Last night, Mitch McConnell dealt himself a humiliating defeat. As I correctly predicted a month before events played out, McConnell tried to create a panic that would permit him and Richard Burr to demand changes — including iMessage retention, among other things — to USA F-ReDux. That is, in fact, what Mitch attempted to do, as is evident from the authoritarian power grab Burr released around 8:30 last night (that is, technically after the Administration had already missed the FISA Court deadline to renew the dragnet).
Contrary to a lot of absolutely horrible reporting on Burr’s bill, it does not actually resemble USA F-ReDux.
As I laid out here, it would start by gutting ECPA, such that the FBI could resume using NSLs to do the bulky Internet collection that moved to Section 215 production in 2009.
It also vastly expanded the application of the call record function (which it very explicitly applied to electronic communications providers, meaning it would include all Internet production, though that is probably what USA F-ReDux does implicitly), such that it could be used against Americans for any counterterrorism or counterintelligence (which includes leaks and cybersecurity) function, and for foreigners (which would chain onto Americans) for any foreign intelligence purpose. The chaining function includes the same vague language from USA F-ReDux which, in the absence of the limiting language in the House Judiciary Committee bill report, probably lets the government chain on session identifying information (like location and cookies, but possibly even things like address books) to do pattern analysis on providers’ data. Plus, the bill might even permit the government to do this chaining in provider data, because it doesn’t define a key “permit access” term.
Burr’s bill applies EO 12333 minimization procedures (and notice), not the stronger Section 215 ones Congress mandated in 2006; while USA F-ReDux data will already be shared far more widely than it is now, this would ensure that no defendant ever gets to challenge this collection. It imposes a 3-year data retention mandate (which would be a significant new burden on both Verizon and Apple). It appears to flip the amicus provision on its head, such that if Verizon or Apple challenged retention or any other part of the program, the FISC could provide a lawyer for the tech companies and tell that lawyer to fight for retention. And in the piece de la resistance, the bill creates its very own Espionage Act imposing 10 year prison terms for anyone who reveals precisely what’s happening in this expanded querying function at providers.
It is, in short, the forced-deputization of the nation’s communications providers to conduct EO 12333 spying on Americans within America.
Had Mitch had his way, after both USA F-ReDux and his 2-month straight reauthorization failed to get cloture, he would have asked for a week extension, during which the House would have been forced to come back to work and accept — under threat of “going dark” — some of the things demanded in Burr’s bill.
It didn’t work out.
But as it was, USA F-ReDux had far more support than the short-term reauthorization. Both McConnell and Rand Paul voted against both, for very different reasons. The difference in the vote results, however, was that Joe Donnelly (D), Jeff Flake (R), Ron Johnson (R), James Lankford (R), Bill Nelson (D), Tim Scott (R), and Dan Sullivan (R) voted yes to both. McConnell’s preferred option didn’t even get a majority of the vote, because he lost a chunk of his members.
Then McConnell played the hand he believed would give himself and Burr leverage. The plan — as I stated — was to get a very short term reauthorization passed and in that period force through changes with the House (never mind that permitting that to happen might have cost Boehner his Speakership, that’s what McConnell and Burr had in mind).
First, McConnell asked for unanimous consent to pass an extension to June 8. (h/t joanneleon for making the clip) But Paul, reminding that this country’s founders opposed General Warrants and demanding 2 majority vote amendments, objected. McConnell then asked for a June 5 extension, to which Ron Wyden objected. McConnell asked for an extension to June 3. Martin Heinrich objected. McConnell asked for an extension to June 2. Paul objected.
McConnell’s bid failed. And he ultimately scheduled the Senate to return on Sunday afternoon, May 31.
By far the most likely outcome at this point is that enough Senators — likely candidates are Mark Kirk, Angus King, John McCain, Joni Ernst, or Susan Collins — flip their vote on USA F-ReDux, which will then be rushed to President Obama just hours before Section 215 (and with it, Lone Wolf and Roving Wiretaps) expires on June 1. But even that (because of when McConnell scheduled it) probably requires Paul to agree to an immediate vote.
But if not, it won’t be the immediate end of the world.
