Steven Aftergood suggests there’s disagreement among Senate Intelligence Committee members about whether or not the FISA Amendments Act allows the government to get US person content without a warrant.

The dispute was presented but not resolved in a new Senate Intelligence Committee report on the Foreign Intelligence Surveillance Act Amendments Act (FAA) Sunsets Extension Act, which would renew the provisions of the FISA Amendments Act through June 2017.

“We have concluded… that section 702 [of the Act] currently contains a loophole that could be used to circumvent traditional warrant protections and search for the communications of a potentially large number of American citizens,” wrote Senators Ron Wyden and Mark Udall.

But Senator Dianne Feinstein, the Committee chair, denied the existence of a loophole.  Based on the assurances of the Department of Justice and the Intelligence Community, she said that the Section 702 provisions “do not provide a means to circumvent the general requirement to obtain a court order before targeting a U.S. person under FISA.”

I don’t think there is a conflict. Rather, I think DiFi simply responded to Wyden and Udall’s assertions with the same spin the government has used for some time. That’s because DiFi is talking about “targeting” and Wyden and Udall are talking about “searching” US person communications.

DiFi quotes much of the language from Section 702 earlier in her statement on FAA, repeating, repeating the word “target” three times.

In enacting this amendment to FISA, Congress ensured there would be important protections and oversight measures to safeguard the privacy and civil liberties of U.S. persons, including specific prohibitions against using Section 702 authority to: “intentionally target any person known at the time of acquisition to be located in the United States;” “intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States;” “intentionally target a United States person reasonably believed to be located outside the United States;” or “intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States.” As an additional measure the law also requires that an acquisition under Section 702 “shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.” [my emphasis]

Her specific retort to the problem Wyden and Udall differentiates clearly between “querying information collected under Section 702 to find communications of a particular United States person” and “conduct[ing] queries to analyze data already in its possession” and “targeting.”

Finally, on a related matter, the Committee considered whether querying information collected under Section 702 to find communications of a particular United States person should be prohibited or more robustly constrained. As already noted, the Intelligence Community is strictly prohibited from using Section 702 to target a U.S. person, which must at all times be carried out pursuant to an individualized court order based upon probable cause. With respect to analyzing the information lawfully collected under Section 702, however, the Intelligence Community provided several examples in which it might have a legitimate foreign intelligence need to conduct queries in order to analyze data already in its possession. The Department of Justice and Intelligence Community reaffirmed that any queries made of Section 702 data will be conducted in strict compliance with applicable guidelines and procedures and do not provide a means to circumvent the general requirement to obtain a court order before targeting a U.S. person under FISA. [my emphasis]

Which not only makes it crystal clear that the government can access communications after it has been collected, but that they have done so.

Though the difference between what DiFi describes–“querying data”–and what Wyden and Udall describe–“search[ing] for the communications” of particular American citizens–is telling.

We have concluded, however, that section 702 currently contains a loophole that could be used to circumvent traditional warrant protections and search for the communications of a potentially large number of American citizens.

[snip]

Since all of the communications collected by the government under section 702 are collected without individual warrants, we believe that there should be clear rules prohibiting the government from searching through these communications in an effort to find the phone calls or emails of a particular American, unless the government has obtained a warrant or emergency authorization permitting surveillance of that American.a

Section 702, as it is currently written, does not contain adequate protections against warrantless “back door” searches of this nature. We offered an amendment during the committee’s markup of this bill that would have clarified the law to prohibit searching through communications collected under section 702 in an effort to find a particular American’s communications.

What DiFi describes sounds like data mining; what Wyden and Udall describe sounds like using the huge amount of data collected in the name of foreign intelligence to collect enough data such that US person communications are there if you ever want or need it. And their proposed amendments–both voted down in committee–also use the words, “review” and “contents,” making it clear the government is accessing US person communications and reading it.

Then again, there has been little doubt that’s what the government is doing since the bill passed. When Michael Mukasey and Mike McConnell issued veto threats against Russ Feingold amendments that would prevent this kind of search, it become clear that’s what the intelligence community intended to do with the bill. And when the government submitted a thoroughly duplicitous court filing in Amnesty v. Clapper–wielding the word “target” the same way DiFi did, but also ignoring the clause on intentionally collecting US person data–it became clear the government doesn’t want to talk about collecting US person communications.

