You can watch here or here.

Bennie Thompson gets permission for Andre Carson and two other Reps to sit on the hearing. People often forget that Carson, like Keith Ellison, is Muslim.

King accuses those who oppose the form of this hearing of hysteria. “To back down would be craven abdication to political correctness.”

King: “No equivalency of threat between al Qaeda and Neo-Nazis. Only Al Qaeda part of intl threat to our country.”

Bennie Thompson: Raises yesterday’s Spokane arrest and notes the suspect has ties to same group as Tim McVeigh. “A narrow focus lacks clarity.” Then says that we all come to this hearing from our history, alludes to King’s background in a country split by religion, an implicit reference to King’s material support for terrorism.

Thompson: I cannot help but worry that propaganda about this hearing will be used to inspire new suicide bombers.

John Dingell up. Note he represents Dearborn, the most Arab city in the US–though Conyers actually represents the side of the city with the heavy Muslim and Arab population (though of course his district has changed over the years).

Dingell: I kept a picture of Joe McCarthy on the wall so I knew what I did not want to be. I would beg you, Mr Chairman, to see to it that as we go into these matters we do not blot the good name of Arabs or Muslims or other Americans en masse. There will be plenty of rascals that we can point at and say these are real dangers to our country.

Keith Elliison up. Ellison introduces mother of son who died trying to rescue people on 9/11.

Ellison: This approach contrary to the best of American values. Need increased engagement to keep America safe.

Ellison: We need to conduct fair hearings and do no harm.[emphasizes reference to Muslim community in title of hearing] These are individuals not the entire community. [mentions people like Nidal Hasan and al-Awlaki] When you assign their violent actions, you assign collective blame to an entire group. Demanding a community response asserts entire community bears responsibility. All communities are responsible for combating violent extremism.

Ellison calls KKK “America’s oldest terrorist organization”

Ellison ends his testimony by describing how Hamdani–the Arab-AMerican who died trying to save people in 9/11–was vilified after the attacks until they found his remains. He described his football uniform, singing Messiah in the choir. By the end, Ellison was weeping. During it, CSPAN broke away to an image of the Twin Towers burning.

Frank Wolf claims the violation of Muslim-American rights is the exception, not the rule.

Wolf talks about the danger of ignoring radicalization in this country. Of course, this hearing is premised on ignoring the threat of ignoring the radicalization of white people.

Wolf is now going on a rant against CAIR. The Republicans in this hearing have been using a poster the SF CAIR group used–and was scolded for by CAIR national–as evidence that CAIR as a whole opposes cooperation.

Here’s the Ellison testimony on Mohammed Salman Hamdani:

Let me close with a story, but remember that it’s only one of many American stories that could be told. Mohammed Salman Hamdani was a 23-year-old paramedic, a New York City police cadet and a Muslim American. He was one of those brave first responders who tragically lost their lives in the 9/11 terrorist attacks almost a decade ago. As The New York Times eulogized, “He wanted to be seen as an all-American kid. He wore No. 79 on the high school football team in Bayside, Queens, where he lived, and he was called Sal by his friends… He became a research assistant at Rockefeller University and drove an ambulance part-time. One Christmas, he sang in Handel’s Messiah in Queens. He saw all the Star Wars movies, and it was well known that his new Honda was the one with “Yung Jedi” license plates.

Mr. Hamdani bravely sacrificed his life to try and help others on 9/11. After the tragedy some people tried to smear his character solely because of his Islamic faith. Some people spread false rumors and speculated that he was in league with the attackers only because he was Muslim. It was only when his remains were identified that these lies were fully exposed.

Mohammed Salman Hamdani was a fellow American who gave his life for other Americans. His life should not be defined as a member of an ethnic group or a member of a religion, but as an American who gave everything for his fellow citizens.

As I said, he was weeping by the time he was done.

Zuhdi Jasser claims that non-Muslims can’t solve Muslim radicalization. If so, then shouldn’t white people like Peter King focus on white radicalization?

Here’s a description of Zuhdi Jasser, who is testifying right now.

Melvin Bledsoe is describing the radicalization of his son. Key point is that the last part of radicalization happened in a jail in Yemen. If so, wouldn’t the jailing and beating of Gulet Mohamed be the worst possible thing the FBI could have done?

Abdirizak Bihi now describing opposition in Somalia-American community over finding children in Somalia.

King interrupts Bihi for going over on time. Finally stops his testimony. Then turns to Sheriff Leroy Baca, and says, “your time will not be limited.” So the white guy interrupts the black Muslim–in the middle of criticizing his own community and saying he will not be silenced–and then turns to law enforcement and tells him he can speak as long as he wants.

Lee Baca starts by comparing numbers of Muslim plots versus white extremism.

Jasser now ranting about mosques where they support Muslim law over American law. Me, I’m going to rant about our leaders who call to support Military law over the Constitution.

