The Trump Administration has a plan to infringe on Americans’ right to bear drones.

It has submitted language carving out an exception in surveillance and hacking laws such that it can track and destroy drones. The idea is a government agent (military or civilian) will be able to track and destroy any drone over a covered facility or operation, with no legal recourse for the owner of the drone.

Covered facilities are basically any stationary structure an agency wants to designate. The legislative language describes the following as covered operations:

(A) any operation that is conducted in the United States by a member of the Armed Forces or a Federal officer, employee, agent, or contractor, that is important to public safety, law enforcement, or national or homeland security, and is designated by the head of a department or agency, consistent with the Federal Government-wide policy issued pursuant to subsection (d); and

(B) may include, but is not limited to, search and rescue operations; medical evacuations; wildland firefighting; patrol and detection monitoring of the United States border; a National Security Special Event or Special Event Assessment Ratings event; a fugitive apprehension operation or law enforcement investigation; a prisoner detention, correctional, or related operation; securing an authorized vessel, whether moored or underway; authorized protection of a person; transportation of special nuclear materials; or a security, emergency response, or military training, testing, or operation.

At one level, I’m sympathetic to the need. There have definitely been cases where drones have disrupted the work of firefighters and drones flying over sporting events (which might be classified as a National Security Special Event) certainly could pose a terrorist threat. And while I’m not aware of any public descriptions of drones being used to spy on military facilities or training, its inclusion here suggests it has happened (which also might explain the seeming urgency). Also, given the emphasis in the language on detecting drones, it’s clear that there are drones going unnoticed that are surveilling facilities and operations.

Still, there are a whole bunch of activities in this list that also rightly deserve oversight, at least from the press. And this language would give the Federal government the ability to blow any press drone out of the air with impunity.

So while I recognize the need to limit drone overflights of certain kinds of activities, this also seems like the completely wrong way to go about infringing on citizens’ right to bear drones. At the very least, the language should include some kind of requirement for notice and appeal, such that the government can’t just arbitrarily decide that it should be immune from the surveillance (literally, “over-sight”) of citizens.

History shows again and again
How nature points out the folly of men.

Yeah, truer words never spoken. Even if in relation to Godzilla. And you can apply that to the relentlessly ballyhooed “autonomous driving automobiles”.

Seriously, this stuff is Henny Youngman type of slapsick comedy. It ain’t happening.

Okay, I am cribbing from Atrios, but dammit, what the hell do you think us conspiracy propagators are supposed to do??

I’m just saying these cars won’t ever (in our lifetimes – sure, eventually the singularity might arrive) really work as hyped and certainly don’t deserve all of the press they’re getting. I also don’t think that even if they did work they’d be a big improvement for all (some) of the reasons people think they will be, but those are more debatable issues which I rarely bother to debate because the fact is the things aren’t going to work. Okay, I’ll define “work.” Basically, you have to be able to tune out 100% over 90% of the time. I’ll even allow for a “last mile” kind of “time for you to drive” thing as long as the rest of the time you can kick back and read your book or whatever. Because if you have to pay attention but usually not doing anything, what’s the point? It’s just better cruise control. A neat feature for some, but nothing more than that.

Ya. I am sure that all of you out there driving their Tesla 3’s will squawk [oh, wait, they are not out yet!]. As I am sure all of you on the waiting list for Tesla 3’s [good luck with that!] that is already years behind technical and production capability at Tesla are oh so defensive of the giant Elon Musk dream. Surely the dream will catch up to reality, it must!

Also, the supertrains between Los Angeles and San Francisco (okay, forget the “cheaper” stuff, that was a joke!) and between New York and Washington DC are totally gonna be ready to roll after New Year’s Eve.

When the candidates talk about their totally awesome “infrastructure and jobs” proposals, maybe ask what the hell they are talking about. Because it is probably bullshit. Hold them to it.

Over at The New Republic, I’ve got a more formal piece on the weird hybrid document that serves as Obama’s Drone Rule Book. In addition to some formal observations I made in this working thread, it has these descriptions from both “an administration official” and from Secrecy News’ Steven Aftergood, which I found particularly interesting.

Start with the fact that a “Presidential Policy Guidance” is a previously unknown type of presidential order. Indeed, an administration official confirms it is still the only document of its type. “We have not issued any other PPGs,” the official told me. Obama’s normal practice when issuing national security orders has been to release “Presidential Policy Directives,” a set of numbered directives that occasionally get released publicly. The word “Guidance” would suggest this is a weaker kind of order than a “Directive.”

The PPG does mandate some actions, requiring that agencies “shall” develop certain assessments and so on. But in other instances, the PPG appears designed to give agencies leeway. It states that agencies “may develop a detailed operational plan” to govern their direct action. It says a top White House aide could make final decisions about who will attend an interagency meeting to approve the kill list.

Without offering an explanation for the difference between a PPG and a PPD, the same White House official nevertheless dismissed concerns about the discrepancy. “The PPG carries the same requirement of compliance, as it’s presidential guidance,” the official explained.

