Tag Archives: Samir Khan

Imagine How Future Parents Will Respond to Concerns about Their Son’s Radicalization

By:  Tuesday January 29, 2013 2:34 pm

While it’s hard to tell from the reporting, it appears that the government tried to claim last week that it wasn’t Mohamed Osman Mohamud’s First Amendment protected but hateful speech that triggered their investigation and entrapment of the teenager, but was instead the subsequent warning Mohamud’s father gave the FBI about his radicalization.

Agents in Charlotte, N.C., picked up on Mohamud’s name in early 2009 while intercepting email traffic of then-U.S. based al-Qaida propagandist Samir Khan.

That August, FBI Special Agent Isaac DeLong was assigned to interview Mohamud’s father, Osman Barre, who feared Muslim extremists were radicalizing his son. Barre had read about Somali youths from Minnesota who were heading overseas to fight, and he worried his own son was trying to fly to Yemen to fight against the West, DeLong testified.

Barre agreed to speak to Mohamud and try to make sure he wouldn’t fly overseas. He took his son’s passport and reported back to the FBI that they had a chat.

Taking that as true (I don’t necessarily believe it, particularly given Hesham Abu Zubaydah’s claim the FBI had him tracking Mohamud even earlier than that), consider the message his father’s testimony now sends to Muslim families worried about their sons getting radicalized. (h/t Teddy, who is far more reliable at this point that Google’s increasingly useless alert system)

[Mohamud's father] Osman Barre, meanwhile, had phoned the FBI. He told agents that brainwashed Somali kids were flying overseas, and he wanted the bureau’s help. He wanted agents to prevent his boy from getting on a plane.

The agents instead asked him questions about terrorism, which struck a nerve. Osman Barre told the agents he had nothing to hide and that he was grateful to have been given refuge in the U.S. after fleeing the civil war in Somalia.

“Even I say God bless America,” Barre told jurors.

[snip]

Mohamud told his parents he wanted to study at a mosque in Yemen, Osman Barre recalled, and he showed his dad an email about a school there that would teach him Arabic.

The Barres kept talking to their son until he agreed to stay in school. There would be time to study Arabic overseas when he was a grown man, Osman Barre said. He recalled telling his son, “I brought you here to give you a life of prosperity.”

The email Mohamud showed his dad that day was from a Saudi Arabian that he had met at a Portland mosque. Neither Osman nor Mariam Barre knew that the FBI suspected the writer of that email — now identified as Amro Alali — was an al-Qaida recruiter.

FBI agents didn’t share with the Barres that they suspected Mohamud was involved with dangerous extremists, Osman Barre said. Had he been told, he would have reached out to their tight-knit community for help and gotten counseling for their impressionable son.

Barre did exactly what the FBI would hope a father would do: alert the FBI. But rather than helping the father prevent his son from being sucked in, instead the FBI (it claims) used the father’s call as the predicate to suck Mohamud further in, even while they admitted repeatedly he was floundering.

Set aside Mohamud’s guilt or innocence. The message the FBI has sent with its treatment of Mohamud is if family members alert law enforcement to concerns about radicalization, the FBI will then use it as an excuse to entrap their family member.

Just about the least productive thing to do if you want to capture actual threats.


Are We to Believe Samir Khan’s Communications Were Used as a Tripwire, but Awlaki’s Weren’t?

By:  Thursday January 24, 2013 11:03 am

You should read both the AP and OregonLive accounts of yesterday’s Mohamed Osman Mohamud trial for their description of the problems surrounding the FBI’s account of its early investigations of the teenager (not to mention its choice, when Mohamud’s drinking suggested he was abandoning his radicalism, they nudged him back into extreme views).

But for now I’d like to look at the account FBI Agent Issac DeLong gave of how they first started tracking Mohamud. From the AP.

DeLong’s testimony also revealed that FBI agents in the Charlotte, N.C., office tracking now-deceased al-Qaida operative Samir Khan were the first to identify Mohamud as a potential threat because of communication between the two.

The FBI was tracking Khan – who was killed in a drone strike with then-al-Qaida leader Anwar al-Awlaki – when they came across Mohamud’s emails to him in early 2009. They tracked down Mohamud’s IP address to a Portland suburb and identified him. When he cropped up on the bureau’s radar again, DeLong said he was able to rely on that information to identify Mohamud.

