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One Reason CIA Is Claiming Drone Emails Are Top Secret: ACLU’s FOIA

The NYT has a really helpful description of the emails to Hillary that intelligence agencies are claiming are Top Secret. It explained how several of the emails almost certainly couldn’t derive from the intelligence the agency claimed they came from, such as this one on North Korea.

The fourth involved an email sent by Kurt M. Campbell, the assistant secretary of state for Asian affairs, shortly after a North Korean ballistic missile test in July 2009. The email has not yet been made public, even in redacted form, but the State Department has challenged an assertion from the National Geospatial-Intelligence Agency, which gathers data through satellite images, that the email included information that came from a highly classified program.

In a letter this past Dec. 15 to Senator Bob Corker, the Tennessee Republican who is chairman of the Senate Foreign Relations Committee, a State Department official said that the information could not have been based on N.G.A.’s intelligence because Mr. Campbell did not receive any classified intelligence briefings for what was a new job for him until a few days after the North Korean test.

I believe the NGA was dawdling on signing a sworn declaration about this email, unlike the CIA (whose Martha Lutz has signed her name to many a wacky claim).

Unsurprisingly, the NYT reports that the bulk of the emails in question pertain to the drone program, specifically in Pakistan.

The Obama administration’s decision to keep most internal discussions about that program — including all information about C.I.A. drone strikes in Pakistan — classified at the “top secret” level has now become a political liability for Mrs. Clinton’s presidential campaign.

[snip]

Several officials said that at least one of the emails contained oblique references to C.I.A. operatives. One of the messages has been given a designation of “HCS-O” — indicating that the information was derived from human intelligence sources — a detail that was first reported by Fox News. The officials said that none of the emails mention specific names of C.I.A. officers or the spy agency’s sources.

The government officials said that discussions in an email thread about a New York Times article — the officials did not say which article — contained sensitive information about the intelligence surrounding the C.I.A.’s drone activities, particularly in Pakistan.

The officials said that at least one of the 22 emails came from Richard C. Holbrooke, who as the administration’s special envoy for Afghanistan and Pakistan would have been intimately involved in dealing with the ramifications of drone strikes. Mr. Holbrooke died in December 2010.

Reading these passages and the article in general made me realize something: The reason the CIA is insisting these are classified is almost certainly because of the ACLU’s two FOIAs for drone information. In the Awlaki-focused one, the ACLU (and NYT) succeeded in arguing that past public statements from people like Leon Panetta constituted a waiver of the classification of the CIA’s involvement in the program. Any public dissemination of other official Administration figures discussing the drone program would provide ACLU another opportunity to go to the judges in these cases and demand further disclosure about CIA’s involvement in the drone program.

Over the years, the Obama Administration has gone to great lengths to defeat the ACLU in its various FOIAs, from having National Security Advisor Jim Jones get involved in the torture FOIA to delaying congressional oversight into the Awlaki killing. Here, it appears they’re even willing to damage Hillary’s campaign to serve as the inheritor to Obama’s legacy to thwart the ACLU.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

For Nobel Peace Prize Winner Obama, Diplomacy Still Afterthought in Afghanistan

The central point argued in Vali Nasr’s book “The Dispensable Nation” is that for the Obama administration, diplomacy took a back seat to the military as the administration took control of the war in Afghanistan from the Bush administration. In fact, the second part of the book’s title is “American Foreign Policy in Retreat”. As the chief aide to Richard Holbrooke, whom Obama chose as his special envoy to Afghanistan and Pakistan, Nasr puts Holbrooke on quite a pedestal in the book, and others have built a bit of a cottage industry around attacking Nasr’s version of events, but I want to concentrate just on the missed opportunity for diplomacy.

Setting aside the arguing over Holbrooke and Nasr, it is clear that Nasr has identified a fatal flaw in Obama’s handling of Afghanistan. Nasr describes a very early opening for negotiations with the Taliban that was squandered:

Around that time, in fall 2009, Holbrooke and I had a meeting with Egypt’s foreign minister. Egypt’s intelligence chief, General Abu Suleiman (who later became vice president when Mubarak fell), was also in the room. At one point he turned to Holbrooke and said, “The Taliban visited us in Cairo.” Holbrooke said, “Really, who came? Do you remember?” Abu Suleiman reached into his bag, pulled out a piece of paper, held it before his face, and read three names. The last one made us all pause. It was Tayed Agha, a relative the Taliban chief, Mulla Omar, as well as his secretary and spokesman, whom we knew to be actively probing talks with the United States on Taliban’s behalf. We knew Tayed Agha to be a player, but we did not know then that he would become America’s main Taliban interlocutor in first secret and later formal talks that began in 2011 (and were made public in February 2012).

