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.
At the end of a must-read article on how the people — whom it names — in charge of the CIA’s drone program are the same people who were in charge of the torture program, the NYT also reveals that Richard Burr joined Mike Rogers pressuring CIA to kill American citizen Mohanad Mahmoud Al Farekh — who recently got captured and charged in the US with material support for terrorism — be drone killed.
The Republican lawmakers, Senator Richard M. Burr of North Carolina and Representative Mike Rogers of Michigan, said during the closed sessions that the administration was being timid, and urged that [Mohanad Mahmoud Al] Farekh be hunted and killed.
Burr is, as he likes to point out, a relative of Aaron Burr, who killed Treasury Secretary Alexander Hamilton in a duel, a detail about which Burr reminded Treasury Secretary Jack Lew last year. It appears the Burr family no longer operates with the faux honor of dueling, but instead sits inside secret closets and demands CIA conduct assassination by remotely piloted drone.
And that’s why NYT’s decision to name names is so notable.
The C.I.A. asked that Mr. D’Andrea’s name and the names of some other top agency officials be withheld from this article, but The New York Times is publishing them because they have leadership roles in one of the government’s most significant paramilitary programs and their roles are known to foreign governments and many others.
The article names D’Andrea — the long-time head of CIA’s Counterterrorism Center, whom Gawker named last month but whom the WaPo continued to refer to under the pseudonym Roger last month, it named his replacement, Chris Wood, who has served in ALEC station and oversaw operations in Afghanistan and Pakistan, and it named the Operations Chief, Greg Vogel, who was Kabul Station Chief before leading the CIA’s paramilitary Special Activities Division.
These are the men who invite people like Rogers and Burr and Dianne Feinstein (who is a champion of D’Andrea) and their staffers to watch a monthly snuff film of drone operations and with it convince them that CIA should remain in charge of assassinations.
As the NYT notes in explaining why it was refusing to cede to John Brennan’s demand that the paper hide these identities, others know who they are. It’s just the public, those who pay their salaries and in whose name those assassinations are conducted, that didn’t know.
That, of course, prevents anyone — the family of Warren Weinstein, for example — from holding them to legal account.
But it also prevents us from holding Feinstein accountable when she shields the same people who oversaw the torture program she claims to abhor.
Perhaps the NYT’s decision to break the spell of false secrecy will demonstrate that these men’s identities were’t really secrets. They were rather just a vacuum of accountability.
As Jim laid out, yesterday President Obama admitted that we killed two hostages, including American Warren Weinstein, in a drone operation in the Af-Pak border in January. In that same strike, we killed American citizen Ahmed Faruq, though he was not specifically targeted, Administration sources assure us. We also killed Adam Gadahn in an apparently unrelated strike, though we weren’t targeting him either, Administration sources assure us.
But I want to point to something rather remarkable in the language the Administration used yesterday to discuss this.
For years, the government has used the rationale that if an American is “sitting next to a baddie” then he becomes acceptable collateral damage in a drone strike.
That’s the rationale they gave when they killed Kamal Derwish in 2002: they were not targeting Derwish, they were targeting Abu Ali al-Harethi, but Derwish — far more threatening to the US at that moment because of his presumed role in recruiting Muslims in Lackawanna, NY — just was unlucky enough to be sitting next to him.
That’s the rationale they gave when they first missed Anwar al-Awlaki on December 24, 2009, a day before the government decided he had gone operational but at a time when Pete Hoekstra was making his continued existence an embarrassing issue for the Obama Administration. The Administration hadn’t been targeting Awlaki, they explained, they were instead targeting Nasir al-Wuhayshi and some other AQAP leaders, and Awlaki just happened to be present.
That’s the rationale they gave when they killed Samir Khan. He just happened to be sitting in the car when the CIA finally scorched Awlaki.
And that’s the rationale they gave when they killed Abdulrahman al-Awlaki: They weren’t targeting him, they were targeting Ibrahim al-Banna, though al-Banna turned out not even to be present.
