everywhere there’s a US post… there’s a diplomatic scandal that will be revealed —Bradley Manning

Yesterday, in anticipation of Ecuador’s imminent (and now announced) official decision to offer Julian Assange, the British sent this letter to the Ecuadorans.

You should be aware that there is a legal basis in the U.K. the Diplomatic and Consular Premises Act which would allow us to take action to arrest Mr. Assange in the current premises of the Embassy.

We very much hope not to get this point, but if you cannot resolve the issue of Mr. Assange’s presence on your premises, this route is open to us.
We understand the importance to you of the issues raised by Mr. Assange, and the strong public pressure in country. But we still have to resolve the situation on the ground, here in the U.K., in line with our legal obligations. We have endeavored to develop a joint text, which helps both meet your concerns, and presentational needs.

Then they sent several vans of police to the Ecuadoran embassy.

In short, the British are threatening to enter the Ecuadoran embassy, purportedly to carry out an extradition for a crime that Assange has not yet been charged with. Actually entering the mission would violate the Vienna diplomatic convention that holds that “The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.” Craig Murray reports [mirror] that the Brits have decided to do so, in response to American pressure.

I returned to the UK today to be astonished by private confirmation from within the FCO that the UK government has indeed decided – after immense pressure from the Obama administration – to enter the Ecuadorean Embassy and seize Julian Assange.

[snip]

The government’s calculation is that, unlike Ecuador, Britain is a strong enough power to deter such intrusions. This is yet another symptom of the “might is right” principle in international relations, in the era of the neo-conservative abandonment of the idea of the rule of international law.

The British Government bases its argument on domestic British legislation. But the domestic legislation of a country cannot counter its obligations in international law, unless it chooses to withdraw from them. If the government does not wish to follow the obligations imposed on it by the Vienna Convention, it has the right to resile from it – which would leave British diplomats with no protection worldwide.

I hope to have more information soon on the threats used by the US administration. William Hague had been supporting the move against the concerted advice of his own officials; Ken Clarke has been opposing the move against the advice of his. I gather the decision to act has been taken in Number 10.

Now, I suspect with all the attention, with Ecuador’s quick response, and with the presence of a bunch of Occupiers at the embassy, the British may end up just waiting this out.

But even if they don’t–even if they do raid the embassy–I do think the US and the UK are inflicting the same kind of damage to themselves that WikiLeaks did.

If the Brits enter the embassy it will only expose publicly what has become true but remains largely unacknowledged: the US and its allies find international law and protocols to be quaint. That was obviously true under Bush, with the illegal Iraq war and his disdain for the Geneva Conventions. But Obama, too, continues to do things legally authorized only by the most acrobatic of legal interpretations.

Which is why I consider it so apt that one of the most embarrassing–albeit frankly rather minor–details that WikiLeaks published about the Obama Administration is that Hillary ordered her staff to help intelligence officers collect intelligence on their counterparts, including credit card data and biometrics.

A classified directive which appears to blur the line between diplomacy and spying was issued to US diplomats under Hillary Clinton’s name in July 2009, demanding forensic technical details about the communications systems used by top UN officials, including passwords and personal encryption keys used in private and commercial networks for official communications.

It called for detailed biometric information “on key UN officials, to include undersecretaries, heads of specialised agencies and their chief advisers, top SYG [secretary general] aides, heads of peace operations and political field missions, including force commanders” as well as intelligence on Ban’s “management and decision-making style and his influence on the secretariat”.

Frankly, everyone violates diplomatic protection in this way (Bush did so famously in the lead-up to the Iraq War), though we of course have a wider range of resources to dedicate to the effort. So it should not have been treated as a shock.

But nevertheless this generated outrage at how arrogant and cynical Hillary’s order was.

While other cables exposed the Obama Administration to far more legal trouble–such as the one apparently showing that we were targeting Anwar al-Awlaki before we believed him to be operational–it was the exposure of diplomatic spying that seemed to piss the Obama Administration off. Exposure as cynical power brokers, not idealistic world citizens.

Yet if the UK does seize Assange to serve our interests–hell, even just by sending those vans and threatening to do so–it will confirm, in truly astonishing fashion, everything the Obama Administration has been most embarrassed about with the release of WikiLeaks.

Update: As Ian Welsh reminds us, the British showed no such concern over rape allegations when they refused to let Augusto Pinochet be extradited.

As the LAT first reported, Judge Cormac Carney has dismissed a suit, Fazaga v. FBI, brought by Southern California Muslims against the FBI for illegal surveillance. Carney actually made two rulings, one dismissing most of the suit on state secrets grounds and one dismissing part of the suit against the government–but not individual FBI officers–on FISA grounds.

The rulings are interesting for four reasons:

• Carney has basically accepted the government’s claims in a case that is closely related to one where–three years ago–he called out the government for lying to him personally
• Carney overstates the degree to which the Administration appears to be adhering to its own state secrets policy
• The case is an interesting next step in FISA litigation
• Carney suggests the FBI now investigates people for radicalization

Liars get to invoke state secrets

Three years ago, Carney caught the government lying to him about what documents it had collected on Southern Californian Muslims in this and related investigations. In an unclassified version of his ruling released last year, he revealed part of the government’s breathtaking claim.

The Government argues that there are times when the interests of national security require the Government to mislead the Court. The Court strongly disagrees. The Government’s duty of honesty to the Court can never be excused, no matter what the circumstance. The Court is charged with the humbling task of defending the Constitution and ensuring that the Government does not falsely accuse people, needlessly invade their privacy or wrongfully deprive them of their liberty. The Court simply cannot perform this important task if the Government lies to it. Deception perverts justice. Truth always promotes it.

Yet in finding the government’s state secrets invocation here, he is effectively accepting the government’s word–which in some way claims to have a real predicate for its investigation into Southern Californian mosques–over the word of their former informant, Craig Monteilh, who says he was instructed to collect information indiscriminately because “everybody knows somebody” who knows someone in the Taliban, Hamas, or Hezbollah.

Now, I’m not surprised by this outcome. Carney’s earlier ruling basically held, correctly, that the government needs to share its top secret information with judges even if it plans to withhold it from ordinary citizens. So now that the government has started sharing classified information with him, I bet it puts more pressure on him to keep all this information secret by approving the state secrets invocation.