King to Bledsoe: “What is your opinion of this hearing.” Hmm, maybe not the right person to ask.

Thompson smartly asks King’s witnesses whether they advocate profiling, whether they advocate more mosques. Jesser wants to add something and asks King for more time. King goes to give it to him. SOmeone interrupts–“regular order.” King realizes it was Thompson’s time. Backs down.

Dan Lungren now trying to claim this is not about profiling. Then analogizes this hearing w/hearings investigating continuing presence of German Nazi war criminals (that is, people who ALREADY committed crimes), as well as hearings on the KKK (that is, hearings on one particularly terrorist organization).

Bihi now talking about intimidation by Muslim community.

Loretta Sanchez: As a minority, I would advocate they should have attorney present when talked to by FBI. Why should ANY minority waive that? Jasser says he has nothing to fear.

Mike Rogers, a white dude from AL, is trying to refute Loretta Sanchez’ point that minorities ought to have attorneys present when they talk to the cops.

Sheila Jackson Lee: We have two Muslims here cooperating, which is what this hearing suggests doesn’t happen.

Michael McCaul quotes from a Joe Lieberman letter to John Brennan–arguing he had to call it a threat from Islamic extremism–to justify his own bigotry. (Joe Lieberman, with us on everything but the war)

Laura Richardson talks about being born in the 60s, seeing films of McCarthy hearings. “The only difference between this hearing and the 60s is that those films were in black and white, and this one is in color.”

Glenn Greenwald and Mark Mazzetti tell the story of 19-year old American citizen Gulet Mohamed who was taken into custody by the Kuwaitis after the US, while Mohamed was staying with an uncle in Kuwait, put him on the no-fly list. In the two weeks the Kuwaitis have held him, Mohamed says he was subjected to:

• Physical beatings of his feet with sticks
• Stress positions
• Sleep deprivation
• Exposure to cold
• Threats of electrical shock
• Threats to his mother

In other words, this US citizen, held by a close ally after coming up on a review of the no-fly list, was subjected to some of the worst kinds of torture that President Obama has purportedly ended.

Over the course of his interrogation, an official from the US Embassy and agents from the FBI visited him.

What seems to have happened is that the government, seeing a young Muslim kid from Virginia travel to Yemen (to study for a brief period of time) and Somalia (to stay with family), decided he must have ties to Anwar al-Awlaki (remember that Awlaki once preached at a Virginia mosque). They may have tried to contact him via someone claiming to know Mohamed from his mosque in Virginia. When Mohamed said he didn’t know that person, he was picked up when he went to the airport to renew his Kuwaiti visa. His Kuwaiti interrogators (though some spoke English) asked him whether he had met with Awlaki or other militants.

“Are you a terrorist?” they asked, according to his account.

“No,” he replied.

“Do you know Anwar?” his interrogators asked, referring to Mr. Awlaki.

“I’ve never met him,” Mr. Mohamed recalled saying.

“You are from Virginia, you have to know him,” they responded, according to Mr. Mohamed. From 2001 to 2002, Mr. Awlaki was the imam of a prominent mosque in northern Virginia.

And in response to his answers that he hadn’t met with Awlaki or other militants, they tortured him, accusing him of lying.

I assume when asked whether they ordered up this interrogation, and whether or not they knew it would involve torture, the government will “pretend” they are shocked that a close ally engaged in such treatment. I assume they will disavow any role in the torture, at the hands of our allies, of a US citizen.

Either that, or they’ll just invoke state secrets, as they did when Anwar al-Awlaki’s family sued to find out the authority the President has relied upon to order the assassination of an American citizen.

Director of National Intelligence James Clapper has been getting beat up because he got embarrassed by Diane Sawyer when he admitted he had no clue about a 12-person counterterrorism arrest in the UK earlier the day of the interview.

In an interview with ABC’s Diane Sawyer, taped Monday afternoon, Clapper was asked about the arrests, which had happened hours before and were featured on all of the network morning news broadcasts. Secretary of Homeland Security Janet Napolitano and Chief Counterterrorism Advisor John Brennan, who were also participating in the joint interview, were aware of the arrests.

“First of all, London,” Sawyer began. “How serious is it? Any implication that it was coming here? … Director Clapper?”

“London?” Clapper said after a pause, before Brennan entered the conversation explaining the arrests.

Later in the interview, Sawyer returned to the subject.

“I was a little surprised you didn’t know about London,” Sawyer told Clapper.

“Oh, I’m sorry, I didn’t,” he replied.

As a threshold matter, it would be the intelligence community’s fault as a whole if Clapper should have been, but wasn’t, briefed about this arrest (the Administration has explained that Clapper was involved in START Treaty briefings all day Monday, and so didn’t get briefed), not Clapper alone. But I’m also wondering whether there’s more to his not getting briefed.