Nevertheless, as Steven Aftergood of the Federation of American Scientists Project on Government Secrecy points out, this document lacks some of the formal features you would expect from a presidential order: “As released, the Guidance is neither addressed to anyone in particular, nor signed by anyone.” Unlike PPDs, the Guidance as released to the ACLU was not printed on White House stationery (compare the PPG with this closely related PPD on the military or civilian custody of terror detainees in U.S. custody). Aftergood also noted, “It refers to the president in the third person, as if he is also subject to its requirements (‘The President will adjudicate any disagreement among or between Principals’) rather than its author.”

The administration official dismissed questions about the document’s authority and its lasting value. “The document has not changed since it was completed in 2013. The redacted document that was released last week remains the operative guidance,” the official said.

Click through to read the rest.

What ever happened to the inclusions of headers and footers in documents? It used to be, documents would ID what document you were reading on every page, which is really useful if one page walks or gets replaced with a new one. Now even life-and-death documents like the Drone Rule Book liberated by the ACLU lack real headers.

This will be a working thread on that.

(0) Seriously, there’s something funky about the production of this document. Perhaps it’s a reprint of the actual drone rule book with interesting stuff removed. But it’s not even clear the classification description on the front page (to include an original classification authority, a reason for classification, and a date for declassification) is complete. Nor are specific redactions cited by exemption. Given that drones were part of the 2001 Finding which was itself classified by NSC, not CIA, that raises interesting questions about how long they maintained that claim.

Also note the green line on the first page, which seems to suggest some digital alteration, either at the White House or ACLU. For a variety of reasons, I also wonder whether this has been updated, with no record, which the informal structure of it would seem to invite.

(1) It’s really crazy for a POTUS to be setting what claim to be “procedures,” as opposed to policy. These are mostly policies. But tied to implementing bureaucratic tools. I’ll write later how this hybrid purpose makes the PPG far less valuable than it pretends to be.

(1) Note the applicability: “for when the United Staes takes direct action, which refers to lethal and non-lethal uses of force, including capture operations, against terrorist targets outside the United States.” Obviously, that’s not what this covers. There are a slew of examples where “the US” takes direct action outside the US. Implicitly, this is about amending or replacing the 9/17/01 Finding (and given the timing, and the declassification of the Finding’s role in torture, it could be the latter). But this does raise questions about whether there’s an underlying (perhaps modified) Finding that undergirds this.

(1) They redact the kind of plan they use to make sure it can’t be FOIAed. I bet there are numerous drone strikes that didn’t have them; remember, at about this process, CIA didn’t play by same rules as DOD.

(1) “based on the legal authorities of the nominating department” Interesting relation with covert authorities.

(1) The capture feasibility assessment seems targeted to Congress. I wonder how broadly this was circulated there.

(1) Note the PPG just assumes everyone knows this is about HVTs without saying so. But the PPG as a whole distinguishes between targeting HVTs and others, with incidental death being envisioned in the latter case (see footnote 1 on 2).

(2) First redaction must relate to the “unable or willing to act” formula; that it is redacted suggests it has nothing to do with established intl law (later incidences of it are unredacted use of the unable willing formula).

(2) second redaction may be a caveat about the circumstances in which expert agencies (such as State) get to review.

(2) “when considering potential direct action against a U.S. person under this PPG, there are additional questions that must be answered.” That’s rather weak.

(2) The named plan is 3 words long.

(2) Note the redaction modifying what kind of “direct action operations” this covers. That may be the same redaction as the last one on the page.

(3) Redaction in bullet 3 is interesting.

(3) Does bullet 5 reference foreign partners?

(3) Bullet 7 permits variations from this PPG, which essentially eats up the rule book.

(3) Note that the 3 assessments required before using lethal force all make up subbullets to bullet 8. That implies a logical structure whereby the decision making process happens after the fact.

(4) 1F treats identity here as primarily relating to HVTs.

(5) 1H2 suggests the President may impose her own conditions on such approval. This is a crazy level of involvement from the President, not necessarily all in a good way.

(5) Footnote 1 seems to permit us getting exclusive shot at a detainee before we dump them onto foreign governments.

(5) Footnote 2 seems to give NSS a way to veto DOJ indictment. (Which is of particular interest with Awlaki.)

(6) Note the acknowledgement that the US “provides training, funds, or equipment to enable a foreign government to capture a suspect,” which does not count as us doing so.

(6) Note the nominating agency seems to get to suggest what to do with the detainee long term. That seems problematic.

(7) The redaction of things that must be included in a baseball card doesn’t say much for the due process involved. Note the emphasis, too, on gaps in intelligence/differences in opinion. But DOD or CIA gets to pull this together.

(8) No discussion of difference between Interagency Disposition Planning Group and Restricted Counterterrorism Security Group (though the latter appears to be the analysts and the former appears to be the policy people). If the same people are on both it would have a garbage in garbage out effect.

