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Ben Emmerson: Dupe on Two Continents, or Politically Savvy Diplomat?

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If I’m not mistaken, the people accusing UN Special Rapporteur on Human Rights and Counterterrorism, Ben Emmerson, of condoning lies in his recent report on drone strikes in Pakistan had no such reaction when Emmerson endorsed John Brennan to head the CIA.

That’s not surprising. Some of the same people consistently read articles presenting evidence that Brennan was not the moderating force on the drone program his boosters claimed and yet parroted the headlines of those articles that said he was.

Don’t get me wrong. Like these Emmerson critics, I take Emmerson’s report solely for what it is: a report on what the civilian, democratically-elected leadership of Pakistan wants to say about drone strikes in Pakistan, not a report on what is really going on in Pakistan, largely under the leadership of Pakistan’s permanent shadow government. Indeed, I was one of the first to point out how Emmerson’s inability to talk to Pakistan’s military and ISI in his reporting trip highlighted the differences between what civilian and military in Pakistan were saying, rather than reflected any “reality” on the ground.

What the release does, then, is lay out in stark contrast the degree to which Pakistan’s civilian and military authorities are sending different messages.

I just read Emmerson’s motives to be different than, simply, sanctioning a lie.

Indeed, I think his comments to Spencer Ackerman and Jack Goldsmith’s interpretation on his endorsement of Brennan might offer some insight on how he’s approaching his efforts to put some legal framework on the use of drones internationally, and why he presented Pakistan’s claims with such seeming credulity.

Emmerson told Spencer that while he might not agree with policies Brennan endorses, having him lead CIA would at least make the program more accountable.

“By putting Brennan in direct control of the CIA’s policy [of targeted killings], the president has placed this mediating legal presence in direct control of the positions that the CIA will adopt and advance, so as to bring the CIA much more closely under direct presidential and democratic control,” Emmerson says. “It’s right to view this as a recognition of the repository of trust that Obama places in Brennan to put him in control of the organization that poses the greatest threat to international legal consensus and recognition of the lawfulness of the drone program.”

“Warts and all” conversations with current and former Obama administration officials convince Emmerson that Brennan tried to steer the drone program from a “technology-driven process” to one that attempted to balance the interests of the law, counterterrorism, and the agencies involved in implementing it. “There are significant elements within the CIA who are unhappy about Brennan’s appointment,” Emmerson says. “These are the hawkish elements inside the CIA who would rather have as a director someone who reflected their agenda, rather than someone who is there to impose the president’s agenda.”

Emmerson says he can’t know if Brennan will actually carry out fewer drone strikes at the CIA. “What I’m saying is, Brennan has been the driving force for the imposition of a single consistent and coherent analysis, both legal and operational, as to the way the administration will pursue this program,” he explains. “I’m not suggesting that I agree with that analysis. That’s not a matter for me, it’s a matter for states, and there’s a very considerable disagreement about that. But what I am saying is that what he will impose is restraint over the wilder ambitions of the agency’s hawks to treat this program in a manner that is ultimately unaccountable and secret.” [my emphasis]

Jack Goldsmith deems Emmerson’s acceptance of the myth that the CIA has been operating in rogue fashion as gullible or naive–critically, some of the same adjectives being used to describe his reporting on Pakistan.

By confirming Emmerson’s ex ante bias that the CIA is a cowboy institution operating lawlessly and beyond presidential control, the officials and former officials who talked to Emmerson are clearly trying to protect the President and the White House (and, no doubt, themselves) from Emmerson’s investigation at the expense of the CIA.  Emmerson’s gullibility or naivete (if those are the right terms) on this matter makes clear what has been pretty clear from the beginning, namely, that the CIA, and not the USG, is his real target.

I would suggest, however, that whether Emmerson is being naive or savvy, the effect is the same. He aggressively supported Brennan taking the helm at CIA (in a way that Goldsmith notes may make his life more difficult at CIA).

A position where, it should be said, Brennan will reportedly be operating outside the Drone Rulebook he himself devised.

