Given how often fellow Michigander Juan Cole and I demonstrate what a mendacious hack Mike Rogers is…
Mike Rogers voted to give arms to the Syrian rebels. And while he may hope they don’t go to the al-Qaeda affiliates (as happened when Ronald Reagan gave $5 billion to the Afghan Mujahidin in the 1980s), he has no guarantee that won’t happen and is willing to take the risk. If Rogers were really, really concerned about the Jabhat al-Nusra, he wouldn’t be risking upping its firepower with Americans’ tax dollars as a justification for monitoring who your 15 year old daughter calls on her cell phone.
Let us say that again. Feinstein and Rogers just came on television to scaremonger the American people with the Syrian jihadis, and both of them voted to give the Syrian rebels millions of dollars in arms.
… You’d think some of the MI press might look into it.
Thankfully, Cole and I are no longer the only ones asking substantive questions about Rogers and Dianne Feinstein’s fearmongering on this Sunday’s shows. Peter Bergen has a piece that — like Cole — looks at actual numbers to challenge their claims. He relies on a New America Foundation study of Americans and residents indicted or killed over the last decade, showing that those numbers show terrorism to be going down (and be propagated by smaller, less capable groups).
But is there any real reason to think that Americans are no safer than was the case a couple of years back? Not according to a study by the New America Foundation of every militant indicted in the United States who is affiliated with al Qaeda or with a like-minded group or is motivated by al Qaeda’s ideology.
In fact, the total number of such indicted extremists has declined substantially from 33 in 2010 to nine in 2013. And the number of individuals indicted for plotting attacks within the United States, as opposed to being indicted for traveling to join a terrorist group overseas or for sending money to a foreign terrorist group, also declined from 12 in 2011 to only three in 2013.
Of course, a declining number of indictments doesn’t mean that the militant threat has disappeared. One of the militants indicted in 2013 was Dzhokhar Tsarnaev, who is one of the brothers alleged to be responsible for the Boston Marathon bombings in April. But a sharply declining number of indictments does suggest that fewer and fewer militants are targeting the United States.
Recent attack plots in the United States also do not show signs of direction from foreign terrorist organizations such as al Qaeda, but instead are conducted by individuals who are influenced by the ideology of violent jihad, usually because of what they read or watch on the Internet.
None of the 21 homegrown extremists known to have been involved in plots against the United States between 2011 and 2013 received training abroad from a terrorist organization — the kind of training that can turn an angry, young man into a deadly, well-trained, angry, young man.
Of these extremists, only Tamerlan Tsarnaev, one of the alleged Boston bombers, is known to have had any contact with militants overseas, but it is unclear to what extent, if any, these contacts played in the Boston Marathon bombings. [my emphasis]
The post got me thinking about the validity of this metric. Are the number of people indicted since 2009 a reflection of the actual threat, or that Federal officials have exhausted all the leads they’ve gotten from backdoor searches of existing COMINT collections?
Consider what one anonymous source said in the months after Anwar al-Awlaki was killed.
U.S. intelligence analysts miss the publication, too, at least to the extent that it provided a window into the thinking of al-Qaeda in the Arabian Peninsula, as the Yemen-based group is known.
“It was something that helped us gain insight into the group,” said a U.S. defense official involved in tracking AQAP, who spoke on the condition of anonymity. The publication’s apparent demise is “an intelligence loss for us,” the official said.
Yet Inspire probably wasn’t just a window onto AQAP’s thinking (if it really was that). Particularly given the indications NSA had some access to its code (if I were NSA I would have attached some kind of flag to the code used to decrypt the document, and I would also search on that code in upstream collection), I would assume Inspire was a major source of leads. So did killing Awlaki and Samir Khan simply make it harder for US officials to find Muslims to trap in stings over time?
NAF’s data is inconclusive on this point. Continue reading
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?
(1) NSA may provide to the Central Intelligence Agency (CIA) unminimized communications acquired pursuant to section 702 of the Act. CIA will identify to NSA targets for which NSA may provide unminimized communications to CIA. CIA will process any such unminimized communications received from NSA in accordance with CIA minimization procedures adopted by the Attorney General, in consultation with the Director of National Intelligence, pursuant to subsection 702(e) of the Act.
(2) NSA may provide to the FBI unminimized communications acquired pursuant to section 702 of the Act. FBI will identify to NSA targets for which NSA may provide unminimized communications to the FBI. FBI will process any such unminimized communications received from NSA in accordance with FBI minimization procedures adopted by the Attorney General, in consultation with the Director of National Intelligence, pursuant to subsection 702(e) of the Act.