That’s the rationale they gave, years later, when they admitted to killing Jude Kenan Mohammed: he was killed in a signature strike targeting the group he was in as a whole.
Never mind that in a number of these cases — the first Awlaki strike and the one that killed his son — there’s reason to believe they were specifically targeted. Never mind that in the case of Derwish and Khan knowing insiders wink winked that the government knew full well they’d be killing these men too when they struck the other target. The excuse has been — with the exception of the pursuit of Anwar al-Awlaki — that they were targeting another person (another known person, with the exception of the Jude Mohammed strike), and the American just happened to die as collateral damage.
But yesterday, that rationale changed.
Now, the government wasn’t so much targeting a person, but a compound, something that Josh Earnest was quite insistent on in his press conference yesterday.
Q Thanks, Josh. Let’s start just with some of the facts of what happened, to the extent that you can discuss them. How many other people were killed in these two strikes, either local civilians or militants?
EARNEST: Josh, I won’t be able to provide specific numbers on this. I can tell you that in the specific strike that resulted in the death of Dr. Weinstein and Mr. Lo Porto, there was one other al Qaeda leader who was among those that was killed. That is the — Ahmed Faruq, the American citizen al Qaeda leader. This was a strike against an al Qaeda compound, and the result was the death of at least one al Qaeda leader.
I can tell you that the assessment that we have right now does not raise questions about additional civilian loss of life. Again, the reason for that is that the standard that was in place and, to the best of our knowledge, was closely followed by our counterterrorism professionals was to adhere to this near-certainty standard. And that near-certainty standard applied to two things.
The first is near certainty that this was an al Qaeda compound that was used by al Qaeda leaders; that turned out to be true. That assessment did turn out to be correct. The other near-certainty assessment was that no civilians would be harmed if this operation were carried out. Unfortunately, that was not correct, and the operation led to this tragic, unintended consequence.
The US insists that the deaths of hostages Warren Weinstein and Giovanni Lo Porto were a “mistake”. Both the New York Times and Washington Post open their articles about the drone strike that killed them with descriptions couched in the language of error. The Times:
The first sign that something had gone terribly wrong was when officers from the C.I.A. saw that six bodies had been pulled from the rubble instead of four.
And in the Post:
After weeks of aerial surveillance, CIA analysts reached two conclusions about a compound to be targeted in a January drone strike: that it was used by al-Qaeda militants and that, in the moment before it was hit, it had exactly four occupants.
But as six bodies were removed from the rubble, the drone feeds that continued streaming back to CIA headquarters carried with them a new set of troubling questions, including who the two other victims were and how the agency’s pre-strike assessments could have been so flawed.
Consider that for a moment. Despite all the blathering from John Brennan about “near certainty” in his infamous drone rules (whose legal basis the government still steadfastly refuses to release), we are dealing yet again with deaths of innocents from a signature strike. In those strikes, the US kills without knowing precisely who the targets are. Instead, the US claims that the pattern of activities by those targeted match those of terrorists intent on striking out against the US. The more cynical among us note that there is hubbub over this strike merely because the innocents who were killed happen to be white instead of brown. But the outcome is the same: making the decision to kill based on incomplete evidence that doesn’t even include the actual identities of those in the crosshairs is bound to result in the collateral deaths of many who are not enemies of the US.
Recall that John Brennan made a power grab in the spring of 2012 to take charge of ordering signature strikes when JSOC told the White House that such strikes were not needed in Yemen. And, of course, Brennan immediately started using this tool as a political cudgel as well as the strategic weapon it was believed to represent. But let’s go for a moment to a part of Greg Miller’s Washington Post article linked above:
The deaths of the hostages follow other recent developments that have revealed divisions among the CIA and other agencies over whether to capture or kill a U.S. citizen.
