Judge Collyer’s Factually Erroneous Freelance Rubber Stamp for Killing American Citizens

As I noted on Friday, Judge Rosemary Collyer threw out the Bivens challenge to the drone killings of Anwar and Abdulrahman al-Awlaki and Samir Khan.

The decision was really odd: in an effort to preserve some hope that US citizens might have redress against being executed with no due process, she rejects the government’s claims that she has no authority to decide the propriety of the case. But then, by citing precedents rejecting Bivens suits, including one on torture in the DC Circuit and Padilla’s challenge in the Fourth, she creates special factors specifically tied to the fact that Awlaki was a horrible person, rather than that national security writ large gives the Executive unfettered power to execute at will, and then uses these special factors she invents on her own to reject the possibility an American could obtain any redress for unconstitutional executions. (See Steve Vladeck for an assessment of this ruling in the context of prior Bivens precedent.)

The whole thing lies atop something else: the government’s refusal to provide Collyer even as much information as they had provided John Bates in 2010 when Anwar al-Awlaki’s father had tried to pre-emptively sue before his son was drone-killed.

On December 26, Collyer ordered the government to provide classified information on how it decides to kill American citizens.

MINUTE ORDER requiring the United States, an interested party 19 , to lodge no later than January 24, 2014, classified declaration(s) with court security officers, in camera and ex parte, in order to provide to the Court information implicated by the allegations in this case and why its disclosure reasonably could be expected to harm national security…, include[ing] information needed to address whether or not, or under what circumstances, the United States may target a particular foreign terrorist organization and its senior leadership, the specific threat posed by… Anwar-al Aulaqi, and other matters that plaintiff[s have] put at issue, including any criteria governing the use of lethal force, updated to address the facts of this record.

Two weeks later, the government moved to reconsider, both on jurisdictional grounds and because, it said, Collyer didn’t need the information to dismiss the case.

Beyond the jurisdictional issue, the Court should vacate its Order because Defendants’ motion to dismiss, which raises the threshold defenses of the political question doctrine, special factors, and qualified immunity, remains pending. The information requested, besides being classified, is not germane to Defendants’ pending motion, which accepts Plaintiffs’ well-pled facts as true.

As part of their motion, however, the government admitted to supplementing the plaintiffs’ facts.

Defendants’ argument that decedents’ constitutional rights were not violated assumed the truth of Plaintiffs’ factual allegations, and supplemented those allegations only with judicially noticeable public information, the content of which Plaintiffs did not and do not dispute.

The plaintiffs even disputed that they didn’t dispute these claims, pointing out that they had introduced claims about:

  • AQAP’s status vis a vis al Qaeda
  • Whether the US is in an armed conflict with AQAP
  • The basis for Awlaki’s listing as a Special Designated Global Terrorist

Ultimately, even Collyer scolds the government for misstating the claims alleged in the complaint.

The United States argued that the factual information that the Court requested was not relevant to the Defendants’ special factors argument because special factors precluded Plaintiffs’ cause of action, given the context in which the claims, “as pled,” arose––that is, “the alleged firing of missiles by military and intelligence officers at enemies in a foreign country in the course of an armed conflict.” Mot. for Recons. & to Stay Order at ECF 10. The United States, however, mischaracterizes the Complaint. Read more

Jeremy Scahill: Two Degrees of Separation from the Dirty Wars Dragnet

Congratulations to Jeremy Scahill and the entire team that worked on Dirty Wars for being nominated for the Best Documentary Oscar.

This post may appear to be shamelessly opportunistic — exploiting the attention Dirty Wars will get in the days ahead to make a political point before the President endorses the dragnet on Friday — but I’ve been intending to write it since November, when I wrote this post.

Jeremy Scahill (and the entire Dirty Wars team) is the kind of person whose contacts and sources are exposed to the government in its dragnet.

To write his book (and therefore research the movie, though not all of this shows up in the movie) Scahill spoke with Anwar al-Awlaki’s father (one degree of separation from a terrorist target), a number of people with shifting loyalties in Somalia (who may or may not be targeted), and Afghans we identified as hostile in Afghanistan. All of these people might be targets of our dragnet analysis (and remember — there is a far looser dragnet of metadata collected under EO 12333, with fewer protections). Which puts Scahill, probably via multiple channels, easily within 3 degrees of separation of targets that might get him exposed to further network analysis. (Again, if these contacts show up in 12333 collection Scahill would be immediately exposed to that kind of datamining; if it shows up in the Section 215 dragnet, it would happen if his calls got dumped into the Corporate Store.) If Scahill got swept up in the dragnet on a first or second hop, it means all his other sources, including those within government (like the person depicted in the trailer above) describing problems with the war they’ve been asked to fight, might be identified too.

