Samir Khan

ACLU, Obama’s White Whale

Screen shot 2013-02-28 at 10.47.36 AMNPR’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.

It’s a point Ben Wittes made in a response to my query from yesterday,

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.

[snip]

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.

[snip]

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.

[snip]

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.

Targeted Killing Timeline

A timeline!

I’ve been working on this timeline for almost nine months, trying to pull together the known dates about strikes against Americans, the evidence supporting the strike against Anwar al-Awlaki, the legal cases surrounding both targeted killing and torture, to which targeted killing is linked via the Memorandum of Notification, and Congressional efforts to exercise oversight.

September 17, 2001: George Bush signs Memorandum of Notification (henceforth, Gloves Come Off MON) authorizing a range of counterterrorism techniques, including torture and targeted killing.

September 18, 2001: Congress passes the Authorization to Use Military Force.

November 3, 2002: US citizen Kamal Derwish killed in drone purportedly targeting Abu Ali al-Harithi.

Late 2008: Ruben Shumpert reported killed in Somalia.

June 24, 2009: Leon Panetta gets briefed on assassination squad program.

June 26, 2009: HPSCI passes a funding authorization report expanding the Gang of Eight briefings.

July 8, 2009: The Administration responds with an insulting appeal to a “fundamental compact” between Congress and the President on intelligence matters.

July 8, 2009: Silvestre Reyes announces CIA lied to Congress.

October 26, 2009: British High Court first orders British government to release language on Binyam Mohamed’s treatment.

October 28, 2009: FBI kills Imam Luqman Asmeen Abdullah during Dearborn, MI arrest raid.

October 29, 2009: Hearing on declassifying mention of Gloves Come Off MON before Judge Alvin Hellerstein; in it, Hellerstein reveals NSA James Jones has submitted declaration to keep mention of MON secret.

November 5, 2009: Nidal Hasan attacks Fort Hood, killing 13.

December 24, 2009: JSOC tries but fails to hit Anwar al-Awlaki. On that day, the IC did not yet believe him to be operational.

December 25, 2009: With Umar Farouk Abdulmutallab attack, FBI develops full understanding of Awlaki’s operational goals.

January 2, 2010: In conversation with David Petraeus, Yemeni President Ali Abdullah Saleh speaks as if Awlaki, whom he refers to as a cleric, not an AQAP member, was a designated target of December 24 attack.

Continue reading

Has the Government Left Minh Quang Pham “Languishing Forever”?

Screen shot 2013-02-13 at 3.55.43 PMJohn Brennan made two interesting comments about FBI interrogation at his hearing last week. First, in response to a Martin Heinrich question, he suggested that the Army Field Manual shouldn’t be the interrogation standard for the entire government because the FBI “has its own processes and procedures.”

HEINRICH: Thank you. Do you believe that all agencies of the United States government should be held to the interrogation standards that are laid out in the Army Field Manual as it — as currently required by Executive Order 13491? And do you support efforts to codify those requirements into law?

BRENNAN: The Army Field Manual certainly should govern the U.S. military’s detention and interrogation of individuals.

The FBI has its own processes and procedures and laws that govern its activities. So what I wanted to do is to make sure that, you know, appropriate sort of attention is paid to FBI as opposed to the military.

Then, when Brennan was very patiently explaining to Marco Rubio that his ideas about detention and interrogation are erroneous and stupid (my words), he said this about FBI interrogations.

BRENNAN: No. Again, it’s tailored to the circumstances. Sometimes an individual will be Mirandized. Sometimes they will not be Mirandized right away. Mirandizing an individual means only that the information that they give before then cannot be used in Article III court.

But, in fact, the FBI do a great job as far as eliciting information after they’re Mirandizing them, and so they can get information as part of that type of negotiation with them, let them know they can in fact languish forever, or we can in fact have a dialogue about it intelligently.

“They can languish forever”? I didn’t think the Sixth Amendment had a “languish forever” exception.

But Brennan’s apparent belief there is one got me thinking about Minh Quang Pham, whom I wrote about here.

Pham is a Vietnamese immigrant to the UK who traveled to Yemen in December 2010 and went on to help Samir Khan produce Inspire magazine. He was arrested to great fanfare last June, when his May 24 indictment was purportedly unsealed. Though his docket shows no sign of that unsealing; rather, it says the indictment was unsealed two months later. He returned to the UK in December 2011, where he was held in immigration detention. It’s unclear whether he’s still there — the Brits can hold someone in detention indefinitely and extradition to the US has been taking a lot of time of late — or whether he was moved here either in June when DOJ had a big dog and pony show over his arrest or in August when the docket says his previously unsealed indictment was unsealed. That’s the last thing that appears in Pham’s docket. I’ve asked SDNY for a status report but have not yet gotten an answer.

In any case, one of the last people with ties to the UK or US to spend time with Anwar al-Awlaki and, especially, Samir Khan is languishing … somewhere.

One of Just Four Overseers on Drone Targeting Believes First Amendment Protected Activities Merit Execution

While the Gang of Four do not have access to the CIA’s kill list (and therefore did not know whether Samir Khan was on it before his death), they are the only people outside the Executive Branch who had, before today, seen the government’s rationale for killing Anwar al-Awlaki (and DOJ still has 8 memos on targeted killing to turn over). Thus, up until today, the Gang of Four has been the only outside review on that killing, 16 months after Awlaki’s death.

