As a number of outlets have reported, the Second Circuit last month upheld the government’s effort to keep a March 29, 2002 OLC memo pertaining to targeted killing secret; the opinion was unsealed yesterday. The government is probably doing so to keep changes in their rationale for why assassinations don’t violate the prohibition on assassination in EO 12333 secret.
The judges on the panel — especially Judge Jon Normand, who wrote the opinion — had pushed during an ex parte hearing in June to release language in that earlier memo because the dog & pony show around drone strikes in 2012 to 2013 had used closely related language. But after some more secret briefing, the court decided the application of EO 12333 was different enough such that it remained properly protected.
It seems highly likely the specific part of EO 12333 under discussion pertains to the assassination ban. Between the earlier hearing and the opinion, the court pointed to language in the March 25, 2010 Harold Koh speech, the March 5, 2012 Eric Holder speech, and the April 30, 2012 John Brennan speech on targeted killing (they also pointed to two Panetta comments). Each of the cited speeches discusses the assassination ban — and little else that might directly pertain to EO 12333, besides just generally covert operations authorized under Article II. There’s this language in Koh’s speech.
Fourth and finally, some have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.”
This language in Holder’s speech,
Some have called such operations “assassinations.” They are not, and the use of that loaded term is misplaced. Assassinations are unlawful killings. Here, for the reasons I have given, the U.S. government’s use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful — and therefore would not violate the Executive Order banning assassination or criminal statutes.
And this language in Brennan’s speech.
In this armed conflict, individuals who are part of al-Qa’ida or its associated forces are legitimate military targets. We have the authority to target them with lethal force just as we targeted enemy leaders in past conflicts, such as German and Japanese commanders during World War II.
But even though all these public speeches commented on this interpretation of the assassination ban, the 2nd Circuit still permitted the government to shield the earlier memo.
The transcript of the June ex parte hearing reveals one explanation for that: the earlier memo was a “far broader interpretation” of the issue.
Although the district court noted that the OLC-DOD Memorandum released by this Court contained a “brief mention” of Executive Order 12,333, the district court concluded that the analysis in the March 2002 Memorandum is significantly different from any legal analysis that this Court held has been officially disclosed and for which privilege has been waived.
In other words, while the earlier memo discusses the same aspect of EO 12333 as these public speeches (again, the assassination ban is by far the most likely thing), the earlier memo uses significantly different analysis, and so it may be hidden.
The June transcript also reveals that OLC lawyers reviewed and wrote on the 2002 memo at a later time — the implication being that someone in OLC reviewed the earlier memo in 2010 when writing the Awlaki one (and curiously, that hard copy with handwritten notes is the only one DOJ claims it can find).
There are two things I find increasingly interesting about this earlier memo about EO 12333 — including at least one part presumably about the assassination ban. First, the implication that one of the lawyers reviewing it in 2010 saw the need to write a new memo (perhaps seeing the need to clean up yet more crazy John Yoo language? who knows). As I repeat endlessly, we know there’s a memo of uncertain date in which Yoo said the President could pixie dust the plain language of EO 12333 without changing the public language of it, and it’s possible this is what that memo did (though the President was clearly pixie dusting surveillance rules).
But I’m also interested in the date: March 29, 2002. The day after we captured Abu Zubaydah (who, at the time, top officials at least claimed to believe was a top leader of al Qaeda). The SSCI Torture Report made it clear the CIA originally intended to disappear detainees. Were they planning to execute them? If so, what stopped things?
In any case, CIA won its battle to hide this earlier discussion so we may never know. But it appears that DOJ may have felt the need to think thing through more seriously before drone assassinating a US citizen. So there is that.
After previous reporting had already claimed US credit for the kill,
A Cardiff man who is one of three from the city to have joined a jihadist group in Syria has died, BBC Wales has been told.
Reyaad Khan, 21, was killed in a US drone strike at the end of August.
And after the WaPo rolled out claims that our latest “secret” drone killing theater operates under new-and-improved rules,
The CIA and U.S. Special Operations forces have launched a secret campaign to hunt terrorism suspects in Syria as part of a targeted killing program that is run separately from the broader U.S. military offensive against the Islamic State, U.S. officials said.
Hussain, the 21-year-old British militant killed last month, was moved toward the top of the target list after being linked to one of two gunmen killed in Garland, Tex., this year after opening fire at a cartoon contest that invited participants to draw pictures of the prophet Muhammad.
Hussain is not known to have been directly involved in the Islamic State’s gruesome beheadings of Western hostages or other violence. The decision to kill him makes clear that even militants involved only in the Islamic State’s media efforts are regarded as legitimate U.S. military targets.
In the past, the Obama administration has stressed that it was not targeting terrorism suspects involved only in propaganda. When Anwar al-Awlaki, an American cleric, was killed in Yemen in 2011, officials emphasized that he had become directly involved in terrorist operations.
