Two days before the Administration was due to release a memo laying out its rationale for drone-killing American citizen Anwar al-Awlaki, AQAP released a video that challenges the narrative the Administration has used for doing so.

As Gregory Johnsen reports, the memo shows (see correction below) former Gitmo detainee Said al-Shihri embracing Umar Farouk Abdulmutallab, then whispering in his ear.

In the video, Shihri says he was the head of external operations — the title the US always used to describe Anwar al-Awlaki.

The video says that it was Shihri — not Awlaki — who was “responsible for external operations against America.” For years, the Obama administration has argued the opposite, claiming that Awlaki was directing AQAP’s efforts against the U.S., including the failed underwear bomb on an airliner over Detroit on Christmas Day 2009.

On the day Awlaki was killed, Obama called him “the leader of external operations for al-Qaeda in the Arabian Peninsula” and said he “directed” the 2009 attack. The video appears to refute both claims, giving credit to Shihri, the former Guantanamo Bay detainee.

Halfway through the video there is a clip of Shihri embracing Umar Farouk Abdulmutallab, the underwear bomber in the Christmas Day attack, and whispering in his ear as a narrator reads that the attack was conducted “under the direct supervision of (Shihri) and a number of his brothers in the section in charge of external operations.”

While there may be some disagreement about how best to translate Shihri’s role — “directed” or “supervised” — this video clearly says that Shirhi was in charge, directly to the contrary to the narrative DOJ released purportedly summarizing Abulmutallab’s confession (the one that conflicted in key ways with his two other confessions).

What Johnsen doesn’t say — but is clear from comparison — is that that embrace took place while Abdulmutallab was dressed to make his martyrdom video.

Compare this frame, which appears just after the embrace in the new video (at 21:54),

With this one from Abdulmutallab’s martyrdom video (at 0:52).

That’s important because arranging to make the martyrdom video is one of the tasks DOJ’s narrative says Awlaki did.

Awlaki told defendant that he would create a martyrdom video that would be used after the defendant’s attack. Awlaki arranged for a professional film crew to film the video. Awlaki assisted defendant in writing his martyrdom statement, and it was filmed over a period of two to three days. The full video was approximately five minutes in length.

Shihri’s presence at the making of Abdulmutallab’s martyrdom video doesn’t refute the claim that Awlaki had a role in making it (though none of the experts I have asked has ever given a remotely credible explanation why AQAP’s greatest English-language propagandist and someone formally schooled in English would make a martyrdom video in Arabic). But it does place him there, suggesting Awlaki was not the only one directing the production of the video, if he had a role at all.

This video definitely doesn’t prove that Awlaki didn’t have an operational role in the UndieBomb attack. But it shows that the narrative the government released — which Abdulmutallab’s lawyer said had been made in the context of a plea deal never finalized and which the government agreed not to rely on at the trial, where it could have been challenged — neglects not just the role of Fahd al-Quso, but also Said al-Shihri. It is, at the very least, incomplete in some important ways.

And yet that is the only public “proof” the government has ever released that justified their execution of Anwar al-Awlaki.

Update: Apparently al-Shihri isn’t the one portrayed in this video, Nasir al-Wuhayshi is. In which case this connection is not meaningful.

Jason Leopold has a long piece on Sabrina de Sousa, the former CIA operative who got screwed over in the aftermath of the Abu Omar rendition.

Leopold’s piece focuses on de Sousa’s efforts to call attention to how stupid the rendition was. He includes her correspondence with a range of people — from Condi Rice to Colin Powell to Hillary to Dianne Feinstein’s staff — she tried to reach out to. As such, Leopold’s piece is yet another case showing the intelligence whistleblowers can’t use “proper channels” to expose wrong-doing they find.

But I wanted to focus on a more narrow point de Sousa makes about Abu Omar’s rendition, one that — in the wake of the release of the Awlaki killing memo — is of particular significance. One problem with Abu Omar’s rendition, de Sousa notes, is that none of the conditions normally present for extraordinary renditions were present. The fact that Italy was already closely watching him meant the US didn’t have to intervene to neutralize him.

There was nothing definitive in the classified cables, De Sousa says, about the threat the CIA said Abu Omar posed to national security as the rendition operation was being planned. “The cable was full of ‘suspected of,’ ‘alleged to.’ Nothing that said ‘he was responsible for.’ Nothing definitive,” De Sousa says.

De Sousa describes her CIA colleagues in Rome and Cairo as acting like keystone cops in the aftermath of Abu Omar’s rendition, trying to figure out who had the evidence against him to present to Egypt so he could be prosecuted.

“The CIA station chief in Cairo said to Jeffrey Castelli [CIA station chief in Rome] ‘Where’s the evidence?’ Castelli said, ‘I thought you had the information.’ And Cairo said, ‘We don’t have it. We thought you had it.’ Castelli says, ‘We don’t have it.’ Then Cairo says, “We issued this arrest warrant on your behalf. So where is the evidence?” The blunder ultimately forced Egypt to set Abu Omar free.

“This is exactly when the whole cover-up started,” she says. “It turns out there was a big miscommunication between Cairo Station and Rome Station. There wasn’t any prosecutable evidence against Abu Omar. It’s why he was never picked up by the Italians. But Castelli decided he wanted a rendition and he got one.”