DeLong also said that a team of FBI agents followed Mohamud during his freshman year of college, monitoring his phone calls, text messages and emails, along with video and photo surveillance.

And from OregonLive:

Agents in Charlotte, N.C., picked up on Mohamud’s name in early 2009 while intercepting email traffic of then-U.S. based al-Qaida propagandist Samir Khan.

That August, FBI Special Agent Isaac DeLong was assigned to interview Mohamud’s father, Osman Barre, who feared Muslim extremists were radicalizing his son. Barre had read about Somali youths from Minnesota who were heading overseas to fight, and he worried his own son was trying to fly to Yemen to fight against the West, DeLong testified.

Barre agreed to speak to Mohamud and try to make sure he wouldn’t fly overseas. He took his son’s passport and reported back to the FBI that they had a chat.

“His father said that his son was not hiding anything,” DeLong said, “and there was nothing to worry about.”

But Barre followed up by forwarding to the FBI an email link he had received, DeLong said. It concerned a school in Yemen that his son hoped to attend. The correspondence contained the email address truthbespoken@gmail.com, which Mohamud had created in the United Kingdom, DeLong said.

The agent combed through the FBI’s storehouses of electronic data, finding that the address had been tied to the investigation of Samir Khan. He would learn that Mohamud had traded more than 100 emails with Khan beginning in February 2009 and that Mohamud had written articles for Khan under a pen name while a student at Beaverton’s Westview High School.

There are things that still don’t make sense about this narrative. At least from these accounts, it’s unclear whether the Charlotte discovery led to the Portland investigation, or whether the preliminary investigation out of Charlotte just served to make Mohamud’s father’s concerns more alarming.

And note this account still doesn’t jive with Hesham Abu Zubaydah’s claim that he had been told to track Mohamud at his mosque as early as 2008 (though we’re close enough in timeline that it’s possible they had Hesham track Mohamud after the Khan discovery, but before the formal investigation).

Moreover, note that the FBI delayed the Khan admissions until after the US had killed him, and turned over details of DeLong’s communications just weeks before the trial. The government tried to hide all of this earlier part of the narrative for a long time.

Mostly, though, I’m interested in how the FBI’s treatment of emails to Khan in early 2009 compared with its treatment of emails to Anwar al-Awlaki in that same period and earlier. From the Webster report, we know the FBI wasn’t prioritizing Awlaki emails in this period.

In fact, potentially radicalized people communicating with Awlaki were only incidentally tracked until after the [Nidal Hasan] attack(s) in 2009; the wiretap on Awlaki was not considered primarily a source of leads.

The report explains that when the Nidal Hasan emails were first intercepted the wiretap (which appears to have started on March 16, 2008) occasionally served as a “trip wire” identifying persons of potential interest. (Remember that bracketed comments are substitutions for redactions provided in the report itself.)

The Aulaqi [investigation] [redacted] also served as an occasional “trip wire” for identifying [redacted] persons of potential interest [redacted]. When SD-Agent or SD-Analyst identified such a person, their typical first step was to search DWS-EDMS [their database of intercepts] and other FBI databases for additional information [redacted]. If the [redacted] [person] was a U.S. Person or located in the U.S., SD-Agent might set a lead to the relevant FBI Field Office. If the information was believed valuable to the greater intelligence community and met one of the FBI’s intelligence-collection requirements, SD-Analyst would disseminate it outside the FBI in an IIR.

[snip]

On December 17, 2008, Nidal Hasan tripped the wire. (40-41)

But all of the “trip wire” leads that came from this wiretap up to this point were set as “Routine Discretionary Action” leads. (44) That’s how Hasan’s initial emails were also treated.

Now it’s possible that Mohamud’s emails were treated in the same way: the FBI went through the effort of identifying his IP, but once they had identified him they dropped the investigation. Though it doesn’t make sense that Mohamud’s writings for Khan would merit a big alarm later if they didn’t when they were written.

In other words, to the degree that the FBI’s story about Mohamud’s communication with Khan doesn’t make sense, it suggests the possibility that Khan’s communications were used a Tripwire in a way that Awlakis, during the same period, were not.