This is not a dispute. DiFi hides behind that word “targeting,” which she knows well doesn’t do anything substantive to prevent the government from reading American communications without a warrant. But both she and Wyden and Udall make it clear the government is using the data it collected in the guise of foreign intelligence to get to US person communications.

Correction: I misunderstood a few things about this. First, this is the request from DNI, not what the Intelligence Committees have agreed to. And the House–which has taken up this request–did not accept all these requests (including the clearances audit). This post has been altered accordingly.

The DNI released their 2013 Intelligence Authorization request yesterday. Almost 10 pages of the 24 page document describe reporting that these “oversight” committees will no long require from the Intelligence Community. The bill starts by putting a default 3 year expiration on any new reporting requirements. And then it includes a list of 27 reports that the bill will eliminate and another 3 that it will modify.

And while some of the reports may well be redundant or outdated (the justification given for most of the changes), some seem really troubling. For example, the bill would eliminate a requirement–passed just three years ago–that the Administration audit and report (partially in unclassified form) the total number of security clearances and how long it takes to approve and reapprove those clearances. Here’s how the bill justifies eliminating such a report:

Justification: Section 506H includes two enduring reporting requirements. The requirement for a quadrennial audit of positions requiring security clearances should be repealed because the National Counterintelligence Executive, in partnership with other agencies with similar responsibilities, examines the manner in which security clearance requirements are determined more frequently than once every four years. Rather than submit a report regarding a quadrennial activity, the executive branch can provide more frequent briefings, as requested, if congressional interest persists.
With regard to the annual reporting requirement on security clearance determinations, the Executive Branch as a whole has made significant progress in expediting and streamlining the security clearance process since the passage of the Intelligence Reform and Terrorism Prevention Act, thus reducing the saliency of this report. This reporting requirement should be replaced by briefings, as requested, if congressional interest persists.

What this effectively does is eliminate one way for citizens to see at least the outlines and scope of our secret government. Rather than a partially unclassified report, instead, the intelligence community will brief Congress, rendering it not only secret, but eliminating some of the paperwork that can be FOIAed or archived.

The bill also would eliminate a requirement for the Director of National Intelligence and CIA Director to each provide an annual list of any advisory committees they’ve created, their subject, and their members. I’m guessing the proposed substitution–regular Congressional notifications and briefings–is probably not going to include the same level of detail. And given ODNI’s inadequate response to Electronic Frontier Foundation on an advisory committee as important as the Intelligence Oversight Board, I’m not all that confident it will provide adequate notice on more obscure advisory committees. Moreover, there is a history of advisory board members obtaining great influence and advantages from their position. Lists of members should be on paper somewhere.

The bill would also eliminate a requirement that the Department of Homeland Security tell the committee what kind of feedback its notoriously shitty intelligence department State, local, or tribal law enforcement people provide on that reports DHS’s intelligence department generates. Just last September, DHS’s customers were complaining about the “intelligence spam” DHS was pushing out. And yet here’s what the bill says to justify eliminating this feedback loop.

This reporting requirement is several years old. It should be replaced with briefings, as requested, if congressional interest persists.

If an intelligence department is as shitty as DHS’, eliminating reporting evidence of that doesn’t seem to be the solution.

The bill would eliminate two reporting requirements imposed in the wake of the Wen Ho Lee scandal: that the President report on how the government is defending against Chinese spying and that the Secretary of Energy report on the security of the nation’s nuclear labs. Just last year, the Oak Ridge National Laboratory had to separate from the Internet because some entity–China would be a good candidate–had hacked the lab and was downloading data from their servers. Now seems a really stupid time to stop reporting on efforts to avoid such breaches.

The bill would change the a quarterly report on the activities of privacy and civil liberties officers to a semiannual report because “has proven burdensome to submit these reports on a quarterly basis, particularly with limited staff.” Now maybe I’m being persnickety here. If privacy and civil liberties officers are that busy, all the more reason to tell Congress very regularly what they’re doing. If they need more staff, fund them. But I find this change particularly troubling given the way NCTC just got access to all government databases; the primary oversight on that vast expansion of data mining depends on NCTC’s privacy officer. Six months is too long to wait for reports about this shoddy oversight to make it to Congress.

Then again, obviously Congress wants it that way. While the request to eliminate these reports may have come from the Administration, Congress willingly passed it. In other words, to the extent these reports serve important functions (again, I accept that some of them may well be redundant), Congress has just abdicated its role in oversight.

And briefings?!?!? Really, you’re going to rely on briefings? With all the inadequacy and deceit we’ve see with intelligence briefings we’ve had over the last decade?!?!?

