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Obama Administration Stokes Embers of GOP Interest in Oversight by Blowing Off Targeted Killing Hearing

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Boy, what fucking idiots run DOJ (and, presumably, the Obama Administration generally).

As I noted when I first remarked on Bob Goodlatte, the new Chair of the House Judiciary Committee, showing some interest in the targeted killing memo, a perceived slight on Congressional prerogative (and perhaps a suspicion that paranoid levels of secrecy tends to indicate misconduct somewhere) seemed to get mainstream Republicans like Goodlatte interested in the targeted killing program for the first time.

And then HJC decided to hold a hearing on targeted killing, something solidly within their jurisdiction. And then Goodlatte invited a representative from DOJ, something they get to do to conduct oversight.

And then DOJ blew off HJC.

Whoo boy! You had Trey Gowdy, of all people, out there endorsing the idea of killing people in everything from hot pursuit to stand your ground contexts, but still demanding oversight in this case. You had Republican after Republican (and more Republicans did show up, even given the committee imbalance) show an interest in the proper limits to a President’s authority to kill. Republican after Republican (plus a few Democrats, including John Conyers) complained that the Administration had blown off the committee.

I mean, I’ll take it. If the Administration wants to stupidly give the GOP a reason to make this a political issue, I’m happy to finally have someone pushing for oversight in this area.

But I can’t imagine what kind of stupidity drove the decision to blow off the committee.

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

“Side payment targets.” Wow. Evocative.

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

Lamar Smith’s Futile Leak Investigation

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Lamar Smtih has come up with a list of 7 national security personnel he wants to question in his own leak investigation. (h/t Kevin Gosztola)

House Judiciary Committee Chairman Lamar Smith, R-Texas, told President Obama Thursday he’d like to interview seven current and former administration officials who may know something about a spate of national security leaks.

[snip]

The administration officials include National Security Advisor Thomas Donilon, Director of National Intelligence James Clapper, former White House Chief of Staff Bill Daley, Assistant to the President for Homeland Security and Counterterrorism John Brennan, Deputy National Security Advisor Denis McDonough, Director for Counterterrorism Audrey Tomason and National Security Advisor to the Vice President Antony Blinken.

Of course the effort is sure to be futile–if Smith’s goal is to figure out who leaked to the media (though it’ll serve its purpose of creating a political shitstorm just fine)–for two reasons.

First, only Clapper serves in a role that Congress has an unquestioned authority to subpoena (and even there, I can see the Intelligence Committees getting snippy about their turf–it’s their job to provide impotent oversight over intelligence, not the Judiciary Committees).

As for members of the National Security Council (Tom Donilon, John Brennan, Denis McDonough, Audrey Tomason, and Antony Blinken) and figures, like Bill Daley, who aren’t congressionally approved? That’s a bit dicier. (Which is part of the reason it’s so dangerous to have our drone targeting done in NSC where it eludes easy congressional oversight.)

A pity Republicans made such a stink over the HJC subpoenaing Karl Rove and David Addington and backed Bush’s efforts to prevent Condi Rice from testifying, huh?

The other problem is that Smith’s list, by design, won’t reveal who leaked the stories he’s investigating. He says he wants to investigate 7 leaks.

Smith said the committee intends to focus on seven national security leaks to the media. They include information about the Iran-targeted Stuxnet and Flame virus attacks, the administration’s targeted killings of terrorism suspects and the raid which killed Usama bin Laden.

Smith wants to know how details about the operations of SEAL Team Six, which executed the bin Laden raid in Pakistan, wound up in the hands of film producers making a film for the president’s re-election. Also on the docket is the identity of the doctor who performed DNA tests which helped lead the U.S. to bin Laden’s hideout.

But his list doesn’t include everyone who is a likely or even certain leaker.

Take StuxNet and Flame. Not only has Smith forgotten about the programmers (alleged to be Israeli) who let StuxNet into the wild in the first place–once that happened, everything else was confirmation of things David Sanger and security researchers were able to come up with on their own–but he doesn’t ask to speak to the Israeli spooks demanding more credit for the virus.

