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If By “Plots on the Homeland” You Mean “Defense against US-Backed Invaders”

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Yesterday’s declassified documents on the Section 215 (and Internet Trap and Trace) dragnets repeat something I observed about a James Clapper declaration submitted in several FOIA cases related to the program: they all redact parts of the description of what allows the government to search on an identifier. While the government is happy to tell us searches are limited to counterterrorism (and Iran), they’re still hiding some aspect of what constitutes an appropriate search.

Which is just one of the reasons I’m interested in something NSA Deputy Director John Inglis said in yesterday’s Senate Judiciary Committee hearing on the NSA’s programs. At about 1:22, he described the selector they used to find Basaaly Moalin this way:

We knew a number that we had reasonable suspicion was affiliated with a terrorist group plotting against the homeland.

This claim — that the number was not just connected to a terrorist group, but a group “plotting against the homeland” — is new, as far as I’m aware.

Remember, the terrorist group in question is al-Shabaab. Other officials have said they got this number in October 2007 and court documents show the wiretap of Moalin began in December 2007. Yet al-Shabaab wasn’t listed as a Foreign Terrorist Organization until February 2008. If they were plotting against the US in October 2007, why weren’t they listed at that point?

I’ve long assumed (though it is just an assumption) that the number in question was that of Aden Hashi Ayro, a Somali warlord whose calls with Moalin were submitted as evidence in his case. Ayro was killed by a US missile on May 1, 2008. And it’s possible the claim that the pre-FTO al-Shabaab was plotting against our “homeland” pertains to him and his alleged ties to al Qaeda.

Here’s how a June 2008 WikiLeaks cable celebrating Ayro’s death described him.

(S/NF) Senior Al-Shabaab leader and al-Qaida associate Aden Hashi Ayrow was killed May 1 during a U.S. strike. In the early 1990s, Ayrow joined the military wing of Al-Ittihad Al-Islamiya (AIAI) and traveled to Afghanistan in 1997 for unspecified training. Ayrow remained in Afghanistan for a year before returning to Somalia to participate in Jihadist activities, and returned to Afghanistan in 2001, reportedly meeting with Osama bin Laden. Ayrow emerged in the 2002/2003 timeframe as a firebrand extremist and he quickly became a rising figure in what eventually became the Shabaab. Mercurial and largely uncontrollable, he was feared for his ruthlessness and unpredictability.

(S/NF) Ayrow has been violently opposed to U.S. and western interests in East Africa. The Shabaab’s emergence as a terrorist threat in Somalia is closely linked to Ayrow’s rise to power. During the course of 2005, Ayrow’s jihadist group emerged in Mogadishu as a violent destabilizing force. He has been linked to the killing of foreign aid workers, dozens of Somalis, and BBC journalist Kate Peyton. He also was the figure largely responsible for the desecration of the Italian cemetery in Mogadishu. Ayrow’s al-Shabaab faction has also conducted suicide bombings and anti-aircraft attacks targeting Ethiopian and Somali forces in Somalia. Ayrow was closely associated with East Africa Al-Qaida (EAAQ) operatives Harun Fazul and Saleh Nabhan, and now-deceased EAAQ cell leader Abu Talha Al-Sudani. [my emphasis]

The label “al Qaeda associate” and the visit to Osama bin Laden may have qualified Ayro (as ties to Al Qaeda in the Arabian Peninsula did Ahmed Warsame) as something beyond al-Shabaab warlord in the US book. And Toronto Star’s Michele Shephard told me on Twitter that Ayro had global ambitions. Certainly, some of Ayro’s associates had ties to al Qaeda’s past and planned attacks on US embassies in Africa.

But Shephard and the WikiLeaks cable also both say that the immediate focus in 2007 was on Ethiopian troops who had invaded Somalia in 2006 with US backing. Read more →

On the Growing Fight Against America’s Secret Enemies

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Cora Currier describes the absurd response she got when she asked for a list of our enemies.

At a hearing in May, Sen. Carl Levin, D-Mich., asked the Defense Department to provide him with a current list of Al Qaeda affiliates.

