Assassination Permission Slips and Hall Passes

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Yesterday, Dennis Blair gave the House Intelligence Committee an explanation of the “specially permission” that the Government grants itself before it places a US citizen on its kill list.

The U.S. intelligence community policy on killing American citizens who have joined al Qaeda requires first obtaining high-level government approval, a senior official disclosed to Congress on Wednesday.

Director of National Intelligence Dennis C. Blair said in each case a decision to use lethal force against a U.S. citizen must get special permission.

“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.”

If you haven’t already, you should read Glenn Greenwald’s entire piece on why this stance violates US law. Here’s Glenn’s description of the legal background.

The severe dangers of vesting assassination powers in the President are so glaring that even GOP Rep. Pete Hoekstra is able to see them (at least he is now that there’s a Democratic President).  At yesterday’s hearing, Hoekstra asked Adm. Blair about the threat that the President might order Americans killed due to their Constitutionally protected political speech rather than because they were actually engaged in Terrorism.  This concern is not an abstract one.  The current controversy has been triggered by the Obama administration’s attempt to kill U.S. citizen Anwar al-Awlaki in Yemen.  But al-Awlaki has not been accused (let alone convicted) of trying to attack Americans.  Instead, he’s accused of being a so-called “radical cleric” who supports Al Qaeda and now provides “encouragement” to others to engage in attacks —  a charge al-Awlaki’s family vehemently denies (al-Awlaki himself is in hiding due to fear that his own Government will assassinate him).

The question of where First Amendment-protected radical advocacy ends and criminality begins is exactly the sort of question with which courts have long grappled.  In the 1969 case of Brandenburg v. Ohio, the Supreme Court unanimously reversed a criminal conviction of a Ku Klux Klan leader who — surrounded by hooded indivduals holding weapons — gave a speech threatening “revengeance” against any government official who “continues to suppress the white, Caucasian race.”  The Court held that the First Amendment protects advocacy of violence and revolution, and that the State is barred from punishing citizens for the expression of such views.  The Brandenburg Court pointed to a long history of precedent protecting the First Amendment rights of Communists to call for revolution — even violent revolution — inside the U.S., and explained that the Government can punish someone for violent actions but not for speech that merely advocates or justifies violence (emphasis added):

As we [395 U.S. 444, 448] said in Noto v. United States, 367 U.S. 290, 297 -298 (1961), “the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.” See also Herndon v. Lowry, 301 U.S. 242, 259 -261 (1937); Bond v. Floyd, 385 U.S. 116, 134 (1966). A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control.

From all appearances, al-Awlaki seems to believe that violence by Muslims against the U.S. is justified in retaliation for the violence the U.S. has long brought (and continues to bring) to the Muslim world.  But as an American citizen, he has the absolute Constitutional right to express those views and not be punished for them (let alone killed) no matter where he is in the world; it’s far from clear that he has transgressed the advocacy line into violent action.

I want to go back to just one more problem with this whole state of affairs.

We have been focusing all of our powers of telecom surveillance on Anwar al-Awlaki for at least a year (and probably far longer). Our government has tracked not only what he has said on jihadist websites, but also knows precisely what he has been emailing and presumably saying on the phone.

But none of that stuff, before Christmas Day, even merited an indictment.

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Holder to Republicans: Stop Being Such WATBs about Miranda Warnings and Mukasey's Decisions

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Eric Holder just sent the following letter to a bunch of whiny Republican Senators trying to make an issue about Americans respecting the rule of law. (I’m posting the whole thing bc there’s a lot of excellent smack down in it.)

Dear Senator McConnell:

I am writing in reply to your letter of January 26,2010, inquiring about the decision to charge Umar Farouk Abdulmutallab with federal crimes in connection with the attempted bombing of Northwest Airlines Flight 253 near Detroit on December 25, 2009, rather than detaining him under the law of war. An identical response is being sent to the other Senators who joined in your letter.

The decision to charge Mr. Abdulmutallab in federal court, and the methods used to interrogate him, are fully consistent with the long-established and publicly known policies and practices of the Department of Justice, the FBI, and the United States Government as a whole, as implemented for many years by Administrations of both parties. Those policies and practices, which were not criticized when employed by previous Administrations, have been and remain extremely effective in protecting national security. They are among the many powerful weapons this country can and should use to win the war against al-Qaeda.

