Once Again, Congress Reads Stuff It Should Have Received from the Administration in NYT

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Remember the excuse an anonymous Administration source Senator gave to explain why the Administration was not sharing some of the OLC memos on drone killing with the intelligence committees that by law oversee them?

Because the agreements with Pakistan and Yemen were too sensitive.

A senator who sits on the Intelligence Committee and has read some of the memos also said that the still-unreleased memos contain secret protocols with the governments of Yemen and Pakistan on how targeted killings should be conducted. Information about these pacts, however, were not in the OLC opinions the senator has been allowed to see.

In a preview of his new book, Mark Mazzetti describes what is surely in one of them: the “side payment” strikes — targeting Pakistan’s enemies, not our own — we carried out so as to gain access to Pakistani airspace so we could target others.

Mr. [Nek] Muhammad [a Pakistani Taliban ally] and his followers had been killed by the C.I.A., the first time it had deployed a Predator drone in Pakistan to carry out a “targeted killing.” The target was not a top operative of Al Qaeda, but a Pakistani ally of the Taliban who led a tribal rebellion and was marked by Pakistan as an enemy of the state. In a secret deal, the C.I.A. had agreed to kill him in exchange for access to airspace it had long sought so it could use drones to hunt down its own enemies.

[snip]

Pakistani officials had, for several years, balked at the idea of allowing armed C.I.A. Predators to roam their skies. They considered drone flights a violation of sovereignty, and worried that they would invite further criticism of Mr. Musharraf as being Washington’s lackey. But Mr. Muhammad’s rise to power forced them to reconsider.

The C.I.A. had been monitoring the rise of Mr. Muhammad, but officials considered him to be more Pakistan’s problem than America’s. In Washington, officials were watching with growing alarm the gathering of Qaeda operatives in the tribal areas, and George J. Tenet, the C.I.A. director, authorized officers in the agency’s Islamabad station to push Pakistani officials to allow armed drones. Negotiations were handled primarily by the Islamabad station.

As the battles raged in South Waziristan, the station chief in Islamabad paid a visit to Gen. Ehsan ul Haq, the ISI chief, and made an offer: If the C.I.A. killed Mr. Muhammad, would the ISI allow regular armed drone flights over the tribal areas?

In secret negotiations, the terms of the bargain were set. Pakistani intelligence officials insisted that they be allowed to approve each drone strike, giving them tight control over the list of targets.

[snip]

The ISI and the C.I.A. agreed that all drone flights in Pakistan would operate under the C.I.A.’s covert action authority — meaning that the United States would never acknowledge the missile strikes and that Pakistan would either take credit for the individual killings or remain silent.

So in the name of the war on al Qaeda we’re killing non-al Qaeda so as to win the ability to kill al Qaeda.

And the Administration didn’t want to explain all that to the intelligence committees.

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The Warsame Model

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I’ll have more to say about the unsealing of the Ahmed Warsame guilty plea as the week goes forward.

But for the moment I wanted to note a few details of this story describing how the government plans to use the Warsame case as a model for other alleged terrorists — captured, interrogated under law of war conditions for months, and then clean-teamed by the FBI for prosecution in US civilian courts.

Family affairs?

First, note the terse comment from Warsame’s attorney:

Priya Chaudhry, an attorney for Warsame, said she could not comment on his cooperation. She said she was “working very hard to keep his family safe,” adding that the U.S. government was helping.

The impression I’ve gotten from my scant access to the coverage of this case is that this concept — our promise to keep Warsame’s family safe as one reason he cooperated — has been interpreted as keeping the family safe from al Qaeda associates. And the plea agreement actually talks about the Witness Security Program, suggesting Warsame’s family could be resettled in the US or elsewhere in exchange for his cooperation. Kudos to us if we in fact used Warsame’s family solely as some guarantee that his cooperation wouldn’t get them killed.

But remember there’s also been an increasing trend of using threats against family members to coerce cooperation from alleged terrorists and the like, from the kidnapping of Khalid Sheikh Mohammed’s kids to the detention of Faisal Shahzad’s family. Given that history, I’d suggest we might ask whether we’re protecting Warsame’s family from al-Shabaab or from the US?

I look forward to learning more about this, because if the US has finally returned to using carrots as well as — or even better, when innocent family members are involved, instead of — threats against the family, that would be a worthwhile development. But in the very recent past — indeed, even since Warsame’s capture — we have preferred to use threats.