It’s not clear what this entails.
But Dianne Feinstein once defended the FISA Amendments Act authorization to search on US person information by pointing to Nidal Hasan. Remember, his emails were picked up on a generalized collection of Anwar al-Awlaki’s communications, which should have been a traditional FISA warrant, but may have been conducted via the same software tools as FAA collection. In which case, the kind of access described in the Webster report would provide one idea of what this looks like from the FBI side. That process has almost certainly been streamlined, given that the god-awlful software the FBI used prevented it from pulling the entire stream of Hasan’s emails to Awlaki.
First, the FBI’s database of intercepts sucked. When the first Hasan intercepts came in, it allowed only keyword searches; tests the Webster team ran showed it would have taken some finesse even to return all the contacts between Hasan and Awlaki consistently. More importantly, it was not until February 2009 that the database provided some way to link related emails, so the Awlaki team in San Diego relied on spreadsheets, notes, or just their memory to link intercepts. (91) But even then, the database only linked formal emails; a number of Hasan’s “emails” to Awlaki were actually web contacts, (100) which would not trigger the database’s automatic linking function. In any case, it appears the Awlaki team never pulled all the emails between Hasan and Awlaki and read them together, which would have made Hasan seem much more worrisome (though when the San Diego agent set the alert for the second email, he searched and found the first one).
Even before this was streamlined, the collection seemed to lack real minimization. Though to be fair, the Agents spending a third of their days reading Awlaki’s emails were drowning and really had an incentive to get reports out as quickly as possible. But they seemed to be in the business of sending out reports with IDs, not the reverse.
In addition, we know that subsequent to that time, the FBI started using this collection (and, I’m quite certain, Samir Khan’s), as a tripwire — what they call “Strategic Collections.”
The Hasan attack (and presumably subsequent investigations, as well as the Umar Farouk Abdulmutallab attack) appears to have brought about a change in the way wiretaps like Awlaki’s are treated. Now, such wiretaps–deemed Strategic Collections–will have additional follow-up and management oversight.
The Hasan matter shows that certain [redacted] [intelligence collections] [redacted] serve a dual role, providing intelligence on the target while also serving as a means of identifying otherwise unknown persons with potentially radical or violent intent or susceptibilities. The identification and designation of Strategic Collections [redacted] will allow the FBI to focus additional resources–and, when appropriate, those of [redacted] [other government agencies]–on collections most likely to serve as “trip wires.” This will, in turn, increase the scrutiny of information that is most likely to implicate persons in the process of violent radicalization–or, indeed, who have radicalized with violent intent. This will also provide Strategic Collections [redacted] with a significant element of program management, managed review, and quality control that was lacking in the pre-Fort Hood [review of information acquired in the Aulaqi investigation] [redacted].
If implemented prior to November 5, 2009, this process would have [redacted] [enhanced] the FBI’s ability to [redacted] identify potential subjects for “trip wire” and other “standalone” counterterrorism assessments or investigations. (99)
Many many many of the aspirational terrorists the FBI rolled up in 2010 and afterwards were people who had communicated or followed Awlaki or Khan. And to the extent we’ve prosecuted a bunch of wayward youth who can’t pull together a plot without the FBI’s assistance, that ought to be a concern on many levels.
Because it would mean this unminimized production is part of the Terror Manufacturing Industry. (Mind you, the FBI was doing this with their own surveillance based off Hal Turner in the 00s, so it’s not an approach limited to Muslim radicals.)
To the extent that FAA collection might be sent to FBI as a way to identify non-criminal leads to criminalize, it’s a problem, particularly if the FISA Court doesn’t see what minimization the FBI uses.
A number of people are discussing the killing of Abdulraham al-Awlaki as if the government has claimed he was accidentally targeted.
That’s not what the government has officially said. In his letter declassifying American drone deaths the other day, Eric Holder said Abdulrahman, Samir Khan, and Jude Kenan Mohammad were “not specifically targeted.” Which is quite different from saying it was an accident.
Administration officials were quick to offer an explanation about one of these deaths, that of Mohammad: he died in a signature strike, officials said anonymously, but a former consultant also suggests he was on the kill list.
American officials said on Wednesday that Mr. Mohammad had been killed with about 12 other insurgents in what the C.I.A. calls a “signature strike,” an attack based on patterns of activity, such as men toting arms in an area controlled by extremist groups. Such strikes have prompted the sharpest divisions inside the Obama administration, with some officials questioning whether killing unidentified fighters is legally justified or worth the local backlash.
