Drone Oopsies in US Airpsace

As if on cue, Steven Aftergood just released this Air Force directive:

9.6.1. Air Force units with weapon system video and tactical ISR capabilities may collect imagery during formal and continuation training missions as long as the collected imagery is not for the purpose of obtaining information about specific US persons or private property. Collected imagery may incidentally include US persons or private property without consent. Imagery may not be collected for the purpose of gathering any specific information about a US person or private entity, without consent, nor may stored imagery be retrievable by reference to US person identifiers.

9.6.2. Air Force Unmanned Aircraft System (UAS) operations, exercise and training missions will not conduct nonconsensual surveillance on specifically identified US persons, unless expressly approved by the Secretary of Defense, consistent with US law and regulations. Civil law enforcement agencies, such as the US Customs and Border Patrol (CBP), Federal Bureau of Investigations (FBI), US Immigration and Customs Enforcement (ICE), and the US Coast Guard, will control any such data collected.

So while DOD drones flying over our airspace are not supposed to intentionally collect data on US persons unless the Secretary of Defense tells them to (but if the former CIA Director says it’s okay, I guess it’s okay then), if they incidentally collect information, it will be retained and/or passed onto a law enforcement agency like the FBI or ICE.

And once it gets to the FBI or ICE, the National Counterterrorism Center will get access to it. Which will allow them to data mine it with any of the other US person information they have in hand.

But don’t worry. Those six new drone test sites in the US won’t affect our privacy in the least!

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Did Another Saudi Double Agent “Tip” Us Off to a “Plot” Against America?

ABC reports that the UndieBomber 2.0 plot revealed yesterday in breathless fashion was exposed by a double agent that–given that he delivered the bomb to Saudi Arabia–was presumably being run by the Saudis just like all the other men the Saudis have infiltrated into AQAP.

In a stunning intelligence coup, a dangerous al Qaeda bomb cell in Yemen was successfully infiltrated by an inside source who secretly worked for the CIA and several other intelligence agencies, authorities revealed to ABC News.

The inside source is now “safely out of Yemen,” according to one international intelligence official, and was able to bring with him to Saudi Arabia the bomb al Qaeda thought was going to be detonated on a U.S.-bound aircraft.

So as happened when Jabir al-Fayfi revealed the toner cartridge plot, we can now celebrate the skill of our spooks without thinking too much about what it means that the Saudis are running this terror show. (Though at least we’ve reached the point where US outlets are reporting this, rather than just British outlets.)

But here are a few questions:

Have Republicans already claimed this guy was a “recidivist” Gitmo detainee, as they have with other double agents? That effectively gives them a two-fer on detainee exploitation, “proof” that Gitmo detainees are too dangerous to release, followed by “proof” that the terrorists are planning attacks (not to mention “proof” that the CIA has good intelligence on al Qaeda).

Was the “international intelligence official” who revealed this double agent to ABC Yemeni? The Yemenis leaked Jabir al-Fayfi’s role back in 2010. If they again leaked the involvement of this double agent, we might want to start asking ourselves whether they can be trusted to keep these double agents secret.

I argued that the decision to use signature strikes in Yemen seems like a Saudi-driven demand rather than a well-considered US decision. We apparently made that decision around the same time the US reportedly learned of this “plot.” If the Saudis were–as I suspect–running this double agent like all the other double agents we’ve infiltrated into AQAP, then did they “tip” this plot as a way to convince us to make what on its face looks like a boneheaded decision?

One more bit of possible irony to contemplate. Ibrahim al-Asiri–the AQAP bombmaker reportedly behind this plot–sent his own brother, Abdullah, out to assassinate Saudi Prince Mohammed bin Nayef back in 2009. The attempt failed. Since then, two of the men Nayef presumably infiltrated into AQAP have foiled Asiri’s bomb plots. It sort of makes you wonder how Saudi double agents keep getting close enough to al-Asiri to foil his plots, doesn’t it?

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Confessions of an Orwellian Oppenheimer

Drunken Predator has one of the smartest descriptions of what I agree are two of the biggest reasons to oppose drones. On one side, he describes “Oppenheimers” who oppose some international uses of drones out of concern for the way they expand the Imperial Presidency.