The Pentagon responded – but Levin’s office told ProPublica they aren’t allowed to share it. Kathleen Long, a spokeswoman for Levin, would say only that the department’s “answer included the information requested.”

A Pentagon spokesman told ProPublica that revealing such a list could cause “serious damage to national security.”

“Because elements that might be considered ‘associated forces’ can build credibility by being listed as such by the United States, we have classified the list,” said the spokesman, Lt. Col. Jim Gregory. “We cannot afford to inflate these organizations that rely on violent extremist ideology to strengthen their ranks.”

Thing is, this is not entirely new. At least until February, the government had been refusing to give Ron Wyden a list of every country in which we’ve used lethal force. And he’s on the Intelligence Committee!

Indeed, Currier suggests one reason this might be classified would be if Obama was fighting these enemies under Inherent Authority.

The AUMF isn’t the only thing the government relies on to take military action. In speeches and interviews Obama administration officials also bring up the president’s constitutional power to defend the country, even without congressional authorization.

But, as Jack Goldsmith notes, something else seems to be going on here, because the response Currier got suggests the list is classified Secret, not whatever Top Secret compartment the government maintained for a year Wyden couldn’t access.

The language of the DOD release suggests that at least a few more groups (or elements of groups), and maybe many more groups (or elements), are on the AUMF “list.”  The existence of a “list” (which was unclear in the May 2013 AUMF hearing), and the fact that there may be at least a few groups (or elements of groups) on it, is itself news in the AUMF-watcher world.  It is also consistent with suggestions and implications in reports, such as in Mark Mazzetti’s book, that the AUMF is being invoked in various ways by DOD Special Operations Forces for non-covert military activities in many countries around the globe.

Third, it is entirely unclear why the USG can acknowledge some groups without unduly “inflating” them, and not others.  And this in turn makes me skeptical of the notion of “inflation.”  To be sure, some groups that are AUMF-able (such as, perhaps, the Haqqani network, a known but not acknowledged U.S. target) perhaps cannot be named because the operations are covert actions and involve deals of non-acknowledgment with foreign governments (or elements of foreign governments).  But that cannot be a comprehensive explanation for DOD’s secrecy.  By stating that disclosure of groups on the list would “reasonably be expected to cause serious damage to the national security,” DOD has tipped off that the list is classified only at the secret (as opposed to top secret) level.  (See Section 1.2 of E.O. 13,256.)  Covert actions are typically classified at the top secret level.  This implies (but does not prove) that some if not all of the AUMF-groups in question are not subjects of covert actions.

But remember: There are two other instances where the government has refused to clarify who is, and is not, an enemy.

When a bunch of people who have talked to, but not assisted, terrorists sued to stop the NSAA’s provisions allowing indefinite detention, the government refused (until it became convenient) to say whether they could be detained or not.

Then, as part of the Bradley Manning charges, the government kept one of the enemies it was going to prove he had aided classified (but ultimately didn’t argue he had aided that enemy in court).

Prosecutors accuse him of “aiding the enemy,” and three in particular: al-Qaida, al-Qaida in the Arabian Peninsula and a “classified enemy” referred to by a Bates number, which is a form of legal document identification.
Three professors of military law – Yale Law School’s Eugene Fidell, Duke University School of Law’s Scott Silliman and Texas Tech University School of Law’s Richard Rosen – told Courthouse News they had never heard of a case involving a “classified enemy.”
After being informed that the phrase stumped the professors, a military spokeswoman insisted that the confusion stemmed from a misunderstanding, because “who the enemy ‘is’ is not classified.”
“What ‘is’ classified is that our government has confirmed that this enemy is in receipt of certain compromised classified information, and that the means and methods of collection that the government has employed to make that determination are classified,” the spokeswoman said in an email.

One thing about all these instances — refusing to share a list of lethal force targeted countries with Ron Wyden, sharing a classified list with Carl Levin only on request, refusing to tell Americans (and one member of parliament from Iceland) whether they are counted as enemies, and refusing to tell Manning which enemy he supposed aided — is that they provide the executive maximum flexibility. That may not be the only thing this extreme secrecy about enemies does. But it is one thing it does do, along with hiding how broad the unilaterally declared war under Inherent Authority is.