While Mr. Mohammad was not directly targeted, he had come under increasing scrutiny by American counterterrorism officials, who said he was involved in recruiting militants for Al Qaeda and the Pakistani Taliban, as well as making videos on YouTube to incite violence against the United States.
“He had risen to the top of the U.S. deck,” said Seth G. Jones, a senior political scientist at the RAND Corporation and former adviser to the military’s Special Operations Command. Mr. Jones said that while in Pakistan, Mr. Mohammad had made contact with five young Virginia men who disappeared from their homes around Thanksgiving in 2009 and turned up seeking to join militant groups. Instead they were arrested and remain in Pakistani custody.
But officials have been a lot more squirmy about Abdulrahman’s death.
At a pre-speech briefing yesterday, a senior Administration official was asked about Abdulrahman specifically. Between an unbelievable number of “ums,” he first tried to generalize about all three “not specifically targeted” individuals and then provided two possibilities: presence at “al Qaeda and associated facilities” or civilian accidents (neither of which incorporates the explanations provided the NYT for Mohammad’s death).
I don’t want to get into the details of each of those instances. What I will say generally is that there are times when there are individuals who are present at al Qaeda and associated forces facilities, and in that regard they are subject to the lethal action that we take. There are other instances when there are tragic cases of civilian casualties and people that the United States does not in any way intend to target — because, again, as in any war, there are tragic consequences that come with the decision to use force, including civilian casualties.
The first of those — presence at an al Qaeda “facility” — is closer to what the Administration has said about Abdulrahman’s death in the past, when they have claimed they were targeting Ibrahim al-Banna. Though AQAP reported that he was never at the site.
But here’s what a former Obama official told Jeremy Scahill about Abdulrahman’s killing.
A former senior official in the Obama administration told me that after Abdulrahman’s killing, the president was “surprised and upset and wanted an explanation.” The former official, who worked on the targeted killing program, said that according to intelligence and Special Operations officials, the target of the strike was al-Banna, the AQAP propagandist. “We had no idea the kid was there. We were told al-Banna was alone,” the former official told me. Once it became clear that the teenager had been killed, he added, military and intelligence officials asserted, “It was a mistake, a bad mistake.” However, John Brennan, at the time President Obama’s senior adviser on counterterrorism and homeland security, “suspected that the kid had been killed intentionally and ordered a review. I don’t know what happened with the review.”
In other words, it sounds like some in the Administration suspect that someone within the targeting chain of command may have invented the Ibrahim al-Banna presence as a way to get at Awlaki’s son. (Note, elsewhere Scahill suggested that the Awlaki family suspects a teacher may have been trying to recruit Abdulrahman to help hunt down his father, which might give those recruiters reason to want to silence him after they did kill Awlaki.)
In a piece on the drone program yesterday, Daniel Klaidman revealed that some people within the Administration were trying to keep mention of Abdulrahman and the two others out of Holder’s letter from the other day.
Officials tell The Daily Beast the original plan was to name only Anwar al-Awlaki, while referring to the other three anonymously. That changed when some officials at the Department of Justice argued that withholding the names would defeat the purpose of Obama’s much-touted call for more openness.
If Abdulrahman was killed deliberately, via some kind of deceit, I can understand why the Administration was reluctant to make its role in his death official. John Brennan’s report about it is presumably out there somewhere (though as a White House report, it would be harder to FOIA than a CIA IG Report).
Clearly, the Administration has made some effort to gain a greater understanding of how Abdulrahman was killed than the hemming and hawing official admitted to yesterday. Which suggests “not specifically targeted” might not even rule out “targeted in deceitful fashion.”
In this letter boasting of “unprecedented transparency,” Eric Holder officially tells Congress that since 2009 the government has killed 4 Americans: Anwar al-Awlaki was specifically targeted and killed, and Samir Khan, Abdulrahman al-Awlaki, and Jude Mohammed were “not specifically targeted.”
One paragraph of the letter details how Umar Farouk Abdulmutallab told US officials of Awlaki’s involvement in the UndieBomb plot.
Too bad that in two of three confessions, Abdulmutallab said someone besides Awlaki did the things Holder lists here. Too bad that Abdulmutallab’s lawyer now says the solitary confinement associated with the interrogations in which he did implicate Awlaki made him incompetent.
I’ll have more to say about the unsealing of the Ahmed Warsame guilty plea as the week goes forward.