On this issue, too, the reporting has been horrible, even to almost universal misrepresentation of what Jim Comey said about the importance of expiring provisions — I’ve laid out what he really said and what it means here. Comey cares first and foremost about the other Section 215 uses, almost surely the bulky Internet collection that moved there in 2009. But those orders, because they’re tied to existing investigations (of presumably more focused subject than the standing counterterrorism investigation to justify the phone dragnet), they will be grand-fathered at least until whatever expiration date they have hits, if not longer. So FBI will be anxious to restore that authority (or move it back to NSLs as Burr’s bill would do), especially since unlike the phone dragnet, there aren’t other ways to get the data. But there’s some time left to do that.
Comey also said the Roving Wiretap is critical. I’m guessing that’s because they use it to target things like Tor relays. But if that’s the primary secretly redefined function, they likely have learned enough about the Tor relays they’re parked on to get individual warrants. And here, too, the FBI likely won’t have to detask until expiration days on these FISA orders come due.
As for the phone dragnet and the Lone Wolf? Those are less urgent, according to Comey.
Now, that might help the Republicans who want to jam through some of Burr’s demands, since most moderate reformers assume the phone dragnet is the most important function that expires. Except that McConnell and others have spent so long pretending that this is about a phone dragnet that in truth doesn’t really work, that skittish Republicans are likely to want to appear to do all they can to keep the phone dragnet afloat.
As I said, the most likely outcome is that a number of people flip their vote and help pass USA F-ReDux.
But as with last night’s “debate,” no one really knows for sure.
I love Global Threat Hearings and curse you Richard Burr for holding the Senate Intelligence Committee’s hearing in secret.
At least John McCain had the courage to invite James Clapper for what might have been (but weren’t) hard questions in public in front of Senate Armed Services Committee Thursday.
Unpredictable instability is the new normal.The year 2014 saw the highest rate of political instability since 1992. The most deaths as a result of state-sponsored mass killings since the early 1990s. And the highest number of refugees and internally displaced persons (or IDPs) since World War II. Roughly half of the world’s currently stable countries are at some risk of instability over the next two years.
It’s a damning catalog. All the more so given that the US has been the world’s unquestioned hegemon since that period in the early 1990s when everything has been getting worse, since that period when the first President Bush promised a thousand points of light.
And while the US can’t be held responsible for all the instability in the world right now, it owns a lot of it: serial invasions in the Middle East and the coddling of Israel account for many of the refugees (though there’s no telling what would have happened with the hundred thousand killed and millions of refugees in Syria had the second President Bush not invaded Iraq, had he taken Bashar al-Assad up on an offer to partner against al Qaeda, had we managed the aftermath of the Arab Spring differently).
US-backed neoliberalism and austerity — and the underlying bank crisis that provided the excuse for it — has contributed to instability elsewhere, and probably underlies those countries that Clapper thinks might grow unstable in the next year.
We’re already seeing instability arising from climate change; the US owns some of the blame for that, and more for squandering its leadership role on foreign adventures rather than pushing a solution to that more urgent problem (Clapper, by the way, thinks climate change is a problem but unlike Obama doesn’t consider it the most serious one).
There are, obviously, a lot of other things going on. Clapper talked admiringly of China’s modernization of its military, driven by domestically developed programs, an obvious development when a country becomes the manufacturing powerhouse of the world. But China’s growing influence comes largely in the wake of, and in part because of, stupid choices the US has made.
There was, predictably, a lot of discussion about cyberthreats, even featuring Senate Intelligence Committee member Angus King arguing we need an offensive threat (we’ve got one — and have been launching pre-emptive strikes for 9 years now — as he would know if he paid attention to briefings or read the Intercept or the New York Times) to deter others from attacking us with cyberweapons.
Almost everyone at the hearing wanted to talk about Iran, without realizing that a peace deal with it would finally take a step towards more stability (until our allies the Saudis start getting belligerent as a result).
Still, even in spite of the fact that Clapper started with this inventory of instability, there seemed zero awareness of what a damning indictment that is for the world’s hegemon. Before we address all these other problems, shouldn’t we focus some analysis on why American hegemony went so badly wrong?
