required to determine whether or not selectors were associated with US communicants.) [emphasis origina]

,,, Make it clear it is the same program.

NSA appears to have made a few changes in the interim. Continue reading

The Blame Game Begins: Who Will Be Held Responsible for Creating the Afghan “Vertically Integrated Criminal” Government?

Last Sunday, the Beltway professed to be shocked — shocked!! — that the CIA has been bribing Hamid Karzai for years.

Moreover, there is little evidence that the payments bought the influence the C.I.A. sought. Instead, some American officials said, the cash has fueled corruption and empowered warlords, undermining Washington’s exit strategy from Afghanistan.

“The biggest source of corruption in Afghanistan,” one American official said, “was the United States.”

Fred Kaplan, author of a fawning David Petraeus biography, described how Petraeus tried to fix that corruption but was stymied by practicality.

Petraeus was impressed with their analysis but found their proposals impractical. First, he couldn’t simply bypass Karzai. One of his strategic goals was to help stabilize Afghanistan. Overhauling the districts’ governing boards and transferring power to new officials—who may themselves just be a new array of warlords—was hardly a recipe for stability. Second, the plan would undermine another strategic goal—protecting the Afghan population. The local officials who were taking bribes and extorting merchants were also helping out with local security, sometimes guarding convoys of NATO supply trucks. If the cash spigot were shut off, they might let the Taliban attack those trucks, maybe even join in.

Then Sarah Chayes, one of the civilian advisors who fought against Afghan corruption in the transition period from Stanley McChrystal to Petraeus, wrote an account of what Petraeus really did.

Our PowerPoint presentation spelling out this plan ran to more than 40 slides. We selected a dozen we really planned to brief, but at a meeting with the entire command staff, General Petraeus read through every one. With a calculated flourish, he marked a check on each page as he turned it over. Petraeus was on board.

[snip]

But when he stood up to address the assembled brass, Petraeus seemed to skip past — or even argue against — the slides we had prepared explaining the new governance approach. We were stunned. What had happened? Had we misunderstood? Had he changed his mind?

For another month, we kept at it; I hammered out a detailed implementation of our general concept to be employed in Kandahar province, alongside the troop surge. But by mid-September 2010, it was clear to me that Petraeus had no intention of implementing it, or of pursuing any substantive anti-corruption initiative at all. Four months later, in an intense interagency struggle over the language of a document spelling out objectives for Afghanistan by 2015, the U.S. government, at the cabinet level, explicitly reached the same decision.

That was the moment I understood the Afghanistan mission could not succeed.

Like Kagan, Chayes ultimately blames CIA. But she does so, specifically, in the context of the attempted July 2010 arrest of the CIA’s bagman, Muhammad Zia Salehi.

I spent weeks wracking my brain, trying to account for the about-face. Eventually, after a glance in my calendar to confirm the dates, it came to me. It was the Salehi arrest. The Salehi arrest had changed everything.

[snip]

Throughout the unfolding investigation, two senior U.S. officials have told me, through Salehi’s arrest and release after a few hours of police detention, CIA personnel never mentioned their relationship with him. Even afterwards, despite pressure in Kabul and Washington, the CIA refused to provide the ambassador or the key cabinet officials a list of Afghans they were paying. The CIA station chief in Kabul continued to hold private meetings with Karzai, with no other U.S. officials present.

So whom did Salehi call from his jail cell the afternoon of his arrest? Was it Karzai, as many presumed at the time? Or was it the CIA station chief?

However lethal our bribes to Karzai have been to our so-called strategy in Afghanistan (though I wonder: have they simply forestalled an all-out civil war?), he’s still going to proudly receive the cash.

“Yes, we received cash from the CIA for the past 10 years. It was very useful, and we are very thankful for this aid,” the president said during a news conference Saturday in Kabul.

“Yesterday, I thanked the CIA’s chief in Kabul and I requested their continued help, and they promised that they will continue.”