But for the moment I wanted to note a few details of this story describing how the government plans to use the Warsame case as a model for other alleged terrorists — captured, interrogated under law of war conditions for months, and then clean-teamed by the FBI for prosecution in US civilian courts.
First, note the terse comment from Warsame’s attorney:
Priya Chaudhry, an attorney for Warsame, said she could not comment on his cooperation. She said she was “working very hard to keep his family safe,” adding that the U.S. government was helping.
The impression I’ve gotten from my scant access to the coverage of this case is that this concept — our promise to keep Warsame’s family safe as one reason he cooperated — has been interpreted as keeping the family safe from al Qaeda associates. And the plea agreement actually talks about the Witness Security Program, suggesting Warsame’s family could be resettled in the US or elsewhere in exchange for his cooperation. Kudos to us if we in fact used Warsame’s family solely as some guarantee that his cooperation wouldn’t get them killed.
But remember there’s also been an increasing trend of using threats against family members to coerce cooperation from alleged terrorists and the like, from the kidnapping of Khalid Sheikh Mohammed’s kids to the detention of Faisal Shahzad’s family. Given that history, I’d suggest we might ask whether we’re protecting Warsame’s family from al-Shabaab or from the US?
I look forward to learning more about this, because if the US has finally returned to using carrots as well as — or even better, when innocent family members are involved, instead of — threats against the family, that would be a worthwhile development. But in the very recent past — indeed, even since Warsame’s capture — we have preferred to use threats.
Magic Awlaki information
I’m also interested by the timing of the unsealing of the Warsame plea.
The timing of the unsealing may be most closely connected to the sentencing of Mohamed Ibrahim Ahmed, a Somali-Swede who was sentenced to nine-plus years on Wednesday for materially supporting al Shabaab. Warsame would have testified against Ahmed if his case had gone to trial, though that was made clear before Ahmed himself plead guilty last June, so it’s not new information. As Ahmed’s attorney Sabrina Shroff describes, “It’s like you’re using the consigliere as a snitch against the soldier.” But because the revelation of the unsealing and the Ahmed’s sentencing coincided, it provides an easy way for the government to point to tangible intelligence that Warsame had provided, against however minimal a target.
Nevertheless, I wonder if this news flash doesn’t tie to the government’s efforts to lay out a case against Awlaki (and the still promised talk from the President about drones, and presumably Awlaki’s targeting).
If I’m not mistaken, the first we explicitly heard of Warsame implicating AQAP members comes from the NYT Awlaki production, which described Warsame providing intelligence on Samir Khan.
In April 2011, the United States captured Ahmed Abdulkadir Warsame, a Somali man who worked closely with the Qaeda affiliate in Yemen. He was held aboard a naval vessel for more than two months and spoke freely to interrogators, including about his encounters with the former North Carolina man now editing the group’s magazine, Samir Khan.
While the United States had long tracked Mr. Khan, the new details from the Warsame interrogation raised the question of whether another American citizen should be considered for targeting. There was still scant evidence tying Mr. Khan to any specific plot, so the administration left him off the list. But events would not turn out so neatly.
Note what that information amounted to: nothing tying Khan to any plot, still nothing indicating he was operational. Indeed, if Khan had been rendered rather than killed, Warsame’s failure to tie Khan to operations might have counted as exonerating information.
Now, the WaPo story reveals that Warsame also provided intelligence on Awlaki.
He also provided information about Awlaki, who had become a major target for a capture or kill operation after he was tied to an attempt to bring down a commercial aircraft over Detroit. “He was a guy who was in fairly regular contact with Awlaki and talked about his contacts with Awlaki and Awlaki’s patterns of life,” said the former administration official.
But again, neither the WaPo nor the earlier NYT (which relied on information about Warsame’s interrogations) describes information implicating Awlaki. Rather, the WaPo seems to imply Warsame helped to track down Awlaki (remember: Awlaki had a near miss in May 2011, a month after Warsame’s capture).
All that said, I wouldn’t be surprised if we got magical leaks in upcoming days stating that Warsame did provide intelligence against Awlaki in 2011. That would add something to the government narrative they currently utterly lack — any reasonably fresh intelligence against Awlaki at the time he was killed, rather than the 12 and 20-month old and problematic intelligence tied to the toner cartridge and underwear bomb plots. It would also give us something they don’t otherwise have: someone who would have testified against Awlaki.