[snip]

“Abu Omar was a nobody,” De Sousa says. “The renditions are meant for imminent, very dangerous threats and [are meant to be used in]countries that are incapable of laws that would allow them to pick up people who pose threats to national security. They’re not meant for a country like Italy already following the guy around.”

Those trying to dismiss the seriousness of the Anwar al-Awlaki memo, after all, say it’s not that big of a deal, given that most Americans of concern would be in places — like, say, Milan — where they could easily be seized by local authorities, and therefore would never need to be drone killed.

And rendition is obviously the step short of drone killing. There’s little risk CIA will start flying drones over Milan (and if they did, Italy has the capability to shoot them down).

Nevertheless, the Abu Omar case is one reason why you can never say the conditions laid out in the memo will always protect Americans from being drone killed — or just as likely, simply killed — based on claims about a country’s ability to arrest and turn over someone.

Those same conditions should have protected Abu Omar. Yet, because some guy was bucking for a promotion, they didn’t.

Three years ago, I wrote a long post called the Drone War on Westphalia arguing that our use of drones was eroding state sovereignty in ways we hadn’t considered — much less debated — the impact of.

[W]e risk trading a failed state in pursuit of what the Executive Branch, often in secret, defines as our national interest. It not only risks exacerbating the risk failed states represent around the world–and the further proliferation of terrorism–but as Spencer lays out, the fact that the Executive can do so without balancing the political cost of doing so changes our relationship with our government. (It is no accident, I think, that these changes in strategy are occurring at precisely the same moment both parties are cooperating to dismantle the social safety network.)

Now, for the record, I’m not entirely certain whether chipping away at sovereignty is a good thing–will it allow oppressed people to band together to fight the global elite, or a terrible thing–will it allow weaponized elites to turn average people back into serfs in exchange for the security the nation-state used to offer (though of course I’ve repeatedly suggested we’re headed for the latter condition). But our elected representatives are wittingly and unwittingly pursuing policies that accelerate the process.

So there are two public debates that we’re not having. First, there’s the debate about what standard the Executive needs to use before he assassinates a US citizen with no due process, or what standard the Executive needs to use before he launches new “hostilities” with no congressional mandate. Those are the old-style debates about public accounting that the Executive is using secrecy to try to avoid.

But there’s a larger debate we need to be having. Our system of governance is changing, subtly but increasingly radically, with no discussion. Drones are one symptom and one catalyst of that. And before the consent of the governed is completely eliminated, it’d be nice to have a “public debate” about it.

Today, as part of a larger study on the impact of our use of drones, the Stimson Center makes a very similar argument I did.

Erosion of sovereignty norms: The US government takes the view that it has a legal right to use force in the territories of foreign sovereign states when those states are“unwilling or unable” to take what the United States considers appropriate action to eliminate what it sees as imminent threats. But inevitably, assessments of what constitutes an imminent threat to the United States and what would constitute appropriate action are somewhat subjective in nature; the United States may view the use of force as justified even when US allies and partners do not. The US use of force in sovereignnations whose consent is questionable or nonexistent may encourage other states tofollow suit with their own military platforms or commercial entities.

[snip]

Democratic Accountability: Increased US reliance on lethal UAVs in cross-border targeted strikes also poses challenges to democracy and the American system of checks and balances. While we understand the administration’s reasons for considering additional transparency difficult, the effect of the lack of transparency is that the United States has been fighting what amounts to a covert, multi-year killing program. Without additional information, the citizenry cannot evaluate US targeted strikes.

Unmanned aerial vehicle strikes also raise questions about the continued efficacy of traditional congressional oversight mechanisms. The Obama administration continues to rely on the 2001 Authorization for Use of Military Force (AUMF) as the primary domestic legal basis for US targeted strikes outside of “hot” battlefields, but the administration’s interpretation of the AUMF is extraordinarily broad — and even many former executive branch officials question whether Congress intended to authorize such an unbounded conflict when the AUMF was passed in 2001.

The covert or unacknowledged nature of most UAV targeted strikes also makes it difficultfor Congress to perform its vital oversight functions. CIA UAV strikes constitute “covert action” under US law, which means that the CIA need not give prior notice of particular covert operations to any members of Congress except the so-called “Gang of Eight.” After a covert action, the executive branch is required to notify the full intelligence committees, but not the full Congress.

By law, the US military is prohibited from engaging in covert action. It is important to emphasize, however, that the military is not prohibited from engaging in secret, unacknowledged activities that are intended to remain unacknowledged, as long as these activities constitute “traditional military activities” under US law.

From the perspective of laypersons, both the CIA and the military can thus engage in covert strikes in the colloquial sense of the term. But while covert action undertaken by the CIA requires a presidential finding and notification — even if after the fact — of the congressional intelligence committees, secret, unacknowledged strikes carried out by the US military need not be reported to the intelligence committees, as the military reports instead to the House and Senate Armed Services committees.

At best, this fragmented oversight system creates confusion and a danger that critical issues may slip through the cracks. This fragmented oversight system is particularly problematic given that in practice, the military and CIA generally work together quite closely when planning and executing targeted UAV strikes: few strikes are “all military” or “all CIA.” The differing CIA and military reporting requirements create a risk of executive branch “forum shopping,” tempting the executive branch to place a given targeted strike under the direction and control of whichever entity is deemed to have the most accommodating committee members. Even when the appropriate congressional committees are fully briefed, the classified nature of targeted strikes, whether CIA or military, makes oversight a challenge.

