Drones

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Yes, the Drone Rule Book Is a One-Off

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.

The Classified Appendix Fifth Bullet on “Certain Counterterrorism Matters”

I want to make a really minor point about one of the documents produced to ACLU with the Drone Rule Book — which the White House calls a Presidential Policy Guidance — last week (here’s my working thread on the Rule Book). The Rule Book itself has a section that “requires” Congressional notification (but may be more important for the requirement that the White House must learn about information sharing before it happens, which might end up in less notification).

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As part of its implementation of the Rule Book, DOD released a Report on Congressional Notification of Sensitive Military Operations and Counterterrorism Operational Briefings (DOD released several related documents; CIA released nothing). Throughout the short document, it says the 2014 Defense Authorization (which was introduced after the Rule Book was signed but before DOD issued its Drone Rule Book implementation procedures and signed into law on December 23, 2013) and the PPG require Congress be informed of sensitive military operations. That’s the Executive Branch’s way of saying, “Congress has required we tell it what we’re doing but so has the President” as if they came up with the idea to do that additional reporting in the first place.

Its last section looks like this:

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Those bullets don’t come from the Rule Book (its notice requirement is far less detailed than that). Rather, they come from this section of the Defense Authorization.

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As you can see, that section mandates answers to bullets 1 through 4 (the unredacted ones), and then includes a conforming amendment that repeals this section from 2013’s Defense Authorization.

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The only difference in the unclassified portion of the 2014 Defense Authorization that replaced the 2013’s version is the deletion of the phrase “involving special operations forces.”

Of course, we can tell from the Report there’s a fifth, Top Secret bullet. It may well be that’s why they eliminated the prior year’s requirement and added a new almost identical one: to provide an opportunity to put that fifth bullet into the Defense Authorization’s classified appendix. That’s a wildarse guess, of course, but also a logical explanation for that fifth bullet: at a time when the White House was releasing fluffy documents pretending to be more open and orderly, Congress was secretly mandating additional reporting they weren’t getting.

There are a number of things that might be in that fifth bullet. Perhaps the least controversial of those would be a requirement that DOD tell Congress — actually just a tiny handful of members — which countries the US engages in lethal force in, and which groups we partner with to do it (this would be consistent with a number of items that are redacted in the Rule Book itself). You could imagine why, in 2013 and 2014, members of Congress might want to be told if the US was partnering with al Qaeda affiliates on lethal operations anywhere in the world, seeing as how we are ostensibly at war with al Qaeda.

As a reminder, Senate Intelligence Committee member Ron Wyden spent part of 2012 and 2013 unsuccessfully trying to get a list of all the places the government was engaging in lethal operations.

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As I said, this is a fairly minor point. But it also suggests that even while the Executive was leaking wildly to get good press about this Drone Rule book, Congress was at the same time mandating specifically some of the things the Rule Book only nodded to in theory.

Drone Rule Book, Working Thread

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.

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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.

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(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.

Kill or Capture Considerations

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.

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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.

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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’s Portrayal of the CIA Director Campaign: Drones, Benghazi, and … ?

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.

Key Area of Dispute on Drone Numbers: Number of Strikes

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.

Viewed this way, it’s easy to see how ODNI’s numbers cannot add up. There must be some more basic reason their numbers are so different from every other outlet, having to do with methodology or scope. I’ve pointed to some potential explanations: CIA didn’t hand over all their numbers to ODNI, they didn’t include everything we’d include in terms of areas outside active hostilities, some strikes (and the al-Majalah one would be a likely candidate) were attributed to either the home country or some other ally (cough, KSA), even if the US conducted the strike; remember the US did a lot of “side payment” strikes in Pakistan to win the right to do our own strikes.

In other words, if “side payment” strikes — in Pakistan and Yemen (some of the latter of which may have been done for Saudi Arabia) — were the ones that killed a bunch of civilians, they might not show up in I Con the Record’s numbers.

But here’s how it would seem we could move forward: try to come to some agreement as to how many actual strikes are.

As Micah Zenko pointed out, there is a very big discrepancy between the numbers of total strikes counted by NGOs and the government. Effectively, the Administration doesn’t count 18% of the known air strikes as their own (based off the NGO average).

It’s easy to see where a disagreement about individual casualties, and of what type, would come from, but not of airstrikes themselves. Unless airstrikes generally assumed to be US airstrikes are being counted as someone else’s.