In what may serve as the public transition moment from Dianne Feinstein to Richard Burr (in part because Saxby Chambliss was absent), the Senate Intelligence Committee considered the nomination of Nick Rasmussen to head National Counterterrorism Center yesterday. He’s long served as the Deputy anyway, so he’s very well qualified, and the hearing was one of those love affairs you often see (though in this case I’m not aware of any big flags that the Committee might soon regret, as I predicted during John Brennan’s confirmation).
That said, I highly recommend Rasmussen’s Additional Prehearing Answers. Along with a really accessible (and welcome) description of many of NCTC’s functions, it includes (question 17) what appears to be his description of his role in developing the Drone Rule Book.
I wanted to also point to his discussion of the Directorate of Strategic Operational Planning (see questions 11 and 13). In 2012, DSOP was described as an important part of CT, but one Congress had largely neglected:
The Directorate of Strategic Operational Planning is supposed to be the mechanism for government-wide strategic operational planning and is half of NCTC’s mission, yet oversight is negligible. The seeming importance of DSOP has been highlighted in testimony by NCTC leadership, yet relatively unchallenged by Congress in hearings. In his statement to the Senate Select Committee on Intelligence as nominee for the Director of the NCTC, Adm. John Scott Redd called strategic operational planning “substantial, daunting and, I believe, very necessary.”[xii] Through the years, SOP has been called “truly revolutionary”[xiii] as the government has “come together in ways…never seen during…decades of government service.”[xiv] Despite caveats of strategic operational planning as “new to the US government,” [xv]SOP was called “foundational”[xvi] to counterterrorism efforts. Succeeding NCTC Director Michael Leiter said he was “more convinced than ever that success against terrorism will only come through such coordinated and synchronized efforts—to include the full weight of our diplomatic, financial, military, intelligence, homeland security and law enforcement activities.” [xvii] For such weighty importance, however, Congress hardly paid attention to DSOP.
Since then, however, it has become clear that one reason Congress hadn’t been paying attention is because the Executive wasn’t sharing details on it. In John Brennan’s prehearing questions, for example, the Committee hammered him a bit for withholding information.
Question 23: Please describe any involvement you have had in the Administration’s responses to the Committee’s requests for the strategies produced by the Directorate of Strategic Operational Planning, including whether you personally made any decision or recommendation regarding the Committee’s access to such strategies and, if so, providing the specific legal basis for your decision or recommendation.
A: In my capacity as Assistant to the President for Homeland Security and Counterterrorism, I have conferred with NCTC Director Matt Olsen on how to determine what elements of those NSS-led counterterrorism implementation plans that NCTC’s Directorate of Strategic Operational Planning (DSOP) has contributed to should be shared with the Committee. DSOP supports the NSS in helping to draft and coordinate some–not all–CT implementation plans and to compile related department and agency activities. These documents often contain policy-focused information from the NSS that is deliberative in nature; include information on non-intelligence-related activities that departments and agencies may be pursuing; and, in some cases, access to documents is limited by the NSS due to security sensitivities around the CT planning/implementation effort. I have worked with Director Olsen to share with the SSCI those plans or parts of plan that are not deliberative in nature and that involve intelligence activities. I have supported NCTC’s decision to respond to SSCI requests for briefings/information on the non-deliberative, intelligence-related aspects of particular plans and would support SSCI requests for briefings/information from other parts of the intelligence community, including CIA, as it relates to particularly plans.
The question on this topic addressed to Rasmussen is more circumspect.
Question 13: Historically, the Committee has had difficulty in obtaining the strategies that are produced by NCTC’s Directorate of Strategic Operational Planning. If confirmed, will you abide by the current accommodation that has been reached between the Committee and NCTC?
A: Yes. I am familiar with the accommodation that has been reached with the Committee with respect to the strategies that DSOP produces and, if confirmed,, I would continue to abide by it.
The response doesn’t really reveal whether the SSCI is actually learning what kind of schemes get considered during this strategic response to terrorism; it sure seems to be limited.
