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The CNET “Bombshell” and the Four Surveillance Programs

CNET is getting a lot of attention for its report that NSA, “has acknowledged in a new classified briefing that it does not need court authorization to listen to domestic phone calls.”

In general, I’m just going to outsource my analysis of what the exchange means to Julian Sanchez (I hope he doesn’t charge me as much as Mike McConnell’s Booz Allen Hamilton for outsourced analysis).

What seems more likely is that Nadler is saying analysts sifting through metadata have the discretion to determine (on the basis of what they’re seeing in the metadata) that a particular phone number or e-mail account satisfies the conditions of one of the broad authorizations for electronic surveillance under §702 of the FISA Amendments Act.

[snip]

The analyst must believe that one end of the communication is outside the United States, and flag that account or phone line for collection. Note that even if the real target is the domestic phone number, an analyst working from the metadatabase wouldn’t have a name, just a number.  That means there’s no “particular, known US person,” which ensures that the §702 ban on “reverse targeting” is, pretty much by definition, not violated.

None of that would be too surprising in principle: That’s the whole point of §702!

That is, what Nadler may have learned that the same analysts who have access to the phone metadata may also have authority to issue directives to companies for phone content collection. If so, it would be entirely feasible for the same analyst to learn, via the metadata database, that a suspect phone number is in contact with the US and for her to submit a request for actual content to the providers, without having to first get a FISA order covering the US person callers directly. Since she was still “targeting” the original overseas phone number, she would be able to get the US person content without a specific order.

Screen shot 2013-06-16 at 11.50.59 AMI just want to point to a part of this exchange that everyone is ignoring (but that I pointed out while live tweeting this).

Mueller: I’m not certain it’s the same–I’m not certain it’s an answer to the same question.

Mueller didn’t deny the NSA can get access to US person phone content without a warrant. He just suggested that Nadler might be conflating two different programs or questions.

And that’s one of the things to remember about this discussion. Among many other methods of shielding parts of the programs, the government is thus far discussing primarily the two programs identified by the Guardian: the phone metadata collection (which the WaPo reports is called MAINWAY) and the Internet content access (PRISM).

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Robert Mueller’s Claims to Be Ignorant about Geolocation Probably Bullshit

As I laid out in this Guardian column on today’s House Judiciary Committee hearing, after citing Smith v. Maryland a bunch of times to justify getting all Americans’ phone records, FBI Director Robert Mueller went on to pretend not to know whether those records include geolocation.

New York Representative Jerry Nadler wasn’t convinced Mueller’s excuse was good enough. He noted that metadata includes so much more information than it did in 1979, and that that earlier ruling might not stand in this case. Utah’s Jason Chaffetz got much more specific about the difference between phones in 1979 and now: location.

Landlines include location information. But with cell phones, the same location information necessary to route a call effectively provides a rough idea of where a person is even as they move from place to place (map functions on smart phones, as well as a lot of applications, rely on this data). Thus, the geolocation available as part of cell phone metadata provides a much better idea of where a person goes and what they do than location data for a landline tied to a person’s address.

Chaffetz posed several questions that, he revealed, he had sent Mueller Wednesday so that he would be prepared to answer, starting with whether or not geolocation is part of this metadata collection. In spite of Chaffetz’s prior warning, Mueller said he did not know whether it was included.

Note that the order to Verizon the Guardian publishedspecifically includes routing information in its description of metadata, which gets to geolocation. It’s clear this collection includes geolocation.

Mueller was also unprepared to answer whether or not a different supreme court case from last year, US v Jones, which determined that installing a GPS tracking device on a suspect’s car constituted a search, meant that the geolocation provided by the GPS function on cell phones did not qualify as metadata. Mueller was also unprepared to answer whether tracking someone’s location by using their phone constituted metadata.

In fact, Mueller admitted his staffers had told him he’d be asked these questions – yet still hadn’t prepared. It seemed almost as if his inability to answer this question in public was intentional.

As I suggested, Mueller’s feigned ignorance was probably intentional.

Moreover, his professed ignorance about whether the phone records include location is probably bullshit. That’s true, as I noted, because the order in question includes routing information, which in the case of cell phones, includes tower location which is location.

And remember, according to Tom Coburn, the FBI Director’s role in approving this process is so central, Coburn was worried that legal challenges to Mueller’s two-year extension might put the entire dragnet program at risk. So it’s hard to believe all this time Mueller has been personally vouching for orders like the one to Verizon that ask explicitly for routing information without knowing he was asking for routing information.

