The Right to Bear Drones

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

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

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

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

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

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

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

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

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

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

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

Yah, These ARE The Droids We Have Been Looking For And Fearing

I did not always write about it so much here, but I got fairly deep into “Deflategate” analysis and law when it was going on. Because it was fascinating. I met so many lawyers, professors and others, it was bonkers. Have remained friends with many, if not most, of all of them. One is Alexandra J. Roberts, which is kind of funny because she was not necessarily one of the major players. Yet, she is one of the enduring benefits I have come to love from the bigger picture.

Today, Ms Roberts advises of some R2D2 like cop robots. I “might” have engaged in some frivolity in response. But, really, it is a pretty notable moment.

Police droids on the ground? Police drones in the air? You think Kyllo will protect you from a Supreme Court with Neil Gorsuch on it? Hell, you think Merrick Garland would not have done what he has done all of his life and sign off on ever greater law enforcement collection and oppression? Not a chance in hell. Neither Gorsuch, nor Garland, would ever have penned what Scalia did in Kyllo:

It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology. For example, as the cases discussed above make clear, the technology enabling human flight has exposed to public view (and hence, we have said, to official observation) uncovered portions of the house and its curtilage that once were private. See Ciraolo, supra, at 215. The question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy.

So, with no further adieu, here, via the Bo Globe, is the deal:

There’s a new security officer in town. But this one runs on batteries, not Dunkin’ Donuts.

Next time you’re visiting the Prudential Center, don’t be alarmed if you bump into a large, rolling robot as it travels the corridors where shoppers pop in and out of stores.

No, it’s not an oversized Roomba on the loose. It’s the “Knightscope K5,” an egg-shaped autonomous machine equipped with real-time monitoring and detection technology that allows it to keep tabs on what’s happening nearby.

Marvelous! R2D2 is making us all safer!

Nope. Sorry. Safe streets, broken windows, and “cop on the beat” policing cannot be accomplished by a tin can.

Just Say No to this idiotic and lazy policing bullshit. The next thing you know, the tin can will be probable cause. And Neil Gorsuch will help further that craven “good faith” reliance opinion in a heartbeat.

Parting Shot: Holy hell, we have our first reference to hate crimes for anti-cop robot violence! See here.

Frankly, having been in the field for three decades, I think the thought that cops are proper “hate crime” victims is absurd. Honestly, all “hate crimes” laws are completely absurd as they create different and more, and less, valuable classes of human crime victims. This may sound lovely to you in the safety of your perch, where you want to lash out at the evil others.

But if the “all men are created equal” language in the Declaration of Independence is to be given the meaning that so many demagogues over American history assign to it, then the “hate crimes” segregation and preference of one set of human victims over others, is total unfathomable bullshit.

That is just as to humans. Let’s not even go to the “victim’s rights” of squeaky ass little R2D2 tin cans.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.

Are Covert Ops Spinning Free from Presidential Findings (Again)?

Around the same time Donald Trump was dodging all responsibility for the catastrophically botched Yemen raid, he was planning to give his generals more authority to launch such raids on their own, without his approval.

President Donald Trump has signaled that he wants his defense secretary, retired Marine Gen. Jim Mattis, to have a freer hand to launch time-sensitive missions quickly, ending what U.S. officials say could be a long approval process under President Barack Obama that critics claimed stalled some missions by hours or days.

[snip]

Despite the controversy, Trump has signaled that he wants to operate more like the CEO he was in the private sector in such matters, and delegate even more power to Mattis, which may mean rewriting one of President Barack Obama’s classified Presidential Policy Directives on potentially lethal operations in countries where the U.S. is not officially involved in combat.

Meanwhile, Trump is also moving drone-killing back to the CIA after a protracted effort by the Obama Administration to put them exclusively on DOD’s hands.

President Donald Trump has given the Central Intelligence Agency secret new authority to conduct drone strikes against suspected terrorists, U.S. officials said, changing the Obama administration’s policy of limiting the spy agency’s paramilitary role and reopening a turf war between the agency and the Pentagon.

The new authority, which hadn’t been previously disclosed, represents a significant departure from a cooperative approach that had become standard practice by the end of former President Barack Obama’s tenure: The CIA used drones and other intelligence resources to locate suspected terrorists and then the military conducted the actual strike. The U.S. drone strike that killed Taliban leader Mullah Mansour in May 2016 in Pakistan was the best example of that hybrid approach, U.S. officials said.

The Obama administration put the military in charge of pulling the trigger to promote transparency and accountability. The CIA, which operates under covert authorities, wasn’t required to disclose the number of suspected terrorists or civilian bystanders it killed in drone strikes. The Pentagon, however, must publicly report most airstrikes.