How the FBI Deals with a Suicidal Entrapment Target

By:  Wednesday January 16, 2013 5:32 am

Over the last few days, we learned that even after Aaron Swartz’ prosecutors learned he was a suicide risk, they barreled ahead with their pursuit of a stiff sentence for downloading stuff he could get for free.

Meanwhile, in Portland, Mohamed Osman Mohamud’s trial has started. One of the details that came out today–I guess the government thinks it helps their case–is that Mohamud’s handlers believed he was suicidal and might attempt to set off a suicide bomb. So they enticed him with the hope of traveling overseas.

Under questioning by assistant U.S. Attorney Ethan Knight, the agent said he and his colleague grew concerned at one point because they considered Mohamud to be “suicidal, and we don’t want him to take matters into his own hands.”

In a video clip of Mohamud and his FBI handlers sharing a meal in a hotel room, the two agents are heard convincing Mohamud that he could ultimately do more to help “the cause” by staying alive. “We want to keep you for awhile,” Hussein says in the video. “We think there’s some things you can do better than just one time.”

They also discussed sending Mohamud off to a Muslim country after November 26 in a move Youssef testified was aimed at giving Mohamud something to look forward to beyond the planned bombing.

Maybe it does help their case–they have to pretend that Mohamud would have tried to bomb Americans without the prodding of the FBI, after all.

But consider what they’re admitting to. This is a kid who had been under FBI pressure for 3 years by this point. He had once attempted to travel to Alaska for a summer job, but was stopped by the government because they had put him on a no-fly list; after that, the entrapment began in earnest.

So the kid wants to get away. The government prevents that. He gets suicidal which, because he’s a Muslim, the FBI presents as a heightened terrorist threat. And their solution to get him to stay alive long enough to play out their script is to have him imagine traveling overseas, which they themselves have prevented him from doing.

Then there’s this nice detail.

The agents also showed Mohamud a purported Islamist militant training video, which actually was produced by the FBI, depicting men with scarf-covered faces shooting guns, and one setting off a bomb with a cell-phone detonator. Youssef said Mohamud’s response to the video was that “it was beautiful.”

The FBI has started making their own Islamist training videos.

Think about that for a second: you and I pay for Islamist training videos with our tax dollars.

And it’s all the more rich given that Mohamud’s entrapment began–at least according to the FBI but they’ve been caught over and over in this case lying about this–when he was corresponding with Samir Khan. There’s reason to believe that wonder whether Samir Khan was once an FBI informant, if for no other reason than they let him travel overseas even though they considered his writing to be reason enough to start investigations into other kids, whereas they wouldn’t let someone like Mohamud travel overseas.

So this all started with Samir Khan, and it is fueled by Islamist training videos that the FBI makes.

They may be absolutely incompetent (or unwilling) to catch the biggest criminals in our society. But federal law enforcement sure seems to be good at making people want to kill themselves.


The Moral Rectitude Assassination Czar

By:  Thursday October 25, 2012 1:41 pm

Back in April and May, when John Brennan seized control of the drone targeting process purportedly in the interest of “showing the American public that al-Qaida targets are chosen only after painstaking and exhaustive debate,” an extensive NYT article–providing a picture of drone targeting as done before Brennan had consolidated control of it–described Brennan in religious terms. Among other descriptions offered of the guy in charge of drone assassinations, Harold Koh described him as a priest.

“If John Brennan is the last guy in the room with the president, I’m comfortable, because Brennan is a person of genuine moral rectitude,” Mr. Koh said. “It’s as though you had a priest with extremely strong moral values who was suddenly charged with leading a war.”

That same formulation–moral rectitude–shows up in Karen DeYoung’s profile of John Brennan today.

Some White House aides describe him as a nearly priest-like presence in their midst, with a moral depth leavened by a dry, Irish wit.

One CIA colleague, former general counsel John Rizzo, recalled his rectitude surfacing in unexpected ways. Brennan once questioned Rizzo’s use of the “BCC” function in the agency’s e-mail system to send a blind copy of a message to a third party without the primary recipient’s knowledge.

“He wasn’t joking,” Rizzo said. “He regarded that as underhanded.”

That’s not all that surprising. After all, DeYoung may have talked to Koh for this article, or “moral rectitude” may just be a well rehearsed line inside the White House.

Having anyone question Rizzo’s ethics, however, is no evidence of moral rectitude.