There’s a lot more, including recommendations that suggest the US actually conduct strategic analysis to see if this all makes sense.

But I’m glad a lot of smart people — the study was led by Rosa Brooks and General John Abizaid — are thinking these same things.

Last year, after the drone white paper demonstrated how shoddy were the Obama Administration’s claims to be able to kill Anwar al-Awlaki, a group of Senators decided the best way to avoid difficult questions but appear to address the issue would be to have the FISA Court review drone and/or targeted killings before they happened. I did a series of posts laying out what a horrible idea that was. I showed:

• The FISA Court has a history of  unquestioningly accepting evidence from dubious sources, including torture
• Certain factual issues a drone and/or targeted killing court would need to judge — including the scope of the AUMF — are not well defined and should not be defined by the Executive in secret
• The Administration claims the authority to conduct targeted killings for pre-crime, which a court has no way of assessing (and which should not be sanctioned in law)
• Decisions by the FISC — such as interpreting “relevance” to authorize vast suspicionless collections of data and permitting back door searches of content collected off of programatic orders — prove that the court no longer fulfills its originally intended purpose

As a reminder, I argued the claims in that last bullet in February 2013.

The Fourth Amendment holds that judges must decide whether wiretaps are reasonable or not.

Yet after the FISA Amendments Act, that’s not what happens. Rather, judges are deprived of the ability to do more than review the government’s certifications about targeting and minimization. Once a judge has done so, however, the government can not only bulk collect telecommunications involving someone overseas, but it can later search on those telecommunications to get to the US person’s side of the conversation, apparently without court review on the back side.

Effectively, discretion over this massive system has collapsed back inside the Executive Branch.

And all that’s before the government’s use of the secret law that Mark Udall and Ron Wyden keep complaining about, which probably involves — in part — the bulk collection of geolocation information from cell phones. It’s also before the government has interpreted the word “relevance” to justify other massive collection programs (at a minimum, of things like hydrogen peroxide and acetone purchases) involving US persons.

In short, the FISA Court has become a venue not for judges to exercise individualized discretion about probable cause. Rather, it has become the venue in which the government uses the secrecy offered to develop expansive legal interpretations to support vast new spying programs it won’t even tell Americans about. Not only the promise of individualized judicial discretion has been eliminated, so has the very premise that American should know what laws they are subject to.

In June and August of last year, Snowden disclosures led the rest of the world to recognize that the FISC had authorized back door searches without judicial review of programmatic collection, had authorized the bulk collection of data from cell phones (though more limited collection of location data), and had interpreted the word “relevance” to mean “all.”

That is, my argument that the FISC was broken and therefore couldn’t be trusted with matters of life and death came to be accepted by just about everyone, up to and including Administration officials who agreed to make cosmetic (though not functional) changes to the FISC.

Along the way, we have also learned that the government is not complying with Congressional intent with respect to defendants’ rights, meaning the efficacy of the FISC in protecting constitutional rights has avoided the tests it should have had.

Yet the changes we have made — effectively inviting the FISC to call their existing clerks “advocates” to provide the patina of adversarial review — really are no more than cosmetic, and USA Freedumber has aspects that would weaken the FISC even further.

I thought all this had led people to see the folly in using the FISC to judge drone and/or targeted killings.

Nope.

After yesterday’s release of the actual OLC memo authorizing Awlaki’s assassination, those looking for an easy fix are again suggesting we use a FISA Court to judge the assassinations of American citizens. Here’s the NYT editorial page:

[T]he memo turns out to be a slapdash pastiche of legal theories — some based on obscure interpretations of British and Israeli law — that was clearly tailored to the desired result. Perhaps the administration held out so long to avoid exposing the thin foundation on which it based such a momentous decision.

[snip]

Awlaki’s due-process rights are dealt with summarily. The “realities of combat” meant that no serious due process was possible, the memo said, citing the 2001 Authorization for Use of Military Force that allows antiterror measures anywhere. And the memo never questioned whether the Defense Department and the Central Intelligence Agency, which operate the drone programs, would properly follow international law. “We understand,” Mr. Barron wrote, that the two agencies “would conduct this operation in a manner that accords with the rules of international humanitarian law governing this armed conflict.”

Blithely accepting such assurances at face value is why these kinds of killings are so troubling, and why we have repeatedly urged that an outside party — such as the Foreign Intelligence Surveillance Court — provide an independent review when a citizen is targeted. How did the Justice Department know that capturing Mr. Awlaki was not feasible, or that the full force of a drone strike was necessary?

I argued last year that the urge to give this task to the FISC reflects laziness, an unwillingness to deal with the hard work of reining in expansive Executive Authority, and I think the disclosures of the last year make that more clear.

And yesterday’s memo adds to that case.

As I noted in a piece for The Week, yesterday’s memo doesn’t even consider the question of judicial review, which the white paper at least did (it is possible that Barron considered judicial review in the first, February 2010, Awlaki memo).

A comparison of the memo with the white paper reveals that one section of the white paper does not appear in the memo. (This section may appear in that February 2010 memo, possibly along with the discussion of imminent threat and feasibility of capture; see page 41 of this highlighted memo for what remains redacted in the existing memo.)