Magic Awlaki information

I’m also interested by the timing of the unsealing of the Warsame plea.

The timing of the unsealing may be most closely connected to the sentencing of Mohamed Ibrahim Ahmed, a Somali-Swede who was sentenced to nine-plus years on Wednesday for materially supporting al Shabaab. Warsame would have testified against Ahmed if his case had gone to trial, though that was made clear before Ahmed himself plead guilty last June, so it’s not new information. As Ahmed’s attorney Sabrina Shroff describes, “It’s like you’re using the consigliere as a snitch against the soldier.” But because the revelation of the unsealing and the Ahmed’s sentencing coincided, it provides an easy way for the government to point to tangible intelligence that Warsame had provided, against however minimal a target.

Nevertheless, I wonder if this news flash doesn’t tie to the government’s efforts to lay out a case against Awlaki (and the still promised talk from the President about drones, and presumably Awlaki’s targeting).

If I’m not mistaken, the first we explicitly heard of Warsame implicating AQAP members comes from the NYT Awlaki production, which described Warsame providing intelligence on Samir Khan.

In April 2011, the United States captured Ahmed Abdulkadir Warsame, a Somali man who worked closely with the Qaeda affiliate in Yemen. He was held aboard a naval vessel for more than two months and spoke freely to interrogators, including about his encounters with the former North Carolina man now editing the group’s magazine, Samir Khan.

While the United States had long tracked Mr. Khan, the new details from the Warsame interrogation raised the question of whether another American citizen should be considered for targeting. There was still scant evidence tying Mr. Khan to any specific plot, so the administration left him off the list. But events would not turn out so neatly.

Note what that information amounted to: nothing tying Khan to any plot, still nothing indicating he was operational. Indeed, if Khan had been rendered rather than killed, Warsame’s failure to tie Khan to operations might have counted as exonerating information.

Now, the WaPo story reveals that Warsame also provided intelligence on Awlaki.

He also provided information about Awlaki, who had become a major target for a capture or kill operation after he was tied to an attempt to bring down a commercial aircraft over Detroit. “He was a guy who was in fairly regular contact with Awlaki and talked about his contacts with Awlaki and Awlaki’s patterns of life,” said the former administration official.

But again, neither the WaPo nor the earlier NYT (which relied on information about Warsame’s interrogations) describes information implicating Awlaki. Rather, the WaPo seems to imply Warsame helped to track down Awlaki (remember: Awlaki had a near miss in May 2011, a month after Warsame’s capture).

All that said, I wouldn’t be surprised if we got magical leaks in upcoming days stating that Warsame did provide intelligence against Awlaki in 2011. That would add something to the government narrative they currently utterly lack — any reasonably fresh intelligence against Awlaki at the time he was killed, rather than the 12 and 20-month old and problematic intelligence tied to the toner cartridge and underwear bomb plots. It would also give us something they don’t otherwise have: someone who would have testified against Awlaki.

The NYT case against Awlaki not only had significant holes and slanted coverage, but there are further problems with the Umar Farouk Abdulmutallab intelligence I hope to lay out going forward. Ultimately, just weeks after Awlaki’s death the government went forward with a conspiracy charge against Abdulmutallab but never (as far as we know) indicted the guy they much later claimed was the key driver of that conspiracy, Awlaki. That says something about the confidence they had in the case against Awlaki even as they killed him, at least as it related to the underwear bomb plot.

Which is why, if Warsame did provide more viable intelligence against Awlaki, I expect we’ll be hearing about it in upcoming weeks.

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Disposition Matrix: $5 Million Rewards in Lieu of Kill Lists?

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Mike Rogers, perhaps bolstered by the Administration’s insistence that he can say all he wants about drone targeting without it amounting to “admission” of the program for FOIA purposes, ran his mouth the other day about whether any Americans are currently on the kill list.

“There is no list where Americans are on the list,” House Intelligence Chairman Mike Rogers told National Journal. Still, he suggested, that could change.

[snip]

“Some notion that every American would even rise to the list by just going over and even signing up is, candidly, just not the truth,” Rogers said.

Awlaki, Rogers said, was unique among homegrown terrorists—he publicly declared jihad against the United States, and he was involved in multiple terrorist-related plans, including the failed Christmas Day bombing and the Fort Hood shooting.