It sure does make things confusing, though!

The 8-FISA Judge 11-Docket Spying Authorization to Identify Less than $10,000 to Al-Shabaab

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In a hearing last month, FBI Deputy Director Sean Joyce described a case in which the phone metadata database helped catch terrorists. (after 1:07)

Lastly, the FBI had opened an investigation shortly after 9/11. We did not have enough information, nor did we find links to terrorism, so we shortly thereafter closed the investigation. However, the NSA, using the business record FISA, tipped us off that this individual had indirect contacts with a known terrorist overseas. We were able to reopen this investigation, identify additional individuals through legal process, and were able to disrupt this terrorist activity.

While he didn’t name it, subsequent discussions of the case made it clear he meant Basaaly Saeed Moalin, a Somali-American convicted with three others in February for sending less than $10,000 to al-Shabaab (altogether Moalin was charged with sending $17,000 to Somalia, the balance of it to non-Shabaab figures the government claims are also terrorists).

Moalin’s lawyer Joshua Dratel unsuccessfully challenged the government’s use of material derived from FISA (the judge’s opinion rejecting the challenge has never been released). Yet even with that challenge, Dratel was never informed of the use of Section 215 in the case.

All that said, the government’s opposition to his challenge is utterly fascinating, even with huge chunks redacted. I’m going to do a weedy post on it shortly. But for now, I want to point to three indicia that reveal how much more complex this surveillance was than Joyce described to the House Intelligence Committee.

First, as part of the introduction, the government provided an (entirely redacted) Overview of the FISA Collection at Issue. While we have no idea how long that passage is, the government needed 9 footnotes to explain the collection (they are also entirely redacted). Similarly, a section arguing “The FISA Applications Established Probable Cause” has the following structure and footnotes (the content is entirely redacted):

[footnote to general material]

1.

a.

2.

a. [6 footnotes]

b.

i. [2 footnotes]

ii.

iii. [1 footnote]

iv. [2 footnotes]

v. [3 footnotes]

Now it may be that section 1 here pertains to physical collection, and section 2 pertains to electronic collection (both were used, though I suspect the physical collection was metaphorical in some way). But even there, there seem to be at least 6 and possibly far more orders involved, with two types of collection — perhaps one pertaining to bulk 702-style collection (most of the intercepts happened under Protect America Act) and the other to the use of Section 215.

Then, as part of a discussion about the minimization requirements tied to the application(s) involved, the government revealed 8 different FISC judges signed off on orders pertaining to the collection.

In order to fulfill the statutory requirements discussed above, the Attorney General has adopted standard minimization procedures for FISC-authorized electronic surveilance and physical search that are on file with the FISC and that are incorporated by reference into every relevant FISA application that is submitted to the FISC. As a result, the eight FISC judges who issued the orders authorizing the FISA collections at issue in this case found that the applicable standard minimization procedures met FISA’s statutory requirements. The FISC orders in the dockets at issue directed the Governent to follow the approved minimization procedures in conducting the FISA collection. [my emphasis]

But it appears this surveillance involved even more than 8 orders. In a section claiming that this surveillance is not complex, the government cited 11 sealed exhibits that include the dockets at issue.

There is nothing extraordinary about this case that would prompt the Court to be the first to order the disclosure of highly sensitive and classified FISA materials. Disclosure is not necessar for the Court to determine the legality of the collection. Here, the FISA dockets – at Sealed Exhibits 16-26 – are well-organized and easily reviewable by the Court in camera and ex parte. The Index of Materials in the Government’s Sealed Exhibit and this memorandum serve as a road map through the issues presented for the Court’s in camera and ex parte determination. The FISA materials contain ample information from which the Court can make an accurate determination of the legality of the FISA collection; indeed, they are “relatively straightforward and not complex.” [my emphasis]

15 footnotes addressing probable cause approved by 8 judges over 11 different dockets.