In the white paper, that section explains why judges can’t review this killing. “[U]nder the circumstances described in this paper, there exists no judicial forum to evaluate these constitutional considerations,” DOJ wrote in a November 2011 memo after Awlaki’s death. “Were a court to intervene here, it might be required inappropriately to issue an ex ante command to the President and officials responsible for operations with respect to their specific tactical judgment to mount a potential lethal operation against a senior operational leader of al-Qa’ida or its associated forces.”

And neither the OLC memo nor the white paper deals with a very fundamental point Colleen McMahon made, when she dealt with questions about how the law required the government to deal with someone alleged to be like Awlaki.

Judge Colleen McMahon, who in January 2013 originally ruled on the Freedom of Information Act suit brought by the ACLU and the Times, didn’t agree. She noted that the Treason Clause — the means of dealing with traitors enshrined in our Constitution — is reserved for the courts, not the executive. “[T]he Treason Clause appears in the Article of the Constitution concerning the Judiciary — not in Article 2, which defines the powers of the Executive Branch,” McMahon wrote. “This suggests that the Founders contemplated that traitors would be dealt with by the courts of law, not by unilateral action of the Executive.”

Somehow, that very basic constitutional fact never made it into a memo secretly authorizing the killing of an American citizen — alleged to be a traitor — with no due process. Either Barron dealt with the question of judicial review, but not the Treason Clause, in his first memo, or he neverdealt with it, and DOJ added that section in the white paper to make the review look more reasonable.

Our Constitution says that before you can deem someone a traitor and execute him, you have to go to the judges established in the Constitution, the ones that permit confrontation and juries and the like. But in secret, the Executive Branch either ignored the question entirely until after killing a citizen (if the white paper was the first the Executive made its thin judicial review argument), or it did not consider the Constitutional requirement.

Yet those seeking the easy answer are rushing to have a demonstrably failed court, not the courts that have worked for hundreds of years, to answer such questions.

Yesterday’s memo made it clear that Awlaki’s killing was still substantially decided based on the evidence tied to the UndieBomb attack, an attack whose culprit was tried in an ordinary old Article III Court. In that case, the government dodged presenting its key evidence against Awlaki, perhaps recognizing that it either wouldn’t stand up against adversarial review, or that a description of the deal it offered to get that testimony would raise legitimate questions about its accuracy.

And yet, with the government having declined the opportunity to prove the value of its evidence against Awlaki in the traditional fashion, people are rushing to make it easier for them to avoid doing so before killing an American.

Why? Why, after a year of lessons in why the FISC cannot even do its existing job adequately, would anyone suggest they should also weigh in on matters the Constitution explicitly assigns to traditional Article III courts?

Karachi’s Airport has resumed operations today, but a deadly late night attack shut it down for many hours overnight. It appears that ten militants entered the airport Sunday night, most likely uniformed as airport security personnel, and killed up to 18 people before they were killed by airport security and rapidly responding military units. The TTP, Pakistan’s Taliban, has claimed responsibility for the attack. The New York Times and Reuters, however, chose to be very selective in how they reported the TTP’s claim of responsibility. Both news outlets left out the TTP’s prominent mention of the US drone strike in November that killed TTP leader Hakimullah Mehsud in describing the TTP’s reasons for the attack. By contrast, AP and the Washington Post included the TTP’s reference to the drone strike.

Here is how the Post article opens:

Heavily armed gunmen disguised as security forces attacked Karachi’s international airport Sunday night, killing at least 18 people before government troops regained control early Monday. The Pakistani Taliban claimed responsibility for the assault, which appeared to dash hopes for peace talks.

The government said all 10 of the attackers were killed in more than five hours of fighting at the airport, which would bring the total number of deaths to 28. A doctor at Karachi’s Jinnah Hospital said 18 bodies were brought to the morgue there and that 11 of the dead were airport security personnel, the Associated Press reported. The bodies of the attackers remained in police custody.

In a statement Monday, Shahidullah Shahid, a spokesman for the Pakistani Taliban, said the attack was in response to recent Pakistani military airstrikes in northwestern Pakistan and to a U.S. drone strike in November that killed Hakimullah Mehsud, the leader of the radical Islamist group.

Shahid added the attack should be viewed as a sign that Prime Minister Nawaz Sharif’s efforts to engage the group in peace talks had failed.

“The message to the Pakistani government is that we are still alive to react to the killings of innocent people in bomb attacks on their villages,” said Shahid, adding the attack followed months of intensive planning.

The AP article twice mentions the attack as in response to the drone killing of Mehsud, and although it mentions Pakistan’s airstrikes in the tribal regions after peace talks broke off, it doesn’t tie those air strikes to the TTP reasons for the attack. The Times and Reuters, in contrast, only tie the attack to the air strikes and not to the Mehsud drone strike. From the Times:

 The Pakistani Taliban claimed responsibility Monday for a ferocious overnight assault in Karachi that stretched into the morning in which gunmen infiltrated Pakistan’s largest international airport and waged an extended firefight against security forces that resulted in 29 deaths and shook the country’s already fragile sense of security.

The attack “was a response to the recent attacks by the government,” Shahidullah Shahid, a spokesman for the Taliban, said by telephone. “We will continue carrying out such attacks.” He insisted, however, that the group was seeking to resuscitate peace talks with the government.

And from Reuters:

The Pakistani Taliban, an alliance of insurgent groups fighting to topple the government and set up a sharia state, said they carried out the attack in response to air strikes on their strongholds near the Afghan border and suggested their mission was to hijack a passenger plane.