Marcy noted briefly Monday morning, the Supreme Court granted certiorari in Clapper v. Amnesty International:

SCOTUS did, however, grant cert to Clapper v. Amnesty, which I wrote about here and here. On its face, Clapper is just about the FISA Amendments Act. But it also has implications for wiretap exceptions–and, I’ve argued–data mining exceptions to the Fourth Amendment. In any case, SCOTUS seems interested in reversing the 2nd Circuit opinion, which had granted standing to people whose work had been chilled by the passage of the FAA. Also, as I hope to note further today, SCOTUS’ Clapper decision may also impact the Hedges v. Obama ruling from last week.

As Marcy indicated, there is nothing good afoot from SCOTUS taking cert in Clapper; if they wanted to leave the very nice decision of the 2nd Circuit intact, they simply leave it intact and don’t grant review. Oh, and, yes, Marcy is quite right, it’s a very safe bet that Clapper will “impact” the also very nice recent decision in Hedges, which is, itself, headed with a bullet to the 2nd Circuit.

There was, of course, much discussion of the significance of the Clapper cert grant yesterday on Twitter; one of the best of which was between Marcy, Lawfare’s Steve Vladeck and, to a lesser extent, me. To make a long story a little shorter, I said (here and here):

See, and I HATE saying this, I think Kennedy will do just that+then same 5 will kill al-Haramain once it gets to SCOTUS and then they will have capped the Bush wiretapping well completely and closed off standing significantly for the future.

Yikes, I did not contemplate just how true this statement was; the Clapper cert grant has already had a far deeper and more pernicious effect than even I suspected. This morning, in a move I do not believe anybody else has caught on to yet, the 9th Circuit quietly removed both al-Haramain and the CCR case encaptioned In Re: NSA Telecommunications Litigation/CCR v. Obama from the oral argument calendar that has long been set for June 1 in the old 9th Circuit Pasadena courthouse. The orders for both al-Haramain and CCR are identical, here is the language from the al-Haramain one:

Argument in this case scheduled for June 1, 2012 in Pasadena, California, is vacated pending the Supreme Court’s decision in Clapper v. Amnesty Int’l, No. 11- 1025. The court may order supplemental briefing following the Supreme Court’s decision. Oral argument will be rescheduled.

Whoa. This is extremely significant, and extremely unfortunate. Also fairly inexplicable. Entering the order for CCR makes some sense, since it involves the same “fear of surveillance” standing issue as is at issue in Clapper; but doing it for al-Haramain makes no sense whatsoever, because al-Haramain is an “actual” surveillance standing case.

There simply is no issue of the claimed, putative, standing concern that permeates Clapper and CCR. Well, not unless the 9th Circuit panel thinks the Supreme Court might speak more broadly, and expand the parameters wildly, in Clapper just as they did in Citizens United. That would be a pretty ugly path for the Supreme beings to follow; but, apparently, not just a cynical bet on my part, but also a bet the 9th Circuit immediately placed as well.

To be fair, even positive forward thinking players, like Steve Vladeck, thought the lower courts might be copacetic, or that the Supremes might comply. Maybe not so much. I know, shocking. Here is a glimpse, through Vladeck, of the situation:

But at a more fundamental level, there’s one more point worth making: Readers are likely familiar with Alex Bickel’s Passive Virtues, and his thesis that, especially on such sensitive questions where constitutional rights intersect with national security, courts might do best to rely on justiciability doctrines to duck the issue—and to thereby avoid passing upon the merits one way or the other. [Think Joshua at the end of WarGames: “The only winning move is not to play.”] And at first blush, this looks like the perfect case for Bickel’s thesis, given the implications in either direction on the merits: recognizing a foreign intelligence surveillance exception and thereby endorsing such sweeping, warrantless interceptions of previously protected communications vs. removing this particular club from the government’s bag…

And yet, the foreign intelligence surveillance exception only exists because it has already been recognized by a circuit-level federal court, to wit, the FISA Court of Review. Whether the passive virtues might otherwise justify judicial sidestepping in such a contentious case, the fact of the matter is that this is a problem largely (albeit not entirely, thanks to the FISA Amendments Act) of the courts‘ making. To duck at this stage would be to let the FISA Court of Review—the judges of which are selected by the Chief Justice—have the last word on such a momentous question of constitutional law. In my view, at least, that would be unfortunate, and it’s certainly not what Bickel meant…

Back to al-Haramain and the effects in the 9th Circuit. Here is the latest, taken from the Motion for Reconsideration filed late yesterday by al-Haramain, Wendell Belew and Asim Ghafoor:

The question presented in Clapper is thus wholly unrelated to the issues presented on the defendants’ appeal in the present case. The Supreme Court’s decision in Clapper will have no effect on the disposition of the present case. Thus, there is no reason to delay the adjudication of this appeal pending the decision in Clapper, which would only add another year or more to the six-plus years that this case has been in litigation.

