Make sure to read the update below: It’s possible McMahon’s estimate is off and this whole review process has gotten hopeless screwed up.
Update: yes, this memo is actually the February 19, 2010 memo, not an earlier one. The referenced pages refer to the discussion from the February 19 memo. I’m marking out this post, because it appears to be incorrect.
If I’m understanding this heavily redacted memo from Colleen McMahon correctly, the government was reviewing whether it was legal to kill Anwar al-Awlaki before Umar Farouk Abdulmutallab implicated him in his High Value Interrogation Group obtained “confession.” That’s because, in her discussion of what she, at times, calls “the first Barron memo,” she says this:
Bies Exhibits B, which is responsive to both FOIA requests, is a memorandum prepared by OLC six months prior to its preparation of the OLC-DoD memorandum and the Draft White Paper. It pertains specifically to the proposed al-Aulaqi operation that was the subject of the Draft White Paper and the OLC-DoD Memorandum. Written by David J. Barron, it is entitled “Lethal Operation Against Shaykh Anwar Aulaqi.” I will refer to it hereafter as the Bies Exhibit B or as “The First Barron Memorandum.” The “OLC-DoD” memo is the July 16, 2010 memo. McMahon justifies the partial release of “the First Barron Memo” because the July 16, 2010 memo cites it specifically. Apparently, the reference “As we explained in our earlier memorandum, Barron Memorandum at 5-7″ (page 94) refers to that memo, and further discussions on the Fourth and Fifth Amendment and EO 12333 rely on that memo. But McMahon tells us this earlier memo — the first Barron memo considering the drone killing of Anwar al-Awlaki — was “prepared by OLC six months prior” to the July 16, 2010 one. That would date it around January 16, 2010. Before Umar Farouk Abdulmutallab could have implicated Awlaki in his plot. We know that’s true because: That is, unless McMahon’s estimate is off by 2 weeks, there’s no way they could be relying on Abdulmutallab’s confession in their case against Awlaki. And yet that is the one thing the government points to to explain its changed view — from December 24, 2009 — that Awlaki was not operational. The government appears to be aware of this problem. In trying to claim this document was still secret, they claimed “the date, title, and recipient of the analysis provided in the document relate to “entirely separate deliberative processes.” Indeed, it seems likely this was one of the memos the government was trying to bury after the Second Circuit ruled. Because, when this memo gets released with a mid-January release date, it will be clear that the entire story they’ve been telling about Awlaki doesn’t hold up.
In any case, McMahon is having none of that claim.
The Government’s arguments are demonstrably untrue. There were no “separate deliberative processes” here; rather, the Government deliberated about whether or not it could and should kill al-Aulaqi over the course of many months, during which time it asked OLC to render advice on a number of occasions.
The deliberation process is the same process. And it started before such time as the government had what it claims is first-hand evidence against Awlaki.
Update: There is one more possibility. That this memo–released in August and dated February 19, 2010–is the memo in question. That would mean 1) That McMahon was off in her estimate by a month and 2) that she’s very confused about what she’s reviewing, given that her opinion dates to a month and a half after the memo was released. But the content and the title would match up. So it seems possible that’s the memo, at which point they had their first “confession” implicating Awlaki.
For years, defenders of the drone killing of Anwar al-Awlaki have always pointed to the second confession Umar Farouk Abdulmutallab made, implicating Awlaki in each and every part of his plot.
There were always problems with that. Several pieces of evidence indicate the drone attack on December 24, 2009 that missed Awalaki had specifically targeted him; at that point, the government did not consider Awlaki operational. Abdulmutallab made 3 confessions, and only the one made to the High Value Interrogation Group (HIG) after a month of isolation and in the context of a (I’ve heard second-hand, unbelievably generous) plea deal that was never finalized implicated Awlaki in planning his attack. Claims Awlaki helped Abdulmutallab make his martyrdom video don’t explain why AQAP’s best English language propagandist would make a video with a man schooled in English in Arabic. Subsequent evidence suggests actions attributed to Awlaki in that confession were probably taken by Fahd al-Quso and Nasir al-Wuhayshi.
In other words, there are a lot of holes in the confession always used to justify Awlaki’s drone killing. Abdulmutallab’s second confession should be treated the same as his first and third ones: a narrative crafted by someone who has a big incentive to shade the truth, and therefore of dubious reliability.