“It is a message to the Pakistan government that we are still alive to react over the killings of innocent people in bomb attacks on their villages,” said Shahidullah Shahid, a Taliban spokesman.

“The main goal of this attack was to damage the government, including by hijacking planes and destroying state installations.”

Pakistan’s Dawn News gives the broader range of TTP explanations:

The TTP further said: “It’s just the beginning, we have taken revenge for one (Mehsud), we have to take revenge for hundreds.”

/snip/

Shahidullah Shahid moreover dismissed the Pakistani government’s peace talks methodology as a “tool of war”.

Shahidullah Shahid said the attack was planned much earlier but had been postponed due to the peace talks.

The TTP spokesman in a statement issued to the media said that the attack was also carried out to avenge the killing of Hakimullah Mehsud in a US drone strike.

“We carried out this attack on the Karachi airport and it is a message to the Pakistani government that we are still alive to react over the killings of innocent people in bomb attacks on their villages,” TTP spokesman Shahidullah Shahid said.

Pakistani Taliban claimed responsibility for the attack, saying it was revenge for the army’s air strikes in areas along the Afghan border where the insurgents are based.

By citing only Pakistan’s air strikes against the TTP, the New York Times and Reuters portray the Karachi airport attack as a problem that is solely due to politics internal to Pakistan. That is a gross misrepresentation of the situation, as the US drone strike on Hakimullah Mehsud came at an extremely critical time when the peace talks first began to look like a concrete possibility. That US strike was a huge external intervention by the US and clearly put Pakistan on a path to even more bloodshed. At least the Washington Post and AP allow their readers to see that blowback for US intervention played a significant role in this attack.

Aside from a May 14 drone strike described as being on the border between Pakistan and Afghanistan, there have been no documented US drone strikes in Pakistan since December 26 of last year. The Bureau of Investigative Journalism links this break in drone strikes to the peace talks that Pakistan has been engaged in with the Taliban. On the surface, then, one might expect this week’s offensive carried out by Pakistani troops in the North Waziristan stronghold of the terrorists targeted by the US to signal both the end of the peace talks and the opportunity for the CIA to re-start its drone campaign. As the New York Times reports, the peace process does appear to be dead:

Analysts cautioned that the surge in fighting did not appear to be the start of a much-anticipated military offensive across North Waziristan — a longstanding demand of American officials. But it did appear to spell an effective end to faltering peace talks between the government and the Pakistani Taliban.

“The talks will fizzle out if this campaign continues,” said Talat Masood, a retired general and political analyst. “The military leadership feels the militants aren’t serious about talking — and I think the civilian leadership is starting to see that too.”

But note that even though this isn’t seen as the beginning of a major offensive, Pakistani troops are now in control of Miram Shah:

Pakistani soldiers seized control of a neighborhood dominated by foreign Islamist militants in the North Waziristan tribal district on Thursday as part of the most concerted military operation in the area in several years, a senior security official said.

Over 1,000 troops, backed by tanks and helicopter gunships, moved after dawn into a neighborhood on the edge of the district’s main town, Miram Shah, that had become a sanctuary for Uzbek and Chinese fighters, said the official, who spoke on the condition of anonymity.

If Miram Shah and its surrounds are now under the control of the Pakistani military, then one of the Obama administration’s criteria for use of drones could well no longer apply to the area. See this post by bmaz on the issue of “Kill or Capture”. While the central issue in that analysis is the decision to kill US citizen Anwar al-Awlaki, we see that one of the justifications trotted out by the Obama administration was that al-Awlaki could not be captured to be brought to trial. The claim could well have been bogus, as bmaz states:

Who says there was no way between the combined capabilities of the US and Yemen Awlaki could not at least be attempted to be captured?

But with the Pakistani military now controlling Miram Shah, shouldn’t they be in a position to capture terrorists that the US wants to be taken out of action? That is, if they haven’t already been killed by the offensive:

“Troops used explosives to blow up more than a hundred houses belonging to militants in Machis Camp,” an intelligence official in Miramshah said. He added that artillery and helicopter gunships were targeting militant hideouts while troops on the ground had begun a door to door search operation for militants.

The military also targeted suspected militant hideouts in the nearby town of Mirali. “The troops have destroyed about 300 shops in the main Mir Ali bazaar,” a local official told AFP.

A spokesman for Inter Services Public Relations insisted the security forces were carrying out a ‘sanitisation’ operation in response to heavy shelling from militants on security installations in Miramshah following Wednesday’s air strikes in North Waziristan.

Today’s figures put the death toll in this week’s operation at more than 80.

It remains to be seen whether the CIA will re-start drone strikes around Miram Shah. While the peace talk process appears to be dead, if the military continues to hold some of the prime territory where US targets have resided, carrying strikes on those sites may be subject to a different prohibition.

The FAA is cranky that a journalist took footage of the tornado in Arkansas the other day with a drone.

That footage, taken by storm chaser and photographer Brian Emfinger on Sunday, is now being investigated by federal aviation officials, after a local TV news channel used it as part of its disaster coverage. Mr. Emfinger, a Little Rock-based photojournalist, could be fined $10,000 if the government decides to pursue him for illegal drone-flying.

The Federal Aviation Administration (FAA) insists that such “drone journalism” isn’t legal because it breaks rules against commercial use of unmanned aircraft. Nonetheless, some drone experts say the footage of post-tornado Mayflower heralds “the dawn of the drone journalism age” – a potentially vexing frontier that pits curious citizens against a government with qualms about the spying potential of drones.