Indeed, the article–and the last set of similar articles–suggests Brennan does not exercise the moral rectitude the anonymous White House sources claim. Last time around, after all, the articles told how Brennan shut down signature strikes and war in Yemen. But by the time the articles came out, he had approved them.

This time around, the article notes Brennan’s belief CIA shouldn’t be in the paramilitary business, but approved such activities operating out of Djibouti. He is about to approve more drones because Petraeus wants them rather than fixing our HUMINT weaknesses. Similarly, Brennan’s moral rectitude on Mali involvement has faded.

It’s in light of this false myth of Brennan’s moral rectitude that I want to look more closely at the most remarked lines of this story.

In them, an anonymous Administration official seemingly shows regret for the killing of Abdulrahman al-Awlaki (as I noted at the time, the big profiles in May both were utterly silent about Abdulrahman).

Two administration officials said that CIA drones were responsible for two of the most controversial attacks in Yemen in 2011 — one that killed American-born cleric Anwar al-Awlaki, a prominent figure in al-Qaeda in the Arabian Peninsula, and a second a few days later that killed his 16-year-old son, also an American citizen. One of the officials called the second attack “an outrageous mistake. . . . They were going after the guy sitting next to him.”

Note, last year, Greg Miller reported JSOC carried out the Abdulrahman strike.

On Sept. 30, Awlaki was killed in a missile strike carried out by the CIA under Title 50 authorities — which govern covert intelligence operations — even though officials said it was initially unclear whether an agency or JSOC drone had delivered the fatal blow. A second U.S. citizen, an al-Qaeda propagandist who had lived in North Carolina, was among those killed.

The execution was nearly flawless, officials said. Nevertheless, when a similar strike was conducted just two weeks later, the entire protocol had changed. The second attack, which killed Awlaki’s 16-year-old son, was carried out by JSOC under Title 10 authorities that apply to the use of military force.

The detail matters, because ongoing FOIAs for information on Abdulrahman’s death face a higher bar if CIA carried out the attack than if JSOC did (Brennan’s laughable claim to want DOD to carry out these strikes so they will be transparent is another of the instances in the story where his moral rectitude proves infinitely flexible).

But it’s the statement itself–”an outrageous mistake. . . . They were going after the guy sitting next to him”–that I find even more laughable. Partly it’s word choice. Who says “outrageous mistake”? Normally, you’d expect someone to say “horrible mistake,” because if it’s a “mistake” then there’s no intent or poor judgment to get outraged about (unless the targeting here, overseen by Brennan personally, was particularly incompetent–but that’s the kind of thing these Kill List articles assure us could never happen).

Besides, according to the rules exposed in the last set of Kill List articles, Abdulrahman qualifies as a legitimate target. He’s a military aged male. Therefore, according to the rules of targeting, hitting him wasn’t a mistake at all. He was a militant considered an acceptable target by the moral rectitude Assassination Czar.

And all that’s before you consider that every other American killed by drones–Kamal Derwish, who purportedly died as “collateral damage” in the Abu Ali al-Harithi strike; Anwar al-Awlaki, who was first missed on December 24, 2009 in a strike purportedly targeting someone else, WikiLeaks evidence to the contrary notwithstanding (at a time when the Intelligence Community didn’t consider Awlaki operational); and Samir Khan, who died as collateral damage in the Awlaki strike–were or were going to be collateral damage at one point. That’s a lot of collaterally damaged inconvenient Americans.

Do people at the White House regret that they keep getting questions about the dead American teenager? Do they regret the almost nonexistent political fallout that has resulted? Do they feel a tinge of guilt that their rules make killing a teenager legal? Perhaps.

But the performance of morality in the Abdulrahman statement–like the moral rectitude rehearsed once again in a John Brennan article–is unconvincing.


Obama Makes the Case for Releasing the Targeted Killing Memo

By:  Friday October 19, 2012 9:07 am

As is typical, Jon Stewart conducted a more substantive interview with Obama last night than most “real” journalists (though between the women service members the USO seated in the front rows and Stewart’s admission that he gets fundraising emails from Obama, it was definitely a friendly interview). One huge item was missed by both Stewart and Obama: climate change and energy (Obama even brought up housing, dodging a HAMP question and blaming Congress for blocking refinancing for underwater homeowners).