But, according to both the analysis of Emmerson and those who are calling him naive, given Brennan’s close relationship with Obama, even those off-rulebook drone strikes will now operate with no plausible deniability. Whether CIA was genuinely operating as a cowboy before or not, going forward it will be almost impossible to argue it is doing so, because Brennan, a very close Obama aide, will be overseeing the program.

I think both Emmerson’s endorsement of Brennan and his presentation of a view the civilian government of Pakistan would like to tell rather than the reality serve the same purpose: To highlight the way drone wars operate within big loopholes of democratic accountability and possibly, to move towards eliminating those loopholes.

Emmerson is a UN diplomat operating with almost no leverage, and I’m not at all confident he’ll succeed.

But his effort seems to understand a point I’ve long made about drones and Rosa Brooks has recently been addressing as well. Beyond any question about efficacy and civilian casualties, conducting drone strikes as we have been undermines the principles of sovereignty (which, it should be said, is an important part of any authority the UN might have over such issues) in both targeted and targeting states.

Maybe I’m misreading Emmerson’s actions as being far more astute than they really are–maybe he is the dupe his critics make him out to be. But he seems to be using his public statements to address the underlying problems with imposing some international legal framework on drones as much as he is the specifics.

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According to James Clapper, John Brennan Is a Leaker

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To celebrate Sunshine Week last week, the Office of Director of National Intelligence  released to Jason Leopold that office’s memo on ramped up use of polygraphs to crack down on leaks.

The memo requires that polygraphs incorporate the following guidelines about what constitutes a leak.

  • “Unauthorized recipient” includes any U.S. person or foreign national without a need to know or not cleared at the appropriate level for the information, including any member of the media.
  • “Unauthorized disclosure” means a communication, confirmation, acknowledgement, or physical transfer of classified information, including the facilitation of, or actual giving, passing selling, keeping, publishing, or in any way making such information available, to an unauthorized recipient.
  • Classified information includes information classified at any level, including Confidential, Secret, or Top Secret. [my emphasis]

Note these categories are — at least as listed in the memo — position independent. No matter who does these things, an unauthorized disclosure of classified information to an unauthorized recipient is a leak.

Including the acknowledgement of classified information that may be already public.

Funny, then, that Clapper celebrated the confirmation of John Brennan at the Global Threats hearing last week. Because as part of Brennan’s confirmation process, he responded this way to a Richard Burr supplemental question about his own leaks.

Describe each specific instance in which you were authorized to disclosure classified information to a reporter or media consultant, including the identity of the individual authorizing each disclosure and the reason for each such disclosure.

In exceptional circumstances, when classified information appears to have already been leaked to the media, it may be necessary to acknowledge classified information to a member of the media or to declassify information for the very purpose of limiting damage to national security by protecting sources and methods or stemming the flow of additional classified information. Such conversations involve only the most senior Agency officials or their designees and must be handled according to any applicable regulations. I have on occasion spoken to members of the media who appeared to already have classified information, in an effort to limit damage to national security; however, even in those circumstances I did not disclose classified information.

Now, this doesn’t mean CIA Director Brennan will fail the polygraph question his new boss set up last year. At multiple times in his confirmation process, he admitted that he talks to journalists, up to and well beyond “acknowledging” information already out there. (Though he proved remarkably unwilling to provide the Senate Intelligence Committee a list of those acknowledgements leaks, which is one reason Saxby Chambliss voted against him.) He’s honest that he’s a leaker, though he himself excuses his own leaking because he’s so high ranking.

But as the effects of Clapper’s new system become clear, remember that he thinks John Brennan, an admitted leaker, is a great guy to head up the CIA.

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CIA Continues to Cover Up Dick Cheney’s War-Mongering

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10 years ago today, George Bush gave his final warning to Saddam Hussein to leave Iraq or face war. While the first half of Bush’s speech cited Saddam’s purported refusal to give up his WMD program, the second half of the speech was littered with insinuations about Saddam’s terrorist allies.

If Saddam Hussein attempts to cling to power, he will remain a deadly foe until the end. In desperation, he and terrorists groups might try to conduct terrorist operations against the American people and our friends. These attacks are not inevitable. They are, however, possible. And this very fact underscores the reason we cannot live under the threat of blackmail. The terrorist threat to America and the world will be diminished the moment that Saddam Hussein is disarmed.