The release of yesterday’s ridiculously cursory OLC memo authorizing the drone killing of Anwar al-Awlaki introduces one more reason to doubt the narrative that claims Abdulmutallab’s second confession provided justification for Awlaki’s killing.
The memo relies not on what FBI has told OLC. It relies on CIA’s assessment that Awlaki is “a senior leader of al-Qa’ida in the Arabian Peninsula” based on “factual predicates as represented by the CIA and in the materials provided to use from the Intelligence Community.”Abdulmutallab’s second confession might be included in those materials provided from the IC. Even though the confession was obtained as part of a criminal investigation, the FBI is part of the IC, so broadly speaking that second confession would qualify, I guess.
But the assessment came not from FBI, which had the lead investigating the Undiebomb attack, but from the CIA. Which ought to give you pause, given that just months before this memo was written, the intelligence community’s partners had convinced the US that they hadn’t killed a Bedouin clan in the al-Majala strike. Indeed, the intelligence relating to Awlaki seemed to be consistently stinky until such time as the CIA set up its own drone base in Saudi Arabia in mid-2011.
Besides, what are we executing American citizens based on the CIA’s assessment for anyway?
At least according to David Barron, the case against Awlaki came not from FBI, but from CIA. That doesn’t mean CIA didn’t have evidence supporting its claims (and remember, CIA has a role in HIG, as does JSOC). But it does suggest Abdulmutallab’s second confession may not have the role the defenders of Awlaki’s execution like to cling to.
In Salon, I point out something funny about the report released on Tuesday to mark the 10 year anniversary of the release of the 9/11 Commission report. The report says we must fight the “creeping tide of complacency.” But then it says the government has done almost everything the 9/11 Commission said it should do.
There is a “creeping tide of complacency,” the members of the 9/11 Commission warned in a report released on Tuesday, the 10-year anniversary of the release of their original report. That complacency extends not just to terrorism. “On issue after issue — the resurgence and transformation of al Qaeda, Syria, the cyber threat — public awareness lags behind official Washington’s.” To combat that “creeping tide of complacency,” the report argues, the government must explain “the evil that [is] stalking us.”
Meanwhile, the commissioners appear unconcerned about complacency with climate change or economic decline.
All that fear-mongering is odd, given the report’s general assessment of counterterrorism efforts made in the last decade. “The government’s record in counterterrorism is good,” the report judged, and “our capabilities are much improved.”
If the government has done a good job of implementing the 9/11 Commission recommendations but the terror threat is an order of magnitude worse now, as the report claims, then those recommendations were not sufficient to addressing the problem. Or perhaps the 13 top security officials whom the Commission interviewed did a slew of other things — like destabilizing Syria and Libya — that have undermined the apparatus of counterterrorism recommended by the original 9/11 Commission?
Which is a polite way of saying the 10-year report is unsatisfying on many fronts, opting for fear-mongering than another measured assessment about what we need to do to protect against terrorism.
Perhaps that’s because, rather than conduct the public hearings with middle-level experts, as it boasted it had done in the original report, it instead privately interviewed just the people who’ve been in charge for the last 10 years, all of whom have a stake in fear and budgets and several of whom now have a stake in profiting off fear-mongering?
Suffice it to say I’m unimpressed with the report.
Which brings me to this really odd detail about it.
The report takes a squishy approach to Edward Snowden’s leaks. It condemns his and Chelsea Manning’s leaks and suggests they may hinder information sharing. It also suggests Snowden’s leaks may be impeding recruiting for cybersecurity positions.
But it also acknowledges that Snowden’s leaks have been important to raising concerns about civil liberties — resulting in President Obama’s decision to impose limits on the Section 215 phone dragnet.
Since 2004, when we issued the report, the public has become markedly more engaged in the debate over the balance between civil liberties and national security. In the mid-2000s, news reports about the National Security Agency’s surveillance programs caused only a slight public stir. That changed with last year’s leaks by Edward Snowden, an NSA contractor who stole 1.7 million pages of classified material. Documents taken by Snowden and given to the media revealed NSA data collection far more widespread than had been popularly understood. Some reports exaggerated the scale of the programs. While the government explained that the NSA’s programs were overseen by Congress and the courts, the scale of the data collection has alarmed the public.
[I]n March, the President announced plans to replace the NSA telephone metadata program with a more limited program of specific court-approved searches of call records held by private carriers. This remains a matter of contention with some intelligence professionals, who expressed to us a fear that these restrictions might hinder U.S. counterterrorism efforts in urgent situations where speedy investigation is critical.