As it happens, two of the maybe 12 questions addressed to Rasmussen addressed the question as well. Rising Chair Burr challenged Rasmussen what he — in this DSOP role — would do strategically to combat terrorism (I liked his emphasis that DSOP, not NSC, is actually the agency in charge).
Burr: What is NCTC as the Executive agent for our nation’s strategy gonna do about [the broad threat of terrorism]?
Rasmussen: [pauses] The role that NCTC plays in carrying out Strategic Operational Planning in support of the government is one that has us tied very closely to the National Security Council staff and the policy development process for pursuing strategies against–on counterterrorism. We work with the National Security Council staff to develop whole of government plans to address our counterterrorism concerns in each of the theaters around the world. Not just one single theater, for ex–as you would well expect, Senator. The efforts to develop strategies against ISIL is at a particularly energetic pace right now. But our Strategic Operational Planning capability is also brought to bear on the whole array of CT challenges we face, in Africa, in Asia, in South Asia, every region you can think of. And so I would consider our job at NCTC to make sure that we aren’t leaving any holes in that fabric of strategy as we look out across all of the different CT challenges that we face, while at the same time prioritizing where effort needs to be most energetically directed. And that of course right now would argue for a lot of effort to be directed at the challenges we’re facing in Syria and Iraq.
And Angus King askedwhy we don’t develop something akin to the Kennan containment strategy used against the Soviet Union.
Rasmussen: The strategies that we try to help produce at NCTC in support of the National Security Council staff — in my answer to Chairman Feinstein [sic] are typically whole of government strategies, not just relying on our intelligence capabilities or our military capabilities but also trying to take advantage of the abilities, the resources we have across the government to try to produce the conditions that would over time eat away at support for terrorism in some of these conflict locations, um, overseas. At the same time, we all go into it understanding well that those effort will ultimately take years if not decades to play out for us to reap the benefits of those kinds of strategies, and in the meantime, you’re left to manage a very difficult threat environment.
Note that, whatever Rasmussen’s commitment to the DSOP “accommodation” to share information with SSCI, he still seems to defer to NSC on this topic, even though the law says that NCTC should take the lead.
It may well be that the White House (properly, to a point) believes that strategic planning against terrorism is an inherent Executive function. But it doesn’t seem like the White House should be hiding all this — to whatever extent it is — from its Congressional overseers, particularly given how easily the fight against terrorism can turn into support for terrorism.
It is fairly big — and welcome — news that, along with Angus King, Susan Collins will support the release of the Senate Torture Report. Collins’ vote will give the report the patina of bipartisanship, which will therefore increase its legitimacy among the chattering classes.
Just as welcome, however, is the language the Maine Senators use to describe what CIA did.
We remain strongly opposed to the use of torture, believing that it is fundamentally contrary to American values. While we have some concerns about the process for developing the report, its findings lead us to conclude that some detainees were subjected to techniques that constituted torture. This inhumane and brutal treatment never should have occurred. Further, the report raises serious concerns about the CIA’s management of this program.
Our vote to declassify this report does not signal our full endorsement of all of its conclusions or its methodology. The report has some intrinsic limitations because it did not involve direct interviews of CIA officials, contract personnel, or other Executive branch personnel. It also, unfortunately, did not include the participation of the staff of Republican Committee members. We do, however, believe in transparency and believe that the Executive Summary, and Additional and Dissenting Views, and the CIA’s rebuttal should be made public with appropriate redactions so the American public can reach their own conclusions about the conduct of this program.
Torture is wrong, and we must make sure that the misconduct and the grave errors made in the CIA’s detention and interrogation program never happen again. [my emphasis]
Two of the last weathervanes of right-centrism have deemed it acceptable to use the word “torture” to describe what the CIA did, a word most of the nation’s press still refuses to use for fear it will affect their claim to objectivity.
If Susan Collins can use the word torture, then can the other institutions that aspire to be such measures of centrism also do so?
Over the last few days, I’ve tracked the accusations and counter-accusations between CIA and the Senate Intelligence Committee.
A number of people have asked why, as a way to end this issue, the Committee doesn’t just declassify the entire SSCI Report.
But it’s not so simple as that.