[snip]

We are now acting because the risks of inaction would be far greater. In one year, or five years, the power of Iraq to inflict harm on all free nations would be multiplied many times over. With these capabilities, Saddam Hussein and his terrorist allies could choose the moment of deadly conflict when they are strongest. We choose to meet that threat now, where it arises, before it can appear suddenly in our skies and cities.

 [snip]

Terrorists and terror states do not reveal these threats with fair notice, in formal declarations — and responding to such enemies only after they have struck first is not self-defense, it is suicide. The security of the world requires disarming Saddam Hussein now. [my emphasis]

We know that Dick Cheney tried, in the days leading up to this speech and an earlier March 14 one, to boost these vague allegations in part by resuscitating the claim that Mohammed Atta met with Iraqi diplomat-spook Ahmad Khalil Ibrahim Samir al-Ani in April 2001. The CIA pushed back hard on the claim. An account of that fight is one of the most significant redactions in the Senate Intelligence Committee’s 2006 assessment of the bullshit lies told to get us into Iraq (see numbered page 96), as explained by Mark Hosenball.

According to two sources familiar with the blacked-out portions of the Senate report that discuss the CIA cable’s contents, the document indicates that White House officials had proposed mentioning the supposed Atta-Prague meeting in a Bush speech scheduled for March 14, 2003. Originated by Czech intelligence shortly after 9/11, the tendentious claim was that in April 2001, Atta, the 9/11 hijack leader, had met in Prague with the local station chief for Iraqi intelligence. The sources said that upon learning of the proposed White House speech, the CIA station in Prague sent back a cable explaining in detail why the agency believed the anecdote was ill-founded. Read more →

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Warrick Parrots US Documentation of Iran-al Qaeda Rift, Ignores Larger Iran-Saudi Arabia Context

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Joby Warrick takes to the pages of the Washington Post again today in his primary function of regurgitating whatever points the US government wishes to make. In today’s installment, Warrick is repeating US statements on how Iran’s expulsion of Suleiman Abu Ghaith reveals a widening crack between Iran and al Qaeda, but by confining his report to the talking points he got from the government, he misses the larger context of how the Iran-al Qaeda issues fit into the overall propaganda battle between Iran and Saudi Arabia.

Here is the beginning of Warrick’s report (which he begins, of course, by crediting “US officials”):

Iran’s expulsion of a senior al-Qaeda official appears to signal a crackdown on the terrorist group that has long been granted safe haven within its borders, U.S. officials say.

Iran’s ouster of Sulaiman Abu Ghaith, a former al-Qaeda spokesman and the son-in-law of Osama bin Laden, marked at least the third time in the past year that a prominent al-Qaeda figure has left the country after living for years in a limbo between houseguest and home detainee.

U.S. officials and terrorism experts say the tougher stance appears to reflect growing tensions between Iran’s Shiite clerics and the Sunni Muslim terrorist group, particularly over the civil war in Syria, where they are backing opposing sides.

Despite the fact that the primary source of support for al Qaeda, as a “Sunni Muslim terrorist group” is Saudi Arabia, that country is never mentioned in Warrick’s report. Such an omission is especially glaring because Iran is producing much material right now in its ongoing propaganda battle against Saudi Arabia. The UN report on human rights in Iran released earlier this week provided much fodder for Iran’s propaganda machine. In the press release accompanying release of the report, the UN noted:

An independent United Nations expert today voiced serious concern about the general situation of human rights in Iran, pointing to “widespread and systemic” torture, as well as the harassment, arrest and attacks against human rights defenders, lawyers and journalists.

“The prevailing situation of human rights in Iran continues to warrant serious concern, and will require a wide range of solutions that are both respectful of cultural perspectives and mindful of the universality of fundamental human rights promulgated by the treaties to which Iran is a party,” said the Special Rapporteur on the situation of human rights in Iran, Ahmed Shaheed.