Note, first of all, that there are two kinds of briefings Clapper might have–but apparently didn’t–get: briefing about the investigation itself, and a briefing about the arrests, either before or after they happened.

Here’s some of what we know about the investigation and raid:

• The investigation, which has been going on for months, has been described as “intelligence-driven”
• Authorities triggered the raid after intercepted communications revealed the plotters were preparing to act
• Britian’s Home Secretary was told of the raids during the week of December 12 through 18
• Lord Alex Carlile, who acts as a watchdog on UK terrorism operations, also described watching one of the operations involved in the investigation
• The group has ties to a known (and banned) British radical Muslim group
• Like many of the recent arrests in the US, this group is alleged to have been influenced by Anwar al-Awlaki
• Muslim leaders in Cardiff tipped authorities off to a group of radicalized youth though MI5 seemed to already bee aware of the group; the group held a meeting two weeks ago attended by up to 30 people

Now, the Administration portrayed Clapper’s non-briefing as a Monday event. That is, they never suggested he should have known about the investigation before Monday.

I find that interesting for several reasons. First, GCHQ and NSA can work closely together to get coverage within their own countries, so it’s possible the NSA would have been involved in the surveillance process. And the allegation that these men followed Anwar al-Awlaki’s publications might further suggest US involvement in online surveillance (though I tend to distrust the Awlaki allegations as just the product of the Awlaki-villainization industry). There were no hints of international money transfers, but if there were, the US still has control over SWIFT-based investigations.

Then there are all the suggestions that this investigation has been going on some time, and the decision to arrest the men was made at least three days before the arrests.

In other words, it is at least possible the US had a role in this investigation, and it is possible the UK could have shared this information with the US intelligence community some time before Monday, when Clapper was too busy to be briefed on the arrest.

But he was so unaware of the impending arrests as to be taken totally by surprise, suggesting he, at least, had no such awareness of it.

Which leads me to wonder about two things. First, how long did John Brennan and Janet Napolitano know of the investigation? Did they keep the DNI out of the loop on preliminary reviews of the investigation? Before the Intelligence Authorization, ODNI was subject to FOIA in a way that CIA and other operational intelligence units are exempt, but that problem should have been fixed.

Remember, too, how badly burned the UK got in 2006 on their investigation of the liquid-based explosives. Facing mid-term elections and falling approval ratings, the Bush Administration wanted the Brits to trigger arrests earlier than they were prepared to do. To force the issue, Cheney sent Jose Rodriguez to Pakistan to arrest Rashid Rauf, a key contact of the plotters. Add to that US complaints after a British court released details on Binyam Mohamed’s torture. While I have every reason to believe the British and Americans still share intelligence information freely, I do wonder whether Clapper’s ignorance of this arrest reflect some limits on that sharing?

Now, maybe Clapper did have advance warning of these arrests. Or maybe he didn’t–and he was just too busy to be briefed on Monday.

But if there’s a failure here–or some limits on the sharing of information–then they’re more systemic than just Clapper and his immediate staff.

Though, it does all raise one question. As the Guardian reminds, Clapper’s the guy in charge of Obama’s intelligence briefings. So as interesting as the question of whether Clapper knew of the investigation and arrests is the question of whether Obama did.

I almost felt like I was reading Judge John Bates’ ruling on whether or not Valerie Plame could sue those who outed her when I read Judge Bates’ ruling dismissing the suit challenging the government’s ability to assassinate Anwar al-Awlaki with no due process.

He starts by admitting the importance of the issues at hand.

This is a unique and extraordinary case. Both the threshold and merits issues present fundamental questions of separation of powers involving the proper role of the courts in our constitutional structure. Leading Supreme Court decisions from Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), through Justice Jackson’s celebrated concurrence in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), to the more recent cases dealing with Guantanamo detainees have been invoked to guide this Court’s deliberations. Vital considerations of national security and of military and foreign affairs (and hence potentially of state secrets) are at play.

Stark, and perplexing, questions readily come to mind, including the following: How is it that judicial approval is required when the United States decides to target a U.S. citizen overseas for electronic surveillance, but that, according to defendants, judicial scrutiny is prohibited when the United States decides to target a U.S. citizen overseas for death? Can a U.S. citizen — himself or through another — use the U.S. judicial system to vindicate his constitutional rights while simultaneously evading U.S. law enforcement authorities, calling for “jihad against the West,” and engaging in operational planning for an organization that has already carried out numerous terrorist attacks against the United States? Can the Executive order the assassination of a U.S. citizen without first affording him any form of judicial process whatsoever, based on the mere assertion that he is a dangerous member of a terrorist organization? How can the

courts, as plaintiff proposes, make real-time assessments of the nature and severity of alleged threats to national security, determine the imminence of those threats, weigh the benefits and costs of possible diplomatic and military responses, and ultimately decide whether, and under what circumstances, the use of military force against such threats is justified? When would it ever make sense for the United States to disclose in advance to the “target” of contemplated military action the precise standards under which it will take that military action? And how does the evolving AQAP relate to core al Qaeda for purposes of assessing the legality of targeting AQAP (or its principals) under the September 18, 2001 Authorization for the Use of Military Force?