But Carney’s plaintive insistence that this ruling doesn’t amount to rubber-stamping  abusive federal powers make it sound like he doubts his own decision.

In struggling with this conflict, the Court is reminded of the classic dilemma of Odysseus, who faced the challenge of navigating his ship through a dangerous passage, flanked by a voracious six-headed monster, on the one side, and a deadly whirlpool, on the other. Odysseus opted to pass by the monster and risk a few of his individual sailors, rather than hazard the loss of his entire ship to the sucking whirlpool. Similarly, the proper application of the state secrets privilege may unfortunately mean the sacrifice of individual liberties for the sake of national security. El-Masri, 479 F.3d at 313 (“[A] plaintiff suffers this reversal not through any fault of his own, but because his personal interest in pursuing his civil claim is subordinated to the collective interest in national security.”);

[snip]

Plaintiffs raise the specter of Korematsu v. United States, 323 U.S. 214 (1944), and protest that dismissing their claims based upon the state secrets privilege would permit a “remarkable assertion of power” by the Executive, and that any practice, no matter how abusive, may be immunized from legal challenge by being labeled as “counterterrorism” and “state secrets.” (Pls. Opp’n to Gov’t, at 20, 41–42.) But such a claim assumes that courts simply rubber stamp the Executive’s assertion of the state secrets privilege. That is not the case here. The Court has engaged in rigorous judicial scrutiny of the Government’s assertion of privilege and thoroughly reviewed the public and classified filings with a skeptical eye. The Court firmly believes that after careful examination of all the parties’ submissions, the present action falls squarely within the narrow class of cases that require dismissal of claims at the outset of the proceeding on state secret grounds.

Carney, having been brought into the government’s secret club is now complicit in choosing to sacrifice Muslims’ First Amendment rights for the security of the nation.

Carney overstates the degree to which the government appears to be adhering to its own state secrets policy

That’s made more interesting because Carney bases his acceptance of the government’s state secrets invocation on part on their purported adherence to their own state secrets policy.

Second, even before invoking the privilege in court, the government must adhere to its own State Secrets Policy, promulgated by the Obama administration in a memorandum by the Attorney General in September 2009, effective October 1, 2009.

It’s not at all clear the government does adhere to this policy. As a threshold matter, the policy “commits not to invoke the privilege for the purpose of concealing government wrongdoing.” But this case almost certainly involves activities–the surveillance of Americans in part because of First Amendment protected activities–that were not permitted until the FBI’s Domestic Investigations and Operations Guide made them permissible at the end of 2008. Thus, the state secrets invocation serves, in part, to cover up the fact that FBI officers were spying on Muslims because they were Muslims at a time when that was prohibited by the department.

The policy also promises to refer credible allegations of wrong-doing–as this case involves–to Inspectors General for investigation. Maybe they are doing that. If so, they’re not telling. DOJ wouldn’t even tell Sheldon Whitehouse whether or not they were really following that practice, and the absence of any report on this matter suggests they didn’t do so.

“The Department’s policy is not to disclose the existence of pending IG investigations.  Consistent with that policy, we could not provide the number of cases, if any, that may have been referred to an IG pursuant to the Department policy on state secrets privilege.”

“However, to the extent IG investigations are undertaken, the Government has typically released public versions of final IG reports,” the DoJ reply stated.

No such public versions of final IG reports have been released in the Obama Administration, as far as could be determined.

Now, whether Carney is aware of these developments or not, he doesn’t say. But he does admit that, even if DOJ violated its own state secrets policy (as they appear to have done), there’s nothing he could do about it.

The Court cannot and does not comment on whether the Government has properly adhered to its State Secrets Policy, as this is internal to the Executive branch, and the Policy does not create a substantive or procedural right enforceable at law or in equity against the Government. (See Holder Decl., Exh. 1 ¶ 7.)

Which says all you need to know about how much judges–particularly those who have been lied to on related issues–ought to take the state secrets policy requirements.

This case is the next step in FISA litigation

Carney may not have cited these recent developments in state secrets, but he is well aware of the latest developments in FISA law, because he points to the 9th Circuit’s recent decision in al-Haramain in throwing out the plaintiffs’ suit against the government on FISA grounds. Based on the 9th Circuit’s holding that the government enjoys sovereign immunity even when it illegally wiretaps someone, Carney threw out the part of the suit against the government for all the allegedly illegal wiretaps used here. The part of the case that remains is against the FBI officers for illegal wiretapping people. We shall see what becomes of that.

Carney suggests the FBI now investigates people for radicalization

Finally, I wanted to point to one passage in which Carney speaks in very general terms about what Eric Holder said about the surveillance program. Speaking in hypotheticals, Carney explains the scope of what might be an adequate predicate for an investigation.

In the context of a counterterrorism investigation, subject identification may include information about persons residing in the United States or abroad, such as Afghanistan, Lebanon, the Palestinian Territories, Yemen, and other regions in the Middle East, whom law enforcement has and has not decided to investigate depending on their nexus to terrorist organizations, such as al Qaeda, the Taliban, Hezbollah, and Hamas. Subjects and their associates may also be investigated because they are suspected of or involved in the recruitment, training, indoctrination, or radicalization of individuals for terrorist activities or fundraising for terrorist organizations. More directly, individuals subjected to counterterrorism investigations may be involved in plotting terrorist attacks. [my emphasis]

Recruiting, training, and fundraising terrorists are all crimes, especially under Holder v. HLP.

But is “radicalization”? I don’t know the answer to that. But that seems to push the limits of even Holder v. HLP’s limits on First Amendment activities further than we’ve known.

Back in June, I showed several departments in the government had done inadequate searches for documents responsive to the NYT and, especially, ACLU FOIAs on targeted killing.

DOJ did not perform a reasonable search for documents responsive to ACLU’s FOIA

Part of the problem–for all respondents save the OLC (and CIA, which didn’t describe its search)–is that they used search terms that were likely to leave out responsive documents. In the case of DOJ’s Office of Information Policy, that problem was exacerbated because it searched only on the names of Anwar and Abdulrahman al-Awlaki and Samir Khan in conjunction with the word “target;” not only would that search leave out documents responsive to the NYT FOIA, it was pretty much guaranteed to leave out several important parts of the ACLU request, notably those pertaining to the underlying evidence that Anwar al-Awlaki was an imminent threat or operational.

