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NSA Has a Database Problem

Back in 2009 when the government released what we now know is a FISA Court of Review decision ordering Yahoo to cooperate in PRISM, I questioned a passage of the decision that relied on the government’s claim that it doesn’t keep a database of incidentally collected conversations involving US persons.

In this post, I just want to point to a passage that deserves more scrutiny:

The government assures us that it does not maintain a database of incidentally collected information from non-targeted United States persons, and there is no evidence to the contrary. On these facts, incidentally collected communications of non-targeted United States persons do not violate the Fourth Amendment.(26)

To translate, if the government collects information from a US citizen (here or abroad), a legal permanent US resident, a predominantly US organization, or a US corporation in the course of collecting information on someone it is specifically targeting, it it claims it does not keep that in a database (I’ll come back and parse this in a second). In other words, if the government has a tap on your local falafel joint because suspected terrorists live off their falafels, and you happen to call in a take out order, it does not that have in a database.

There are reasons to doubt this claim.

In the rest of the post, I showed how a response from Michaels Mukasey and McConnell to Russ Feingold’s efforts to protect US person incidental collection during the FISA Amendments Act had made it clear having access to this incidentally collected data was part of the point, meaning the government’s reassurances to the FISCR must have been delicate dodges in one way or another. (Feingold’s Amendments would have prevented 3 years of Fourth Amendment violative collection, by the way.)

Did the court ask only about a database consisting entirely of incidentally collected information? Did they ask whether the government keeps incidentally collected information in its existing databases (that is, it doesn’t have a database devoted solely to incidental data, but neither does it pull the incidental data out of its existing database)? Or, as bmaz reminds me below but that I originally omitted, is the government having one or more contractors maintain such a database? Or is the government, rather, using an expansive definition of targeting, suggesting that anyone who buys falafels from the same place that suspected terrorist does then, in turn, becomes targeted?

McConnell and Mukasey’s objections to Feingold’s amendments make sense only in a situation in which all this information gets dumped into a database that is exposed to data mining. So it’s hard to resolve their objections with this claim–as described by the FISA Appeals Court.

Which is part of the reason I’m so intrigued by this passage of John Bates’ October 3, 2011 decision ruling some of NSA’s collection and retention practices violated the Fourth Amendment. In a footnote amending a passage explaining why the retention of entirely US person communications with the permissive minimization procedures the government had proposed is a problem, Bates points back to that earlier comment.

The Court of Review plaining limited its holding regarding incidental collection to the facts before it. See In re Directives at 30 (“On these facts, incidentally collected communications of non-targeted United States persons do not violate the Fourth Amendment.” (emphasis added). The dispute in In re Directives involved the acquisition by NSA of discrete to/from communications from an Internet Service Provider, not NSA’s upstream collection of Internet transactions. Accordingly, the Court of Review had occasion to consider NSA’s acquisition of MCTs (or even “about” communications, for that matter). Furthermore, the Court of Review noted that “[t]he government assures us that it does not maintain a database of incidentally collected information from non-targeted United States persons, and there is no evidence to the contrary.” Id. Here, however, the government proposes measures that will allow NSA to retain non-target United States person information in its databases for at least five years.

Ultimately, Bates’ approval for the government to query on US person identifiers on existing incidentally collected Section 702 material (see pages 22-23) show that he hasn’t really thought through what happens to US person incidental collection; he actually has a shocking (arguably mis-) understanding of how permissive the existing minimization rules are, and therefore how invasive his authorization for searching on incidentally collected information will actually be.

But his complaint with the proposed minimization procedures shows what he believes they should be.

The measures proposed by the government for MCTs, however, largely dispense with the requirement of prompt disposition upon initial review by an analyst. Rather than attempting to identify and segregate information “not relevant to the authorized purpose of the acquisition” or to destroy such information promptly following acquisition, NSA’s proposed handling of MCTs tends to maximize the retention of such information, including information of or concerning United States persons with no direct connection to any target.

As Bates tells it, so long as he’s paying close attention to an issue, the government should ideally destroy any US person data it collects that is not relevant to the authorized purpose of the acquisition. (His suggestion to segregate it actually endorses Russ Feingold’s fix from 2008.)