“What worries me is they are taking this isolated case and saying, ‘Oh well, there’s a list of Americans, and you could be on the list of Americans.’ That just simply is not how this works,” he said.

But Rogers, who said he reviews every strike after it is carried out and sends his staff to a monthly meeting with intelligence officials to ensure staffers have enough information on the strike program, cautioned that should another American citizen again attain the status Awlaki did, the U.S. government has the authority to kill him.

“If you ever got another American who rose to that same level in the ranks and leadership role in al-Qaida and they were operating in Yemen or Mali or southern Algeria or Libya, well, they’ve picked their team, and their team is al-Qaida. And the United States is in conflict with al-Qaida. In the rules of war, you’re allowed to defend yourself.”

And while the White House has no comment about Rogers running his mouth, just after he did so, the Administration announced $5 million rewards for tips leading to the capture of two American extremists, Omar Shafik Hammami and Jehad Serwan Mostafa, who have both been indicted on charges of materially supporting a terrorist organization. The Rewards for Justice descriptions, however, say Hammami and Mostafa have done more than just materially support terror.

It accuses Hammami of serving as a military leader.

In 2006, Hammami moved to Somalia where he joined and received training from Islamist militants. In 2007, Hammami began serving as a propagandist for al-Shabaab, helping to recruit English-speaking youth through his writings, rap songs, and televised statements. He also served as a military leader for al-Shabaab, and he at one time led foreign fighters under Jehad Mostafa.

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Yemeni Government Intensifies Harassment of Journalist Who Presented Counter-Evidence to US Case against Awlaki

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Ever since I wrote this post, I’ve been thinking about the fate of Yemeni journalist Abdulelah Haider Shaye. As Jeremy Scahill reported last year, President Obama personally intervened in February 2011 to make sure that Shaye would remain in prison, for terrorism charges presented at a kangaroo court, for at least five years.

In the course of pointing out the holes in the NYT piece on Anwar al-Awlaki, I revisited the discrepancy between what, according to DOJ, Umar Farouk Abdulmutallab confessed to immediately after he was arrested on December 25, 2009 and what, according to DOJ, he said in interrogations conducted a month and more later. I’m now convinced, at a minimum, that the discrepancies are much more problematic than I thought when I first reported the discrepancy, and I also think (though I’m still working on this) that the original confession may be more reliable given other known facts. If that’s true, it significantly undermines the government’s case against Awlaki, as Abdulmutallab is the key known witness attesting to Awlaki’s operational role which — at least publicly — is the key criteria that must be met before Awlaki’s killing was legal (though at precisely the moment Abdulmutallab started cooperating, Dennis Blair described the standard to be something different).

Which brings me to this article, which reports on an interview Shaye conducted with Awlaki some time after the UndieBomb attack, presumably at least several days before it was published and therefore before Abdulmutallab started cooperating. The story originally took Awlaki’s acknowledgment he had “communications” with Abdulmutallab to support its claim that Awlaki “met” with the UndieBomber.

Anwar al-Awlaki, the fugitive American-born cleric accused of terrorist ties, acknowledged for the first time that he met with the Nigerian suspect in the Dec. 25 airliner bomb plot, though he denied any role in the attack, according to a Yemeni journalist who said he met with him.

Mr. Awlaki said he had met and spoken with the Nigerian suspect, Umar Farouk Abdulmutallab, in Yemen last fall, according to the journalist, Abdulelah Hider Sha’ea, who played a digital recording of the cleric’s comments for this reporter.

[snip]

“Umar Farouk is one of my students; I had communications with him,” Mr. Awlaki can be heard saying on the recording. “And I support what he did, as America supports Israel’s killing of Palestinians, and its killing of civilians in Afghanistan and Iraq.”

[snip]

Mr. Awlaki, 38, said on the recording that he had no part in the planning or execution of the bomb plot. He did not say whether he had advance knowledge of it. “I did not tell him to do this operation, but I support it,” Mr. Awlaki said on the tape, adding that he was proud of Mr. Abdulmutallab. [my emphasis]

Nine days later it added this correction, and took the word “met” out of the second though not lead paragraph of the article.