But Stewart was one of the first people to ask Obama about his undelivered promises on Gitmo and fixing FISA. Josh Gerstein debunked some of Obama’s excuses on that front (and always, every time Obama claims he wants to close Gitmo, he should be asked why he has adopted worse policies at Bagram).

There’s just one detail Gerstein missed, which also deserves mockery.

Obama said this:

One thing that I’ve been absolutely clear about is America’s security comes first and the American people need to know how I make decisions when it comes to war, peace, national security, and protecting Americans. And they will continue to get that over the next four years of my Presidency.

Obama’s Administration executed an American citizen with no due process. And yet it refuses to release its legal justification for doing so (to say nothing of the explanation behind Samir Khan and Abdulrahman al-Awlaki’s death). Now, in the NDAA suit, the government refuses to explain who else might be targeted as a terrorist.

If Obama intends to keep Americans informed about how he makes decisions on war and peace, at the very least he needs to tell them when he can kill or indefinitely detain American citizens.

But I have no optimism that he will get any more transparent about those issues in a second term.

 


DOJ Attributes Its Inadequate Response to Targeted Killing FOIA on the Deputy and Attorney General’s Staff

By:  Sunday August 12, 2012 5:02 pm

Back in June, I showed several departments in the government had done inadequate searches for documents responsive to the NYT and, especially, ACLU FOIAs on targeted killing.

DOJ did not perform a reasonable search for documents responsive to ACLU’s FOIA

Part of the problem–for all respondents save the OLC (and CIA, which didn’t describe its search)–is that they used search terms that were likely to leave out responsive documents. In the case of DOJ’s Office of Information Policy, that problem was exacerbated because it searched only on the names of Anwar and Abdulrahman al-Awlaki and Samir Khan in conjunction with the word “target;” not only would that search leave out documents responsive to the NYT FOIA, it was pretty much guaranteed to leave out several important parts of the ACLU request, notably those pertaining to the underlying evidence that Anwar al-Awlaki was an imminent threat or operational.

OIP’s inadequate search was proven by the results of OLC’s search. OLC found 50 documents responsive to the ACLU’s FOIA that also included offices under OIP’s area of responsibility; 32 of those fell in the abbreviated time frame OIP included in their search. OIP only found one of those documents on its own, and only found 4 documents, total, on its own. Given that there were surely a bunch of conversations that transpired exclusively within the Attorney General and Deputy Attorney General’s offices that OLC couldn’t find, we can say with certainty that OIP’s searches found just a tiny fraction (probably less than one percent) of responsive documents.

DOJ doesn’t acknowledge scope of missed documents

The ACLU raised those and other problems with the government’s search in July. In last week’s response, the government didn’t admit what the record clearly shows–that their search was inadequate–and offer to do a real search. Rather, it called the ACLU’s points “nitpicks.” It responded to ACLU’s argument that only searching documents in conjunction with “target” would miss a lot of responsive documents (the ACLU didn’t make the point about the “imminent” and “operational” intelligence as strongly as they might have) by effectively saying, “excluding documents was the point,” even while misrepresenting the content of ACLU’s request as pertaining only to the decision to kill Awlaki and not the underlying decision that he represented an imminent threat because he had gone operational.

And it responded to the ACLU’s demonstration that the search clearly missed responsive documents because OLC had found 10 times more documents from OIP’s area of responsibility than OIP had with a citation to a case that found the government hadn’t conducted an adequate search because it relied on a name search, which is what OIP effectively used. The one line of the decision they cite pertains to the government failing to find one document, not 49 (nowhere in the government response do they admit to how many documents they failed to find).

The ACLU points out that OIP did not uncover some of the documents located by OLC. “Of course, the failure to turn up [a] document does not alone render the search inadequate; there is no requirement that an agency produce all responsive documents.” Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 892 n.7 (D.C. Cir. 1995). Again, the focus is on whether the search was reasonable.

Moreover, this case’s holding would support the ACLU argument that it’s not enough to do a name search if it clearly leaves out the intent of the request, as OIP’s searches do.

OIP didn’t search FOR responsive documents, it worked to exclude documents

As I said, DOJ tried to explain their use of names plus “target” as a justifiable means of search because the Office of the Attorney General and Office of the Deputy Attorney General had so many files they needed to sort somehow.

OIP used fewer search terms than OLC in part because it covers offices with a broader range of interests.