OIP’s inadequate search was proven by the results of OLC’s search. OLC found 50 documents responsive to the ACLU’s FOIA that also included offices under OIP’s area of responsibility; 32 of those fell in the abbreviated time frame OIP included in their search. OIP only found one of those documents on its own, and only found 4 documents, total, on its own. Given that there were surely a bunch of conversations that transpired exclusively within the Attorney General and Deputy Attorney General’s offices that OLC couldn’t find, we can say with certainty that OIP’s searches found just a tiny fraction (probably less than one percent) of responsive documents.

DOJ doesn’t acknowledge scope of missed documents

The ACLU raised those and other problems with the government’s search in July. In last week’s response, the government didn’t admit what the record clearly shows–that their search was inadequate–and offer to do a real search. Rather, it called the ACLU’s points “nitpicks.” It responded to ACLU’s argument that only searching documents in conjunction with “target” would miss a lot of responsive documents (the ACLU didn’t make the point about the “imminent” and “operational” intelligence as strongly as they might have) by effectively saying, “excluding documents was the point,” even while misrepresenting the content of ACLU’s request as pertaining only to the decision to kill Awlaki and not the underlying decision that he represented an imminent threat because he had gone operational.

And it responded to the ACLU’s demonstration that the search clearly missed responsive documents because OLC had found 10 times more documents from OIP’s area of responsibility than OIP had with a citation to a case that found the government hadn’t conducted an adequate search because it relied on a name search, which is what OIP effectively used. The one line of the decision they cite pertains to the government failing to find one document, not 49 (nowhere in the government response do they admit to how many documents they failed to find).

The ACLU points out that OIP did not uncover some of the documents located by OLC. “Of course, the failure to turn up [a] document does not alone render the search inadequate; there is no requirement that an agency produce all responsive documents.” Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 892 n.7 (D.C. Cir. 1995). Again, the focus is on whether the search was reasonable.

Moreover, this case’s holding would support the ACLU argument that it’s not enough to do a name search if it clearly leaves out the intent of the request, as OIP’s searches do.

OIP didn’t search FOR responsive documents, it worked to exclude documents

As I said, DOJ tried to explain their use of names plus “target” as a justifiable means of search because the Office of the Attorney General and Office of the Deputy Attorney General had so many files they needed to sort somehow.

OIP used fewer search terms than OLC in part because it covers offices with a broader range of interests.

[snip]

Moreover, OIP’s limitation on the search of names to documents also including the word “target” is reasonable in light of the language of the ACLU’s request, which did not seek all documents concerning Aulaqi, but rather information on the factual and legal basis for the alleged individual targeting decisions.

But that doesn’t explain why “target” was the proper way of excluding bunches of non-responsive documents. In fact, in a supplemental declaration submitted to explain why OIP used such an exclusionary search, Douglas Hibbard seems to misunderstand the ACLU request.

At the time OIP was beginning its search of the EV Vaults [of ODAG and OAG emails], it had already completed its review of the unclassified paper and unclassified electronic files located in OAG, ODAG, and OASG. This review had demonstrated that the majority of the records related to Anwar al-Aulaqi maintained by OAG and ODAG (and, in fact, all of the records maintained by OASG) were not responsive to the request in that they concerned Anwar al-Aulaqi, but not the alleged use of lethal force against him. Given that knowledge, OIP conducted an initial search of the EV Vaults using the terms “al-Aulaqi,” “al-Awlaki,” and “al-Alwaki.” These searches located a substantial amount of material, including many of the non-responsive records located in the searches of unclassified paper and unclassified electronic files. A preliminary review of a substantial sampling of these results demonstrated that the located material was not responsive to the request reasons similar to those applicable to the unclassified paper and unclassified electronic material, i.e., the records did not pertain to the alleged use of lethal force against Anwar al-Aulaqi. [my emphasis]

Now, as a threshold matter, the order implied here–a search of hard copy and electronic files, then a search of emails–is the reverse order of how Hibbard presented the search in his original declaration, which I’ll return to below.

More importantly, the ACLU didn’t ask for only those documents that discussed killing Awlaki, it also asked for documents “pertaining to the factual basis” for his killing, including:

• Facts supporting a belief that al-Awlaki posed an imminent threat to the United States or United States interests;
• Facts supporting a belief that al-Awlaki could not be captured or brought to justice using non-lethal means;
• Facts supporting the assertion that al-Awlaki was operationally involved in al Qaeda, rather than being involved merely in propaganda activities;

To find those documents, you might have searched on “Awlaki” and “Abdulmutallab” or “Awlaki” and “Karim.” You might search on “Awlaki” and “Saleh.” But by looking for only those documents that talk about such issues while using the word “target,” you deliberately leave out precisely those underlying documents.

Indeed, an examination of the sole document the government released–talking points that OIP describes as “final talking points prepared for the use of the Attorney General and others in addressing hypothetical questions about Anwar al-Aulaqi’s death,” but which, given the reference in them to “my Administration” appear to be intended for President Obama’s delivery–shows the result of such a search. It simply makes a number of claims, but points to no facts to back up the claims, including:

• Anwar al-Awlaki was an operational leader of al Qaeda in the Arabian Peninsula–al Qaeda’s most active operational affiliate and a group that poses a serious threat to the United States, our partners, and to the people of Yemen.
• He took the lead in planning and directing efforts to murder innocent Americans and was directly tied to several attempted terrorist attacks on the United States.
• The legal analysis would be slightly different with respect to U.S. citizens as we would have to take into account any constitutional protections that might apply to a U.S. citizen who is leading enemy forces in their efforts to kill innocent Americans

The document also notes two more public documents–Treasury’s labeling of Awlaki a terrorist in July 2010 and Robert Gates’ description of him as such a month later–that should have at least appeared in the files, along with a lot of backup.

In other words, the documents responsive to the request as OIP ran the search would end up producing documents like this one, which obscure the legal process behind targeting Awlaki behind blanket assertions (in some cases, arguable ones) but no actual facts or analysis.

Given that it now appears the government first tried to kill Awlaki at a time when DOJ’s analysis supported none of these bullet points, I’d say that’s a rather telling result.

OIP implies ODAG and OAG staffers are responsible if the search is inadequate

And frankly, I suspect Douglas Hibbard knows he has missed some of the most responsive documents.