Scahill might avoid some of this with diligent operational security — a concerted effort to prevent the government from tracking him along with terrorists (though remember two things: one purpose of the dragnet is to discover burner phones, and his computer got hacked while he was working on this book). But the government’s intent is to sweep up records of any conversations that get as close to those hostile to American efforts as Scahill does.

One of my favorite figures in Scahill’s book was the Heineken and Johnny Walker swilling Mullah Zabara, a Yemeni tribal leader from Shabwa who expressed the ambivalence Yemenis might feel towards the US.

Several souther leaders angrily told me stories of US and Yemeni attacks in their areas that killed civilians and livestock and destroyed or damaged scores of homes. If anything, the US air strikes and support for Saleh-family-run counterterrorism units had increased tribal sympathy for al Qaeda. “Why should we fight them? Why?” Read more

6th Circuit: You Can Still Represent Yourself if Solitary Confinement Has Made You Incompetent

As expected, the Sixth Circuit wasted no time in denying Umar Farouk Abdulmutallab’s appeal of his conviction and sentence. The Circuit affirmed District Court Judge Nancy Edmunds on all matters.

Curiously though, in his opinion, Judge David McKeague spends relatively little time on the most contentious issue of the case: whether or not Abdulmutallab was competent to represent himself. He doesn’t really address an issue raised by Abdulmutallab’s Appelate lawyer, Travis Rossman, whether any competence determination be concurrent.

As I noted in my coverage of the hearing, Standby Counsel Anthony Chamber’s case for incompetence was not that Abdulmutallab was incompetent in 2009 when he was arrested or in 2010 when he fired his attorneys, but had been made in competent by 19 months of solitary confinement.

The question wasn’t whether Abdulmutallab was competent on August 17, 2011, Tukel suggested, when Edmunds did not call for a competency hearing, nor whether he was competent on October 12, 2011, when he plead guilty. Rather, it was whether he was competent on September 13, 2010, when he fired his defense attorneys. This was part of what seemed a broader government strategy to obscure the timing issues. He also argued all Abdulmutallab’s most bizarre behavior post-dated the August 2011 hearing. He argued that because Abdulmutallab attended college in England, he must be competent (!). He also argued that US v. Miller weighs against the standard on concurrent determination.

What Tukel didn’t provide much evidence about (beyond that Abdulmutallab always answered Edmunds’ questions about counsel as one would expect a defendant defending himself) is whether he was incompetent in August 2011.

Yemeni daggers. Allahu Akbar. Improper attire. Those are the external signs of “craziness” this hearing focused on.

And yet, in spite of the fact that Rossman repeatedly raised Chambers’ descriptions of Abdulmutallab’s “mental lapses,” no one focused on that question.

Which is crucial because, as Rossman argued (albeit weakly), part of the argument was that the conditions of Abdulmutallab’s confinement — 19 months of solitary confinement by the time of the August 2011 hearing — made him incompetent to defend himself.

And while McKeague pointed to one point where Abdulmutallab responded rationally to Edmunds’ questions, his most sustained case for Abdulmutallab’s competence rests on the Nigerian’s competence in carrying out his terrorist plot 21 months before he pled guilty (note, some of these claims are actually quite contestable, but I won’t deal with that here).

In order for Abdulmutallab to accomplish his goal of blowing up an aircraft over United States soil, Abdulmutallab had to make numerous calculated decisions. A brief overview of the steps that Abdulmutallab took in preparation for his mission is instructive:

  • Abdulmutallab studied the teachings of the radical Imam Anwar Awlaki, which prompted his decision to travel to Yemen for the purpose of meeting Awlaki.
  • While in Yemen, Abdulmutallab agreed to carry out the martyrdom mission.
  • In order to conceal his time in Yemen, Abdulmutallab decided to travel to Ghana before departing to Amsterdam.
  • Abdulmutallab had to come up with clever reasons for traveling to the United States when an airport screener in Amsterdam questioned his reasons for travel.

These actions show the deliberate, conscious, and complicated path Abdulmutallab chose to pursue in the name of martyrdom. Unlike the defendants in Pate and Drope, Abdulmutallab not only acted rationally, but was (nearly) able to execute a complex martyrdom mission. The complexity behind Abdulmutallab’s mission indicates the exact opposite of incompetence.

In other words, McKeague’s opinion most strongly argues that if you’re competent enough to (almost) carry out a terrorist plot then you are competent enough to defend yourself, whether or not 19 months of solitary confinement make you incompetent in the meantime.

Ramzi bin al-Shibh, take note.

