Two Years after Missing Abdulmutallab because of a Spelling Variance, Government Missed Tsarnaev because of a Spelling Variance

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On the Sunday shows yesterday, House Intelligence Chair Mike Rogers suggested that the government missed Tamerlan Tsarnaev’s trip to Russia in 2012 because he used an alias. This morning, Lindsey Graham explained that the problem was slightly different. Tamerlan’s travel documents misspelled his name.

“He went over to Russia, but apparently, when he got on the Aeroflot plane, they misspelled his name,” Graham, a South Carolina Republican said on Fox television this morning. “So it never went into the system that he actually went to Russia.”

Graham, a member of the Armed Services Committee, said in answer to a follow-up question that he did not know whether Tsarnaev, the 26-year-old terrorist suspect who died early Friday following a shootout with law enforcement, had misspelled his name on purpose.

The FBI “said Aeroflot gave us the information” that Tsarnaev had traveled there, Graham said, though he did not specify when that occurred.

Now, Lindsey doesn’t appear to know whether misspelling was the government’s or Aeroflot’s fault or Tamerlan’s deceit. Assuming Lindsey’s right about the larger point, whatever the source, a misspelling suggests a very different issue than an outright alibi (which would raise questions about the documents Tamerlan used, rather than the tracking of those documents).

Update: At the very end of the Senate Judiciary Committee Immigration hearing, Chuck Schumer said the error arose from Aeroflot typing in Tamerlan’s name incorrectly, so it appears it was not an attempt to deceive by Tamerlan.

Two years before Tsarnaev departed for Russia in January 2012, the government spent a good deal of time reviewing what prevented the government from responding to the several warnings about Umar Farouk Abdulmutallab, the UndieBomber, to prevent him from traveling to the country. One of the problems (though by no means the most serious one), was that the cable conveying warnings from Abdulmutallab’s father spelled his name wrong.

As was widely reported within hours of the failed bombing attempt, Abdulmutallab’s father—a former Nigerian government minister and prominent banker—went to the US embassy in Abuja in November to warn that his son was involved with radical Islamists in Yemen and had broken off contact with his family. The family said they had given US officials extensive information about their son in the expectation that they would “find and return him home.”

In his prepared statement to the House Committee on Homeland Security on January 27, State Department Under-Secretary for Management Patrick Kennedy said: “In the case of Umar Farouk Abdulmutallab, on the day following his father’s November 19 visit to the Embassy, we sent a cable to the Washington intelligence and law enforcement community through proper channels (the Visas Viper system) that ‘Information at post suggests [Farouk] may be involved in Yemeni-based extremists.’”

Kennedy confirmed that all US intelligence agencies received warnings that Abdulmutallab was training with terrorists in Yemen. He noted that the initial diplomatic cable from Abuja misspelled Abdulmutallab’s name.

As I said, that was not the most important problem leading to missed warnings. But it was one identified in the lessons learned period.

Yet it appears likely that one of the potential (if Tamarlan’s trip ends up showing any contact with extremists, which it hasn’t yet) lessons learned here will be one we purportedly learned 3 years ago: that our software needs to be better at using wildcards to identify close but not exact spellings.

We’re already seeing hints that facial recognition may not have served as the miracle solution it often gets sold as. It now appears we might not even have the databases running our watchlist system working as well as it needs to.

Update: Swapped out the Politico version of this report for the BoGlo one, which was more informative and changed the language to reflect the additional information.

 

Ten Human Rights Groups Unified in Opposition to Drone and/or Targeted Killing Court

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A group of 10 human rights groups have written President Obama a letter calling for him to fulfill his State of the Union promise of more openness about drone and/or targeted killing.

The letter calls for obvious sorts of transparency (including the public release of all CIA, DOD, and DOJ documents pertaining to drone and/or targeted killing, as well as sharing of information Congress needs to conduct oversight) and warns that several of the interpretations adopted by the US (for example, its overly broad definition of imminence) don’t abide by international law.

But I’m most interested in this passage:

Judicial review is a central pillar of checks and balances. It is essential for accountability and transparency. Yet, the administration’s position is that judicial review is “not appropriate” in targeted killings cases and it has invoked broad interpretations of the political question and immunity doctrines, Bivens special factors, and the state secrets privilege to obstruct litigation.