But the minimization rules clearly allow the government to keep such data (after this opinion, they made an exception only for the multiple communication transactions in question, but not even for the other search identifiers involving entirely domestic communication so long as that’s the only communication in the packet).

All the government has to do, for the vast majority of the data it collects, is say it might have a foreign intelligence or crime or encryption or technical data or threat to property purpose, and it keeps it for 5 years.

In a database.

Back when the FISCR used this language, it allowed the government the dodge that, so long as it didn’t have a database dedicated to solely US person communications incidentally, it was all good. But the language Bates used should make all the US person information sitting in databases for 5 year periods (which Bates seems not to understand) problematic.

Not least, the phone dragnet database, which — after all — includes the records of 310 million people even while only 12 people’s data has proved useful in thwarting terrorist plots.

Update: Fixed the last sentence to describe what the Section 215 dragnet has yielded so far.

NSA’s “Presumption of Regularity”

As you’ve probably heard, the most striking part of the October 3, 2011 FISA opinion finding NSA’s collection violated the Fourth Amendment is Footnote 14.

The Court is troubled that the government’s revelations regarding NSA’s acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program.

In March, 2009, the Court concluded that its authorization of NSA’s bulk acquisition of telephone call detail records from [redacted] in the so-called “big business records” matter “ha[d] been premised on a flawed description of how the NSA uses [the acquired] metadata,” and that “[t]his misperception by the FISC existed from the inception of its authorized collection in May 2006, buttressed by repeated inaccurate statements made in the government’s submissions, and despite a government-devised and Court-mandated oversight regime.” Docket [redacted] Contrary to the governent’s repeated assurances, NSA had been routinely running queries of the metadata using querying terms that did not meet the required standard for querying. The Court concluded that this requirement had been “so frequently and systematically violated that it can fairly be said that this critical element of the overall … regime has never functioned effectively.” Id.

Two more entirely redacted substantial misrepresentations follow.

Footnote 32 reveals how, after NSA did a review of the communications the FISC ultimately found to violate the Fourth Amendment, the FISC caught it in downplaying the number of affected communications. After it sent the NSA back to new analysis, the problem grew from 2,000 to 10,000 a year to 48,000 to 56,000 a year. I guess the FISC found, like I have, that you can’t trust the biggest math organization in the world to do basic math.

Yet in spite of the fact that this opinion lists three substantial misrepresentations the NSA had made in recent history and caught the NSA in bad math, here’s how it decided it could trust the government’s assurances that it didn’t use this abusive communication to target non-targeted people.

Therefore, the Court has no reason to believe that NSA, by acquiring the Internet transactions containing multiple communications, is targeting anyone other than the user of the selected tasked selector. See United States v. Chemical Found., Inc., 272 U.S. 1, 14-15 (1926) (“The presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.”).

I’m not surprised FISC invoked this (especially not surprised that John Bates, who can be very deferential, did). It is the law.

But (as the case of Adnan Latif showed) we keep extending the presumption of regularity to the government in spite of abundant evidence we shouldn’t.

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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Lots of Senior Officials Spilling State Secrets Today

Last year, Director of National Intelligence James Clapper said the following:

I am asserting privilege over classified intelligence information, assessments, and analysis prepared, obtained, or under the control of any entity within the U.S. Intelligence Community concerning al-Qaeda, AQAP or Anwar al-Aulaqi that may be implicated by [Awlaki’s father’s attempt to sue for information about why Awlaki was on the CIA’s assassination list]. This includes information that relates to the terrorist threat posed by Anwar al-Aulaqi, including information related to whether this threat may be “concrete,” “specific,” or “imminent.”

Then Secretary of Defense Robert Gates said the following:

DOD cannot reveal to a foreign terrorist organization or its leaders what it knows about their activities and how it obtained that information.

[snip]

The disclosure of any operational information concerning actions U.S. armed forces have or may plan to take against a terrorist organization overseas would risk serious harm to national security and foreign relations. Official confirmation or denial of any operations could tend to reveal information concerning operational capabilities that could be used by adversaries to evade or counter any future strikes.

[snip]

Finally, as discussed below, public confirmation or denial of either prior or planned operations could seriously harm U.S. foreign relations.