I am confident that, as a result of the hard work of the FBI and our career federal prosecutors, we will be able to successfully prosecute Mr. Abdulmutallab under the federal criminal law. I am equally confident that the decision to address Mr. Abdulmutallab’s actions through our criminal justice system has not, and will not, compromise our ability to obtain information needed to detect and prevent future attacks.

There are many examples of successful terrorism investigations and prosecutions, both before and after September 11, 2001, in which both of these important objectives have been achieved — all in a manner consistent with our law and our national security interests. Mr. Abdulmutallab was questioned by experienced counterterrorism agents from the FBI in the hours immediately after the failed bombing attempt and provided intelligence, and more recently, he has provided additional intelligence to the FBI that we are actively using to help protect our country. We will continue to share the information we develop with others in the intelligence community and actively follow up on that information around the world.

1. Detention. I made the decision to charge Mr. Abdulmutallab with federal crimes, and to seek his detention in connection with those charges, with the knowledge of, and with no objection from, all other relevant departments ofthe government. On the evening of December 25 and again on the morning of December 26, the FBI informed its partners in the Intelligence Community that Abdulmutallab would be charged criminally, and no agency objected to this course of action. In the days following December 25 – including during a meeting with the President and other senior members of his national security team on January 5 – high-level discussions ensued within the Administration in which the possibility of detaining Mr. Abdulmutallab under the law of war was explicitly discussed. No agency supported the use of law of war detention for Abdulmutallab, and no agency has since advised the Department of Justice that an alternative course of action should have been, or should now be, pursued.

Since the September 11,2001 attacks, the practice of the U.S. government, followed by prior and current Administrations without a single exception, has been to arrest and detain under federal criminal law all terrorist suspects who are apprehended inside the United States. The prior Administration adopted policies expressly endorsing this approach. Under a policy directive issued by President Bush in 2003, for example, “the Attorney General has lead responsibility for criminal investigations of terrorist acts or terrorist threats by individuals or groups inside the United States, or directed at United States citizens or institutions abroad, where such acts are within the Federal criminal jurisdiction of the United States, as well as for related intelligence collection activities within the United States.” Homeland Security Presidential Directive 5 (HSPD-5, February 28,2003). The directive goes on to provide that “(following a terrorist threat or an actual incident that falls within the criminal jurisdiction of the United States, the full capabilities of the United States shall be dedicated, consistent with United States law and with activities of other Federal departments and agencies to protect our national security, to assisting the Attorney General to identify the perpetrators and bring them to justice.”

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Breaking! A Month of Interrogation Works Better than Waterboarding Someone 183 Times

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As Admiral Mullen just testified to Congress, Underwear Bomber Umar Abdulmutallab has been cooperating with the FBI.

The blood-thirsty right, of course, has been screaming all month that Abdulmutallab wasn’t taken immediately to a military facility to be tortured interrogated harshly.

That blood-thirst has always felt rather weird to me. Unlike all the others that the torture industry has made an exhaustive effort to sufficiently dehumanize such that we (or rather they) could all cheer torture, I have a tougher time doing that with Abdulmutallab. I know that Abdulmutallab is at this very minute less than twenty miles away from me (and for two days, he was just a few miles from my house). And even with that proximity, he just doesn’t feel like that big a threat to me right now.

Maybe that’s one reason they’ve been screaming for his torture, to make sure we don’t start to normalize the thought of these people in normal prisons.

Or maybe, they wanted to prevent precisely what has occurred. That is, in response to–presumably–normal FBI interrogation, Abdulmutallab has resumed cooperating with investigators.

They didn’t need to waterboard him!

Surprise, surprise. A month of interrogation works better than a month of waterboarding.

