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Good Thing John Brennan Didn’t Have to Follow His “Rule Book” When He Killed Adnan al-Qadhi

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The other day, I suggested that the “rule book” John Brennan reportedly rushed to finish in case Mitt won but apparently backed off since may have been an effort to refute Michael Hayden’s criticisms of Obama’s counterterrorism strategy. Hayden has suggested that by using drones rather than torture, the Obama Administration has embraced a more ethically problematic approach.

I was just speculating, of course, that the “rule book” was nothing more than a show for the benefit of Hayden, to try to pretend the drone program wasn’t as ad hoc as it looks and as Hayden has suggested.

Yet I find it interesting that less than a day after Mitt Romney didn’t win the election, Brennan’s drone program took out a Yemeni who–by local accounts, at least–could have easily have been captured.

American counterterrorism officials have painted drone strikes as a tool of last resort, utilized only when targets represent an imminent threat and are nearly impossible to take out by other means. But people in Beit al Ahmar say it’s hard to argue that [Adnan al-]Qadhi’s capture would have been out of the question. He’d already been arrested, and released, before, in 2008 after an attack on the American Embassy. And Beit al Ahmar, nine miles outside Yemen’s capital, Sanaa, is no isolated enclave – it’s the birthplace of former President Ali Abdullah Saleh and home to much of the military’s leadership.

Sitting less than an hour’s drive from the capital, residents here say Qadhi could have been captured easily.

[snip]

Few here dispute Qadhi’s open sympathy toward AQAP. After all, the target’s house, modest compared to nearby fortress-like compounds, sticks out because of a mural on one side that shows al Qaida’s signature black flag.

But his relatives and associates say there’s more nuance to Qadhi’s story. While he was labeled as a local leader of AQAP after his death, as recently as last winter he’d participated on a team that mediated between the government and AQAP-linked militants who’d seized control of the central town of Rada.

Back in April–the last time Drone Assassination Czar John Brennan was making a big show of the purported order of his drone program–here’s some of what he said about who the US targeted with drones.

Even if it is lawful to pursue a specific member of al-Qaida, we ask ourselves whether that individual’s activities rise to a certain threshold for action, and whether taking action will, in fact, enhance our security. For example, when considering lethal force we ask ourselves whether the individual poses a significant threat to U.S. interests.  This is absolutely critical, and it goes to the very essence of why we take this kind of exceptional action.

[snip]

I am not referring to some hypothetical threat, the mere possibility that a member of al-Qaida might try to attack us at some point in the future.  A significant threat might be posed by an individual who is an operational leader of al-Qaida or one of its associated forces.  Or perhaps the individual is himself an operative, in the midst of actually training for or planning to carry out attacks against U.S. persons and interests.

[snip]

In addition, our unqualified preference is to only undertake lethal force when we believe that capturing the individual is not feasible. [my emphasis]

Of course, I’ve suggested that the entire speech was bullshit, just an attempt to prepare an intent-based defense in case Brennan ever got in trouble for killing so many illegitimate targets.

But the case of Adnan al-Qadhi appears to show that John Brennan can’t even follow the rules he has claimed publicly he follows.

And that bit about whether or not a particular drone strike would enhance our security?

Here’s what al-Qadhi’s villagers–who up until this strike were peaceful–have to say about the strike.

In the center of the village, a farmer named Abduljaber Saber held forth on the strike with his neighbors, calling the attack a violation of the rule of law, casting it as an example of “American hypocrisy.”

His neighbor, Mohamed Abdulwali, took a break from repairing a water canister to chime in: “Any action has a reaction. Any violence will breed violence.”

John Brennan, the priest-like assassination czar, doesn’t seem to be following his own rules.

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Is the Drone “Rule Book” an Effort to Force Kill-Not-Capture?

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After reading the response to Scott Shane’s article on the drone rule book, I wanted to add a few thoughts.

First, much of the treatment of the article treated the description of the rule book itself as news. It’s not. Greg Miller discussed the effort in an article last month.

White House counterterrorism adviser John O. Brennan is seeking to codify the administration’s approach to generating capture/kill lists, part of a broader effort to guide future administrations through the counterterrorism

The news in the Shane article is that the effort to codify the drone program accelerated–and now has lost urgency–because of the possibility that someone like Cofer Black rather than John Brennan would be running the drone program in a Romney Administration.

Facing the possibility that President Obama might not win a second term, his administration accelerated work in the weeks before the election to develop explicit rules for the targeted killing of terrorists by unmanned drones, so that a new president would inherit clear standards and procedures, according to two administration officials.