It makes sense for the Court to have vacated the oral argument date for Center for Constitutional Rights v. Obama, No. 11-15956, which involves theories of Article III standing similar to those in Clapper. It does not, however, make sense in the present case, where Article III standing is based on proof of actual past surveillance rather than the fear of future surveillance and expenditures to protect communications asserted in Clapper.

Yes, that is exactly correct.

And, therein, resides the problem with Vladeck’s interpretation of what is going on with the Clapper case. Steve undersold, severely, just how problematic Clapper is. Both the discussion herein, and the knee jerk action of the 9th Circuit, the alleged liberal scourge of Democratic Federal Appellate Courts, demonstrate how critical this all is and why Clapper is so important.

Clapper has not only consumed its own oxygen, it has consumed that of independent, and important, nee critical, elements of the only reductive cases there are left in the United States judicial system in regards to these ends. That would be, at an irreducible minimum, al-Haramain in the 9th Circuit.

If you have forgotten about al-Haramain, and the proceedings that took place in the inestimable Vaughn Walker’s, court, here it is. Of all the attempts to attack the Bush/Cheney wiretapping crimes, al-Haramain is the only court case that, due to its unique circumstances, has been successful. It alone stands for the proposition that mass crimes were, in fact, committed. al-Haramain had a tough enough road ahead of it on its own, the road has become all the more treacherous now because of Clapper.

The 9th Circuit should grant the motion for reconsideration and reinstate al-Haramain on the oral argument calendar, but that is quite likely a longshot at this point. Expect the DOJ to file a very aggressive response, they are undoubtedly jumping for joy at this stroke of good fortune and will strive to protect it.

SCOTUS has just listed orders from last week’s conference, where they had been discussing the handful of Gitmo cases that had petitions for cert pending. It has relisted the detainee cases, which suggests they may need a week or more to sort through their decision.

SCOTUS did, however, grant cert to Clapper v. Amnesty, which I wrote about here and here. On its face, Clapper is just about the FISA Amendments Act. But it also has implications for wiretap exceptions–and, I’ve argued–data mining exceptions to the Fourth Amendment. In any case, SCOTUS seems interested in reversing the 2nd Circuit opinion, which had granted standing to people whose work had been chilled by the passage of the FAA. Also, as I hope to note further today, SCOTUS’ Clapper decision may also impact the Hedges v. Obama ruling from last week.

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.

Oppenheimers are wrestling with the problem of how America uses force in hostile, fluid or ungoverned territory; Orwells are trying to apply 250 years of the rule of law to a new police technology. Both are doing so, by and large, in good faith.

[snip]

While I actually agree with many of the concerns of both groups, pretending that their goals have anything in common, just because they use the same stock photography, is ridiculous.

The practical problem with doing this, DP argues somewhat persuasively, is that these two problems with drones have different solutions; solving one of the problems will not solve the other.

But establishing international standards for the deployment and operation of lethal military assets will do precisely nothing to curb the rise of the surveillance state within America’s borders. Nor will enhanced American legal protections against police UAV surveillance somehow prevent collateral damage in the lawless regions of Pakistan or Yemen.

Note, however, what DP does here: the international threat is military, the domestic one is civilian police. As I’ve suggested–and as DP’s invocation of DOD’s NSA among the known expanding surveillance risks–such neat lines no longer exist, though suggesting they do makes DP’s argument easier. Which brings us, ultimately, to what I consider a straw man argument, the suggestion that domestic drone opponents are worried primarily that armed drones will be used for speeding enforcement.

And when Orwells and Oppenheimers imply that the New Jersey State Police will soon rain Hellfire missiles onto Garden State Parkway speeders, it creates a rhetorical fog bank that’s too thick for logic to penetrate.