These may be unrelated developments (though, as referenced by DB, they both would have been governed under Barack Obama’s drone killing rulebook, because it actually applied to all targeted killing, whether conducted by drone or raid).

But they portent a potentially horrible development: diminished involvement of the President in the granular details of Findings that approve covert operations.

Findings are the presidential documents meant to outline a covert operation and give notice to Congress’ Intelligence Committees that they’re happening. They’re supposed to be updated as programs change. While there’s a lot to complain about the secrecy of them, they at least serve as a way to make a political figure — the President — responsible for whatever goes on in covert operations.

If Trump delegates more authority for targeted killing while at the same time moving more of it back into CIA’s hands, that likely means more covert targeted killings will happen without the kind of close involvement that occurred for much (though not all) of Obama’s Administration.

There are two problems with that. First, it makes it more likely the CIA will discount political consequences of individual operations — not because the CIA is not politically savvy (in areas like this they’re more savvy than the Reality Show president), but because they will be able to deny any screw-ups.

It also makes it more likely the White House and CIA will end up in mutual recriminations the next time there’s a really unpopular strike, with CIA officers bearing the brunt of Trump’s abdication of the role he’s supposed to play in covert operations.

There’s recent precedent for such a problem: the torture program, where the Finding signed by George Bush (crafted by Dick Cheney) let CIA set its own policy, which left the CIA without cover when the shit started hitting the fan.

I assume the CIA is well aware of the risks of such a structure (though Gina Haspel’s elevation to Deputy Director after being a key player in many of the worst parts of the torture scandal may make her less worried about the risks, given that she has ultimately been protected). But the men and women at the implementing stage of such a policy shift may not have much leeway to fight it.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

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

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

Anwar al-Awlaki: Two Days from Finalized 302 to OLC Authorization for Execution

After a multiple year FOIA fight, Scott Shane has liberated the interrogation 302s from Umar Farouk Abdulmutallab. Kudos to Shane and NYT.

As Shane recalls in his story on the reports, I have noted problems about the government’s public claims about Abdulmutallab’s interrogation (even aside from conflicts with his other confessions and the terms under which the interrogation took place). The reports in some ways confirm those concerns — as I’ll write in some follow-up posts. But, more important, they also answer the most fundamental ones.

Some of the reports absolutely support the government’s claim that from Abdulmutallab’s first interrogations in January 2010, he attributed the instructions to wait until he was over the US to detonate his underwear bomb to Anwar al-Awlaki, which was always a key basis for the government’s argument they could execute the cleric.

Near the end of [Abdulmutallab’s — he is referred to as UM throughout these reports] stay at the camp, Aulaqi gave UM final specific instructions: that the operation should be conducted on a U.S. airliner;

[snip]

Aulaqi told UM: “Wait until you are in the US, then bring the plane down.” [PDF 24]

As a number of people have observed, the reports also show that (aside from the isolation later alleged by Abdulmutallab’s lawyers and whatever leverage the FBI got his family to exert), the FBI and the High Value Interrogation Group got a great deal of cooperation from Abdulmutallab without physical coercion, with Abdulmutallab providing intelligence on AQAP into the summer.

In this post, though, I want to note how the reports coincide with two other events from that period of 2010.

As many of you know, there’s a big, still somewhat unsolved problem with FBI interrogations. At the time, FBI didn’t record interrogations (and they still create big loopholes around a recently imposed rule that custodial interviews must be recorded). Rather, the FBI agent would take notes and subsequently write up those notes into a “302,” which is what the FBI calls their reports on interviews.

In Abdulmutallab’s case, there was an interesting lag between the time his interrogators conducted the interrogation and when they wrote it up. For example, his January 29, 2010 interrogation (and all the ones from the subsequent intense period of interrogation), were not dictated until February 5, 2010.

And those dictations did not start to get transcribed into finished 302s until starting on February 17, 19 days after the interrogation.

Let me be clear: there is nothing suspect about the delay. The timing cues in the interrogation makes it clear these initial interrogations were full-day interrogations. Add in the preparation time interrogators would have to do overnight, and it makes sense that they wouldn’t dictate out their notes until the end of the week (though that is yet another reason FBI Agents should always make recordings of interrogations). Moreover, the one week delay is not so long that an agent would forget substantial parts of the interrogation. Plus, a federal defender was present and could have challenged any problems with this report.

So we should assume the report is a fair indication of the conduct of the interrogation.

I’m more interested in the timing of other events in early 2010.