Consider, for example, how his new declaration adds a sentence to his first paragraph, which is otherwise boilerplate, about who he is and what OIP does. After this sentence:

In processing such requests, the IR Staff consults with personnel in the senior leadership officers and, when appropriate, with other components within the Department of Justice, as well as other Executive Branch agencies.

Hibbard added this sentence:

In devising and conducting searches, the IR Staff relies on its knowledge of what is in the relevant files, as well as consultations with identified custodians of potentially responsive records, and continually refines search parameters to ensure a search reasonably calculated to locate responsive records.

An explanation he repeats two paragraphs later:

In light of the direct participation in the searches by OAG, ODAG, and OASG personnel with familiarity with the subject matter, as detailed in ¶ 9 of my June 20, 2012 declaration, coupled with OIP’s own extensive experience in conducting records searches, I have confidence that the searches conducted for this request were reasonably calculated to locate the records that had been requested.

I find it of particular interest that, having been called on the 49 emails OLC found but OIP didn’t (to say nothing of a presumably far greater volume of discussion within OAG and ODAG), Hibbard points to the involvement of personnel from those offices to assure that the search was thorough.

To some degree it doesn’t make any sense. OIP appears to have decided to scan out most emails using the search term “target” themselves. Though given that was a response to having conducted searches on electronic files (one that didn’t include either names or “target,” which leads me to suspect that the OAG and ODAG personnel handed over their Anwar al-Awlaki unclassified files, which OIP then searched), it’s possible it was influenced by OAG and ODAG personnel decisions about what to hand over initially. That is, it seems those early searches (including through unclassified hard copies) led OIP to exclude everything that doesn’t include “target.”

The biggest impact the OAG and ODAG seem to have had on the search, though, came in delayed identification of files from former personnel–the classified files of one in OAG, and all the files of the former ODAG records custodian for these issues. Still, all these records were ultimately searched in the same fashion as the current employees.

Which leaves just one other reason I can see why OIP might include this hedging language about the search. While OIP conducted the hard copy and online searches of unclassified documents and emails, OAG and ODAG personnel undertook the search of classified files and emails. It’s not even clear that OIP has seen those documents (all the responses, including OIP’s, have refused to give details about classified searches).

OIP doesn’t offer an explanation–as they should–why OLC found so many documents their search failed to find. But I wonder if for some reason those emails were treated as classified, not unclassified?

Now, to be clear, OIP doesn’t admit what is patently obvious, that their search was inadequate. I’m the one saying that if OIP can only find a fraction of the documents OLC can find for its own officers, the search is inadequate.

But I do find it interesting that OIP points to the involvement of OAG and ODAG personnel as proof that this search is adequate, when the evidence seems to suggest either OIP or those offices designed an inadequate search.

It took transcribing the debate in the July 19 Senate Judiciary Committee hearing for me to realize it, but Democrats are running very serious interference to keep the Anwar al-Awlaki targeted killing memo secret. Not only did Dianne Feinstein basically roll John Cornyn, telling him she’d introduce language that would accomplish his goal of getting all the oversight committees the memo when, if hers passes, it will only, maybe, get the Intelligence Committee the memo.  Not only did the Democrats vote on a party line vote to table John Cornyn’s amendment to require the Administration to share it–in classified or unclassified form–with the Judiciary and Armed Services Committees. Not only did Pat Leahy get pretty snippy with Cornyn for offering–and asking to speak on–the Amendment.

Most stunning, though, is Dick Durbin’s comment on it.

Durbin: Thank you Mr. Chairman. My staff briefed me of this on the way in, and I asked the basic question, “would I ask this of a Republican President? Of course. And I did ask it, in a different context, of the previous President, when it came to questions of interrogation, torture, and surveillance. I might say to the Senator from Texas I had no support from the other side of the table when I made that request. But I do believe it is a valid inquiry and I would join the Senator from Texas and any who wish in sending a letter to the Attorney General asking for this specific information on a bipartisan basis. And certainly we can raise it the next time the Attorney General appears before us. I do have to say that I’m going to vote to table because I think that as flawed as this [the FAA extension] may be without the Lee Amendment which I think would help it, I do believe we need to pass this and  bringing in these other matters are going to jeopardize it. But I think it is a legitimate question to be asked of Presidents of either party, and I will join you in a letter to this President and his Attorney General for that purpose. [my emphasis]

This partisan retort (one Leahy repeated) says, in part, that the Democrats aren’t going to cooperate with Cornyn’s effort to get the memo because Cornyn didn’t cooperate with Durbin’s efforts to get the torture and illegal wiretap memos. Durbin and Leahy are right: Cornyn and the rest of the Republican party did obstruct their efforts.

That doesn’t make obstructing Cornyn’s effort right, of course, particularly given that Durbin purports to support Cornyn’s intent.

But remember, Republicans obstructed the release of the torture and illegal wiretap memos because, well, they showed the Executive had broken the law. When we all got to see the torture memos, they made it clear CIA had lied to DOJ to get authorization for torture, had exceeded the authorizations given to them, had engaged in previously unimagined amounts of torture, and had ignored legal precedent to justify it all.

And while we’ve only ever seen part of Jack Goldsmith’s illegal wiretap memo (after the Bush Administration purportedly fixed the data mining and other illegal problems with it) and a teeny fragment of an earlier John Yoo memo, those showed that Yoo relied on gutting the Fourth Amendment, there is an additional secret memo on information sharing, they were hiding their flouting of the exclusivity provision, and–possibly–the illegal wiretap program violated an earlier decision from the FISA Court of Review. We also learned, through some Sheldon Whitehouse persistence, that these memos revealed the President had been pixie dusting Executive Orders and claiming the right to interpret the law for the Executive Branch.

The Republicans had good reason to want to help Bush bury these memos, because they showed breathtaking efforts on the part of the Bush Administration to evade the law.

And that’s the fight that Dick Durbin analogized this one to.

The government has submitted its response in the ACLU/NYT suits for the authorization it used to kill three American citizens. I’m working on a more thorough response, but for the moment, I want to point to one detail that would be funny if it weren’t so damned cynical.