First, as bmaz and I argued on Twitter, it will be a long time before armed drones target New Jersey’s speeders. But it will probably be a much shorter time until armed drones operate either in northern Mexico or on the border, hunting drug cartels, against which the Obama Administration has already started applying counterterrorism tactics, to say nothing of ratcheting up fear based on cartels’ alleged ties to both al Qaeda and non-AQ terrorists we’re fighting. While it is a stretch to imagine armed drones used in day-to-day law enforcement in the US, it is not a stretch to imagine armed drones seeping across the border in search of drug traffickers, as many other Executive Branch abuses already have.

Moreover, there is plenty to fear from drone-based surveillance well before they start shooting down New Jersey’s speeders.

DP, for example, argues that helicopter surveillance represents a bigger threat than drones, as they currently are. But that ignores the added sensor technologies that represent further incursions on privacy–and under Fourth Amendment precedent on thermal imaging surveillance would be a legal problem. Plus, I think the debates about using satellite surveillance for precisely the same applications currently envisioned for drones and the Court’s treatment of GPS technology in Jones suggest that there will be a lot of fluidity in privacy law in upcoming years, which ought to invite a robust discussion about whether and for what drones are appropriate. All that said, the most extensive government surveillance currently takes place behind the veil of secrecy-protected intelligence collection, which has prevented anyone from challenging the most intrusive GPS surveillance (the Secret PATRIOT application) and would likely prevent anyone from challenging the most abusive potential uses of drones, so their unquestioning use is, by itself, a problem.

I also think DP focuses too closely on the FAA roll out of drones, and too little on the NDAA’s rollout of six test sites for military drones in civilian airspace. Sure, I never much worried about the omnipresent F-15s [correction: F-18s?] flying over my head when I lived and worked near Miramar, which like these drones would be in part, were engaged in training. But that was before our government expanded the use of unwarranted DOD (NSA) surveillance in the US. In other words, it is one thing to envision police use of drones to help capture cattle rustlers targeted for probable cause, it is another to imagine DOD use of drones for unwarranted surveillance–the kind of surveillance that is already in place through NSA and certain DOJ authorities. Besides, the rollout of domestic drones explicitly envisions the kind of resource sharing that went into that cattle rustler bust, which means in the era of flexibility and data sharing, authorities can get around limits on the use of posse comitatus and CIA surveillance.

Which brings us, ultimately, to DP’s too narrow treatment of the Imperial Presidency. When Arthur Schlesinger Jr. wrote the Imperial Presidency, he talked about the waging of secret wars, but he also cited a list of things that made Nixon historically worse, including illegal wiretapping, illegal electronic surveillance, tampering with witnesses, misprision of felonies. When John Conyers invoked the term, his list included illegal wiretapping and abuse of PATRIOT Act authorities as well as torture and rendition.

That is, the post-9/11 presidents, like the archetypal Imperial President, have done more than just unilaterally wage secret (and not-so secret) wars. They have also invoked domestic enemies at a time of war to use novel tools against them. To some degree the war on terror is custom made to do so–to roll out massive surveillance in hunt of people who are or might be entrapped to become enemies amongst us. And both the Bush and Obama Administration have expanded the targeting using such authorities from just Muslim extremists to include Occupy protestors, Tea Partiers, hackers, peace activists, journalists. Furthermore, while in the current political environment, it is unlikely a President will use a drone to kill an alleged terrorist within the US, the Administration is currently using the Imperial President’s favorite tool–secrecy–to avoid admitting that they believe they have legal authority to do so in some circumstances.

Yes, the discrete solutions to the international problems drones present are different than solutions to metastasizing domestic surveillance, including drones.

Yes, the first abusive use of drones in the US probably won’t be the targeted killing of New Jersey’s speeders. But there is plenty there that resembles the continuum of drone uses overseas. Ultimately, the Imperial Presidency claims the authority to ignore the laws of sovereign or private property.

And both (potential or actual) uses of drones are the two faces of the Imperial Presidency, one directed outward to conduct foreign wars with few checks, the other directed inward to target “domestic enemies” protected by a great deal of secrecy. Neither, by itself, fully empowers the Imperial Presidency. Both spheres–war and surveillance–are among the ways the Imperial Presidency operates outside of traditional legal limits.

And at that level, only legislative efficacy–to the extent such a thing exists anymore, particularly in light of the surging drone lobby–supports distinguishing between the two reasons.

Drunken Predator provides excellent summaries of–and superb names for–the two main reasons to oppose drones. But I think he mistakes the degree to which they are simply two sides of an Imperial President continuum.