The matter may have lost some urgency after Nov. 6. But with more than 300 drone strikes and some 2,500 people killed by the Central Intelligence Agency and the military since Mr. Obama first took office, the administration is still pushing to make the rules formal and resolve internal uncertainty and disagreement about exactly when lethal action is justified.

That’s why I’m not sure we should assume that Obama ever intended the rules as limits on what Mitt’s Administration might do.

There are at least two other possibilities.

While it’s unclear whether this rule book effort is just part of or is the same thing as the disposition matrix also described in Miller’s article, that article does make it fairly clear the codification effort strives to make the drone program more permanent, even to streamline it (and to centralize it under oversight-free White House personnel rather than the Joint Chiefs).

Targeted killing is now so routine that the Obama administration has spent much of the past year codifying and streamlining the processes that sustain it.

This year, the White House scrapped a system in which the Pentagon and the National Security Council had overlapping roles in scrutinizing the names being added to U.S. target lists.

Now the system functions like a funnel, starting with input from half a dozen agencies and narrowing through layers of review until proposed revisions are laid on Brennan’s desk, and subsequently presented to the president.
[snip]
For an administration that is the first to embrace targeted killing on a wide scale, officials seem confident that they have devised an approach that is so bureaucratically, legally and morally sound that future administrations will follow suit. [my emphasis]

That is, the rush to implement the rule book may have been an effort to ensure the program’s permanence, to force Mitt to keep it.

And while there’s no doubt he would have (as Miller pointed out in his article), consider the alternative. Mitt’s Administration likely would have included the architect of the torture program, Cofer Black, and a former CIA Director, Michael Hayden, who has repeatedly called for retaining the torture program.

The effort to institutionalize the drone program may have been a bid to sustain the kill-not-capture preference of the Obama Administration (though the “disposition matrix” appears to have been an effort to invent some alternatives for live capture that Obama hasn’t much used). Though any effort to dictate choices to the dangerously creative Black, I suspect, would have been futile.

There’s one other related possibility.

Hayden, in particular, has been vocal about what the choice to end torture has purportedly brought about: precisely that kill-not-capture choice. Even while defending torture, Hayden has been fairly aggressive in noting how much killing the Obama approach has entailed.

Might it be, then, that the effort to draft a set of “rules” for drone killing was really an effort to make the program look more rational and measured than it has been in practice, to put the best spin on it before another bureaucrats from another party got fully briefed on it?

As Shane notes, Obama’s folks still haven’t decided when and how they use drone killing.

Mr. Obama and his advisers are still debating whether remote-control killing should be a measure of last resort against imminent threats to the United States, or a more flexible tool, available to help allied governments attack their enemies or to prevent militants from controlling territory.

So even four years in, the program is in fact an ad hoc mess, even if the Administration claims it is not.

And there are a number of killings or targetings that occurred under the Obama Administration–the incidents where “allies” gave us bad targeting data so we would kill their political rivals, the signature strikes that killed civilians, and even the targeting of Americans whom the intelligence community believed were not yet operational–that might be embarrassing if further details were leaked by the incoming Administration.

These awkward targetings are almost certainly precisely the reason the Administration refuses to make more information about its targeting program public: because they prove the program was never as orderly or legally sound as the Administration publicly claims. So the “rule book,” purporting to show the reasoned deliberations behind these screw-ups, might be one way to spin them as reasoned (and legal). I have suggested that some of the public statements about the drone program might have served as legal cover if ever anyone thought to prosecute Administration officials for killing civilians. Perhaps this “rule book” was designed to do the same?

Thus far, most of the treatment of the “rule book” has presumed it was meant to be prescriptive, and it might well have been. But it’s also possible the “rule book” was meant to be (falsely) descriptive, an effort to spin the program just as a group of potential critics got read into the program.

Update: Matthew Aid’s take on this seems to support my suspicions: this “rule book” is about the eventual review of this program.

A State Department official who recently left his post for a better paying job in the private sector admitted that there is deep concern at State and Justice that sooner or later, a court in the U.S. or in The Hague will issue a ruling on the question of the legality of these missions, which many in Washington fear will go against the U.S. government position that these strikes are legal.

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White House Attempts Again To Do In Secret What Requires Transparency, Law

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For the last year, the Administration has been grasping at ways to give its drone program the semblance of legal and moral justification. It started a year ago with a debate in the Situation Room over how to provide transparency on the drone program without hurting the Administration’s legal stance refusing transparency.

The calls for transparency in discussing the Awlaki strike were batted away at first. But behind the scenes, several prominent lawyers in the national-security bureaucracy began lobbying their colleagues and superiors for some degree of disclosure. Among them were Jeh C. Johnson, the Defense Department general counsel, and Harold Hongju Koh, the State Department legal adviser. The national-security “principals” quickly divided into camps. The CIA and other elements of the intelligence community were opposed to any disclosures that could lift the veil of secrecy from a covert program. Others, notably the Justice and State departments, argued that the killing of an American citizen without trial, while justified in rare cases, was so extraordinary it demanded a higher level of public explanation.