An article last Monday about possible connections between Anwar al-Awlaki, a fugitive American-born cleric accused of terrorist ties, and Umar Farouk Abdulmutallab, the Nigerian suspect in the Christmas Day plot against an American passenger jet, paraphrased incorrectly from comments by a Yemeni journalist about the relationship between the two men. The journalist, Abdulelah Hider Sha’ea, said that Mr. Awlaki told him he had “communications” with Mr. Abdulmutallab last fall, not that the two men had met in person. [my emphasis]

To be sure, the correction (which presumably came from Shaye and not Awlaki) doesn’t rule out Awlaki meeting with Abdulmutallab; it just clarifies that’s not what Awlaki said (or even, to take the most cynical view, that Shaye shifted the emphasis after reports of Abdulmutallab’s cooperation were made public).

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Pivot, Damnit!

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Remember how during Chuck Hagel’s confirmation I kept insisting that Hagel actually had an intelligence oversight role at the President’s Intelligence Advisory Board that might be pertinent to the confirmation battle?

Turns out PIAB wasn’t just scrounging intelligence for their own contracting interests, as often happens with PIAB and its predecessor PFIAB.

A panel of White House advisers warned President Obama in a secret report that U.S. spy agencies were paying inadequate attention to China, the Middle East and other national security flash points because they had become too focused on military operations and drone strikes, U.S. officials said.

Led by influential figures including new Defense Secretary Chuck Hagel and former senator David L. Boren (D-Okla.), the panel concluded in a report last year that the roles of the CIA, the National Security Agency and other spy services had been distorted by more than a decade of conflict.

And while the WaPo focuses on the way this report might have influenced John Brennan — who repeatedly said he’d assess the “allocation of mission” at CIA — I’m just as interested in how the report influenced James Clapper, who recently testified we face a more diverse set of threats than ever before.

This year, in both content and organization, this statement illustrates how quickly and radically the world—and our threat environment—are changing. This environment is demanding reevaluations of the way we do business, expanding our analytic envelope, and altering the vocabulary of intelligence. Threats are more diverse, interconnected, and viral than at any time in history.

If so, I find it interesting that rather than focusing on China, Clapper focused on cyber and — to an unremarked degree — food insecurity (AKA climate change). That is, the report seems to say we need to refocus on China, but Clapper seems to be focusing on cyber instead (which is sort of a focus on China, as will food insecurity be).

One more point. The WaPo suggests that the report said we’re wasting too much energy on drones, and rehashes today’s drone-to-DOD announcement, including this predictable tidbit.

The White House also is weighing whether to give the Defense Department more control over the drone campaign and reduce the CIA’s role, although officials cautioned that the change could take years and probably would not involve CIA drone operations in Pakistan. [my emphasis]

But it doesn’t consider what it means that one of the guys who chaired this report is now in charge of the agency that is reportedly getting all the drones.

First Obama’s Moral Rectitude Drone Assassination Czar, after setting up a Drone Rule Book, will spin off CIA’s drone program (except for Pakistan, and maybe not for another few years, and, well, maybe he’s got his fingers crossed a little bit, covertly) to DOD. Meanwhile, it turns out the guy getting that drone program, former PIAB co-Chair and now Secretary of Defense, thinks we need fewer drones and more real intelligence.

Funny how that works out.

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Breaking! Brennan Extends No Rule Drones for 2 Years

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It’s hard to take this story — reporting, Exclusive: No More Drones for CIA — all that seriously given this assertion:

Brennan has publicly stated that he would like to see the CIA move away from the kinds of paramilitary operations it began after the September 11 attacks, and return to its more traditional role of gathering and analyzing intelligence.

Here’s what Brennan has in fact said about paramilitary operations and the CIA, in statements to Congress and therefore presumably with a bit more legal weight than what he says secretly to journalists.

What role do you see for the CIA in paramilitary-style intelligence activities or covert action?

The CIA, a successor to the Office of Strategic Services, has a long history of carrying out paramilitary-style intelligence activities and must continue to be able to provide the President with this option should he want to employ it to accomplish critical national security objectives.

How do you distinguish between the appropriate roles of the CIA and elements of the Department of Defense in paramilitary-style covert action?