Here’s the other reason I think Mueller is telling a least untruth that is too cute by half when he claims ignorance.

Shortly after the US v. Jones ruling, Ron Wyden asked Director of National Intelligence James Clapper to what degree Jones affected the intelligence community. He even invoked “secret law,” the way he always has done when referring to this dragnet program(s).

Wyden: Director Clapper, as you know the Supreme Court ruled last week that it was unconstitutional for federal agents to attach a GPS tracking device to an individual’s car and monitor their movements 24/7 without a warrant. Because the Chair was being very gracious, I want to do this briefly. Can you tell me as of now what you believe this means for the intelligence community, number 1, and 2, would you be willing to commit this morning to giving me an unclassified response with respect to what you believe the law authorizes. This goes to the point that you and I have talked, Sir, about in the past, the question of secret law, I strongly feel that the laws and their interpretations must be public. Read more

Jim Sensenbrenner’s Horseshit Claims of Innocence

The reaction from members of Congress to the revelation that the Section 215 surveillance was just as bad as some of us have been warning has varied, with Dianne Feinstein and Saxby Chambliss reiterating claims about the value and oversight of the program (though not having any idea, according to DiFi, whether it has prevented any attacks), and Ron Wyden and Mark Udall effectively saying “I told you so.” John Boehner dodged aggressively, suggesting even though he had approved this surveillance President Obama had to explain it.

Asked whether lawmakers should answer for an order that fell under the Patriot Act they passed, Boehner disagreed. “The tools were given to the administration, and it’s the administration’s responsibility to explain how these tools are used,” he said. ”I’ll leave it to them to explain.”

By far the most disingenuous, however, was Jim Sensenbrenner, who (as he has emphasized to the credulous journalists who served as his stenographers today) wrote the PATRIOT Act, who has remained in a senior position on House Judiciary Committee since that day, and who now claims to be shocked — shocked! — there is dragnet collection going on in the casino he built.

Predictably, he wrote a letter demanding to know how a law he has fought to retain its current form could be used to do what the law authorizes.

In the letter, Sensenbrenner de-emphasizes the role of the relevance standard to the collection.

To obtain a business records order from the court, the Patriot Act requires the government to show that: (1) it is seeking the information in certain authorized national security investigations pursuant to guidelines approved by the Attorney General; (2) if the investigative target is a U.S. person, the investigation is not based solely on activities protected by the First Amendment; and (3) the information sought is relevant to the authorized investigation.

Compare that to the letter of the law, which requires the government to show,

(A) a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, such things being presumptively relevant to an authorized investigation if the applicant shows in the statement of the facts that they pertain to—

(i) a foreign power or an agent of a foreign power;

(ii) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or

(iii) an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation;

That is, the emphasis is not on the investigation, as Sensenbrenner’s interpretation would have it, but on the relevance of the information sought, which Sensenbrenner adds third. More importantly, Sensenbrenner omits all mention of the presumptively relevant conditions — basically something pertaining to a foreign power.

With his interpretation, Sensenbrenner has omitted something baked into Section 215, which is that so long as the government says this pertains to foreign spies or terrorists, the judge has almost no discretion on whether information is relevant to an investigation.

Then Sensenbrenner points to 2011 testimony from Acting Assistant Attorney General Todd Hinnen, who he claims said the following:

Section 215 has been used to obtain driver’s license records, hotel records, car rental records, apartment leasing records, credit card records, and the like. It has never been used against a library to obtain circulation records. . . On average, we seek and obtain section 215 ordersless than 40 times per year

Which Sensenbrenner uses to claim the Department never told the Committee about this dragnet.

The Department’s testimony left the Committee with the impression that the Administration was using the business records provision sparingly and for specific materials. The recently released FISA order, however, could not have been drafted more broadly.

As it happens, Hinnen has been testifying since at least 2009 that Section 215 authorizes other secret programs. So I checked Sensenbrenner’s work. Here’s what that precise passage of Hinnen’s testimony says, without the deceitful ellipsis.

Section 215 has been used to obtain driver’s license records, hotel records, car rental records, apartment leasing records, credit card records, and the like. It has never been used against a library to obtain circulation records. Some orders have also been used to support important and highly sensitive intelligence collection operations, on which this committee and others have been separately briefed. On average, we seek and obtain section 215 ordersless than 40 times per year. [my emphasis]

In other words, Sensenbrenner points to doctored proof he has been briefed on this secret program, but doctors it in such a way as to support his claim he never knew about this.