I’ll call the first group “Oppenheimers,” after a guy who got a good look at a new kind of warfare and spent the rest of his life championing international institutions to make sure it never took place. They feel that remotely-piloted aircraft represent a qualitative shift in the ability of a nation, and a chief executive, to use force. And not a shift for the better.

Oppenheimers think drones will usher in an Imperial presidency. The capitalization there is important, because we’re talking Imperial as in Palpatine at the helm of the Galactic Empire. They fear that through technical means, drones are reducing or eliminating the political impediments to war, and blurring the line about what kind of conflict constitutes war in the first place. (Nobody puts a flag over drone wreckage, let alone puts it on the nightly news.) Oppenheimers also deplore the role that drones play in the larger framework of the Authorization for Use of Military Force, or AUMF, which the Obama administration interprets as giving them clearance to use force (whether under Titles 10 or 50) against al-Qaeda or its affiliates anywhere on the planet.

The first part of his description–the way drones used outside of war zones change the way we wage war–gets at part of what I was trying to describe in my two posts on drones and sovereignty and the nation-state. Drones not only degrade the sovereignty of and therefore the ability to govern in states like Pakistan in dangerous ways, but they shift the relationship between us and our own government, allowing it to wage war relatively free of political limits, which in turn appears to be accompanying and related to fundamental changes in the social compact between the government and the governed.

I’d add two things to DP’s description, though. First, drones are not changing warfare alone. So are our expanded use of special forces (which, so long as they don’t fight in uniforms and fight in countries we’re not at war with, resemble the unprivileged enemy combatants and tactics this war started by targeting) and mercenaries. Those developments all work together to support the same changes in warfare; drones just happen to be the most visible evidence of those developments.

Also, this is not just about the AUMF. As I noted on Twitter, there are reasons to believe some of our drone strikes (and some of our paramilitary activities) are operating at least partially under the September 17, 2001 “Gloves Come Off” Memorandum of Notification, not the AUMF (or, as Stephen Preston suggested recently, an AUMF would be separate and independent from authorities that derived from Article II authority covered in a Finding). At this point, the distinction between Title 10 (military) and Title 50 (intelligence) authorities appears to have become a shell game, giving Presidents two different ways to authorize and approve various activities based on the buy-in from Congress, international sensitivities, the actual targets, and skill sets available. This–plus an urge toward “flexibility” in law enforcement and data sharing in intelligence generally–has made it easy to use tools justified for one target (like al Qaeda) to fight another target (like non-AQ terrorists or drug cartels or leakers).

The blurring between Title 10 and 50 and domestic intelligence and law enforcement is important when we get to DP’s second group, “Orwells,” who oppose drones because of concern about drones used in domestic surveillance.

Their primary concern about drones is domestic. They see the technological potential for drone surveillance, the interest from law enforcement and government agencies, and the massive aerospace industry primed to meet the demand. While there are often noises made about UAV safety, the primary gripe of Orwells- who can point to an actual passage in 1984 which describes small unmanned aircraft peering through people’s windows- is that drones are vanguards of a pervasive surveillance culture. The police watch you outside with robots, corporations like Facebook and Google parse your user data to better bombard you with ads, and the NSA hoovers up your phone and email communications to feed through a secret counter-terrorism algorithm.

Before I look at two characteristics of DP’s discussion of domestic drones, here’s where he goes with this discussion: he suggests, first of all, that drone opponents use the same stock photos because they most effectively–but inaccurately–generate support for both arguments.

It’s a lot easier to make people uneasy over privacy concerns when you pair the article with pictures of a targeted-killing machine. Same way it’s easier to make people care about collateral damage in Yemen or the Phillipines by being able to say with a straight face, “You may be next.” This line-blurring is inaccurate, widespread, and actively harmful to an informed debate.

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John Brennan’s Outdated Drone Speech

The speech John Brennan gave today–purportedly offering a new level of transparency about our drone strikes–would have been more effective coming from someone else, delivered at a different time.