CSM uses it to lay out the tensions currently surrounding the FAA’s role, as if this is just a question of FAA’s efforts to slowly develop a legal regime for drones.

But it’s not just that. One of the examples CSM cites deals with a dispute with local cops, who thought locally controlled drone photos of an accident site might affect the site.

And while the article treats a commercial missing persons use of drones, it doesn’t consider other uses, like non-commercial monitoring of environmental sites like industrial farm CAFOs (the latter of which finally got Chuck Grassley opposed to drones because it threatens his big Ag constituents). It also doesn’t mention earlier efforts to obtain independent (whether commercial or not) surveillance of big disasters, things like the BP catastrophe.

Some of what we’re seeing is FAA’s efforts to deal with real safety and privacy and overall legal regime concerns.

But it’s also a question of who gets to wield a certain kind of vision, one currently monopolized by the state.

I’m not a fan of the proliferation of drones generally, because I think that kind of vision should be very limited. But there are also many data points out there to suggest that drones will end up being a sharply circumscribed privilege, limited to only those the state thinks should have a certain kind of vision on society.

The 2nd Circuit has just ruled that the government must release a redacted version of the targeted killing memo to the NYT and ACLU, as well as Vaughn documents listing the documents pertaining to the Anwar al-Awlaki killing.

The central jist of the argument, written by Jon Newman, is that the White Paper first leaked selectively to Michael Isikoff and then released, under FOIA, to Jason Leopold (Leopold FOIAed after reading about it in this post I wrote), amounts to official disclosure of the information in the OLC memo which, in conjunction with all the other public statements, amounts to a waiver of the government’s claim that the OLC memo amounted to pre-decisional deliberations.

This argument starts on page 23, in footnote 10, where the opinion notes that the White Paper leaked to Mike Isikoff was not marked draft, while the one officially released to Leopold was.

The document disclosed to [Leopold] is marked “draft”; the document leaked to Isikoff is not marked “draft” and is dated November 8, 2011. The texts of the two documents are identical, except that the document leaked to Isikoff is not dated and not marked “draft.”

The opinion strongly suggests the government should have released the Mike Isikoff — that is, the one not pretending to be a draft — version to ACLU.

The Government offers no explanation as to why the identical text of the DOJ White Paper, not marked “draft,” obtained by Isikoff, was not disclosed to ACLU, nor explain the discrepancy between the description of document number 60 and the title of the DOJ White Paper.

Then, having established that the document leaked to Isikoff is the same as the document released to Leopold, which was officially released, the opinion describes the DOD opinion at issue, a 41 page classified document dated July 16, 2010 signed by David Barron.

An almost entirely redacted paragraph describes the content of the memo.

The OLC-DOD Memorandum has several parts. After two introductory paragraphs, Part I(A) reports [redacted]. Parts I(B) and I(C) describe [redacted]. Part II(A) considers [redacted]. Part II(B) explains [redacted]. Part III(A) explains [redacted], and Part III(B) explains [redacted]. Part IV explains [redacted]. Part V explains [redacted]. Part VI explains [redacted].

A subsequent passage explains that parts II through VI provide the legal reasoning.

FOIA provides that “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.” 5 U.S.C. § 552b. The Government’s waiver applies only to the portions of the OLC-DOD Memorandum that explain legal reasoning. These are Parts II, III, IV, V, and VI of the document, and only these portions will be disclosed.

And a still later passage reveals that the remaining section — part I — discusses intelligence gathering activities, presumably as part of a discussion of the evidence against Anwar al-Awlaki.

Aware of that possibility, we have redacted, as explained above, the entire section of the OLC-DOD Memorandum that includes any mention of intelligence gathering activities.

So while the paragraph describing the content of the Memo is redacted, we know the first section lays out the evidence against Awlaki, followed by 5 sections of legal reasoning.

The redacted paragraph I included above, describing the content of the Memo, is followed immediately by a paragraph addressing the content of the White Paper.

The 16-page, single-spaced DOJ White Paper [redacted] in its analysis of the lawfulness of targeted killings. [redacted]

The first redaction here probably states that the White Paper parallels the OLC memo. The second probably describes the key differences (besides length and the absence of the underlying evidence against Awlaki in the White Paper). And that second redaction is followed by a discussion describing the White Paper’s extensive passage on 18 US 1119, and lack of any discussion of 18 USC 956, a law prohibiting conspiracies to kill, maim, or kidnap outside the US.

The DOJ White Paper explains why targeted killings do not violate 18 U.S.C. §§ 1119 or 2441, or the Fourth and Fifth Amendments to the Constitution, and includes an analysis of why section 1119 encompasses the public authority justification. Even though the DOJ White Paper does not discuss 18 U.S.C. § 956(a)[redacted].

In other words, the big difference in the legal reasoning is that the still-secret Memo argues that the US plot against Awlaki was not an illegal conspiracy to kill him, in addition to not being a murder of an American overseas.

Conspiracies to conduct extralegal killings of terrorists are not the same as conspiracies by terrorists to kill, apparently.

Having laid out that the non-draft Isikoff memo is the same as the officially-released Leopold memo, and the officially-released Leopold memo lays out the same legal reasoning as the OLC Memo, the opinion basically says the government’s claims it hasn’t already released the memo are implausible.