Having just raised the phone dragnet changes, the report goes on to argue “these programs” — which in context would include the phone dragnet — should be preserved.
We believe these programs are worth preserving, albeit with additional oversight. Every current or former senior official with whom we spoke told us that the terrorist and cyber threats to the United States are more dangerous today than they were a few years ago. And senior officials explained to us, in clear terms, what authorities they would need to address those threats. Their case is persuasive, and we encountered general agreement about what needs to be done.
Senior leaders must now make this case to the public. The President must lead the government in an ongoing effort to explain to the American people—in specific terms, not generalities—why these programs are critical to the nation’s security. If the American people hear what we have heard in recent months, about the urgent threat and the ways in which data collection is used to counter it, we believe that they will be supportive. If these programs are as important as we believe they are, it is worth making the effort to build a more solid foundation in public opinion to ensure their preservation.
This discussion directly introduces a bizarre rewriting of the original 9/11 Report.
Given how often the government has falsely claimed that we need the phone dragnet because it closes a gap that let Khalid al-Midhar escape you’d think the 9/11 Commission might use this moment to reiterate the record, which shows that the government had the information it needed to discover the hijacker was in the US.
It does, however, raise a very closely related issue: the FBI’s failure to discover Nawaf al Hazmi’s identity. →']);" class="more-link">Continue reading
Two days before the Administration was due to release a memo laying out its rationale for drone-killing American citizen Anwar al-Awlaki, AQAP released a video that challenges the narrative the Administration has used for doing so.
As Gregory Johnsen reports, the memo shows (see correction below)
former Gitmo detainee Said al-Shihri embracing Umar Farouk Abdulmutallab, then whispering in his ear.
In the video, Shihri says he was the head of external operations — the title the US always used to describe Anwar al-Awlaki.
The video says that it was Shihri — not Awlaki — who was “responsible for external operations against America.” For years, the Obama administration has argued the opposite, claiming that Awlaki was directing AQAP’s efforts against the U.S., including the failed underwear bomb on an airliner over Detroit on Christmas Day 2009.
On the day Awlaki was killed, Obama called him “the leader of external operations for al-Qaeda in the Arabian Peninsula” and said he “directed” the 2009 attack. The video appears to refute both claims, giving credit to Shihri, the former Guantanamo Bay detainee.
Halfway through the video there is a clip of Shihri embracing Umar Farouk Abdulmutallab, the underwear bomber in the Christmas Day attack, and whispering in his ear as a narrator reads that the attack was conducted “under the direct supervision of (Shihri) and a number of his brothers in the section in charge of external operations.”
While there may be some disagreement about how best to translate Shihri’s role — “directed” or “supervised” — this video clearly says that Shirhi was in charge, directly to the contrary to the narrative DOJ released purportedly summarizing Abulmutallab’s confession (the one that conflicted in key ways with his two other confessions).
What Johnsen doesn’t say — but is clear from comparison — is that that embrace took place while Abdulmutallab was dressed to make his martyrdom video.
Compare this frame, which appears just after the embrace in the new video (at 21:54),
With this one from Abdulmutallab’s martyrdom video (at 0:52).
That’s important because arranging to make the martyrdom video is one of the tasks DOJ’s narrative says Awlaki did.
Awlaki told defendant that he would create a martyrdom video that would be used after the defendant’s attack. Awlaki arranged for a professional film crew to film the video. Awlaki assisted defendant in writing his martyrdom statement, and it was filmed over a period of two to three days. The full video was approximately five minutes in length.
Shihri’s presence at the making of Abdulmutallab’s martyrdom video doesn’t refute the claim that Awlaki had a role in making it (though none of the experts I have asked has ever given a remotely credible explanation why AQAP’s greatest English-language propagandist and someone formally schooled in English would make a martyrdom video in Arabic). But it does place him there, suggesting Awlaki was not the only one directing the production of the video, if he had a role at all.
This video definitely doesn’t prove that Awlaki didn’t have an operational role in the UndieBomb attack. But it shows that the narrative the government released — which Abdulmutallab’s lawyer said had been made in the context of a plea deal never finalized and which the government agreed not to rely on at the trial, where it could have been challenged — neglects not just the role of Fahd al-Quso, but also Said al-Shihri. It is, at the very least, incomplete in some important ways.
And yet that is the only public “proof” the government has ever released that justified their execution of Anwar al-Awlaki.