Muhanad Mahmoud al Farekh was recently arraigned in a U.S. court on federal terrorism charges after he was captured by Pakistan and secretly flown to New York. His arrest raised questions about the frequency with which the U.S. government asserts that capturing terrorism suspects is not feasible. The CIA had been pushing to kill Farekh for more than a year before his arrest, current and former U.S. officials said.
Isn’t that interesting? It appears that Farekh was on CIA’s list of targets it would like to have killed in a targeted strike, with part of the justification for killing him being that it wouldn’t be feasible to capture him. And yet the Pakistanis did capture him. And that development points out an even bigger problem with the decision to hit the compound where Weinstein was killed: that compound is in the southern part of North Waziristan. Recall that Pakistan’s offensive to clear the tribal areas of terrorists began last June. See the map embedded in this post where I discussed the beginning of the offensive. Weinstein and Lo Porto were being held in the Shawal Valley, which is at the very southern end of North Waziristan. Miram Shah and Mir Ali, two of the hottest targets for US drone strikes sit in the central part.
Just a little more patience on the part of Brennan and his signature strike shop might have led to a very different outcome. In November, Pakistan’s military claimed that 90% of North Waziristan had been cleared of terrorists. And in the very same week of the strike that killed the hostages, Pakistan noted that the Shawal area was slated for clearing:
During a journalists briefing here, about the current visit of Chief of Army Staff General Raheel Sharif to Britain, he said operation Zarb-e-Azb was continuing successfully in North Waziristan and many areas including Mir Ali, Mirshah and Dattakhel were cleared of terrorists, many of whom were killed and arrested and their infrastructure was destroyed.
In these troubled areas, militants had set up infrastructure, training and call centres and they were making phone calls to people in other parts of the country for ransom, he added. Before start of the North Waziristan operation, Pakistan informed Afghanistan and International Security Assistance Force (ISAF), so that they could take action against terrorists who cross over the border.
Operations were continuing along the border areas with Afghanistan, with whom Pakistan had improved its relations and both countries were sharing intelligence, he added. He said in the next few months the remaining areas including Shawal would be cleared.
Although Pakistan’s military is not particularly noted for protecting citizens during these clearing actions in the tribal areas, it still stands out that Weinstein and Lo Porto were killed in Shawal on January 15 and Pakistan announced on the 18th that Shawal was next up for clearing. Would Pakistani forces have rescued the hostages? We will never know.
Even worse, Brennan was supposed to have stopped signature strikes in Pakistan. Returning to the Times article:
The strike was conducted despite Mr. Obama’s indication in a speech in 2013 that the C.I.A. would no longer conduct such signature strikes after 2014, when American “combat operations” in Afghanistan were scheduled to end. Several American officials said Thursday that the deadline had not been enforced.
Brennan will never give up his prized signature strikes. Greg Miller does note, though, that this strike was one of the last ones for “Roger”, who headed the counterterrorism center and was Brennan’s right hand man for signature strikes. But I’m pretty sure that we can count on Brennan to get Roger’s replacement up to speed on his prized tool very quickly.
There has been some good commentary on NYT’s story on Administration debates over killing Mohanad Mahmoud al-Farekh, the American citizen who was captured and charged in federal court on April 2, after the Administration considered but then decided against drone-killing him. Both David Cole and Brett Max Kaufman ask raise some important points and questions. Of particular note, they ask what the fuck Mike Rogers was doing pushing DOD and CIA to kill a US citizen.
Yet neither of those pieces gets to something I’m puzzling over. Al-Farekh was charged in EDNY (Loretta Lynch’s district), but he was only charged with conspiracy to commit material support for terrorism, a charge that carries a 15 year maximum sentence. Basically, he is accused of conspiring with Ferid Imam who in turn trained Najibullah Zazi and his co-conspirators for their planned 2009 attack on the NY Subway system.