But then he punts entirely on standing grounds.

Although these threshold questions of jurisdiction may seem less significant than the questions posed by the merits of plaintiff’s claims, “[m]uch more than legal niceties are at stake here” — the “constitutional elements of jurisdiction are an essential ingredient of separation and equilibration of powers, restraining the courts from acting at certain times, and even restraining them from acting permanently regarding certain subjects.”

[snip]

Because these questions of justiciability require dismissal of this case at the outset, the serious issues regarding the merits of the alleged authorization of the targeted killing of a U.S. citizen overseas must await another day or another (non-judicial) forum.

But just for good measure, Bates says he would rule in the government’s favor on state secrets, but doesn’t need to.

So, too, defendants have established that the three procedural requirements for invocation of the state secrets privilege — (1) a formal claim of privilege (2) by an appropriate department head (3) after personal consideration — have been satisfied here. See Reynolds, 345 U.S. at 7-8; Jeppesen Dataplan, 614 F.3d at 1080; Defs.’ Mem. at 48-50.[snip]

Under the circumstances, and particularly given both the extraordinary nature of this case and the other clear grounds for resolving it, the Court will not reach defendants’ state secrets privilege claim. That is consistent with the request of the Executive Branch and with the law, and plaintiff does not contest that approach. Indeed, given the nature of the state secrets assessment here based on careful judicial review of classified submissions to which neither plaintiff nor his counsel have access, there is little that plaintiff can offer with respect to this issue.17 But in any event, because plaintiff lacks standing and his claims are non-justiciable, and because the state secrets privilege should not be invoked “more often or extensively than necessary,” see Jeppesen Dataplan, 614 F.3d at 1080, this Court will not reach defendants’ invocation of the state secrets privilege.

It was nice of Bates to save the Obama Administration the embarrassment of invoking state secrets to hide the logic for its tyranny.

All in all, a tremendous victory for unchecked executive powers!

Update: Key to Bates’ ruling is the government’s claim that al-Awlaki can just waltz up to an Embassy and make a legal request that they stop their illegal targeting of him.

In his complaint, plaintiff maintains that his son cannot bring suit on his own behalf because he is “in hiding under threat of death” and any attempt to access counsel or the courts would “expos[e] him[] to possible attack by Defendants.” Compl. ¶ 9; see also id. ¶ 26; Al-Aulaqi Decl. ¶ 10. But while Anwar Al-Aulaqi may have chosen to “hide” from U.S. law enforcement authorities, there is nothing preventing him from peacefully presenting himself at the U.S. Embassy in Yemen and expressing a desire to vindicate his constitutional rights in U.S. courts. Defendants have made clear — and indeed, both international and domestic law would require — that if Anwar Al-Aulaqi were to present himself in that manner, the United States would be “prohibit[ed] [from] using lethal force or other violence against him in such circumstances.”

Bates makes the very helpful suggestion that if al-Awlaki wants to access the justice system, he should just email some lawyers–not admitting, of course, that the government now routinely wiretaps attorney-client correspondence.

There is no reason why — if Anwar Al-Aulaqi wanted to seek judicial relief but feared the consequences of emerging from hiding — he could not communicate with attorneys via the Internet from his current place of hiding.

But there’s a problem with this (aside from the whole abuse of attorney-client privilege). Bates has said that he would support the government’s state secrets claim, if it came to that. Which means even if al-Awlaki waltzed up the American Embassy in Yemen, he would have no way to challenging his targeting, because his suit–like that of Binyam Mohamed or Maher Arar–would be dismissed on state secrets grounds. Which gets to the whole underlying problem here. The government has refused to indict al-Awlaki, to even place their accusations into a legal form. Absent that and in light of Bates’ advance assault on state secrets, al-Awlaki would still have no legal means to challenge his targeting.

John Bellinger has been publicly suggesting the Obama Administration had exceeded the terms of the AUMF for some time. So it is unsurprising that he took the opportunity of a Republican House, the incoming Armed Services Chair’s explicit support for a new AUMF, and the Ghailani verdict to more fully develop his argument in an op-ed. It’s a well-crafted op-ed, such as in the way it avoids explicitly saying the government has been breaking the law in its pursuit of terrorism, when he pretends the only people we’ve been targeting in Pakistan, Yemen, and Somalia are al Qaeda leaders.

The Bush and Obama administrations have relied on this authority to wage the ground war in Afghanistan; to exert lethal force (including drone strikes) against al-Qaeda leaders in Pakistan, Yemen and Somalia; and to detain suspected al-Qaeda and Taliban members in Guantanamo Bay, Cuba, and Afghanistan.