The NYT case against Awlaki not only had significant holes and slanted coverage, but there are further problems with the Umar Farouk Abdulmutallab intelligence I hope to lay out going forward. Ultimately, just weeks after Awlaki’s death the government went forward with a conspiracy charge against Abdulmutallab but never (as far as we know) indicted the guy they much later claimed was the key driver of that conspiracy, Awlaki. That says something about the confidence they had in the case against Awlaki even as they killed him, at least as it related to the underwear bomb plot.
Which is why, if Warsame did provide more viable intelligence against Awlaki, I expect we’ll be hearing about it in upcoming weeks.
In a piece describing how badly the Administration has botched its treatment of the Anwar al-Awlaki killing, Daniel Klaidman elaborates on his past reporting on why the Administration responded the way it did. Of particular note, he reveals the white paper was written not by anyone in DOJ’s Office of Legal Counsel, but by the then Senior Counselor to Eric Holder, Stuart Delery.
A Justice Department lawyer named Stuart Delery set out to produce a stripped down version of the memo. But the White House had still not decided what form the disclosure would take. One proposal was an op-ed piece that would run under Holder’s byline, but Delery’s document ended up being so long that option was scrapped. Another possibility was releasing a white paper to the public. In the end, the White House settled on letting Holder deliver a so-called “top-wave” speech, an address that would deal with a host of pressing national security issues and would include a section on the legal rationale behind killing American citizens. But, critically, the administration did not give anything separately to Congress.
Soon thereafter, a draft of the speech was sent over to the White House for approval. For reasons that remain unclear, it languished on National Security Adviser Tom Donilon’s desk for months. Then, in January 2012, it was circulated by the National Security Council for final approval.
So the white paper was written not by the department that wrote the actual legal memo authorizing killing Awlaki (remember, both Marty Lederman and David Barron were long gone by this point), but in the Office of Attorney General.
With that in mind, consider how grossly unresponsive the Office of Information Policy (which handles FOIA requests involving the OAG) was to the ACLU FOIA for information on the authority for killing Awlaki, which I laid out here and here.
Mark Mazzetti, Charlie Savage, and Scott Shane team up to provide the government’s best case — and at times, an irresponsibly credulous one — for the killing of Anwar al-Awlaki and the collateral deaths of Samir Khan and Abdulrahman al-Awlaki.
Yet even in a 3,600 word story, they don’t present any evidence against the senior Awlaki that was fresher than a year old — the October 2010 toner cartridge plot — at the time the Yemeni-American was killed. (I’m not saying the government didn’t have more recent intelligence; it just doesn’t appear in this very Administration-friendly case.) Not surprisingly, then, the story completely ignores questions about the definition of “imminent threat” used in the OLC memo and whether Awlaki was an “imminent” threat when he was killed.
The “linked in various ways” standard for killing Americans
Moreover, the case they do present has various weaknesses.
The story provides a fair amount of space to Awlaki’s celebration of the Nidal Hasan attack (though it does make it clear Awlaki did not respond enthusiastically to Hasan’s queries before the attack).
Investigators quickly discovered that the major had exchanged e-mails with Mr. Awlaki, though the cleric’s replies had been cautious and noncommittal. But four days after the shootings, the cleric removed any doubt about where he stood.
“Nidal Hassan is a hero,” he wrote on his widely read blog. “He is a man of conscience who could not bear living the contradiction of being a Muslim and serving in an army that is fighting against his own people.”
It uses far vaguer language to describe Awlaki’s role in the Faisal Shahzad and toner cartridge plots.
Meanwhile, attacks linked in various ways to Mr. Awlaki continued to mount, including the attempted car bombing of Times Square in May 2010 by Faisal Shahzad, a naturalized American citizen who had reached out to the preacher on the Internet, and the attempted bombing by Al Qaeda in the Arabian Peninsula of cargo planes bound for the United States that October.
“Linked in various ways” seems to be the new standard for killing an American. That, in spite of the fact that Shahzad’s tie to Awlaki seems to be the same Hasan had: an inspiration, but not any involvement in the plot. And while Awlaki is reported to have had some role in the toner cartridge plot, reports from Saudi infiltrator Jabir al-Fayfi apparently fingered others in AQAP as the chief plotters.
I guess that would be too much nuance to include in a 3,600 word article.
NYT doesn’t care about problems with the Abu Tarak explanation
Which leaves the UndieBomb attack as the sole attack in which the NYT presents evidence about Awlaki’s direct role. But there’s a problem with their claims there, too.
The would-be underwear bomber told F.B.I. agents that after he went to Yemen and tracked down Mr. Awlaki, his online hero, the cleric had discussed “martyrdom and jihad” with him, approved him for a suicide mission, helped him prepare a martyrdom video and directed him to detonate his bomb over United States territory, according to court documents.