Perhaps as significant a part of this ruling as the competency one is how the Circuit dealt with Abdulmutallab’s challenge to his statements at University of Michigan hospital, given the assault on Miranda in other terrorism cases. Not only had he not been Mirandized, but he had also been administered drugs, when he made those comments.

Basically, McKeague punted.

Abdulmutallab argues that the district court erred in failing to suppress the statements he made during his time at the University of Michigan Hospital. Abdulmutallab states that his testimony at the hospital was compelled and therefore the Fifth Amendment prohibited the use of that testimony in trial.

We will not address the merits of Abdulmutallab’s argument, as he waived any right to challenge the suppression of his statements when he entered the guilty plea. When a criminal defendant pleads guilty, “he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards [for effective assistance of counsel].” Tollett v. Henderson, 411 U.S. 258, 267 (1973). This court has held that a defendant who pleaded guilty may not appeal an adverse ruling on a pre-plea motion to suppress evidence “unless he has preserved the right to do so by entering a conditional plea of guilty in compliance with Rule 11(a)(2).”

I don’t question this decision, particularly given the decision on competence. But it’s important because commentators had pointed to Abdulmutallab’s case as precedent for the treatment of (among others) Dzhokhar Tsarnaev. But the Circuit declined to fully endorse his treatment, one way or another.

2 Agents 3 Hours a Day Weren’t REALLY Reading Anwar al-Awlaki’s Email

Former CIA Deputy Director John McLaughlin wants you to believe the NSA wasn’t really reading Anwar al-Awlaki’s communications content, on whose emails (including the web-based ones) the NSA had a full-time tap at least as early as March 16, 2008.

In my experience, NSA analysts err on the side of caution before touching any data having to do with U.S. citizens. In 2010, at the request of then-Director of National Intelligence Dennis Blair, I chaired a panel investigating the intelligence community’s failure to be aware of Umar Farouk Abdulmutallab, the “underwear bomber” who tried to blow up a commercial plane over Detroit on Dec. 25, 2009.

The overall report remains classified, but I can say that the government lost vital time because of the extraordinary care the NSA and others took in handling any data involving a “U.S. person.” (Abdulmutallab, a Ni­ger­ian, was recruited and trained by the late Anwar al-Awlaki, a U.S. citizen based in Yemen.)

And maybe that’s the case.

Except it doesn’t seem to square with the report that two FBI Agents were spending 3 hours a day each reading Awlaki’s mail. It doesn’t seem to accord with the efforts those Agents made to chase down the Nidal Hasan lead — which, after all, infringed on the privacy of two American citizens, against one of whom probable cause had not been established. You’d think it would be far easier to chase down the Abdulmutallab messages, particularly given what has been portrayed as more clearly operational content, given that Abdulmutallab would have gotten no protection as a US person.

Sure, those Agents complained about the “crushing” volume of the communications content they had to review every day, but that was a factor of volume, not any restrictions on reading FISA target Anwar al-Awlaki’s email.

Don’t get me wrong. I’m thrilled someone has raised Abdulmutallab in the context of assessing NSA’s dragnet, which I’ve been calling for since October.

UndieBomb 1.0 was the guy who was allegedly plotting out Jihad with Anwar al-Awlaki — whose communications the FBI had two guys reading – over things like chats and calls. That is, Umar Farouk Abdulmutallab was a guy whose plot the NSA and FBI should have thwarted before he got on a plane. (To say nothing of the CIA and NCTC’s fuck-ups.)

And yet, he got on that plane. His own incompetence and the quick work of passengers prevented that explosion, while a number of needles went unnoticed in the NSA’s most closely watched haystacks.

Nevertheless, the lesson DiFi takes is that we need more haystacks.

Shouldn’t the lessons of UndieBomb 1.0 be just as important to this debate as the partial, distorted, lessons of 9/11?

(I’ve also been wondering why Faisal Shahzad, who was getting instructions, including hawala notice, from known targets of drone strikes in Pakistan, before his attack, wasn’t identified by phone and Internet dragnet analysis as a person of interest through those contacts, though that may legitimately be because of turmoil in both dragnet programs.)

But for McLaughlin’s claims to be true then the description of the treatment of the Awlaki wiretaps in the Webster report on the Nidal Hasan investigation wouldn’t seem to make sense.

By all means, let’s hear what really happened back between 2008 and 2010, when the NSA missed multiple contacts with top AQAP targets and TTP targets and as a result missed two of the three main international terrorist attacks on this country since 9/11. That should be part of the debate.

But let’s be very clear whether it was really limits on US person data, when we see FBI reading content of two US persons directly, or rather the sheer volume we’re collecting (as well as the crappy computer systems FBI had in place in 2009) that caused the dragnet to fail.