A senior administration official said that Hussain “was more than a propagandist. He was actively involved in recruiting [Islamic State] sympathizers in the West to carry out attacks, and he was specifically focused on orchestrating operations targeting U.S. service members as well as government officials.”
Hussain was tracked in part by monitoring his online activities, according to officials who said that the British government had been consulted on the decision to make him a target.
David Cameron has now claimed credit for killing.
The UK government ordered an RAF drone strike which targeted and killed two British Islamic State fighters in Syria last month, David Cameron has said.
Cardiff-born Reyaad Khan was targeted in Raqqa on 21 August and died alongside Ruhul Amin, from Aberdeen, and another fighter, the PM told MPs.
Khan, 21, had been plotting “barbaric” attacks on British soil, he said.
The “act of self defence” was lawful, Mr Cameron said, despite MPs previously ruling out UK military action in Syria.
Khan was killed in a precision strike by a remotely piloted aircraft, “after meticulous planning”, while he was travelling in a vehicle, the prime minister said.
Another British national, Junaid Hussain, from Birmingham, was killed in a separate air strike by US forces in Raqqa on 24 August, the prime minister confirmed.
Both had been planning to attack “high-profile public commemorations” taking place in the UK this summer, he said.
Lawyers on both sides of the Atlantic are already raising questions about the legality of this strike (and given European Human Rights law, it’s at least possible Cameron will have to offer more of an explanation than Obama has offered for killing Anwar al-Awlaki). I’m also interested in what has changed from the time when the UK stripped people of their nationality so we could drone kill them (as we’ve done repeatedly in Somalia). And why a country that was so sensitive about British Telecom’s role in drone operations in Djibouti is proudly announcing this now.
Is it because this strike helps to lay the case for more war-making in Syria?
But there’s something else I’m wondering. Who is flying what over Syria? The US and UK can’t fly drones without either Bashar al-Assad’s blessing or certainty what used to be considerable air defenses have been neutralized.
Moon of Alabama has been wondering the same thing too.
[T]he most curious issue in the piece is the description of the “drone” attack that helped to fend off attacking Nusra fighters. No drone I am aware of and certainly not the “Predator” are equipped with automatic weapons like machine guns. The Drones carry fire-and-forget missiles or bombs but no drone has the necessarily heavy rotating tower and swiveling weapon holder that would allow the use of automatic weapons. “Automatic fire from the sky” as the reporter describes from the video he has seen can only have come from manned helicopters. Or is there some other explanation that I miss?
If there were helicopters who’s birds were these? U.S. or Turkish? Are there more of these flying over Syria and to what purpose? And what would be the Search & Rescue assets that could be used should such a bird come down involuntarily?
Something we are not told about is happening at the Turkish-Syrian border. Is that the reason why the Russians, despiteU.S. efforts to hinder them, prepare air fields for the delivery of new air assets to the Syrian army?
Russia is being painted as the aggressor here. But the story of trans-Atlantic drone successes, whatever the underlying truth, suggests some outside force has been successful at doing more than winning ground battles.
Update: Meant to include this, from the WaPo story, because I find it interesting a story about drones introduces ambiguity both about where the drones might have been launched, but also an acknowledgement there’s more coming out of Jordan (and presumably Turkey).
The U.S. military and European allies operate fighter jets and other aircraft from the Muwaffaq Salti Air Base in Jordan, a highly secured compound that was used earlier this year by a Jordanian pilot who was captured by the Islamic State and burned alive.
The United States also flies drones from bases in Turkey, Kuwait, Saudi Arabia, the United Arab Emirates and Qatar, where the al-Udeid Air Base serves as the Middle East headquarters of the U.S. Special Operations Command.
Update: In his tweet on this, Cameron said the Brits used an RAF “aircraft;” he didn’t say drone (which uses fewer characters).
Update: Though in Cameron’s statement, he clearly says it was a remotely piloted aircraft.
Mr Speaker, in recent weeks it has been reported that 2 ISIL fighters of British nationality who had been plotting attacks against the UK and other countries have been killed in airstrikes. Both Junaid Hussain and Reyaad Khan, were British nationals based in Syria who were involved in actively recruiting ISIL sympathisers and seeking to orchestrate specific and barbaric attacks against the West, including directing a number of planned terrorist attacks right here in Britain, such as plots to attack high profile public commemorations, including those taking place this summer.
We should be under no illusion. Their intention was the murder of British citizens. So on this occasion we ourselves took action. Today I can inform the House that in an act of self-defence and after meticulous planning Reyaad Khan was killed in a precision air strike carried out on 21 August by an RAF remotely piloted aircraft while he was travelling in a vehicle in the area of Raqqah in Syria.
In addition to Reyaad Khan who was the target of the strike, 2 ISIL associates were also killed, 1 of whom – Ruhul Amin, has been identified as a UK national. They were ISIL fighters and I can confirm there were no civilian casualties.