Update: As if on cue, the Air Force makes it clear that it can incidentally (though not intentionally, unless the Secretary of Defense tells it to) collect US person images in the US. It won’t keep that data, but will instead pass it onto a civilian law enforcement agency, which will almost certainly, in turn, pass it onto the National Counterterrorism Center.

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.

And so with allies and partners, we will keep increasing the pressure, with a diplomatic effort to further isolate Assad and his regime, so that those who stick with Assad know that they are making a losing bet. We’ll keep increasing sanctions to cut off the regime from the money it needs to survive. We’ll sustain a legal effort to document atrocities so killers face justice, and a humanitarian effort to get relief and medicine to the Syrian people. And we’ll keep working with the “Friends of Syria” to increase support for the Syrian opposition as it grows stronger.

Indeed, today we’re taking another step. I’ve signed an executive order that authorizes new sanctions against the Syrian government and Iran and those that abet them for using technologies to monitor and track and target citizens for violence. These technologies should not empower — these technologies should be in place to empower citizens, not to repress them. And it’s one more step that we can take toward the day that we know will come — the end of the Assad regime that has brutalized the Syrian people — and allow the Syrian people to chart their own destiny.

Two things were lacking from this presentation.

There was no mention–not a peep–of the equally urgent repression targeted at Shias, notably those America’s ally Bahrain is brutally repressing. With the Formula 1 fiasco, Bahrain is actually the subject of more intense news coverage right now. But not, apparently, the subject of protections against atrocities.

Also lacking from Obama’s speech was any application of the rules of GRAHVITY to the United States itself. When Wiesel invoked the innocent children who were victims of the Holocaust, did he also ask about the children killed in America’s drone strikes? Did Obama promise not to spy on Americans who participate in Occupy Wall Street, Muslims who practice their faith, or journalists and whistleblowers seeking to hold the government accountable?

We used to believe in human rights that–like gravity–applied equally to all people. But Obama is rolling out something new, GRAHVITY, targeted solely at those who threaten Saudi hegemony, Israel’s dominance of the Middle East, and with both of those, America’s empire. It is a sick perversion of universal rights wielded selectively as a weapon, not a protection.

Episode one of Who Rules Your World?, pitting Barack Obama against Rupert Murdoch, passed mostly under the radar. The “privatize education” event ended in an early draw when the darling of both contestants, Michelle Rhee, resigned in disgrace for a cheating scandal. Though in truth, Murdoch’s loss of a big NY state contract (the contract opportunity arose out of Obama’s Race to the Top program) and Obama’s determination to continue his reforms using executive orders tips the balance to the President.

Episode two of Who Rules the World?, the illegal wiretap cover-up, has thus far been a clear Obama win. Within weeks after taking office, Obama reaffirmed the state secrets invocations of his predecessor. And while al-Haramain still fights to impose penalties in its successful case against the government, Obama has otherwise succeeded in shielding the government for any accountability for illegal wiretapping. Crucially, John Brennan, who had a role in the illegal wiretap program, has suffered no consequences for his role in the scandal.

Rupert’s son James has not enjoyed the same luck Brennan has. He had to resign from BSkyB to prevent News Corp’s hacking scandal from endangering the rest of the corporation’s business plans. Add in the substantial fines News Corp has already paid and the likelihood that a number of people involved in its illegal wiretap program will do jail time, and it’s clear that Obama has won the illegal wiretap coverup hands down.

Episode Three of Who Rules Your World?, leak retribution, might be more interesting. Sure, the retribution against Jeff Sterling for his employment dispute with John Brennan and John Kiriakou for revealing members of the torture squads (a program Brennan also had ties to) are ongoing. But the case against Thomas Drake for exposing the graft involved in NSA’s illegal wiretap contracts blew up in spectacular fashion; plus, the failure of the retribution against Drake has led to more revelations about the illegal wiretap program.

Meanwhile, we’re just beginning to see how News Corp will respond to the efforts of Fox Mole, now exposed as Joe Muto, for passing embarrassing videos to Gawker. It will be particularly interesting to see how Fox balances retribution with a desire to prevent any more embarrassing revelations. Though of course, Fox is hampered because unlike Obama, he can’t make Fox Mole unemployable by withdrawing his security clearance. Unlike national security whistleblowers, Muto’s employment prospects probably just got a lot rosier, as other news outlets scramble to add to News Corp’s discomfort.

It’s probably just as well that Obama is winning Who Rules Your World? by such margins at this point. I wouldn’t want Rupert to get smart ideas about trying to compete in the assassinations category.