That’s all very nice because last March, in the context of the Administration’s refusal to turn over these memos, Dianne Feinstein offered this guarantee that the targeted killing program — and all other counterterrorism programs — are constitutional.

The Attorney General presented the administration’s legal analysis for the use of force against terrorists, including Americans. I believe it is important for the public to understand the legal basis and to make clear that our counterterrorism efforts are lawful under the Constitution, U.S. law and the law of war.

We are made safer by strikes against terrorists who continue to lead and carry out attacks on the United States. There are legal limits to this authority and great care is taken to ensure it is exercised carefully and with the absolute minimum of collateral damage. The Senate Intelligence Committee is kept fully informed of counterterrorism operations and keeps close watch to make sure they are effective, responsible and in keeping with U.S. and international law. [my emphasis]

That’s it. One of the only assurances that Awlaki’s death, and everyone else’s, is legal.

Which is all the more troubling given that DiFi’s judgement of what makes someone a legitimate target is so outrageous it made even John Brennan pause.

DiFi presented a series of terrorist attacks and asked Brennan to validate that Awlaki was, in fact, involved. It went something like this:

DiFi: Did he have connection to Umar Farouk Abdulmutallab?

Brennan: Yes.

DiFI: Can you tell us what that was?

Brennan: I prefer not to.

DiFI: Did he have a connection to Fort Hood?

[long pause and serious squirming]

Brennan: As a member in AQAP he had a role in inciting a number of individuals. There were a number of occasions where individuals, including Awlaki, has been in touch with Nidal Hasan.

DiFi: Did Faisal Shahzad tell interrogators he was inspired by Awlaki.

Brennan: Yes

DiFI: Last October, was he involved [not sure she used that word, and she means October 2010] in the failed attempt to bring down cargo aircraft?

Brennan: Awlaki was involved in overseeing a number of attacks–there was a relationship there.

Now, it is rather telling that Brennan didn’t want to address Abdulmutallab; I think it possible that there are problems with Abdulmutallab’s confession, as I lay out here. That said, there is also NSA information (leaked by Pete Hoekstra and made fairly obvious by the Webster report) and, probably, information from people infiltrated into AQAP, meaning Brennan needed to protect sources and methods.

And the toner cartridge plot is pretty weak, too, as Jabir al-Fayfi reportedly testified that others from AQAP were really in charge of the operation.

But for DiFi to suggest that Awlaki could be killed because of his role in the Nidal Hasan attack is outright irresponsible. After all, FBI read the correspondence between Hasan and Awlaki in real time. And yet having read it all — and having read whatever else email Awlaki received between June 2009 and December 24, 2009 when the US first tried to kill Awlaki — they still didn’t consider Awlaki to be operational (though one office following him believed he aspired to be).

As of January 7 and June 16, 2009, the FBI knew Anwar al-Aulaqi was an anti-American, radical Islamic cleric and the subject of a Tier <redacted> FBI counterterrorism investigation. San Diego believed [<redacted> that Aulaqi was [developing ambitions beyond radicalization] <redacted>. WFO viewed him at that time as merely inspirational. The FBI’s full understanding of Aulaqi’s operational ambitions developed only after the attempted bombing of Northwest Airlines Flight 253 on Christmas Day 2009.

Indeed, William Webster spent years trying to figure out whether FBI should have known Hasan was planning an attack from the emails, which is a much closer call. But even after reading everything that might have transpired between the two, no one believes that Awlaki had anything more than an inspirational role.

And yet one of the only four people outside the Administration who has attested to the legality of the strike on Awlaki thinks this should be part of the case to justify a due process free execution.

It got worse from there. She went on to insist that [rough transcript] ” Awlaki was not, by far, an American citizen of whom America would be proud.”

But like writing a bunch of First Amendment protected hateful propaganda, being “an American of whom America would not be proud” is not reason to be executed.

Dianne Feinstein, however, thinks it is.

 

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

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?

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 [email protected], 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

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

[youtube]7MwB2znBZ1g[/youtube]

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 articleproviding 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

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

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

Emptywheel Twitterverse
bmaz @MasaccioFDL @emptywheel @noahbird11 Jay Cutler; man, I just don't know.
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bmaz @noahbird11 @emptywheel Ah, thanks.
14mreplyretweetfavorite
bmaz @emptywheel @noahbird11 There IS a Cheesehead bar not that for from here, but that game doesn't seem so interesting.
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bmaz @emptywheel @noahbird11 Did you start in on the IPA early??? I want to tear my hair out. I looked for "NE Patriot bars here" with no joy.
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bmaz It is not malignant enough for @CBS5AZSPORTS to punish their viewers by televising worst games imaginable, they also are unresponsive jerks.
22mreplyretweetfavorite
emptywheel @bmaz @noahbird11 Well, that's sort of an interesting game.
23mreplyretweetfavorite
bmaz @noahbird11 @emptywheel Yo, I wouldn't know because my viewer hating local @CBS5AZSPORTS has punished me with the Bengals/Texans bullshit.
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bmaz @emptywheel I talk to Bill Bel through YOU!
26mreplyretweetfavorite
emptywheel @bmaz Me pay attention? That's their job. Also, it's still in Lambeau.
28mreplyretweetfavorite
bmaz @emptywheel Ahem. The Cheesers only become division leaders if you pay attention THIS week. One game at a time please!
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emptywheel @TedLott They still have #1 rushing D. Against a team that really doesn't need to run the ball, ever. @nickmanes1
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