As stated in my response to Question 6 above, the CIA and DOD must be ready to carry out missions at the direction of the President. The President must be able to select which element is best suited. Factors that should be considered include the capabilities sought, the experience and skills needed, the material required, and whether the activity must be conducted covertly. [my emphasis]

What Brennan does have the habit of doing is providing evasive answers when people who want CIA out of the paramilitary business ask him about it, as he did several times in his confirmation hearing.

MIKULSKI: So, let me get to my questions. I have been concerned for some time that there is a changing nature of the CIA, and that instead of it being America’s top spy agency, top human spy agency to make sure that we have no strategic surprises, that it has become more and more executing paramilitary operations.

And I discussed this with you in our conversation. How do you see this? I see this as mission-creep. I see this as overriding the original mission of the CIA, for which you’re so well versed, and more a function of the Special Operations Command. Could you share with me how you see the CIA and what you think about this militarization of the CIA that’s going on?

BRENNAN: Senator, the principal mission of the agency is to collect intelligence, uncover those secrets, as you say, to prevent those strategic surprises and to be the best analytic component within the U.S. government, to do the allsource analysis that CIA has done so well for many, many years. At times, the president asks and directs the CIA to do covert action. That covert action can take any number of forms, to include paramilitary.

[snip]

And the CIA should not be doing traditional military activities and operations.

Now, Brennan has actually made that last comment — that he wants CIA out of traditional military activities — several times, as well.

From this we can make the following conclusions:

  • If flying remotely piloted aerial vehicles and shooting missiles from them is a traditional military operation — and they sure should be — then Brennan wants out.
  • If flying remotely piloted aerial vehicles and shooting missiles from them is a paramilitary operation (which is the implied understanding of most people who comment on this), then Brennan very much plans on keeping that capability in case the President wants to conduct such operations covertly.

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Why Would Jeh Johnson Suggest the Drone and/or Targeted Killing Court Would Be Bipartisan?

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I’ll have more to say about Jeh Johnson’s skeptical speech on a drone and/or targeted killing court later.

But I wanted to point to this detail:

Our government finds itself in a lose-lose proposition: it fails to officially confirm many of its counterterrorism successes, and fails to officially confirm, deny or clarify unsubstantiated reports of civilian casualties.

Our government’s good efforts for the safety of the people risks an erosion of support by the people.

It is in this atmosphere that the idea of a national security court as a solution to the problem — an idea that for a long time existed only on the margins of the debate about U.S. counterterrorism policy but is now entertained by more mainstream thinkers such as Senator Diane Feinstein and a man I respect greatly, my former client Robert Gates – has gained momentum.

To be sure, a national security court composed of a bipartisan group of federal judges with life tenure, to approve targeted lethal force, would bring some added levels of credibility, independence and rigor to the process, and those are worthy goals.

In the eyes of the American public, judges are for the most part respected for their independence.

In the eyes of the international community, a practice that is becoming increasingly controversial would be placed on a more credible footing. [my emphasis]

As I understand it, the model under discussion is simply to give the existing FISA Court the additional task of reviewing kill decisions, not creating a new court.Yet the FISA Court — whose judges are appointed by the Chief Justice of the Supreme Court (and therefore, for the entire life of the FISA Court, by a Republican appointee) — is in no way bipartisan.

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Ben Emmerson: Dupe on Two Continents, or Politically Savvy Diplomat?

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If I’m not mistaken, the people accusing UN Special Rapporteur on Human Rights and Counterterrorism, Ben Emmerson, of condoning lies in his recent report on drone strikes in Pakistan had no such reaction when Emmerson endorsed John Brennan to head the CIA.

That’s not surprising. Some of the same people consistently read articles presenting evidence that Brennan was not the moderating force on the drone program his boosters claimed and yet parroted the headlines of those articles that said he was.

Don’t get me wrong. Like these Emmerson critics, I take Emmerson’s report solely for what it is: a report on what the civilian, democratically-elected leadership of Pakistan wants to say about drone strikes in Pakistan, not a report on what is really going on in Pakistan, largely under the leadership of Pakistan’s permanent shadow government. Indeed, I was one of the first to point out how Emmerson’s inability to talk to Pakistan’s military and ISI in his reporting trip highlighted the differences between what civilian and military in Pakistan were saying, rather than reflected any “reality” on the ground.

What the release does, then, is lay out in stark contrast the degree to which Pakistan’s civilian and military authorities are sending different messages.