I do hope the Harvard students who listened to this speech from CIA General Counsel Stephen Preston–in which he purported to explain what a law-abiding agency the CIA is and which appears to be the CIA’s effort to prove that the Anwar al-Awlaki killing was legal–are sophisticated enough to realize he, like all spooks, was peddling deceit. I’ll get to those details below.

But first I want to focus on how he bookends his claim that CIA’s “activities are subject to strict internal and external scrutiny.”

He starts by admitting that courts and citizens are not part of this “external scrutiny.”

It is true that a lot of what the CIA does is shielded from public view, and for good reason: much of what the CIA does is a secret! Secrecy is absolutely essential to a functioning intelligence service, and a functioning intelligence service is absolutely essential to national security, today no less than in the past. This is not lost on the federal judiciary. The courts have long recognized the state secrets privilege and have consistently upheld its proper invocation to protect intelligence sources and methods from disclosure. Moreover, federal judges have dismissed cases on justiciability or political question grounds, acknowledging that the courts are, at times, institutionally ill-equipped and constitutionally incapable of reviewing national security decisions committed to the President and the political branches.

Let’s unpack the logic of this: first, CIA operations are subject to strict “external scrutiny.” But because–“national security”–such external scrutiny is not possible.

Next, Preston claims that the courts have been in the business of consistently upholding the “proper invocation” of state secrets “to protect intelligence sources and methods.” Of course, just about every invocation of state secrets has been subsequently or contemporaneously shown to be an effort to protect–at best–misconduct and, in most cases, illegal activities: things like kidnapping, illegal wiretapping, and torture. So when he describes this “proper invocation” of states secrets, he is effectively saying that when lawsuits threatened to expose CIA’s law-breaking, courts have willingly dismissed those cases in the name of sources and methods.

And even before it gets to that stage, courts will bow to the Executive Branch’s claim that only Congress and the Executive can decide what forms of law-breaking by the CIA will be tolerated; courts are “ill-equipped” to judge the legality of illegal actions if those illegal actions are committed by the CIA.

So to prove that CIA’s ops are subject to “external scrutiny,” Preston starts by admitting that two of the most important agents of external scrutiny–citizens and courts–don’t actually exercise any scrutiny, particularly in cases where the government is willing to invoke state secrets to shield illegal activities.

Preston then lists a whole bunch of agents exercising “internal and external scrutiny.” He lists the Intelligence Committees–which in the case of the unspoken subject of this speech, Awlaki’s killing, did not receive key details of the op; in addition, under Bush, CIA lied to these committees about at least five ops. He mentions the FISA Court, which not only rubber stamps most things (and also got lied to under Bush), but doesn’t have any oversight over the unspoken subject of this speech, Awlaki’s killing. Preston mentions the Intelligence Advisory Board and Intelligence Oversight Board, committees which the President appoints (in Obama’s case, after two years of delay) with no oversight, whose members are apparently so secret the Director of National Intelligence doesn’t know to invite them to his holiday party. And he mentions the DNI and CIA Inspectors General, the latter of which had been a key oversight player in the past until John Helgerson got hounded out for … exercising oversight.

Which brings us to the second bookend of Preston’s list of the not-so-impressive entities exercising scrutiny over the legality of CIA’s operations.

Last, but by no means least, there is the U.S. Department of Justice, to which the CIA is required to report all possible violations of federal criminal laws by employees, agents, liaison, or anyone else.

Even ignoring past practice with torture of DOJ allowing the CIA–not FBI–to investigate potential legal violations, remember how Preston began this section: by admitting that when cases do go to any court besides FISA, the Executive Branch can and does invoke state secrets or political question grounds to make sure courts don’t review these actions.

“Last but not least,” Preston is arguing, DOJ gets to learn about potential criminal violations, which is absolutely meaningless once courts have been rendered incapable of actually reviewing those criminal violations (even assuming DOJ chose to pursue them).

So where does that leave Preston’s claim, then, that the “the rule of law is integral to Agency operations”? With a list of Executive Branch entities–some of them not always functioning–exercising “scrutiny,” with the Intelligence Committees as the sole external entity on the use of force this speech implicitly discusses, and aside from the mention of FISA that doesn’t apply to his example … no courts.

So with no courts to determine whether the CIA actually is abiding by the rule of law Preston claims is integral to its operations, then who decides?

The President.