/snip/

At the same time, a “preponderance of reports” communicated to him this past year indicate that that the situation for individuals in Iran who advocate for the advancement of human rights, or those that document, report, or protest against human rights violations, is “grave and continues to deteriorate.”

People who defend the rights of women, religious and ethnic minorities, as well as those that work to advance protections for the environment, workers and children continue to be subjected to harassment, arrest, interrogation, and torture and are “frequently charged with vaguely-defined national security crimes, which is seemingly meant to erode the frontline of human rights defence in the country,” said the expert.

At Fars News, Iran is denouncing the report and Shaheed, blaming “terrorists” aligned with the West for fabrication. Remarkably, though, at Mehr News, Iran accuses Saudi Arabia of exactly the same offenses as the UN found against Iran, specifically the abuse and imprisonment of human rights activists: Read more →

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Mark Udall: Leakers on Senate Intelligence Torture Report Got Facts Wrong

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Last week, I noted that leaks to the WSJ about CIA’s response to the Senate Intelligence Torture report seemed designed to box John Brennan in, making it very difficult for him to authorize declassification of the report.

Sure enough, the very day after Brennan won confirmation, WSJ reports that CIA is not done with their review yet, but they disagree with the report’s findings.

The report examines the details of conditions under which each detainee was held and interrogated, the quality of the information provided and the accuracy of how the CIA described the program to other officials and lawmakers. It included 20 recommendations, officials said.

The report assesses the utility of information from interrogations in 20 cases and concludes that it wasn’t useful; the CIA disputes that conclusion in all but one or two of those assessments, officials said.

The CIA is objecting to the majority of the report, a senior intelligence official said.

“The overall objection was the report basically says we never in any instances got good information from this program,” another U.S. official said. “To anyone who has worked at the CIA on this issue, that’s not true.”

Even CIA officers who opposed the interrogation program acknowledge that the agency obtained useful information, the U.S. official said.

Even if Brennan wanted to declassify this report — and given his stated desire to protect CIA from criticism, he probably doesn’t want to — he’d have a hard time doing so, because it would instantly turn the torture dead-enders against him, which is not the safest way to start a job managing a bunch of talented spooks. [my emphasis]

In today’s Global Threat Assessment hearing, Mark Udall addressed the WSJ report. He revealed that the leakers behind that report had gotten basic facts about the report wrong — such as that there were 20 recommendations.

He then asked John Brennan three questions:

  • CIA officials are leaking what may or may not be official response to the report. Do you believe this is leak of CIA views?
  • Do you anticipate looking into leak?
  • There’s no new deadline for CIA comments in response to report. When can we get it?

Brennan did say the CIA was assessing the story to determine whether “there had been a disclosure.” I’m not sure whether he answered whether the leaks represented the views of the CIA.

Brennan also hedged a bit about a new deadline to respond to Congress. He would like to say comments will come back within a months time, he said (the original deadline was February 15, basically a month past already). He then promised his “firm resolve” to look at what CIA has put together and get back to the Senate Intelligence Committee.

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The Author of the White Paper, Stuart Delery, Argues Selective, Misleading Disclosures Should Not Be Checked by FOIA

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As I noted in this post, Daniel Klaidman has identified the author of the targeted killing white paper as Stuart Delery.

At the time he wrote the white paper, Delery was Senior Counselor to Attorney General Eric Holder. Last March, he became Principal Deputy Assistant Attorney General in the Civil Division of DOJ and, in the absence of an Assistant AG (or, as far as I can tell, even a nominee, in which case this feels a lot like what George Bush did with Steven Bradbury when he left the Acting head in charge for years on end), the Acting head of the Civil Division.

As I also noted, Delery actually argued the government’s case in the ACLU’s Drone FOIA on September 20, 2012. Now, that’s the ACLU’s other drone FOIA, not the one specifically requesting information that should have included the unclassified white paper Delery wrote if DOJ had answered the FOIA in good faith.

Nevertheless, it asked for closely related information:

The Request seeks a variety of records relating to the use of unmanned aerial vehicles to conduct targeted killings, including the legal basis for the strikes and any legal limits on who may be targeted; where targeted drone strikes can occur; civilian casualties; which agencies or other non-governmental entities may be involved in conducting targeted killings; how the results of individual drone strikes are assessed after the fact; who may operate and direct targeted killing strikes; and how those involved in operating the program are supervised, overseen or disciplined.