If all this sounds vaguely familiar, it should.

That’s because much of this dispute played out in reporting at the time. After NYT first reported CIA’s ties to Salehi a month after the attempted arrest in 2010 — and quoted one official saying “Fighting corruption is the very definition of mission creep” — the WaPo reported more anonymous sources almost boasting of the bribes (and reminding they went back to the mujahadeen era). Continue reading

For Lack of the Most Appropriate Word: “Lie”

I really wanted to just ignore this Michael Cohen column, which purports to explain to “the Left” (which by and large approves of Obama’s drone war) why they should welcome John Brennan to head the CIA because he will reform the drone war there.

But when I read this paragraph–the 10th of 11 paragraphs in the column, I couldn’t resist.

In addition, Brennan’s public statements on the drone program and U.S. policy toward Yemen have, for lack of a better term, not always passed the smell test. His assertion last year that he could not confirm the death of a single civilian from U.S. drones hardly seems credible. Moreover, if Brennan was so serious about reforming drone use, why hasn’t he done it already?

Cohen picks up a criticism I made with him on Twitter the other day, which Glenn Greenwald, the Bureau of Investigative Journalism, and I have written about: John Brennan has said things about the drone program that have, “for lack of a better term, not always passed the smell test.” (Note, Cohen doesn’t acknowledge that Brennan’s public speech on drones was also obviously misleading, not least because it disclaimed the existence of signature strikes.)

Of course, there is a better term for the assertion–made by the man who (Cohen has spent much of the previous 10 paragraphs telling us) is privy to all the information exchanged in the drone program–that there had been no civilian casualties in the drone war.

A lie.

So in paragraph 10  of an 11 paragraph column, Cohen sort of admits, even if he cowers from the best term for it, that Brennan has lied about the very subject of this column.

Which is all the funnier, because two of the assertions Cohen makes on in paragraphs 1 through 9 rely on claims Brennan made.

Brennan [] goes to President Obama for his approval [as I have noted, there's a long history of Presidential gatekeepers who do not in fact inform the President of things so he can retain plausible deniability about them]

[snip]

Brennan stated this past fall, “I think the rule should be that if we’re going to take actions overseas that result in the deaths of people, the United States should take responsibility for that.”

And while there is evidence that Brennan has reeled in the CIA Counterterrorism Center head’s out-of-control signature strike campaign in Pakistan (at least until the last couple of weeks), he also approved the same kind of signature strikes in Yemen.

This is one of the problems with Brennan’s boosters. They invest everything in chosen Brennan statements, while ignoring that he has shamelessly lied in statements about the very same topic.

Sure, Brennan might be telling the truth in some of these public statements, even in spite of the fact that his past statements were such obvious lies. Brennan might want to reform the drone program (even though he stalled the effort to do so that was part of preparation for a Mitt Romney administration and ignored his own reformed rules). But no one should build an argument off them, because given Brennan’s history of lying, they cannot be considered credible. That’s the problem with lying as embarrassingly as Brennan has done, because such lies should–in a rational world–undermine the credibility of all your statements. Cohen builds his argument, in paragraphs 1 through 9, on statements that he admits should not be trusted in paragraph 10.

Side note: It’s troubling how, just 10 years after Bush lied us into the Iraq War with help from Brennan’s boss, George Tenet, Brennan’s boosters seem unconcerned about putting a proven liar in charge of the CIA.

Continue reading

Drones: Counterterrorism But Not Strategy

As one of the few civilian Americans who has been present in a zone where the US operated its drone campaign, David Rohde has a fairly unique perspective from which to comment on the tactic. And while in this long piece on drones, he recognizes their value, he also warns against their risks.

In 2008, I saw this firsthand. Two Afghan colleagues and I were kidnapped by the Taliban and held captive in the tribal areas of Pakistan for seven months. From the ground, drones are terrifying weapons that can be heard circling overhead for hours at a time. They are a potent, unnerving symbol of unchecked American power. At the same time, they were clearly effective, killing foreign bomb-makers and preventing Taliban fighters from gathering in large groups. The experience left me convinced that drone strikes should be carried out — but very selectively.