First, there is direct supervision by the National Security Council and the President, who, after all, not only is constitutionally responsible for keeping the American people safe, but also, quote, “shall take Care that the Laws be faithfully executed.”

[snip]

I don’t mean to suggest that these judgments are confined to the Agency. To the contrary, as the authority for covert action is ultimately the President’s, and covert action programs are carried out by the Director and the Agency at and subject to the President’s direction, Agency counsel share their responsibilities with respect to any covert action with their counterparts at the National Security Council.

[snip]

First, we would confirm that the contemplated activity is authorized by the President in the exercise of his powers under Article II of the U.S. Constitution, for example, the President’s responsibility as Chief Executive and Commander-in-Chief to protect the country from an imminent threat of violent attack. This would not be just a one-time check for legal authority at the outset. Our hypothetical program would be engineered so as to ensure that, through careful review and senior-level decision-making, each individual action is linked to the imminent threat justification.

Sure, Preston mentions a few other things–Congressional notice, the Constitution and some laws that don’t pertain to targeted killings, and international law (I’ll return to some of these in a later post). But ultimately, once Preston admits that courts won’t ever review these activities–that they’re shielded by the President’s habit of declaring illegal activities a state secret–then you’re really left with one thing.

If the President has authorized a covert action then, from the CIA’s standpoint, it’s legal.

I’m a sucker for groups of adoptive kids. Like the time when a group of Michigan families with adopted Ethiopian kids had a rambunctious reunion at my favorite Ethiopian restaurant, with the owner catering to the kids like a grandparent. Or the time I shared a restaurant in Guangzhou with a bunch of French families who had just picked up their baby daughters; they somehow expected these girls who had lived in Chinese orphanages to immediately understand how to act like proper French kids.

There’s a lot that can be abusive in international adoptions, but when I see joyful gatherings like these, I’m awestruck by the faith such parents have in our common humanity.

Which is why I’ve been obsessing by one of the implications of this post. As I noted, DHS’s Inspector General helpfully explained that among all the other people in DHS’ IDENT database are the American citizens who had adopted internationally.

Individuals with fingerprints in IDENT include persons with an immigration history, such as aliens who have been removed but have reentered the country, immigration visa applicants, legal permanent residents, naturalized citizens, and some U.S. citizens.
IDENT includes two categories of U.S. citizens:

• Citizens who have adopted a child from abroad (which involves U.S. Citizenship and Immigration Services), participated in a trusted traveler program, or may have been fingerprinted by immigration officials for smuggling aliens or drugs across U.S. borders;
• Individuals who were not citizens at the time that their fingerprints were collected, but subsequently became citizens through naturalization, legal permanent residency, or immigration.[my emphasis]

Now, we can be pretty sure that when NCTC decided it needed to acquire US agency databases and data mine them with their existing terrorism databases, complete with the US person data they included, the IDENT database–the primary purpose of which is to track people who’ve come through the immigration system–was one of the first databases they went after.

Which is another way of saying the US persons in the IDENT database should assume they’ll also be in NCTC’s databases for five years. Including those parents who adopted children from China or Ethiopia or Guatemala or Romania.

“Well, if they’ve done nothing wrong they don’t have anything to be worried about.”

Perhaps. Except that the kind of people who adopt kids internationally may also tend to have reason for a significant number of international connections, whether because of religious faith, an effort to establish some tie to their child’s native country, or a comfort with international travel.

There are a lot of people whose biometric data shouldn’t be mined along with a bunch of terrorist suspects. At the top of that list, though, are families whose primary interaction with Bureau of Customs and Immigration Services entailed adopting a baby from another country.

I’ve been blogging about British efforts to expands the use of closed material proceedings so it won’t reveal embarrassing details about its cooperation in American torture in the future.

Which makes it interesting that Britain’s Foreign Secretary, William Hague, has ordered that the inquest into the death of GCHQ scientist Gareth Williams will be secret. Williams is the GCHQ-on-loan-to-MI6 sometimes-on-loan-to-NSA scientist whose body was found in a gym duffel in his flat a few years ago.

All sorts of cover stories have been leaked about his death: that it was some sort of gay bondage gone bad, that the Russian mafia took him out.

I’ve been most intrigued by the detail that Williams was working with NSA at the time when the US blew up the British planes investigation.

Whatever the reason, we’re not likely to find out, at least not immediately, because of the secrecy surrounding the inquest.

I’m not surprised the Brits don’t want their spy stories told in public, mind you.