Read more →

The House Judiciary Committee Preens in Full Ignorance at Leaks Hearing

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The headline that has come out of yesterday’s House Judiciary Committee hearing on leaks is that the Committee may subpoena people. As US News correctly reports, one push for subpoenas came from a John Conyers ploy trying to call Republican members’ bluff; he basically asked how they could be sure who leaked the stories in question and if they were they should just subpoena those people to testify to the committee.

It’s a testament to the thin knowledge of these stories that none of the Republicans responded, “John Brennan.” But then, even if they had, the committee would quickly get into trouble trying to subpoena Brennan as National Security Advisors (and Deputy NSAs) have traditionally been excused from Congressional subpoena for deliberation reasons, a tradition reinforced by Bush’s approach with Condi Rice.

Ah well. I’m sure we’re going to have some amusing theater of Jim Sensenbrenner trying to force Conyers to come up with some names now.

The other big push for subpoenas, though, came from Trey Gowdy. Partly because he wanted to create an excuse to call a Special Prosecutor and partly because, just because, he was most interested in subpoenaing some journalists. And in spite of the way that former Assistant Attorney General Ken Wainstein patiently explained why there are good, national security, reasons why DOJ is hesitant to subpoena journalists, Gowdy wouldn’t let up.

But what concerned me more is that no one–not a single person on the House committee that oversees DOJ–explained that DOJ doesn’t need to subpoena journalists to find out who they’ve been talking to. They’ve given themselves the authority to get journalist call records in national security cases without Attorney General approval.

That’s a detail every member of the committee should know, particularly if they’re going to hold hearings about whether DOJ can adequately investigate leaks. And while I expect Trey Gowdy to be ignorant, it seems they all are ignorant of this detail.

There was another display of ignorance I find troubling for a different reason. Dan Lungren suggested that he learned of what we’re doing with StuxNet from David Sanger’s reports. He rightly noted that–as the Chair of the House Homeland Security Subcommittee on Cybersecurity–he ought to learn these things from the government, not the NYT. And while his ignorance of StuxNet’s escape may be due to the timing of his ascension to the Subcommittee Chair (most members of the Gang of Four, except Dianne Feinstein, would not have gotten briefed on early stages of StuxNet, when someone should have told the government what a boneheaded plan it was), the Subcommittee still should be aware that our own recklessness has made us vulnerable in dangerous new ways.

Perhaps the most telling detail of the hearing, though, came from retired Colonel Kenneth Allard. He was brought on, I guess, to label what we did with StuxNet an act of war (without, of course, considering whether that is the problem rather than the exposure that both Republican and Democratic Administrations are engaging in illegal war without telling anyone). In his comments, he went so far as to say that “What Mr. Sanger did is equivalent of having KGB operation run against White House.”

Someone had to accuse the journalists of being enemy spies.

But Allard’s statement reveals where all this comes from: personal pique against the NYT for coverage they’ve done on him. Not only did he complain that David Sanger’s publisher didn’t give the New York Journal of Books, for which he writes reviews, an advance copy, but also that the NYT reported on the scam the Pentagon set up to give select Generals and Colonels inside information to spin favorably on TV.

Third, I have personally experienced what it feels like when the NYT deliberately distorts national security information, even to the point of plagiarism. On April 20, 2008, the NYT published an inflammatory expose: “Behind Analysts, Pentagon’s Hidden Hand” by David Barstow. The Times’ article charged that over 70 retired officers, including me, had misused our positions while serving as military analysts with the broadcast and cable TV networks. Read more →

Last Week in Deferred and Non-Prosecution Agreements: Arming China and Stealing Trillions from Municipalities

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I’m so old I remember the time, four years ago, when Democrats hated Deferred Prosecution Agreements.

Back in the days when Chris Christie, former US Attorney, was challenging Jon Corzine, once and future bankster, to be governor of New Jersey, Democrats made hay of the significant numbers of DPAs Christie signed, mostly with a series of medical device companies busted for kickbacks. After it was revealed Christie had picked his former boss, John Ashcroft, to make $52 million monitoring one of those medical device companies, it became a convenient way to show the corporatist corruption of Christie.