[snip]

The disclosure of information concerning cooperation between the United States and a foreign state, and specifically regarding any possible military operations in that foreign country, could lead to serious harm to national security, including by disrupting any confidential relations with a foreign government. [my emphasis]

Then CIA Director and current Secretary of Defense Leon Panetta said the following:

I am invoking the [state secrets] privilege over any information, if it exists, that would tend to confirm or deny any allegations in the Complaint [about CIA targeting Awlaki for assassination] pertaining to the CIA.

Yet in spite of the fact that these top government officials swore to a judge that revealing operational details about the CIA’s assassination operations, US counterterrorist cooperation with Yemen, and confirmation of prior or planned military operations would harm foreign relations and national security, we’re seeing details like this in reporting on Anwar al-Awlaki’s death:

An American-born cleric killed in Yemen played a “significant operational role” in plotting and inspiring attacks on the United States, U.S. officials said Friday, as they disclosed detailed intelligence to justify the killing of a U.S. citizen.

Anwar al-Awlaki, an American-born radical Islamic preacher who rose to the highest level of al Qaeda’s franchise in Yemen, was killed in a CIA-directed strike upon his convoy, carried out with the U.S. Joint Special Operations Command’s firepower, according to a counterterrorist official, speaking on condition of anonymity to discuss intelligence.

[snip]

Four individuals were killed in Friday’s attack, according to U.S. officials.

[snip]

Al-Awlaki had been under observation for three weeks while they waited for the right opportunity to strike, one U.S. official said.

[snip]

U.S. counterterrorism officials said that counterterrorism cooperation between the U.S. and Yemen has improved in recent weeks, allowing the U.S. to gather better intelligence on al-Awlaki’s movements. The ability to better track him was a key factor the successful strike, U.S. officials said.

Or details like this, including John Brennan’s comments on the record:

Fox News has learned that two Predator drones hovering above al-Awlaki’s convoy fired the Hellfire missiles which killed the terror leader. According to a senior U.S. official, the operation was carried out by Joint Special Operations Command, under the direction of the CIA.

[snip]

But American sources confirmed the CIA and U.S. military were behind the strike on al-Awlaki, whom one official described as a “big fish.”

The strike hit a vehicle with three or four suspected Al Qaeda members inside, in addition to al-Awlaki. According to a U.S. senior official, the other American militant killed in the strike was Samir Khan, the co-editor of an English-language Al Qaeda web magazine called “Inspire.”

[snip]

Top U.S. counter terrorism adviser John Brennan says such cooperation with Yemen has improved since the political unrest there. Brennan said the Yemenis have been more willing to share information about the location of Al Qaeda targets, as a way to fight the Yemeni branch challenging them for power. Other U.S. officials say the Yemenis have also allowed the U.S. to fly more armed drone and aircraft missions over its territory than ever previously, trying to use U.S. military power to stay in power. [my emphasis]

Judge Bates, if I were you, I’d haul Clapper, Gates, and Panetta into your courtroom to find out whether they lied their ass off to you last year so as to deprive a US citizen of due process, and if they didn’t, then how long it will be until John Brennan and some other counterterrorism officials get charged with Espionage.

As Expected, Judge Bates Punts on Rule of Law

I almost felt like I was reading Judge John Bates’ ruling on whether or not Valerie Plame could sue those who outed her when I read Judge Bates’ ruling dismissing the suit challenging the government’s ability to assassinate Anwar al-Awlaki with no due process.

He starts by admitting the importance of the issues at hand.

This is a unique and extraordinary case. Both the threshold and merits issues present fundamental questions of separation of powers involving the proper role of the courts in our constitutional structure. Leading Supreme Court decisions from Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), through Justice Jackson’s celebrated concurrence in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), to the more recent cases dealing with Guantanamo detainees have been invoked to guide this Court’s deliberations. Vital considerations of national security and of military and foreign affairs (and hence potentially of state secrets) are at play.