(9) I’m guessing bullet 2 pertains to foreign partner custody. That’s important because bullet 4 presumes certain things might happen in detention, like torture, that would make prosecution impossible.

(9) A lot implied by that “if appropriate” language on whether the operational plan can be shared with the Deputies Review.

(9) Note the DNSA determines who will be present at a Deputies Committee review. It’d be easy to leave, say, State out.

(10) Note that they consider whether detaining someone would interfere with sources or methods. Not surprising but the implications of that are worth nothing.

(10) The reference to humane treatment in bullet 6 is likely to relate to redacted passages earlier (and must have been introduced in a redacted passage).

(10) Foreign detention should be explored based on NatSec considerations. No mention here of humane treatment.

(10) Interesting Q why the decision to strike in defiance of Principals Committee guidance goes through DNSA, not NSA. If a Brennan or Monaco presents that decision, it’ll lack the larger picture that an NSA might bring.

(11) Only those people present at DC meeting will learn that POTUS has approved a strike over their guidance.

(11) I will probably return to 3A but I think it is a muddle that totally turns this document inside out.

(11) 3b is written in an odd voice: “lethal action requires” rather than “before taking lethal action.” Also note this comes from within the capture process.

(11) The decision to off someone has to formally come from the GC of the agency that will do the business. Interesting how this might result in two, potentially competing lists.

(11) FN 8: This language seems to provide a time where the DC would reassess feasibility for capture, on expedited process. But the way in which this “procedure” works largely ensures it can be sidestepped.

(12) Here’s how the list of considerations for a capture versus a kill operation look, in completely redacted form.

Given the significant differences in redaction, there doesn’t appear to be much overlap beyond the initial bullet.

(12) It is really bizarre to have to specify that NSS forwards the package to the DC, as if in the past the wrong package got forwarded.

(13) What does this mean: “In all events, the NSS Legal Adviser and the General Counsel of the nominating agency shall consult with DOJ”? Given that they try to avoid paper trails, what does this entail? And when reviewing a USP nomination, there are no requirements about what the DOJ review must include (which might be another bulleted list like the one above if this document weren’t a joke).

(13) Here’s how the Deputies Committee meetings for a capture versus a kill decision differ.

The redacted agency(ies) present at capture but observant at kill may be involved in detention and/or (FBI) prosecution. If so, that means FBI would only get observant status if the IC had decided to kill someone.

(14) Here’s what the DC considers for a capture versus a kill decision.

While both consider intelligence implications (sort of) the unredacted section doesn’t consider how a kill decision will affect CT strategy outside of broader regional interests (that it is phrased in that way is particularly interesting given the prominence of side payment strikes in Pakistan).

(14) This seems to permit bypassing the DC altogether.

The Principal of the nominating agency may approve lethal action against the proposed individual if: ( I) the relevant Principals unanimously agree that lethal action should be taken against the proposed individual. and (2) the Principal of the nominating agency has notified the President through a DNSA of his intention to approve lethal action and has received notice from a DNSA that the President has been apprised of that intention. The Principal of the nominating agency may not delegate his authority to approve a nomination.

Note, they don’t even need to get approval from the President to kill someone–she need only be apprised of it. (I’m mindful that this rule book was largely written, though not finalized, by John Brennan). I half wonder whether consideration #6 involves a need to remove him from this earth for secrecy reasons.

(14) Note, the annual review does not explicitly review whether the person still remains a threat.

(15) The redaction describing lethal force here seems longer than the one describing HVT lethal force, though it’s possible this section describes first targeting on patterns and then on infrastructure.

(15) The thing that will be missed in a “fleeting opportunity” attack is contrary intelligence and downsides, yet nevertheless claims to abide by the same “near certainty” criteria.

(16) The “appropriate NSS official shall communicate the President’s decision” would seem to invite that person bypassing the President altogether (as it did with Brennan in fact).

(17) The PPG specifically permits the President to authorize drone strikes because a person presents a threat to other country’s persons. I look forward to legal analysis of this attenuated imminence standard (especially since the government has most jealously guarded its OLC memos on agreements with countries in question).

(17) Since the after action report must be submitted after 48 hours, it can’t consider larger questions, such as whether it helped or hurt overall CT strategy.

(18) This would seem to permit the agency of any principal/deputy to review after action reports.

(18) Only “appropriate” members of Congress get notified, and this doesn’t even list them. This section would appear to permit briefing the Gang of Four before an operation (for secrecy reasons) but then only informing the Gang of Four afterwards, when secrecy concerns were no longer as urgent. In addition, agencies have to get the NSS to approve sharing with Congress, and only applies it to those “required to submit congressional notifications,” which may create some loopholes.

(18) The redaction at 8B is pretty interesting.

(18) As noted above: the reporting requirements of the PPG don’t invite reporting on larger strategic issues on lethal killing, making the review under 8C pretty useless as well.