At the time ACLU submitted the request on January 13, 2010, Delery was in the Deputy Attorney General’s Office. DOJ responded to its part of the FOIA on February 3, 2010 — 16 days after DOJ worked on a briefing on targeted killing Eric Holder would make to President Obama and 15 days after he delivered that briefing — by claiming only FBI would have responsive records. When FBI searched its records it found none. DOJ made that initial response 6 days before someone in DAG — Delery’s office — wrote an email to OLC about the Holder briefing.

So while DOJ’s non-responsiveness in the drone FOIA is not as egregious as it was in the Awlaki FOIA, it’s still clear that the department Delery worked in, if not (as in the Awlaki FOIA) Delery’s work itself, was shielded from FOIA by a disingenuous FOIA response.

Yet Delery, the Acting head of the Civil Division, nevertheless decided he should argue the government’s case. Technically, Delery was arguing for CIA’s right to pretend it hadn’t confirmed its role in drone strikes in spite of repeated public statements doing just that, so he wasn’t defending the non-disclosure of his Department’s work, per se. Still, it’s not generally considered good form for a lawyer to argue a matter in which he has been so closely involved. He did so, however, at a time before we knew just how centrally involved he was in this matter.

With all that in mind, I thought I’d look at what Delery said to the DC Circuit.

MR. DELERY: May it please the Court, Stuart Delery for the Appellee, CIA.

This Court in several cases has identified two important interests that the strict test for official confirmation serves. It protects the Government’s vital interest in information related to national security and foreign affairs, and it advances FOIA’s interest in disclosure by not punishing officials for attempting to educate the public on matters of public concern because otherwise officials would be reluctant to speak on important national security matters.

Here, the Government has acknowledged that the United States makes efforts to target specific terrorists as part of its counter-terrorism operations, that as part of those operations or, in some cases, those operations involve the use of remotely piloted aircraft or drones, and it’s also described the legal framework and standards that apply in this context in a series of speeches and interviews including by the President’s counter-terrorism advisor, John Brennan, but also the Attorney General, the legal advisor to the State Department, the General Council of DOD, and as has been  referenced in yesterday’s or the recent exchange of 28J letters including a recent interview by the President. But, there’s been no official acknowledgment one way or the other about whether the CIA is involved in these particular operations. [my emphasis]

Delery suggests that a series of Leon Panetta comments (both before and after he moved from CIA to DOD) making the CIA’s role in drone killing clear should not amount to confirmation that the CIA is involved in drone killing because, he says, FOIA’s interest in disclosure should not punish public officials for attempting to educate the public.

Or, to put it another way, the Administration giving a bunch of self-serving speeches should not then make the topic of those speeches subject to FOIA because, in Delery’s mind, that would work contrary to FOIA’s support for disclosure because it would punish officials for giving self-serving speeches.

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John Brennan Sworn in as CIA Director Using Constitution Lacking Bill of Rights

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Screen shot 2013-03-08 at 1.27.57 PMAccording to the White House, John Brennan was sworn in as CIA Director on a “first draft” of the Constitution including notations from George Washington, dating to 1787.

Vice President Joe Biden swears in CIA Director John Brennan in the Roosevelt Room of the White House, March 8, 2013. Members of Brennan’s family stand with him. Brennan was sworn in with his hand on an original draft of the Constitution, dating from 1787, which has George Washington’s personal handwriting and annotations on it.

That means, when Brennan vowed to protect and defend the Constitution, he was swearing on one that did not include the First, Fourth, Fifth, or Sixth Amendments — or any of the other Amendments now included in our Constitution. The Bill of Rights did not become part of our Constitution until 1791, 4 years after the Constitution that Brennan took his oath on.

I really don’t mean to be an asshole about this. But these vows always carry a great deal of symbolism. And whether he meant to invoke this symbolism or not, the moment at which Brennan took over the CIA happened to exclude (in symbolic form, though presumably not legally) the key limits on governmental power that protect American citizens.