Update: Fixed that Yemen would be the recipient of side payment strikes, not Saudi Arabia.

The Bomb Robot Drone Killing Precedent

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.

The CIA Is Preventing Congress from Learning that the Worst Allegations against Hillary Pertain to Drones

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.

Happy Flag-Waving Drone Document Dump

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)

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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.

When Does a Random Taxi Driver Become a Lawful Combatant?

Mohammad Azam, in a photo at the linked Guardian article.

Mohammad Azam, in a photo at the linked Guardian article.

A couple of weeks ago, I wrote a post questioning the Obama Administration’s logic in killing the leader of the Afghan Taliban in a drone strike in Pakistan. It turns out that the Defense Department also employed some very suspect reasoning surrounding the drone strike.

On June 1 (apologies for the delay, but as most of you know, our site was hacked and has migrated to a new host) Brigadier General Charles H. Cleveland, who heads the US effort in Afghanistan, took part in a press conference in which he was patched into Washington via a video link from Kabul. At the end of the transcript, we have a very telling exchange:

Q: General, Lucas Tomlinson, from Fox News. Just a quick follow-up to Louis’ question. Were you or General Nicholson concerned that Mullah Mansur was in Iran? And are you concerned about Iran sheltering Taliban officials? Thank you.

BRIG. GEN. CLEVELAND: Yes, Lucas. Thank you very much.

You know, our — our real focus on it, again, continue to be Afghanistan and I know it sounds like I’m dodging your question and I don’t mean to, but again, you know, the location of Mullah Mansur and where he was either before or during the strike, et cetera, are really questions that probably the team back in Washington, D.C., has got a better answer for you.

Our real role, again, as I think you’re well aware — Mullah Mansur was a threat to U.S. forces, he was an obstacle to peace. An opportunity presented, the president made a decision and he was targeted and he was killed. And so really, the rest of the aspect of that really is better to answer — better answered back in Washington, D.C.

Q: And lastly, was the taxi cab driver — was he part of the Taliban, too? Did he — did he have that same threat to U.S. forces?

BRIG. GEN. CLEVELAND: So bottom line is we are confident, Lucas, in our targeting and we are confident that he was a lawful combatant.

General Cleveland’s response to Tomlinson here would have us think that Mohammad Azam, the taxi driver who was killed along with Mansour, was a member of the Taliban who posed a direct threat to the US. That would seem to make him an appropriate target for killing.

It seems that a suitable reference on which to rely for DoD’s thinking on combatants is to go back to William Haynes’ memo dated December 12, 2002 and titled “Lawful Combatants”. This memo comes from Haynes as General Counsel to DoD and is addressed to a Roundtable assembled by the Council on Foreign Relations. It appears that this exercise was geared toward providing legal cover for the Bush Administration’s “new” reading of international law and especially its attempts to shield prisoners from the Geneva Conventions.

In the memo, Haynes says this with regard to combatants:

An “enemy combatant” is an individual who, under the laws and customs of war, may be detained for the duration of an armed conflict. In the current conflict with al Qaida and the Taliban, the term includes a member, agent, or associate of al Qaida or the Taliban. In applying this definition, the United States government has acted consistently with the observation of the Supreme Court of the United States in Ex parte Quirin, 317 U.S. 1, 37-38 (1942): “Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war.”

“Enemy combatant” is a general category that subsumes two sub-categories: lawful and unlawful combatants. See Quirin, 317 U.S. at 37-38. Lawful combatants receive prisoner of war (POW) status and the protections of the Third Geneva Convention. Unlawful combatants do not receive POW status and do not receive the full protections of the Third Geneva Convention. (The treatment accorded to unlawful combatants is discussed below).

The President has determined that al Qaida members are unlawful combatants because (among other reasons) they are members of a non-state actor terrorist group that does not receive the protections of the Third Geneva Convention. He additionally determined that the Taliban detainees are unlawful combatants because they do not satisfy the criteria for POW status set out in Article 4 of the Third Geneva Convention. Although the President’s determination on this issue is final, courts have concurred with his determination.

So according to the 2002 DoD interpretation of a “determination” by President George W. Bush, members of the Taliban are enemy combatants. But they also are unlawful combatants instead of lawful combatants, so that is one bit of misleading information from Cleveland.

A much bigger problem, though, is that from all appearances, Mohammad Azam was not a driver affiliated with the Taliban and certainly not Mansour’s personal driver. The Guardian looked carefully into the circumstances of how Azam came to be driving Mansour and it appears that Azam was randomly assigned to drive Mansour:

It was a series of chance occurrences that led to Azam finding one of the US’s most wanted men sitting in his white Toyota Corolla.