Eli Lake reports that John Brennan wants to stay on as CIA Director under President Hillary. That’s not surprising given that Brennan believes (as Lake notes) CIA Directors should get 10 year terms just like FBI Directors do.

I thought maybe Brennan wanted to stick around to make sure he gets credit for bettering Allen Dulles’ record for regime change (after all, it’s not clear how the regime change conducted while Brennan was at the White House gets counted in these things).

Apparently not. After laying out what he portrays as opposition from both the left and right (not that that stopped Brennan from being confirmed in 2013), Lake describes that Brennan might stay because he’s the architect of the drone war.

Brennan does have the benefit of understanding the intricacies of the U.S. drone war that expanded significantly under Obama. Indeed, he is one of the main authors of that policy, going back to his time at the White House during Obama’s first term.

There was a time when Obama endeavored to end that war by the time he left office. It’s now clear that Obama’s successor will inherit it. Brennan is hoping that if that successor is Clinton, she will also inherit the architect of the drone war that he and Obama can’t seem to end.

This, at a time when the Senate Intelligence Committee and Armed Services Committee still squabble over who should drive the drone war.

Lake describes Mike Morell’s case (someone Dianne Feinstein has lobbied against in the past) this way:

Morell in particular has been helpful to Clinton. In his memoir and in congressional testimony, he blamed the CIA and the White House for the talking points on the 2012 Benghazi attack that attributed an act of terror to a demonstration over an internet video. Clinton, of course, was secretary of state at the time, and Republicans have leveled most of their criticism of Benghazi at her.

Lake pretends that the stated role in Benghazi and unstated opposition from Feinstein based off Morell’s comments about the torture report wouldn’t sink his candidacy. Maybe that wouldn’t?

Which leaves Mike Vickers, about whom Lake only mentions Vickers’ history as “former CIA officer and undersecretary of defense for intelligence.” Thankfully, Vickers has made his own case, in a recent endorsement of Hillary. After Vickers recalls his own bipartisan history (largely running covert ops), he raises Hillary’s favorite alleged proof of her national security chops, when she advised Obama to launch the Osama bin Laden raid.

As a Green Beret, CIA operations officer and senior national security official, I have served under six presidents—four Republicans and two Democrats. The last was Barack Obama, and for four years in the White House Situation Room, I saw Secretary of State Hillary Clinton’s sound strategic judgment first-hand—on the Afghanistan surge, the campaign to dismantle and defeat core al Qaeda in Pakistan’s tribal region, the raid to kill Osama bin Laden, and on lethal support for the moderate Syrian opposition. Secretary Clinton has the temperament, national security experience and strategic judgment to be an outstanding commander in chief. Donald Trump does not. I’m with her.

Vickers then ends his “endorsement” by confidently asserting we need to be more hawkish than we currently are.

To be sure, we will need more aggressive counterterrorism strategies, stronger support for the Syrian opposition as the only plausible counterweight to authoritarianism and extremism within Syria, more effective counters to Iranian and Russian expansion, and better strategies for deterring and competing with China over the long term. But just as we needed an experienced and steady hand to guide us safely through the early years of the Cold War, we need an experienced and steady hand to guide us through the current challenges to American leadership and world order. Only one candidate in this presidential race can supply that.

There you have the race to be CIA Director under Hillary (at least as viewed through a Neocon lens): the current drone architect, Mr. Benghazi, or the guy whose enthusiasm for covert ops matches Hillary’s own.

Dianne Feinstein is out with a statement applauding that I Con the Record has released drone kill numbers that — she suggests — proves the spooks know something we don’t and that the number of civilian casualties hasn’t been that high.

“I want to commend the administration for taking this important step toward transparency by releasing information on the number of civilian deaths as a result of U.S. drone strikes. I believe more can be done, but this release of data is a good start.

“I’ve been calling on the administration to release drone strike data for years. Varying numbers have been tallied by outside organizations but as today’s report makes clear, the government has access to unique information to help determine the number of civilian deaths. The American people should be able to weigh the necessity of counterterrorism programs with as much information as possible.

“I do believe that great care is taken to avoid noncombatant casualties during drone strike operations. Since 2009, the Senate Intelligence Committee has devoted significant time and attention to targeted strikes by drones, with a specific focus on civilian casualties.

“While a single civilian death is one too many, I believe this program is more precise than many alternatives such as strikes with cruise missiles, where far more civilians would be at risk.”

A fair response to Feinstein, I think, is to point to this piece from the Human Rights Watch researcher who tallied their count of civilian deaths in Yemen. As she notes, counting just the cases she has investigated on the ground would say there were only 7 other civilian casualties later in Yemen and in other theaters.