It would have been better for someone else to deliver this speech, because Brennan, a notable sieve of classified information, has no credibility talking about secrecy.

Again, there are some lines we simply will not and cannot cross because, at times, our national security demands secrecy. But we are a democracy. The people are sovereign. And our counterterrorism tools do not exist in a vacuum. They are stronger and more sustainable when the American people understand and support them. They are weaker and less sustainable when the American people do not. As a result of my remarks today, I hope the American people have a better understanding of this critical tool—why we use it, what we do, how carefully we use it, and why it is absolutely essential to protecting our country and our citizens.

All the past times when Brennan happily leaked classified information made it clear the Administration politicizes such claims to secrecy. So there’s no reason for any person to take John Brennan’s claims to secrecy seriously–he’s not a credible messenger on that front. (But hell, at this point every invocation of secrecy might just be a reference to the Wizard of Oz.)

The timing undermines the message too. Brennan made it clear that his comments addressed only strikes targeted at known individuals.

Broadly speaking, the debate over strikes targeted at individual members of al-Qa’ida has centered on their legality, their ethics, the wisdom of using them, and the standards by which they are approved.

[snip]

For example, when considering lethal force we ask ourselves whether the individual poses a significant threat to U.S. interests. Read more

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CIA Disrupts Ongoing US, Pakistan Negotiations With Drone Strike Just as Breakthrough Neared

Despite no agreement being announced during Special Envoy Marc Grossman’s visit to Pakistan last week, Pakistan Today reports that negotiations between Pakistan and the US had continued, and an agreement on transportation of NATO supplies through Pakistan, along with the resumption of the flow of support funding for Pakistan, was to be announced as early as today. Those plans, and the prospects for finalizing an agreement, were disrupted Sunday when the CIA unilaterally restarted drone attacks inside Pakistan, striking a former girls’ school in which Uzbek and Tajik militants were said to be holed up.

Here is how Pakistan Today described the current situation:

Intense negotiations between US Special Envoy Marc Grossman and Pakistan’s civilian and military leadership have finally paved the way for the reopening of blocked NATO supplies and release of arrears under the Coalition Support Fund (CSF) by Washington, and a breakthrough in this regard is likely in a day or two, Pakistan Today learnt on Sunday.

This breakthrough is said to be planned for Monday (today) but Sunday’s drone strike in North Waziristan by CIA despite a clear ‘no’ to such attacks by Pakistani parliament has not gone down well with Pakistani authorities and it could impact the process of reconciliation between Islamabad and Washington.

/snip/

“Ambassador Grossman has left Islamabad but around 10 American officials are still here finalizing a deal on NATO reopening and CSF arrears’ release,” the diplomat said.

A member of the federal cabinet, Sheikh Waqas Akram disclosed that Islamabad and Washington were very close to reaching a deal on NATO supplies and CSF dues’ release.

“Yes that is true, this breakthrough is imminent and it was revealed by Ambassador Grossman himself when he met me and some other parliamentarians in his recent visit to Islamabad,” Akram, the Minister of State for Human Resource Development, said. He said that a breakthrough on NATO supplies and CSF arrears, according to his information was about to take place today (Monday) but the latest drone strike in North Waziristan could again sabotage the reconciliatory efforts.

Akram then placed blame for the drone strike on “hawkish elements” in the US and suggested it was intended to disrupt negotiations:

“It seems that the hawkish elements in US establishment and among the political circles there do not want the improvement of ties between Pakistan and the US,” Akram said.

Leading these “hawkish elements”, of course, is the CIA, which both the Washington Post and New York Times identify as behind the drone strike Sunday. Both papers noted how Sunday’s strike undermines the ongoing negotiations. From the Times: Read more

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Inadequate Briefing on the Drone Program Shows Congress Hasn’t Fixed the Gloves Come Off MON

I need to finish my series (post 1, post 2, post 3, post 4, post 5, post 6) on the Obama Administration’s efforts to hide what I’ve dubbed the “Gloves Come Off” Memorandum of Notification. As I described, the MON purportedly gave CIA authority to do a whole slew of things, but left it up to the CIA to decide how to implement the programs Bush authorized. And rather than giving the Intelligence Committees written notification of the details of the programs, CIA instead gave just the Gang of Four deceptive briefings on the programs, which not only gave a misleading sense of the programs, but also prevented Congress from being able to limit the programs by refusing to fund the activities.