This is not a simple check of the phone database. (I’ll explain what I think actually happened with the surveillance we know about in a future post.)

Now, some of this clearly invokes the iterative approval of programmatic orders as described by Eric Lichtblau and the WSJ. The May 2006 opinion authorizing the use of Section 215 to collect phone records for every American surely is one of the authorizations cited. That opinion may rely on the 2004 one that authorized the use of Pen Register/Trap and Trace to collect all the Internet metadata in the country. I suspect there may be several orders authorizing collection on al-Shabaab and/or Somalia generally — one that precedes Protect America Act, one that collects under PAA, and probably one that collects under FISA Amendments Act (the key conversations took place in late 2007 through much of 2008). I suspect, too, there’s an order governing collection of all signals off some switch. Then there may be traditional FISA warrants to collect on Moalin and his co-conspirator Mohamud Abdi Yusuf (the other co-conspirators appear not to have been targets of collection).

Still, that only gets you to 8 dockets, even assuming they used a new one for Somalia each time.

“Relatively straightforward … not complex,” the government said, in arguing the defendant shouldn’t get a look at this jerry-rigged system of surveillance. And we still can’t see the logic Judge Jeffrey Miller used to agree with them.

Djibouti’s Cable News

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Remember back in 2008, when a mysterious cluster of intercontinental cables were cut, knocking parts of the Middle East and South Asia (notably Egypt and Pakistan) off telecom networks?

Well, we’ve got another cluster of cut cables again, this time off of Djibouti, where one of our currently most critical bases is (we operate into Yemen and Somalia from there).

Undersea data cables linking East Africa to the Middle East and Europe were severed in two separate shipping accidents this month, causing telecommunications outages in at least nine countries and affecting millions of Internet and phone users, telecom executives and government officials said.

A ship dragging its anchor off the coast of the Kenyan port city of Mombasa severed a crucial Internet and phone link for the region Saturday, crippling electronic communications from Zimbabwe to Djibouti, according to a public-private consortium that owns the undersea cable.

The Indian Ocean fiber-optic cable, known as The East African Marine Systems, or Teams, is owned by a group of telecom companies and the Kenyan government. It was the fourth cable to be severed in the region since Feb. 17.

The Teams cable had been rerouting data from three other cables severed 10 days ago in the Red Sea between Djibouti and the Middle East. Together, the four fiber-optic cables channel thousands of gigabytes of information per second and form the backbone of East Africa’s telecom infrastructure.

There are, undoubtedly, a number of interesting conversations that would be transiting those telecom lines, not least those between AQAP and al-Shabaab. Not to mention the conversations within East Africa.

But those conversations won’t be traveling by most easily accessible telecommunication channels, at least not until those cables are restored.

And while we’re discussing Internet cables, note that these Djibouti cables, like those off of Egypt that were taken out in 2008, do not appear on State’s cable–classified just Secret–of critical infrastructure around the globe.

 

John Brennan Boasts that an Obama Decision Killed Anwar al-Awlaki

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Okay, I don’t know for a fact that the Senior Administration Official Jake Tapper rather irresponsibly gave anonymity to is John Brennan. After all, Ben Rhodes loves to boast anonymously too.

But given the Administration’s past caution about describing Obama’s role in the Awlaki assassination, I find it interesting that John Brennan this SAO is now claiming credit, in Obama’s name, for Awlaki’s killing, too.

The president emphasized the internationality of the NATO effort, and that’s part of what a senior White House official tells ABC News is the way Obama looks at foreign policy.

“What we’re demonstrating is you can move to a more targeted use of US force and be more successful in achieving our objectives,” a Senior White House official tells ABC News. This means a “smaller footprint, a more targeted use of force. It means less of a cost to taxpayers and troops, and also clearly results in our ability to take care of our interests.”

“With al Qaeda, we’re going after them in a very targeted way,” the Senior White House official says. “With Libya, we identified the unique capabilities the US has to go after Gadhafi,” and then NATO took the lead. The US role from that point on was to be the “glue” of the operation “keeping the coalition together,” providing “targeting, intelligence, refueling, and command and control.”

