Rand Paul and I Told You So

At least according to this snippet from WaPo, Jane Harman reported out after discussing war over “d’anjou pear salad and Chilean sea bass” that the President thinks he can rely on both his epistolary War Power Resolution letters and … the Iraq AUMF to wage war against ISIS. (h/t Lemon Slayer)

The president “thinks he has the legal authority he needs” to increase U.S. military engagement in both Iraq and Syria, said Jane Harman, president of the Woodrow Wilson International Center for Scholars, who attended the dinner with Obama. The White House’s belief that it has authority to act is based on the reports Obama has filed with Congress under the War Powers Act and the earlier congressional authorization for the war in Iraq. [my emphasis]

Back in 2011, Rand Paul had the batshit crazy idea that, since we were ending the war in Iraq, we ought to repeal the AUMF that authorized the war. You never know, after all, when someone might pull that cobwebby AUMF out of a drawer and start using it again.

Not many of Paul’s colleagues agreed with him about this basic matter of AUMF hygiene.

From time to time over the last several years, I’ve reminded people about that dusty old AUMF lying around like Chekhov’s gun.

In 2012, when Obama officially told Congress the, “responsible withdrawal … in accordance with the 2008 Agreement Between the United States of America and the Republic of Iraq on the Withdrawal of United States Forces from Iraq and the Organization of Their Activities during Their Temporary Presence in Iraq,” had been completed, I suggested maybe that marked a good time to repeal that AUMF.

When, last year, Obama said — referring exclusively to the 2001 Afghanistan AUMF —

–mindful of James Madison’s warning that “No nation could preserve its freedom in the midst of continual warfare.”


I intend to engage Congress … in efforts to refine, and ultimately repeal, the AUMF’s mandate. 

I suggested maybe we could do a twofer and actually repeal both the Afghan and Iraq AUMFs at once.

Earlier this year, people started catching on, and Caitlin Hayden even claimed to Yahoo that they wanted to repeal the Iraq War.

It looked, for a brief period, like Obama might prove Paul and I wrong.


Chekhov knew a fair bit about narrative. And you just can’t leave a loaded AUMF lying around before some tragic person picks it up and shoots it.

Should Alfreda Bikowsky’s Lawyer Really Be in Charge of Declassifying the Torture Report?

It took McClatchy 21 paragraphs to illustrate why it was such a big conflict of interest for Director of National Intelligence General Counsel to lead negotiations over how much of the torture report would be declassified, as he currently is doing.

According to reports in The Washington Post, Litt previously represented a CIA analyst, Alfreda Frances Bikowsky, who played a central role in the bungled rendition of Khaled el-Masri. El-Masri, who was revealed to be innocent, claimed to have been tortured by the agency.

As the rest of the article explains, Litt reviewed his role brokering the declassification process with ODNI’s Ethics officer — who is his subordinate — and she approved his participation.

But it still probably conflicts with Litt’s promises, made during his confirmation process, to recuse himself from matters affecting his former clients. And given the centrality of CIA’s absurd demand to hide even the pseudonyms making clear that the same woman who got El-Masri tortured also went out of her way to watch Khalid Sheikh Mohammed be tortured (among a fairly substantial list of other things — here’s a reminder of details on how she got promoted after the El-Masri debacle), it is a problem that Litt is brokering this process.

Don’t worry, National Security Council spokesperson Caitlin Hayden insists (fresh off insisting it’s a good thing that the White House cybersecurity czar doesn’t have a technical background), Bob Litt — the same guy hiding known dates in Internet dragnet documents, almost certainly to avoid legal repercussions — is one of the administration’s strongest proponents of what it calls “transparency.”™

“Bob Litt is one of the administration’s strongest proponents of transparency in intelligence, consistent with our national security, and he and we are fully committed to ensuring there is no conflict of interest as the administration continues to work to see the results of the committee’s review made public,” Hayden said in a statement.

Calling Bob Litt a proponent of “transparency”™ is itself cause for concern.

The Navy SEALs Bring You Izahgneb! Saving Libya’s Crude for Marathon Oil!

I discovered NSC spokesperosn Caitlin Hayden has a (little used) twitter feed today when she tweeted this article.

The article not only explains why Navy SEALs were ordered to take over a ship absconding with Libyan oil.