Mr Speaker, we took this action because there was no alternative. In this area, there is no government we can work with. We have no military on the ground to detain those preparing plots. And there was nothing to suggest that Reyaad Khan would ever leave Syria or desist from his desire to murder us at home. So we had no way of preventing his planned attacks on our country without taking direct action.
The US administration has also confirmed that Junaid Hussain was killed in an American airstrike on 24 August in Raqqah.
After Congress pushed for years for the Federal Aviation Administration to rush through permissions to let drones fly above America, local authorities are discovering what countries throughout the Middle East at least pay lip service to: having drones flying freely overhead undermine the illusion of sovereign law on the ground.
As concerns rise about a security menace posed by rogue drone flights, U.S. government agencies are working with state and local police forces to develop high-tech systems to protect vulnerable sites, according to sources familiar with the matter.
Asked about the development of counter-drone-technology, the Department of Homeland Security said it “works side-by-side with our interagency partners” to develop solutions to address the unlawful use of drones. Officials with the Defense Department, FAA and New York Police Department declined to comment.
But the sources acknowledged that efforts to combat rogue drones have gained new urgency due to the sharp rise in drone use and a series of alarming incidents.
The number of unauthorized drone flights has surged over the past year, raising concerns that one could hit a commercial aircraft during landing or take-off, or be used as a weapon in a deliberate attack, the sources said.
Drones have flown perilously close to airliners, interfered with firefighting operations, been used to transport illegal drugs into the United States from Mexico, and sparked a security scare at the White House, among other incidents.
But U.S. authorities have limited tools for identifying drone operators, many of them hobbyists, who violate federal rules that drones fly no higher than 400 feet (120 meters) and no closer than 5 miles (8 km) to airports. One reason for the enforcement gap is that Congress in 2012 barred the FAA from regulating recreational drones.
A system capable of disabling a drone and identifying its operator would give law enforcement officials practical powers to block the flights.
The all-American solution, of course, is more products, more profit. Most of the rest of the article describes efforts to develop technology that can ID and take control of drones deemed by authorities to be operating illegally (though of course such technology could just as easily be used to limit the flight of a media drone tracking police abuse).
There’s no thought, in the article, of the alternative: slowing the enthusiastic roll-out of drones until issues of basic governance can be worked out (or until people realize that drones pose fairly unique challenge to governance as we have it now). Doing that would not only eliminate the opportunity to grow yet another new market for previously unnecessary technology, but raise uncomfortable questions about how we operated our unlawful drones around the world.
Update: As bloopie2 pointed out, a guy in San Diego just got busted for killing a drone surveilling him at the beach with his tee shirt.
And the WaPo reports there have been hundreds of near-misses between drones and planes that the FAA doesn’t want to tell us about.
Two days ago, as part of a Twitter discussion about how wasteful and ineffective a border wall would be, I predicted the Republican presidential candidates would recommend massively increased drone patrols and strikes on immigrants at the border, because it’s expensive and unworkable, but would sound cool.
To be honest, I thought it would take slightly longer than two days to be proven right.
From the start of the Hillary Clinton email scandal, I’ve maintained that there are real reasons to be critical of her use of a private email.
There are big governance reasons to be concerned that Clinton has been in control of all her official emails, including that the emails will get destroyed or hidden from FOIA and Congressional requests.
But there’s also the question of whether whatever sensitive communications she had — potentially including classified information — were safe on a server run out of her Chappaqua home. While the State Department’s own emails have been notoriously unreliable — they have been compromised both in the WikiLeaks leak and in persistent hacks in recent years– if foreign adversaries learned of her private server (and remember, it’s very hard to hide metadata from someone who is looking), her communications would be even easier to compromise.
[T]he system is also broken because it has been permitted to become a tool the powerful use to control their own image (and thereby accrue more power). After the years-long witch hunts under her spouse’s Presidency, Clinton might be forgiven for wanting to maintain complete control over her own communications (except for that whole bit about democratic accountability). But she is of course doing it to serve her own Presidential aspirations.
Not only are there real governance reasons it was wrong, but it was an own-goal given that she knew Republicans would pounce on anything that hints of corruption (even though most GOP presidential candidates have done the same thing). In the grand scheme of things, however, I’m most interested in fixing the email and accountability problem, because it has been a recurrent problem since Poppy Bush tried to destroy some PROFs notes to cover up the Iran-Contra scandal.
That said, much — though not all — of the reporting on it took a decidedly irresponsible turn when Intelligence Community Inspector General Charles McCullough revealed that two emails from the emails on Hillary’s server had been determined to contain Top Secret information. Such reporting was led by former NSA official John Schindler whose piece in the Daily Beast bore this headline.
Schindler might be excused for a headline editors gave his piece to drive clicks and scandal — and indeed, in some parts of his article he was more disciplined in specifying whose emails these were — but he nevertheless used the formulation “Clinton’s emails” when claiming she had satellite-derived information on her servers.