Update: Apparently al-Shihri isn’t the one portrayed in this video, Nasir al-Wuhayshi is. In which case this connection is not meaningful.
Last year, after the drone white paper demonstrated how shoddy were the Obama Administration’s claims to be able to kill Anwar al-Awlaki, a group of Senators decided the best way to avoid difficult questions but appear to address the issue would be to have the FISA Court review drone and/or targeted killings before they happened. I did a series of posts laying out what a horrible idea that was. I showed:
As a reminder, I argued the claims in that last bullet in February 2013.
The Fourth Amendment holds that judges must decide whether wiretaps are reasonable or not.
Yet after the FISA Amendments Act, that’s not what happens. Rather, judges are deprived of the ability to do more than review the government’s certifications about targeting and minimization. Once a judge has done so, however, the government can not only bulk collect telecommunications involving someone overseas, but it can later search on those telecommunications to get to the US person’s side of the conversation, apparently without court review on the back side.
Effectively, discretion over this massive system has collapsed back inside the Executive Branch.
And all that’s before the government’s use of the secret law that Mark Udall and Ron Wyden keep complaining about, which probably involves — in part — the bulk collection of geolocation information from cell phones. It’s also before the government has interpreted the word “relevance” to justify other massive collection programs (at a minimum, of things like hydrogen peroxide and acetone purchases) involving US persons.
In short, the FISA Court has become a venue not for judges to exercise individualized discretion about probable cause. Rather, it has become the venue in which the government uses the secrecy offered to develop expansive legal interpretations to support vast new spying programs it won’t even tell Americans about. Not only the promise of individualized judicial discretion has been eliminated, so has the very premise that American should know what laws they are subject to.
In June and August of last year, Snowden disclosures led the rest of the world to recognize that the FISC had authorized back door searches without judicial review of programmatic collection, had authorized the bulk collection of data from cell phones (though more limited collection of location data), and had interpreted the word “relevance” to mean “all.”
That is, my argument that the FISC was broken and therefore couldn’t be trusted with matters of life and death came to be accepted by just about everyone, up to and including Administration officials who agreed to make cosmetic (though not functional) changes to the FISC.
Along the way, we have also learned that the government is not complying with Congressional intent with respect to defendants’ rights, meaning the efficacy of the FISC in protecting constitutional rights has avoided the tests it should have had.
Yet the changes we have made — effectively inviting the FISC to call their existing clerks “advocates” to provide the patina of adversarial review — really are no more than cosmetic, and USA Freedumber has aspects that would weaken the FISC even further.
I thought all this had led people to see the folly in using the FISC to judge drone and/or targeted killings.
As I noted on Friday, Judge Rosemary Collyer threw out the Bivens challenge to the drone killings of Anwar and Abdulrahman al-Awlaki and Samir Khan.
The decision was really odd: in an effort to preserve some hope that US citizens might have redress against being executed with no due process, she rejects the government’s claims that she has no authority to decide the propriety of the case. But then, by citing precedents rejecting Bivens suits, including one on torture in the DC Circuit and Padilla’s challenge in the Fourth, she creates special factors specifically tied to the fact that Awlaki was a horrible person, rather than that national security writ large gives the Executive unfettered power to execute at will, and then uses these special factors she invents on her own to reject the possibility an American could obtain any redress for unconstitutional executions. (See Steve Vladeck for an assessment of this ruling in the context of prior Bivens precedent.)
The whole thing lies atop something else: the government’s refusal to provide Collyer even as much information as they had provided John Bates in 2010 when Anwar al-Awlaki’s father had tried to pre-emptively sue before his son was drone-killed.
On December 26, Collyer ordered the government to provide classified information on how it decides to kill American citizens.
MINUTE ORDER requiring the United States, an interested party 19 , to lodge no later than January 24, 2014, classified declaration(s) with court security officers, in camera and ex parte, in order to provide to the Court information implicated by the allegations in this case and why its disclosure reasonably could be expected to harm national security…, include[ing] information needed to address whether or not, or under what circumstances, the United States may target a particular foreign terrorist organization and its senior leadership, the specific threat posed by… Anwar-al Aulaqi, and other matters that plaintiff[s have] put at issue, including any criteria governing the use of lethal force, updated to address the facts of this record.
Two weeks later, the government moved to reconsider, both on jurisdictional grounds and because, it said, Collyer didn’t need the information to dismiss the case.