The US strikes on Al-Majalah in December 2009 killed 14 fighters with Al-Qaeda in the Arabian Peninsula—but they also killed 41 Bedouin civilians, more than two-thirds of them women and children, according to a Yemeni government probe. In an investigation for Human Rights Watch, I tallied the same toll. Yet the US government has never publicly acknowledged the Al-Majalah killings. Instead, two classified diplomatic cables released by Wikileaks revealed, the Obama administration made a concerted effort to conceal its role in the attack.

The White House release on July 1 of casualty figures for airstrikes outside conventional war zones since 2009 should have shed light on how many civilians were killed in attacks such as the one in Al-Majalah. Instead, its data dump, at the start of a holiday weekend, continues President Barack Obama’s obfuscation of its lethal strike program against armed groups such as Islamic State and Al-Qaeda. Even if the government’s definition of a “combatant” were fully consistent with international law, which only applies to armed conflict situations, the release raises more questions than it answers.

[snip]

Did the US kill only 7 civilians in 466 strikes? In 2012-13, I led Human Rights Watch investigations into seven of the US counterterrorism strikes in Yemen from 2009 to 2013 that were alleged to have killed civilians. We visited strike sites when possible, examined the remnants of ordnance, and interviewed a range of witnesses, relatives, tribal leaders and Yemeni officials—corroborating our findings in ways that the DNI cannot simply dismiss. We found that at least 57 of those killed were civilians, along with possibly 14 others, 12 of them in a strike on a wedding convoy. Subtracting our numbers from the DNI’s minimum estimates leaves only seven civilian deaths in the 466 strikes that we did not investigate. That would be a remarkably low toll. But based on the obscure data the Obama administration revealed last week, we cannot know if it is accurate.

As you’ve no doubt heard, sniper(s) attacked the police protecting a Black Lives Matter protest in Dallas last night, killing 5 cops. Dallas Police have released the name of one perpetrator, who was killed by police: Micah Johnson. Johnson was apparently an Army veteran; he was what experts deemed “tactically professional” based on review of the attack.

The entire attack was a tragic escalation of racial tensions in this country.

In a press conference today, Dallas Police Chief David Brown revealed this about the stand-off with Johnson:

Let me walk through the stand-off that had occurred–or was occurring–at El Centro on the second floor. The college there in downtown Dallas. We cornered one suspect and we tried to negotiate for several hours. Negotiations broke down. We had an exchange of gunfire with the suspect. We saw no other option but to use our bomb robot and place a device on its extension for it to detonate where the suspect was. Other options would have exposed our officers to grave danger. The suspect is deceased as a result of detonating the bomb. The reporting that the suspect killed himself is not accurate. We’ve confirmed that he’s been deceased because of the detonation of the bomb.

This is the first known killing by a weaponized drone as part of policing in the United States.

The use of the bomb robot in this operation raises several tactical questions. It is possible — though unlikely — that the weaponized drone was present for negotiations, which would raise interesting questions about those discussions (three other people are in custody and they are not cooperating; Johnson claimed, apparently falsely, that he operated alone).

I’m more interested in the tactical question of delivering a lethal bomb rather than something that might have demobilized him — perhaps tear gas?– and permitted police to take him alive.

Those questions about the tactical use of this robot will be answered as the police release more details.

There is, of course, the larger question of what kind of precedent this serves. I’ve long been on the record arguing that a targeted killing in the US would look more like the killing of Luqman Abdullah or Fred Hampton. But the use of a wheeled robot changes that possibility.

Remember, the logic of the Anwar al-Awlaki memos depend on two things: law enforcement precedents authorizing the use of force when officers — or innocent bystanders — lives are at risk.

Even in domestic law enforcement operations, the Court has noted that “[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.” Garner, 471 U.S. at II. Thus, “if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of ~erious physical harm, deadly force may be used if necessary to prevent escape and if. where feasible, some warning has been given.” ld. at 11-12.

Given the attacks on other officers and the exchange of gunfire before using the robot, DPD will easily reach the bar of imminent threat (even though they might have been able to use non-lethal means).

The other thing included in the Awlaki memos (though in unredacted form, in Harold Koh’s comments rather than the OLC memos) is language finding that the use of drones don’t make a legal difference in use of force calculations.

Second, some have challenged the very use of advanced weapons systems, such as unmanned aerial vehicles, for lethal operations. But the rules that govern targeting do not turn on the type of weapon system used, and there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict– such as pilotless aircraft or so-called smart bombs– so long as they are employed in conformity with applicable laws of war. Indeed, using such advanced technologies can ensure both that the best intelligence is available for planning operations, and that civilian casualties are minimized in carrying out such operations.

In other words, there’s little reason to believe this use of force will be legally questionable, at all. Which means there’s little question that it might be used a precedent by other police departments. (And let it be noted that Dallas is considered a far better run police department on such issues than other big cities, much less other less professional offices.) And given the way the Executive has already blurred the line between police usage and intelligence usage, we might expect the same to happen in the future.

There may have been other options available here (and note, in the press conference the mayor thanked the FBI, so it’s not clear whether DPD made this decision on their own), but this will be deemed reasonable.