Not to mention that a series of DOJ Inspector General reports included classified appendices describing these secret collection operations.

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That Makes Over 21 Requests by 31 Members of Congress, Mr. President

Adding the letter that Barbara Lee, as well as a list of all Members of Congress who have, at one time or another, requested the targeted killing memos.

February 2011: Ron Wyden asks the Director of National Intelligence for the legal analysis behind the targeted killing program; the letter references “similar requests to other officials.” (1) 

April 2011: Ron Wyden calls Eric Holder to ask for legal analysis on targeted killing. (2)

May 2011: DOJ responds to Wyden’s request, yet doesn’t answer key questions.

May 18-20, 2011: DOJ (including Office of Legislative Affairs) discusses “draft legal analysis regarding the application of domestic and international law to the use of lethal force in a foreign country against U.S. citizens” (this may be the DOJ response to Ron Wyden).

October 5, 2011: Chuck Grassley sends Eric Holder a letter requesting the OLC memo by October 27, 2011. (3)

November 8, 2011: Pat Leahy complains about past Administration refusal to share targeted killing OLC memo. Administration drafts white paper, but does not share with Congress yet. (4) 

February 8, 2012: Ron Wyden follows up on his earlier requests for information on the targeted killing memo with Eric Holder. (5)

March 7, 2012: Tom Graves (R-GA) asks Robert Mueller whether Eric Holder’s criteria for the targeted killing of Americans applies in the US; Mueller replies he’d have to ask DOJ. Per his office today, DOJ has not yet provided Graves with an answer. (6) 

March 8, 2012: Pat Leahy renews his request for the OLC memo at DOJ appropriations hearing.(7)

June 7, 2012: After Jerry Nadler requests the memo, Eric Holder commits to providing the House Judiciary a briefing–but not the OLC memo–within a month. (8)

June 12, 2012: Pat Leahy renews his request for the OLC memo at DOJ oversight hearing. (9)

June 22, 2012: DOJ provides Intelligence and Judiciary Committees with white paper dated November 8, 2011.

June 27, 2012: In Questions for the Record following a June 7 hearing, Jerry Nadler notes that DOJ has sought dismissal of court challenges to targeted killing by claiming “the appropriate check on executive branch conduct here is the Congress and that information is being shared with Congress to make that check a meaningful one,” but “we have yet to get any response” to “several requests” for the OLC memo authorizing targeted killing. He also renews his request for the briefing Holder had promised. (10)

July 19, 2012: Both Pat Leahy and Chuck Grassley complain about past unanswered requests for OLC memo. (Grassley prepared an amendment as well, but withdrew it in favor of Cornyn’s.) Leahy (but not Grassley) votes to table John Cornyn amendment to require Administration to release the memo.

July 24, 2012: SSCI passes Intelligence Authorization that requires DOJ to make all post-9/11 OLC memos available to the Senate Intelligence Committee, albeit with two big loopholes.

December 4, 2012: Jerry Nadler, John Conyers, and Bobby Scott ask for finalized white paper, all opinions on broader drone program (or at least a briefing), including signature strikes, an update on the drone rule book, and public release of the white paper.

December 19, 2012: Ted Poe and Tredy Gowdy send Eric Holder a letter asking specific questions about targeted killing (not limited to the killing of an American), including “Where is the legal authority for the President (or US intelligence agencies acting under his direction) to target and kill a US citizen abroad?”

January 14, 2013: Wyden writes John Brennan letter in anticipation of his confirmation hearing, renewing his request for targeted killing memos. (11)

January 25, 2013: Rand Paul asks John Brennan if he’ll release past and future OLC memos on targeting Americans. (12)

February 4, 2013: 11 Senators ask for any and all memos authorizing the killing of American citizens, hinting at filibuster of national security nominees. (13)

February 6, 2013: John McCain asks Brennan a number of questions about targeted killing, including whether he would make sure the memos are provided to Congress. (14)

February 7, 2013Pat Leahy and Chuck Grassley ask that SJC be able to get the memos that SSCI had just gotten. (15)

February 7, 2013: In John Brennan’s confirmation hearing, Dianne Feinstein and Ron Wyden reveal there are still outstanding memos pertaining to killing Americans, and renew their demand for those memos. (16)

February 8, 2013: Poe and Gowdy follow up on their December 19 letter, adding several questions, particularly regarding what “informed, high level” officials make determinations on targeted killing criteria.

