On the Growing Fight Against America’s Secret Enemies

Cora Currier describes the absurd response she got when she asked for a list of our enemies.

At a hearing in May, Sen. Carl Levin, D-Mich., asked the Defense Department to provide him with a current list of Al Qaeda affiliates.

The Pentagon responded – but Levin’s office told ProPublica they aren’t allowed to share it. Kathleen Long, a spokeswoman for Levin, would say only that the department’s “answer included the information requested.”

A Pentagon spokesman told ProPublica that revealing such a list could cause “serious damage to national security.”

“Because elements that might be considered ‘associated forces’ can build credibility by being listed as such by the United States, we have classified the list,” said the spokesman, Lt. Col. Jim Gregory. “We cannot afford to inflate these organizations that rely on violent extremist ideology to strengthen their ranks.”

Thing is, this is not entirely new. At least until February, the government had been refusing to give Ron Wyden a list of every country in which we’ve used lethal force. And he’s on the Intelligence Committee!

Indeed, Currier suggests one reason this might be classified would be if Obama was fighting these enemies under Inherent Authority.

The AUMF isn’t the only thing the government relies on to take military action. In speeches and interviews Obama administration officials also bring up the president’s constitutional power to defend the country, even without congressional authorization.

But, as Jack Goldsmith notes, something else seems to be going on here, because the response Currier got suggests the list is classified Secret, not whatever Top Secret compartment the government maintained for a year Wyden couldn’t access.

The language of the DOD release suggests that at least a few more groups (or elements of groups), and maybe many more groups (or elements), are on the AUMF “list.”  The existence of a “list” (which was unclear in the May 2013 AUMF hearing), and the fact that there may be at least a few groups (or elements of groups) on it, is itself news in the AUMF-watcher world.  It is also consistent with suggestions and implications in reports, such as in Mark Mazzetti’s book, that the AUMF is being invoked in various ways by DOD Special Operations Forces for non-covert military activities in many countries around the globe.

Third, it is entirely unclear why the USG can acknowledge some groups without unduly “inflating” them, and not others.  And this in turn makes me skeptical of the notion of “inflation.”  To be sure, some groups that are AUMF-able (such as, perhaps, the Haqqani network, a known but not acknowledged U.S. target) perhaps cannot be named because the operations are covert actions and involve deals of non-acknowledgment with foreign governments (or elements of foreign governments).  But that cannot be a comprehensive explanation for DOD’s secrecy.  By stating that disclosure of groups on the list would “reasonably be expected to cause serious damage to the national security,” DOD has tipped off that the list is classified only at the secret (as opposed to top secret) level.  (See Section 1.2 of E.O. 13,256.)  Covert actions are typically classified at the top secret level.  This implies (but does not prove) that some if not all of the AUMF-groups in question are not subjects of covert actions.

But remember: There are two other instances where the government has refused to clarify who is, and is not, an enemy.

When a bunch of people who have talked to, but not assisted, terrorists sued to stop the NSAA’s provisions allowing indefinite detention, the government refused (until it became convenient) to say whether they could be detained or not.

Then, as part of the Bradley Manning charges, the government kept one of the enemies it was going to prove he had aided classified (but ultimately didn’t argue he had aided that enemy in court).

Prosecutors accuse him of “aiding the enemy,” and three in particular: al-Qaida, al-Qaida in the Arabian Peninsula and a “classified enemy” referred to by a Bates number, which is a form of legal document identification.
Three professors of military law – Yale Law School’s Eugene Fidell, Duke University School of Law’s Scott Silliman and Texas Tech University School of Law’s Richard Rosen – told Courthouse News they had never heard of a case involving a “classified enemy.”
After being informed that the phrase stumped the professors, a military spokeswoman insisted that the confusion stemmed from a misunderstanding, because “who the enemy ‘is’ is not classified.”
“What ‘is’ classified is that our government has confirmed that this enemy is in receipt of certain compromised classified information, and that the means and methods of collection that the government has employed to make that determination are classified,” the spokeswoman said in an email.