To argue that the flood of sanctioned leaks and official declarations about targeted killing doesn’t constitute official acknowledgment of their targeted killing program, the government says,

Plaintiffs incorrectly contend that the agencies have officially acknowledged three discrete “facts”: (1) “the existence of the targeted killing program”6 (2) “the legal analysis supporting its use against U.S. citizens,” and (3) “the killing of [Anwar] al-Awlaki.” ACLU Opp. at 14.7 To the contrary, the government has acknowledged only that it possesses some responsive records reflecting a general U.S. government interest in the legal basis for the possible use of lethal force against U.S. citizens, and the process by which U.S. citizens could be designated for targeted lethal force.

To which they append this footnote:

Plaintiffs do not define, and it is otherwise unclear from their response, what is meant by “targeted killing program.”

At one level, this cynical ploy is a refreshing breath of honesty. After all, there are probably three or four drone killing programs–the Air Force’s use of drones for force protection in Afghanistan, the CIA’s use of drones to kill both identified and unidentified targets in Pakistan, JSOC’s use of drones to kill what used to be identified but now also include unidentified targets in Yemen and other counterterrorism theaters, and CIA’s use of drones to kill both identified and unidentified targets around the world (but especially in Yemen).

These actions are not the same, and implicitly, the government is admitting what the barrage of sanctioned leaks over the last several months has led the press to forget: targeted strikes are not the same as signature strikes, and JSOC strikes are not the same as CIA strikes. And based on an implicit admission that their last several months of propaganda is a lie, they’re going to play dumb about what the ACLU is FOIAing.

Hey press corps: The government says you should stop treating all the uses of drones as targeted killings!

But of course, the reason why the press has done so is because the Administration has made great efforts to get the press to treat this all as one program–to which they even made a failed attempt to append a unified name, TADS. And when the Administration talks about its targeted killing program, they use that word–“targeted”–with great discipline.

For example, after John Brennan made the following explicit acknowledgement of the targeted killing program,

Yes, in full accordance with the law—and in order to prevent terrorist attacks on the United States and to save American lives—the United States Government conducts targeted strikes against specific al-Qa’ida terrorists, sometimes using remotely piloted aircraft, often referred to publicly as drones.  And I’m here today because President Obama has instructed us to be more open with the American people about these efforts. [my emphasis]

He went on to use that magic word, “targeted,” 20 more times in his speech. And he used it again yesterday, in his speech on Yemen.

Likewise, discussion of Yemeni and American counterterrorism efforts tend to focus almost exclusively on the use of one counterterrorism tool in particular—targeted strikes.

[snip]

Of course, attention has often focused on one counterterrorism tool in particular—targeted strikes, sometimes using remotely piloted aircraft, often referred to publicly as drones. In June, the Obama Administration declassified the fact that in Yemen our joint efforts have resulted in direct action against AQAP operatives and senior leaders. This spring, I addressed the subject of targeted strikes at length and why such strikes are legal, ethical, wise, and highly effective. Today, I’d simply say that all our CT efforts in Yemen are conducted in concert with the Yemeni government. When direct action is taken, every effort is made to avoid civilian casualties. And contrary to conventional wisdom, we see little evidence that these actions are generating widespread anti-American sentiment or recruits for AQAP. In fact, we see the opposite. Our Yemeni partners are more eager to work with us. Yemeni citizens who have been freed from the hellish grip of AQAP are more eager, not less, to work with the Yemeni government. In short, targeted strikes against the most senior and most dangerous AQAP terrorists are not the problem; they’re part of the solution. [my emphasis]

Moreover, he spoke of targeted strikes in Yemen (where all the FOIAed deaths took place) as one tool, singular, obscuring the differences between the different uses of drone killing.

But according to the government, all that doesn’t amount to admission of a targeted killing program–“golly, we keep using that term ‘targeted’ but we can’t even imagine what ‘targeted killing’ means!” Because it’s just too hard for powerful men to figure out the difference between fucking and a blowjob, I guess, if they can even figure out what the meaning of “is” is.

Update: Tom Junod revealed last week that one of his sources panicked about two months ago over his use of the word “program” in conjunction with the targeted killing program.

When I was preparing my article “The Lethal Presidency of Barack Obama” for publication, I had a conversation with a source from the intelligence agencies. A month before, he had spoken to me, on the record; now he was in a panic.

It wasn’t that he had disclosed classified information; he hadn’t. It was that, as he said, “everything had changed” in Washington, with the furor over the “leaks” that had resulted in the New York Times‘ two front-page stories on classified national-security programs, the first on targeted killing, the second on the Stuxnet computer virus. He had originally spoken to me when the Obama administration appeared to be on the verge of officially acknowledging a targeting program that had taken the lives of three American citizens, including that of Abdulrahman al-Awlaki, a 16-year-old who had never been accused of terrorism. He was calling me back to ask that I change any quoted reference to “the program” — because mere use of the word “program” might be construed to represent, in itself, acknowledgement that a program exists; and because the administration was under intense pressure to revert back to the first rule of the targeted-killing program, which is that you never talk about the targeted-killing program.

I guess the source was right to be worried?

At the end of a useful Steve Coll piece on the Constitutional danger of the Administration’s unilateral decisions to kill American citizens, he argues that Congress has the ability to force the Administration to release the process by which it executes Americans with no due process publicly.

None of Obama’s legal advisers has testified similarly about what secret system and classified legal memos may exist for judging, in the case of an American citizen targeted overseas, whether and why a capture attempt may be feasible. Congress has the power to force such statements onto the public record. It must try; it is obvious by now that the Obama Administration will not volunteer them. Is “kill or capture” a policy, or are the words just a screen for politically convenient targeted killings?

As I laid out the other day, Congress has tried to ask nicely for the memos on over 10 occasions, only to be blown off by the Administration.

That’s why Dianne Feinstein’s thus far successful effort to undercut John Cornyn’s effort to mandate release of the memos is so dangerous. John Cornyn’s amendment would mandate release to six oversight committees (those overseeing Intelligence, Judiciary, and Armed Services) within a month. DiFi’s bill would require release of all intelligence related memos (which is good), but only to the Intelligence Committees, and with loopholes  that would permit the Administration to withhold a slew of their legal authorities. And any release could be delayed 6 months beyond the passage of the bill (so, if Mitt were to win, beyond the end of the Obama Administration).

There is widespread bipartisan support for releasing a real explanation of this to the public, now. Cornyn’s amendment would be an important half measure, requiring release of the Awlaki kill memo at least to the members of Congress purportedly ensuring government activities remain constitutional. And yet DiFi’s efforts undercut even that half measure.