Ultimately, he notes that in both Pakistan and Yemen, the drones are contributing to increased instability.

For me, the bottom line is that both governments’ approaches are failing. Pakistan’s economy is dismal. Its military continues to shelter Taliban fighters it sees as proxies to thwart Indian encroachment in Afghanistan. And the percentage of Pakistanis supporting the use of the Pakistani Army to fight extremists in the tribal areas — the key to eradicating militancy — dropped from a 53 percent majority in 2009 to 37 percent last year. Pakistan is more unstable today than it was when Obama took office.

Continue reading

Truth, Justice, and the American Way of Empire

One of my first reactions to the news that Nicolas Sarkozy told Obama he doesn’t like Bibi Netanyahu is to note that Sarko is right.

“I cannot bear Netanyahu, he’s a liar,” Sarkozy told Obama, unaware that the microphones in their meeting room had been switched on, enabling reporters in a separate location to listen in to a simultaneous translation.

“You’re fed up with him, but I have to deal with him even more often than you,” Obama replied, according to the French interpreter.

Bibi is a liar. Particularly in the context of relations with the Palestinians, Bibi has repeatedly broken promises not to expand settlements.

Nevertheless, the Neocons are now gunning against Obama for his response–which was effectively non-committal.

Hell, it’s not even like Obama responded by calling Bibi an ungrateful ally, like Bob Gates has said on the record.

But I couldn’t help but connect this flap to the firing, last week, of the general in charge of training Afghans, John Allen.

Gen. John Allen, the commander of U.S. and NATO troops in Afghanistan, just announced that he fired Maj. Gen. Peter Fuller, the deputy commander of the crucial mission to train Afghan security forces. Fuller, a recent arrival to Afghanistan, gave a surprisingly harsh interview to Politico criticizing Afghan President Hamid Karzai and the Afghan generals he mentors as “isolated from reality.”

Allen is having none of it. “These unfortunate comments are neither indicative of our current solid relationship with the government of Afghanistan, its leadership, or our joint commitment to prevail here in Afghanistan,” Allen said in a statement.

His crime? Pointing out how ungrateful Hamid Karzai is for our efforts in Afghanistan (which is pretty similar to what Gates did with Bibi).

A senior U.S. Army officer in Afghanistan called key elements of the government “isolated from reality,” said they don’t appreciate America’s sacrifice for their nation and offered up some choice words for President Hamid Karzai.

[snip]

The two-star general flashed irritation when he brought up Karzai’s recent remarks that Afghanistan would side with Pakistan in a war against the U.S., blasting the president’s comments as “erratic,” and adding, “Why don’t you just poke me in the eye with a needle! You’ve got to be kidding me … I’m sorry, we just gave you $11.6 billion and now you’re telling me, ‘I don’t really care’?”

Now, frankly, I think Allen mistook our own actions for generosity rather than strategic self-interest. Gates, at least, seemed to acknowledge that we would continue to support Israel anyway out of our own (misguided) self-interest.

But it seems worth note that we are increasingly whining about the ungrateful response to our exercise of self-interest. And then trying to pretend we didn’t.

Lots of Senior Officials Spilling State Secrets Today

Last year, Director of National Intelligence James Clapper said the following:

I am asserting privilege over classified intelligence information, assessments, and analysis prepared, obtained, or under the control of any entity within the U.S. Intelligence Community concerning al-Qaeda, AQAP or Anwar al-Aulaqi that may be implicated by [Awlaki's father's attempt to sue for information about why Awlaki was on the CIA's assassination list]. This includes information that relates to the terrorist threat posed by Anwar al-Aulaqi, including information related to whether this threat may be “concrete,” “specific,” or “imminent.”