What Glenn Greenwald Said On American Terrorism Cowardice

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Just go read it. Because every word Glenn Greenwald wrote in his post today, entitled Nostalgia for Bush/Cheney Radicalism, is the gospel truth. It is rare that you will see a post here just pointing you somewhere else because the other source says it all. This is one of those times. Here is a taste:

How much clearer evidence can there be of how warped and extremist we’ve become on these matters? The express policies of the right-wing Ronald Reagan — “applying the rule of law to terrorists”; delegitimizing Terrorists by treating them as “criminals”; and compelling the criminal prosecution of those who authorize torture — are now considered on the Leftist fringe. Merely advocating what Reagan explicitly adopted as his policy — “to use democracy’s most potent tool, the rule of law against” Terrorists — is now the exclusive province of civil liberties extremists. In those rare cases when Obama does what Reagan’s policy demanded in all instances and what even Bush did at times — namely, trials and due process for accused Terrorists — he is attacked as being “Soft on Terror” by Democrats and Republicans alike. And the mere notion that we should prosecute torturers (as Reagan bound the U.S. to do) — or even hold them accountable in ways short of criminal proceedings — is now the hallmark of a Far Leftist Purist. That’s how far we’ve fallen, how extremist our political consensus has become.

Now go read the rest and weep for your country.

An Interesting Few Days for Al-Awlaki

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Earlier today, bmaz and I asked a series of questions about the significance of Anwar al-Awlaki’s name on the list of US citizens who can be assassinated with no due process.

bmaz: So, the US can put Awlaki on a list for death by assassination, but couldn’t, and apparently still cannot, form the basis to prosecute him criminally??

ew: And cannot prosecute him having had a tap on his phones going back–at the very least–at least a year?

ew: I wonder if [the targeting of Awlaki] is what happened to the William Webster inquiry into Awlaki’s communications with Nidal Hasan?

Today, Declassifed blog’s Mark Coatney asked a related question that I had earlier raised: Why was the Administration, immediately, so chatty about the Underwear Bomber, even while it remains very close-lipped about Nidal Hasan? (The Administration–though not, apparently, Webster–was supposed to brief the Intelligence Committees on the Hasan investigation today, which I guess makes it safe to assume Dana Priest’s article came up in the briefing, if Congress didn’t already know about the assassinations of American citizens.)

Capitol Hill officials say that the Obama White House and relevant government agencies have been very cooperative in supplying congressional oversight committees with a torrent of information—both raw intelligence and law-enforcement material and results of internal administration inquiries—about alleged would-be Christmas Day underpants airplane bomber Umar Farouk Abdulmutallab. President Obama and other senior administration officials have said that in the months before Abdulmutallab boarded his flight from Amsterdam to Detroit, U.S. agencies had collected various “bits and pieces” of intelligence, which, had they been properly knitted together, might well have enabled U.S. authorities to foil Abdulmutallab’s attempted airplane bombing before he boarded his flight.

By contrast, the same officials allege that the administration has been relatively tightfisted with information, both from raw intelligence and law-enforcement files and from postmassacre investigations, on the background of the accused Fort Hood shooter. Congressional officials say they don’t know why the administration has been more reticent about Fort Hood than about the failed underpants attack, but that the contrast between how the cases have been treated up until now has been striking.

I’m glad I wasn’t the only one noticing the disparity in treatment of the two extremists.

More interesting than the confirmation that I’m not crazy in seeing the disparity, though, is the timeline revealed in several recent details on Al-Awlaki.

December 17, 2008: Nidal Hasan sends first email to al-Awlaki “asking for an edict regarding the [possibility] of a Muslim soldier killing his colleagues who serve with him in the American army”

November 5, 2009: Hasan killings in Ft. Hood

November 8, 2009: Al-Awlaki blesses Hasan’s killings

November 19, 2009: Underwear Bomber Umar Farouk Abdulmutallab’s father alerts US embassy of his concerns about his son

December 4, 2009:  Abdulmutallab leaves Yemen, having met with al Qaeda Arabian Peninsula members, possibly including al-Awlaki

December 22, 2009: FBI Deputy Director John Pistole provides classified briefing to Senate Homeland Security Committee on Fort Hood

December 23 (?), 2009: Al-Awlaki does interview with al-Jazeera that is subsequently posted to many jihadi forums

December 24, 2009: Strike in Yemen mistakenly thought to have hit al-Awlaki

December 25, 2009: Abdulmutallab attempts to blow up plane outside of Detroit

December 26, 2009: Crazy Pete Hoekstra says there may have been ties between al-Awlaki and Abdulmutallab