There was even a bit of discussion, in early 2009, about whether DPAs made banks more likely to engage in fraud because they assumed they’d get a DPA rather than a prosecution. Those discussions largely centered on the two DPAs AIG got in the mid-00s for fraudulently hiding its risk, which nevertheless didn’t prevent AIG from taking on so much risk it blew up the entire financial system. One of the monitors of those DPAs–who arguably should have but didn’t see AIG’s ongoing fraud–was a guy by the name of James Cole. He’s now the Deputy Attorney General.

And as recently as 2010, NJ Congressman Bill Pascrell had this to say, in response to the publication of a GAO report showing some improvement but greater need for oversight over DPAs.

One cannot ignore the spike of 38 deferred prosecution agreements in 2007, up from a mere four agreements in 2003. That proves that what was supposed to be an option to be used in rare circumstances had become the norm at the Department of Justice.

[snip]

It is imperative that the Congress reign in the unmitigated power that federal prosecutors hold to serve as judge, jury and sentencer in the deferred prosecution process.

And yet I have heard very little about the two DPAs signed last week–perhaps because big corporate impunity has become such a common occurrence in the post-crash era.

First, there’s the deal Pratt & Whitney and two subsidiaries signed for evading export restrictions to help China build an attack helicopter. Effectively Pratt & Whitney laundered their production of some development helicopters–plus the military grade engine control module software to go with them–through a Canadian subsidiary. And when they finally admitted they had deliberately avoided US export restrictions on military equipment, they lied to DOJ about doing so. While they have to pay a $75 million fine, some of the charges are being deferred. And no individual has been charged with helping China get a helicopter designed to attack tanks.

So DOJ’s punishment for a defense contractor to put Chinese civil contracts ahead of US national security is a big fine, deferred prosecution, but no jail time.

Even more troubling is the Non-Prosecution Agreement signed with Barclays over its manipulation of the LIBOR rate. Effectively, during the heady bubble days, Barclays colluded to lie about the interbank lending rate to maximize its own trades; as finance was crashing and Barclays itself had to pay higher rates for credit, it lied about that to imply the bank was healthier than it was. And while between DOJ, Commodity Futures Trading Commission, and Britain’s Financial Services Authority, Barclays will have to pay around $475 million in fines, and while CFTC imposed the kind of mandated fixes that DOJ normally would under a DPA, Barclays is basically scot-free for colluding to lie about a rate that affects people throughout the financial system.

Matt Taibbi explains why this is so important: because when the banks said the LIBOR rate was lower than it really was, a lot of investors got a smaller return on their LIBOR-tracked investments than they otherwise would have.

A sizable chunk of the world’s adjustable-rate investment vehicles are pegged to Libor, and here we have evidence that banks were tweaking the rate downward to massage their own derivatives positions. The consequences for this boggle the mind. For instance, almost every city and town in America has investment holdings tied to Libor. If banks were artificially lowering the rates to beef up their trading profiles, that means communities all over the world were cheated out of ungodly amounts of money.

Read more →

Senate Judiciary Committee: Closing the Barn Door after the Barn’s Been Foreclosed

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Sometime this week, the long-awaited terms for the foreclosure settlement will be released, giving banks immunity for much of the fraud and forgery they committed in the course of taking homeowners’ houses.

Which makes the timing of this hearing the Senate Judiciary Committee just announced beyond absurd.

“Examining Lending Discrimination Practices and Foreclosure Abuses”

Senate Judiciary Committee
Full Committee

DATE: March 7, 2012

A better time for such a hearing might have been December 2010, just as the full extent of the robosigning was being exposed. In fact, that’s the second-to-last hearing John Conyers hadbefore Dems lost their House majority. Since that time, he has been imploring the Administration and the Attorneys General to do something substantive about foreclosure problems, even asking MI’s AG not to sign onto the settlement.

But next week!?!?! Just as the settlement will be enacted, making many of these issues (though reportedly not civil rights issues) moot?!?! Really?!?!

I mean, if the Judiciary Committee is going to hold a hearing in the immediate future, it’d be far better to hold a hearing considering what impact it will have on justice in this country to assign a $2,000 price tag to fabricating forged documents or engaging in other fraudulent activities before a court. Will judges ever be able to trust corporations in their courtrooms again? Will private citizens have access to this $2,000 Get Out of Jail Free card, or only Too Big to Fail institutions?