Although Holbrooke jumped at the opportunity and presented the case to the Obama administration, they were dismissive of the idea during the critical time that they were developing and then implementing McChrystal’s vaunted surge of troops in Afghanistan. From the Foreign Policy excerpt of the book:

FROM THE OUTSET, Holbrooke argued for political reconciliation as the path out of Afghanistan. But the military thought talk of reconciliation undermined America’s commitment to fully resourced COIN. On his last trip to Afghanistan, in October 2010, Holbrooke pulled aside Petraeus, who by then had replaced McChrystal as commander in Afghanistan, and said, “David, I want to talk to you about reconciliation.” “That’s a 15-second conversation,” Petraeus replied. “No, not now.”

The commanders’ standard response was that they needed two more fighting seasons to soften up the Taliban. They were hoping to change the president’s mind on his July deadline and after that convince him to accept a “slow and shallow” (long and gradual) departure schedule. Their line was that we should fight first and talk later. Holbrooke thought we could talk and fight. Reconciliation should be the ultimate goal, and fighting the means to facilitate it.

The Obama administration did its utmost to undermine Holbrooke’s efforts on the diplomatic front during this time: Read more

Many years ago, Jim got a BA in Radiation Biophysics from the University of Kansas. He then got a PhD in Molecular Biology from UCLA and did postdoctoral research in yeast genetics at UC Berkeley and mouse retroviruses at Stanford. He joined biosys in Palo Alto, producing insect parasitic nematodes for pest control. In the early 1990’s, he moved to Gainesville, FL and founded a company that eventually became Entomos. He left the firm as it reorganized into Pasteuria Biosciences and chose not to found a new firm due a clash of values with venture capital investors, who generally lack all values. Upon leaving, he chose to be a stay at home dad, gentleman farmer, cook and horse wrangler. He discovered the online world through commenting at Glenn Greenwald’s blog in the Salon days and was involved in the briefly successful Chris Dodd move to block the bill to renew FISA. He then went on to blog at Firedoglake and served a brief stint as evening editor there. When the Emptywheel blog moved out of Firedoglake back to standalone status, Jim tagged along and blogged on anthrax, viruses, John Galt, Pakistan and Afghanistan. He is now a mostly lapsed blogger looking for a work-around to the depressing realization that pointing out the details of government malfeasance and elite immunity has approximately zero effect.

Nasr Pierces Obama’s Diplomacy Mirage

Vali Nasr now serves as Dean of the School of Advanced  International Studies at Johns Hopkins.

Vali Nasr now serves as Dean of the School of Advanced International Studies at Johns Hopkins.

Foreign Policy has published an excerpt from Vali Nasr’s book The Dispensable Nation: American Foreign Policy in Retreat, in which Nasr relates his experiences as a key deputy to Richard Holbrooke, who served as Barack Obama’s special envoy to Afghanistan and Pakistan. The title for the piece tells virtually the entire story: “The Inside Story of How the White House Let Diplomacy Fail in Afghanistan”. The piece should be read in full (as should the book, I presume), but I want to highlight a couple of passages that fit well with points I have tried to make over the years regarding US policy in Afghanistan and Pakistan.

First, we see an Obama tactic that has not been limited to his foreign policy actions, but is characteristic of him on the whole, where he makes a public move such as appointing Holbrooke, where the move has the appearance of a very positive step, but Obama then undercuts the move entirely by providing no further support (such as when he nominated Dawn Johnsen to head OLC and then abandoned her entirely, even when he could have forced a confirmation vote that would have been affirmative under bmaz’s whip count). Here is how Nasr described Holbrooke’s fate once he established his office:

Still, Holbrooke knew that Afghanistan was not going to be easy. There were too many players and too many unknowns, and Obama had not given him enough authority (and would give him almost no support) to get the job done. After he took office, the president never met with Holbrooke outside large meetings and never gave him time and heard him out. The president’s White House advisors were dead set against Holbrooke. Some, like Lt. Gen. Douglas Lute, were holdovers from George W. Bush’s administration and thought they knew Afghanistan better and did not want to relinquish control to Holbrooke. Others (those closest to the president) wanted to settle scores for Holbrooke’s tenacious campaign support of Clinton (who was herself eyed with suspicion by the Obama insiders); still others begrudged Holbrooke’s storied past and wanted to end his run of success then and there. At times it appeared the White House was more interested in bringing Holbrooke down than getting the policy right.