In his initial 50-minute interrogation on Dec. 25, 2009, before he stopped speaking for a month, Mr. Abdulmutallab said he had been sent by a terrorist named Abu Tarek, although intelligence agencies quickly found indications that Mr. Awlaki was probably involved. When Mr. Abdulmutallab resumed cooperating with interrogators in late January, an official said, he admitted that “Abu Tarek” was Mr. Awlaki. With the Nigerian’s statements, American officials had witness confirmation that Mr. Awlaki was clearly a direct plotter, no longer just a dangerous propagandist.
I don’t doubt that Awlaki was directly involved in this attack in some way. And I got the same explanation about Abu Tarak from “an official” back when I first noted the discrepancy between DOJ’s public claims (thanks for not crediting me on that one, NYT boys). But either Abdulmutallab said something beyond “Abu Tarak was Awlaki,” or the entire explanation is not credible.
That’s because Abdulmutallab’s initial interrogation — according to the version presented by Jonathan Tukel in the opening arguments of Abdulmutallab’s trial — said Abu Tarak did the following:
Yet according to the version of Abdulmutallab’s interrogation presented in his sentencing memo, here’s who did those things:
As I’ve said a few times, I suspect one reason the Administration may be acting so ridiculously with respect to drones is because the families of Anwar and Abdulrahman al-Awlaki and Samir Khan are suing for wrongful death. The ace in the hole the Administration would use to dismiss that suit would normally be state secrets. But as more and more officials discuss aspects of the drone program, it will be harder to sustain any state secrets invocation if they need one (though that didn’t help the Jeppesen plaintiffs). And if the suit goes forward, there might be really interesting claims exposed, more so with Samir Khan (who no one has accused of being operational) and Abdulrahman than Anwar al-Awlaki.
That is, recent events have made it more likely that wrongful death suit will turn into precisely what Steve Vladeck has proposed for targeted killings of Americans, a real review of the killings.
What you will hear from the President in a relatively short period of time is, uh–I don’t want to preempt this, but we talked about a need for greater transparency, in what we share, what we talk about. Because I am really confident that if the American people had access, for example–some of this stuff cannot be shared. I understand that. But at least the representatives of the American people had the ability–as members of the Intelligence Committee have been able to see–some of those OLC opinions, there would be a greater degree of comfort that people would have to understand that this government does these things reluctantly, but also we do it in conformity with international law, with domestic law, and with our values as of the American people.
And so I think there is going to be a greater effort at transparency, a number of steps are going to be taken–I expect you are going to hear the President speaking, about this.
Which is why I find it interesting that DOJ used the overblown snowpocalpyse to request a two-day delay in its reply to ACLU’s response to the government’s motion to dismiss the wrongful death suit. Judge Rosemary Collyer granted the request, giving DOJ the weekend to write its brief. After all, DOJ has had a full month to write their brief, and it can be filed remotely. They didn’t ask for a delay because of not-snow. I suspect they asked for a delay because the Administration is in the middle of changing its approach to targeted killing transparency.
That doesn’t mean they’re about to let a judge review their legal case for killing Awlaki and friends. But it likely does mean they need to account for how a Presidential speech acknowledging drone killing will affect this suit.
NPR’s Carrie Johnson, ACLU’s Jameel Jaffer, and I discussed yesterday whether the Administration decided to blow off the House Judiciary Committee panel on targeted killing because appearing and answering questions might compromise their uncompromising stance in the targeted killing FOIA.
I can’t imagine what kind of stupidity drove the decision to blow off the committee.
(Note, thanks to Wittes for displaying my potty-mouth in its well-celebrated glory; MSNBC Lawfare is not.)
In which he suggests both John Brennan’s nomination and ACLU’s FOIA may have driven that decision.
I can imagine two reasons, though I agree with Marcy that it was stupid—and, I will also add, wrong—of the administration to stiff the committee. The first is John Brennan’s pending confirmation. The last thing administration wants right now, prior to a Senate vote on Brennan, is to create a forum in which officials get more questions on targeted killings.
The second reason, as I said at the hearing, is FOIA litigation. Every disclosure prompts more demands for more disclosures and prompts arguments that material is not, in fact, secret. So there’s a hunker-down-and-say-nothing mentality that has kicked in. As I say, it’s wrong. And as the tone of yesterday’s hearing—where Republicans and Democrats alike were clamoring for judicial review of targeting decisions—shows, the administration has a lot of work to do with Congress if it means to maintain confidence in its policies—work that will have to be done, at least in part, in public. But it’s not hard, in my opinion, to imagine what’s behind it.