Oil is Libya’s lifeblood. The economy entirely depends on it; turn off the taps and everything grinds to a halt. Libyans quite rightly regard the oil as their common property, a national resource to be shared for the good of all. The vast majority of Libyans hold jobs that are financed, directly or indirectly, by the sale of oil.

Given this history, it makes perfect sense that the control of oil should rest with the central government. Take that away, and the government doesn’t just lose control over its most important source of finance — the very notion of central authority will also be compromised, perhaps fatally. And in present-day Libya, the fate of democracy is closely linked with the viability of government itself.

This is why both Libya’s government and the international community have viewed the federalists’ threats to sell off the oil under their control as a dangerous challenge to the stability of the government in Tripoli. Last week, Jathran’s forces finally made good on that threat: they used one of the oil terminals under their control to fill up a North Korean-flagged tanker called the Morning Glory.


Had the story ended there, the result would have been an unmitigated disaster for the government. Tripoli’s impotence and dysfunction would have graphically exposed for all the world to see. The floodgates for the wholesale looting of Libya’s oil resources would have opened. The forces of anarchy would have cheered. (It’s worth noting that a prime minister has already lost his job for even allowing the tanker to load in the first place.) But that’s when Washington stepped in.

Not long after the tanker arrived in international waters, a U.S. Navy guided missile cruiser, the USS Roosevelt (pictured above), brought the SEALs into range. (By the way, Obama authorized the move at 10 PM on Sunday night Washington time, as the world was preparing for the Crimean referendum.) They boarded the tanker without a shot fired and took it over.

But it bitches that no one recognized the successful operation as a “master stroke.”

President Obama pulled off a master stroke this week. He deployed U.S. military force in support of an infant democracy that desperately needs our help. The result was a resounding success, a vivid illustration of how the United States can put its unchallenged power to positive ends.


The reaction in Washington: a giant yawn. Deafening silence from Sens. John McCain and Lindsey Graham, who are always quick to demand U.S. military action in situations where it will usually make things worse. Fox News barely noticed. Nor was there a word of praise from the president’s liberal allies on Capitol Hill. Even the New York Times ran a perfunctory report.

Now, frankly, I did notice. I shared the puzzlement I saw a few others express as to the legal basis for our SEALs policing stolen property. I was also rather curious about the legal status of the operation, which presumably relied on secrecy and also clearly (given the detention in Cyprus of suspected intended buyers) involved close cooperation with the intelligence community. (The Washington Times called it a “covert operation,” though they may not have been using the term in its technical sense.) And then shortly after, our government started crowing about its involvement, including this DOD statement noting that “The boarding operation [was] approved by President Obama.” And now, with this rare tweet from Hayden, official approval of this article that is thick with propaganda.

Behold the anti-Benghazi, ladies and gentlemen, a successful operation in which our brave Navy SEALs return stolen property to poor Libya, saving the unity of the country and a fledgling democracy.

Mind you, as I was looking for that DOD statement, I noted a slight change in the description of the operation.

A March 11 statement from Libya’s National Oil Company stated, “the crude oil loaded upon the vessel “Morning Glory”, which is now at Essider Terminal in Libya, is the property of NOC and its Partners.” A March 9 State Department statement said, “The oil belongs to the Libyan National Oil Company and its joint venture partners. These partners include U.S. companies in the Waha consortium.”

That March 17 statement, however, described, “The Morning Glory is carrying a cargo of oil owned by the Libyan government National Oil Company.” And a March 19 one not only added, “U.S. forces took control of the tanker in international waters at the request of the governments of Libya and Cyprus,” but repeated that “The Morning Glory is carrying a cargo of oil owned by the Libyan government National Oil Company.” Those partners — which both NOC and State were happy to reference before the SEALs valiantly rescued the crude — seem to have disappeared from the Administration’s messaging.

ConocoPhillips owns a 16.3% stake in the Waha Concession, and an even bigger stake in some less productive ventures. Marathon Oil also owns a 16.3% stake (and Hess a 8.2% stake).

So while Caitlin Hayden would like you to believe this was a heroic op that saved the Libyan democracy from disintegration — I’m sure the SEALs acquitted themselves against 3 armed Libyans quite courageously and it may well help the Libyan state — it also happens to be an operation that served to rescue around $8 million of crude owned by American companies.