Beyond the jurisdictional issue, the Court should vacate its Order because Defendants’ motion to dismiss, which raises the threshold defenses of the political question doctrine, special factors, and qualified immunity, remains pending. The information requested, besides being classified, is not germane to Defendants’ pending motion, which accepts Plaintiffs’ well-pled facts as true.
As part of their motion, however, the government admitted to supplementing the plaintiffs’ facts.
Defendants’ argument that decedents’ constitutional rights were not violated assumed the truth of Plaintiffs’ factual allegations, and supplemented those allegations only with judicially noticeable public information, the content of which Plaintiffs did not and do not dispute.
The plaintiffs even disputed that they didn’t dispute these claims, pointing out that they had introduced claims about:
Ultimately, even Collyer scolds the government for misstating the claims alleged in the complaint.
The United States argued that the factual information that the Court requested was not relevant to the Defendants’ special factors argument because special factors precluded Plaintiffs’ cause of action, given the context in which the claims, “as pled,” arose––that is, “the alleged firing of missiles by military and intelligence officers at enemies in a foreign country in the course of an armed conflict.” Mot. for Recons. & to Stay Order at ECF 10. The United States, however, mischaracterizes the Complaint. →']);" class="more-link">Continue reading
Congratulations to Jeremy Scahill and the entire team that worked on Dirty Wars for being nominated for the Best Documentary Oscar.
This post may appear to be shamelessly opportunistic — exploiting the attention Dirty Wars will get in the days ahead to make a political point before the President endorses the dragnet on Friday — but I’ve been intending to write it since November, when I wrote this post.
Jeremy Scahill (and the entire Dirty Wars team) is the kind of person whose contacts and sources are exposed to the government in its dragnet.
To write his book (and therefore research the movie, though not all of this shows up in the movie) Scahill spoke with Anwar al-Awlaki’s father (one degree of separation from a terrorist target), a number of people with shifting loyalties in Somalia (who may or may not be targeted), and Afghans we identified as hostile in Afghanistan. All of these people might be targets of our dragnet analysis (and remember — there is a far looser dragnet of metadata collected under EO 12333, with fewer protections). Which puts Scahill, probably via multiple channels, easily within 3 degrees of separation of targets that might get him exposed to further network analysis. (Again, if these contacts show up in 12333 collection Scahill would be immediately exposed to that kind of datamining; if it shows up in the Section 215 dragnet, it would happen if his calls got dumped into the Corporate Store.) If Scahill got swept up in the dragnet on a first or second hop, it means all his other sources, including those within government (like the person depicted in the trailer above) describing problems with the war they’ve been asked to fight, might be identified too.
Scahill might avoid some of this with diligent operational security — a concerted effort to prevent the government from tracking him along with terrorists (though remember two things: one purpose of the dragnet is to discover burner phones, and his computer got hacked while he was working on this book). But the government’s intent is to sweep up records of any conversations that get as close to those hostile to American efforts as Scahill does.
One of my favorite figures in Scahill’s book was the Heineken and Johnny Walker swilling Mullah Zabara, a Yemeni tribal leader from Shabwa who expressed the ambivalence Yemenis might feel towards the US.
Several souther leaders angrily told me stories of US and Yemeni attacks in their areas that killed civilians and livestock and destroyed or damaged scores of homes. If anything, the US air strikes and support for Saleh-family-run counterterrorism units had increased tribal sympathy for al Qaeda. “Why should we fight them? Why?” →']);" class="more-link">Continue reading
As expected, the Sixth Circuit wasted no time in denying Umar Farouk Abdulmutallab’s appeal of his conviction and sentence. The Circuit affirmed District Court Judge Nancy Edmunds on all matters.
Curiously though, in his opinion, Judge David McKeague spends relatively little time on the most contentious issue of the case: whether or not Abdulmutallab was competent to represent himself. He doesn’t really address an issue raised by Abdulmutallab’s Appelate lawyer, Travis Rossman, whether any competence determination be concurrent.
As I noted in my coverage of the hearing, Standby Counsel Anthony Chamber’s case for incompetence was not that Abdulmutallab was incompetent in 2009 when he was arrested or in 2010 when he fired his attorneys, but had been made in competent by 19 months of solitary confinement.