In fact, the targets include a heck of a lot of grunts and many people with terrorist ties, but not direct affiliation with al Qaeda. Oh, and a bunch of civilians, but I guess we’re to assume the government just has bad aim.

Then there’s this game attempt to pretend that everyone will find something to love in the Forever War.

Nearly 10 years after the Sept. 11 attacks, the Obama administration, congressional Republicans and Democrats, and civil liberties groups all have an interest in updating this aging legislation. Republicans should be willing to help the president ensure that combatant commanders and intelligence agencies have ample legal authority to kill or capture terrorists who threaten the United States today. Many Republicans also want to give clearer statutory direction to federal judges regarding who may be detained and for how long. For their part, civil liberties groups and their Democratic supporters in Congress can insist that terrorist suspects who are U.S. nationals receive additional protections before being targeted and that persons detained now or in the future under the laws of war have a right to adequate administrative or judicial review.

As if Republicans weren’t already clamoring for more war and more war powers. As if there would be any doubt that Republicans would answer the “who may be detained and for how long” with any answer but, “Forever War, Baby!” As if dubbing the new AUMF “the al-Awlaki and PETA law”–putting some limits on the targeting of American citizens that presumably already exist–would be enough to entice civil libertarians (whom, Bellinger seems to suggest, only have support among Democrats).

And did you notice how Bellinger slipped in giving intelligence agencies the legal authority to kill terrorists? One of the problems–though Bellinger doesn’t say this explicitly–is that we’re increasingly using non-military personnel to target drones, which raises legal questions about whether they’re not unprivileged combatants in the same way al Qaeda is.

In any case, the lawyer did his work on this op-ed.

But here’s what I find to be the most interesting detail in it:

For at least five years, lawyers in and outside the Bush and Obama administrations have recognized the need to replace this act with a clearer law. The Bush administration chose not to seek an update because it did not want to work with the legislative branch.

Which I translate to read, “Back in 2005, several lawyers in the Bush Administration and I [I’m assuming Comey and Zelikow and Matthew Waxman] told the President he was breaking the law and should ask for an updated AUMF. But in spite of the fact that Congress was at that very moment passing the Detainee Treatment Act, the Bush White House claimed it couldn’t work with Congress to rewrite the AUMF to try to give the war they were already fighting some legal cover.”

Though of course, in 2005, Bush’s lawyers may have been trying to pretty up the fact that their illegal wiretap program–which constituted the use of military powers within the United States against US citizens–some kind of pretty face before it was exposed.

We’ve been fighting the Forever Whoever War since at least 2005. And now this clever lawyer wants to make sure the Forever War is legally sanctioned for the foreseeable future.

I’m working on a post on the news that DOJ will not charge Jose Rodriguez for destroying the torture tapes. But that’s going to take a while (read the NYT on the news in the meantime).

In the meantime, though, I wanted to point to Adam Serwer’s summary of yesterday’s hearing on the Anwar al-Awlaki suit. The most amusing detail in Adam’s story is that the government only wants to rely on its invocation of State Secrets as a fallback position.

Letter explicitly asked Bates to dismiss the lawsuit on state-secrets grounds only as a last resort.

See?!? They have some shame about their abuse of executive power, even if they’re going to rely on it anyway.

The most important issue, IMO, pertains to standing–I have already suggested that Judge Bates might reject the suit for lack of standing, not least because it’s the easiest way to punt. Adam suggests that Bates was thoroughly uninterested in one of two potential ways to establish standing.

The ACLU/CCR contends they have standing under two criteria, “Next Friend” and “Third Party.” Meeting the standard under “Next Friend” requires the ACLU/CCR to show that the younger al-Awlaki would want to sue but can’t, while “Third Party” demands that the elder al-Awlaki show that he would “suffer a concrete, redressable injury” from the government’s actions. Although Ben Wittes, who was also there, would disagree with me, I think Bates was more sympathetic to “Next Friend” than he was to the “Third Party” question, as he warned the latter could lead to a flood of lawsuits based on government action, and an “unprincipled landscape” in which judges arbitrarily decide standing based on the plaintiffs they’re sympathetic to.

But perhaps the most dramatic part of the hearing appears to have been when Jameel Jaffer stood up and stated that this suit was about whether or not the President can order the assassination of a citizen with no review. I actually differ with Adam’s take on some of this.

There was an exchange at the end of arguments that, beyond the legalese, really crystallized what this case is about. Both sides had offered their final rebuttals, but ACLU attorney Jameel Jaffer stood again and stated that the lawsuit was really about whether the president possesses an “unreviewable authority to order the assassination of an American citizen.” It moved Bates to ask Letter if he wanted to respond.