Two more details. As Guardian pointed out in its initial coverage of the rebels’ seizure of the oil, reliable sources of oil to Europe are increasingly important as the US tries to face down Vladimir Putin on Europe’s East.

Just as importantly, Marathon has been trying to find a way to get out of its stake in Libya.

Libya has blocked efforts by U.S. company Marathon Oil to sell its stake in one of the country’s top oil ventures by moving to preempt a deal, sources said, highlighting the struggle investors face in cutting exposure to Libya’s unrest.

Two years of turmoil since the Arab Spring and tough contract terms have prompted oil firms to reassess their role in Libya, and U.S. companies appear keenest to leave as they lack the proximity and infrastructure links that make North Africa attractive to their European peers.

Sources told Reuters in July that Marathon was considering the sale of its stake in Libya’s Waha Oil Company, which has a maximum output capacity of 350,000 barrels per day (bpd) and produces the OPEC member’s main light sweet crude grade.

In addition to the hit this would have on Marathon’s bottom line (the Libyans have first bid here and informed Marathon they’d pay less than market rates), it would open up yet another new front for China to invest in big reserves. The last thing the US wants in China extending its influence in Africa.

Again, I’m not questioning the courage or excellence of the SEALs, nor am I diminishing the importance of oil to propping up the Libyan state right now. But it seems the push to turn this into a heroic narrative also serves to obscure the degree to which this is also about using our military to ensure the viability of this exploration so as to ensure US oil companies continue to exert influence — and keep pumping oil — in Libya.

Yes, this was not the catastrophe that Benghazi was (which has been magnified in any case). But that doesn’t mitigate that the overthrow of Qaddafi risks spiraling even further out of control into yet another colossal catastrophe of American (and European) intervention.

Yesterday’s “Symbolic” Gesture Is Today’s Long-Held Political Stance

Yesterday morning, the White House explained that it hadn’t prioritized legally ending the Iraq War because doing so would be just a symbolic act.

But “the Iraq AUMF is no longer used for any U.S. government activities and we therefore would fully support any move to repeal it,” a senior administration official told Yahoo News Tuesday. “However, we have not prioritized proactively seeking to repeal it, because the effect would be entirely symbolic and we have many more pressing priorities to take up with Congress.” [my emphasis]

Later in they day, Robert Gates’ memoir came out, with the claim that he witnessed a conversation between Hillary and Obama in which the “President conceded vaguely that opposition to the Iraq surge had been political.”

Which elicited this defense, from Jay Carney, of Obama’s consistent opposition to the Iraq War.

What I don’t understand about that is, anybody who has covered Barack Obama, going all the way back to his race for the Senate, knows that he was opposed to the Iraq War. That was his view running for the Senate, it was his view as a Senator, it was his view as candidate for the Presidency, so it would be entirely inconsistent for him not to hold the position that he held with regards to the surge.

Carney’s right: Obama has claimed opposition to the Iraq War since 2002.

So why would legally ending it be no more than symbolic?

Proposal for the New Year: Training Wheels for Peace

As you may have been recently reminded by my Twitter stream, I have been obsessing for years about the Iraq AUMF lying around, like Chekov’s gun waiting to be used, for years.

Which is why I’m rather chuffed that Yahoo News got Obama’s National Security Spokesperson on the record claiming that the President supports getting rid of that loaded gun, even if that “symbolic act” isn’t a priority.

“The Administration supports the repeal of the Iraq AUMF,” national security spokeswoman Caitlin Hayden told Yahoo News, referring to the Authorization for Use of Military Force.

Obama frequently cites the U.S. troop withdrawal from Iraq as one of his key foreign policy successes. He has repeatedly defended the pull-out, even as he pursues a strategy to leave only a residual force of maybe 8,000-10,000 troops in Afghanistan after 2014. His administration recently promised it would not put boots back on the ground in Iraq in response to the current bloody chaos that threatens its stability.

But leaving the Iraq military force authorization in place could probably come in handy if he, or a future president, wanted to send troops in.


But “the Iraq AUMF is no longer used for any U.S. government activities and we therefore would fully support any move to repeal it,” a senior administration official told Yahoo News Tuesday. “However, we have not prioritized proactively seeking to repeal it, because the effect would be entirely symbolic and we have many more pressing priorities to take up with Congress.”