It’s not clear there are the votes to release the Report.
Recall that when the Committee approved the Report back in 2012, the vote was largely split on party lines, with the exception of John McCain, who voted as an Ex Officio member (as Ranking Member of Senate Armed Services Committee) to release the Report. McCain is no longer SASC Ranking member: Jim Inhofe is, and I’m betting he’s not going to vote to release the Report.
There are few other changes in the Committee proper since the report was originally finalized. Martin Heinrich and Angus King have replaced Bill Nelson and Kent Conrad, and Susan Collins and Tom Coburn have replaced Olympia Snowe and Roy Blunt.
And while Heinrich has quickly become one of the better overseers on the Committee, including on torture, it’s not actually clear whether King would vote to release the report. Collins, too, has been reported to be undecided (and her vote would be critical to making this a “bipartisan vote,” now that McCain doesn’t have a vote). There are even hints that Mark Warner wouldn’t vote to support its declassification (though he supported its finalization).
And importantly, King and Collins have been reported to be undecided after the time when, in January, the Committee at least began to suspect they’d been surveilled.
There are, obviously, two different issues (though Saxby Chambliss, at least, sides with CIA on both counts). But there’s been little outcry from the swing votes on releasing the underlying report itself.
Update: h/t to JK for the link to the Collins/King report I was not finding.
In yesterday’s Threat Hearing, James Clapper and John Brennan provided so much news early, I suspect many didn’t stick around to hear the question Angus King posed to Jim Comey. He asked about the significance of the phone dragnet.
SEN. KING: Director Comey, do you have views on the significance of 215? You understand this is not easy for this committee. The public is very skeptical and in order for us to continue to maintain it, we have to be convinced that it is in fact effective and not just something that the intelligence community thinks is something nice to have in their toolkit.
DIR. COMEY: Yeah, I totally understand people’s concerns and questions about them. They’re reasonable questions. I believe it’s a useful tool. For the FBI, its primary value is agility. That is, it allows us to do in minutes what would otherwise take us in hours. And I’ll explain what I mean by that. If a terrorist is identified in the United States or something blows up in the United States, we want to understand, OK, is there a network that we’re facing here?
And we take any telephone numbers connected to that terrorist, to that attack. And what I would do in the absence of 215 is use the legal process that we use every day, either grand jury subpoenas or national security letters, and by subpoenaing each of the telephone companies I would assemble a picture of whether there’s a network connected to that terrorist. That would take hours.
What this tool allows us to do is do that in minutes. Now, in most circumstances, the difference between hours and minutes isn’t going to be material except when it matters most. And so it’s a useful tool to me because of the agility it offers. [my emphasis]
Comey prefaced his entire answer by making it clear he was only addressing the way the FBI uses the dragnet. That suggests he was bracketing off his answer from possible other uses, notably by NSA.
If the FBI Director brackets off such an answer after 7 months of NSA pointing to FBI’s efforts to thwart plots, to suggest his Agency’s use may not be the most important use of the dragnet, can we stop talking about plots thwarted and get an explanation what role the dragnet really plays?
That said, it’s worth comparing Comey’s answer to what the PCLOB said about FBI’s use of the dragnet. Because in the 5 cases the government cited claiming the dragnet found particular leads (the exception is Basaaly Moalin, which PCLOB said might have been found via active investigations FBI already had going), FBI found the same leads via other means (and the implication for some of these is that FBI found those other leads first).
Operation WiFi: Those numbers simply mirrored information about telephone connections that the FBI developed independently using other authorities.
David Headley: Those numbers, however, only corroborated data about telephone calls that the FBI obtained independently through other authorities.
3 other cases: But in all three cases, that information simply mirrored or corroborated intelligence that the FBI obtained independently through other means.
That is, usually the dragnet isn’t even a matter of agility. It’s a matter of redundancy.
It seems Jim Comey, sharing the dais with several colleagues who’ve already torched their credibility, had no interest in pretending the dragnet is primarily about the investigations of his Agency.
Perhaps the rest of the us can dispense with that myth too now?