Stark, and perplexing, questions readily come to mind, including the following: How is it that judicial approval is required when the United States decides to target a U.S. citizen overseas for electronic surveillance, but that, according to defendants, judicial scrutiny is prohibited when the United States decides to target a U.S. citizen overseas for death? Can a U.S. citizen — himself or through another — use the U.S. judicial system to vindicate his constitutional rights while simultaneously evading U.S. law enforcement authorities, calling for “jihad against the West,” and engaging in operational planning for an organization that has already carried out numerous terrorist attacks against the United States? Can the Executive order the assassination of a U.S. citizen without first affording him any form of judicial process whatsoever, based on the mere assertion that he is a dangerous member of a terrorist organization? How can the

courts, as plaintiff proposes, make real-time assessments of the nature and severity of alleged threats to national security, determine the imminence of those threats, weigh the benefits and costs of possible diplomatic and military responses, and ultimately decide whether, and under what circumstances, the use of military force against such threats is justified? When would it ever make sense for the United States to disclose in advance to the “target” of contemplated military action the precise standards under which it will take that military action? And how does the evolving AQAP relate to core al Qaeda for purposes of assessing the legality of targeting AQAP (or its principals) under the September 18, 2001 Authorization for the Use of Military Force?

But then he punts entirely on standing grounds.

Although these threshold questions of jurisdiction may seem less significant than the questions posed by the merits of plaintiff’s claims, “[m]uch more than legal niceties are at stake here” — the “constitutional elements of jurisdiction are an essential ingredient of separation and equilibration of powers, restraining the courts from acting at certain times, and even restraining them from acting permanently regarding certain subjects.”

[snip]

Because these questions of justiciability require dismissal of this case at the outset, the serious issues regarding the merits of the alleged authorization of the targeted killing of a U.S. citizen overseas must await another day or another (non-judicial) forum.

But just for good measure, Bates says he would rule in the government’s favor on state secrets, but doesn’t need to.

So, too, defendants have established that the three procedural requirements for invocation of the state secrets privilege — (1) a formal claim of privilege (2) by an appropriate department head (3) after personal consideration — have been satisfied here. See Reynolds, 345 U.S. at 7-8; Jeppesen Dataplan, 614 F.3d at 1080; Defs.’ Mem. at 48-50.[snip]

Under the circumstances, and particularly given both the extraordinary nature of this case and the other clear grounds for resolving it, the Court will not reach defendants’ state secrets privilege claim. That is consistent with the request of the Executive Branch and with the law, and plaintiff does not contest that approach. Indeed, given the nature of the state secrets assessment here based on careful judicial review of classified submissions to which neither plaintiff nor his counsel have access, there is little that plaintiff can offer with respect to this issue.17 But in any event, because plaintiff lacks standing and his claims are non-justiciable, and because the state secrets privilege should not be invoked “more often or extensively than necessary,” see Jeppesen Dataplan, 614 F.3d at 1080, this Court will not reach defendants’ invocation of the state secrets privilege.

It was nice of Bates to save the Obama Administration the embarrassment of invoking state secrets to hide the logic for its tyranny.

All in all, a tremendous victory for unchecked executive powers!

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Government Trying to Fudge on Its Claim to Absolute Power

I’m working on a post on the news that DOJ will not charge Jose Rodriguez for destroying the torture tapes. But that’s going to take a while (read the NYT on the news in the meantime).

In the meantime, though, I wanted to point to Adam Serwer’s summary of yesterday’s hearing on the Anwar al-Awlaki suit. The most amusing detail in Adam’s story is that the government only wants to rely on its invocation of State Secrets as a fallback position.

Letter explicitly asked Bates to dismiss the lawsuit on state-secrets grounds only as a last resort.

See?!? They have some shame about their abuse of executive power, even if they’re going to rely on it anyway.

The most important issue, IMO, pertains to standing–I have already suggested that Judge Bates might reject the suit for lack of standing, not least because it’s the easiest way to punt. Adam suggests that Bates was thoroughly uninterested in one of two potential ways to establish standing.

The ACLU/CCR contends they have standing under two criteria, “Next Friend” and “Third Party.” Meeting the standard under “Next Friend” requires the ACLU/CCR to show that the younger al-Awlaki would want to sue but can’t, while “Third Party” demands that the elder al-Awlaki show that he would “suffer a concrete, redressable injury” from the government’s actions. Although Ben Wittes, who was also there, would disagree with me, I think Bates was more sympathetic to “Next Friend” than he was to the “Third Party” question, as he warned the latter could lead to a flood of lawsuits based on government action, and an “unprincipled landscape” in which judges arbitrarily decide standing based on the plaintiffs they’re sympathetic to.