Of course, Presidential campaigns have been built largely on such “symbolic acts.”

Admittedly, Obama’s support for such a “symbolic act” would only be tested if Congress actually chose to repeal it (Yahoo notes that when the Senate defeated such a measure in 2011, the White House opposed attempts to repeal it).

So why not? This should be a no-brainer proposal both parties can back, repealing the authorization for a failed war that should never have been fought. Bipartisan lovey-dovey to end a war that started over a decade ago.

And you never know: Congress might discover it likes repealing wars. Start easy repealing an allegedly unused AUMF, then move onto bigger and better AUMFs.

Like training wheels to make peace.

“We’re Not Going to Leave It To the Guy Who Lies to Congress with Impunity Anymore”

The regular outlets for NSA leakers are presenting details of the recommendations the NSA Review Committee has given to President Obama (Gorman, Sanger). Curiously, Siobhan Gorman suggests that because the recommendations closely following the Leahy-Sensenbrenner bill, it bodes well for passage of that bill.

The panel’s idea “aligns very closely” with a bill offered by House Judiciary Committee Chairman James Sensenbrenner (R., Wis.) and Senate Judiciary Chairman Patrick Leahy (D., Vt.), said one person familiar with the report, suggesting it could give ammunition to congressional efforts.

From what I’ve seen so far, I’m not sure that’s actually true. Moreover, that’s not how intelligence reform generally works. Rather, usually the executive adopts changes asked by Congress, thereby dissuading Congress from actually passing those changes into enforceable law. With Jim Sensenbrenner correctly calling Dianne Feinstein’s Fake FISA Fix “a joke” and growing number of co-sponsors for Sensenbrenner’s bill, I can imagine why the Executive would want to pre-empt actual law.

Significantly, the proposed recommendations don’t end the concept of a phone dragnet; they just move administration of it elsewhere — either a third party or the telecoms — equally prone for abuse. The Review Committee apparently didn’t review efficacy of these programs.

Besides, according to David Sanger, the proposals predictably focus  more on Angela Merkel’s privacy than the hundreds of millions of others whose privacy the NSA compromises.

The advisory group is also expected to recommend that senior White House officials, including the president, directly review the list of foreign leaders whose communications are routinely monitored by the N.S.A. President Obama recently apologized to Chancellor Angela Merkel of Germany for the N.S.A.’s monitoring of her calls over the past decade, promising that the actions had been halted and would not resume. But he refused to make the same promise to the leaders of Mexico and Brazil.

Administration officials say the White House has already taken over supervision of that program. “We’re not leaving it to Jim Clapper anymore,” said one official, referring to the director of national intelligence, who appears to have been the highest official to review the programs regularly.


[National Security Council spokesperson Caitlin Hayden] added that the review was especially focused on “examining whether we have the appropriate posture when it comes to heads of state; how we coordinate with our closest allies and partners; and what further guiding principles or constraints might be appropriate for our efforts.”

It’s that James Clapper line that ought to be the tell, however: that folks within the Administration are boldly stating that James Clapper won’t be able to run amok anymore.

The same James Clapper, of course, on whom the White House imposed no consequences for lying to Congressional overseers.

Which brings me to my favorite detail, from the NYT:

One of the expected recommendations is that the White House conduct a regular review of those collection activities, the way covert action by the C.I.A. is reviewed annually.

Obama suggested last week he serves in no more than an advisory role for the Deep State, someone who can propose changes, but not someone who can order them. That an advisory committee has to tell the President that the NSA operates with less oversight than the CIA whose covert operations have systematically exceeded the claimed authority granted by the President says something.

I do fear this Review will pre-empt some of the most important legislative fixes.

But I also hope we’ll finally see heightened distance between the Deep State and the Executive that is overdue for reining it in.

Brennan Cedes to Feinstein on Torture Tape Destroyer But “Defiant” on Torture Report

The WaPo reports that the woman who helped Jose Rodriguez destroy the torture tapes will not — as had been floated — officially lead the Clandestine Services.

A female CIA officer who was the first woman to lead the agency’s clandestine service, but was also closely tied to the agency’s interrogation program, will not get to keep that job as part of a management shake-up announced Tuesday by CIA Director John O. Brennan, U.S. officials said.