[snip]

Moreover, OIP’s limitation on the search of names to documents also including the word “target” is reasonable in light of the language of the ACLU’s request, which did not seek all documents concerning Aulaqi, but rather information on the factual and legal basis for the alleged individual targeting decisions.

But that doesn’t explain why “target” was the proper way of excluding bunches of non-responsive documents. Continue reading →


Will the Government Finally Use a Lawsuit as an Opportunity to Explain the Anwar al-Awlaki Killing?

By:  Wednesday July 18, 2012 11:14 am

When the ACLU and CCR represented Nasser al-Awlaki in a suit to prevent the government from killing Nasser’s son Anwar unless the government could prove he was an imminent threat, Judge John Bates threw the case out on standing grounds. The civil rights groups think they’ll face no such problem on the suit alleging wrongful death they just filed suing Leon Panetta, David Petraeus, SOCOM Commander William McRaven, and JSOC Commander Joseph Votel. That’s because Nasser al-Awlaki–suing on behalf of both his son and grandson, Abdulrahman–and Sarah Khan–suing on behalf of her son Samir, who was killed in the strike on Anwar–represent the estates of the dead men, so they should clearly have standing.

If that’s right, the courts will have to find some other way to punt on this issue. Alternately, for the first time, the government will have to provide evidence to a court to judge whether or not it wrongly killed three American citizens.

That’s one of the big issues behind this suit–an issue which I hope to follow up on later. As the Director of ACLU’s National Security Project, Hina Shamsi, noted, while the facts alleged against Anwar (though not against his son or Samir Khan) are very serious, none of them have been attested in court yet (the government submitted some of the facts in the Abulmutallab sentencing, but only after the trial was over).

We don’t want to minimize the seriousness of the allegations [against Anwar al-Awlaki]. It is the role of the courts to distinguish between actual evidence and mere allegations.

She describes this as an opportunity for the government. If the government has evidence Awlaki presented an imminent threat, this case is an opportunity to present the evidence so it can be tested.

Of course, the government has had that opportunity three times before: in the earlier Nasser al-Awlaki suit, the Abdulmutallab trial, and the FOIA response. The government’s efforts to avoid using that opportunity have gotten more and more ridiculous. But since they appear to have no shame on this point, I’m betting they find a way to avoid doing so now.


Some Data Points on Minh Qhang Pham, AQAP’s Graphic Artist of Mass Destruction

By:  Monday July 2, 2012 2:12 pm

On Friday, the government indicted Minh Quang Pham for material support of al Qaeda in the Arabian Peninsula. The indictment and the press release make it clear (though don’t say explicitly–though this report confirms it) that Pham’s primary alleged crime was helping Samir Khan produce Inspire magazine.

In or about April 2011, PHAM worked with a United States citizen (“American CC-1″) to create online propaganda for Al Qaeda in the Arabian Peninsula.

[snip]

[Pham] facilitated communications between al Qa’ida in the Arabian Peninsula and supporters; and provided expert advice and assistance in photography and graphic design of media for al Qa’ida in the Arabian Peninsula.

Meaning CC-2 is Anwar al-Awlaki.

In or about April 2011, PHAM met with a United States citizen (“American CC-2″) in Yemen.

Given the centrality of Pham’s alleged association with Khan and Awlaki, consider the following chronology and the additional details below.

December 2010: Pham travels from the UK to Yemen.

March and April 2011: Pham carries a Kalashnikov.

April 2011: Pham works with Samir Khan and meets Anwar al-Awlaki.

“About” May 2011: UndieBomb infiltrator travels from UK to Yemen.

September 27, 2011: AQAP releases Inspire, Issue 7.

September 30, 2011: Khan and Awlaki killed in drone strike

December 2011: Pham returns to the UK; “Prior to his arrest [June 29, 2012], PHAM was held by British authorities in immigration custody.”

Around April 20, 2012: UndieBomb 2.0 and his handler removed from Yemen.

May 3, 2012: AQAP releases Inspire Issues 8 and 9.

May 7, 2012: UndieBomb 2.0 revealed.

May 11, 2012: British role in recruiting UndieBomb 2.0 revealed.

May 26, 2012: False AQAP statement released.

June 29, 2012: Pham arrested (presumably in Britain); indicted in US.