Alternately, act like the bankster-owned body the Senate is, and simply call a hearing to discuss whether having pension funds pay to buy immunity for the banks hurts corporations.

And then there’s the witness list: right now, just Civil Rights Division head Thomas Perez will testify. I’m all in favor of Thomas Perez in most any role–his work at Civil Rights has easily been the best part of DOJ under Obama. But aren’t there other people who might better address foreclosure abuses, even if the hearing just focuses on lending discrimination?

I mean, I’m all in favor of someone finally conducting oversight over the fraud going on in this country. But this hearing couldn’t be more badly timed.

 

If and When Democrats Keep the House, Conyers Should Remind Holder the Import of Congressional Oversight

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I realize the odds of Democrats keeping the House are not all that great. But I also know that the DCCC is far more competent than the RNCC; DCCC has managed to win just about every challenging election of late.

So let’s just say Democrats keep the House and with it John Conyers his gavel. I really hope he’ll make Eric Holder regret not only this inappropriate comment to Lamar Smith (I don’t care whether Democrats or Republicans are in charge, the Committees are there to exercise oversight, not “be nice” to the agencies they cover), but also the unnecessary disloyalty.

Maybe Conyers can start by asking Holder to either provide a more credible explanation for why Pittsburgh’s FBI office was lying about taking a picture at a peace rally with no premise to do so than the FBI provided to Inspector General Glenn Fine (more on this IG Report in a bit).

FBI officials, including the Pittsburgh office’s top lawyer, engaged in distinctly COINTELPRO-style tactics after the American Civil Liberties Union sued for the release of documents relating to the surveillance.Boiled down to their essence, those tactics involved officials generating post-dated “routing slips” and other paper to create a terrorism threat that didn’t exist.

Or as the inspector general put it, the FBI’s elaborate, “after-the-fact reconstruction” of the Pittsburgh events, designed to fabricate a counter-terrorism rationale for the rookie’s surveillance mission, “was not corroborated by any witnesses or contemporaneous documents.”

It was on the basis of their fabrication, moreover, that FBI Director Robert S. Mueller III gave “inaccurate and misleading” testimony to Congress, the IG said.

The IG’s recounting of the Pittsburgh events is lengthy and meticulous.

The FBI, however, continues to deny that bureau officials engaged in an elaborate and deliberate scheme to deceive investigators, Congress and the pubic about what was, in retrospect, one rookie agent’s minor, misdirected surveillance of the Pittsburgh antiwar demonstration.

“Nobody,” the FBI says, “had a motive to provide an intentionally misleading account of it.”

It seems the only people who are given carte blanche to lie and obstruct justice are those trying to evade Congressional oversight, and the people who rely on that seeming carte blanche report up through Holder. That’s a management failure and a failure of the rule of law.

Would that the Attorney General cared more about that rule of law than chumming up to the opposition party.

Adam Schiff Advocates Gutting Miranda

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Adam Schiff–a CA Democrat (!)–just filed a bill aiming to not only give prosecutors 4 days to question “terror suspects” before bringing them to court, but also expressing the will of Congress to let them delay Mirandizing suspects “as long as is necessary.”

The bill filed Thursday by Rep. Adam Schiff (D-Calif.) would change federal law by creating a procedure to question a suspected terrorist for up to four days before taking him or her to court without jeopardizing prosecutors’ ability to use statements made by a suspect during that time.

It would also express Congress’s view that authorities can delay reading Miranda warnings “for as long as is necessary” to elicit intelligence from a terror suspect.

I had a whole range of thoughts as I read this. I reminded myself that the time frame Schiff would allow prosecutors to hold people without bringing them to court is just slightly longer than the amount of time our country claims we can legally sleep deprive someone (remember, the reason we delayed bringing Faisal Shahzad to court was because we needed him available 24/7). I’m intrigued by the timing–not long before an election that the White House has said could result in Dems losing the House (and with it, John Conyers and Jerry Nadler losing their Committee and Subcommittee gavels).

But I’m also interested by what Schiff didn’t include in his bill: Any limitation on this to those who present a national security risk (as the hawkish Ben Wittes notes in a quote in the story). So can an environmental activist lose Miranda rights under this bill? Can Quakers?