[snip]

The issue came to a head at a Situation Room meeting in November. At lower-level interagency meetings, Obama officials had already begun moving toward a compromise. [snip]

Another senior official expressing caution about the plan was Kathryn Ruemmler, the White House counsel. She cautioned that the disclosures could weaken the government’s stance in pending litigation. 

[snip]

It came down to what Denis McDonough, the deputy national-security adviser, cheekily called the “half Monty” versus the “full Monty,” after the British movie about a male striptease act. In the end, the principals settled on the half Monty. As the State Department’s Koh continued to push for the maximum amount of disclosure, McDonough began referring to that position as “the full Harold.”

It continued through a series of high level speeches early this year. The centerpiece of that series featured the Attorney General celebrating our values, the Constitution, and rule of law, then noting the importance of judicial oversight (though in the case of surveillance, not killing), but finally rejecting all those things when it comes to killing American citizens.

But just as surely as we are a nation at war, we also are a nation of laws and values.  Even when under attack, our actions must always be grounded on the bedrock of the Constitution – and must always be consistent with statutes, court precedent, the rule of law and our founding ideals.   Not only is this the right thing to do – history has shown that it is also the most effective approach we can take in combating those who seek to do us harm.

[snip]

We must – and will continue to – use the intelligence-gathering capabilities that Congress has provided to collect information that can save and protect American lives.   At the same time, these tools must be subject to appropriate checks and balances – including oversight by Congress and the courts, as well as within the Executive Branch – to protect the privacy and civil rights of innocent individuals.

[snip]

Any decision to use lethal force against a United States citizen – even one intent on murdering Americans and who has become an operational leader of al-Qaeda in a foreign land – is among the gravest that government leaders can face.   The American people can be – and deserve to be – assured that actions taken in their defense are consistent with their values and their laws.   So, although I cannot discuss or confirm any particular program or operation, I believe it is important to explain these legal principles publicly.

[snip]

Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces.   This is simply not accurate.   “Due process” and “judicial process” are not one and the same, particularly when it comes to national security.   The Constitution guarantees due process, not judicial process. [my emphasis]

These themes appeared again in an Obama interview with CNN in September. The President insisted that the best way to reduce the terrorist threat is to live up to our values.

Our most powerful tool over the long term to reduce the terrorist threat is to live up to our values and to be able to shape public opinion not just here but around the world that senseless violence is not a way to resolve political differences. And so it’s very important for the President and for the entire culture of our national security team to continually ask tough questions about, are we doing the right thing? Are we abiding by rule of law? Are we abiding by due process? And then set up structures and institutional checks so that you avoid any kind of slippery slope into a place where we’re not being true to who we are. [my emphasis]

As I noted at that time, Obama’s Administration has rejected the best tool for ensuring we live by our laws and values: court review.

Having started by saying that drones are just a tool, he ends up by saying that we will vanquish terrorism by upholding our values–rule of law and due process.

And then the Constitution Professor President describes “set[ting] up structures and institutional checks” to make sure that we deliver rule of law and due process.

This, from the guy whose Administration refused to litigate a suit from Anwar al-Awlaki’s father to make sure it was upholding the standards Obama claimed in this interview in Awlaki’s case.

This, from the guy whose Administration has claimed state secrets to make sure no court can review the claims of people who have been rendered or tortured or illegally wiretapped.

This, from the guy who wouldn’t do the politically difficult things to have Khalid Sheikh Mohammed tried–and surely, convicted–before a civilian court in NYC.

He’s looking for structures and institutional checks to make sure we don’t go down that slippery slope where we forget rule of law. And yet his Administration has repeatedly avoided the one mandated by the Constitution: courts.

In October we learned that the Administration had charged the Moral Rectitude Assassination Czar to set up structures to make sure the program didn’t go haywire if Obama’s assassination czars were replaced by Mitt’s.

That effort continues, Scott Shane reports today, though with slightly less urgency now that we know John Brennan (or his replacement) will be targeting the drones rather than Cofer Black.

Read more →

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The Moral Rectitude Assassination Czar

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Back in April and May, when John Brennan seized control of the drone targeting process purportedly in the interest of “showing the American public that al-Qaida targets are chosen only after painstaking and exhaustive debate,” an extensive NYT article—providing a picture of drone targeting as done before Brennan had consolidated control of it–described Brennan in religious terms. Among other descriptions offered of the guy in charge of drone assassinations, Harold Koh described him as a priest.