We do not believe that accountability and transparency will be improved by recent proposals to establish a FISA-like court to sanction lethal targeting operations. On the contrary, a special targeted killing court would give a veneer of judicial review to decisions to launch lethal strikes without offering a meaningful check on executive power. Instead, we urge the administration to cease making broad claims of non-justiciability or political question, to prevent cases alleging human rights or constitutional violations from being heard on their merits. [my emphasis; footnotes removed]

That all 10 groups — including ACLU, Amnesty International, Center for Constitutional Rights, Human Rights First, Human Rights Watch, and Open Society Foundations, as well as some smaller institutions — would agree on this point makes a powerful statement. It denies the Administration of whatever sanction it hoped a drone and/or targeted killing court might give to their extrajudicial killing program.

The Administration is still more likely to be influenced by increased reporting on the lies they’ve been telling about the program than even these human rights groups. But it is important to see this unified statement undercutting the Administration’s (and Dianne Feinstein’s) efforts to make this program look better by burying it in a secret court.

If the IRS Obtains E-Mails without a Warrant, Then Will People Freak Out?

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The ACLU recently FOIAed the IRS to find out whether its investigative branch gets warrants before rifling through people’s stored email. While the FOIA didn’t answer the question definitively (IRS lawyers have clearly discussed it), it appears that the IRS still trains people that — except in the Sixth Circuit, where an Appeals Ruling prohibits its — the Agency handbook still tells investigators they can rifle away.

Accordingly, in 2010 the Sixth Circuit Court of Appeals decided in United States v. Warshak that the government must obtain a probable cause warrant before compelling email providers to turn over messages.

However, the IRS hasn’t told the public whether it is following Warshak everywhere in the country, or only within the Sixth Circuit.

[snip]

Then came Warshak, decided on December 14, 2010. The key question our FOIA request seeks to answer is whether the IRS’s policy changed after Warshak, which should have put the agency on notice that the Fourth Amendment does in fact protect the contents of emails. The first indication of the IRS’s position, from an email exchange in mid-January 2011, does not bode well. In an email titled “US v. Warshak,” an employee of the IRS Criminal Investigation unit asks two lawyers in the IRS Criminal Tax Division whether Warshak will have any effect on the IRS’s work. A Special Counsel in the Criminal Tax Division replies: “I have not heard anything related to this opinion. We have always taken the position that a warrant is necessary when retrieving e-mails that are less than 180 days old.” But that’s just the ECPA standard. The real question is whether the IRS is obtaining warrants for emails morethan 180 days old. Shortly after Warshak, apparently it still was not.

The IRS had an opportunity to officially reconsider its position when it issued edits to the Internal Revenue Manual in March 2011. But its policy stayed the same: the Manual explained that under ECPA, “Investigators can obtain everything in an account except for unopened e-mail or voice mail stored with a provider for 180 days or less using a [relevant-and-material-standard] court order” instead of a warrant. Again, no suggestion that the Fourth Amendment might require more.

[snip]

Finally, to the present: has the IRS’s position changed this tax season? Apparently not. The current version of the Internal Revenue Manual, available on the IRS website, continues to explain that no warrant is required for emails that are stored by an ISP for more than 180 days. Apparently the agency believes nothing of consequence has changed since ECPA was enacted in 1986, or the now-outdated Surveillance Handbook was published in 1994.

I’ve long wondered what it would take to get average Americans infuriated about the gutting of the Fourth Amendment.

Perhaps this — the strong evidence that the government’s tax collector can access your emails directly from your ISP without a warrant in most places (I’m in the Sixth but my emails are stored in Google servers elsewhere, so I wonder if even I am protected!) — will finally piss people off.

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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WikiLeaks Will Be Nothing Compared to FinCENLeaks

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According to Reuters, the Treasury Department is planning on expanding access to FinCEN reports — which include Suspicious Activity Reports from over 25,000 financial institutions — to the intelligence community, including CIA.

The Treasury document outlines a proposal to link the FinCEN database with a computer network used by U.S. defense and law enforcement agencies to share classified information called the Joint Worldwide Intelligence Communications System.

[snip]

More than 25,000 financial firms – including banks, securities dealers, casinos, and money and wire transfer agencies – routinely file “suspicious activity reports” to FinCEN. The requirements for filing are so strict that banks often over-report, so they cannot be accused of failing to disclose activity that later proves questionable. This over-reporting raises the possibility that the financial details of ordinary citizens could wind up in the hands of spy agencies.