Consider the public comments Director of National Intelligence Dennis Blair made on February 3, at a House Intelligence hearing. Responding to a Dana Priest article from the prior week, Blair assured Congress they get specific permission before they drone kill an American citizen (there are a bunch of still unreleased memos that suggest they were actually still working on this policy).

“We take direct actions against terrorists in the intelligence community,” he said. “If we think that direct action will involve killing an American, we get specific permission to do that.”

He also said there are criteria that must be met to authorize the killing of a U.S. citizen that include “whether that American is involved in a group that is trying to attack us, whether that American is a threat to other Americans. Those are the factors involved.”

Obliquely asked about Awlaki, Blair responded that they would only kill an American “for taking action that threatens Americans or has resulted in it” — a standard that falls short of what OLC would eventually adopt, but one it appears they believed they had already surpassed with Awlaki.

“So there is a framework and a policy for what’s hypothetically a radical born cleric … who’s living outside of the United States, there’s a clear path as to when this person may be engaging in free speech overseas and when he may have moved into recruitment or when he may have moved into actual coordinating and carrying out or coordinating attacks against the United States?”

Mr. Blair responded that he would rather not discuss the details of this criteria in open session, but he assured: “We don’t target people for free speech. We target them for taking action that threatens Americans or has resulted in it.”

That comment was made after Abdulmutallab had implicated Awlaki in giving him final orders, but before it had been dictated, much less transcribed.

Then there’s the first of two OLC memos written to authorize Awlaki’s execution. That was finalized on February 19, 2010, just two days after the first 302 implicating Awlaki in final instructions for the attack was finished.

That is, only two days elapsed from the time that the one document we know of memorializing Abdulmutallab’s confession for David Barron to authorize Awlaki’s execution.

That’s also not that surprising. After all, the government deemed (and had, before this time) Awlaki to be an urgent threat, and they shouldn’t be faulted for wanting to prepare to respond to any opportunity to neutralize it, as quickly as possible. Moreover, unlike the subsequent OLC memo, this one doesn’t appear to analyze the intelligence on Awlaki closely — it just deems him a “senior leader of Al-Qa’ida in the Arabian Peninsula” and moves on to analysis about whether killing him constitutes assassination.

But the timing of all this at least suggests that there were more communications about these issues than have been identified in ACLU’s FOIAs on the subject. They at least suggest (and this would not be surprising in the least, either) that there were less formal communications about Abdulmutallab’s interrogation provided to Washington DC well before this 302 was finalized.

Again — that’s not surprising. I imagine a secure cable went out to Washington after the interrogation on the 29th — if not during Abdulmutallab’s afternoon prayer break — saying that Abdulmutallab had implicated Awlaki in providing the final instructions making sure that the US would be targeted.

But it is an interesting data point on how deliberative the process behind authorizing Awlaki’s execution was.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

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

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

Trump Fulfills Another Campaign Promise: Kills 8-Year Old American Girl

Back on December 5, 2015, Donald Trump said that if he were elected President, he would take out the families of terrorists.

The other thing with the terrorists is you have to take out their families, when you get these terrorists, you have to take out their families. They care about their lives, don’t kid yourself. When they say they don’t care about their lives, you have to take out their families,

He repeated the promise to kill terrorists’ families later on the campaign trail.

On Sunday, Trump made good on that campaign promise by killing Nora al-Awlaki, the 8 year old American citizen daughter of Anwar al-Awlaki in a JSOC raid. A SEAL team member, Ryan Owens, was also killed in the raid.

Obama, of course, killed Nora’s then 16-year old brother, Abdulrahman, just weeks after having killed the children’s father in a drone strike.

There are competing stories about the purpose and the outcome of the raid, as NBC lays out here. Thus far, however, there has been little acknowledgment that Donald Trump ran on doing just this, killing the 8 year old children of terrorists, which should raise real questions about how so many (possibly in the 40s?) civilians got killed in the raid. Was that the point?

 

 

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

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

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

Monday: A Different Ark

[Caution: some content in this video is NSFW] Today’s Monday Movie is a short film by Patrick Cederberg published three years ago. This short reflects the love life of a youth whose age is close to that of my two kids. A few things have changed in terms of technology used — I don’t think either Facebook or Chatroulette is as popular now with high school and college students as it was, but the speed of internet-mediated relationships is the same. It’s dizzying to keep up with kids who are drowning in information about everything including their loved ones.

Their use of social media to monitor each other’s commitment is particularly frightening; it’s too easy to misinterpret content and make a snap decision as this movie shows so well. Just as scary is the ease with which one may violate the privacy of another and simply move on.

Imagine if this youngster Noah had to make a snap decision about someone with whom they weren’t emotionally engaged. Imagine them using their lifetime of video gaming and that same shallow, too-rapid decision-making process while piloting a drone.