After December 24 but before end of 2009: Al-Awlaki added to JSOC list of those to be killed or captured

December 29: Moonie Times reports that al-Awlaki blessed Abdulmutallab’s plot beforehand (based on intelligence source)

If you match this timeline with the assertion that Awlaki had some tie with Abdulmutallab and that he was placed on the assassination list(s) just after Abdulmutallab’s attempted attack, then it seems clear that, after al-Awlaki’s ties to Hasan became clear, and after the attempted attack in Detroit, the Obama Administration almost immediately placed him on the list. Read more →

The List of US Citizens Targeted for Killing (or Capture)

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This Dana Priest article is interesting for the way it fleshes out the way the US is working in Yemen (primarily), Pakistan, and Somalia. But note this line, which she kind of buries in there.

As part of the operations, Obama approved a Dec. 24 strike against a compound where a U.S. citizen, Anwar al-Aulaqi, was thought to be meeting with other regional al-Qaeda leaders. Although he was not the focus of the strike and was not killed, he has since been added to a shortlist of U.S. citizens specifically targeted for killing or capture by the JSOC, military officials said. [my emphasis]

That is, somewhere there’s a list of Americans who, the President has determined, can be killed with no due process.

Priest goes on much later in the article.

After the Sept. 11 attacks, Bush gave the CIA, and later the military, authority to kill U.S. citizens abroad if strong evidence existed that an American was involved in organizing or carrying out terrorist actions against the United States or U.S. interests, military and intelligence officials said. The evidence has to meet a certain, defined threshold. The person, for instance, has to pose “a continuing and imminent threat to U.S. persons and interests,” said one former intelligence official.

The Obama administration has adopted the same stance. If a U.S. citizen joins al-Qaeda, “it doesn’t really change anything from the standpoint of whether we can target them,” a senior administration official said. “They are then part of the enemy.”

Both the CIA and the JSOC maintain lists of individuals, called “High Value Targets” and “High Value Individuals,” whom they seek to kill or capture. The JSOC list includes three Americans, including Aulaqi, whose name was added late last year. As of several months ago, the CIA list included three U.S. citizens, and an intelligence official said that Aulaqi’s name has now been added. [Update, February 17, 2010: WaPo has since retracted the report that CIA had US citizens on its kill list.]

Of course, they said Jose Padilla had close ties to al Qaeda, but those turned out to be more tenuous than originally claimed. Likewise the case against John Walker Lindh. And there are any number of “aspirational” terrorists whom officials have claimed had joined al Qaeda.

But I guess the tenuousness of those ties don’t really matter, when the President can dial up the assassination of an American citizen.

The Crotch-Bomber and Nidal Hasan Reviews

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The White House has released its summary of the intelligence review on the Christmas Crotch Bomber (and here is Obama’s order for corrective action). The big take-away is:

The US Government had sufficient information prior to the attempted December 25 attack to have potentially disrupted the AGAP attack.

But, the summary says, the Watch List system and the Intelligence Community are not broken; they just need to be improved.

All well and good.

But I’m curious by the quick turnaround on this report and the lack of any similar unclassified summary of the report on Nidal Hasan’s successful attack. For that matter, William Webster is still working on his review of the Hasan attack (which I understand to be a follow-up to just this kind of initial review).

Does that mean whatever the review found, preliminarily, could not be published? Meanwhile, the military has just appointed a “sanity board” to review Hasan’s competence to stand trial.

Jordan: CIA Attacker Was Pissed about Civilian Deaths

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As Time admits, the story the Jordanians are telling about the CIA suicide bomber,Humam Khalil Abu-Mulal al-Balawim may simply be their attempt at spin. Nevertheless, they’re saying that al-Balawi was not a double agent; rather he attacked the base because he was angry about all the civilian deaths

The Jordanians say that in December, al-Balawi requested an urgent meeting with the CIA and his Jordanian go-between, Captain Sharif Ali bin Zeid, reportedly a relation of the royal Jordanian family. To whet their appetite, al-Balawi dangled a tantalizing piece of information: he claimed to have “some information” on the whereabouts of al-Zawahiri, these sources say.