The question wasn’t whether Abdulmutallab was competent on August 17, 2011, Tukel suggested, when Edmunds did not call for a competency hearing, nor whether he was competent on October 12, 2011, when he plead guilty. Rather, it was whether he was competent on September 13, 2010, when he fired his defense attorneys. This was part of what seemed a broader government strategy to obscure the timing issues. He also argued all Abdulmutallab’s most bizarre behavior post-dated the August 2011 hearing. He argued that because Abdulmutallab attended college in England, he must be competent (!). He also argued that US v. Miller weighs against the standard on concurrent determination.
What Tukel didn’t provide much evidence about (beyond that Abdulmutallab always answered Edmunds’ questions about counsel as one would expect a defendant defending himself) is whether he was incompetent in August 2011.
Yemeni daggers. Allahu Akbar. Improper attire. Those are the external signs of “craziness” this hearing focused on.
And yet, in spite of the fact that Rossman repeatedly raised Chambers’ descriptions of Abdulmutallab’s “mental lapses,” no one focused on that question.
Which is crucial because, as Rossman argued (albeit weakly), part of the argument was that the conditions of Abdulmutallab’s confinement — 19 months of solitary confinement by the time of the August 2011 hearing — made him incompetent to defend himself.
And while McKeague pointed to one point where Abdulmutallab responded rationally to Edmunds’ questions, his most sustained case for Abdulmutallab’s competence rests on the Nigerian’s competence in carrying out his terrorist plot 21 months before he pled guilty (note, some of these claims are actually quite contestable, but I won’t deal with that here).
In order for Abdulmutallab to accomplish his goal of blowing up an aircraft over United States soil, Abdulmutallab had to make numerous calculated decisions. A brief overview of the steps that Abdulmutallab took in preparation for his mission is instructive:
- Abdulmutallab studied the teachings of the radical Imam Anwar Awlaki, which prompted his decision to travel to Yemen for the purpose of meeting Awlaki.
- While in Yemen, Abdulmutallab agreed to carry out the martyrdom mission.
- In order to conceal his time in Yemen, Abdulmutallab decided to travel to Ghana before departing to Amsterdam.
- Abdulmutallab had to come up with clever reasons for traveling to the United States when an airport screener in Amsterdam questioned his reasons for travel.
These actions show the deliberate, conscious, and complicated path Abdulmutallab chose to pursue in the name of martyrdom. Unlike the defendants in Pate and Drope, Abdulmutallab not only acted rationally, but was (nearly) able to execute a complex martyrdom mission. The complexity behind Abdulmutallab’s mission indicates the exact opposite of incompetence.
In other words, McKeague’s opinion most strongly argues that if you’re competent enough to (almost) carry out a terrorist plot then you are competent enough to defend yourself, whether or not 19 months of solitary confinement make you incompetent in the meantime.
Ramzi bin al-Shibh, take note.
Perhaps as significant a part of this ruling as the competency one is how the Circuit dealt with Abdulmutallab’s challenge to his statements at University of Michigan hospital, given the assault on Miranda in other terrorism cases. Not only had he not been Mirandized, but he had also been administered drugs, when he made those comments.
Basically, McKeague punted.
Abdulmutallab argues that the district court erred in failing to suppress the statements he made during his time at the University of Michigan Hospital. Abdulmutallab states that his testimony at the hospital was compelled and therefore the Fifth Amendment prohibited the use of that testimony in trial.
We will not address the merits of Abdulmutallab’s argument, as he waived any right to challenge the suppression of his statements when he entered the guilty plea. When a criminal defendant pleads guilty, “he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards [for effective assistance of counsel].” Tollett v. Henderson, 411 U.S. 258, 267 (1973). This court has held that a defendant who pleaded guilty may not appeal an adverse ruling on a pre-plea motion to suppress evidence “unless he has preserved the right to do so by entering a conditional plea of guilty in compliance with Rule 11(a)(2).”
I don’t question this decision, particularly given the decision on competence. But it’s important because commentators had pointed to Abdulmutallab’s case as precedent for the treatment of (among others) Dzhokhar Tsarnaev. But the Circuit declined to fully endorse his treatment, one way or another.
Former CIA Deputy Director John McLaughlin wants you to believe the NSA wasn’t really reading Anwar al-Awlaki’s communications content, on whose emails (including the web-based ones) the NSA had a full-time tap at least as early as March 16, 2008.
In my experience, NSA analysts err on the side of caution before touching any data having to do with U.S. citizens. In 2010, at the request of then-Director of National Intelligence Dennis Blair, I chaired a panel investigating the intelligence community’s failure to be aware of Umar Farouk Abdulmutallab, the “underwear bomber” who tried to blow up a commercial plane over Detroit on Dec. 25, 2009.