One thing about all these instances — refusing to share a list of lethal force targeted countries with Ron Wyden, sharing a classified list with Carl Levin only on request, refusing to tell Americans (and one member of parliament from Iceland) whether they are counted as enemies, and refusing to tell Manning which enemy he supposed aided — is that they provide the executive maximum flexibility. That may not be the only thing this extreme secrecy about enemies does. But it is one thing it does do, along with hiding how broad the unilaterally declared war under Inherent Authority is.

It sure does make things confusing, though!

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

15 replies
  1. der says:

    Christ. I shake my head and wonder if our superior elites live in a Bizarro World of their own imaginings. Or did the doors to the Oregon State Hospital fly wide open? One day we have McMurphy in charge, or maybe Ratched’s testifying. Sometimes it’s Harding doing Sunday morning interviews.

    Risk is a game. Someone should tell those in charge. And the country’s “engine” is broke with no jobs.

  2. greengiant says:

    Countries that we have used lethal force. That might include the U.S.?
    Enemies include the occupy movement as seen by the Joint terrorism task force and explicitly labeled terrorists by the FBI.
    Will someone add up all JSOC activites on US soil and also overseas which involve US citizens.

  3. orionATL says:

    this obama administration’s military/security secrecy has now become obsessive and extreme, and is beginning to feel extremely malign.

    there has got to be more than al-q going on here; they just are not that strong and they are as much a developing anti-american ideology as war-making cadres.

    as with communism in its day and, just as foolishly as then, our leaders are treating the al-q’s as if they were end-of-earth-invading-martian-hordes, rather than individualistic, nationalist forces whose numbers, effectiveness, and intensity of effort will wax and wane over the next couple of decades.

    but what is the admin’s rationale for its obsessive secrecy?

    one answer could be as simple as not wanting to defend their actions and programs before american critics.

    another is that among the obama cabal, there is a consensus that many programs and actions are illegal or contrary to american political tradition.

    it is my personal hope that public discontent with the nsa spying which obama has enabled and protected will become a torrent of general opposition to the secrecy, militarism, and authoritarianism the president has nurtured and will prove his undoing,

    and the undoing as well of the “centrist” coalition (read, those with their hands on the levers of state power for the last two decades) which obama has been leading, with its malign influence on both constitutionally guaranteed personal freedoms and high-quality, wide-spread economic growth.

  4. der says:

    @orionATL: Chris Hedges argues it’s all of a plan for the coming climate catastrophe. His interviews on The Real News are ones to watch. Even if you don’t agree, his world view from his life experience is worthwhile.

    Obama’s rationale? Who knows the psychology of our leaders, I stopped wondering about him when I saw his behavior at the Arizona State memorial service after Giffords assault. He wasn’t sure what to do. From that I see him as one easibly malleable so, as all red blooded men would want to be, a great general in his own mind. Also, too his courtiers have told him so. Saving the women and children from the scary, scary terrorists.

    Sadly, in my little hell-hole, the public could care less. Letting Rush or NPR tell them what is truth, the weekend is all that matters, work is a means, money does matter but only to keep up appearances. Sex too. Only when we have the Great Starvation will there be a clamoring for a Wise King. Years from now, though not too many decades either – “History, we’ll all be dead” says Junior Bush. Remember this Dubya, you live in Texas and the hottest fire is in the middle of the pan.

    Stupid or Evil? Both. We are led by idiots. But hey did you read about the wild party’s in the Hamptons? Hollywood sells newspapers. Honey Boo Boo is a classic, what a yuck. Effin’ treehuggers should mind their own business.

  5. PeasantParty says:

    “Those countries where we have used lethal force”

    I can tell you that! The reason I know is because Wes Clark told us back in 2004, but that was before the Bully Govt. put the GAG on him.
    7 countries in 5 years was his wording, and since then there have been a few additional. The reasons for the additional ones have been due to others not willing to sit back and let the US steam roll a new world. The ones are as follows:

    While we were first in Afghanistan TPTB already had in place their plan to invade:

    Iraq
    Lybia
    Syria
    Somalia
    Lebanon
    Sudan
    and then Iran

    Since that 2004 speech we have secretively (not so much)Inched into Yemen, the Caucases, Krysikstan,and a host of other stans, along with another flip of a flop into Georgia.