Then Secretary of Defense Robert Gates said the following:

DOD cannot reveal to a foreign terrorist organization or its leaders what it knows about their activities and how it obtained that information.

[snip]

The disclosure of any operational information concerning actions U.S. armed forces have or may plan to take against a terrorist organization overseas would risk serious harm to national security and foreign relations. Official confirmation or denial of any operations could tend to reveal information concerning operational capabilities that could be used by adversaries to evade or counter any future strikes.

[snip]

Finally, as discussed below, public confirmation or denial of either prior or planned operations could seriously harm U.S. foreign relations.

[snip]

The disclosure of information concerning cooperation between the United States and a foreign state, and specifically regarding any possible military operations in that foreign country, could lead to serious harm to national security, including by disrupting any confidential relations with a foreign government. [my emphasis]

Then CIA Director and current Secretary of Defense Leon Panetta said the following:

I am invoking the [state secrets] privilege over any information, if it exists, that would tend to confirm or deny any allegations in the Complaint [about CIA targeting Awlaki for assassination] pertaining to the CIA.

Yet in spite of the fact that these top government officials swore to a judge that revealing operational details about the CIA’s assassination operations, US counterterrorist cooperation with Yemen, and confirmation of prior or planned military operations would harm foreign relations and national security, we’re seeing details like this in reporting on Anwar al-Awlaki’s death:

An American-born cleric killed in Yemen played a “significant operational role” in plotting and inspiring attacks on the United States, U.S. officials said Friday, as they disclosed detailed intelligence to justify the killing of a U.S. citizen.

Anwar al-Awlaki, an American-born radical Islamic preacher who rose to the highest level of al Qaeda’s franchise in Yemen, was killed in a CIA-directed strike upon his convoy, carried out with the U.S. Joint Special Operations Command’s firepower, according to a counterterrorist official, speaking on condition of anonymity to discuss intelligence.

[snip]

Four individuals were killed in Friday’s attack, according to U.S. officials.

[snip]

Al-Awlaki had been under observation for three weeks while they waited for the right opportunity to strike, one U.S. official said.

[snip]

U.S. counterterrorism officials said that counterterrorism cooperation between the U.S. and Yemen has improved in recent weeks, allowing the U.S. to gather better intelligence on al-Awlaki’s movements. The ability to better track him was a key factor the successful strike, U.S. officials said.

Or details like this, including John Brennan’s comments on the record:

Fox News has learned that two Predator drones hovering above al-Awlaki’s convoy fired the Hellfire missiles which killed the terror leader. According to a senior U.S. official, the operation was carried out by Joint Special Operations Command, under the direction of the CIA.

[snip]

But American sources confirmed the CIA and U.S. military were behind the strike on al-Awlaki, whom one official described as a “big fish.”

The strike hit a vehicle with three or four suspected Al Qaeda members inside, in addition to al-Awlaki. According to a U.S. senior official, the other American militant killed in the strike was Samir Khan, the co-editor of an English-language Al Qaeda web magazine called “Inspire.”

[snip]

Top U.S. counter terrorism adviser John Brennan says such cooperation with Yemen has improved since the political unrest there. Brennan said the Yemenis have been more willing to share information about the location of Al Qaeda targets, as a way to fight the Yemeni branch challenging them for power. Other U.S. officials say the Yemenis have also allowed the U.S. to fly more armed drone and aircraft missions over its territory than ever previously, trying to use U.S. military power to stay in power. [my emphasis]

Judge Bates, if I were you, I’d haul Clapper, Gates, and Panetta into your courtroom to find out whether they lied their ass off to you last year so as to deprive a US citizen of due process, and if they didn’t, then how long it will be until John Brennan and some other counterterrorism officials get charged with Espionage.

Our “Public Debate” about Drones Is a State Secret

While I often disagree with Benjamin Wittes, I rarely think the stuff he writes is sheer nonsense.

This post, which attempts to rebut Eugene Robinson’s column on Assassination by Robot, is an exception.