[DOJ Attorney Douglas] Letter rose and called Jaffer’s statement “absurd” and “ridiculous” but what followed was less convincing. He pointed out that the AUMF limits the president to overseas operations, that al-Awlaki was part of an “officially designated” terrorist group who was “attempting to carry out operations” against Americans.The fact that al-Awlaki had just released a new video calling for Muslims to kill Americans probably weighed on reporters in the courtroom.

Only the first of Letter’s statements is beyond dispute. The other two concern unproven — but not necessarily inaccurate — assumptions of fact that go to the heart of the case: whether or not al-Awlaki is actually an “operational leader” of al-Qaeda in the Arabian Peninsula or simply a vicious hatemonger who justifies and exhorts terrorism against Americans. The government is actually saying that its unilateral determination that the latter two assumptions are accurate that allow the government to deprive al-Awlaki of life without due process.

First, note that Letter’s claim that al-Awlaki was part of an “officially designated” terrorist group is a bunch of baloney. He is now part of that group, at least according to the unproven allegations of the government. But the State Department didn’t get around to designating al Qaeda in the Arabian Peninsula as such until several weeks after they had put al-Awlaki on the JSOC kill list (though he was not yet on the CIA kill list), so the suggestion that the President would only target someone formally designated a terrorist for assassination is a lie.

But the other claim–that the AUMF only covers operations overseas–is even sillier.

Consider: the government has not yet withdrawn the White Paper retroactively authorizing the illegal wiretap program under the AUMF. Thus, DOJ still supports claims that the AUMF authorized the President–any President–to conduct operations (in that case, military operations in the form of NSA wiretapping) in the United States.

Mind you, Tom Daschle has made it clear that Congress specifically refused to grant the President authority to operate in the United States. But so long as DOJ supports that White Paper, they stand by a public claim that the AUMF authorized the President to operate within the US.

So Jaffer is right: there’s nothing about Douglas Letter’s claims that rebut Jaffer’s argument that this is about whether the President can unilaterally assassinate an American citizen. As Adam has shown, simply asserting someone is a member of a terrorist organization does not make the assertion any less unilateral. And Letter’s claims that the AUMF does not authorize operations in the United States seems to ignore DOJ policy that supports just such a claim.

I wanted to return to yesterday’s report on the investigation in the Khost bombing. As I noted, the CIA had advance warning that Humam Khalil Abu-Mulal al-Balawi might be a double agent. The report also found a number of other operational problems in al-Balawi’s treatment. But Leon Panetta decided not to hold anyone responsible for the attack.

Now let’s return to another curious detail about the Khost bombing.

The CIA is not holding anyone responsible.

But DOJ is.

As I noted last month, DOJ is using Hakimullah Mehsud’s involvement in the Khost bombing–the DOJ has videos of Mehsud talking about the attack with al-Balawi in advance of the bombing–as its basis for indicting him on conspiracy charges.

It’s not that I mind DOJ indicting Mehsud. They say they’ve got evidence linking him to Faisal Shahzad’s attempted Time Square bombing. And if they do, I’d love to see them indict and try Mehsud on that count.

But it’s a tremendous stretch to argue that Mehsud’s conspiracy with al-Balawi to strike the CIA officers who were targeting Pakistan with drone strikes was illegal. Either the CIA officers must be treated as civilians, in which case they should not be launching drones at people like Mehsud’s brother, whom they killed in a drone attack. Or they are legitimate military targets, in which case any involvement from Mehsud seems to have been a legitimate act of self-defense (hell, regardless of their civilian status, he could probably legitimately claim self-defense in any case).

Mind you, they’ll probably end up taking Mehsud out the same way the took his brother, with a drone, making any indictment moot. But it all seems to suggest that at its higher levels, at least, we’re running this war on terror motivated primarily by our own insecurities, latching onto things that most shame us, rather than any consistent approach. We’ve got to avoid accountability at CIA for some obvious failures because we don’t want to be critical of the dead (or note the mistakes of more senior officers). But we’ve got to use the same event as reason to label the self-defense of an opponent as a crime.

Which seems to be the same thing going on with Fox’s story that Anwar al-Awlaki dined at the Pentagon after 9/11 (at a luncheon in Jim Haynes’ Office of General Counsel!). The fear-mongerers seem to want to suggest this was another big lapse in our vetting system (and maybe it was), as if to suggest that al-Awlaki in 2001 is in the same place he allegedly is now. The FBI was investigating this lunch subsequent to Nidal Hasan’s Fort Hood attack (the 302 is dated November 23, 2009, so at about the time when Yemen asked us to take out al-Awlaki, but probably before he was reportedly put on JSOC’s kill list, which may have happened in December). And leak of this news seems to be part of an effort to suggest the government missed an obvious threat long before Fort Hood. But that’s not at all clear.