Most seriously, the Inspector General assessed that Clinton’s emails included information that was highly classified—yet mislabeled as unclassified. Worse, the information in question should have been classified up to the level of “TOP SECRET//SI//TK//NOFORN,” according to the Inspector General’s report.
This left the suggestion that as Secretary of State Hillary Clinton sat down with some SIGINT reporting, transcribed it, and then sent it off to her staffers. That, in spite of repeated clarifications from official sources that Hillary was in no way a target of the FBI inquiry into this.
Dianne Feinstein clarified the point yesterday: the issue is that Hillary received emails that had information claimed to be classified, not that she sent them.
There has been a lot of press coverage recently of allegations regarding Secretary Clinton’s email. Unfortunately, much of the coverage has missed key points.
First, none of the emails alleged to contain classified information were written by Secretary Clinton.
The questions are whether she received emails with classified information in them, and if so, whether information in those emails should have been classified in the first place. Those questions have yet to be answered. However, it is clear that Secretary Clinton did not write emails containing classified information.
Again, nothing obviates all the blame that Hillary chose to rely on an unclassified email system, but it’s one thing if Hillary were sending Top Secret information across an unprotected server, and yet another thing if she received emails that might have been derived from Top Secret information, but were not marked as such or even evidently sourced from Top Secret information. Or even — given that some of the people and agencies in question aren’t entirely trustworthy when they make claims of secrecy — that publicly available information was deemed Top Secret.
At least according to the AP (in a story sourced to US officials, so potentially some people in DiFi’s immediate vicinity), that’s what happened.
The two emails on Hillary Rodham Clinton’s private server that an auditor deemed “top secret” include a discussion of a news article detailing a U.S. drone operation and a separate conversation that could point back to highly classified material in an improper manner or merely reflect information collected independently, U.S. officials who have reviewed the correspondence told The Associated Press.
The drone exchange, the officials said, begins with a copy of a news article that discusses the CIA drone program that targets terrorists in Pakistan and elsewhere. While a secret program, it is well-known and often reported on. The copy makes reference to classified information, and a Clinton adviser follows up by dancing around a top secret in a way that could possibly be inferred as confirmation, they said. Several officials, however, described this claim as tenuous.
But a second email reviewed by Charles McCullough, the intelligence community inspector general, appears more suspect. Nothing in the message is “lifted” from classified documents, the officials said, though they differed on where the information in it was sourced. Some said it improperly points back to highly classified material, while others countered that it was a classic case of what the government calls “parallel reporting” — different people knowing the same thing through different means.
This is CIA claiming secrecy for its drone operations!!! The ongoing FOIAs about CIA’s acknowledged role in the drone war are evidence that even independent appellate judges don’t buy CIA’s claims that their drone activities are secret. Just yesterday, in fact, DC Judge Amit Mehta ordered DOJ to provide Jason Leopold more information about its legal analysis on CIA drone-killing Anwar al-Awlaki, information the CIA had claimed was classified. Indeed, Martha Lutz, the woman who likely reviewed the emails turned over, is fairly notorious for claiming things are classified that pretty obviously aren’t. It’s her job!
I’m all in favor of doing something to ensure all people in power don’t hide their official business on hidden email servers — right now, almost all people in power do do that.
But those who take CIA’s claims of drone secrecy seriously should be mocked, as should those who deliberately obscure the difference between receiving an unmarked email with information claimed to be classified and those who transcribe information from a properly marked classified document.
In June, the AP reported on the FBI’s fleet of spy planes (following up on the work of the WaPo and independent journalists around the country). In it, they described how the FBI wanted them to keep the details of the front companies owning the planes secret.
The FBI asked the AP not to disclose the names of the fake companies it uncovered, saying that would saddle taxpayers with the expense of creating new cover companies to shield the government’s involvement, and could endanger the planes and integrity of the surveillance missions. The AP declined the FBI’s request because the companies’ names – as well as common addresses linked to the Justice Department – are listed on public documents and in government databases.
That hasn’t stopped the FBI from flying the planes under the same thin cover. Today, the Detroit Free Press reported that one of those planes has spent the last week flying over Dearborn, the biggest concentration of Arabs in the country.
The thing is, in spite of the claim to the AP that FBI would need to create new covers for their secret spy planes, they didn’t.
The 2010 Cessna is registered to a company called OTV Leasing of Bristow, Va. The registration, like other aircraft included in the AP investigation, is linked to a bank of post office boxes in Bristow.
OTV Leasing was among at least 13 fake companies used by the FBI that were identified during the AP investigation.
The chief executive of OTV Leasing is listed on aircraft records as Robert Lindley. The AP reported that Lindley is listed as CEO of several other front companies, and has at least three distinct signatures on aircraft records. The FBI did not disclose to the AP whether Lindley was a U.S. government employee; the news agency could not reach him for comment.