“If John Brennan is the last guy in the room with the president, I’m comfortable, because Brennan is a person of genuine moral rectitude,” Mr. Koh said. “It’s as though you had a priest with extremely strong moral values who was suddenly charged with leading a war.”

That same formulation–moral rectitude–shows up in Karen DeYoung’s profile of John Brennan today.

Some White House aides describe him as a nearly priest-like presence in their midst, with a moral depth leavened by a dry, Irish wit.

One CIA colleague, former general counsel John Rizzo, recalled his rectitude surfacing in unexpected ways. Brennan once questioned Rizzo’s use of the “BCC” function in the agency’s e-mail system to send a blind copy of a message to a third party without the primary recipient’s knowledge.

“He wasn’t joking,” Rizzo said. “He regarded that as underhanded.”

That’s not all that surprising. After all, DeYoung may have talked to Koh for this article, or “moral rectitude” may just be a well rehearsed line inside the White House.

Having anyone question Rizzo’s ethics, however, is no evidence of moral rectitude.

Indeed, the article–and the last set of similar articles–suggests Brennan does not exercise the moral rectitude the anonymous White House sources claim. Last time around, after all, the articles told how Brennan shut down signature strikes and war in Yemen. But by the time the articles came out, he had approved them.

This time around, the article notes Brennan’s belief CIA shouldn’t be in the paramilitary business, but approved such activities operating out of Djibouti. He is about to approve more drones because Petraeus wants them rather than fixing our HUMINT weaknesses. Similarly, Brennan’s moral rectitude on Mali involvement has faded.

It’s in light of this false myth of Brennan’s moral rectitude that I want to look more closely at the most remarked lines of this story.

In them, an anonymous Administration official seemingly shows regret for the killing of Abdulrahman al-Awlaki (as I noted at the time, the big profiles in May both were utterly silent about Abdulrahman).

Two administration officials said that CIA drones were responsible for two of the most controversial attacks in Yemen in 2011 — one that killed American-born cleric Anwar al-Awlaki, a prominent figure in al-Qaeda in the Arabian Peninsula, and a second a few days later that killed his 16-year-old son, also an American citizen. One of the officials called the second attack “an outrageous mistake. . . . They were going after the guy sitting next to him.”

Note, last year, Greg Miller reported JSOC carried out the Abdulrahman strike.

On Sept. 30, Awlaki was killed in a missile strike carried out by the CIA under Title 50 authorities — which govern covert intelligence operations — even though officials said it was initially unclear whether an agency or JSOC drone had delivered the fatal blow. A second U.S. citizen, an al-Qaeda propagandist who had lived in North Carolina, was among those killed.

The execution was nearly flawless, officials said. Nevertheless, when a similar strike was conducted just two weeks later, the entire protocol had changed. The second attack, which killed Awlaki’s 16-year-old son, was carried out by JSOC under Title 10 authorities that apply to the use of military force.

The detail matters, because ongoing FOIAs for information on Abdulrahman’s death face a higher bar if CIA carried out the attack than if JSOC did (Brennan’s laughable claim to want DOD to carry out these strikes so they will be transparent is another of the instances in the story where his moral rectitude proves infinitely flexible).

But it’s the statement itself–“an outrageous mistake. . . . They were going after the guy sitting next to him”–that I find even more laughable. Partly it’s word choice. Who says “outrageous mistake”? Normally, you’d expect someone to say “horrible mistake,” because if it’s a “mistake” then there’s no intent or poor judgment to get outraged about (unless the targeting here, overseen by Brennan personally, was particularly incompetent–but that’s the kind of thing these Kill List articles assure us could never happen).

Besides, according to the rules exposed in the last set of Kill List articles, Abdulrahman qualifies as a legitimate target. He’s a military aged male. Therefore, according to the rules of targeting, hitting him wasn’t a mistake at all. He was a militant considered an acceptable target by the moral rectitude Assassination Czar.

And all that’s before you consider that every other American killed by drones–Kamal Derwish, who purportedly died as “collateral damage” in the Abu Ali al-Harithi strike; Anwar al-Awlaki, who was first missed on December 24, 2009 in a strike purportedly targeting someone else, WikiLeaks evidence to the contrary notwithstanding (at a time when the Intelligence Community didn’t consider Awlaki operational); and Samir Khan, who died as collateral damage in the Awlaki strike–were or were going to be collateral damage at one point. That’s a lot of collaterally damaged inconvenient Americans.

Do people at the White House regret that they keep getting questions about the dead American teenager? Do they regret the almost nonexistent political fallout that has resulted? Do they feel a tinge of guilt that their rules make killing a teenager legal? Perhaps.