I disagree, respectfully, with most of his post. But this bit I find just mindboggling.

My former colleague Eugene Robinson has a column in the Washington post entitled “Assassination by Robot,” which seems to me to warrant a brief response. Robinson begins by saying that, “The skies over at least six countries are patrolled by robotic aircraft, operated by the U.S. military or the CIA, that fire missiles to carry out targeted assassinations. I am convinced that this method of waging war is cost-effective but not that it is moral.” And he complains that “There has been virtually no public debate about the expanding use of unmanned drone aircraft as killing machines — not domestically, at least.”

Robinson’s complaint about debate is false, at least in my view. There has been a significant public debate on the subject.

In half the countries in which we are known to be using drones–Pakistan, Yemen, and Somalia–these drone strikes are still highly, highly classified. (The acknowledged countries are Iraq, Afghanistan, and Libya.)

When Anwar al-Awlaki’s family sued for due process, the government invoked state secrets, even as Crazy Pete Hoekstra and a stream of anonymous sources have leaked details of the drone targeting of him for over a year. One of the things Robert Gates specifically invoked state secrets over is whether or not we’re engaged in military operations in Yemen. Another is details of our counterterrorism work with Yemen.

B. Information concerning possibly military operations in Yemen, if any, and including criteria or procedures DoD may utilize in connection with such military operations; and

C. Information concerning relations between the United States and the Government of Yemen, including with respect to security, military, or intelligence cooperation, and that government’s counterterrorism efforts.

So in the most controversial case out there, our targeting of an American citizen with no due process, the government has said no one can know any details of it. No one.

The secrecy of the drone strikes is a point that Robinson makes, albeit somewhat obliquely.

Since the program is supposed to be secret, officials use euphemisms when speaking about it publicly. John Brennan, President Obama’s counterterrorism adviser, said in a recent speech that “our best offense won’t always be deploying large armies abroad but delivering targeted, surgical pressure to the groups that threaten us.”

But the point needs to be made much more strongly.

If the government says we can’t know about the drone strikes–if the government says we can’t even know that many of the drone strikes are going on–then what kind of “public debate” are we having? For the drone strikes that are a state secret, Congress can’t even engage in a “public debate.”

Yeah, I understand that a very limited set of elites argue about drones anyway. But it takes a really twisted understanding of democracy and public debate to claim that drone strikes the government won’t even acknowledge are the subject of a real debate.

DOD Continues to Stall on Kucinich’s Request to Visit Bradley Manning

Last we heard of Dennis Kucinich’s request to visit Bradley Manning, the Pentagon had spent a full month referring his request from one official to another rather than respond to his request.

On February 4, Dennis Kucinich asked DOD to allow him to visit Bradley Manning so he could assess his conditions of confinement. On February 8, Robert Gates wrote Kucinich a short note telling him we was referring his request to Secretary of the Army, John McHugh. In a letter dated February 24–but apparently not received in Kucinich’s office until March 1–McHugh told Kucinich he was referring his request to the Assistant Secretary of Defense for Legislative Affairs.

In short, a full month after the date when a member of Congress requested a visit with Manning, DOD is still stalling on a real response with bureaucratic buck-passing.

On Friday, Anti-War Radio’s Scott Horton did an interview with Kucinich. Here’s an update on his quest to visit an American citizen detained less than an hour from Kucinich’s congressional office.

That’s right. I put in a request to the Secretary of Defense who referred me to the Secretary of the Army who referred me to the Secretary of Navy who referred me to the Secretary of Defense and still not an answer on whether or not I can visit.

Kucinich goes on to note he’s a member of the Oversight Committee and that under the Constitution DOD ought to be subject to some accountability.

If these reports keep coming out and they do not permit third parties to come in and make an assessment, I don’t think we can take their word for it. We just can’t.

Obama says DOD has assured him everything they’re doing to Manning is standard. If so, then why are they fighting so hard to prevent a member of Congress from visiting him?