Yet, as MadDog and I were discussing in the comments to this post, these aspects of the MON set up did not entirely elude the attention of Congressional overseers. In fact, the very first Democrat to be briefed that torture had been used (remember, Pelosi got briefed it might be used prospectively) asked questions that went to the heart of the problem with the structure of the MON.

The CIA won’t tell Jane Harman whether the President approved torture from a policy standpoint

Jane Harman was first briefed on the torture program, with Porter Goss, on February 5, 2003. We don’t actually know what transpired in that briefing because CIA never finalized a formal record of the briefing. But five days after the briefing, Harman wrote a letter to CIA General Counsel Scott Muller. In addition to using a word for the torture program CIA has redacted and objecting to the destruction of the torture tapes, Harman asked questions that should have elicited a response revealing the Gloves Come Off MON was what authorized the torture program.

It is also the case, however, that what was described raises profound policy questions and I am concerned about whether these have been as rigorously examined as the legal questions.  I would like to know what kind of policy review took place and what questions were examined.  In particular, I would like to know whether the most senior levels of the White House have determined that these practices are consistent with the principles and policies of the United States.  Have enhanced techniques been authorized and approved by the President?

The whole point of a MON, after all, was to get the President on the record asserting that the programs authorized by it are “necessary to support identifiable foreign policy objectives of the United States and [are] important to the national security of the United States.” Here, Harman was asking whether the President was part of a policy review on torture.

Just over a week after Harman sent this letter, the CIA met with the White House to decide how to respond to Harman’s letter.

Now, granted, Harman’s question did not explicitly ask about a MON. But the CIA did not even answer the question she did ask. Muller basically told her policy had “been addressed within the Executive Branch” without saying anything about Bush’s role in it.

While I do not think it appropriate for me to comment on issues that are a matter of policy, much less the nature and extent of Executive Branch policy deliberations, I think it would be fair to assume that policy as well as legal matters have been addressed within the Executive Branch.

Kudos to Harman for actually asking questions. But at this point, she should have known that there was something funky about the legally required MON for the torture program.

Two years later, she was still trying to get answers about the MON. In her third briefing on torture (PDF 29-31; see also this post)–on July 13, 2004, which was almost 3 weeks after Harman should have received the Inspector General Report–Muller first claimed that the legal foundation for the torture program were the Bybee Memos (he provided this explanation in the context of explaining considerations of whether the program complied with Article 16 of the Convention against Torture).

The General Counsel said that the effort was working effectively under the DOJ 1 August 2002 memo which was the legal foundation for the debriefings and interrogations.

But later in the briefing, Harman appears to have noted that the MON didn’t authorize torture, it only authorized capture and detention.

Rep. Harman noted that the [redaction] did not specify interrogations and only authorized capture and detention. Read more

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Fighting Middle Eastern Wars with Pegs and Drones

I’m reading Currency Wars right now, which may be one of the reasons I suspect that the decision to launch signature strikes in Yemen was not requested by CIA and JSOC but instead dictated by Saudi Arabia. But I’ve also recently read the WikiLeaks cables that show how nervous recent discussions of the Saudi peg of the riyal to the dollar have been.

For example, one of the most recent cables released, describing a mid-February 2010 meeting between Deputy Treasury Secretary Neal Wolin and Saudi Monetary Agency Governor Muhammad Al Jasser and Minister of Finance Ibrahim Al Assaf, records Jasser invoking Chinese calls for an alternative to the dollar.