But the performance of morality in the Abdulrahman statement–like the moral rectitude rehearsed once again in a John Brennan article–is unconvincing.

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Turning the Drone Program into a Weekly Lawn Maintenance Program

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Greg Miller has the first of what will be three articles on Obama’s efforts to institutionalize drone war in today’s WaPo. After describing the Administration’s efforts to systematize eliminating counterterrorist targets identified through a formalized process, he concludes with a reflection on how such systematization of the drone war might backfire.

In focusing on bureaucratic refinements, the administration has largely avoided confronting more fundamental questions about the lists. Internal doubts about the effectiveness of the drone campaign are almost nonexistent. So are apparent alternatives.

“When you rely on a particular tactic, it starts to become the core of your strategy — you see the puff of smoke, and he’s gone,” said Paul Pillar, a former deputy director of the CIA’s counterterrorism center. “When we institutionalize certain things, including targeted killing, it does cross a threshold that makes it harder to cross back.”

For a decade, the dimensions of the drone campaign have been driven by short-term objectives: the degradation of al-Qaeda and the prevention of a follow-on, large-scale attack on American soil.

Side effects are more difficult to measure — including the extent to which strikes breed more enemies of the United States — but could be more consequential if the campaign continues for 10 more years.

“We are looking at something that is potentially indefinite,” Pillar said. “We have to pay particular attention, maybe more than we collectively have so far, to the longer-term pros and cons to the methods we use.”

The entire article adds to the sense that drones have become a tactic in search of a strategy. Click through for Bruce Reidel’s analogizing of drones to mowing lawns.

Needless to say, the entire thing is worth reading.

I’m interested, as well, in a few of the details Miller provides.

He describes Brennan’s assumption of the Drone Assassination Czar role reported earlier this year, providing Brennan’s logic for why it’s a good thing he–rather than the Chairman of the Joint Chiefs–manages all the targeting.

Now the system functions like a funnel, starting with input from half a dozen agencies and narrowing through layers of review until proposed revisions are laid on Brennan’s desk, and subsequently presented to the president.

Video-conference calls that were previously convened by Adm. Mike Mullen, then-chairman of the Joint Chiefs of Staff, have been discontinued. Officials said Brennan thought the process shouldn’t be run by those who pull the trigger on strikes.

“What changed is rather than the chairman doing that, John chairs the meeting,” said Leiter, the former head of the NCTC.

One of the reasons Brennan is in the position he is is because he wasn’t considered confirmable: his background with torture (and illegal wiretapping) made him politically toxic. And yet this guy, who hasn’t been Senate confirmed and whose position evades almost all Congressional oversight, is the guy with power over life and death rather than a position over which Congress does exercise clear oversight?

And this detail–which echoes descriptions in earlier Miller stories as well as the Angler 2.0 story from earlier this year–haunts me.

Obama approves the criteria for lists and signs off on drone strikes outside Pakistan, where decisions on when to fire are made by the director of the CIA. But aside from Obama’s presence at “Terror Tuesday” meetings — which generally are devoted to discussing terrorism threats and trends rather than approving targets — the president’s involvement is more indirect.

“The president would never come to a deputies meeting,” a senior administration official said, although participants recalled cases in which Brennan stepped out of the situation room to get Obama’s direction on questions the group couldn’t resolve.

There are a number of famous examples where top White House officials claim to consult the President on an issue but–history ends up showing–never did (I suspect the Plame outing is just one of many things Cheney did this with, for example, and Al Haig used to do it too). Is there any reason we should believe that when Brennan steps out of the room he’s actually consulting Obama, or that he’s representing an apparently contentious debate faithfully? This is classic gatekeeping behavior, and on something as important as targeting, ought to concern everyone.

But it’s not just Brennan we need to worry about. This article also talks about how central the National Counterterrorism Center has become to all this.

The administration has also elevated the role of the NCTC, which was conceived as a clearinghouse for threat data and has no operational capability. Under Brennan, who served as its founding director, the center has emerged as a targeting hub.

Other entities have far more resources focused on al-Qaeda. The CIA, JSOC and U.S. Central Command have hundreds of analysts devoted to the terrorist network’s franchise in Yemen, while the NCTC has fewer than two dozen. But the center controls a key function.

“It is the keeper of the criteria,” a former U.S. counterterrorism official said, meaning that it is in charge of culling names from al-Qaeda databases for targeting lists based on criteria dictated by the White House.

“The keeper of the criteria”! This concerns me, first of all, because NCTC is totally data driven. As the article’s discussion of relative staffing suggests, NCTC’s analysts aren’t doing a whole lot more beyond datamining.