It’s bad enough that the population of Dearborn is being surveilled by such a high tech plane. But to do so when everyone now knows these are spy planes is all the more problematic. It’s almost hubristic, a display that the FBI can spy on that particularly population with impunity.
In Yemen they fly drones. In Dearborn, they fly planes that have already been outed as FBI spy tools.
Update: The FBI reassured community leaders this was not mass surveillance targeting a racial or religious communities.
The FBI was conducting a specific criminal probe and not investigating credible terror threats nor targeting racial or religious communities, the bureau told community leaders at a meeting Wednesday night.
“Contrary to the suggestion of some recent media reporting, the FBI does not employ aviation assets to conduct mass surveillance nor to target specific communities,” Abbate said in a statement. “Neither does the FBI monitor lawfully protected First Amendment activity. Further, the FBI Detroit Field Office is not aware of any specific or credible threats within the local Detroit Metropolitan area.”
There are several problems with what has been relayed of this statement though (and CAIR-MI Director Dawud Walid makes some of them). First, what the FBI means by mass surveillance and what normal humans do are totally different things. If the surveillance is targeted, but sucks in thousands incidentally, FBI still doesn’t consider it mass surveillance (nor does it report it as such in required congressional reporting).
Also, if you were targeting Dearborn’s Arab-American residents, you’d be targeting neither based on religion (because a significant percentage of the Arab population is Christian) nor, technically, on race (Arab is not considered a race, at least by the census).
And the FBI has big, but secret, exceptions to what it considers “lawfully protected First Amendment activity.”
It may well be true that Dearborn’s residents have nothing to worry about. But the statement — at least what got published here — should not allay any concerns.
Al Jazeera Islamabad bureau chief Ahmad Muaffaq Zaidan is lucky.
Thus far, the CIA has not drone-killed him because the NSA has identified him as a terrorist courier, which the Intercept explains at length today.
The U.S. government labeled a prominent journalist as a member of Al Qaeda and placed him on a watch list of suspected terrorists, according to a top-secret document that details U.S. intelligence efforts to track Al Qaeda couriers by analyzing metadata.
The briefing singles out Ahmad Muaffaq Zaidan, Al Jazeera’s longtime Islamabad bureau chief, as a member of the terrorist group. A Syrian national, Zaidan has focused his reporting throughout his career on the Taliban and Al Qaeda, and has conducted several high-profile interviews with senior Al Qaeda leaders, including Osama bin Laden.
A slide dated June 2012 from a National Security Agency PowerPoint presentation bears his photo, name, and a terror watch list identification number, and labels him a “member of Al-Qa’ida” as well as the Muslim Brotherhood. It also notes that he “works for Al Jazeera.”
As Michael Hayden says (and the article repeats) the US government kills people based on metadata, and NSA’s metadata has erroneously concluded that Zaidan is a terrorist.
As I said, Zaidan is lucky that the system that starts with phone metadata and ends in dead “military aged males” hasn’t killed him yet.
But that’s why it’s a problem that the Intelligence Community is not forced to do better accountability of all the unknown military aged males it kills with drones.
As the Intercept makes clear, the metadata system that (reidentified — he was already targeted) Zaidan as a terrorist courier is based on machine learning.
As the two slide shows they included in the story make clear, the process of using cell data to find “couriers” (or Al Jazeera journalists) is an iterative learning process. That is, it’s important for them to understand if their matches are correct.
But we know that one outcome of this process — drone killing — doesn’t include a very robust feedback mechanism on that front. Partly because the CIA wants to fluff its numbers and partly because they’re often drone-killing without good access to HUMINT that tells them exactly who they kill and partly because they write off large numbers of targets as “military aged males” who therefore must be legitimate targets, they almost certainly don’t input what they learn after they’ve drone-killed someone back into the NSA’s process to teach the computers that they’ve just killed an innocent American hostage.
And so dumb computers can go on identifying journalists as terrorist couriers.
Jack Goldsmith conducted fascinating interview with NYT Executive Editor Dean Baquet about the latter’s decision to name Michael D’Andrea and two other top CIA officials whose identities the CIA was trying to suppress.
He attributes his decision to three factors: The CIA has increasingly taken on a new military role that demands some accountability, the CIA admitted these three figures were widely known anyway, and the CIA (and NSA’s) explanations in the past have proven lame.
There are some interesting points, but I think Baquet — and Goldsmith — miss two aspects of accountability that the NYT article permitted.
Baquet reveals that even the CIA didn’t claim these men were secret, even if it still pretends they are under cover.
DB: These guys may technically be undercover. But even the CIA admitted when they called – and this was a big factor in the decision – that they are widely known, and they were known to the governments where they were stationed. The CIA’s pitch was not that these guys are secret or that people don’t know about them. The CIA’s pitch to me was, “Look, its one thing to be widely known, and to be known to governments and to be on web sites; but when they appear on the front page of the New York Times, that has a larger meaning.” So they were known anyway. The gentleman at the very top [of the CTC] runs a thousand-person agency, and makes huge decisions, personally, that have tremendous repercussions for national security. I’m not making judgments about him, but that’s the reality.