What drives Obama’s craven manipulation of people in this way? Nasr nails that particularly well:

Not only did that not happen, but the president had a truly disturbing habit of funneling major foreign-policy decisions through a small cabal of relatively inexperienced White House advisors whose turf was strictly politics. Their primary concern was how any action in Afghanistan or the Middle East would play on the nightly news, or which talking point it would give the Republicans. The Obama administration’s reputation for competence on foreign policy has less to do with its accomplishments in Afghanistan or the Middle East than with how U.S. actions in that region have been reshaped to accommodate partisan political concerns.

And this reliance on managing to the day’s news cycle ended just as badly as one would expect. Obama should pay heed to Nasr’s dire warning in his epitaph of the Afghan “adventure”, but we can rest assured that the band of political trolls surrounding him will put their fingers in their ears and shout “I can’t hear you” as Nasr warns of failure for the “exit plan” (emphasis added): Read more

Many years ago, Jim got a BA in Radiation Biophysics from the University of Kansas. He then got a PhD in Molecular Biology from UCLA and did postdoctoral research in yeast genetics at UC Berkeley and mouse retroviruses at Stanford. He joined biosys in Palo Alto, producing insect parasitic nematodes for pest control. In the early 1990’s, he moved to Gainesville, FL and founded a company that eventually became Entomos. He left the firm as it reorganized into Pasteuria Biosciences and chose not to found a new firm due a clash of values with venture capital investors, who generally lack all values. Upon leaving, he chose to be a stay at home dad, gentleman farmer, cook and horse wrangler. He discovered the online world through commenting at Glenn Greenwald’s blog in the Salon days and was involved in the briefly successful Chris Dodd move to block the bill to renew FISA. He then went on to blog at Firedoglake and served a brief stint as evening editor there. When the Emptywheel blog moved out of Firedoglake back to standalone status, Jim tagged along and blogged on anthrax, viruses, John Galt, Pakistan and Afghanistan. He is now a mostly lapsed blogger looking for a work-around to the depressing realization that pointing out the details of government malfeasance and elite immunity has approximately zero effect.

Judge Kollar-Kotelly Sees No Evil, Hears No Evil

Yesterday, Colleen Kollar-Kotelly upheld the government’s right to withhold cables already released via WikiLeaks under FOIA (see my earlier posts on this FOIA here and here). Her logic seems to have a fatal flaw: she says the State Department has proven (and the ACLU has not rebutted the claim) that the US Government owns the cables.

The ACLU simply offers no rejoinder to the State Department’s affirmative showing that all the information at issue (1) was classified by an original classification authority, (2) is owned, produced, or controlled by the United States, and (3) falls within one or more of the eight relevant categories. [my emphasis]

But then she says (noting that ACLU made no mention that these cables had also been released via WikiLeaks and therefore pretending that they might be different) that the government has not officially acknowledged these cables are authentic.

No matter how extensive, the WikiLeaks disclosure is no substitute for an official acknowledgement and the ACLU has not shown that the Executive has officially acknowledged that the specific information at issue was a part of the WikiLeaks disclosure.

I guess they should let Bradley Manning go free, then, since the State Department isn’t prepared to say the cables he is accused of leaking were authentic?

But that’s not the most troubling part of this ruling. As I lay out below–and as Kollar-Kotelly presumably knows well–the cables are full of admissions of crime, including murder, torture, and kidnapping. Thus, had she reviewed them to see whether the government’s claims that they were properly classified are valid, she would have seen that–in addition to information properly classified to protect foreign relations–a lot of the original classification and the government’s refusal to officially release them (which would presumably make them admissible in a court) serve to hide confessions of criminal activity.

So Kollar-Kotelly chose not to review these cables in camera, choosing instead to rely on the State Department declaration that makes no mention of the criminal admissions included in the cables.

In this case, because the State Department’s declarations are sufficiently detailed and the Court is satisfied that no factual dispute remains, the Court declines to exercise its discretion to review the embassy cables in camera.

It was a cowardly ruling. But all the more cowardly, given that Kollar-Kotelly prevented herself from officially reviewing a bunch of evidence of criminal wrong-doing.

Here are details on the cables Kollar-Kotelly doesn’t want to read:

The famous meeting at which Ali Abdullah Saleh promised to lie about our strikes in Yemen

Kollar-Kotelly agreed to keep what has become perhaps the most famous cable ever, in which David Petraeus and Ali Abdullah Saleh discuss the missile strikes we conducted in Yemen in late 2009.

Mind you, the government likely has a very good legal reason to keep this cable secret. The cable makes it clear we were targeting Anwar al-Awlaki (as well as Nasir al-Wuhayshi) in those strikes. And releasing that would constitute official acknowledgement of the targeting of Awlaki that the government has tried so hard to avoid. Furthermore, as I’ll show in a follow-up post, it also shows that we targeted Awlaki for death before we had evidence implicating him in a crime.

Read more

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.