Which doesn’t mean other, unreasonable uses of this precedent aren’t coming down the pike.

Update: Dallas police have now said that they think Johnson was the only shooter. I’m not sure whether that means the other three suspects were not accomplices at all or helped in some way that did not involve shooting.

Still, consider that Johnson’s military experience was as a mason, not any kind of highly skipped soldier. He managed to do a great deal of damage working off his reserve training.

You probably heard that Jim Comey testified to the House Oversight Committee for over four hours today. You’ll see far less coverage of the second panel in that hearing, the testimony of Inspector Generals Steve Linick (from State) and Charles McCullough (from the IC).

In addition to OGR Chair Jason Chaffetz suggesting the committee convene a secrecy committee akin to the one Senator Daniel Patrick Moynihan convened back in the 1990s (which would be very exciting), McCullough revealed something rather startling regarding a letter he sent to Congress back in January (this was first reported by Fox). The letter was his official notice to Congress that some of the information in Hillary’s emails was claimed by an agency he didn’t name to be Special Access.

To date, I have received two sworn declarations from one IC element. These declarations cover several dozen emails containing classified information determined by the IC element to be at the CONFIDENTIAL, SECRET, and TOP SECRET/SAP levels. According to the declarant, these documents contain information derived from classified IC element sources. Due to the presence of TOP SECRET/SAP information, I provided these declarations under separate cover to the Intelligence oversight committees and the Senate and House leadership.

By sending the email, McCullough made the SAP information very public, without providing information about whether the claim was very credible.

Shortly after the Fox report, Politico reported that the emails pertained to CIA drone strikes and related fallout in Pakistan.

However, the emails now deemed to contain “top secret, special access program” information are in addition to the messages previously disputed between State and the Director of National Intelligence, according to a spokesperson for McCullough. The official said the intelligence community review group is wrapping up its look into the documents and is putting these documents in the SAP category.

The Central Intelligence Agency is the agency that provided the declarations about the classified programs, another U.S. official familiar with the situation told POLITICO Wednesday.

The official, who spoke on condition of anonymity, said some or all of the emails deemed to implicate “special access programs” related to U.S. drone strikes. Those who sent the emails were not involved in directing or approving the strikes, but responded to the fallout from them, the official said.

The information in the emails “was not obtained through a classified product, but is considered ‘per se’ classified” because it pertains to drones, the official added. The U.S. treats drone operations conducted by the CIA as classified, even though in a 2012 internet chat Presidential Barack Obama acknowledged U.S.-directed drone strikes in Pakistan.

WSJ reported last month that what are presumably the same emails included discussions among State Department officials about upcoming drone strikes.

The vaguely worded messages didn’t mention the “CIA,” “drones” or details about the militant targets, officials said.

The still-secret emails are a key part of the FBI investigation that has long dogged Mrs. Clinton’s campaign, these officials said.

They were written within the often-narrow time frame in which State Department officials had to decide whether or not to object to drone strikes before the CIA pulled the trigger, the officials said.

Law-enforcement and intelligence officials said State Department deliberations about the covert CIA drone program should have been conducted over a more secure government computer system designed to handle classified information.

State Department officials told FBI investigators they communicated via the less-secure system on a few instances, according to congressional and law-enforcement officials. It happened when decisions about imminent strikes had to be relayed fast and the U.S. diplomats in Pakistan or Washington didn’t have ready access to a more-secure system, either because it was night or they were traveling.

In other words, there has been a great deal of reporting on what are almost surely the emails in question, revealing that the key dispute pertains to an issue that CIA likes to pretend we don’t all know about, drone strikes in Pakistan.

In today’s hearing, McCullough reported that these emails — in addition to being a Special Access Program — are also classified Originator Controlled, ORCON, and the CIA (which he still didn’t name) has been refusing to distribute the emails or the statement beyond the original dissemination, the Intel committees and congressional leadership. So, in spite of the fact that numerous members of Congress have asked for more information (including, in today’s hearing, Chaffetz), they’ve been denied it. McCullough explained he had had to get his own staffers read into this, and he has gone back to the CIA (again, which he didn’t name) several times, only to have them refuse further distribution.

It may well be that the actual language used in the most sensitive emails revealed highly classified information — or it may be, as the WSJ reported, that State aides used a kind of code hiding the jist of their conversations.

Or it may be that State discussed a particularly controversial drone strike, such as the time CIA launched a drone strike right after Ray Davis was freed from Pakistani custody, which Jim White wrote about in a longer post suggesting CIA used drone strikes to retaliate against Pakistani action we don’t like.

Drone strikes in Pakistan by the US have occasionally been interrupted by various diplomatic issues. For example, there was a lull of over a month at the height of negotiations over the release of Raymond Davis. One of the most notorious US drone strikes was on March 17, 2011, the day after Raymond Davis was released. This signature strike killed over 40, and despite US claims (was that you, John Brennan?), that those killed “weren’t gathering for a bake sale” it was later determined that the majority of those killed were indeed civilians at a jirga to discuss local mineral rights. Because it was so poorly targeted, this strike always stood out in my mind as the product of an attitude where high-level US personnel demanded a target, no matter how poorly developed, simply to have something to hit since drone strikes had been on hold over the Davis negotiations and there was a need to teach Pakistan a lesson.