(C) Jasser reaffirmed Saudi Arabia’s support for the riyal-dollar peg, noting that the peg is in Saudi Arabia’s “cold-blooded self interest,” though he noted it sometimes felt like “we are alone.” Referencing past calls by China and others in the G-20 for an alternative to the U.S. dollar as the world’s reserve currency, Jasser said some have asked him why he does not give up on the U.S. dollar. He turned to a response he gave to a European newspaper that asked why Saudi Arabia hadn’t switched its peg to the Euro, “When oil is denominated in Euros, we’ll research it.”

In the same meeting, Jasser reminded Wolin that Saudi Arabia had far more ability to “undermine and safeguard” the world economy than its GDP might suggest.

Jasser stated that, as an oil economy, Saudi Arabia has the ability to both undermine and safeguard the world’s economy. He noted that Saudi Arabia was able and willing to support reform efforts at the IMF and World Bank, but that the ability to harm or help the global economy is a better measure of a nation’s relative economic importance than GDP.

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Obama’s Signature

Obama’s signature national security policy may well be the embrace of signature strikes. First in Pakistan–until they killed 38 civilians in Shiga, Pakistan, and had to rethink the strategy–and now, according to the WSJ, in Yemen.

The Obama administration has given the Central Intelligence Agency and U.S. military greater leeway to target suspected al Qaeda militants in Yemen with drones, responding to worries a new haven is being established from which to mount attacks on the West.

Mind you, the anonymous sources in this story claim this is “signature lite.” Targets need to fit the profile of High Value Targets, sources claim, to be targeted.

But Obama’s (IMO) ill-considered decision is not the most interesting part of this story.

Rather, it’s a detail that directly contradicts with the WaPo’s version of this story (besides the timing, which also suggested the decision had not yet been made, though it may have been made since). The WaPo said JSOC wasn’t all that interested in having these authorities.

The JSOC has broader authority than the CIA to pursue militants in Yemen and is not seeking permission to use signature strikes, U.S. officials said.

WSJ says JSOC did ask.

The CIA and JSOC asked last year for broader targeting powers, however, which would include leeway to conduct what are known as “signature strikes,” in which targets are identified based on patterns of behavior, such as surveillance showing they are transporting weapons.

[snip]

Recently the CIA and JSOC, citing the fears about an al Qaeda haven, renewed requests to the White House.

Perhaps the most interesting bit, though, is this backwards discussion of how you need to use signature strikes to avoid border incursions against a legitimate defensive issue.

U.S. counterterrorism officials said they are currently tracking several direct threats to the U.S. connected to AQAP. The officials wouldn’t provide further details because that information is classified.

[snip]

Administration officials said the White House has no plans to allow strikes in Yemen to be as broad as those in Pakistan. CIA strikes against low-level fighters in Pakistan’s Federally Administered Tribal Areas, or FATA, are meant to prevent them from crossing the border into neighboring Afghanistan, where they are waging an insurgency against U.S. and Afghan forces.

“This is distinct from the FATA,” a senior administration official said of Yemen. “We’re using these tools judiciously and carefully to scope this as a counterterrorism effort and not an all-out counter-insurgency campaign.”

Granted, US sources claim that this use of signatures is different than the FATA and Pakistan. But given that I suspect the Saudis may be dictating this change to us, I’m rather interested in the suggestion that border incursions present the need to use signature strikes.

Because these are, after all, happening across the border from the Saudis.

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Defying the Rules of Gravity, Obama Directs Sanctions Solely against Israel’s Enemies

In conjunction with his speech at the Holocaust Museum yesterday and announcement of the Atrocities Prevention Board, President Obama also rolled out sanctions against those who use IT to repress human rights. The Treasury Department named the sanctions GRAHVITY (I think they get it from “GRAve Human rights abuses Via Information TechnologY” or some such Orwellian acronym).

There’s a problem with that. We are all subject to gravity.

But only Israel’s enemies–Iran and Syria–are subject to GRAHVITY.

This exclusive application was set up in yesterday’s speech when Elie Wiesel suggested the point of remembering the Holocaust was to guarantee the strength of Israel and ensure its enemies–in this case, Syria and Iran–are removed from office (and deprived of the same weapons Israel stockpiles against them).