But perhaps the most dramatic part of the hearing appears to have been when Jameel Jaffer stood up and stated that this suit was about whether or not the President can order the assassination of a citizen with no review. I actually differ with Adam’s take on some of this.

There was an exchange at the end of arguments that, beyond the legalese, really crystallized what this case is about. Both sides had offered their final rebuttals, but ACLU attorney Jameel Jaffer stood again and stated that the lawsuit was really about whether the president possesses an “unreviewable authority to order the assassination of an American citizen.” It moved Bates to ask Letter if he wanted to respond.

[DOJ Attorney Douglas] Letter rose and called Jaffer’s statement “absurd” and “ridiculous” but what followed was less convincing. He pointed out that the AUMF limits the president to overseas operations, that al-Awlaki was part of an “officially designated” terrorist group who was “attempting to carry out operations” against Americans.The fact that al-Awlaki had just released a new video calling for Muslims to kill Americans probably weighed on reporters in the courtroom.

Only the first of Letter’s statements is beyond dispute. The other two concern unproven — but not necessarily inaccurate — assumptions of fact that go to the heart of the case: whether or not al-Awlaki is actually an “operational leader” of al-Qaeda in the Arabian Peninsula or simply a vicious hatemonger who justifies and exhorts terrorism against Americans. The government is actually saying that its unilateral determination that the latter two assumptions are accurate that allow the government to deprive al-Awlaki of life without due process.

First, note that Letter’s claim that al-Awlaki was part of an “officially designated” terrorist group is a bunch of baloney. He is now part of that group, at least according to the unproven allegations of the government. But the State Department didn’t get around to designating al Qaeda in the Arabian Peninsula as such until several weeks after they had put al-Awlaki on the JSOC kill list (though he was not yet on the CIA kill list), so the suggestion that the President would only target someone formally designated a terrorist for assassination is a lie.

But the other claim–that the AUMF only covers operations overseas–is even sillier.

Consider: the government has not yet withdrawn the White Paper retroactively authorizing the illegal wiretap program under the AUMF. Thus, DOJ still supports claims that the AUMF authorized the President–any President–to conduct operations (in that case, military operations in the form of NSA wiretapping) in the United States.

Mind you, Tom Daschle has made it clear that Congress specifically refused to grant the President authority to operate in the United States. But so long as DOJ supports that White Paper, they stand by a public claim that the AUMF authorized the President to operate within the US.

So Jaffer is right: there’s nothing about Douglas Letter’s claims that rebut Jaffer’s argument that this is about whether the President can unilaterally assassinate an American citizen. As Adam has shown, simply asserting someone is a member of a terrorist organization does not make the assertion any less unilateral. And Letter’s claims that the AUMF does not authorize operations in the United States seems to ignore DOJ policy that supports just such a claim.

A Defense of Tyranny?

I’m pretty fascinated by this attempt by one of John Cole’s readers to defend the Administration’s stance on assassinating US citizens. It’s fascinating and not a little disturbing, but it deserves a response, if only to clarify precisely what the problem with the Administration’s filing last Friday is.

The reader starts with this:

On Al-Awlaki, what’s your response to the argument that targeted killing of him is allowable, under international law, because he’s been designated by the US and the UN as an “active operational member of AQAP” and, as such, if and only if the US determines he presents an imminent threat, the US can take actions to defend itself against an attack (like, say, the Christmas bombing, in which there’s evidence he was involved in planning) by either capturing or killing him?

For starters, this question misrepresents what the suit tries to do. The suit readily admits that the government has the right to kill someone who presents an imminent threat. The plaintiffs are asking for the judge to prevent the government from killing Anwar al-Awlaki unless he is, in fact, an imminent threat.

Plaintiff seeks a declaration from this Court that the Constitution and international law prohibit the government from carrying out targeted killings outside of armed conflict except as a last resort to protect against concrete, specific, and imminent threats of death or serious physical injury; and an injunction prohibiting the targeted killing of U.S. citizen Anwar Al-Aulaqi outside this narrow context. Plaintiff also seeks an injunction requiring the government to disclose the standards under which it determines whether U.S. citizens can be targeted for death. [my emphasis]

Moreover, John’s reader misstates the argument the government is making. They refuse to grant that the only legal basis they’d have for assassinating al-Awlaki would be because they had determined him to be an imminent threat and never once argue that he is an imminent threat, particularly not that he, personally, as opposed to AQAP more generally, is an imminent threat.