As the District of Columbia Circuit has noted, “Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Wolf v. CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007) (quoting Gardels v. CIA, 689 F.2d 1100, 1105 (D.C. Cir. 1982)). But Gardels made it clear that the justification must be “logical” and “plausible” “in protecting our intelligence sources and methods from foreign discovery.”

[snip]

With the redactions and public disclosures discussed above, it is no longer either “logical” or “plausible” to maintain that disclosure of the legal analysis in the OLC-DOD Memorandum risks disclosing any aspect of “military plans, intelligence activities, sources and methods, and foreign relations.” The release of the DOJ White Paper, discussing why the targeted killing of al-Awlaki would not violate several statutes, makes this clear. [redacted] in the OLC-DOD Memorandum adds nothing to the risk. Whatever protection the legal analysis might once have had has been lost by virtue of public statements of public officials at the highest levels and official disclosure of the DOJ White Paper.

Clearly, throughout its treatment of the Awlaki killing, the Obama Administration has attempted to be able to justify its killing of an American citizen publicly without bearing the risk of defending that justification legally.

And they almost got away with it. Until they got a little too loosey goosey with the selective leaks when they (someone) leaked the White Paper to Isikoff.

Ultimately, though, their selective leaking was the undoing of their selective leaking plan.

On March 20, 2013, I wrote one of several stories calling bullshit on reports that CIA would get out of the drone business. Not only did John Brennan’s actions up to that point (as opposed to what had been leaked to journalists anonymously) make it clear he intended for CIA to keep that portfolio. But his confirmation testimony made it clear he intended to retain and use CIA’s paramilitary — as distinct from traditional military — capabilities (and no, I’m not sure where the line between the two lies).

Today, the NYT has another of those stories reporting that — shock!! — I was right after all. It has a new twist though. It selectively quotes from Brennan’s confirmation materials to suggest he testified he would get CIA out of paramilitary operations.

During his confirmation hearings, Mr. Brennan obliquely criticized the performance of American spy agencies in providing intelligence and analysis of the Arab revolutions that began in 2009, and said the C.I.A. needed to cede some of its paramilitary role to the Pentagon.

“The C.I.A. should not be doing traditional military activities and operations,” he said.

This is what the quote actually looked like in context.

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

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

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

[snip]

And the CIA should not be doing traditional military activities and operations. [my emphasis]

That is, Brennan was not suggesting CIA should get out of paramilitary ops. On the contrary, he said CIA should retain that ability but not do traditional military activities.

His responses to questions for the record were even more clear.

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

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

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

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

The NYT quotes one more Brennan claim with much more fidelity, however, and in a way that is far more illuminating to the story it tells.

“Despite rampant rumors that the C.I.A. is getting out of the counterterrorism business, nothing could be further from the truth,” the C.I.A. director said during a speech last month at the Council on Foreign Relations.

The agency’s covert action authorities and relationships with foreign spy services, Mr. Brennan said, “will keep the C.I.A. on the front lines of our counterterrorism efforts for many years to come.”

Those lines come from this speech, which was most closely watched as Brennan’s rebuttal to Dianne Feinstein on the torture report, but which in fact declared the war on terror would continue along the same lines as it had since 9/11.

And despite rampant rumors that the CIA is getting out of the counterterrorism business, nothing could be further from the truth. CIA’s global mission, our intelligence collection, analysis, and covert action authorities and capabilities, as well as our extensive liaison relationships with intelligence and security services worldwide, will keep CIA on the frontlines of our counterterrorism efforts for many years to come.

Which is interesting, because the items reported in NYT’s story all say more about the US remaining hostage to the way we outsourced certain intelligence activities after 9/11 than anything else.

As a reminder, the Gloves Come Off Memorandum crafted by Cofer Black and signed on September 17, 2001 included a number of different activities. In addition to capturing and detaining top al Qaeda leaders (which became the torture program) and killing top al Qaeda figures using Predator drones (which remains in CIA hands), it authorized heavily subsidizing (“buying” was the word Bob Woodward used) Arab liaison services, originally including Jordan and Egypt but presumably adding Saudi Arabia once we got over the fact that the Saudis had ties to the attack. In a 2006 interview, John Brennan echoed and endorsed Cofer Black’s plan when discussing the war on terror.

With that in mind, consider the real scope of the details described in the NYT story:

• After another catastrophically badly targeted strike — this time on a wedding — Yemen has banned JSOC’s drones but continues to permit CIA to fly them; CIA’s flights operate out of Saudi territory, presumably with significant Saudi involvement
• Pakistan continues to permit only drone strikes run by CIA
• Jordan required that CIA be in charge of training Syrian rebels and other fighters there
• CIA missed the Arab Spring because it relied so heavily on Egypt’s Omar Suleiman, to whom we had outsourced our earliest torture

That is, the NYT is really reporting that, in spite of nominal efforts to change things, we remain captive to those relationships with liaison services, almost 13 years after 9/11. And that happens to also translate into operating drone strikes in such a way that two countries which were implicated in the 9/11 attacks — Pakistan and especially Saudi Arabia — have managed to stay relevant and above criticism by sustaining (perhaps artificially) our dependence on them.

And, almost certainly, the President’s implicit role in all these actions gives the CIA the institutional clout to make sure it retains whatever parts of this portfolio it cares to.

This, at least, should be the story.