Later in the interview Goldsmith appears to totally ignore this point when he worries that these men don’t have the same kind of security as their counterparts running drone programs in the military. He suggests they might come under new threat because their names have been published on the front page of the NYT.
But that assumes our adversaries are too dumb to look in the places where these men’s names have been published before — just like CIA’s successful attempt to suppress Raymond Davis’ association with the CIA even after it was broadly known in Pakistan. It assumes our adversaries who seek out this information are not going to find where it’s hiding in plain sight.
The CIA isn’t keeping these secrets from our adversaries. They already know them. Which makes CIA’s efforts to keep them from the US public all the more problematic.
Baquet’s argument about CIA’s squandered credibility is two fold. First, he notes that the CIA always claims people are under cover, which makes their claims less credible as a result.
JG: Let me ask you a different question. What do you think about the claim by Bob Litt, the General Counsel of the DNI, that you’ve put these guys’ lives and their families’ lives in jeopardy, and also the people they worked with undercover abroad? How do you assess that? How do you weigh that?
DB: I guess I would say a couple of things. I wish the CIA did not say that about everybody and everything. They hurt their case.
JG: They say it a lot?
DB: They say it all the time. I wish they were a little more measured in saying that. Sometime it’s a little difficult to deal with the Agency. When somebody says that and has a track record of rarely saying that, it really gives me pause. But they [the CIA] say it whenever we want to mention a [covert] CIA operative or CIA official.
But — perhaps more importantly for a guy who has taken heat for killing important stories in the past — Baquet also mentions the times agencies convince him to kill stories that turn out to get published anyway. Baquet uses sitting on the detail that the US used a drone base in Saudi Arabia to kill Anwar al-Awlaki as his example.
DB: I’ll give you an example. When Al-Awlaki was killed by a drone strike, we were on deadline, and I was the Managing Editor. The Acting Director of the CIA called up because we were going to say in the middle of the story that the drone that killed Al-Awlaki took off from a base in Saudi Arabia. (I can give you twenty examples, but this is just one.) He called up and said, “If you say that the drone took off from a base in Saudi Arabia, we are going to lose that base. The Saudis are going to go nuts, they don’t want people to know that we are flying drones from their base.” And so I took it out. And I think we made it something like, “The drones took off from a base in the Arabian Peninsula,” something vague. Sure enough, the next day, everybody other than us said it was Saudi Arabia. When I thought hard about it, [I concluded] that was not a good request. And I later told the CIA it was not a good request. And they should have admitted that was not a good request. Everyone knew they had a base. It was for geopolitical reasons, not really national security reasons. I think that’s one where they shouldn’t have asked and I shouldn’t have said “yes” so automatically. So now I am tougher. Now I just say to them, “Give me a compelling reason, really really tell me.” Because to not publish, in my way of thinking, is almost a political act. To not publish is a big deal. So I say, “Give me a compelling reason.” And I don’t think I said that hard enough earlier on. That influences me now. It does make me want to say to the CIA, and the NSA, and other agencies involved in surveillance and intelligence: “Guys, make the case. You can’t just say that it hurts national security. You can’t just say vaguely that it’s going to get somebody killed. You’ve got to help me, tell me.” In cases where they have actually said to me something really specific, I have held it. There is still stuff that’s held, because it is real. But I think I am tougher now and hold them to higher standards. And part of that is that secrecy now is part of the story. It’s not just a byproduct of the story. It’s part of the story. I think there is a discussion in the country about secrecy in government post-9/11. It was provoked partly by Snowden, it was provoked partly by the secrecy of the drone program. And I think that secrecy is now part of it. And that puts more pressure on me to reveal details when I have them.
But I find his invocation of Snowden (and the mention of the NSA which he makes 4 times) all the more interesting.
Remember, in 2006, Mark Klein brought the story, with documents to prove the case, that the NSA had tapped into AT&T’s Folsom Street switch to Baquet when the latter was at the LAT. Baquet killed the story, only to have the NYT publish the story shortly thereafter.
Back in 2006, former AT&T employee Mark Klein revealed information that proved the communications giant was allowing the NSA to monitor Internet traffic “without any regard for the Fourth Amendment.” Klein initially brought the story to The Los Angeles Times, but it never made it to print under Baquet, who recently replaced the fired Jill Abramson as executive editor of The New York Times.
Klein told HuffPost Live’s Alyona Minkovski that he gave 120 pages of AT&T documents to an LA Times reporter who “was promising a big front-page expose” on the story. But the reporter eventually told Klein there was a “hangup,” and the story was abandoned shortly after with no explanation.