For example, even assuming for the sake of argument that plaintiff has appropriately described the legal contours of the President’s authority to use force in a context of the sort described in the Complaint,

In fact, as I have shown, the government refuses to lay out its entire argument for claiming it has the authority to target al-Awlaki.

Accordingly, although it would not be appropriate to make a comprehensive statement as to the circumstances in which he might lawfully do so, it is sufficient to note that, consistent with the AUMF, and other applicable law, including the inherent right to self-defense, the President is authorized to use necessary and appropriate force against AQAP operational leaders, in compliance with applicable domestic and international legal requirements, including the laws of war.

One thing is clear, though: the government is claiming to have the authority not only through international law (the “imminent threat”), but also the AUMF. But it’s not at all clear the AUMF does grant them that authority (and this is one reason why John’s reader’s appeal to the political branches is so problematic). AQAP was not included in the AUMF. No  one has ever claimed it had a role in 9/11, which is how the AUMF defines the opponent. The decisions on habeas cases have been mixed about whether attenuated connections like AQAP’s are strong enough to be included in the AUMF and because of it, legally detainable. John’s reader just ignores that the primary basis for which the government claims authority to kill al-Awlaki is the AUMF (even if they refuse to say whether AQAP is al Qaeda, or only affiliated with al Qaeda). But that basis is contested.

But let’s set aside the problems with the government’s claim to authority under the AUMF for the moment and focus instead on what John’s reader seems comfortable with: the “imminent threat.” John’s reader seems satisfied that al-Awlaki’s role in the Christmas day bombing makes him an imminent threat. There are two problems with that. First, we have a tradition in this country of requiring the government to prove the allegations it makes against people. Here’s how the government presents this allegation, in James Clapper’s public declaration.

Since late 2009, Al-Aulaqi has taken on an increasingly operational role in AQAP, including preparing Umar Farouk Adbulmutallab [sic], who attempted to detonate an explosive device aboard a Northwest Airlines flight from Amsterdam to Detroit on Christmas Day 2009, for his operation. In November 2009, while in Yemen, Abdulmutallab swore allegiance to the emir of AQAP and shortly thereafter received instructions from al-Aulaqi to detonate an explosive device aboard a U.S. airplane over U.S. airspace.

Particularly given the government’s reported belief, before the Nidal Hasan attack, that al-Awlaki’s activities extended only to First Amendment protected speech, we deserve to know how they determined that his activities since then have become operational. If we know that from classified intercepts, then the government can share them with the Court without disclosing them publicly. If we know that solely through Abdulmutallab’s interrogations, then we deserve to know the circumstances surrounding those interrogations, not least whether Abdulmutallab was promised he would not face the death penalty if he implicated al-Awlaki.

More importantly, we have means to do all this–to have a judge weigh the evidence to make sure the government’s allegations are true. That’s a trial. And for some reason, the government has chosen not to charge al-Awlaki with conspiracy in Abdulmutallab’s crime, and therefore chosen not to expose its evidence to the scrutiny of a judge. I wouldn’t necessarily have much reason to doubt the government’s claims about al-Awlaki, but the government loses a great deal of credibility when they choose not to avail themselves of the means to prove those allegations.

If the case against al-Awlaki is strong enough to kill him, then it ought to be strong enough to prove in a court.

And then there’s the other problem with the claim that al-Awlaki is an “imminent” threat: the timing.

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Koh v. Johnson: Material Support in Far Away “Battlefields”

I don’t know about you. But I’m sort of bored with the Holder v. Rahm fight over torture and Gitmo. My hope is they’ll start a military commission trial, it’ll get delayed and challenged, and Holder will be able to demonstrate in terms even Rahm understands that civilian trials are not just a question of politics–they are also clearly more efficacious.

Ah well.

Lucky for us, there’s a new debate to watch, this one between State Department Legal Advisor Harold Koh and DOD General Counsel Jeh Johnson, over whether Presidential wartime powers are limited to those actually in al Qaeda, or include those more loosely affiliated with the organization. As Charlie Savage describes, both have written secret memos advocating a position on the issue.