There’s so much to say about this batshit crazy plan…

First, when I made fun of John Brennan’s confirmation vow, people assured me CIA doesn’t operate in the US. Maybe not. But now they have free access to all this data on Americans.

And remember that DOJ, as far back as 2002, argued it was legitimate to use FISA to collect information on crimes the government could use to coerce people into becoming informants. Imagine how much easier that will be with access to people’s bank irregularities.

Finally, think of the security nightmare here. While I doubt anyone is going to leak a whole database of FinCEN data to WikiLeaks (though how much fun would that be?!?!), I can imagine a lot of people might avail themselves of this access to profit off the financial information. Maybe that’s how CIA will fund their ops, instead of (or inaddition to?) drug running: profiting off sensitive financial information.

There’s a whole slew of reasons why this is a bad idea. Which is precisely why it is bound to be pushed through regardless.

Courts Won’t Be Reviewing Legality of Counterterrorism Programs Anytime Soon

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By a 5-4 party line vote, SCOTUS denied standing in Amnesty v. Clapper today.

The majority opinion, written by Sam Alito, emphasizes separation of power.

The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches.

[snip]

In keeping with the purpose of this doctrine, “[o]ur standing inquiry has been especially rigorous when reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.”

[snip]

and we have often found a lack of standing in cases in which the Judiciary has been requested to review actions of the political branches in the fields of intelligence gathering and foreign affairs,

It uses a high standard for the imminence of harm, including what I consider a highly ironic passage, considering the Administration’s own standards for imminence.

“Although imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes—that the injury is certainly impending.” Id., at 565, n. 2 (internal quotation marks omitted). Thus, we have repeatedly reiterated that “threatened injury must be certainly impending to constitute injury in fact,” and that “[a]llegations of possible future injury” are not sufficient.

It even says it can’t use in camera review in this case, because doing so would establish a precedent terrorists could use to find out whether they’re being wiretapped.

It was suggested at oral argument that the Government could help resolve the standing inquiry by disclosing to a court, perhaps through an in camera proceeding, (1) whether it is intercepting respondents’ communications and (2) what targeting or minimization procedures it is using. See Tr. of Oral Arg. 13–14, 44, 56. This suggestion is puzzling. As an initial matter, it is respondents’ burden to prove their standing by pointing to specific facts, Lujan v. Defenders of Wildlife, 504 U. S. 555, 561 (1992), not the Government’s burden to disprove standing by revealing details of its surveillance priorities. Moreover, this type of hypothetical disclosure proceeding would allow a terrorist (or his attorney) to determine whether he is currently under U. S. surveillance simply by filing a lawsuit challenging the Government’s surveillance program. Even if the terrorist’s attorney were to comply with a protective order prohibiting him from sharing the Government’s disclosures with his client, the court’s postdisclosure decision about whether to dismiss the suit for lack of standing would surely signal to the terrorist whether his name was on the list of surveillance targets.

Ultimately, though, it said the plaintiff’s fears were too speculative to amount to standing.

It does so by ignoring — and indeed, misrepresenting — the details presented about what is new in this program. Here’s how Stephen Breyer, in his dissent, describes them.

The addition of §1881a in 2008 changed this prior law in three important ways. First, it eliminated the require­ ment that the Government describe to the court each specific target and identify each facility at which its sur­ veillance would be directed, thus permitting surveillance on a programmatic, not necessarily individualized, basis. §1881a(g). Second, it eliminated the requirement that a target be a “foreign power or an agent of a foreign power.” Ibid. Third, it diminished the court’s authority to insist upon, and eliminated its authority to supervise, instance-specific privacy-intrusion minimization procedures (though the Government still must use court-approved general minimization procedures). §1881a(e).

By contrast, Alito claims the new program only allows the government to target individuals (h/t Julian Sanchez who first pointed this out).

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The Most Transparent Administration Ever Hides More OLC Opinions

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Ryan Reilly has liberated a list — such as DOJ would release — of the OLC opinions written under Obama. As he notes, DOJ has refused to even give him a list, much the number, of the classified OLC memos.

What’s more interesting is what wasn’t included: The office stated that it was withholding, in full, 11 lists of classified OLC opinions. Because the length of each list is unknown, it’s unclear how many classified opinions the OLC has issued during the Obama administration.