February 8, 2013: Bob Goodlatte, Trent Franks, and James Sensenbrenner join their Democratic colleagues to renew the December 4, 2012 request. (17)

February 12, 2013: Rand Paul sends second letter asking not just about white paper standards, but also about how National Security Act, Posse Commitatus, and Insurrection Acts would limit targeting Americans within the US.

February 13, 2013: In statement on targeted killings oversight, DiFi describes writing 3 previous letters to the Administration asking for targeted killing memos. (18, 19, 20)

February 20, 2013: Paul sends third letter, repeating his question about whether the President can have American killed inside the US.

February 27, 2013: At hearing on targeted killing of Americans, HJC Chair Bob Goodlatte — and several other members of the Committee — renews request for OLC memos. (21)

March 11, 2013: Barbara Lee and 7 other progressives ask Obama to release “in an unclassified form, the full legal basis of executive branch claims” about targeted killing, as well as the “architecture” of the drone program generally. (22)

All Members of Congress who have asked about Targeted Killing Memos and/or policies

  1. Ron Wyden
  2. Dianne Feinstein
  3. Saxby Chambliss
  4. Chuck Grassley
  5. Pat Leahy
  6. Tom Graves
  7. Jerry Nadler
  8. John Conyers
  9. Bobby Scott
  10. Ted Poe
  11. Trey Gowdy
  12. Rand Paul
  13. Mark Udall
  14. Dick Durbin
  15. Tom Udall
  16. Jeff Merkley
  17. Mike Lee
  18. Al Franken
  19. Mark Begich
  20. Susan Collins
  21. John McCain
  22. Bob Goodlatte
  23. Trent Franks
  24. James Sensenbrenner
  25. Barbara Lee
  26. Keith Ellison
  27. Raul Grijalva
  28. Donna Edwards
  29. Mike Honda
  30. Rush Holt
  31. James McGovern

Count Von Count Counts 20 Times the Administration Has Blown Off Targeted Killing Memo Requests

1 – 2 – 3 – 4 – 5 – 6 – 7 – 8 – 9 – 10 – 11 – 12 – 13 – 14 – 15 – 16 – 17 – 18 – 19 -20

With Bob Goodlatte’s — and several other members of the House Judiciary Committee — renewed requests on Wednesday for the Office of Legal Counsel memos authorizing the targeted killing of American citizens, we have reached a milestone.

20

Members of Congress have asked for the targeted killing memos more than 20 times. And with the exception of the 35 members of the intelligence committees getting a quick peek without staff assistance and (presumably) a more substantial review by members of the Gang of Eight, the Administration has blown off every single one of those 20 requests.

I’ve included the updated timeline below. In addition to the hard count, note two letters from Ted Poe and Trey Gowdy to Eric Holder that don’t specifically ask for the memo, but ask a lot of pretty good questions about drone and other targeted killings.

February 2011: Ron Wyden asks the Director of National Intelligence for the legal analysis behind the targeted killing program; the letter references “similar requests to other officials.” (1)

April 2011: Ron Wyden calls Eric Holder to ask for legal analysis on targeted killing. (2)

May 2011: DOJ responds to Wyden’s request, yet doesn’t answer key questions.

May 18-20, 2011: DOJ (including Office of Legislative Affairs) discusses “draft legal analysis regarding the application of domestic and international law to the use of lethal force in a foreign country against U.S. citizens” (this may be the DOJ response to Ron Wyden).

October 5, 2011: Chuck Grassley sends Eric Holder a letter requesting the OLC memo by October 27, 2011. (3)

November 8, 2011: Pat Leahy complains about past Administration refusal to share targeted killing OLC memo. Administration drafts white paper, but does not share with Congress yet. (4)

February 8, 2012: Ron Wyden follows up on his earlier requests for information on the targeted killing memo with Eric Holder. (5)

March 7, 2012: Tom Graves (R-GA) asks Robert Mueller whether Eric Holder’s criteria for the targeted killing of Americans applies in the US; Mueller replies he’d have to ask DOJ. Per his office today, DOJ has not yet provided Graves with an answer. (6)

March 8, 2012: Pat Leahy renews his request for the OLC memo at DOJ appropriations hearing.(7)

June 7, 2012: After Jerry Nadler requests the memo, Eric Holder commits to providing the House Judiciary a briefing–but not the OLC memo–within a month. (8)

June 12, 2012: Pat Leahy renews his request for the OLC memo at DOJ oversight hearing. (9)

June 22, 2012: DOJ provides Intelligence and Judiciary Committees with white paper dated November 8, 2011.