Have you learned anything from it? If so, how is it that Assad is still in power? How is it that the Holocaust Number 1 denier, Ahmadinejad, is still a President, he who threatens to use nuclear weapons–to use nuclear weapons–to destroy the Jewish state?

[snip]

Now, I hope you understand, in this place [the Museum], why Israel is so important, not only to the Jew that I am and the Jewish people, but to the world. Israel cannot not remember. And because it remembers, it must be strong, just to defend its own survival and its own destiny.

Obama’s focus was broader. In his speech, he listed Cambodia, Rwanda, Bosnia, Darfur, Côte d’Ivoire, Libya (with no mention of the civilian casualties NATO caused), the Lords Resistance Army.

But Obama, too, focuses primarily on Syria.

In this speech, the sole reason to ensure internet freedom, according to Obama, is to bring about regime change in Syria.

And when innocents suffer, it tears at our conscience. Elie alluded to what we feel as we see the Syrian people subjected to unspeakable violence, simply for demanding their universal rights. And we have to do everything we can. And as we do, we have to remember that despite all the tanks and all the snipers, all the torture and brutality unleashed against them, the Syrian people still brave the streets. They still demand to be heard. They still seek their dignity. The Syrian people have not given up, which is why we cannot give up.

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Is the Government Worried about Revealing Broader Targeted Killing Authority in the Drone FOIAs?

In addition to yesterday’s letter’s explanation that the government needed an extension in ACLU and NYT’s Anwar al-Awlaki drone FOIA because Obama and/or his closest aides–the highest level of the Executive Branch–were getting involved, there was one other interesting phrase I wanted to note: the way in which it portrays the FOIA.

We write respectfully on behalf of the Department of Justice and the Central Intelligence Agency (collectively, the “Government”) to seek a further extension until May 21, 2012, of the Government’s deadline to file its consolidated motion for summary judgment in these related Freedom of Information Act cases seeking records pertaining to alleged targeted lethal operations directed at U.S. citizens and others affiliated with al Qaeda or other terrorist groups. [my emphasis]

That description doesn’t precisely match the request in any of the three FOIAs, which ask for:

ACLU: the legal authority and factual basis of the targeted killing of [Anwar] al-Awlaki, Abdulrahman [al-Awlaki], and [Samir] Khan.

NYT Savage: all Office of Legal Counsel memorandums analyzing the circumstances under which it would be lawful for United States armed forces or intelligence community assets to target for killing a United States citizen who is deemed to be a terrorist.

NYT Shane: all Office of Legal Counsel opinions or memoranda since 2001 that address the legal status of targeted killings, assassination, or killing people suspected of ties to Al-Qaeda or other terrorist groups by employees or contractors of the United States government.

The government seems squeamish, first of all, about repeating the language used in all three of these requests–targeted killing–opting instead for the phrase “targeted lethal operations.” Note, significantly, that these requests, and especially Shane’s, would not be limited to drone strikes, but also would include hit squads.

The government understandably opts not to use the names specified by ACLU, opting instead to use the generic “US citizen” used by Savage.

Equally understandably, it uses Shane’s language to describe the target: “Al-Qaeda or other terrorist groups.” But I find the adoption of Shane’s formulation significant, because it is much broader than the language from the AUMF:

those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons

And somewhat broader than the language from the NDAA:

person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners

Now, it’s not just Shane’s language that broadens the scope here. None of the three requests mention AQAP, which would at least give the government the ability to focus on questions about how it decided that Awlaki was a legitimate target under the AUMF (on that topic, note this exchange between Robert Chesney and Bruce Ackerman). Both NYT requests ask for information about targeting terrorists generally. Which might get into some interesting targeting decisions both specific to Pakistan (for example, the original decision to target Beitullah Mehsud–and therefore the Pakistani Taliban–was based on a potentially erroneous information about a dirty bomb) and more generally in places like Gaza or Iran or Latin America.

In other words, if the government maintains it has the authority to assassinate terrorists, generally, perhaps tied to the Iraq AUMF or perhaps tied to the Gloves Come Off MON, then this language might make it hard for the government to provide a tidy response to this FOIA.

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