Moreover, while the context here is clearly foreign targeting, remember what happened earlier this year: NCTC got the authority to access all government databases–including social security databases or tax records–that it deems to have a counterterrorist purpose. Which means some very personal data is part of the NCTC borg–along with inaccurate reports such as that Ford Motor Company is a terrorist suspect. That is, NCTC’s are maximalist databases, not terrible accurate ones, and ones that include a lot of American citizens.

And that’s the entity that’s “the keeper of the criteria.”

That’s a problem.

The larger story clearly shows that the Administration is making drone killing a factory process, that needs to be fed with Muslim men like fuel. But it also reinforces the picture of a dangerous concentration of power in some highly unaccountable hands.

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Latif’s Unexplained Death: Yemeni Government Facilitates US Stall

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Jason Leopold has an important story on Adnan Farhan abd al Latif’s unexplained death. He provides more detail of Latif’s struggles with his 1994 head injury the government claimed wasn’t the reason for his 2001 trip to Pakistan. He describes how Latif’s family–including his 14 year old son Ezzi Deen–responded to the news Latif had died at Gitmo.

But most importantly, Leopold adds more details to those reported by ProPublica on Latif’s death and subsequent limbo.

When Latif died, people–including me–suggested he might have finally found a way to kill himself. But as Leopold points out, with every suicide at Gitmo, DOD has released details on the obvious signs of that suicide. And a Gitmo spokesperson has repeatedly confirmed there was no immediately apparent evidence of suicide.

But in a statement to the Associated Press two days after Guantanamo officials announced the death of a prisoner without naming him, Durand said, “There is no apparent cause, natural or self-inflicted.”

Durand explained to Truthout at the time he made that statement he was responding to a reporter’s query: “Would you call it an apparent suicide or natural causes?”

Now, however, “It would be inappropriate to speculate on the cause of death at this time.”

There was nothing to “immediately suggest ‘apparent suicide,'” Durand said, and the death is being investigated by “multiple entities.”

A Yemeni official reflecting information presumably passed from John Brennan to Yemeni President Abed Rabu Mansour Hadi when they met on September 28 confirms the government appears to have ruled out suicide.

The Yemeni government official told Truthout that US officials appear to have ruled out suicide as the manner of his death.

Leopold quotes Cyril Wecht suggesting convulsions (possibly associated with his brain injury) or drugs may have had a role in Latif’s death.

Meanwhile, no one can perform independent analysis on Latif’s body, because the government has stashed it at Ramstein Air Base in Germany. The US and Yemeni governments continue the same story shared with ProPublica: the Yemenis won’t accept the body until they get a report on why he died, the US hasn’t provided that, so the body decays in US custody.

[Latif’s brother] Muhammed said the family was told by Yemen’s Ministry of Foreign Affairs that his brother’s remains would be sent home within two weeks after his death. The Ministry of Foreign Affairs, according to Muhammed, obtained that information from the Yemen Embassy in Washington, DC.

But according to a Yemeni official, the Yemen government refused to accept Adnan’s body until they receive a full accounting of the cause of his death.

[snip]The Yemeni government official’s comments about Adnan were obtained during an interview late last month when President Hadi visited the United States. His statements about Adnan were made in the context of discussions Hadi had with top US officials in the White House about the remaining Yemeni detainees in Guantanamo and Afghanistan.

Tick tock.

Tick tock.

Latif died 40 days ago. Just 19 days remain before the election. Between them, the US and Yemeni governments have forestalled the time when the US has to admit a man–the sole evidence against whom was a flawed intelligence report written while Pakistanis were trying to convince us to pay a bounty for Latif–died of unnatural causes in their custody. Possibly, they will have to admit complications of the same head injury they claimed, in court, was not all that serious, killed him.

And it appears John Brennan may be buying Hadi’s complicity on this front with promises he may not be able to keep. Leopold’s Yemeni source makes clear that the US and Yemeni government have tied discussions of the release of the other Yemenis in Gitmo and Bagram to the fate of Latif’s body.

“President Hadi was in Washington, DC, and met with President Obama’s cabinet ministers,” the official said. “The remaining Yemeni detainees was one of the talking points. President Hadi has made Guantanamo and Bagram [prison in Afghanistan] a high priority for Yemen. We are emphasizing talks and opening up a dialogue to ensure the timely release and transfer and rehabilitation of those remaining detainees to Yemeni custody and we are working closely with the US government. These discussions took place with high-level officials in the Obama administration.” [brackets original]

I can imagine a quid pro quo that goes this way: Hadi agrees to refuse to accept the body, helping to forestall announcements of how Latif died, until after the election. And then the US will enter discussions to do what they should have done 2 years ago: release the Yemenis who don’t pose a threat to the US.