    And, Yes. The US soil has been ripe with atrocious CIA attacks, not all deadly.

    The point of all this is to control all of the oil, gas, mineral, and corporate profit. Also, to remake regions, or to divide countries into a planned geometric style suitable to their wants. For the time being, in order to keep the populations under control they are placing US trained and backed leaders in these areas.

    The US has secretively built bases of different types across the globe. Recently, Poland has agreed to allow large bases to built there in order to supply military munitions, etc. closer to the theater. Australia has done the same. Turkey is in constant turmoil over what US entities are already there and the US trained assassins that are put into use to help with revolutions and protests that take down leaders.

    There you go. If anyone else has something to add please do. Americans need this knowledge because it is currently being driven in some of the same fashion.

  6. PeasantParty says:

    @PeasantParty: Al Qaida and it’s affiliates show up wherever the US wants them to be at the moment. Just look at Syria, we have called them in as partners and armed them.

    So, the enemies of the US are anyone that fights back or against the plans of Empire.

  7. Greg Bean (@GregLBean) says:

    ” “who the enemy ‘is’ is not classified.”
    “What ‘is’ classified is that our government has confirmed that this enemy is in receipt of certain compromised classified information…”

    They can’t admit WikiLeaks is the enemy until they get their hands on Assange.

  8. Kris says:

    So, if I am reading this correctly, there could be classified enemies that it would be a crime to speak to, support, send money, etc. – but you wouldn’t know that because it’s classified. Could the administration actually use this more broadly once it’s been established in the Bradley Manning trial? i.e., against groups of US citizens or individuals?

  9. JohnT says:

    They can’t give a list of Merica’s secret enemies? They can’t, because it’s e-v-er-y-one

    On Sept 11 2001 we were all victims

    On Sept 12 2001 (and since) we’ve all been suspects

  10. guest says:

    @der: I don’t think anyone in this administration is actually worried about climate change or natural catastrophes, and for good reason: the end of cheap energy will undo us a lot faster and a lot sooner than hurricanes, droughts, floods and whatnot. I’m pretty sure anyone opposed to the Canadian petro-sludge pipeline and/or fracking is near the top of that list of enemies. Same goes for anyone trying to find out the extent of the degradation BP has done to the Gulf or Tepco has done to the Pacific.
    The burgeoning police state is just putting in place the soylent green harvesters.

  11. thatvisionthing says:

    The AUMF isn’t the only thing the government relies on to take military action. In speeches and interviews Obama administration officials also bring up the president’s constitutional power to defend the country, even without congressional authorization.

    I still want to know who bombed Kabul on the night of 9/11, and under what authority. Pre AUMF.

    http://www.emptywheel.net/2012/02/23/shorter-jeh-johnson-16-year-old-abdulrahman-al-awlaki-legitimate-military-target/#comment-335775

    Nic Robertson CNN reporting from Kabul that night: http://www.archive.org/movies/thumbnails.php?identifier=cnn200109111750-1831

    preceded by Lawrence Eagleburger, speaking whose talking points?

    LAWRENCE EAGLEBURGER, CNN, 9/11: …We know who most of the terrorists are. We may not know which ones did this… Well, what you do, what you do is strike at them militarily. I know this is going to sound awful, but my point is there’s only one way to begin to deal with people like this is you have to kill some of them, even if they’re not immediately, directly involved in this thing…

    @JThomason: Rabbit hole, yes. …AUMF and Patriot Act and…

  12. JThomason says:

    @thatvisionthing: And?

    Anti-protest legislation passed in March 2012 “allows the government to bring charges against Americans involved in many kinds of political protest at any location the secret service, quote, “is or will be temporarily visiting.”

    The Secret Service is really big on letting the public know where they are going to be? Maybe not. Another opportunity to be arrested without notice of the conditions creating the crime.

    http://www.huffingtonpost.com/lee-camp/anti-occupy-law-passes-nea_b_1343728.html

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