Update: My original title, which I’ve resigned to the dustbin of over-long novels, stunk. Thankfully, Kade Ellis gave me a better one.

A few weeks ago, the fact that there are now 4.8 million people in the US with security clearances got a fair amount of attention. 1.5% of our country has access to at least information classified as secret. The job security of most of those people depends on maintaining good standing in the somewhat arbitrary world of security clearance.

The Senate Intelligence Committee wants to make sure we don’t learn that number anymore.

In the Intelligence Authorization, it just eliminated the requirement for that report.

(3) REPEAL OF REPORTING REQUIREMENTS REGARDING SECURITY CLEARANCES.—

(A) IN GENERAL.—Section 506H of the National Security Act of 1947 (50 U.S.C. 415a–10) is repealed.

(B) TABLE OF CONTENTS AMENDMENT.— The National Security Act of 1947 (50 U.S.C. 401 et seq.) is amended in the table of contents in the first section by striking the item relating to section 506H.

The language this bill would repeal reads, in part,

(b) Report on Security Clearance Determinations.–

(1) Not later than February 1 of each year, the President shall submit to Congress a report on the security clearance process. Such report shall include, for each security clearance level–

(A) the number of employees of the United States Government who–

(i) held a security clearance at such level as of October 1 of the preceding year; and

(ii) were approved for a security clearance at such level during the preceding fiscal year;

(B) the number of contractors to the United States Government who–

(i) held a security clearance at such level as of October 1 of the preceding year; and

(ii) were approved for a security clearance at such level during the preceding fiscal year;

When ODNI requested the elimination of this report in June, arguing that since the government has caught up on the backlog approving security clearances, it suggested there is no more reason to track this information. If Congress still cares how big our secret government has gotten, ODNI says, they can get briefings.

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

I guess “giving citizens a hint of the size of their secret government” has nothing to do with why this report was considered salient.

This is crazy. As our secret government continues to metastasize, and as those who hold clearances are subjected to an increasingly arbitrary system of control (which I’ll discuss in a later report), the Senate Intelligence Committee has moved to hide the one report that gives us a sense of how big the secret government really is (and how much of our secret government consists of contractors).

As I noted a few weeks ago, the Democrats on the Senate Judiciary Committee voted to prevent John Cornyn from adding an amendment to the FISA Amendments Act Extension. I will have to hunt down the language of his amendment tomorrow, but it would basically have required the Administration to share the memos authorizing the killing of Anwar al-Awlaki–with targeted killing addressed specifically–with the Intelligence and Judiciary Committees. [Update: The Amendment is below.]

The Senate Intelligence Committee just passed the language that–DiFi promised–would address the issue. And it still leaves the Administration leeway to do what it has been doing for two years–withholding the actual memo from the committees that oversee it.

That’s because the legislation passed as part of the Intelligence Authorization allows the government to withhold opinions from people not read into covert programs.

(a) REQUIREMENT TO PROVIDE.—Except as provided in subsections (c) and (d), not later than 180 days after the date of the enactment of this Act, the Attorney General, in coordination with the Director of National Intelligence, shall provide to the congressional intelligence committees a copy of every classified opinion of the Office of Legal Counsel of the Department of Justice that was provided to an element of the intelligence community on or after September 11, 2001.

[snip]

(c) EXCEPTION FOR COVERT ACTION.—If the President determines that it is essential to limit access to a covert action finding under section 503(c)(2) of the National Security Act (50 U.S.C. 413b(c)(2)), the President may limit access to information concerning such finding that is subject to disclosure under subsection (a) or (b) to those members of Congress who have been granted access to the relevant finding under such section 503(c)(2).

(d) EXCEPTION FOR INFORMATION SUBJECT TO EXECUTIVE PRIVILEGE.—If the President determines that a particular opinion subject to disclosure under subsection  (a) or listing subject to disclosure under subsection (b) is subject to an executive privilege that protects against such disclosure, the Attorney General shall not be required to disclose such opinion or listing, if the Attorney General notifies the congressional intelligence committees, in writing, of the legal justification for such assertion of executive privilege prior to the date by which the opinion or listing is required to be disclosed.

This is, frankly, an outrage both specifically and generally.

First, nothing in this language guarantees the committees will get the memos in question. That’s because the Administration has long been withholding the information even from members of the Senate Intelligence Committee based on claims that it is too secret to share with those who oversee intelligence and the Constitution.

Furthermore, both the Bush and Obama Administrations have fairly routinely withheld OLC memos–particularly drafts–on the basis they’re deliberative and have nothing to do with the basis on which the Administration makes the final decision. The language on Executive Privilege here codifies that practice. Further, in the case of targeted killing, the government went out of its way to get ACLU to agree not to ask for the drafts of their opinions on targeted killing. And remember, before they finalized the memo we think was ostensibly used to authorize the killing of Anwar al-Awlaki, they had already tried to kill him, at a time when FBI, at least, didn’t have evidence showing he was operational. The authorization they used for the earlier kill attempt–if it exists–almost certainly looks nothing like the authorization described in the government’s recent transparency theater.

And then there’s this: the 6 months it allows the government to sit on this. That gets the Administration beyond the election, but also beyond the time when, if Obama loses, he’ll leave office. So if there’s anything really embarrassing, he can use late Administration game playing to clean it up.

This is disgusting. Really, really pathetic, even for the serially pathetic Senate Intelligence Committee.

Update: Here’s Cornyn’s amendment. His amendment would have gotten just the targeted killing opinions, shared with just the oversight committees (I had forgotten it included the Armed Services committees, too). But it also would have gotten the opinions within a month (and therefore before the election).

Not later than 30 days after the date of the enactment of this Act, the President shall submit, in classified or unclassified form, all legal analysis in effect on the date of the enactment of this Act related to the President’s authority to target and kill United States citizens overseas to—

(1) the Select Committee on Intelligence of the Senate;

(2) the Committee on Armed Services of the Senate;

(3) the Committee on the Judiciary of the Senate;

(4) the Permanent Select Committee on Intelligence of the House of Representatives

(5) the Committee on Armed Services of the House of Representatives; and

(6) the Committee on the Judiciary of the House of Representatives.