In all of these countries, it’s not clear whether our reliance on these long-term partners helps or exacerbates the war on terror. But no one should maintain any illusions that it will change.

NPR’s Carrie Johnson reports that OLC head Virginia Seitz quietly left OLC before Christmas.

Virginia Seitz, who won Senate confirmation after an earlier candidate under president Obama foundered, resigned from federal service after two-and-a-half years on the job. The timing is unusual because her unit plays a critical role in drawing the legal boundaries of executive branch action —at a time when President Obama says he will do more to bypass a divided Congress and do more governing by way of executive order.

And while DOJ’s official line is that Seitz left entirely for personal reasons, two sources told Johnson the ongoing discussions about whether to drone kill another American were another factor.

Two other sources suggested that aside from the tough work, another issue weighed heavily on her mind over the last several months: the question of whether and when the US can target its own citizens overseas with a weaponized drone or missile attack. American officials are considering such a strike against at least one citizen linked to al Qaeda, the sources said.

While a “law enforcement” source (but wait! the entire point of drone assassinations is they replace law enforcement with intelligence entirely!) suggests the decision has not yet been made.

A law enforcement source told NPR the controversy over the use of drones against Americans in foreign lands did not play a major role in Seitz’s decision to leave government, since the OLC is continuing to do legal analysis on the issue and there was no firm conclusion to which she may have objected or disagreed.

Which is sort of funny, because Kimberly Dozier’s report on the American in question says DOD, at least, has made its decision.

But one U.S. official said the Defense Department was divided over whether the man is dangerous enough to merit the potential domestic fallout of killing an American without charging him with a crime or trying him, and the potential international fallout of such an operation in a country that has been resistant to U.S. action.

Another of the U.S. officials said the Pentagon did ultimately decide to recommend lethal action.

And remember, as I’ve pointed out, this potential drone execution target is differently situated from Anwar al-Awlaki, in that there appears to be no claim this one is targeting civilians in the US.

But let’s take a step back and consider some other interesting details of timing.

First, on November 29 of last year, Ron Wyden, Mark Udall, and Martin Heinrich released a letter they sent to Eric Holder asking for more clarity on when the President could kill an American.

[W]e have concluded that the limits and boundaries of the President’s power to authorize the deliberate killing of Americans need to be laid out with much greater specificity. It is extremely important for both Congress and the public to have a fully understanding of what the executive branch thinks the President’s authorities are, so that lawmakers and the American people can decide whether these authorities are subject to adequate limits and safeguards.

Retrospectively, it seems this letter may have pertained to this new execution target, particularly given the different circumstances regarding his alleged attacks against the US. I might even imagine this serving as a public demand that DOJ not simply rely on the existing Awlaki drone assassination memo, creating the need to do a new one.

Now consider how (currently acting OLC head) Caroline Krass’ confirmation hearing plays in. On December 17, Wyden asked her who had the authority to withdraw an OLC opinion (the opinion in question pertains to common commercial services in some way related to cybersecurity, but I find it interesting in retrospect).

Wyden: But I want to make sure nobody else ever relies on that particular opinion and I’m concerned that a different attorney could take a different view and argue that the opinion is still legally valid because it’s not been withdrawn. Now, we have tried to get Attorney General Holder to withdraw it, and I’m trying to figure out — he has not answered our letters — who at the Justice Department has the authority to withdraw the opinion. Do you currently have the authority to withdraw the opinion?

Krass: No I do not currently have that authority.

Wyden: Okay. Who does, at the Justice Department?

Krass: Well, for an OLC opinion to be withdrawn, on OLC’s own initiative or on the initiative of the Attorney General would be extremely unusual.

She said she did not “currently have that authority.” Was she about to get that authority in days or hours?

Then finally there are the implications for Krass’ confirmation. The leaks about this current drone execution target almost certainly came from Mike Rogers’ immediate vicinity. He’s torqued because Obama’s efforts to impose some limits on the drone war have allegedly made it more difficult to execute this American with no due process.

And while Rogers doesn’t get a vote over Krass’ confirmation to be CIA General Counsel, Dianne Feinstein and Saxby Chambliss do. And their efforts to keep CIA in the drone business may well have an impact on — and may have been motivated by — our ability to assassinate Americans.

I don’t recall Krass getting questions that directly addressed drone killing, though she did get some that hinted at the edges of such questions, such as this one:

Are there circumstances in which a use of force, or other action, by the U.S. government that would be unlawful if carried out overtly is lawful when carried out covertly? Please explain.

ANSWER: As a matter of domestic law, I cannot think of any circumstances in which a use of force or other action by the U.S. government that would be unlawful if carried out overtly would be lawful when carried out covertly, but I have not studied this question.

This seems to be a question she would have had to consider if she had any involvement in OLC’s consideration of a new drone execution memo.

All that said, she hasn’t yet gotten her vote (though any delay may arise from holds relating to the Senate Torture Report).

It just seems likely that — as we did in May 2005 when Steven Bradbury reapproved torture in anticipation of a promotion to head OLC — we’re faced yet again with a lawyer waiting for a promotion being asked to give legal sanction to legally suspect activity. My impression is that Krass has far more integrity than Bradbury (remember, she’s the one who originally imposed limits on the Libya campaign), so I’m only raising this because of the circumstances, not any reason to doubt her character.

It just seems like if you need lawyers to rubber stamp legally suspect activities, there ought to be more transparency about what promotions and resignations are going on.