First, with regards to Brennan’s nomination, I present this:
The Senate intelligence committee on Wednesday postponed until next week a vote on the confirmation of White House aide John Brennan to be CIA director, dashing hopes of Democratic leaders who had hoped to have a vote on Thursday.
No explanation for the delay was immediately available. However, the Obama administration has been at odds with members of the committee’s Democratic majority over White House unwillingness to disclose some highly classified legal documents related to “targeted killings,” including the use of lethal drone strikes against suspected militants.
On Wednesday, administration officials met with intelligence committee members to discuss the contents of the disputed documents. Copies of the material were not turned over to the committee, however, said a source familiar with the matter.
On Tuesday, the Administration shared the Benghazi emails with the Benghazi Truthers, which had been their plan to move Brennan’s nomination forward without turning over any more memos. And while some Republicans, just moments after they received the emails, made a mild stink about Brennan’s thoroughly predictable involvement in efforts to craft talking points about the attack, by Wednesday, that already proved insufficient to move the nomination.
By Wednesday, the Administration was sharing more information on the memos, not Benghazi. And then, after sharing such information, we learn the Administration has been left to stew over the weekend.
Now, perhaps the leaks to National Journal changed the game:
A senator who sits on the Intelligence Committee and has read some of the memos also said that the still-unreleased memos contain secret protocols with the governments of Yemen and Pakistan on how targeted killings should be conducted. Information about these pacts, however, were not in the OLC opinions the senator has been allowed to see. The senator, who also would speak to National Journal only on condition of anonymity, said the only memos that the committee has been given represent mainly legal analysis justifying the drone strikes, and that the rest contain “case-specific” facts about operations.
In response to which an anonymous official who looks like Tommy Vietor made dickish comments about how unreasonable it would be to let the Senate Intelligence Committee exercise oversight and how mean it is to use confirmations to insist on being able to do so because it just feeds into Republican plots.
An Obama administration official who is familiar with the negotiations with Feinstein’s committee indicated that the White House was miffed at efforts by the senator and her staff to obtain all the memos at once, because such efforts play into the Republican strategy of using the dispute to delay the confirmation of John Brennan, Obama’s nominee to head the CIA and the main architect of the drone program, as well as Chuck Hagel as Defense secretary.
“These guys don’t even know what the hell they’re asking for,” the official said. “They think they can ‘reverse-engineer’ the [drone] program by asking for more memos, but these are not necessarily things that exist or are relevant…. What they’re asking for is to get more people read into very sensitive programs. That’s not a small decision.”
Perhaps senior administration officials leaking information presumably contained in the memos to the NYT didn’t help matters.
And while lofty Senators on Intelligence Committees usually couldn’t give a damn about lowly Congressman on Judiciary Committees, I can’t imagine yesterday’s hearing helped. Because in that hearing, a bunch of very partisan Republicans made a case that will be credible to moderates and civil libertarians like me (not to mention, really feed the Tea Partiers) that the Administration is abusing its power, both in regards to the way it is treating Congress, but also in its claims to potentially unchecked authority. (Note, on that front, I owe HJC Chair Bob Goodlatte an apology: it was a well-run and well-crafted hearing.)
With the Talking Point emails shared, Benghazi is frittering out, and the Republicans will need a new scandal to fundraise off of. And a potential fight over whether or not the President has to say whether he thinks he can kill Americans in America has the distinct advantage over both Fast and Furious (their most successful scandal to date) and Benghazi (which wasn’t nearly as successful) in that people across the political spectrum (save those who think Obama should be trusted with this authority because, well, he’s trustworthy) may think it’s reasonable.
That is, while (some) Republicans may only be picking this up because it demonstrates the Administration’s double standard with respect to the Bush Administration, or because their prerogatives have been slighted, or because they figure this paranoid level of secrecy might be hiding real misconduct, the targeting killing memos are close to reaching a tipping point at which they turn into a real political issue.
And that may be what the Administration will be stewing over this weekend.
In the face of that threat, then, there’s just the FOIA. Mean old ACLU Legal Director Jameel Jaffer, FOIAing for more information on the President’s authority to kill Americans (and also, it should be said, helping the Awlaki and Khan families sue for wrongful death). How dare he do that, even if John Brennan, in one of the Administration’s key counterterrorism speeches, emphasized how important presumptive disclosure on FOIA was?