In approximately 2007, Farekh, an individual named Ferid Imam and a third co-conspirator departed Canada for Pakistan with the intention of fighting against American forces. They did not inform their families of their plan before departing, but called a friend in Canada upon arrival to let him know that he should not expect to hear from them again because they intended to become martyrs. According to public testimony in previous criminal trials in the Eastern District of New York, in approximately September 2008, Ferid Imam provided weapons and other military-type training at an al-Qaeda training camp in Pakistan to three individuals – Najibullah Zazi, Zarein Ahmedzay and Adis Medunjanin – who intended to return to the United States to conduct a suicide attack on the New York City subway system. Zazi and Ahmedzay pleaded guilty pursuant to cooperation agreements and have yet to be sentenced; Medunjanin was convicted after trial and sentenced to life imprisonment. Ferid Imam has also been indicted for his role in the plot.
But the evidence laid out in the complaint is rather thin, basically amounting to the second-hand reports that al-Farekh, like Zazi and his friends, traveled to Pakistan for terrorist training.
Were we really going to kill this dude with a drone because he got terrorist training in Pakistan? That’s it?
Now, it’s quite possible the government is just charging him with the crimes the evidence for which they can introduce in a trial — though note that the government got a FISC warrant to collect on him (though it’s possible this is drone-based collection, and so sensitive enough they wouldn’t want to use it at trial).
Drones spotted him several times in the early months of 2013, and spy agencies used a warrant issued by the Federal Intelligence Surveillance Court to monitor his communications.
It’s equally possible that al-Farekh will be indicted on further charges, a more central role in plotting attacks out of the tribal lands of Pakistan. Similarly, it’s possible that al-Farekh’s High Value Interrogation Group interrogation — reported as well in this WaPo story — provided valuable intelligence on other militants that will have nothing to do with his own trial.
Still, both the earlier WaPo story (written in part by Adam Goldman, who wrote the book on the Zazi case) and the NYT story hint that the claims made about al-Farekh’s activities in 2013 have proven to be overblown. The WaPo doesn’t provide much detail.
Officials said there were questions about how prominent a role Farekh played in al-Qaeda.
The NYT provides more.
But the Justice Department, particularly Attorney General Eric H. Holder Jr., was skeptical of the intelligence dossier on Mr. Farekh, questioning whether he posed an imminent threat to the United States and whether he was as significant a player in Al Qaeda as the Pentagon and the C.I.A. described.
Once in Pakistan, Mr. Farekh appears to have worked his way up the ranks of Al Qaeda, his ascent aided by marrying the daughter of a top Qaeda leader.
American officials said he became one of the terrorist network’s planners for operations outside Pakistan, a position that included work on the production and distribution of roadside bombs used against American troops in Afghanistan.
Some published reports have said that Mr. Farekh held the third-highest position in Al Qaeda, but Americans officials said the reports were exaggerated.
His level in the Qaeda hierarchy remains a matter of some dispute. Several American officials said that the criminal complaint against him underplayed his significance inside the terrorist group, but that the complaint — based on the testimony of several cooperating witnesses — was based only on what federal prosecutors believed they could prove during a trial.
This, then — along with the explicit connection with the Awlaki case, based as it was, at least at first, on Umar Farouk Abdulmutallab’s interrogation and all the reasons to doubt it — seems the big takeaway. We almost killed this dude, but now all we can prove is that he trained in Pakistan.
Ironically, Philip Mudd argues for the NYT that we can’t capture these people because we’d have to rely on our intelligence partners.
But many counterterrorism specialists say capturing terrorism suspects often hinges on unreliable allies. “It’s a gamble to rely on a partner service to pick up the target,” said Philip Mudd, a former senior F.B.I. and C.I.A. official.
Of course, these are often the same people we rely on for targeting intelligence, including against both Awlaki and al-Farekh. What does it say that we’d believe targeting information from allies, but not trust them to help us arrest the guys they apparently implicate?
Whatever that says, the story thus far (it could change) is that al-Farekh was almost killed on inadequate evidence because CIA and DOD were champing at the bit. That ought to be the big takeaway.