Michael Isikoff takes a story Jack Goldsmith already treated and raises the logical conclusions. As I noted, Jack Goldsmith asked John Rizzo why it was that Woodward could publish the proceedings of a briefing from which even top Obama officials–like John Podesta–were excluded. Rizzo responded,

Simple. When a President himself is a key source and directs or at least signals to his Administration to cooperate with the author, that for all intents and purposes means the book becomes one big authorized disclosure. That’s what Obama did for Woodward, and that’s what Bush did for Woodward in his three books during that Administration, which also were packed with hitherto sensitive information. That’s what is remarkable and unique about Woodward’s standing.

Isikoff notes the same passage Goldsmith did and asks,

How can they credibly prosecute mid-level bureaucrats and junior military officers for leaking classified information to the press when so many high-level officials have dished far more sensitive secrets to Woodward?

He focuses closely on the case of Stephen Jin-Wood Kim whom the Obama Administration is prosecuting for leaking info on North Korea to Fox’s James Rosen.

Kim was indicted in August on charges he leaked classified information about North Korea’s nuclear intentions to James Rosen, a correspondent for FOX News.

Abbe Lowell, who got a couple of AIPAC officials cleared after threatening to show how they had only passed on information that people like Condi had already leaked to the press, is the lawyer asking this question.

Aside from the undercurrent, which seems to be asking why John Bolton’s buddies can’t politically leak information like Bolton used to when he was at State (and, implicitly, why AIPAC can’t leak information the President’s aides can), Isikoff is right.

But he misses the even bigger double standard (and of course doesn’t mention Dick Cheney’s orders to Scooter Libby to leak Valerie Plame’s identity to one of the designated reporters for these leaks, Judy Miller, which seems to be a notable example of this intentional leaking).

Less than a month ago, the Obama Administration told a judge they didn’t have to–couldn’t–tell a judge their basis for killing a US citizen. Instead, they invoked state secrets, claiming (among other things) they couldn’t even confirm or deny whether they had targeted Anwar al-Awlaki for assassination.

Yet this came after one after another Obama Administration official leaked the news that al-Awlaki had been targeted, and after they had obliquely confirmed that he was. The Administration can leak news of this targeting all it wants, apparently, but when a US citizen attempts to get protection under the law, then it becomes a state secret.

Now, Isikoff quotes some White House official denying that this kind of double standard exists.

Asked for comment, a White House official told NBC News: “The president is upset about the leak of any sensitive information to any pubic sources, and that includes sensitive information in the Woodward book. In fact, you’ll note that he explicitly refused to address classified matters with Mr. Woodward, even though he was asked about them.”

‘Unclassified gossip’

The official also disputed that the disclosures in the Woodward book might complicate the administration’s anti-leak crackdown. “Leaks are leaks and leaks of classified national security information are crimes. They are not less criminal because there are also leaks to Bob Woodward,” though the official contended that much of the “sensational” disclosures in Woodward’s book were “unclassified gossip about staff differences.”

As for claims of a double standard: the official stated: “There is no double standard. The administration opposes all leaks of classified information.” The official further said President Obama “certainly did not authorize” his aides to share share classified information with Woodward.

But (as Isikoff notes) DOJ is not investigating any of the intentional leaks in Woodward’s books, just as the Obama Administration went to some lengths to protect the Cheney and Bush transcripts that make it clear that they were ordering classified leaks for political gain.

You see, in addition to reserving the decision for itself of who gets prosecuted or not for fraud on courts and torture, the Administration is also arbitrarily choosing who gets prosecuted for leaks.

Jeebus: Goldsmith may be getting a hang of this blogging thing, but I’m not: John Rizzo, not John Brennan. So the stuff I originally said about Brennan doesn’t make any sense.

I may not always agree with Jack Goldsmith, but he’s getting a hang of this blogging thing. Today, he posts the answer John Brennan gave him to the question of how Bob Woodward got very specific details of a meeting that a number of Obama’s top advisors had to leave because they didn’t have the appropriate clearance.

The first Chapter of Bob Woodward’s Obama’s Wars describes Barack Obama’s first post-election intelligence briefing from Director of National Intelligence Mike McConnell, on November 6, 2008.  The chapter shows McConnell, at the direction of President Bush, excluding many Obama aides (including Clinton Chief of Staff John Podesta and former Deputy National Security Advisor James Steinberg) from the briefing.  Because the briefing contained highly classified information about “sources and methods,” McConnell explained, only those “designated to take a top national security cabinet post” could attend.   Woodward then recounts this highly classified intelligence briefing in great detail, including several highly classified CIA and NSA programs, and their code names.

After reading this chapter, I wondered how a meeting involving classified information so sensitive that a close Obama aide and former top national security official could not attend could the following year be recounted in such loving detail in the first chapter of a best-selling book.  Woodward clearly got his information from participants in the meeting or their close aides.  Was it right for these people to speak to Woodward about these matters?  Was it legal?  I sent these questions to John Rizzo, the just-retired thirty-four year veteran CIA lawyer who has seen his share of leaked classified information over the years.