Eric Holder Visits HJC

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You can watch along at CSPAN3 or the Committee Stream. Republican talking point of the day seems to be that Obama’s Counterterrorism approach is to have incompetent terrorists.

Nadler wastes no time to pitch his State Secrets bill. Go Nadler! “Those rules [Obama’s state secrets compromise] still reserve unaccountable review to the executive.”

Lungren has concerns about changing Miranda, since it was required by the Constitution, but implies he wants people to be enemy combatants instead (though that’s a guess) which somehow wouldn’t be unconstitutional.

Conyers tweaks Darrell Issa that Jared Polis, who was just added to the committee (along with Ted Deutsch, Wexler’s replacement), has more patents than Issa does.

Issa calls for Special Prosecutor, I think to investigate Sestak’s claim that the White House tried to buy him off of running against Specter.

Anthony Weiner seems to support 9/11 trials in NYC–says it has the best prosecutors. He then complains about White House funding decisions. Says the COPS program (which provides funding for police) “is not just for towns that only have minor-league baseball teams.”

Maxine Waters complaining about review process for Comcast/NBC merger.

It’s pretty funny that there was almost never any discussion of counterterrorism oversight on HJC under Bush Admin, given how many fearmongers on the panel.

And, after everyone gets to make a statement, we get Holder’s opening statement.

WOOT! We’re back.

Bobby Scott asks about statute of limitations. Where death results, Holder says there is none.

Lamar Smith trying very very hard to get Holder to say radical Islam.

Holder: AZ law raises concerns about civil rights and preemption.

Maxine Waters asks about domestic terrorism. Holder actually says domestic terrorism before he says Islamic extremism in this hearing, much to GOP chagrin. Waters follows up on domestic terrorism.

Issa: Concerned that former Admiral in Navy and US Congressman. Will you appoint a special prosecutor to investigate. What could be more serious than that this White House has offered member of Congress high appointment for getting out of race.

Steven Bradbury Didn’t Disclose His Appendix M Opinion to Congress

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As I posted a week ago, in April 2006 Steven Bradbury wrote one of the most egregious of all the egregious torture memos, one approving the new Army Field Manual, including its Appendix M laying out more intense interrogation methods. While the legal analysis of the memo was, itself, fairly nondescript, the analysis in the memo was written to the file rather than to the client, DOD. This separated Bradbury’s actual approval of the new document for DOD from any analysis or caveats. Approving the memo in such a way allowed DOD to change the content of Appendix M (which they did do), while still maintaining a letter saying whatever was in Appendix M had been approved by OLC.

Which is why I find it so interesting that, in response to a direct Question for the Record from John Conyers in 2008, Bradbury didn’t reveal the memo.

(D) Please identify any other legal opinions or memoranda you have authored or assisted in drafting regarding the interrogation of detainees by U.S. personnel or contractors.

ANSWER: In addition to the three opinions issued by OLC in May 2005, I assisted in preparing the public December 30, 2004 opinion interpreting the federal anti-torture statute. In addition, I authored two opinions related to the CIA program in 2006 and one in 2007. The latter opinion was provided in conjunction with the President’s issuance of Executive Order 13440 setting forth the legal requirements for the CIA program in accordance with the Military Commissions Act of 2006. I also provided or participated in providing other legal advice relevant to the CIA program, either orally or by letter, from time to time in the period from 2004 to the present, and also presented testimony or briefings or participated in preparing letters on the subject to Committees of Congress and their Members and staffs. Finally, I assisted in drafting legal advice and testimony concerning Department of Defense interrogation policies during the tenure of Assistant Attorney General Jack Goldsmith in 2004.

Here’s what Bradbury admits to being involved with:

The only advice he admits being involved with for DOD is limited to the aborted effort to draft a replacement for the Yoo Memo in 2004. And he clearly limits that activity to 2004.

Which means that, when John Conyers asked Bradbury to list every opinion he had written on interrogation, Bradbury did not do so. He hid at least this memo.

I find that interesting not just because Bradbury provided an incomplete answer to Congress on the torture program. But since we still have no idea what authorization DOD used from 2004 until 2006, when Bradbury wrote this memo, Bradbury’s non-disclosure raises the question of what else Bradbury and the Bush Administration may have hidden about OLC approvals for DOD’s torture program.