The overall report remains classified, but I can say that the government lost vital time because of the extraordinary care the NSA and others took in handling any data involving a “U.S. person.” (Abdulmutallab, a Nigerian, was recruited and trained by the late Anwar al-Awlaki, a U.S. citizen based in Yemen.)
And maybe that’s the case.
Except it doesn’t seem to square with the report that two FBI Agents were spending 3 hours a day each reading Awlaki’s mail. It doesn’t seem to accord with the efforts those Agents made to chase down the Nidal Hasan lead — which, after all, infringed on the privacy of two American citizens, against one of whom probable cause had not been established. You’d think it would be far easier to chase down the Abdulmutallab messages, particularly given what has been portrayed as more clearly operational content, given that Abdulmutallab would have gotten no protection as a US person.
Sure, those Agents complained about the “crushing” volume of the communications content they had to review every day, but that was a factor of volume, not any restrictions on reading FISA target Anwar al-Awlaki’s email.
Don’t get me wrong. I’m thrilled someone has raised Abdulmutallab in the context of assessing NSA’s dragnet, which I’ve been calling for since October.
UndieBomb 1.0 was the guy who was allegedly plotting out Jihad with Anwar al-Awlaki — whose communications the FBI had two guys reading – over things like chats and calls. That is, Umar Farouk Abdulmutallab was a guy whose plot the NSA and FBI should have thwarted before he got on a plane. (To say nothing of the CIA and NCTC’s fuck-ups.)
And yet, he got on that plane. His own incompetence and the quick work of passengers prevented that explosion, while a number of needles went unnoticed in the NSA’s most closely watched haystacks.
Nevertheless, the lesson DiFi takes is that we need more haystacks.
Shouldn’t the lessons of UndieBomb 1.0 be just as important to this debate as the partial, distorted, lessons of 9/11?
(I’ve also been wondering why Faisal Shahzad, who was getting instructions, including hawala notice, from known targets of drone strikes in Pakistan, before his attack, wasn’t identified by phone and Internet dragnet analysis as a person of interest through those contacts, though that may legitimately be because of turmoil in both dragnet programs.)
But for McLaughlin’s claims to be true then the description of the treatment of the Awlaki wiretaps in the Webster report on the Nidal Hasan investigation wouldn’t seem to make sense.
By all means, let’s hear what really happened back between 2008 and 2010, when the NSA missed multiple contacts with top AQAP targets and TTP targets and as a result missed two of the three main international terrorist attacks on this country since 9/11. That should be part of the debate.
But let’s be very clear whether it was really limits on US person data, when we see FBI reading content of two US persons directly, or rather the sheer volume we’re collecting (as well as the crappy computer systems FBI had in place in 2009) that caused the dragnet to fail.
Ryan Lizza has a long review of the dragnet programs. As far as the phone dragnet, it’s a great overview. It’s weaker on NSA’s content collection (in a piece focusing on Ron Wyden, it doesn’t mention back door searches) and far weaker on the Internet dragnet, the technical and legal issues surrounding which he seems to misunderstand on several levels. It probably oversells Wyden’s role in bringing pressure on the programs and treats Matt Olsen’s claims about his own role uncritically (that may arise out of Lizza’s incomplete understanding of where the dragnet has gone). Nevertheless, it is well worth a read.
I think it most valuable for the depiction of Obama’s role in the dragnet and its description of the ties between the war on terror and perceptions about the dragnet. Take this account of Obama’s decision not to embrace transparency during the PATRIOT Act Reauthorization in 2009-10. Lizza describes Wyden pressuring Obama to make information on the dragnets available to Congress and the public (we know HJC members Jerry Nadler, John Conyers, and Bobby Scott were lobbying as well, and I’ve heard that Silvestre Reyes favored disclosure far more than anyone else in a Ranking Intelligence Committee position).
But then the UndieBomb attack happened.
The debate ended on Christmas Day, 2009, when Umar Farouk Abdulmutallab, a twenty-three-year-old Nigerian man, on a flight from Amsterdam to Detroit, tried to detonate a bomb hidden in his underwear as the plane landed. Although he burned the wall of the airplane’s cabin—and his genitals—he failed to set off the device, a nonmetallic bomb made by Yemeni terrorists. Many intelligence officials said that the underwear bomber was a turning point for Obama.