June 27, 2012: In Questions for the Record following a June 7 hearing, Jerry Nadler notes that DOJ has sought dismissal of court challenges to targeted killing by claiming “the appropriate check on executive branch conduct here is the Congress and that information is being shared with Congress to make that check a meaningful one,” but “we have yet to get any response” to “several requests” for the OLC memo authorizing targeted killing. He also renews his request for the briefing Holder had promised. (10)

July 19, 2012: Both Pat Leahy and Chuck Grassley complain about past unanswered requests for OLC memo. (Grassley prepared an amendment as well, but withdrew it in favor of Cornyn’s.) Leahy (but not Grassley) votes to table John Cornyn amendment to require Administration to release the memo.

July 24, 2012: SSCI passes Intelligence Authorization that requires DOJ to make all post-9/11 OLC memos available to the Senate Intelligence Committee, albeit with two big loopholes.

December 4, 2012: Jerry Nadler, John Conyers, and Bobby Scott ask for finalized white paper, all opinions on broader drone program (or at least a briefing), including signature strikes, an update on the drone rule book, and public release of the white paper.

December 19, 2012: Ted Poe and Tredy Gowdy send Eric Holder a letter asking specific questions about targeted killing (not limited to the killing of an American), including “Where is the legal authority for the President (or US intelligence agencies acting under his direction) to target and kill a US citizen abroad?”

January 14, 2013: Wyden writes John Brennan letter in anticipation of his confirmation hearing, renewing his request for targeted killing memos. (11)

January 25, 2013: Rand Paul asks John Brennan if he’ll release past and future OLC memos on targeting Americans. (12)

February 4, 2013: 11 Senators ask for any and all memos authorizing the killing of American citizens, hinting at filibuster of national security nominees. (13)

February 7, 2013Pat Leahy and Chuck Grassley ask that SJC be able to get the memos that SSCI had just gotten. (14)

February 7, 2013: In John Brennan’s confirmation hearing, Dianne Feinstein and Ron Wyden reveal there are still outstanding memos pertaining to killing Americans, and renew their demand for those memos. (15)

February 8, 2013: Poe and Gowdy follow up on their December 19 letter, adding several questions, particularly regarding what “informed, high level” officials make determinations on targeted killing criteria.

February 8, 2013: Bob Goodlatte, Trent Franks, and James Sensenbrenner join their Democratic colleagues to renew the December 4, 2012 request. (16)

February 12, 2013: Rand Paul sends second letter asking not just about white paper standards, but also about how National Security Act, Posse Commitatus, and Insurrection Acts would limit targeting Americans within the US.

February 13, 2013: In statement on targeted killings oversight, DiFi describes writing 3 previous letters to the Administration asking for targeted killing memos. (17, 18, 19)

February 20, 2013: Paul sends third letter, repeating his question about whether the President can have American killed inside the US.

February 27, 2013: At hearing on targeted killing of Americans, HJC Chair Bob Goodlatte — and several other members of the Committee — renews request for OLC memos. (20)

“Side Payment” Counter-Insurgency Drone Strikes?'>What Is the Overlap between Signature Strikes and “Side Payment” Counter-Insurgency Drone Strikes?

ProPublica has a very worthwhile article drawing attention back to signature drone strikes.

My favorite part is their focus on John Brennan’s effort to dodge a question about signature strikes last year, which happened not long before anonymous sources working on Brennan’s behalf launched his Kill List Shiny Object campaign, which served to distract from the signature strikes he had just approved for use in Yemen.

Brennan was asked about signature strikes last April but sidestepped the question. He replied: “You make reference to signature strikes that are frequently reported in the press. I was speaking here specifically about targeted strikes against individuals who are involved.”

He continued that “everything we do, though, that is carried out against Al Qaeda is carried out consistent with the rule of law, the authorization on the use of military force, and domestic law… that’s the whole purpose of whatever action we use, the tool we use, it’s to prevent attack [sic] and to save lives.”

The article also catalogs how Brennan and the Administration have dodged questions from Jerry Nadler, John Conyers, and Bobby Scott, as well as from John McCain.

The administration has rebuffed repeated requests from Congress to provide answers – even in secret.

[snip]

Sen. John McCain, R-Ariz., recently sent his own letter to Brennan asking several pointed questions on signature strikes.

“How do ‘signature strikes’ square with your statement that targeted killing operations are only approved when a targeted individual poses a ‘significant threat to U.S. interests?’” McCain asked, quoting a speech Brennan gave on drone strikes last April.