One way or another, though, these are topics that Congress (especially the Foreign Affairs Committees, which almost certainly have been denied these details) should be able to review.

But CIA is — as is their wont — playing classification games to ensure that a broader cross-section of Congress can’t assess how egregious this particular classification violation was.

Which, given CIA’s history, tends to mean either it wasn’t — or CIA has something to hide.

ODNI (update–and now I Con the Record) has released its report on the number of drone deaths. The overview is that the US intelligence community is reporting (more on that in a second) far, far fewer drone deaths than credible outside researchers do. (TBIJ, New American, Long War Journal)

The IC numbers are for strikes occurring outside areas of active hostilities, which currently includes Afghanistan, Iraq, and Syria, but might have — the report doesn’t say one way or another — included other places, like Pakistani tribal lands, when these drone strikes happened.

The report acknowledges that this number differs dramatically from these of outside researchers, though it doesn’t include a footnote to permit those who don’t already know the players to compare, which betrays a real lack of confidence in its own analysis. A footnote would also permit readers to see the degree to which NGOs have done granular analysis, as compared to ODNI’s 3 line table.

Plus, it doesn’t acknowledge this discrepancy until after it suggests these other numbers — which I believe are actually more consistent with each other than the IC’s numbers are with them — come from terrorist propaganda, a claim it repeats a second time before the end of the 3-page report.

The large volume of pre- and post-strike data available to the U.S. Government can enable analysts to distinguish combatants from non-combatants, conduct detailed battle damage assessments, and separate reliable reporting from terrorist propaganda or from media reports that may be based on inaccurate information.

In releasing these figures, the U.S. Government acknowledges that there are differences between U.S. Government assessments and reporting from non-governmental organizations. Reports from non-governmental organizations can include both aggregate data regarding non-combatant deaths as well as case studies addressing particular strikes, and generally rely on a combination of media reporting and, in some instances, field research conducted in areas of reported strikes. Although these organizations’ reports of non-combatant deaths resulting from U.S strikes against terrorist targets outside areas of active hostilities vary widely, such reporting generally estimates significantly higher figures for non-combatant deaths than is indicated by U.S. Government information. For instance, for the period between January 20, 2009 and December 31, 2015, non-governmental organizations’ estimates range from more than 200 to slightly more than 900 possible non-combatant deaths outside areas of active hostilities.

[snip]

Finally, non-governmental organizations’ reports of counterterrorism strikes attributed to the U.S. Government—particularly their identification of non-combatant deaths—may be further complicated by the deliberate spread of misinformation by some actors, including terrorist organizations, in local media reports on which some non-governmental estimates rely.

The IC report also suggests that it derives such a low civilian casualty figure by defining belligerent broadly, to include people like drivers and cooks — but don’t you worry, that doesn’t mean that every single military aged male counts as a belligerent (I will check but I suspect the IC’s numbers likely could not be so low without counting some women as belligerents, which might happen if they do things like cook).

Non-combatants are individuals who may not be made the object of attack under applicable international law. The term “non-combatant” does not include an individual who is part of a belligerent party to an armed conflict, an individual who is taking a direct part in hostilities, or an individual who is targetable in the exercise of U.S. national self-defense. Males of military age may be non-combatants; it is not the case that all military-aged males in the vicinity of a target are deemed to be combatants.

[snip]

The U.S. Government draws on all available information (including sensitive intelligence) to determine whether an individual is part of a belligerent party fighting against the United States in an armed conflict; taking a direct part in hostilities against the United States; or otherwise targetable in the exercise of national self-defense. Thus, the U.S. Government may have reliable information that certain individuals are combatants, but are being counted as non-combatants by nongovernmental organizations. For example, further analysis of an individual’s possible membership in an organized armed group may include, among other things: the extent to which an individual performs functions for the benefit of the group that are analogous to those traditionally performed by members of a country’s armed forces; whether that person is carrying out or giving orders to others within the group; or whether that person has undertaken certain acts that reliably connote meaningful integration into the group.

The ACLU is due to get more documents from the precipitating FOIA that may explain better how broadly the government has defined belligerent (remember–these strikes are all in areas outside of active hostilities).

Perhaps the most interesting part of the report is this repeated language:

a summary of information provided to the DNI

The assessed range of non-combatant deaths provided to the DNI

The information that was provided to the DNI

based on the information provided to the DNI

according to information provided to the DNI

That is, the ODNI may be releasing this information. But they’re sure as hell not vouching for it. I find that particularly interesting given that, in May, I had to explain to ODNI that the National Security Letter numbers they were getting (and publishing in transparency reports) from FBI were probably unreliable.