The Obama Administration is getting more and more like that crazy old man in the park talking to an imaginary friend. Only it works in reverse. It sends out real people to engage in hours of conversations with other real people about a real topic and then pretends both were pretend.
It sends John Brennan to the Senate for 3.5 hours where he has conversations about drones over and over with people, never once claiming not to understand what they mean when they discuss drones and/or targeted killing.
He responds to Ron Wyden’s questions about how to be more transparent on drones.
WYDEN: So it was encouraging last night when the president called and indicated that, effective immediately, he would release the documents necessary for Senators to understand the full legal analysis of the president’s authority to conduct the targeted killing of an American.
Let me now move to the public side of oversight, making sure that the public’s right to know is respected. One part of oversight is Congressional oversight and our doing our work. The other is making sure that the American people are brought into these debates, just like James Madison said, this is what you need to preserve a republic.
And I want to start with the drone issue. In a speech last year, the president instructed you to be more open with the public about the use of drones to conduct targeted killings of Al Qaeda members.
So my question is, what should be done next to ensure that public conversation about drones, so that the American people are brought into this debate and have a full understanding of what rules the government’s going to observe when it conducts targeted killings?
BRENNAN: Well, I think this hearing is one of the things that can be done because I think this type of discourse between the executive and the legislative branch is critically important.
I believe that there need to be continued speeches that are going to be given by the executive branch to explain our counterterrorism programs. I think there is a misimpression on the part of some of American people who believe that we take strikes to punish terrorists for past transgressions. Nothing could be further from the truth.
We only take such actions as a last resort to save lives when there’s no other alternative to taking an action that’s going to mitigate that threat.
WYDEN: One other point with respect to (inaudible) public oversight. If the executive branch makes a mistake and kills the wrong person or a group of the wrong people, how should the government acknowledge that?
BRENNAN: I believe we need to acknowledge that. Continue reading
I’m going to have a series of posts on the proposed FISA Drone (and/or Targeted Killing) Court, starting with a description of why I think there’s movement to do this now.
There are, as I see it, three different motivations among those now backing a FISA Drone (and/or Targeted Killing) Court.
First, there’s Dianne Feinstein. Now that the white paper has been released — and the actual OLC memos to the other members of her committee — it has been made clear that the program she has been assuring Americans, based on her Gang of Four review, is lawful is not the slam dunk she made it out to be. And while Mike Rogers’ constituents may not object to his continued reassurances that it is okay for the President to kill an American based on his sole authority (though they may; we shall see), DiFi’s are likely to. (Saxby Chambliss, of course, is not running for re-election; Dutch Ruppersberger has been rather quiet in the last few days). So to the degree that DiFi takes a lead on this issue, it is an effort to put a palatable spin on something she has been spinning as legal for years.
If a FISA Drone (and/or Targeted Killing) Court is necessary and justified, it should have been in 2009, when she took over the Chair at Senate Intelligence Committee (or at the very least, by January 2010, when it became clear the Obama Administration was targeted Anwar al-Awlaki). But somehow, DiFi is only backing the idea now that her poor judgment in letting the killings continue without oversight is being exposed. To some degree, I’d put Patrick Leahy (who doesn’t want to be tough with Obama) and Chuck Grassley in this position, as well.
Then there’s John Brennan, who in response to Angus King’s suggestion of a FISA Drone (and/or Targeted Killing) Court said,
And that’s why I do think it’s worthy of discussion. And the point particularly about due process really needs to be taken into account because there’s not a different standard as far as if a U.S. citizen joins Al Qaida, you know, in terms of the intelligence base or whatever. But American citizens by definition are due much greater due process than anybody else by dint of their citizenship.
I think this is a very worthwhile discussion. I look forward to talking to the committee and others about it. What’s that appropriate balance between executive, legislative and judicial branch responsibilities in this area?
I think Brennan’s motivation is far better summed up in the response he gave Jello Jay Rockefeller, who basically used his second round question to deliver a very sloppy blow job to Brennan. In response, Brennan got firey.
I want every member of this committee to be an ardent advocate, proponent, and defender of the men and women of the Central Intelligence Agency.