I just read Emmerson’s motives to be different than, simply, sanctioning a lie.

Indeed, I think his comments to Spencer Ackerman and Jack Goldsmith’s interpretation on his endorsement of Brennan might offer some insight on how he’s approaching his efforts to put some legal framework on the use of drones internationally, and why he presented Pakistan’s claims with such seeming credulity.

Emmerson told Spencer that while he might not agree with policies Brennan endorses, having him lead CIA would at least make the program more accountable.

“By putting Brennan in direct control of the CIA’s policy [of targeted killings], the president has placed this mediating legal presence in direct control of the positions that the CIA will adopt and advance, so as to bring the CIA much more closely under direct presidential and democratic control,” Emmerson says. “It’s right to view this as a recognition of the repository of trust that Obama places in Brennan to put him in control of the organization that poses the greatest threat to international legal consensus and recognition of the lawfulness of the drone program.”

“Warts and all” conversations with current and former Obama administration officials convince Emmerson that Brennan tried to steer the drone program from a “technology-driven process” to one that attempted to balance the interests of the law, counterterrorism, and the agencies involved in implementing it. “There are significant elements within the CIA who are unhappy about Brennan’s appointment,” Emmerson says. “These are the hawkish elements inside the CIA who would rather have as a director someone who reflected their agenda, rather than someone who is there to impose the president’s agenda.”

Emmerson says he can’t know if Brennan will actually carry out fewer drone strikes at the CIA. “What I’m saying is, Brennan has been the driving force for the imposition of a single consistent and coherent analysis, both legal and operational, as to the way the administration will pursue this program,” he explains. “I’m not suggesting that I agree with that analysis. That’s not a matter for me, it’s a matter for states, and there’s a very considerable disagreement about that. But what I am saying is that what he will impose is restraint over the wilder ambitions of the agency’s hawks to treat this program in a manner that is ultimately unaccountable and secret.” [my emphasis]

Jack Goldsmith deems Emmerson’s acceptance of the myth that the CIA has been operating in rogue fashion as gullible or naive–critically, some of the same adjectives being used to describe his reporting on Pakistan.

By confirming Emmerson’s ex ante bias that the CIA is a cowboy institution operating lawlessly and beyond presidential control, the officials and former officials who talked to Emmerson are clearly trying to protect the President and the White House (and, no doubt, themselves) from Emmerson’s investigation at the expense of the CIA.  Emmerson’s gullibility or naivete (if those are the right terms) on this matter makes clear what has been pretty clear from the beginning, namely, that the CIA, and not the USG, is his real target.

I would suggest, however, that whether Emmerson is being naive or savvy, the effect is the same. He aggressively supported Brennan taking the helm at CIA (in a way that Goldsmith notes may make his life more difficult at CIA).

A position where, it should be said, Brennan will reportedly be operating outside the Drone Rulebook he himself devised.

But, according to both the analysis of Emmerson and those who are calling him naive, given Brennan’s close relationship with Obama, even those off-rulebook drone strikes will now operate with no plausible deniability. Whether CIA was genuinely operating as a cowboy before or not, going forward it will be almost impossible to argue it is doing so, because Brennan, a very close Obama aide, will be overseeing the program.

I think both Emmerson’s endorsement of Brennan and his presentation of a view the civilian government of Pakistan would like to tell rather than the reality serve the same purpose: To highlight the way drone wars operate within big loopholes of democratic accountability and possibly, to move towards eliminating those loopholes.

Emmerson is a UN diplomat operating with almost no leverage, and I’m not at all confident he’ll succeed.

But his effort seems to understand a point I’ve long made about drones and Rosa Brooks has recently been addressing as well. Beyond any question about efficacy and civilian casualties, conducting drone strikes as we have been undermines the principles of sovereignty (which, it should be said, is an important part of any authority the UN might have over such issues) in both targeted and targeting states.

Maybe I’m misreading Emmerson’s actions as being far more astute than they really are–maybe he is the dupe his critics make him out to be. But he seems to be using his public statements to address the underlying problems with imposing some international legal framework on drones as much as he is the specifics.

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Congratulations to Pakistan for Peaceful Transfer of Civilian Power the Military Ignores

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McClatchy has an article hailing the Pakistani Parliament’s ability to serve out its entire five year term without being overthrown.