According to the William Webster report, the FBI’s understanding about Anwar al-Awlaki’s operational role developed only after the UndieBomb attack.

As of January 7 and June 16, 2009, the FBI knew anwar al-Aulaqi was an anti-American, radical Islamic cleric and the subject of a Tier <redacted> FBI counterterrorism investigation. San Diego believed [<redacted> that Aulaqi was [developing ambitions beyond radicalization] <redacted>. WFO viewed him at that time as merely inspirational. The FBI’s full understanding of Aulaqi’s operational ambitions developed only after the attempted bombing of Northwest Airlines Flight 253 on Christmas Day 2009. [72; emphasis mine]

On December 24, 2009–the day before FBI began to understand Awlaki’s operational ambitions–a JSOC strike in Yemen missed Anwar al-Awlaki.

Dana Priest’s report revealing Awlaki was subsequently added to a JSOC kill list, published three days before Umar Farouk Abdulmutallab started cooperating again with the FBI, claims Awlaki was not the target of that December 24, 2009 strike.

As part of the operations, Obama approved a Dec. 24 strike against a compound where a U.S. citizen, Anwar al-Aulaqi, was thought to be meeting with other regional al-Qaeda leaders. Although he was not the focus of the strike and was not killed, he has since been added to a shortlist of U.S. citizens specifically targeted for killing or capture by the JSOC, military officials said. The officials, like others interviewed for this article, spoke on the condition of anonymity because of the sensitivity of the operations. [my emphasis]

But Ali Abdullah Saleh, speaking with David Petraeus three weeks before Priest’s report, sure seemed to treat Awlaki as one of two targets of the strike.

Saleh praised the December 17 and 24 strikes against AQAP but said that “mistakes were made” in the killing of civilians in Abyan. The General responded that the only civilians killed were the wife and two children of an AQAP operative at the site, prompting Saleh to plunge into a lengthy and confusing aside with Deputy Prime Minister Alimi and Minister of Defense Ali regarding the number of terrorists versus civilians killed in the strike. (Comment: Saleh’s conversation on the civilian casualties suggests he has not been well briefed by his advisors on the strike in Abyan, a site that the ROYG has been unable to access to determine with any certainty the level of collateral damage. End Comment.) AQAP leader Nassr al-Wahishi and extremist cleric Anwar al-Awlaki may still be alive, Saleh said, but the December strikes had already caused al-Qaeda operatives to turn themselves in to authorities and residents in affected areas to deny refuge to al-Qaeda. [my emphasis]

Given that we blamed Saleh for the strike, you have to assume he knew who the targets were. And he seems to suggest that both Wuhayshi and Awlaki were the intended targets.

Which would suggest the US targeted Awlaki before the FBI, at least, believed him to be operational.

Now, perhaps Saleh was wrong and Priest’s sources were right. Or perhaps JSOC had intelligence they didn’t share with FBI. Perhaps one of our partners in the region–either Yemen or Saudi Arabia–shared evidence we used to target Awlaki (presumably that partner was the same one that led us to believe that just an AQAP operatives’ wife and kids–and not an entire clan of Bedouins–had died in the al-Majala attack). Perhaps someone at NSA saw the electronic communication mentioning a Nigerian who might work with Awlaki to attack, and shared it with DOD but not FBI.

Or perhaps we didn’t have any intelligence that Awlaki was operational when we first targeted him.

One more thought. If that’s the case–if JSOC targeted Awlaki before they had intelligence he was operational–then it is not insignificant that David Petraeus, then the head of CentCom, now heads the CIA, which refuses to release any details about when it had information supporting Awlaki’s killing (remember that JSOC responded to ACLU’s FOIA by noting that everything they did would have been at the direction of CentCom). That is, if we did target Awlaki before we had evidence he was operational, then the guy at the heart of the Administration’s stonewalling on drone killing was the guy in charge of that earlier attempting killing.

Update, August 17: The assessment of FBI (and the Intelligence Community more generally) learning that Awlaki was operational after the Abdulmutallab attack is repeated, in more clear terms, after 1:50 in the testimony of Mark Giuliano to the House Appropriations Subcommittee on Homeland Security on August 1.

Yesterday, Colleen Kollar-Kotelly upheld the government’s right to withhold cables already released via WikiLeaks under FOIA (see my earlier posts on this FOIA here and here). Her logic seems to have a fatal flaw: she says the State Department has proven (and the ACLU has not rebutted the claim) that the US Government owns the cables.

The ACLU simply offers no rejoinder to the State Department’s affirmative showing that all the information at issue (1) was classified by an original classification authority, (2) is owned, produced, or controlled by the United States, and (3) falls within one or more of the eight relevant categories. [my emphasis]

But then she says (noting that ACLU made no mention that these cables had also been released via WikiLeaks and therefore pretending that they might be different) that the government has not officially acknowledged these cables are authentic.

No matter how extensive, the WikiLeaks disclosure is no substitute for an official acknowledgement and the ACLU has not shown that the Executive has officially acknowledged that the specific information at issue was a part of the WikiLeaks disclosure.

I guess they should let Bradley Manning go free, then, since the State Department isn’t prepared to say the cables he is accused of leaking were authentic?

But that’s not the most troubling part of this ruling. As I lay out below–and as Kollar-Kotelly presumably knows well–the cables are full of admissions of crime, including murder, torture, and kidnapping. Thus, had she reviewed them to see whether the government’s claims that they were properly classified are valid, she would have seen that–in addition to information properly classified to protect foreign relations–a lot of the original classification and the government’s refusal to officially release them (which would presumably make them admissible in a court) serve to hide confessions of criminal activity.

So Kollar-Kotelly chose not to review these cables in camera, choosing instead to rely on the State Department declaration that makes no mention of the criminal admissions included in the cables.

In this case, because the State Department’s declarations are sufficiently detailed and the Court is satisfied that no factual dispute remains, the Court declines to exercise its discretion to review the embassy cables in camera.

It was a cowardly ruling. But all the more cowardly, given that Kollar-Kotelly prevented herself from officially reviewing a bunch of evidence of criminal wrong-doing.

Here are details on the cables Kollar-Kotelly doesn’t want to read:

The famous meeting at which Ali Abdullah Saleh promised to lie about our strikes in Yemen

Kollar-Kotelly agreed to keep what has become perhaps the most famous cable ever, in which David Petraeus and Ali Abdullah Saleh discuss the missile strikes we conducted in Yemen in late 2009.