But behind closed doors, the debate flared again that summer, when the Obama administration confronted the case of Belkacem Bensayah, an Algerian man who had been arrested in Bosnia — far from the active combat zone — and was being held without trial by the United States at Guantánamo. Mr. Bensayah was accused of facilitating the travel of people who wanted to go to Afghanistan to join Al Qaeda. A judge found that such “direct support” was enough to hold him as a wartime prisoner, and the Justice Department asked an appeals court to uphold that ruling.

The arguments over the case forced onto the table discussion of lingering discontent at the State Department over one aspect of the Obama position on detention. There was broad agreement that the law of armed conflict allowed the United States to detain as wartime prisoners anyone who was actually a part of Al Qaeda, as well as nonmembers who took positions alongside the enemy force and helped it. But some criticized the notion that the United States could also consider mere supporters, arrested far away, to be just as detainable without trial as enemy fighters.

That view was amplified after Harold Koh, a former human-rights official and Yale Law School dean who had been a leading critic of the Bush administration’s detainee policies, became the State Department’s top lawyer in late June. Mr. Koh produced a lengthy, secret memo contending that there was no support in the laws of war for the United States’ position in the Bensayah case.

Mr. Koh found himself in immediate conflict with the Pentagon’s top lawyer, Jeh C. Johnson, a former Air Force general counsel and trial lawyer who had been an adviser to Mr. Obama during the presidential campaign. Mr. Johnson produced his own secret memorandum arguing for a more flexible interpretation of who could be detained under the laws of war — now or in the future.

Part of me actually wonders whether the debate stems at least partly from Johnson’s greater familiarity with whom we’re already keeping–which includes a bunch of people whose “material support for terrorism” is really quite tenuous. That doesn’t justify holding them, but this may be a question about whom we have already held for 9 years.

Still, the ramifications of holding those who materially supported al Qaeda are pretty ominous, given the fairly expansive notion this country has used to claim material support.

And meanwhile, David Barron–Dawn Johnsen’s stand-in–basically punted on this question, seemingly hoping that some judge who is not a radical Bush appointee will make the decision for him.

Oh, Now They're Trying to Insist on Their Responsibility to Archive

It seems like BushCo–particularly Cheney–have been fighting for about 2 years to limit their responsibility under the Presidential Records Act to actually supply their papers to the National Archive in usable and timely fashion.

Well, all of a sudden, they’re arguing the contrary–that the papers have to go immediately.

The new Congress on Thursday asked a federal judge to force the Bush White House to keep documents on the controversial firings of nine federal prosecutors instead of turning them over to the National Archives.

[snip]

They asked U.S. District Judge John Bates to order the administration to leave the documents at the White House in the custody of President-elect Barack Obama’s aides in case the information is needed.

Justice Department lawyers argued that the White House is required to turn the material over to the National Archives.

[snip]

The National Archives has already agreed to segregate the subpoenaed material from the rest of Bush’s documents in case it is needed by the courts or the Obama administration, lawyers said.

"If they want the documents, they can request them from NARA," lawyer Carl Nichols said.

But Bates said he had no doubt "there will be some delay if the materials are sent" to the Archives. The judge suggested that he may order the administration to make copies of the documents so they can send the originals to the Archives and make the copies available to the incoming administration.

He said he would make a final ruling on Friday.

This is all follow-up to the rule passed on Tuesday that allows the House Judiciary Committee to pick up its pursuit of testimony in the US Attorney firing investigation right where they left off.

I guess Conyers didn’t want to have any down time during the early days of this Congress.

Update: And in somewhat related move, a different District Court Judge ruled that BushCo doesn’t get to hide what kind of wingnuts were visiting Cheney’s house.

A federal judge on Friday rejected the Bush administration’s latest attempt to keep secret the identities of White House visitors and declared that it engaged in illegal record-keeping practices.

[snip]

A watchdog group, Citizens for Responsibility and Ethics in Washington, asked for the records to determine whether nine conservative religious leaders visited the White House and Vice President Dick Cheney’s residence in October 2006.

Lamberth’s decision means the government will have to find other legal grounds if it wants to block release of the Secret Service logs.

 All this transparency Read more