Azam got much of his work though a small local transport company owned by Habib Saoli, which has its office near the exit of the Iranian-Pakistani border facility that straddles the border.

Mansoor emerged from that building shortly after 9am on 21 May, returning to Pakistan after a long visit to Iran which, it has been reported, was for both medical attention and to visit members of his family.

/snip/

He immediately began looking for a ride for the 600km journey to the city of Quetta.

Said Ahmed Jan, an employee of a bus company, was trying to fill up the final seats of his Quetta-bound minibus but Mansoor wasn’t interested.

“He said, ‘I want to go in a car’, so I called Habib and asked him to provide a car,” said Jan. “Habib took a little commission and gave the job to Azam.”

It’s very hard to see how a taxi driver randomly assigned to transport a legitimate target of the Defense Department suddenly becomes transformed into a lawful combatant himself. Despite Cleveland’s assurance to the contrary, I seriously doubt that DoD considered Azam a lawful combatant at the time they authorized the strike. The most logical assumption is that DoD came to the decision that Azam’s life was acceptable collateral damage for taking out Mansour. Cleveland simply lacked the honesty to deliver that sad truth.

There also may be legal reason for this lie, however, since Azam’s family has started the paperwork within Pakistan to sue the US over his death. It will be interesting to see whether the case proceeds, especially in light of the previous ruling in the Peshawar High Court that US drone strikes in Pakistan are war crimes.

Postscript: I suppose that one might argue that Cleveland was referring to Mansour rather than Azam when he was making his assurance that “he was a lawful combatant”, but then that says Cleveland completely ignored the question about the status of Azam.

NSA Kills People Based on Metadata, But Can’t Preserve Its Own Personnel Metadata for a Simple FOIA

Over at Vice News, I’ve got a story with Jason Leopold on 800 pages of FOIAed documents from the NSA pertaining to their response to Edward Snowden. Definitely read it (but go back Monday to read it after VICE has had time to recover from having NSA preemptively release the documents just before midnight last night).

But for now I wanted to point out something crazy.

There were some funny things about the documents handed over to Leopold, some of which I’ll get into over time. By far the funniest is their claim that this email, from SV2 to SV and cc’ed to SV4:

Screen Shot 2016-06-04 at 1.02.58 PM

Is the same as this email, from E63 to SV and cc’ed to SV43.

Screen Shot 2016-06-04 at 1.05.49 PM

We asked them about that — it was one of the few questions from a list of very detailed questions they actually gave us answers to. Here’s how they explained it.

Due to a technical flaw in an operating system, some timestamps in email headers were unavoidably altered. Another artifact from this technical flaw is that the organizational designators for records from that system have been unavoidably altered to show the current organizations for the individuals in the To/From/CC lines of the header for the overall email, instead of the organizational designators correct at the time the email was sent.

Remember, this is the agency that “kills people based on metadata,” per its former Director, Michael Hayden.

But “due to a technical flaw in an operational system,” it could not preserve the integrity of either the time or the aliases on emails obtained under FOIA.

Update: I asked Douglas Cox, who works on these kinds of issues at CUNY School of Law, about this. Here’s what he had to say:

This is an illustration of why most federal agencies are still “print and file” for email preservation purposes, because many can’t seem to properly preserve email in electronic format. Agencies are supposed to be managing emails electronically by the end of this year, but there are doubts many will get there that soon.

If they had a hard copy version and then screwed up the original electronic version by bringing it on to the live system, that would account for differing headers in copies of “same” email, which is bad enough. To the extent they did not have hard copy and they screwed up the only copy in electronic form that is clearly worse. It does raise a real issue.

But your point is right on, even in more mundane contexts not involving drone strikes it is remarkable the disconnect between standards agencies impose and those they practice. When you are producing docs to a govt agency in response to doc requests, eg, you often have to abide by exacting standards in format including careful capture of metadata, but with FOIA you get things like this.

The artifact in the email — which comes from a string that shows the Compliance training woman modifying her version of the face-to-face interaction with Snowden a year after it happens — must reflect who was printing out documents in timely fashion for the FOIA, and who wasn’t (or perhaps which communications threads they figured they’d include and which they wouldn’t). It may also reflect which of these people are actually complying with Federal Records Act guidelines.

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