Mind you, the government likely has a very good legal reason to keep this cable secret. The cable makes it clear we were targeting Anwar al-Awlaki (as well as Nasir al-Wuhayshi) in those strikes. And releasing that would constitute official acknowledgement of the targeting of Awlaki that the government has tried so hard to avoid. Furthermore, as I’ll show in a follow-up post, it also shows that we targeted Awlaki for death before we had evidence implicating him in a crime.

Plus, the cable shows we were getting false intelligence from someone–and not the Yemenis–which raises real questions about who fed us the intelligence that led us to kill a Bedouin clan in the name of terrorism.

Mohammed bin Nayef admits the Saudis were involved in 9/11

There’s a lot that’s interesting in this cable (in addition to the revelation that the names of attendees were redacted in some releases of the cable). It’s one of the cables in which we scold the Saudis for failing to stop terrorist fundraising. It features Mohammed bin Nayef suggesting they would prefer military rule in Pakistan over democracy–though he promises Richard Holbrooke the Saudis won’t support a coup. And it’s one of the cables in which the Saudis sell us on counterterrorism involvement in Yemen in the name of pursuing the Shia Houthis.

But I’m particularly interested in this comment from bin Nayef:

It had not been easy to see Saudi involvement in 9/11 and other terrorist incidents, he said.

Now, perhaps he was only speaking of the participants. But at a meeting where he basically claims to be helpless to stop terrorist financing, it sure seems to be acknowledgment there was more direct involvement. And that’s a detail we’ve been keeping secret since 9/11.

Proof we knew detainees were being tortured after transfer from Gitmo

Then there’s the cable showing we knew that detainees released from Gitmo were tortured by our allies in Tunisia. It relates the opinions of German, Italian, French, British, and Canadian diplomats about whether the now-overthrown Tunisian government tortures. According to Canadian Ambassador to Tunisia Bruno Picard, Tunisian claims they did not torture were “crap” and “bullshit.” But the really sensitive detail likely has to do with the treatment of two GItmo detainees we had transferred to Tunisia two years earlier, Abdullah bin Omar and Lufti Bin Swei Lagha.

[US] Ambassador Godec noted that there are credible reports of one of the first two transferees being mistreated, including information from the lawyer, the family and statements in open court.

Here’s a report from Clive Stafford Smith detailing the treatment bin Omar got in Tunisia. Bin Omar was freed last year after the fall of the Tunisian government.

Another cable reflects similar apparent concerns in Libya, as the Embassy pressured the Libyans to explain some injuries sustained in Libyan custody after their return.

Condi Rice’s efforts to exonerate herself for conspiring to kidnap Khalid al-Masri

I’ve written about this cable before. Not only does it show us strong-arming the Germans to prevent them from subpoenaing anyone in their investigation of our kidnapping and torture of their citizen Khalid al-Masri. But it also seems to show that Condi Rice lied to Germany’s Foreign Minister to exonerate herself from any role in al-Masri’s kidnapping and torture.

Condi and John Bellinger may well have personal liability in el-Masri’s kidnapping and torture. But it appears, in addition, that Condi lied to her German counterpart to create the public appearance that the US had no concerns about the arrest warrants, and then sent her subordinate to correct that statement. That is, Condi used her counterpart to create the false impression that she, personally, had no concerns about the arrest warrants.

Evidence the Canadian intelligence service “vigorously harass[es]” suspects in response to terror alerts

In addition to describing Canadian Security Intelligence Service Director Jim Judd whine about CSIS having to comply with the law in Canada, this cable discusses shared US and Canadian pessimism about Pakistan and Canada’s efforts to set up a back channel with Iran.

But it might be most interesting because it’s one of those cables that appeared in unredacted form, then got redacted along the publication process, and has since appeared in unredacted form. That is, it is one of the cables the government might like to claim exists in authentic and inauthentic forms.That would provide them a way to deny that CSIS Director Judd really said the following:

Responding to Dr. [Eliot] Cohen’s query, Judd said CSIS had responded to recent, non-specific intelligence on possible terror operations by “vigorously harassing” known Hezbollah members in Canada.

Silvio Berlusconi bitching about the court for prosecuting Americans for the Abu Omar rendition 

In an meeting early in the Obama Administration with Silvio Berlusconi, Defense Secretary Robert Gates asked that Colonel Joseph Romano, who had been convicted in the Abu Omar rendition, be given US jurisdiction as a NATO officer. The cable describes Silvio’s response:

Berlusconi and Cabinet Advisor Letta assured SecDef the GOI was working hard to resolve the situation. Berlusconi gave an extended rant about the Italian judicial system — which frequently targets him since it is “”dominated by leftists”” as the public prosecutor level. Berlusconi predicted that the “”courts will come down in our favor”” upon appeal,

Not only does this expose Berlusconi’s efforts (to say nothing of Gates’) to overturn the prosecution of a bunch of Americans for kidnapping, but Silvio goes so far as to call overturning the convictions “our” side.

Pakistan’s Prime Minister complaining about inefficacy of drone strikes in Pakistan

I suppose this cable was not released because it shows Prime Minister Youssef Raza Gilani acknowledging and complaining about the inefficacy of drone strikes in Pakisan. Or perhaps it’s because of his request that we transfer Aafia Siddiqui back into Pakistani custody (and his allegation she is ill).

What’s most interesting about Judge Kollar-Kotelly’s decision it could be withheld, though, is that it is classified Confidential, not Secret (as all the other cables are). At least according to the people who first classified it, then, the material it includes isn’t all that sensitive.

Here are the other cables withheld in full:

• A discussion about whether Spain could convict Omar Deghayes and Jamil al Banna
• A discussion about the rules the US has to follow to use UK bases to operate intelligence flights that will be shared with third parties; the rules were imposed in response to concerns about our renditions
• A discussion about new rules Ireland imposed for our use of Shannon Airport (a discussion which ended with strategizing about how to get the Irish to pay for the damage done by five protestors who damaged a US plane)
• The Swiss Deputy Political Director of Foreign Affairs giving us a heads up about an investigation into our renditions, including the suggestion that we broke Swiss law by flying Abu Omar over Swiss airspace when we kidnapped him