First, note that some of alleged acts–notably carrying a Kalashnikov–might require an inside source to learn.

Then consider you had someone coming from the UK to Yemen not long before the UndieBomb 2.0 infiltrator. Unlike UndieBomb 2.0, Pham appears to have decided to leave after his partner in propaganda, Khan, got killed. But then he appears to have been held in immigration custody for 6 months–which happens to cover the time UndieBomb 2.0 infiltrator and his handler were still in Yemen.

How interesting, too, that Pham is being tried here in the US, not in the UK (where the crimes are slightly different but where terrorist propaganda is even more criminalized than here, if I understand the law correctly). Why do you suppose they’re trying him here and not in the UK, where he has just been held for 6 months?

Meanwhile, I’ve always been intrigued that the latest versions of Inspire were released between the time when UndieBomb 2.0 was whisked out of Yemen and the time first the purported plot, then UndieBomb 2.0′s role it, was revealed. Then, several weeks later, someone released a false AQAP announcement claiming AQAP had been infiltrated. Pham would have been in British custody during this period.

Finally, there’s this rather interesting language. As a lot of indictments that fall under the federal terrorism statute do, this one has language on forfeiture under 18 USC 981. But note the way it phases this language on forfeiture.

As a result of planning and perpetuating Federal crimes of terrorism against the United States … defendant [] shall forfeit … all right, title, and interest in all assets, foreign and domestic, affording a source of influence over al Shabaab and AQAP.

This guy, presumably, doesn’t have a whole lot of financial goods to forfeit. Nevertheless, the government is going to the trouble of seizing all his interest in assets affording Pham influence over al Shabaab and AQAP.

Those are, mind you, just data points. But some fairly intriguing ones.


Why Is DOJ Deliberately Hiding Information Responsive to ACLU’s Anwar al-Awlaki FOIA?

By:  Tuesday June 26, 2012 10:56 pm

As part of its strategy to not respond to the Anwar al-Awlaki FOIAs, the government seems to have decided to bury the NYT and ACLU under declarations. It submitted declarations and exhibits from 3 departments in DOJ, CIA, DOD, and DIA. Each attempts to appear helpful while (usually) blathering on at length but in no detail about why the President’s authority to kill an American citizen must remain hidden.

That said, the declarations can be distinguished by how convincing (or not) are their claims to have searched for relevant documents. In particular, DOJ Office of Information Policy was patently unresponsive, probably to hide the intelligence DOJ has on Anwar al-Awlaki (and possibly Samir Khan).

DOJ OLC presented by far the most convincing evidence of a real search. As described by Deputy Assistant Attorney General John Bies, the department conducted searches for the following terms: target! kill!, drones, assassinat!, extrajudicial killing, UAV, unmanned, awlaki, aulaqi, lethal force, lethal operation.

DOD primarily searched legal officers. While Lieutenant General Robert Neller didn’t provide a full list of search terms used, he claimed the search “included relevant key words,” including “Citizen,” “AG Speech,” “al-Awlaki,” and “Samir Khan.” While Neller says DOD used “multiple spellings” of al-Awlaki, it’s not clear whether they only searched hyphenated names. And there are some terms clearly missing–such as anything to do with targeted killing. And “citizen”? Really?!?!?

CIA, meanwhile, had this to say about their search:

In light of these recent speeches and the official disclosures contained therein, the CIA decided to conduct a reasonable search for records responsive to the ACLU’s request. Based on that search, it has determined that it can now publicly acknowledge that it possesses records responsive to the ACLU’s FOIA request.

The DOJ response provides this nonsensical excuse for why CIA can’t reveal how it searched for relevant documents.

Although the CIA acknowledges its possession of some records responsive to the FOIA 6 requests, information concerning the depth and breadth of that interest, including the number of documents, is classified. See infra Point II; Bennett Decl. ¶¶ 27-28. We therefore do not describe the CIA’s search on the public record; it is described in the Classified Declaration of John Bennett.

Given the CIA’s well-documented history of not searching where they know the most interesting documents are, I think it safe to assume the search was completely negligent. But I find it mighty interesting they didn’t even tell us what their search consisted of–the better to avoid contempt proceedings in the future, I guess.