And it has redacted a ton of the names of unclassified opinions, citing deliberative privilege.

The titles of many OLC opinions were fully redacted in the lists provided, with a Justice Department official writing that the titles were “protected by the deliberative process, attorney-client, and/or attorney work-product privileges.” The names of the lawyers who wrote a number of opinions — including the memo on the president’s use of recess appointments during the Senate’s pro forma sessions — were also blacked out because their disclosure would “constitute a clearly unwarranted invasion of personal privacy,” the official wrote.

Some of the memos mentioned in the list have already been disclosed online by the OLC.

He also notes one memo the existence of which has already been revealed doesn’t appear on the list.

The Justice Department even redacted the title of the opinion on whether the president could unilaterally ignore the debt ceiling limit, though the existence of that memo was disclosed in response to a FOIA request from Talking Points Memo in 2011.

There’s in fact at least one other known OLC opinion that doesn’t show up on the list: a January 8, 2010 memo on whether the Electronics Communication Privacy Act would prevent telecoms from willingly turning over international communications to the government. It was first revealed in a January 2010 DOJ IG Report on Exigent Letters (see this post for background).

On January 8, 2010, the OLC issued its opinion, concluding that the ECPA “would not forbid electronic communications service providers [three lines redacted]281 In short, the OLC agreed with the FBI that under certain circumstances [~2 words redacted] allows the FBI to ask for and obtain these records on a voluntary basis from the providers, without legal process or a qualifying emergency.

In February 2011, McClatchy’s Marisa Taylor received a FOIA denial for the memo, although in denying her request DOJ revealed that this was the section of the law the memo discussed.

(f) Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.

Effectively, DOJ has already made clear that the memo says it can get international communications with no legal process.

But it didn’t release the name of the memo to Reilly.

There are two explanations for that. It has redacted the names of many OLC opinions under deliberative process, which it often argues means that it did not rely on the memo and therefore it did not influence the Executive’s final decision. That’s probably what happened with the debt ceiling memo; we know Obama hasn’t unilaterally raised the debt ceiling, meaning he hasn’t relied on the memo, so even though it has confirmed the memo exists, DOJ is hiding the memo because the Administration didn’t ultimately rely on it.

It may have redacted the title of the ECPA decision for the same reason. In the IG Report, at least, FBI claimed it would not rely on the opinion (no doubt meaning it would get all our communications via some other means).

Alternately, it could be considering this memo, which has been discussed at length, classified. Stranger things have happened with this Administration.

Update: Just checked, and via email at the time, Taylor said this is what DOJ told her:

The cover letter dated Feb. 8, 2011 to McClatchy said the OLC memo was protected by the “deliberative process privilege” under Exception Five. The letter also said the memo is “classified” and therefore “exempt pursuant to Exemption One, 5 USC 552 (b)(1).” The letter goes on to describe the memo as “a January 8, 2010 OLC memorandum analyzing the authority of the FBI under Section 2511 (2)(F) of the Stored Communications Act, 18 USC 2511 (2)(f).”

So they’re at least claiming a b5, and possibly claiming that its very name remains classified, in spite of repeated references to it in unclassified form.

In any case, the refusal to release even the name of memos that we know exist sure boosts the Administration’s claim to be the most transparent ever!

Department of Pre-Crime, Part 4: The NDAA Congress Is Not About to Legislate Targeted Killing

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In three earlier posts, I have discussed the problem with turning the FISA Court into the Drone and/or Targeted Killing Court: As I noted, the existing FISA Court no longer fulfills the already problematic role it was set up to have, ensuring that the government have particularized probable cause before it wiretap someone. On the contrary, the FISA Court now serves as a veil of secrecy behind which the government can invent new legal theories with little check.

In addition, before the FISA Court started rubberstamping Drone Strikes and/or Targeted Killings of Americans, presumably it would need an actual law to guide it. (Though Carrie Cordero, who is opposed to the Drone and/or Targeted Killing FISA Court idea because it might actually restrain the Executive, seems to envision the Court just using the standards the Executive has itself invented.) And there’s a problem with that.

The same Congress that hasn’t been successful passing legislation on detention in the 2012 NDAA is certainly not up to the task of drafting a law describing when targeted killing is okay.