Boom.

Goodness knows real adults with much more life experience demonstrate bizarre and repeated lapses in judgment using technology. Why should we task youths fresh out of high school and little education in ethics and philosophy with using technology like remote surveillance and weaponized drones?

Speaking of drones, here’s an interview with GWU’s Hugh Gusterson on drone warfare including his recommendations on five of books about drones.

A, B, C, D, USB…

  • USBKiller no longer just a concept (Mashable) –$56 will buy you a USB device which can kill nearly any laptop with a burst of electricity. The only devices known to be immune: those without USB ports. The manufacturer calls this device a “testing device.” Apparently the score is Pass/Fail and mostly Fail.
  • Malware USBee jumps air-gapped computers (Ars Technica) — Same researchers at Israel’s Ben Gurion University who’ve been working on the potential to hack air-gapped computers have now written software using a USB device to obtain information from them.
  • Hydropower charger for USB devices available in 2017 (Digital Trends) — Huh. If I’m going to do a lot of off-grid camping, I guess I should consider chipping into the Kickstarter for this device which charges a built-in 6,400mAh battery. Takes 4.5 hours to charge, though — either need a steady stream of water, or that’s a lot of canoe paddling.

Hackety-hack, don’t walk back

  • Arizona and Illinois state elections systems breached (Reuters) — An anonymous official indicated the FBI was looking for evidence other states may also have been breached. The two states experienced different levels of breaches — 200K voters’ personal data had been downloaded from Illinois, while a single state employee’s computer had been compromised with malware in Arizona, according to Reuters’ report. A report by CSO Online explains the breaches as outlined in an leaked FBI memo in greater detail; the attacks may have employed a commonly-used website vulnerability testing application to identify weak spots in the states’ systems. Arizona will hold its primary election tomorrow, August 30.
  • Now-defunct Australian satellite communications provider NewSat lousy with cyber holes (Australian Broadcasting Corp) — ABC’s report said Australia’s trade commission and Defence Science Technology Group have been attacked frequently, but the worst target was NewSat. The breaches required a complete replacement of NewSat’s network at a time when it was struggling with profitability during the ramp-up to launch the Lockheed Martin Jabiru-1 Ka-band satellite. China was named as a likely suspect due to the level of skill and organization required for the numerous breaches as well as economic interest. ABC’s Four Corners investigative reporting program also covered this topic — worth watching for the entertaining quotes by former CIA Director Michael Hayden and computer security consultant/hacker Kevin Mitnick in the same video.
  • Opera software users should reset passwords due to possible breach (Threatpost) — Thought users’ passwords were encrypted or hashed, the browser manufacturer still asks users to reset passwords used to sync their Opera accounts as the sync system “showed signs of an attack.” Norwegian company Opera Software has been sold recently to a Chinese group though the sale may not yet have closed.

That’s a wrap for now, catch you tomorrow! Don’t forget your bug spray!

Blogger since 2002, political activist since 2003, geek since birth. Opinions informed by mixed-race, multi-ethnic, cis-female condition, further shaped by kind friends of all persuasions. Sci-tech frenemy, wannabe artist, decent cook, determined author, successful troublemaker. Mother of invention and two excessively smart-assed young adult kids. Attended School of Hard Knocks; Rather Unfortunate Smallish Private Business School in Midwest; Affordable Mid-State Community College w/evening classes. Self-employed at Tiny Consulting Business; previously at Large-ish Chemical Company with HQ in Midwest in multiple marginalizing corporate drone roles, and at Rather Big IT Service Provider as a project manager, preceded by a motley assortment of gigs before the gig economy was a thing. Blogging experience includes a personal blog at the original blogs.salon.com, managing editor for a state-based news site, and a stint at Firedoglake before landing here at emptywheel as technology’s less-virginal-but-still-accursed Cassandra.

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.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

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

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

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).

Screen Shot 2016-08-08 at 8.51.22 AM

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:

Screen Shot 2016-08-08 at 8.59.46 AM

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.

Screen Shot 2016-08-08 at 9.12.58 AM

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.

Screen Shot 2016-08-08 at 9.14.17 AM

Screen Shot 2016-08-08 at 9.14.51 AM

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.

Screen Shot 2016-08-08 at 9.18.54 AM

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.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

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

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

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.

Screen Shot 2016-08-07 at 7.10.39 AM

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.

Screen Shot 2016-08-07 at 8.28.41 AM

(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.

Screen Shot 2016-08-07 at 8.55.09 AM

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.

Screen Shot 2016-08-07 at 9.33.44 AM

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.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

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

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

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.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

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

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