These numbers don’t even, apparently, reflect the kind of rigor that would involve an outside agency reviewing the CIA’s numbers. Instead, the CIA (and presumably, in more limited cases, DOD) provided numbers to ODNI, and ODNI is — as ordered by the President — passing those numbers on.

At least you can be sure this isn’t terrorist propaganda.

Update: Micah Zenko gets at what I find to be the most striking aspect of this: the disparity between the number of strikes. Averaging the 3 main trackers, Zenko figures there were 578 strikes, as compared to the claimed ODNI number of 473. This is a huge discrepancy (the government only counts 82% of what the NGOs collectively count as strikes).

Such a big discrepancy may come from various places, two obvious ones being strikes considered to be in areas of active hostilities (say, the Pakistani border) not being counted in the ODNI tally, or strikes conducted by the home country (chiefly, Pakistan or Yemen, but I’d include Saudi Arabia in there). Given how low the civilian casualties are, then, it’s possible ODNI is counting as domestic the most lethal strikes.

How much more ironic could it be? More than 43 years after the last Americans evacuated Vietnam, ending our disastrous occupation there, the dateline reads Hanoi on President Barack Obama’s statement today on the US drone strike that killed Mullah Akhtar Muhammad Mansour. Mansour was the head of Afghanistan’s Taliban but was in Pakistan at the time the US killed him with a drone, striking a similarity to the US “secret” bombing of Cambodia during the Vietnam war.

From today’s New York Times, we have parts of Obama’s statement:

Calling the death “an important milestone,” President Obama said in a statement, released just as he was meeting with top officials in Vietnam, that the United States had “removed the leader of an organization that has continued to plot against and unleash attacks on American and coalition forces.”

“Mansour rejected efforts by the Afghan government to seriously engage in peace talks and end the violence that has taken the lives of countless innocent Afghan men, women and children,” Mr. Obama continued in the statement. “The Taliban should seize the opportunity to pursue the only real path for ending this long conflict — joining the Afghan government in a reconciliation process that leads to lasting peace and stability.”

So Obama is saying that the Taliban should respond to our extrajudicial killing of their leader by reconciling with the Afghan government (chosen in large part by John Kerry) and working toward peace. What are the odds of that happening? Max Abrahms has some very important points to make on that topic:

Dr Max Abrahms, from Northeastern University in Boston, said the US Government does not look carefully enough at the strategic implications of its strikes on extremist leaders.

He said he had done a number of studies on leadership decapitation of a militant group and he had not found a statistically significant reduction in the amount of violence perpetrated by the group after a leader was removed.

“In fact these decapitation strikes can actually be counter-productive, because one of the assumptions of the targeted killing campaigns is that the replacement of the leader that you killed will be more moderate,” Dr Abrahms said.

“And yet I find just the opposite to be true. The replacement is even more extreme.

“So for that reason, in the immediate aftermath of a successful targeted killing, like over this weekend, the group’s violence tends to become even more extreme, in the sense that it’s even more likely to attack civilian targets.”

And so our circle of irony is complete. Obama’s statement on the killing of Mansour, released from Vietnam, shows that US military misadventures still rely on faulty logic when major moves are made. A strike made to make the Taliban more peaceful seems virtually certain to result in more indiscriminate killing of civilians.

Because I know how much Marcy enjoys miraculous “left behind” documents, I couldn’t resist following up on a Twitter reference I saw flit by yesterday about how a passport for Mansour somehow survived the conflagration in the taxi in which Mansour met his death by drone. By following it, though, I found even more deep irony in the drone strike. This article by ToloNews carries a photograph of a pristine-looking passport. Compare that with the photo in the New York Times article linked above with the burned out wreckage of the vehicle Mansour was said to have been in when hit. How could the passport have survived?

But wait, there’s more! ToloNews tells us that the passport has Mansour’s name and carries a valid Iranian visa. Furthermore:

Meanwhile, a number of analysts said the Taliban in recent months tried to extend relationships with Iran and Russia to fight Daesh and that there is a possibility that Mansour traveled to Iran to escape ISI and talk with Iranian officials.

“Iran is afraid of Daesh presence in Afghanistan, because Daesh is an enemy to Iranian clerics; therefore, Iran wants to eliminate Daesh with the help of the Taliban. Previously, Taliban had strong affiliation to Saudi Arabia, but now there is a rift between Iran and Saudi Arabia and Iran wants to expand its influence on the group [Taliban],” political analyst Shafiq Hamdam said.

So while Mansour and his group have continued to reject peace talks with the Afghan government, at least some observers believe that he was in the process of trying to join the fight against Islamic State. And it may well be that he died because of that effort. Here’s a map of the region, showing that the site of the drone attack, Ahmad Wal, lies about 100 miles away from Quetta (where the Afghan Taliban has long been believed to be headquartered) along the highway that is the most direct route to Iran from Quetta.