The report (sourced to “US officials,” which can be code for members of Congress or staffers) emphasizes that the intervention of members of Congress — and Dianne Feinstein specifically — played in key role in persuading John Brennan such an appointment would be a problem.

But the woman, who remains under cover, faced opposition from senior lawmakers over her ties to an interrogation program that critics have said employed torture to get information from al-Qaeda captives after the Sept. 11, 2001, attacks.


Sen. Dianne Feinstein (D-Calif.), the chairwoman of the Senate Intelligence Committee, had called Brennan to express concern over the possibility that someone so closely linked to the program would be put in position to lead the agency’s spying service.

Kudos to DiFi for what appears to be successful oversight.

The only problem is the same article notes that Brennan is preparing to blow off DiFi’s torture report.

The transition comes at a time when the agency is assembling what is said to be a defiant response to a recently completed report by the Senate Intelligence Committee that is sharply critical of the interrogation program and its results.

As I have noted in the past and elaborated on at Salon yesterday, Brennan’s “defiance” should not matter. Ultimately, the White House has the authority to release the report.

But it’s trying to dodge the issue.

And now, in spite of Panetta’s claims that the White House originally made torture a SAP, the White House has done nothing to accelerate the release of a report that — according to Democrats on the committee and John McCain — will correct many misconceptions about the torture program.

Of course, as president, Obama would have the authority to order John Brennan to declassify the report in any case. But the White House seems unwilling to acknowledge whether it possesses the sole authority over this decision. In response to a question whether — as Panetta’s statement indicates — the White House has classification authority over the program, NSC spokesperson Caitlin Hayden didn’t answer.

Instead, she used the same kind of stalling technique as the CIA:

The Administration is currently reviewing the full 6,000 page report at the invitation of the SSCI and we look forward to working with the Committee once that review is complete.

I suspect the White House will use Brennan’s “defiance” as cover for keeping the report hidden.

What Brennan does in personnel decisions that remain hidden won’t get the CIA out of the torture business. Only real transparency on it will.

Update: The Cable published the entire letter announcing the personnel changes at CIA. It ends with this claim about the woman passed over at Clandestine Services.

The assertion she was not chosen because of her affiliation with the CT mission is absolutely not true.

I guess for the CIA, destroying evidence of torture is considered “the [counterterrorism] mission.”

House Judiciary Makes (Partial) Progress on Drones, But Not the Senate

Just as the House Judiciary Committee was about to vote to subpoena OLC’s targeted killing memos, DOJ finally agreed to share them with the committee tasked with overseeing OLC.

Just before the hearing, however, DOJ agreed to provide the documents. Goodlatte, the chairman, announced he would postpone the meeting to authorize the subpoena and cancel it once arrangements are made for viewing the documents.

“It’s unfortunate that it took a subpoena notice for the Department to cooperate with the House Judiciary Committee,” Goodlatte said. “The House Judiciary Committee is charged with oversight over the Justice Department and U.S. Constitution and it is imperative that we explore the issues raised by the Administration’s policy.”

Though, from the context, it sounds like DOJ agreed to hand over only the memos authorizing Anwar al-Awlaki’s killing. I’m checking on this, but if this is the case, it’s the partial cave I’ve been expecting from DOJ for some time.

The Administration really doesn’t want to share its signature strike memos.

But that’s just memos. The Administration still refuses — as it did earlier when the House Judiciary Committee held a hearing on drone killing — to send a live body to talk about its killing program.

“We do not currently plan to send a witness to this hearing and have remained in close contact with the committee about how we can best provide them the information they require,” Caitlin Hayden, a National Security Council spokeswoman, wrote in an email to McClatchy.

She added that the White House would continue working with lawmakers “to ensure not only that our targeting, detention and prosecution of terrorists remains consistent with our laws and system of checks and balances, but that our efforts are even more transparent to the American people and the world.”

Hayden declined to say why the administration doesn’t plan to provide a witness for the hearing.

Add this to John Brennan’s refusal to answer Jan Schakowsky’s questions about drones last week, and the Administration really just refuses any oversight on this issue.

But really, they promise they’re being transparent.

Update: I was correct. House Judiciary Committee will only get what the Senate Judiciary Committee got, which is understood to be the Awlaki memos.