As a reminder, here’s what happened with the NDAA sections on military detention. The effort started with an attempt to restate whom we are at war with, so as to mandate that those we’re at war with be subject to law of war detention. The language attempting to restate whom we’re at war with ended up saying:

(a) IN GENERAL.—Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

(b) COVERED PERSONS.—A covered person under this section is any person as follows:

(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.

(2) A 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, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

Compare that language with what the actual AUMF says:

That the President is authorized to use all necessary and appropriate force against 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, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Part of the difference arises from the shift to focusing exclusively on persons (you can’t detain a nation, after all, though Palestine might disagree).

Part of the difference comes from the effort — clause 2 above — to extend the AUMF to those associated forces. This was meant to cover groups like AQAP and al-Shabaab, but as we’ll see, it’s one source of the problem with the law.

But part of the problem is that the NDAA language smartly took out the “he determines” and “in order to prevent any future acts of international terrorism” language. The former has long been a giant loophole, allowing the President to define in secret whom we’re at war against. And I increasingly suspect the Administration has been using the latter language to expand the concept of imminent threat.

In other words, in an effort to parrot back its understanding of whom we’re at war against, Congress both introduced some new fuzzy language — associated forces — and took out existing loopholes — the “he determines” and “prevent any future acts.”

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John Brennan Refuses to Deny the Government Collects US Person Data with No Predicate

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John Brennan pointedly refused to answer Mark Udall’s question about whether the government collects information on Americans without a predicate.

In 2008, you stated, “I would argue the government needs to have access to only those nuggets of information that have some kind of predicate. That way the government can touch it and pull back only that which is related.” You also stated that the issue needed to be discussed, “not to the point of revealing sources and methods and giving the potential terrorists out there insights into our capability – but to make sure there is a general understanding and consensus that these initiatives, collections, capabilities, and techniques comport with American values and are appropriately adjusted to deal with the threat we face.” Do you believe the U.S. government currently has access to only nuggets of information that have some kind of predicate? Do you believe that the public has adequate information on this topic?

I believe your first question is referencing statements I made about the need to balance security, privacy, and civil liberty interests in connection with the then ongoing public debate over changes to the Foreign Intelligence Surveillance Act. With respect to FISA, this Administration has worked hard to ensure that any electronic surveillance that targets the American people is subject to judicial review through the Foreign Intelligence Surveillance Court to ensure, among other things, that such surveillance complies with the Constitution, and I strongly supported these efforts. I believe it is important that the Judicial Branch act as a check on the Executive Branch to ensure there is an adequate factual predicate to conduct lawful electronic surveillance that targets the American people. I have also supported – and will continue to support – the Administration’s efforts to ensure that Congress is kept informed of our surveillance practices and processes.

Moreover, the Act provides the process and procedures the Government must follow to undertake surveillance, as well as the role the Judicial Branch and the Congress play in that process. As I have stated publicly, I support as much transparency as possible on our counterterrorism efforts, consistent with our obligation to protect sources and methods. Thus, to the extent we could discuss with the public some of the factual predicates that have been deemed by courts as sufficient to justify surveillance, I would support doing so. Indeed I do believe, as I said in my September 2011 speech at Harvard Law School that an “open and transparent government” is one of the values our democratic society expects and demands. [my emphasis]

As a threshold matter, Brennan is addressing underlying predicates only with regards to the FISA Amendments Act, not to Section 215, which uses the relevance standard to collect information — from acetone and hydrogen peroxide purposes, probably to geolocation — of totally innocent Americans.

But even so, this answer not only doesn’t answer Udall’s question — didn’t you once believe that we should only collect intelligence for which there is a predicate so we don’t conduct fishing expeditions — but it points to the inadequate role of the FISA Court in limiting who the US can spy on.

I guess John Brennan has become a fan of fishing expeditions into US person data.

In any case, unlike Lisa Monaco, Brennan isn’t going to promise to release the secret law.

In 2008, you stated that it was important that there be a public airing, including public congressional hearings, related to the predicate for the surveillance of U.S. persons. Do you believe there is more on this topic that could be declassified?

[snip]

And while I am not aware of any particular information on this topic that could be declassified, I do believe any such information should be disclosed to the extent that such a disclosure could be done consistent with our national security.

Department of Pre-Crime, Part 3: What Law Would the Drone (and/or Targeted Killing) Court Interpret?

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I’ve been writing about the nascent plan, on the part of a few Senators who want to avoid hard decisions, to establish a FISA Court to review Drone (and/or Targeted Killings) of American citizens.