A Modest Proposal: Indefinitely Detain the Banksters

Obama has declared that he has the authority under the 2001 AUMF to indefinitely hold anyone “if it is necessary to protect against a significant threat to the security of the United States.”

He doesn’t say that person has to be a terrorist, much less part of al Qaeda. He doesn’t say that person has to have any tie to the enemy as defined by the 2001 AUMF, that is, “those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” He doesn’t even say that person has to have been rounded up on a battle field, however you define that.

If detaining someone indefinitely is “necessary to protect against a significant threat to the security of the United States,” Obama says, he can do it.

So I say, fine! Let’s indefinitely detain the banksters that crashed our entire economy. They fairly routinely hold the workers and taxpayers of this country hostage these days, just like terrorists do. And when you account for the number of people they’ve left homeless and hungry, the damage they have done may well surpass that of the attack on 9/11. Clearly, the banksters are a “significant threat to the security of the United States”–they’re the biggest threat to the security of the US. And the genius of Obama’s EO is it doesn’t even require the detainees, themselves, represent a threat. Rather, if their detention is necessitated by the security threat, we can detain them. We don’t have to trouble with sorting the good banksters, like Jamie Dimon, from the bad banksters, like Dick Fuld. We can detain them all, just to make sure we don’t accidentally miss any. (Sorry Bill, we can’t take any risks, so this includes you too!)

Simple as that. Our biggest security threat solved!

Mind you, Obama’s Executive Order laying out this amazing limitless standard specifies that the EO only applies to “those detainees held at Guantanamo on the date of this order.”

But we all know that EOs don’t have to say what they mean. We know OLC ruled back in 2001 that, “There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.” We know Bush did just that–change the terms of an EO without changing the text, so none of us had warning we were being spied on. But when national security is threatened–our government has decided–it’s okay to change EOs with no warning.

So all Obama has to do to authorize the indefinite detention of the banksters that represent the biggest threat to our security right now is simply pixie dust his EO, and voila! He can round up the banksters, put them on some tropical island somewhere (I suspect they’ll feel right at home in the Cayman Islands).

It’s as easy as that, vanquishing a security threat, arbitrarily detaining people in the name of security forever.

Right?

Emptywheel Twitterverse
emptywheel @Krhawkins5 I like that she invented claim AQ didn't think we'd do what we needed. Too much time hanging around Scheuer @matthewacole
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emptywheel @Krhawkins5 It's hard to keep all of Bikowksy's fuckups in one brain w/o writing them all down. @matthewacole
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emptywheel @armandodkos Not true. Merkans need villains. If they lose our old unquestioned ones they might have to question what makes a villain.
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emptywheel @matthewacole Ah, didn't see it when I read it first time, sorry.
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emptywheel @matthewacole Did CIA ask you not to name Bikowsky?
56mreplyretweetfavorite
emptywheel Reup: GOP SSCIers excuse CIA for not briefing Congress on torture bc Congress was on vacation. https://t.co/PSFmZ3pLcw Better? They weren't!
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emptywheel @armandodkos Yes. I keep waiting for it to be free on Prime or Netflix. Thus the delay. @joanneleon
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emptywheel @tmprokop Among other things, yes. Also the person who had Khaled al-Masri rendered by mistake. She's sort of a "best of" fuckups in WOT.
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emptywheel @armandodkos ZDT is a conglomerate, but yes, she's a big part of Maya (as I understand--haven't watched it) @joanneleon
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emptywheel NBC summarizes things Alfreda Bikowsky described as doing in Torture Report (w/o name). http://t.co/H1FkAHEl2A More: https://t.co/hb4ut72cOp
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bmaz Was there a singularity point in time where the Beatles taught the Stones how to really rock? Yes but maybe only one https://t.co/6UjoVAiMmw
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JimWhiteGNV RT @cnnbrk: Six charged in West Virginia water contamination. http://t.co/vm2ZJHoP3m.
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