So why did al-Balawi, a seemingly trusted agent, switch sides? The Jordanian intelligence sources who spoke to TIME speculate that al-Balawi had become enraged at the Americans for killing a high number of civilians in their hunt for al-Qaeda and Taliban leaders. And al-Balawi, who felt partly responsible for these deaths because of his role in pointing out the targeted villages in which al-Qaeda militants had been hiding, may have been consumed by guilt. “It’s very possible that he decided to take revenge for the death of these Muslim civilians,” says a senior Jordanian official.
I expect these stories are going to remain very fluid for some time.

Crazy Pete Hoekstra Called On His Efforts to Profit Off of Terrorism

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I was in my holiday lull last week when the man who wants to be my Governor, Crazy Pete Hoekstra, callously tried to fundraise off of an attempted attack on a flight bound for Michigan.

My promise to you, as your governor, my first duty and most solemn responsibility is to keep Michigan safe!

For almost a decade I have been a leader on National Security and at the forefront of the war on terror. I understand the real and continuing threat radical jihadists pose to our great state of Michigan and our great Nation.

I have pledged that I will do “everything possible” to prevent these terrorists from coming to Michigan.

But I need your help.

If you agree that we need a Governor who will stand up the Obama/Pelosi efforts to weaken our security please make a most generous contribution of $25, $50, $100 or even $250 to my campaign.

Thankfully, for a change, the TradMed was not lulled by Crazy Pete’s fear-mongering. Here’s Terry Moran asking Crazy Pete why he tried to profit off of an attempted terrorist attack aimed at Michigan.

Someone should have told Crazy Pete that filibustering as shamelessly as he did here is a skill best used in the Senate, not in the Governor’s mansion.

It All Depends on Your Definition of Failure

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Politico is now aiding the fear-mongerers in declaring the Obama’s Administration’s response to a failed terrorist attack a failure (one, two, three, four, balanced by this).

And yet, little mention of the successes the Obama Administration has had: preventing Najibullah Zazi’s alleged attack attempt, rooting out efforts to recruit Somali youth from Minnesota, catching several self-radicalizing Americans. Indeed, the frenzy surrounding the Obama Administration’s failure to prevent a failed attack seems to exceed that surrounding questions about the handling of Nidal Hasan.

Meanwhile, there’s also little mention of the recent reports showing how badly the Bush Administration screwed up the Afghan war–a massive strategic failure that has allowed al Qaeda to sustain its threat. And real hypocrisy about the Bush Administration response to equivalent events, like the Shoe Bomber.

Right Wing Breaking News!! Failure failure failure (if you don’t look closely at all)!!!

But note the silence, thus far, about a real Obama Administration failure. (h/t Calculated Risk)

The Obama administration’s $75 billion program to protect homeowners from foreclosure has been widely pronounced a disappointment, and some economists and real estate experts now contend it has done more harm than good.

Since President Obama announced the program in February, it has lowered mortgage payments on a trial basis for hundreds of thousands of people but has largely failed to provide permanent relief. Critics increasingly argue that the program, Making Home Affordable, has raised false hopes among people who simply cannot afford their homes.

As a result, desperate homeowners have sent payments to banks in often-futile efforts to keep their homes, which some see as wasting dollars they could have saved in preparation for moving to cheaper rental residences. Some borrowers have seen their credit tarnished while falsely assuming that loan modifications involved no negative reports to credit agencies.

Some experts argue the program has impeded economic recovery by delaying a wrenching yet cleansing process through which borrowers give up unaffordable homes and banks fully reckon with their disastrous bets on real estate, enabling money to flow more freely through the financial system.

The Obama Administration’s unwillingness to force the banks sucking at the federal teat to take a haircut on mortgages whose value had been blown out of proportion by a captive mortgage industry is a damning failure, one that may lead us into a double dip recession, one which forces more and more families into dire circumstances. Even if you only care about national security, narrowly defined (as Republicans and Lieberman appear to), if the failure to solve the foreclosure crisis extends the recession, it’ll make it a lot harder to pay for all the cool war toys that seem to give fear-mongers big woodies.

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