Months later, producers from ABC’s “Nightline” who were working on the story contacted editors at the LA Times to ask if they had, in fact, decided not to print it. The producers were told that Baquet killed the story, Klein said.
“That’s when Dean Baquet came out with this lame excuse that he just couldn’t figure out my technical documents, so he didn’t think they had a story. I don’t think anybody really believed that argument because, as I said, a few weeks after the LA Times killed the story, I went to The New York Times and they had no trouble figuring it out,” Klein said.
Any question of the clarity in the documents Klein produced “was just Dean Baquet’s lame cover story for capitulating to the government’s threats,” Klein alleged.
And while Baquet still claims he didn’t kill the story due to pressure from the government, the claim has always rung hollow.
The CIA and NSA have not only cried wolf once too often, they have cried wolf with Baquet personally.
There are two things that are, sadly, missing from this discussion.
First, no one actually believes that Michael D’Andrea, who (as I pointed out yesterday) the CIA helped Hollywood turn into one of the heroes of the Osama bin Laden hunt) is really under cover. But it’s important to look at what suppressing his actual name does for accountability. And the torture report is the best exhibit for that.
If you can’t connect all the things that D’Andrea — or Alfrea Bikowsky or Jonathan Fredman — have done in their role with torture, you can’t show that certain people should have known better. After KSM led Bikowsky to believe, for 3 months, that he had sent someone to recruit black Muslims in Montana to start forest fires, any further unfathomable credulity on her part can no longer be deemed an honest mistake; it’s either outright incompetence, or a willful choice to chase threats that are not real. Hiding D’Andrea’s name, along with the others, prevents that kind of accountability.
But there’s one other crucial part of accountability that’s core to the claim that our representative government adequately exercises oversight over CIA.
A key part of the NYT story (and Baquet emphasized this) was challenging whether the Intelligence Committees were exercising adequate oversight over the drone strikes. The NYT included really damning details about Mike Rogers and Richard Burr pushing to kill Americans.
Yet the article was most damning, I think, for Dianne Feinstein, though it didn’t make the case as assertively as they could have. Consider the implications of this:
In secret meetings on Capitol Hill, Mr. D’Andrea was a forceful advocate for the drone program and won supporters among both Republicans and Democrats. Congressional staff members said that he was particularly effective in winning the support of Senator Dianne Feinstein, the California Democrat who was chairwoman of the Senate Intelligence Committee until January, when Republicans assumed control of the chamber.
The confidence Ms. Feinstein and other Democrats express about the drone program, which by most accounts has been effective in killing hundreds of Qaeda operatives and members of other militant groups over the years, stands in sharp contrast to the criticism among lawmakers of the now defunct C.I.A. program to capture and interrogate Qaeda suspects in secret prisons.
But both programs were led by some of the same people.
The implication — which should be made explicit — is that Dianne Feinstein has been protecting and trusting a guy who also happens to have been a key architect of the torture program (Feinstein did the same with Stephen Kappes).
Feinstein can complain about torture accountability all she wants. But she has the ability to hold certain people to a higher standard, and instead, in D’Andrea’s case and in Kappes, she has instead argued that they should maintain their power.
And that’s the kind of the thing the public can and should try to hold Feinstein accountable for. Rogers and Burr, at least, are not hypocrites. They like unchecked and ineffective CIA power, unabashedly. But Feinstein claims to have concerns about it … sometimes, but not others.
The public may not be able to do much to hold the CIA accountable. But we can call out Feinstein for failing to do the things she herself has power to do to get accountability for torture and other CIA mismanagement. And that, at least, is a key value of having named names.
Back when we first learned that the CIA had killed an American (and an Italian) hostage in a January drone strike that also killed American, I predicted, based on posts like this and this, we would learn that Obama was never applying the rules in Pakistan because (as Jim had already pointed out) John Brennan has a way of exempting himself from the rules.
Q: 2 yrs ago, Klaidman reported it’d take several yrs to adopt drone rule book, w/PK being last. Do we know they purportedly did apply it?
And in any case, Brennan kind of exempted himself. Because moral rectitude. So very likely this is abt Brennan exempting himself fr rules.
Sure enough, WSJ reported yesterday that Obama had exempted Pakistan.
Mr. Obama in a 2013 speech at the National Defense University spelled out some rules governing drone strikes, which he codified in a “presidential policy guidance” directive.
Among them were that the threat needed to be imminent and that the U.S. had to have “near-certainty” no civilians would be killed or injured. Officials said the directive also included language aimed at curbing and eventually eliminating a particular type of drone strike in which the U.S. believes an individual is a militant, but doesn’t know his identity.
These so-called “signature” strikes have been responsible for killing more al Qaeda leadership targets than strikes directly targeting high-value leaders, especially in Pakistan, where the group’s leadership can be difficult to find, current and former U.S. officials said.
The Jan. 15 strike that killed Messrs. Weinstein and Lo Porto was a signature strike.