“How can the Administration be certain it is not killing civilians in areas, like many parts of Yemen and Pakistan, where virtually all men, including civilians, carry weapons?” the letter continued.

A McCain spokesman said the senator had not received a response.

In any case, go read the article. But read it in conjunction with this remarkable Lawfare post on How to Make a Kill List, from Gregory McNeal, who once worked in counterterroism at State (though this work derives from a range of sources). McNeal has a follow-up on network analysis, which I’ll return to later.

McNeal’s post is notable because it is, as far as I know, one of the first times that someone has gone on the record admitting that our drone war is, in part, targeting people our allies pick, effectively us waging their counterinsurgency for them.

There are three basic categories of targets who might find their way onto a kill-list: (1) Targets who fall within the AUMF, and its associated forces interpretations [AUMF Targets], (2) targets who fall within the terms of a covert action finding [Covert Action Targets], and (3) targets provided by allies in a non-international armed conflict in which the U.S. is a participant. [Ally Targets or derisively “side payment targets.”] [my emphasis; all other brackets original]

“Side payment targets.” Wow. Evocative.

The reason I say this article should be read in conjunction with the ProPublica one is that the two places where we know the US is engaging in counterinsurgency targets, Pakistan and Yemen, are also the two places we know we’ve used signature strikes. Read more

Targeted Killing Timeline

A timeline!

I’ve been working on this timeline for almost nine months, trying to pull together the known dates about strikes against Americans, the evidence supporting the strike against Anwar al-Awlaki, the legal cases surrounding both targeted killing and torture, to which targeted killing is linked via the Memorandum of Notification, and Congressional efforts to exercise oversight.

September 17, 2001: George Bush signs Memorandum of Notification (henceforth, Gloves Come Off MON) authorizing a range of counterterrorism techniques, including torture and targeted killing.

September 18, 2001: Congress passes the Authorization to Use Military Force.

November 3, 2002: US citizen Kamal Derwish killed in drone purportedly targeting Abu Ali al-Harithi.

Late 2008: Ruben Shumpert reported killed in Somalia.

June 24, 2009: Leon Panetta gets briefed on assassination squad program.

June 26, 2009: HPSCI passes a funding authorization report expanding the Gang of Eight briefings.

July 8, 2009: The Administration responds with an insulting appeal to a “fundamental compact” between Congress and the President on intelligence matters.

July 8, 2009: Silvestre Reyes announces CIA lied to Congress.

October 26, 2009: British High Court first orders British government to release language on Binyam Mohamed’s treatment.

October 28, 2009: FBI kills Imam Luqman Asmeen Abdullah during Dearborn, MI arrest raid.

October 29, 2009: Hearing on declassifying mention of Gloves Come Off MON before Judge Alvin Hellerstein; in it, Hellerstein reveals NSA James Jones has submitted declaration to keep mention of MON secret.

November 5, 2009: Nidal Hasan attacks Fort Hood, killing 13.

December 24, 2009: JSOC tries but fails to hit Anwar al-Awlaki. On that day, the IC did not yet believe him to be operational.

December 25, 2009: With Umar Farouk Abdulmutallab attack, FBI develops full understanding of Awlaki’s operational goals.

January 2, 2010: In conversation with David Petraeus, Yemeni President Ali Abdullah Saleh http://www.cablegatesearch.net/cable.php?id=10SANAA4“>speaks as if Awlaki, whom he refers to as a cleric, not an AQAP member, was a designated target of December 24 attack.

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A Day After Reading Constitution, Republicans Abolish Civil Liberties, Civil Liberties Bits of It

I sort of expected the Republicans to abolish labor–or at least its named inclusion among the business of Congressional committees. After all, the GOP really doesn’t like tough things like physical work or the people who do it.

But it wasn’t so long ago that the Republican Party–not to mention its newest activist branch, the Tea Party–claimed to give a damn about civil liberties. Hell, Louie Gohmert, who reassured me yesterday the Fourth Amendment is still on the books, is even a member of the Judiciary Committee.

But like labor, the Republicans have also apparently done away with civil liberties and civil rights.