And I see it as my obligation to represent them to you on their behalf, so that when times get tough and when people are going to be criticizing and complaining about the CIA, I have all of you to say you knew about what the CIA was doing, you supported it, and you will defend it.
My impression is that, contrary to the moral rectitude myth, Brennan is a pretty amoral guy. It’s not right and wrong that motivates him; it’s allegiance, and as CIA Director (and, probably, even now) his allegiance is going to be to the institution.
And as he said in no uncertain terms to Jello Jay, he believes it is the role of the Intelligence Committee to support and defend the illegal actions the CIA does.
Brennan likely also knows that the easiest way to give the Committee cover for ardently defending what is, at its core, indefensible, and the only way to do so without affecting the flexibility accorded to the Executive Branch, is to let them pawn off the moral questions to a court operating in secret. Continue reading
Those defending the language on imminence in the white paper released last week are right on one count: it is not new language. Below the fold, I’ve excerpted the language on imminence from three different formulations on imminence –Brennan’s speech at Harvard, the white paper, and Holder’s Northwestern speech — to show the consistency (and also, with John Brennan’s September 16, 2011 speech, exactly two weeks to Anwar al-Awlaki notice that this was now US policy).
All three point to al Qaeda’s non-combatant structure to describe the need for a more flexible concept of imminence. Both the white paper and Holder’s speech discuss a “window of opportunity,” which I find to be one of the more provocative aspects of this definition. And while Holder’s speech appears to have been edited to make it pretty, it is almost precisely the ideas presented in the white paper on imminence. There is clear continuity between Brennan’s 2011 speech, the white paper, and Holder’s speech.
Which is why I’m interested in the language Brennan used last week when responding to Angus King’s proposal for a FISA court for drone (and what should be targeted killing generally).
It’s telling not because it introduces wholesale new ideas. But because it makes clear what is implicit — but unstated — in the three other formulations.
A person who poses an imminent threat does not have to have committed any crime in the past. Imminence is exclusively about the future possibility of violence, not necessarily past involvement in it.
BRENNAN: Senator, I think it’s certainly worth of discussion. Our tradition — our judicial tradition is that a court of law is used to determine one’s guilt or innocence for past actions, which is very different from the decisions that are made on the battlefield, as well as actions that are taken against terrorists. Because none of those actions are to determine past guilt for those actions that they took. The decisions that are made are to take action so that we prevent a future action, so we protect American lives. That is an inherently executive branch function to determine, and the commander in chief and the chief executive has the responsibility to protect the welfare, well being of American citizens. So the concept I understand and we have wrestled with this in terms of whether there can be a FISA-like court, whatever — a FISA- like court is to determine exactly whether or not there should be a warrant for, you know, certain types of activities. You know… KING: It’s analogous to going to a court for a warrant — probable cause…
BRENNAN: Right, exactly. But the actions that we take on the counterterrorism front, again, are to take actions against individuals where we believe that the intelligence base is so strong and the nature of the threat is so grave and serious, as well as imminent, that we have no recourse except to take this action that may involve a lethal strike.
The white paper actually has the most language about past deeds, but with the language about membership plus past involvement in activities that pose an imminent threat that I keep pointing to, it doesn’t actually require past deeds either. It does, however, at least imply that an American must be involved in past crimes to be deemed an imminent threat.
John Brennan’s language last week does not.
And that’s precisely the explanation he gave for why the courts aren’t the appropriate place to measure imminent threat: because they only get involved when people have already committed crimes. This new definition of imminence envisions declaring people to be imminent threats even before they’ve committed a crime.
One note about this. Brennan ties all this to the President’s responsibility “to protect the welfare, well being of American citizens.” The biggest threat to the well being of the American citizens is not terrorists at this point, not by a long shot. It’s the big banksters who serially collapse our economy and require bailouts (and, it should be said, are often funding terrorists and drug cartels along the way because it is profitable). Does this definition of “imminent” threat extend to the banksters who are a much more systematic front than the rump of al Qaeda is at this point?
In any case, be warned. If the plan for a FISA Drone (and Targeted Killing) Court moves forward, it will not be measuring guilt — what courts were established to measure. But instead, potential future guilt.