Update: Olivier Knox describes how the White House pushed the symbolism of this.

Hours after CIA Director John Brennan took the oath of office – behind closed doors, far away from the press, perhaps befitting his status as America’s top spy – the White House took pains to emphasize the symbolism of the ceremony.

“There’s one piece of this that I wanted to note for you,” spokesman Josh Earnest told reporters gathered for their daily briefing. “Director Brennan was sworn in with his hand on an original draft of the Constitution that had George Washington’s personal handwriting and annotations on it, dating from 1787.”

Earnest said Brennan had asked for a document from the National Archives that would demonstrate the U.S. is a nation of laws.

“Director Brennan told the president that he made the request to the archives because he wanted to reaffirm his commitment to the rule of law as he took the oath of office as director of the CIA,” Earnest said.

Update: I’m assuming this copy of the Constitution is the one Brennan used.

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The Script Opposing Declassification of the Torture Report Continues to Roll Out

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During John Brennan’s confirmation process, he answered questions about the Senate Intelligence Committee report on torture with two faces. To Saxby Chambliss in private, he said he thought the report was a prosecutorial document, set up to come to pre-ordained conclusions. Publicly, to Democrats, he said he was shocked–shocked!–by what he had read in the Executive Summary of the report.

It was quite clear that Brennan was playing the lawmakers who would get to vote on his confirmation, but they didn’t delay his confirmation to resolve the report declassification.

When Brennan’s confirmation got delayed by demands to exercise oversight, the CIA delayed its response — originally due February 15 — on the contents of the report. Indefinitely.

All of this, of course, sets up Brennan to refuse to declassify the report because he believes (and, importantly, believed from the start, according to Saxby Chambliss) that the people who have now rushed his confirmation through were acting in an unfairly prosecutorial mode when they spent 5 years documenting what CIA did in its torture program.

Sure enough, the very day after Brennan won confirmation, WSJ reports that CIA is not done with their review yet, but they disagree with the report’s findings.

The report examines the details of conditions under which each detainee was held and interrogated, the quality of the information provided and the accuracy of how the CIA described the program to other officials and lawmakers. It included 20 recommendations, officials said.

The report assesses the utility of information from interrogations in 20 cases and concludes that it wasn’t useful; the CIA disputes that conclusion in all but one or two of those assessments, officials said.

The CIA is objecting to the majority of the report, a senior intelligence official said.

“The overall objection was the report basically says we never in any instances got good information from this program,” another U.S. official said. “To anyone who has worked at the CIA on this issue, that’s not true.”

Even CIA officers who opposed the interrogation program acknowledge that the agency obtained useful information, the U.S. official said.

Even if Brennan wanted to declassify this report — and given his stated desire to protect CIA from criticism, he probably doesn’t want to — he’d have a hard time doing so, because it would instantly turn the torture dead-enders against him, which is not the safest way to start a job managing a bunch of talented spooks.

Hell, I wouldn’t be surprised if the single “senior intelligence official” from which the CIA’s perspective is represented is Brennan. Because it has been clear throughout he was working from a script that would lead to a real, probably unsuccessful, struggle to declassify the report.

And that script is rolling out precisely as expected.

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Democrats Refuse Non-Binding Resolution Limiting Presidential Drones against Non-Combatants, Too

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I noted earlier that Eric Holder suggested that a law prohibiting the use of drones against non-combatant Americans in the US would be unconstitutional.

Grassley: Do you believe Congress has the Constitutional authority to pass a law prohibiting the President’s authority to use drone aircraft to use lethal force against Americans on US soil and if not, why not?

Holder: I’m not sure that such a bill would be constitutional. It might run contrary to the Article II powers that the President has.

That’s interesting background for a move Rand Paul tried at roughly hour 8 of his filibuster.

He proposed a non-binding resolution saying precisely what Grassley had laid out 10 hour earlier, voicing the position of the Senate to be opposed to the “use of drones to target Americans on American soil who pose no imminent threat.”

As I understand it, the resolution was independent from the Brennan nomination (so it would not disrupt that, aside from a vote).