From a Jerry Nadler press release:

Today, Congressman Jerrold Nadler (D-NY), who has served as the Chairman of the Subcommittee on the Constitution, Civil Rights, and Civil Liberties since 2007, responded to news that the Republican-led Judiciary Committee will change the name of the Subcommittee to the “Constitution Subcommittee.”  He issued the following statement:

Once again, the new Republican majority has shown that it isn’t quite as committed to the Constitution as its recent lofty rhetoric would indicate.  Today, it has yet again shown its contempt for key portions of the document – the areas of civil rights and civil liberties – by banishing those words from the title of the Constitution Subcommittee.  In 1995, when Newt Gingrich became Speaker, one of the Republicans’ first acts was to change the name of that Subcommittee.  For anyone who thought the change was merely for rhetorical purposes, our experience over 12 years of Republican rule showed just how hostile they are to individual rights and liberties.  With this move, we can only assume that they are intent on more of the same.  It is going to be a long and difficult struggle to protect these cherished rights and liberties from assaults by the Republican majority.

Republicans have made a great deal of noise in recent days about standing up for the Constitution.  But, in less than 48 hours, they have already revealed their true intentions.  In addition to reading selectively from the Constitution on the House floor in a much-exalted ceremony on Thursday, Republicans also blatantly violated the Constitution by allowing two of their Members to vote without having been sworn-in, and introduced unconstitutional legislation aimed at bypassing the 14th Amendment’s citizenship clause.  And, with the Subcommittee name change, they are again telling Americans that only some parts of the Constitution matter.  Fundamental rights and liberties appear to have been dropped from the Constitution by far-right ideologues.

Netroots Nation: Close Gitmo and Use the Legal System

I’m going to be liveblogging today’s panel discussion, Close Gitmo and Use the Legal System at Netroots Nation 2010. Panelists featured are Adam Serwer, Matthew Alexander, Rep. Jerry Nadler, Vince Warren, and your very own emptywheel, Marcy Wheeler. (Video of this panel may be available later, technology permitting.) This is a rough paraphrase, not a word-for-word transcript.

Wheeler: Lists good news and bad news about the topic of detention and Gitmo; we have seen some positive changes but over the big picture, no real change.

Nadler: Very frustrated as not much has happened this year. Notes that the administration has not behaved as anticipated prior to taking office. Congress has enacted bills to restrict transfers of detainees; although it’s possible to try detainees in court, nothing has happened.

Gitmo used as a tool of political fear. 192 detainees remain at Gitmo; 35 have been identified as those who could be charged with offenses, the majority could be released.

President has outlined procedures which are different, but outcomes are the same. Detainees may be charged, tried in civilian court, tribunals, or detained indefinitely — simply because we say a detainee is dangerous. Habeas corpus has not been recognized. We still have people who have been cleared altogether who have been detained because we can’t release them. The refusal to take some of these people into the U.S. has made it difficult to negotiate with other countries to take some of the same. If they are not dangerous, there’s no good reason why they cannot be released into the U.S.

Gitmo is not under writ of habeas corpus; also a question as to whether Bagram airport is also under writ of habeas corpus. Also in contention whether black sites are as well. May be maintained that battlefield sites may not be covered by habeas corpus, but what about detaining individuals seized in Sweden? Or case of individuals who were taken into detention by locals and turned over for bounties.

Prisoner of war is used as an excuse for indefinite detention, but it’s the war is not clear. No uniform, taken away from battlefield, no change over the year on this issue. Not an optimistic assessment.

Serwer: Not one of the happier panels here at NN10 because so little has happened. One of the places where uniformity of Republican opposition has been affected has been on issue of Gitmo; even Bush said Gitmo should be closed, Republicans agreed, and yet the resolve has changed. The lack of urgency now gives impression that Gitmo is not as bad as it is.

Alexander: Aware that al Qaeda uses Gitmo as a recruiting tool, showing our hypocrisy in detaining people, making this a key reason why Gitmo should be closed. We compromised our principles in using and keeping Gitmo open, partly out of fear, partly out of prejudice against Muslims and Arabs. One of the fundamental reasons Gitmo should be closed is one the left doesn’t use — it should be closed for patriotic reasons. It should be closed to remove it as a recruiting tool for terrorism.

Warren: Points out that Nadler is his congressman; Nadler had fought the defunding of ACORN as an unconstitutional bill of attainder. Believes Alexander’s point about Gitmo as a recruiting tool is important, but brings a couple other perspectives to the table. This is Obama’s Guantanamo. Previously fought against the Bush administration on the Boumediene case, but now this is the current administration.

Roughly 177 men in Gitmo, some have been cleared. The underwear bomber incident stopped the release of the 60 men cleared, brought process to a halt.