“Bin laden, Awlaki, Gadhafi have all met their demise in some fashion because of decisions the president made” utilizing this foreign policy view, the senior administration official said. [my emphasis]

Not surprisingly, John Brennan this SAO didn’t boast about the internationality of our effort in Somalia, where al-Shabaab made a grisly display of the bodies of 70 Burundian soldiers serving in AMISOM yesterday; al-Shabaab said they had ambushed the soldiers. John Brennan this SAO only boasts about the victories, you see. Nor did John Brennan this SAO claim credit for killing an American teenager the other day. We’re still pretending that was an accident.

But for the record, John Brennan this SAO can no longer control himself. He’s gonna claim credit not just for Osama bin Laden and Qaddafi–even claim credit for providing the command and control in what was purportedly a kinetic action–but also boast that Obama’s orders resulted in the death of an American citizen.

Famine in Somalia Ought to Lead Us to Rethink War on Terror

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In the US, most of the news on Somalia in recent days has focused on the war on terror. First, there was the arrest of alleged al-Shabaab figure Ahmed Abdulkadir Warsame. Then there was Jeremy Scahill’s important piece on the CIA’s black site in Somalia. And then the push to conflate al-Shabaab with Al Qaeda in the Arabian Peninsula with al Qaeda.

Somalia, you see, is all about the war on terror.

Except that it’s also the focal point of what the UN has now declared is a growing famine in the Horn of Africa.

Which really ought to make us question our priorities globally.

Check out the list of factors behind the famine.

The current crisis in southern Somalia is driven by a combination of factors:-

  • The total failure of the October‐December Deyr rains (secondary season) and the poor performance of the April‐June Gu rains (primary season) have resulted in crop failure, reduced labor demand, poor livestock body conditions, and excess animal mortality
  • Local cereal prices across the south are far above average, more than 2 to 3 times 2010 prices in some areas, and continue to rise. As a result, both livestock to cereal and wage to cereal terms of trade have deteriorated substantially. Across all livelihoods, poor households (~30 percent of the population) are unable to meet basic food needs and have limited ability to cope with these food deficits
  • During July, FSNAU conducted 17 representative nutrition and mortality surveys across southern Somalia; results are available for 11 surveys. The prevalence of acute malnutrition exceeds 20 percent in all areas and is higher than 38 percent (with severe acute malnutrition higher than 14 percent) in 9 of the 11 survey areas. The highest recorded levels of acute malnutrition are in Bay, Bakool, and Gedo (agropastoral) where the GAM prevalence exceeds 50 percent. The U.S. Centers for Disease Control (CDC) has verified these findings
  • Population‐wide death rates are above the famine threshold (2/10,000/day) in two areas (Bakool agropastoral, and all areas of Lower Shabelle) and are elevated across the south. Under‐5 death rates are higher than 4/10,000/day in all areas of the south where data is available, peaking at 13‐20/10,000/day in riverine and agropastoral areas of Lower Shabelle. Tens of thousands of people have died in the past three months.l

 

One of these issues–the 2-300% increase in cereal prices–can be tied at least partly to commodity speculation, the gambling over foodstuffs that helps companies like Goldman Sachs get richer.

And the part of that price increase that doesn’t come from commodity speculation–that is, the part of that price increase tied to real market issues–derives largely from catastrophic weather. The failed rains in East Africa are just one part of that. More important to the world market are the drought and fires in Russia and the floods in Australia. And while we can’t prove that the last year’s freakish weather is a very tangible sign that climate change has started to affect our day-to-day life, there’s little doubt that climate change is a big part of it.

Now, you can’t actually separate al-Shabaab’s presence in Somalia from its famine; the absence of a functioning government, after all, is what leads to famine. And al-Shabaab’s presence makes it more difficult for aid organizations to work.

But it’s unclear that launching drone strikes on Somalia is the best way we can help them. It’s probably not even within the top 10. And whatever our counterterrorism presence in Somalia, focusing on that–but not on the financial and behavioral things the developed world does that exacerbates this crisis–ignores some of the most important underlying causes.