But — as just one of two Democrats to show up during this filibuster (Ron Wyden showed up in support during the 3:00 hour) — Dick Durbin showed up to oppose Paul’s unanimous consent to call for that resolution.

Durbin promised his subcommittee of the Senate Judiciary Committee would hold a hearing on drones. Nevertheless, he objected to Paul’s resolution. He suggested more Constitutional review of this simple measure was needed.

A leader of the Democratic party (and the President’s fellow Chicagoan) opposed a non-binding resolution prohibiting the use of drones in the US against non-combatants out of Constitutional concerns.

I’ve got a lot of theories why that might be. A belief this is all about making trouble for another nomination. insistence that nothing limit potential Article II claims.

But I keep thinking about the fact that there’s a wrongful death suit out there, with state secrets as the fallback claim crumbling with the public discussion.

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Incapacitating Terrorists in the US: the FBI’s Job

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Remember when I suggested that a targeted killing in the US would look a lot like the killing of Imam Luqman Abdullah in 2009 (though I’m not saying that Abdullah’s killing was a targeted killing), in which bunch of FBI’s Hostage Rescue Team members flew in from around the country, set up an “arrest” operation, sicced a dog on him, and then shot him 21 times as he tried to hold off the dog?

Here are three assertions in the letters Eric Holder and John Brennan made in response to Rand Paul’s question about whether “the President has the power to authorize lethal force, such as a drone strike, against a US citizen on US soil, and without trial,” each addressing a different agency which might conceivably conduct targeted killing.

DOD

It is possible, I suppose, to imagine an extraordinary circumstance in which it would be necessary and appropriate under the Constitution and applicable laws of the United States for the President to authorize the military to use lethal force within the territory of the Untied States.

CIA

I can, however, state unequivocally that the agency I have been nominated to lead, the CIA, does not conduct lethal operations inside the United States — nor does it have any authority to do so. Thus, if I am fortunate enough to be confirmed as CIA Director, I would have no “power” to authorize such operations.

DOJ

As a policy matter, moreover, we reject the use of military force where well-established law enforcement authorities in this country provide the best means for incapacitating a terrorist threat. We have a long history of using the criminal justice system to incapacitate individuals located in our country who pose a threat to the United States and its interests abroad. Hundreds of individuals have been arrested and convicted of terrorist-related offenses in our federal courts.

All three answers are interesting. Paul is upset that Holder said the President could use lethal military force in the US. Holder invoked Pearl Harbor and 9/11, during the latter of which the Vice President, on his sole authority, ordered DOD to shoot down domestic aircraft in the US. If Paul has a problem, he should probably also have a problem with Dick Cheney’s order on 9/11.

Brennan’s answer about the CIA is a masterpiece of misdirection. Brennan doesn’t answer whether the CIA can operate in the US, which is broadly covered by other questions Paul asked so easily could and should have been included in his answer. He uses very interesting scare quotes around power. He makes it very clear that this answer does not address the legal question of whether the CIA could do this (he says DOJ will answer that, but Holder in fact didn’t address whether CIA could be ordered to kill in the US). Most importantly, however, Brennan answers a question Paul didn’t answer: Whether the CIA Director could order the CIA to use lethal force in the US.

The CIA, of course, conducts covert operations based on Presidential authorization, not CIA Director authorization. And Brennan stopped well short of answering whether the President could authorize the CIA to conduct lethal operations in the US, and whether the Executive Branch believed the President could authorize such strikes based on his own authority. And as I said, Holder quite simply didn’t answer that question at all.

Finally, though, I love the way Eric Holder discusses trials only after talking about using law enforcement — like the FBI — to incapacitate terrorists and other evil-doers twice.

Holder didn’t comment, one way or another, on whether the President could authorize law enforcement authorities to conduct targeted killings in the US. And since the precedents for using lethal force in the white paper are domestic law enforcement cases, that use of lethal force would come with the most cover from legal precedent.

In short, none of these assertions constitutes a denial that a particular agency could, under certain circumstances, could conduct targeted killing in the US. All they say, in conjunction, is that were a targeted killing to be conducted in the US, it would most likely be conducted by law enforcement.

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