A number of people presumably think it’d be easy. Just use the AUMF — which authorizes the President “to use all necessary and appropriate force against 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, in order to prevent any future acts of international terrorism against the United States” — and attach some kind of measure of the seriousness of the threat, and voila! Rubber-stamp to off an American.

And while that may while be how it would work in practice, even assuming the reviews would be halfway as thorough as the Gitmo habeas cases (with the selective presumption of regularity for even obviously faulty intelligence reports adopted under Latif, as well as the “military age male” standard adopted under Uthman, habeas petitions are no longer all that meaningful), that would still mean the Executive could present any laughably bad intelligence report showing a military aged male was hanging around baddies to be able to kill someone. The Gitmo habeas standard would have authorized the killing of Abdulrahman al-Awlaki, in spite of the fact that no one believes he was even a member of AQAP.

Then there’s the problem introduced by the secrecy of the Drone (and/or Targeted Kiling) Court. One of the several main questions at issue in US targeted killings has always been whether the group in question (AQAP, in the case of Anwar al-Awlaki, which didn’t even exist on 9/11) and the battlefield in question (Yemen, though the US is one big question) is covered by the AUMF.

Congress doesn’t even know the answers to these questions. The Administration refuses to share a list of all the countries it has already used lethal counterterrorism authorities in.

So ultimately, on this central issue, the Drone (and/or Targeted Killing) Court would have no choice but to accept the Executive’s claims about where and with whom we’re at war, because no list exists of that, at least not one Congress has bought off on.

There’s an even more basic problem, though. John Brennan has made it crystal clear that we pick imminent threats not because of any crime they might have committed in the past, but because of future crimes they might commit in the future.

BRENNAN: Senator, I think it’s certainly worth of discussion. Our tradition — our judicial tradition is that a court of law is used to determine one’s guilt or innocence for past actions, which is very different from the decisions that are made on the battlefield, as well as actions that are taken against terrorists. Because none of those actions are to determine past guilt for those actions that they took. The decisions that are made are to take action so that we prevent a future action, so we protect American lives. That is an inherently executive branch function to determine, and the commander in chief and the chief executive has the responsibility to protect the welfare, well being of American citizens. So the concept I understand and we have wrestled with this in terms of whether there can be a FISA-like court, whatever — a FISA- like court is to determine exactly whether or not there should be a warrant for, you know, certain types of activities. You know…

KING: It’s analogous to going to a court for a warrant — probable cause…

(CROSSTALK)

BRENNAN: Right, exactly. But the actions that we take on the counterterrorism front, again, are to take actions against individuals where we believe that the intelligence base is so strong and the nature of the threat is so grave and serious, as well as imminent, that we have no recourse except to take this action that may involve a lethal strike.

What law is it that describes what standards must be met to declare someone a pre-criminal?

Either there are no standards and the Drone (and/or Targeted Killing) Court would just have to take the Administration’s say-so — in which case it’s absolutely no improvement over the status quo.

Or, the courts would make up the standards as they go along, pretty much like the DC Circuit has been in habeas cases. But those standards would be secret, withheld from Americans in the same way the secret law surrounding Section 215 is.

Finally, there’s one more problem with assuming the AUMF provides a law the Drone (and/or Targeted Killing) Court would use to adjudicate pre-crime. The Administration has made it crystal clear that it believes it has two sources of authority for targeted killings; the AUMF and Article II. Which has another implication for a Drone (and/or Targeted Killing) Court.

The Executive has already said that the if the President authorizes the CIA to do something — like murder an American citizen overseas — it does not constitute a violation of laws on the books, like 18 USC 1119, which prohibits the murder of Americans overseas. The Administration has already said that the President’s Article II power supercedes laws on the books. What is a Drone (and/or Targeted Killing) Court supposed to do in the face of such claims?

This carries a further implication. If the Court were using the AUMF as its guide to rubber-stamping the President’s kill list, nothing would prevent the Executive from killing someone outside of that Court on its claimed Article II authority.

Until we make it clear that unilateral murder of American citizens is not an Article II authority, the President will keep doing it, whether there’s a Court or not.

Previous posts on the Pre-Crime Court:

Setting Up a Department of Pre-Crime, Part One: Why Are We Doing This?

Department of Pre-Crime, Part Two: The FISA Court Is Broken

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