But all that’s premised on getting Congressional support to release roughly 60 Yemenis, after the Administration already neutralized the one point of leverage–detainee wins in habeas proceedings–that has worked to override Congressional intransigence in the past.

To some degree, I can’t blame Hadi for doing the bidding of the superpower that put him in power, on whose continued military support he relies. I can’t blame Hadi for trading Latif’s decaying corpse for the fate of 60 other Yemenis unjustly held at Gitmo.

But if that’s the trade-off, I do question Hadi’s judgment for believing Obama will do in a second term what he had easier ways of doing–habeas proceedings–in the first.

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The Evolution of the “Obama Doctrine” after Benghazi

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The other day, I wondered whether using three C-130s to bring a team of FBI Agents to Benghazi was overkill. And while I was able to get some kind of explanation (1 transport, 1 decoy, 1 to bring the toys), given this report on all the Special Forces C-130s swarming out of Crete…

In the last weeks, an unsual, covert, constant activity of U.S. Special Operations planes has been recorded in the Mediterranean Sea. Quite regularly, taking off from Souda Bay, in Crete, various types of “Special Hercules”, including  MC-130Ps, MC-130Hs, HC-130P, and AC-130U gunships, performed day and night missions in the Libyan airspace whose purpose has yet to be fully unveiled.

As well as very vague reports that the Special Forces were not just protection–but were “helping gather intel”–in Benghazi, I’m not so sure.

Special Forces were always likely to help investigate this killing, but it appears there’s some kind of funky hybrid going on, the latest iteration of partnership between our National Security agencies in the war on terror.

And today, John Brennan headed to Libya to meet with Mohammed Magarief, who has been trying to consolidate national power even while the Prime Minister elect was ousted in a failure to form an acceptable government.

It’s against that background that this WaPo piece offers some key insight.

Before I get into it, I’m using “Obama Doctrine” as David Sanger did in his book. I think it’s a bogus term, but it’s the evolution in policy Sanger described as Obama moved away from CounterIntelligence in Afghanistan, to Counterterrorism, to a belief that partners and locals could carry out the fighting in Libya and elsewhere. The problem with that plan, I’ve always believed, is it offers no better solutions and some worse problems in how you establish the security and institution-building that countries need to have viable economies and legal systems. You’re still faced with the whole failed state problem.

In addition to general Islamist sentiment, Ambassador Steves’ assassination happened in an environment where the government was trying to nurture regime change and nation reformation without the military footprint we had in Afghanistan and Iraq. While Stevens appears to have had real security concerns, he also apparently pushed to have an open presence and to encourage capacity building in Libyans. Arguably, that’s part of what got him killed.

The WaPo catches us up to what kind of dilemmas that presents now as we try to find the best way to respond.

Should it rely on the FBI, treating the assaults on the two U.S. compounds like a regular crime for prosecution in U.S. courts? Can it depend on the dysfunctional Libyan government to take action? Or should it embrace a military option by ordering a drone strike — or sending more prisoners to Guantanamo Bay?

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Barack Obama (and the Three Musketeers of Selective Leaking) Says Barack Obama Wanted an OBL Trial

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The AP made some news yesterday with this Barack Obama quote from Mark Bowden’s new book, The Finish.

Frankly, my belief was if we had captured him, that I would be in a pretty strong position, politically, here, to argue that displaying due process and rule of law would be our best weapon against al-Qaida, in preventing him from appearing as a martyr.

It’s a quote repeated and expanded in this exclusive piece from Vanity Fair, which will have an excerpt of the book in its next edition.

Now, both of these excerpts make it clear: This is a direct quote of an Obama claim, made after the fact. But if that didn’t already make you suspect the political efficacy of telling this story just weeks before the election, check out Bowden’s acknowledgements, above.

Not only does Bowden thank the Three Musketeers of Obama’s selective leaking, John Brennan, Tom Donilon, and Denis McDonough.

But it also thanks Obama personally.

(It also thanks CIA Director David Petraeus, a man who never met press coverage he didn’t like.)

Look, I’d love to imagine that Obama would have made the political effort to give Osama bin Laden a trial had he been captured alive. I’ve even rationalized how much easier that would be, given that we presumably would avoid the whole torture phase that has made trying Khalid Sheikh Mohammed.

There are both political and legal reasons why it serves Obama’s interests to say he considered the possibilities of a live capture followed by a trial. And given how closely Bowden worked with those trying to make the most of Obama’s OBL killing, I don’t see any reason to treat the claim as credible.

And this book–with Obama’s top aides identified as sources so clearly–is yet another reason why I think Mark Bissonnette won’t experience any legal troubles for publishing a book covering the same topic.