Pakistan’s Parliament completed its term Saturday and the coalition government was dissolved, the first time in the country’s history that a democratically elected government has served its full five years in office.

The way is now open for elections and an unprecedented peaceful transfer of power to another elected administration, even though the country is plagued by political instability.

“This is a milestone in the political history of Pakistan,” said Rasul Bakhsh Rais, a political science professor at the Lahore University of Management Sciences. “The significance is that there is consensus among all political parties that democracy must continue, no matter how good or bad.”

He added, “The only way to improve the quality of democratic government is democratic continuity.”

Pakistan has long been dominated by its giant military, which until Saturday had scuttled every previous Pakistan experiment with democracy. The United States, which has supported military governments in Pakistan in the past, blames the military for supporting radical Islamist groups and keeping relations tense with India and hopes that the establishment of democracy will weaken the army sufficiently to force it to give up its support for extremist groups.

[snip]

Opposition leader Nawaz Sharif has won praise for not seeking to topple the PPP government, and army chief Gen Ashfaq Kayani has been lauded, especially by the United States and other Western powers, for staying out of politics more than his predecessor had. [my emphasis]

And while I don’t want to diminish this achievement, I find the celebration ironic given this report, from the UN’s Special Rapporteur on Human Rights and Counterterrorism, Ben Emmerson, reporting on his trip to investigate America’s use of drones in Pakistan. In it, Emmerson pointed to a number of pieces of evidence showing Pakistan does not consent to our drone strikes on its soil.

The Special Rapporteur was informed that Pakistan considers that its own democratically elected civilian Government, aided by its law enforcement agencies and military forces, are best placed to judge how to achieve a lasting peace in the region, and that interference by other States in this process has been, and continues to be, counter-productive to those efforts.

[snip]

Officials stated that reports of continuing tacit consent by Pakistan to the use of drones on its territory by any other State are false, and confirmed that a thorough search of Government records had revealed no indication of such consent having been given. Read more →

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DC Circuit Sends CIA’s Glomar Claims Back to the Drawing Board

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The DC Circuit just remanded the ACLU’s drone targeted killing lawsuit (the one I talked about here) to the District Court.

The decision is based on a theory Merrick Garland used in the hearing (which Wells Bennett analyzed here). Whether or not the CIA had admitted to the agency being involved in drones, it had admitted to having an interest in them. Which makes any claim that it cannot reveal it has documents ridiculous.

And there is still more. In 2009, then-Director of the CIA Leon Panetta delivered remarks at the Pacific Council on International Policy. In answer to a question about “remote drone strikes” in the tribal regions of Pakistan, Director Panetta stated:

[O]bviously because these are covert and secret operations I can’t go into particulars. I think it does suffice to say that these operations have been very effective because they have been very precise in terms of the targeting and it involved a minimum of collateral damage. . . . I can assure you that in terms of that particular area, it is very precise and it is very limited in terms of collateral damage and, very frankly, it’s the only game in town in terms of confronting and trying to disrupt the al-Qaeda leadership.8

It is hard to see how the CIA Director could have made his Agency’s knowledge of — and therefore “interest” in — drone strikes any clearer. And given these statements by the Director, the President, and the President’s counterterrorism advisor, the Agency’s declaration that “no authorized CIA or Executive Branch official has disclosed whether or not the CIA . . . has an interest in drone strikes,” Cole Decl. ¶ 43; see CIA Br. 43, is at this point neither logical nor plausible.

It is true, of course, that neither the President nor any other official has specifically stated that the CIA has documents relating to drone strikes, as compared to an interest in such strikes. At this stage of this case, however, those are not distinct issues. The only reason the Agency has given for refusing to disclose whether it has documents is that such disclosure would reveal whether it has an interest in drone strikes; it does not contend that it has a reason for refusing to confirm or deny the existence of documents that is independent from its reason for refusing to confirm or deny its interest in that subject. And more to the point, as it is now clear that the Agency does have an interest in drone strikes, it beggars belief that it does not also have documents relating to the subject.

But again, there is more. In the above-quoted excerpt from the CIA Director’s Pacific Council remarks, the Director spoke directly about the precision of targeted drone strikes, the level of collateral damage they cause, and their usefulness in comparison to other weapons and tactics. Given those statements, it is implausible that the CIA does not possess a single document on the subject of drone strikes. Read more →

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