“The White House people felt it in their gut with a visceralness that they did not before,” Michael Leiter, who was then the director of the National Counterterrorism Center, said. The center was sharply criticized for not detecting the attack. “It’s not that they thought terrorism was over and it was done with,” Leiter said, “but until you experience your first concrete attack on the homeland, not to mention one that becomes a huge political firestorm—that changes your outlook really quickly.” He added, “It encouraged them to be more aggressive with strikes”—drone attacks in Yemen and Pakistan—“and even stronger supporters of maintaining things like the Patriot Act.”
Obama also became more determined to keep the programs secret. On January 5, 2010, Holder informed Wyden that the Administration wouldn’t reveal to the public details about the N.S.A.’s programs. He wrote, “The Intelligence Community has determined that information that would confirm or suggest that the United States engages in bulk records collection under Section 215, including that the Foreign Intelligence Surveillance Court (fisc) permits the collection of ‘large amounts of information’ that includes ‘significant amounts of information about U.S. Persons,’ must remain classified.” Wyden, in his reply to Holder a few weeks later, expressed his disappointment with the letter: “It did not mention the need to weigh national security interests against the public’s right to know, or acknowledge the privacy impact of relying on legal authorities that are being interpreted much more broadly than most Americans realize.” He said that “senior policymakers are generally deferring to intelligence officials on the handling of this issue.”
Curiously, Lizza makes no mention of Nidal Hasan who, unlike Umar Farouk Abdulmutallab, actually succeeded in his attack, and like Abdulmutallab, had had communications with Anwar al-Awlaki intercepted by the NSA (and FBI) leading up to the attack. Weeks before the UndieBomb attack, Pete Hoekstra had already started criticizing the Obama Administration for not responding to Hasan’s emails to Awlaki, and Hasan’s attack led to more tracking of Awlaki (and, I suspect, Samir Khan’s) online interlocutors. I also suspect that, because of certain technical issues, the Hasan experience led to increased support for suspicionless back door searches.
But whether or not the UndieBomber alone or in conjunction with the Hasan attack was the catalyst, I absolutely agree Obama got spooked.
The question is whether Obama took the correct lesson from the UndieBomb, in particular. While the Hasan attack definitely led to real lessons about how to better use content collection (FISA and PRISM), the UndieBomb case should have elicited conclusions about having too much data to find the important messages, such as Abdulmutallab’s text to Awlaki proposing Jihad. (Note that Hoekstra’s blabbing about the Awlaki taps may have led AQAP to encrypt more of their data — as Awlaki was alleged to have done with Rajib Karim — which would have led to legitimate concerns about publicizing NSA techniques.) With the UndieBomb, NSA purportedly had advance warning of the attack that didn’t get read until after the attempt. Why not? And why wasn’t that Obama’s main takeaway?
And the National Security people still seem to be taking the wrong lessons. Here’s Matt Olsen and DiFi’s version of the National Security crowd’s latest fearmongering, that we need dragnets even more so now because the terrorist group has dispersed.
As core members of Al Qaeda were killed, the danger shifted to terrorists who were less organized and more difficult to detect, making the use of the N.S.A.’s powerful surveillance tools even more seductive. “That’s why the N.S.A. tools remain crucial,” Olsen told me. “Because the threat is evolving and becoming more diverse.”
Feinstein said, “It is very difficult to permeate the vast number of terrorist groups that now loosely associate themselves with Al Qaeda or Al Nusra or any other group. It is very difficult, because of language and culture and dialect, to really use human intelligence. This really leaves us with electronic intelligence.”
Olsen says the problem is, in part, that Al Qaeda is “less organized.” DiFi says one problem we have “permeating” terrorist groups is language and culture and dialect and her solution to that is to use “electronic intelligence.” While electronic intelligence — and specifically metadata — provides a way to compensate for linguistic failures (the NSA uses structure to identify which are the important conversations), in terrorist attack after terrorist attack (as well as CW attack) we turn out not to have been watching the right content feeds. And if we don’t have the linguistic skills, we’re likely not going to understand the messages correctly in any case.
And these are less organized groups! Are they really any more effective than crime gangs at this point, and crime gangs in countries far away with little means to access the US?
But rather than saving money on the dragnet and working instead on shoring up our cultural and linguistic failures, this failure is instead seen as another excuse to sustain the dragnet.
It’s clear that terror — whether NSA has failed or not — serves as a evergreen excuse for the dragnet. The real question is whether it should.