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Why Is Jose Rodriguez Hanging Out John Brennan NOW?

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I’m no fan of either Jose Rodriguez or John Brennan. So I take no pleasure that the former is blaming the latter for a big intelligence scam carried out against the CIA back in the day.

As head of the multi-agency Terrorist Threat Integration Center in 2003 and 2004, Brennan disseminated to the Bush White House a stream of CIA intelligence from a bogus source, former CIA officials say. Ridiculed by some with the CIA, the bogus intelligence nevertheless led to disruption in the U.S. and abroad, including an orange terror alert and the cancellation of dozens of international flights.

[snip]

At the CIA, the information was controversial from the beginning, and many agency officials said at the time that it should not have been distributed. Jose Rodriguez, who was directing the CIA’s Counterterrorism Center, said the CTC viewed the intelligence as “crazy.”

“We were very skeptical,” Rodriguez recalled.

[snip]

“It was briefed by John. He was the guy who was bringing it there,” said Rodriguez, who added that he believes Brennan was trying to build up his own profile. “My own view is he saw this, he took this, as a way to have relevance, to take something important to the White House.”

But I am interested in why Rodriguez is doing this now–particularly since, as Defense News points out, he chose not to do so in his own book.

I can think of three possible reasons this is coming out now–they’re all wildarsed guesses. It’s possible that Brennan’s star is fading, so he’s vulnerable now in a way he wasn’t before.

It’s possible that some story behind the underlying scam this guy–Dennis Montgomery–carried out against the government is about to unfold. Read more →

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DOD Gets Awfully Sensitive When They’re Cornered

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Just about every outlet that reported on George Little’s whine about Matt Bissonnette’s book yesterday claimed that Little had said there was “classified” information in the book.[all emphasis in this post mine]

CNN: A Pentagon official said Tuesday that a former Navy SEAL who helped kill Osama bin Laden included classified material in his new book and did not follow protocol for pre-publication review.

AP: George Little said that an official review of the book, “No Easy Day,” determined that it reveals what he called “sensitive and classified” information.

ABC: Top Pentagon officials said today that a controversial firsthand accountof the nighttime raid that killed Osama bin Laden written by a former U.S. Navy SEAL reveals classified information and could endanger other special operations servicemen.

Fox: “Sensitive and classified information is contained in the book,” Pentagon spokesman George Little told reporters in Washington. “It is the height of irresponsibility not to have this material checked.”

The reality is far more telling. Little did not commit to saying there was classified information in the book until cornered after repeated questions by the press. The transcript is worth reviewing in more detail since, if this ever gets litigated, Little’s hesitation to claim the book included classified information will become an issue.

In response to the first question on Bissonnette’s book, Little gave what was probably his rehearsed answer to it. He focused on Bissonnette’s failure to do a prepublication review (remember, Bissonnette’s lawyer, Bob Luskin, says such a review was recommended but not required). And when discussing the actual review, Little said there was sensitive information; only later, speaking more generally, did Little say “sensitive and classified.”

George, on the separate issue, on the SEAL book, has the department made a decision yet on whether to take any legal action regarding this and on whether or not there is classified material in the book, and if there — if, indeed, you’ve determined there is, can you tell us what it is and what action may or may not be taken at this point?

MR. LITTLE: Thank you very much, Lita, for that question. We continue to review our options when it comes to legal accountability for what in our estimation is a material breach of nondisclosure agreements that were signed by the author of this book.

With respect to the information that’s contained in the book, people inside the department have read it. And we do have concerns about some of the sensitive information that we believe is contained in it. I’m not going to get out ahead of what the process going forward might be and what options we might decide to pursue, but this is a very serious concern that we have.

When it comes to sensitive special operations missions, such as the operation that took down Osama bin Laden, it is important that those who are involved in such operations take care to protect sensitive and classified information. And if I had been part of the raid team on the ground and I had decided to write a book about it, it wouldn’t have been a tough decision for me to submit the book for pre-publication review. That is common sense. It’s a no-brainer. And it did not happen.

Thus far into the process, the press wasn’t buying Little’s slight of hand. He gets a followup on the sensitive/classified distinction, which he dodges by focusing on pre-publication review again.

Q: Will you — just as a follow-up — you made a distinction between sensitive and classified. So is the determination that it is sensitive information there and not classified? And also, is there any determination on whether the book will be sold on — on bases (off mic)

MR. LITTLE: There’s been no directive from this department to withhold sale of the book from military exchanges. This book is being made widely available in bookstores and online. It is not our typical practice to get into the business of deciding what and what does not go on bookshelves in military exchanges. But that doesn’t mean in any way, shape or form that we don’t have serious concerns about the fact that this process of pre-publication review was not followed.

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