Obama’s story is about what we hear as well as what we don’t hear. Chinese Uighurs were ordered released as they were no threat; Bush administration fought the order. Now the Obama administration maintains that the Uighurs should not be released because China might detain and torture these individuals. Yet Obama administration has vigorously opposed release Uighurs into the U.S. as it was in conflict with immigration laws. Abdul Aziz Naji has been injured, poorly treated, could be released to Algeria, but could be tortured or killed by one of two factions — Algerian government or fundamentalists, which Naji described as being caught between two fires. His case went to Supreme Court, was released to Algeria but “disappeared” as no record of his arrival in Algeria has been recorded. A source has said Naji has been taken into custody for “routine interrogation” but the Algerian government itself has not acknowledged. This is a situation which Obama administration claimed it was trying to get away from.

Obama administration is now itself caught between two fires.

(cont’d.) Read more

"MD's Sob Story"

I’m not Raul Grijalva or Jerry Nadler, but I thought I’d try to respond to TPM reader MD’s “sob story” (as MD called it) because the story illustrates the issues at stake in health care reform. Here’s the story.

Like everyone I have a sob-story to tell about health care. After telling it to countless liberals who oppose the Senate’s health-care reform bill, I still haven’t heard a good answer from them about why they can’t support the Senate bill. They usually stop talking, or try to change the subject.Maybe Raul Grijalva or Barney Frank or Anthony Weiner or Jerry Nadler have wrestled with this problem and I haven’t seen it. Have you seen anything from them about this?

My story: My father is dying of Huntington’s disease. Before he dies in 8 to 10 years, he will need anti-depressants, anti-psychotics and drugs that fight dementia and his tremors and convulsions. He’ll need multiple brain scans and physical therapy sessions.

Current medical treatments can’t save him, but they will give him a few more years before the slow death strips him of his memories, personality and control of his body.

There’s a 50 percent chance the same slow motion death awaits me and each of my three siblings. If I ever lose my job I’ll become uninsurable, permanently. My sister already lost her insurance.

That means whatever treatment is developed for Huntington’s will be unavailable to us. There’s simply no way we could afford it. Not only high tech gene therapies or other interventions, but the medications and treatments that exist now that would buy us enough time to see our kids’ graduations or weddings, and would give them hope of not suffering their grandfather’s fate.

There’s a bill that would mean we’d never be rejected for health insurance or have it canceled. Health insurance that could ease our final years, or maybe even save us.

But liberals are refusing to support it. I know there are principles and politics at stake. I know people are tired of being told to shut up and take what’s given to them. But in the end, there a thousands of people with Huntington’s and millions of people with other serious or terminal illnesses who will never benefit from treatment because they are uninsured. Millions more who are otherwise healthy will die premature or unnecessary deaths because basic health care isn’t affordable.

What do liberal leaders say to them? What do those liberals tell people like my dad, a die-hard activist Democrat, a UAW member who worked his way through college to become a teacher?

I’m used to Republicans and conservatives not giving a damn about people like us, or mocking us for asking questions like this. That’s why my father spent so much of his life fighting to keep Democrats in power. But to be abandoned by people my father worked with and supported his entire life? What in the bill is so terrible to justify that?

This isn’t about betrayal, or a slap in the face, or an insult. It isn’t about strategies to keep seats, or grand theories of justice. Democrats in Congress have the chance to cast a single vote that will make the lives of tens of millions of Americans less wrenching, our demises less brutal. That’s what this is about.

I’d like to hear Reps. Grijalva, Frank, Weiner or Nadler tell us why they can’t cast that vote.

Now, to begin with, MD’s entire premise is wrong. To suggest that Grijalva and Nadler are the people preventing a bill from moving forward ignores the fact that, as things stand, even with their votes, the House would be at least one vote short of passage. As I pointed out here, until MD can convince one of the following to vote for a bill, there is zero chance of the Senate bill passing: Bart Stupak, Larry Kissell, Dennis Kucinich, Eric Massa, or any number of Blue Dogs who refused to vote for the bill the first time. MD would do better yelling at the Catholic Bishops, who think it’s more important for Bart Stupak to make choice less accessible to all women than it is to provide lots of poor Catholics health insurance, than he would yelling at Grijalva and Nadler.

And because the bill is at least one vote short, it is going to have to get more populist (to convince Kucinich or Massa to support it) or still more conservative (to get either the anti-choice vote or the Blue Dog vote) before it passes, presumably through reconciliation.

And frankly, it may get better in ways that are very important for MD and his family. Read more