Nevertheless, I think the least defensible search comes from Deputy Chief of the Initial Request Staff at Office of Information Policy Joseph Hibbard. OIP conducted the search in offices of top DOJ officials like the Attorney General, the Deputy Attorney General, and so on. Their search terms were: “targeted killings,” “kill lists,” “lethal operation,” “lethal force,” “al-Aulaqi” and “target,” “al-Awlaki” and “target,” “Samir Khan” and “target,” and “Abdulrahman” and “target.” Continue reading →


Is There a Pre-2001 OLC Opinion Authorizing Targeted Killing of US Citizen Terrorists?

By:  Tuesday June 26, 2012 1:15 pm

Update: I realize now this can’t be the explanation. I’ve just referred back to the original request and the ACLU actually did time-limit their general requests to records created after September 11, 2001. So maybe the issue relates to non-al Qaeda terrorists?

I’m still working through all the declarations submitted in the government’s response to the drone targeting FOIAs; I will have far, far more to say about what they suggest.

But for now I wanted to point to a detail in OLC Deputy Assistant Attorney General John Bies’ declaration that suggests OLC has a pre-2001 memo authorizing the targeted killing of US citizen terrorists.

As Bies’ declaration lays out, the three FOIAs at issue in this suit ask for OLC memos relating to the targeted killing of US citizens. To summarize:

  • Scott Shane asked for OLC memos since 2001 on the targeted killing of people suspected of ties to Al Qaeda or other terrorist groups
  • Charlie Savage asked for OLC memos on the targeted killing of a United States citizen who is deemed to be a terrorist
  • ACLU asked for all records on the legal basis under which US citizens can be subjected for targeted killings

That is, Shane put a start date on his FOIA–post 2001–and limited it to terrorist groups. Savage put no start date on it and didn’t specify which terrorist groups he was addressing. ACLU didn’t limit it with either a start date or ties to terrorist groups. Note, too, ACLU was looking for info on the killing of Abdulrahman al-Awlaki as well as his father and Samir Khan; Savage used language suggesting an interest in Anwar al-Awlaki, though he did not limit his request to the older Awlaki. Shane used no such limiting language.

As I’ve analyzed and will show at more length, the government gave inconsistent responses to these three FOIAs, even though on the surface they appeared to ask for the same information.

More interesting still is Bies’ claim in his declaration that the responses to Savage and the ACLU were limited to the recent spate of targeted killings of US citizens. Bies wrote,

By letter dated October 27, 2011, [OLC Special Counsel] Colburn responded to the Savage Request on behalf of the OLC. … Interpreting the request as seeking OLC opinions pertaining to al-Aulaqi, OLC neither confirmed nor denied the existence of such documents, pursuant to FOIA Exemptions One, Three, and Five.

[snip]

By letter dated November 14, 2011, Mr. Colburn responded to [ACLU lawyer Nate] Wessler on behalf of OLC, interpreting the request as seeking OLC opinions pertaining to those three individuals [Anwar al-Awlaki, Samir Khan, and Abdulrahman al-Awlaki] and informing him that, pursuant to FOIA Exemptions One, Three, and Five, OLC “neither confirms nor denies the existence of the documents in your request” because the very fact of the existence of nonexistence of such documents is itself classified, protected from disclosure by statute, and privileged.” [my emphasis]

Bies’ declaration had no language about Colburn “interpreting” Shane’s FOIA to pertain only to these killings in Yemen. In addition, as you can see from the letters Colburn sent (linked above), Colburn actually didn’t note his interpretation in his response letters to Savage and ACLU. I guess they were just supposed to guess.

And while this is just a wildarsed guess, the totality of these three requests and the caveats Bies made about the responses suggests that Colburn had to make such interpretations because of the open timeframe of the requests. That is, what is common to the Savage and ACLU requests but not the Shane one is the way they set no start point for their request.

Which suggests there may be OLC documents pertaining to the targeted killing of Americans (potentially as terrorists) dating back before the 2001 start point of Shane’s request. Who knows? Maybe there’s an OLC opinion authorizing the assassination of Black Panther Fred Hampton, for example (though the FBI would only fall under Savage’s request if considered “intelligence community assets”). If that’s correct, then is that OLC memo still on the books?

There are, I suspect, a number of other reasons why the government is so squirrely about this FOIA. But one of them may relate to documents lying around OLC’s archives from before the time 9/11 changed everything … or returned an earlier state of targeted killing.