John responded:

Simple.  When a President himself is a key source and directs or at least signals to his Administration to cooperate with the author, that for all intents and purposes means the book becomes one big authorized disclosure. That’s what Obama did for Woodward, and that’s what Bush did for Woodward in his three books during that Administration, which also were packed with hitherto sensitive information.  That’s what is remarkable and unique about Woodward’s standing.

Now, Goldsmith appears offended that Obama and Bush would treat classified information so lightly.

Me, I’m more interested in what this says about Woodward’s (and, while we’re talking about it, Judy Miller’s) position in the information management function.

John Brennan–a guy who oversaw targeting for Cheney’s illegal wiretap program and therefore presumably had the highest clearance in two Administrations–lackadaisically says that if the President wants something leaked, it becomes legal to leak it.

In Judy Miller’s case, we saw how this selective leaking ensured the Administration could declassify its politicized case for war, while ensuring those who disputed the case were kept silent under threat of prosecution.

Woodward is even more interesting. Woodward knew to ask certain pointed questions of Richard Armitage–the same questions, as it turns out, that Bob Novak asked to elicit information about Valerie Plame’s purported role in Joe Wilson’s trip to Niger. But according to John Brennan, at least, even if Richard Armitage leaked Plame’s role intentionally, it would not be illegal. And remember, too, that on July 8 or 9 (this is reflected in notes introduced at trial; you’ll have to take my word for it though, because I don’t have my records with me), the VP’s office did give Woodward detailed information about the Iraq NIE. In other words, we know Woodward was a part of the OVP’s strategy for rebutting Joe Wilson in what was effectively a political hit.

More generally, though, consider what this suggests about the excuse that Cheney was prepared to use for having ordered the leak of Plame’s identity. John Brennan, at least, argues that if the President “signals to his Administration” that he wants certain information out there, it’s legal to leak it. I don’t necessarily buy that, mind you.

But it suggests one of Obama’s key advisors buys off on the idea that it’s cool for the President to selectively declassify information (you know, like leaks to the press about targeting Anwar al-Awlaki, even if you later invoke state secrets about it) for political gain.

Adam Serwer does a pretty thorough job debunking Obama’s lame effort to defend his civil liberties record.

When people start being concerned about, “You haven’t closed Guantánamo yet,” I say, listen, that’s something I wanted to get done by now, and I haven’t gotten done because of recalcitrance from the other side. Frankly, it’s an easy issue to demagogue. But what I have been able to do is to ban torture. I have been able to make sure that our intelligence agencies and our military operate under a core set of principles and rules that are true to our traditions of due process. People will say, “I don’t know — you’ve got your Justice Department out there that’s still using the state secrets doctrine to defend against some of these previous actions.” Well, I gave very specific instructions to the Department of Justice. What I’ve said is that we are not going to use a shroud of secrecy to excuse illegal behavior on our part. On the other hand, there are occasions where I’ve got to protect operatives in the field, their sources and their methods, because if those were revealed in open court, they could be subject to very great danger. There are going to be circumstances in which, yes, I can’t have every operation that we’re engaged in to deal with a very real terrorist threat. [my emphasis]

But I wanted to add one thing.

Obama suggests his Administration has only invoked state secrets to protect “operatives in the field.”

That’s the case only in one of the most notable state secrets invocations the Administration has made or sustained. Consider:

• Jeppesen Dataplan
• Al-Haramain
• Al-Awlaki

I’ll grant that one of the things the Administration refuses to publicize about the al-Awlaki case is how they know what they know. And we know there are covert teams operating in Yemen, so it is probable that one of the things–though certainly not the only thing–they are protecting are those operatives in the field.

But in Jeppesen Dataplan, the government is protecting a publicly traded company from the backlash it would experience if its role in torture were confirmed. And it is protecting the governments that tortured on our behalf: Egypt and Morocco.

The government’s invocation of state secrets in al-Haramain has even less to do with protecting operatives in the field. In that case, the government is (again) protecting publicly traded companies from even more certain backlash from consumers. And it is protecting the details about how and the extent to which the government conducts domestic surveillance and data mining. The government is not protecting operatives in the field at all. On the contrary, the government is protecting itself from the wrath of its citizens. (He’s also protecting the prior Administration, including his current top terrorism advisor, John Brennan.)

And to hide that fact–to try to legitimize his government’s secrecy–Obama invents a largely bogus concern about men and women risking their lives overseas.

Though I guess I shouldn’t be surprised about that fact. After all, Obama’s flip-flop on FISA was the first big disappointment, the first promise he broke. From that point, it was clear Obama would place political considerations ahead of his stated commitment to civil liberties.

Which is, I guess, what his lame defense is all about.