After Over 23 Requests, Congress Draws Closer to Issuing Subpoenas

As I’ve been tracking, members of Congress have made over 23 requests for the OLC memos authorizing drone and/or targeted killing. Thus far, only the Intelligence Committees and the Senate — but not the House — Judiciary Committees have been able to see the memos, and they’ve not seen much more than the memo authorizing Anwar al-Awlaki’s killing.

Tomorrow, the House Judiciary Committee may finally get around to demanding the memos — not just the Awlaki memos, but also any memos authorizing signature strikes.

On Monday, Chairman Bob Goodlatte (R-Va.) announced the meeting to authorize the subpoena after the administration failed to meet a deadline he and the panel’s ranking member John Conyers (D-Mich.) issued last week asking for a plan to share the confidential documents.

“There is no good reason that the committee’s bipartisan request should go unanswered. The administration’s policy raises serious questions about the role of due process during wartime when the enemy may be a U.S. citizen and the committee must explore these issues and ensure Americans’ constitutional rights are protected at all times,” he added

I’m actually somewhat surprised by this. I had thought the Administration would make a deal to show HJC only the Awlaki memos, as a way to continue to hide the signature strike memos (and Goodlatte’s language suggests that’s what he is primarily interested in; the Democrats are the ones demanding the signature strike memos).

But then, the Administration has pretty consistently surprised me with its stubbornness on these memos.

Just as a reminder, on Friday National Security Council spokesperson Caitlin Hayden claimed the Administration had,

A commitment to congressional oversight. We regularly provide the appropriate members of Congress and the committees who have oversight of our counterterrorism programs with briefings about our drone operations. We have also provided certain Members unprecedented access to highly classified and deliberative legal opinions explaining the legal rationale for certain strikes, including drone strikes that might target U.S. persons.

It’s hard to draw any conclusion except that the Administration believes that oversight of constitutional issues — such as HJC (and SJC) exercise — has nothing to do with oversight of counterterrorism issues.

The White House Decides Maybe They’re Not “Targeted Killings” After All

In the 15 paragraphs that make up the core of John Brennan’s so-called transparency on drone killings, he used the word “target” in one or another form 24 times.

… the United States Government conducts targeted strikes against specific al-Qaida terrorists … the debate over strikes targeted at individual members of al-Qaida has centered on their legality, their ethics, the wisdom of using them, and the standards by which they are approved. … First, these targeted strikes are legal. … Second, targeted strikes are ethical.  Without question, the ability to target a specific individual, from hundreds or thousands of miles away, raises profound questions. …

Targeted strikes conform to the principle of necessity, the requirement that the target have definite military value.  In this armed conflict, individuals who are part of al-Qaida or its associated forces are legitimate military targets.  We have the authority to target them with lethal force just as we target enemy leaders in past conflicts, such as Germans and Japanese commanders during World War II.

Targeted strikes conform to the principles of distinction, the idea that only military objectives may be intentionally targeted and that civilians are protected from being intentionally targeted.  With the unprecedented ability of remotely piloted aircraft to precisely target a military objective while minimizing collateral damage, one could argue that never before has there been a weapon that allows us to distinguish more effectively between an al-Qaida terrorist and innocent civilians.

Targeted strikes conform to the principle of proportionality, … By targeting an individual terrorist or small numbers of terrorists with ordnance that can be adapted to avoid harming others in the immediate vicinity, … targeted strikes conform to the principle of humanity which requires us to use weapons that will not inflict unnecessary suffering. For all these reasons, I suggest to you that these targeted strikes against al-Qaida terrorists are indeed ethical and just. … Targeted strikes are wise. Remotely piloted aircraft … strike their targets with astonishing precision, … Yet they are also a wise choice because they dramatically reduce the danger to innocent civilians, especially considered against massive ordnance that can cause injury and death far beyond their intended target. … a pilot operating this aircraft remotely … might actually have a clearer picture of the target and its surroundings, … There’s another reason that targeted strikes can be a wise choice, the strategic consequences that inevitably come with the use of force.  As we’ve seen, deploying large armies abroad won’t always be our best offense. … In comparison, there is the precision of targeted strikes.

In an 11-paragraph statement given to McClatchy in response to its reports that we’ve been “targeting” people who are not our enemies last Friday (but not, as far as I can tell, released more broadly), National Security Council spokesperson (and Tommy Vietor replacement) Caitlin Hayden uses a form of “target” just three times, Read more