I want to make a really minor point about one of the documents produced to ACLU with the Drone Rule Book — which the White House calls a Presidential Policy Guidance — last week (here’s my working thread on the Rule Book). The Rule Book itself has a section that “requires” Congressional notification (but may be more important for the requirement that the White House must learn about information sharing before it happens, which might end up in less notification).
As part of its implementation of the Rule Book, DOD released a Report on Congressional Notification of Sensitive Military Operations and Counterterrorism Operational Briefings (DOD released several related documents; CIA released nothing). Throughout the short document, it says the 2014 Defense Authorization (which was introduced after the Rule Book was signed but before DOD issued its Drone Rule Book implementation procedures and signed into law on December 23, 2013) and the PPG require Congress be informed of sensitive military operations. That’s the Executive Branch’s way of saying, “Congress has required we tell it what we’re doing but so has the President” as if they came up with the idea to do that additional reporting in the first place.
Its last section looks like this:
Those bullets don’t come from the Rule Book (its notice requirement is far less detailed than that). Rather, they come from this section of the Defense Authorization.
As you can see, that section mandates answers to bullets 1 through 4 (the unredacted ones), and then includes a conforming amendment that repeals this section from 2013’s Defense Authorization.
The only difference in the unclassified portion of the 2014 Defense Authorization that replaced the 2013’s version is the deletion of the phrase “involving special operations forces.”
Of course, we can tell from the Report there’s a fifth, Top Secret bullet. It may well be that’s why they eliminated the prior year’s requirement and added a new almost identical one: to provide an opportunity to put that fifth bullet into the Defense Authorization’s classified appendix. That’s a wildarse guess, of course, but also a logical explanation for that fifth bullet: at a time when the White House was releasing fluffy documents pretending to be more open and orderly, Congress was secretly mandating additional reporting they weren’t getting.
There are a number of things that might be in that fifth bullet. Perhaps the least controversial of those would be a requirement that DOD tell Congress — actually just a tiny handful of members — which countries the US engages in lethal force in, and which groups we partner with to do it (this would be consistent with a number of items that are redacted in the Rule Book itself). You could imagine why, in 2013 and 2014, members of Congress might want to be told if the US was partnering with al Qaeda affiliates on lethal operations anywhere in the world, seeing as how we are ostensibly at war with al Qaeda.
As a reminder, Senate Intelligence Committee member Ron Wyden spent part of 2012 and 2013 unsuccessfully trying to get a list of all the places the government was engaging in lethal operations.
As I said, this is a fairly minor point. But it also suggests that even while the Executive was leaking wildly to get good press about this Drone Rule book, Congress was at the same time mandating specifically some of the things the Rule Book only nodded to in theory.
One of the questions Dianne Feinstein asked John Brennan in his confirmation hearing last week pertained to the role in approving drone strikes he’ll have at CIA. He refused the answer the question directly because the program is classified.
Feinstein: I’d like to ask you about the status of the Administration’s efforts to institutionalize rules and procedures for the conduct of drone strikes. In particular, how do you see your role as CIA Director in that approval process?
Brennan: Chairman, as this committee knows and I’m sure wants to continue to protect certain covert action activities. But let me talk generally about the counterterrorism program and the role of CIA and this effort to try to institutionalize and to ensure we have as rigorous a process as possible that we feel that we’re taking the appropriate actions at the appropriate time. The President has insisted that any actions we take will be legally grounded, will be thoroughly anchored in intelligence, will have the appropriate review process, approval process before any action is contemplated, included those actions that might involve the use of lethal force.The different parts of the government that are involved in this process are involved in the interagency, and my role as the President’s counterterrorism advisor was to help to orchestrate this effort over the past four years to ensure again that any actions we take fully comport with our law and meet the standards that I think this committee and the American people fully expect of us as far as taking actions we need to protect the American people but at the same time ensuring we do everything possible to ensure we need to resort to lethal force.
Brennan was equally evasive to similar questions in the hearing, and did not really answer a very simple question in his questions for the committee, whether the drone rule book had been finalized (see question 39: Is there a drone rulebook? A: Not so much a rulebook as little scraps of paper strewn around I sometimes lose).
But let it be noted that when the Chairwoman of the committee purportedly overseeing this program asked him what his role would be, as CIA Director, under the new rule book — a topic which has been addressed in part in the press — he suggested he couldn’t answer because it was classified.
Less than three hours later, this exchange occurred.
Burr: On January 15th of this year, the President signed the 2012 Intelligence Authorization Act, which requires congressional notification of any authorized disclosure of national intelligence. Now, we’ve not received any notification of authorized disclosures. Have there been any authorized disclosures to your knowledge?
Brennan: I would like to say that since you haven’t received any notification there haven’t been.
Burr: Would you consider the information reported in the press about the counterterrorism playbook unauthorized disclosure?
Brennan: Um, I don’t know which piece you’re talking about. There’s been a lot of discussion out there in the media and in the newspapers about this, so I don’t know specifically about any classified information — the fact that the Administration may be going through a process to try to institutionalize, codify, make as rigorous as possible our processes and procedures in and of itself is not a classified issue. So those details that are classified — I don’t know of any that came out in some of those reports.
Burr: If there are classified information that’s out there, and it’s not authorized, was there a crime report filed relative to the playbook?
Brennan: Um, presumably there was, Senator. Those decisions as far as initiating criminal investigations are done by those departments and agencies that have stewardship of that classified information. And in discussions with the Department of Justice they make the determination whether or not, in light of the fact that so many people have access to it, how they can proceed with some type of criminal investigation.
There have been two major stories on the drone rule book since Obama signed the new intelligence authorization and each contains information that is almost certainly classified. This January 19 WaPo story reveals that CIA Director John Brennan won’t have to play by the rules for the next year in Pakistan.
None of those rules applies to the CIA drone campaign in Pakistan, which began under President George W. Bush. The agency is expected to give the U.S. ambassador to Pakistan advance notice on strikes. But in practice, officials said, the agency exercises near complete control over the names on its target list and decisions on strikes.