Under a classified addendum to the directive approved by Mr. Obama, however, the CIA’s drone program in Pakistan was exempted from the “imminent threat” requirement, at least until U.S. forces completed their pullout from Afghanistan.
The exemption in the case of Pakistan means that the CIA can do signature strikes and more targeted drone attacks on militant leaders who have been identified without collecting specific evidence that the target poses an imminent threat to the U.S. Being part of the al Qaeda core in Pakistan is justification enough in the Obama administration’s eyes.
This has led people to note that you simply can’t trust what the Executive does via Executive Order or Presidential Policy Guidance, as in this Daphne Eviatar post that goes onto to talk about secrecy generally.
But we’ve known all along that the president’s statement in his 2013 speech was just a policy preference. It was never an actual limitation on the use of drones, or more importantly, on the use of lethal weapons to kill suspected terrorists.
Since Obama has proven untrustworthy in his 2013 PPD on drones, we should assume he has kept similar secret exemptions under PPD-28, which purports to rein in surveillance.
You should never trust a President Order to mean what it says because the Executive has self-exempted itself from honesty.
Which leads me to what I noted the other day. On top of the tragedy of Warren Weinstein’s death, I still think the circumstances of Faruq’s targeting are … suspicious.
Particularly given that the last confirmed head of OLC, Virginia Seitz, left quietly at the end of 2013 because — anonymous sources suggested to Carrie Johnson — she was unwilling to authorize the drone death of some American(s).
Two other sources suggested that aside from the tough work, another issue weighed heavily on her mind over the past several months: the question of whether and when the U.S. can target its own citizens overseas with a weaponized drone or missile attack. American officials are considering such a strike against at least one citizen linked to al-Qaida, the sources said.
A law enforcement source told NPR the controversy over the use of drones against Americans in foreign lands did not play a major role in Seitz’s decision to leave government, since the Office of Legal Counsel is continuing to do legal analysis of the issue and there was no firm conclusion to which she may have objected or disagreed.
Particularly given the hoops the White House is jumping through regarding precisely what they were targeting, given the fact that they appear to be claiming they’ve only confirmed Faruq was an al Qaeda leader, this appears to suggest DOJ had a lot of disagreement over whether some of these men could be targeted.
Or who knows?
Maybe OLC has subsequently approved what I’ve dubbed the Sitting in a Baddie Compound authorization for executing Americans?
There’s an interesting passage in the DOJ IG discussion of Jack Goldsmith’s efforts to rewrite the Stellar Wind OLC memos (PDF 456).
The first passage describes Jim Comey permitting a lower standard of review to apply for activities already in process.
In explaining the rationale for the revise opinion, Comey described to the OIG his view of two approaches or standards that could be used to undertake legal analysis of government action. If the government is contemplating taking a particular action, OLC’s legal analysis will be based on a “best view of the law” standard. However, if the government already is taking the action, the analysis should instead focus on whether reasonable legal arguments can be made to support the continuation of the conduct.137
137 Goldsmith emphasized to us that this second situation almost never presents itself, and that OLC rarely is asked to furnish legal advise on an ongoing program because the pressure “to say ‘yes’ to the President” invariably would result in applying a lower standard of review. Goldsmith stated that OLC’s involvement in Stellar Wind was “unprecedented” because OLC is always asked to review the facts and formulate its advice “up front.”
If it was unprecedented on March 1, 2004, it quickly became common.
After all, Goldsmith was asked to consider how the Geneva Convention applied to various types of detainees in Iraq, after the Administration had already been and continued to render people out of that occupied country. And he was also in the midst of a review of the torture program.
Indeed, Daniel Levin, who would go on to reconsider torture approvals until Cheney booted him out of the way to have Steven Bradbury rubberstamp things, would have been a part of those discussions.
So when, in fall 2004, he was asked to reconsider torture, that lower standard of review would have been in his mind.
You could even say that this standard of review gave CIA an incentive to start and continue torturing Janat Gul, on whom they pinned their need to resume torture, even after they accepted he was not, as a fabricator had claimed, planning election year plots in the US. So long as they tortured Gul, Levin would be permitted to apply a lower standard to that torture.
In any case, if this was unprecedented then, I suspect it’s not anymore. After all, by the time David Barron first considered the drone killing memo for Anwar al-Awlaki, the Administration had apparently already tried to kill him once. And the Libyan war had already started when OLC started reviewing it (though they made a heroic effort to rule it illegal, which is a testament to just how illegal it was).
With regards to the Stellar Wind OLC, the discussion of what Goldsmith found so problematic is mostly redacted. Which is why I’m interested in his opinion that “‘we can get there’ as to [redacted] albeit by using an aggressive legal analysis.” That says that one of the things his opinion would approve — either the content collection of one-end foreign communications or the dragnet collection of telephone metadata — involved “aggressive legal analysis” even to meet this lower standard.
It’d sure be nice to know which practice was considered so marginally legal.