Our democratic values also include—and our national security demands—open and transparent government. Some information obviously needs to be protected. And since his first days in office, President Obama has worked to strike the proper balance between the security the American people deserve and the openness our democratic society expects.
The President also issued a Freedom of Information Act Directive mandating that agencies adopt a presumption of disclosure when processing requests for information.
So what if John Brennan says the terrorists will win if the Administration plays stupid games with FOIA? There are lawsuits to be won, damnit!
Now, I have no doubt that the Administration might delay Congressional oversight solely to gain an advantage over the ACLU. Not only did Daniel Klaidman’s sources reveal such suits were at the forefront of their considerations when deciding not to be as transparent as promised, but it appears the Administration already delayed Congressional oversight so as to gain an advantage in ACLU’s FOIA suit.
So yes, it is likely that is one of the reasons DOJ chose to snub the Committee, thereby making this issue more of a political issue.
But it seems the Administration has lost all perspective about how those FOIAs might play out. That’s true, as Jack Goldsmith pointed out, because even if a judge rules that the Administration has revealed what it has been trying to avoid revealing, it’s not the end of the FOIA world for them.
But what if the Court does rule that the USG has acknowledged CIA’s involvement in drone strikes? What would the ACLU gain, since the whole world already knows this fact? Such a ruling would require CIA to file a Vaughn index listing responsive documents to the CIA request. But at that point the government would have further legal options for non-disclosure. As I once explained:
Even if the D.C. Circuit concludes that the USG has in effect officially acknowledged CIA involvement in drone strikes, however, it need not follow that the CIA must cough up a list of all responsive documents. These lists alone – which typically contain document titles, dates, and the like – can disclose quite a lot about what the CIA is doing. Some of the information in a Vaughn index might reveal or point to sources and methods or other properly classified information that would harm national security. I see no reason why the D.C. Circuit could not rule that the USG has acknowledged CIA involvement, but then rule that (a) the CIA need not produce a Vaughn index if doing so would disclose properly classified information, or (b) the CIA must produce a Vaughn index but can redact any entries in the index (including all of them) that would, if revealed, disclose properly classified information. Option (a) was suggested by Judge Easterbrook in Bassiouni v. CIA, 392 F. 3d 244 (7th Cir. 2005) – an approach that, as Easterbrook noted, is entirely consistent with the FOIA statute. Option (b) is simply a more fine-grained substitute for the Easterbrook approach that would force the government to explain its redactions (and which need be no trickier than the already-tricky process of forcing the government to explain why the documents referenced in a Vaughn index need not be disclosed).
Even if ACLU wins on the “official acknowledgment” issue, in short, it has a long way to go to get the records it seeks. But as we have seen more than once in the last decade, even heavily redacted Vaughn indexes can reveal important information and constitute the basis for further FOIA requests and further disclosures (through FOIA or other means).
I’d add that, at least in the 2nd Circuit, the Administration seems to be protected by overly broad protection for the Memorandum of Notification that authorizes targeted killing and everything else.
And unless there are really big disclosures in there that even I can’t imagine (plus, who besides me is going to look that closely?), there’s simply nothing that will come out in FOIA that will be more damaging than inciting the Republicans to turn this — a real example of abuse of power — into their next political scandal.
Trust me, Obama folks, you made the wrong calculation here, and you’d do well to reverse course before it’s too late.
Though I will make one final caveat.
I don’t think the FOIA could be all that damaging to the Administration.
But I do think the wrongful death suit might. This discussion will make it very hard for the Administration to dismiss of this counterterrorism suit the same way they have every other one, by invoking state secrets (and while there might be standing issues, particularly for Nasser al-Awlaki, Sam Alito won’t be able to suggest the Awlakis and Khans can’t prove their family members were killed in a US drone strike). And having lost the veil of state secrets, there are all sorts of issues that might come out, both about Awlaki’s history, and about why the FBI let Samir Khan leave when every other known radical trying to head to Yemen gets arrested before he boards a plane.
And, quite simply, if they can’t prevent Khan from pursuing this wrongful death suit, some interesting legal conclusions.
So while I think to the extent the Administration is still stalling Congress because of the FOIA, they’re crazy. If that’s the case, they’d be risking giving Republicans a really dangerous issue to politicize next.
All that said, I think the wrongful death suit may present real issues for them, particularly as this information becomes more public. But if it does, then it just serves to prove that the case for killing Awlaki and Khan and Abdulrahman doesn’t withstand legal review.