NSA Failures and Terror Successes Drive the Dragnet

Ryan Lizza has a long review of the dragnet programs. As far as the phone dragnet, it’s a great overview. It’s weaker on NSA’s content collection (in a piece focusing on Ron Wyden, it doesn’t mention back door searches) and far weaker on the Internet dragnet, the technical and legal issues surrounding which he seems to misunderstand on several levels. It probably oversells Wyden’s role in bringing pressure on the programs and treats Matt Olsen’s claims about his own role uncritically (that may arise out of Lizza’s incomplete understanding of where the dragnet has gone). Nevertheless, it is well worth a read.

I think it most valuable for the depiction of Obama’s role in the dragnet and its description of the ties between the war on terror and perceptions about the dragnet. Take this account of Obama’s decision not to embrace transparency during the PATRIOT Act Reauthorization in 2009-10. Lizza describes Wyden pressuring Obama to make information on the dragnets available to Congress and the public (we know HJC members Jerry Nadler, John Conyers, and Bobby Scott were lobbying as well, and I’ve heard that Silvestre Reyes favored disclosure far more than anyone else in a Ranking Intelligence Committee position).

But then the UndieBomb attack happened.

The debate ended on Christmas Day, 2009, when Umar Farouk Abdulmutallab, a twenty-three-year-old Nigerian man, on a flight from Amsterdam to Detroit, tried to detonate a bomb hidden in his underwear as the plane landed. Although he burned the wall of the airplane’s cabin—and his genitals—he failed to set off the device, a nonmetallic bomb made by Yemeni terrorists. Many intelligence officials said that the underwear bomber was a turning point for Obama.

“The White House people felt it in their gut with a visceralness that they did not before,” Michael Leiter, who was then the director of the National Counterterrorism Center, said. The center was sharply criticized for not detecting the attack. “It’s not that they thought terrorism was over and it was done with,” Leiter said, “but until you experience your first concrete attack on the homeland, not to mention one that becomes a huge political firestorm—that changes your outlook really quickly.” He added, “It encouraged them to be more aggressive with strikes”—drone attacks in Yemen and Pakistan—“and even stronger supporters of maintaining things like the Patriot Act.”

Obama also became more determined to keep the programs secret. On January 5, 2010, Holder informed Wyden that the Administration wouldn’t reveal to the public details about the N.S.A.’s programs. He wrote, “The Intelligence Community has determined that information that would confirm or suggest that the United States engages in bulk records collection under Section 215, including that the Foreign Intelligence Surveillance Court (fisc) permits the collection of ‘large amounts of information’ that includes ‘significant amounts of information about U.S. Persons,’ must remain classified.” Wyden, in his reply to Holder a few weeks later, expressed his disappointment with the letter: “It did not mention the need to weigh national security interests against the public’s right to know, or acknowledge the privacy impact of relying on legal authorities that are being interpreted much more broadly than most Americans realize.” He said that “senior policymakers are generally deferring to intelligence officials on the handling of this issue.”

Curiously, Lizza makes no mention of Nidal Hasan who, unlike Umar Farouk Abdulmutallab, actually succeeded in his attack, and like Abdulmutallab, had had communications with Anwar al-Awlaki intercepted by the NSA (and FBI) leading up to the attack. Weeks before the UndieBomb attack, Pete Hoekstra had already started criticizing the Obama Administration for not responding to Hasan’s emails to Awlaki, and Hasan’s attack led to more tracking of Awlaki (and, I suspect, Samir Khan’s) online interlocutors. I also suspect that, because of certain technical issues, the Hasan experience led to increased support for suspicionless back door searches.

But whether or not the UndieBomber alone or in conjunction with the Hasan attack was the catalyst, I absolutely agree Obama got spooked.

The question is whether Obama took the correct lesson from the UndieBomb, in particular. While the Hasan attack definitely led to real lessons about how to better use content collection (FISA and PRISM), the UndieBomb case should have elicited conclusions about having too much data to find the important messages, such as Abdulmutallab’s text to Awlaki proposing Jihad. (Note that Hoekstra’s blabbing about the Awlaki taps may have led AQAP to encrypt more of their data — as Awlaki was alleged to have done with Rajib Karim — which would have led to legitimate concerns about publicizing NSA techniques.) With the UndieBomb, NSA purportedly had advance warning of the attack that didn’t get read until after the attempt. Why not? And why wasn’t that Obama’s main takeaway?

And the National Security people still seem to be taking the wrong lessons. Here’s Matt Olsen and DiFi’s version of the National Security crowd’s latest fearmongering, that we need dragnets even more so now because the terrorist group has dispersed.

As core members of Al Qaeda were killed, the danger shifted to terrorists who were less organized and more difficult to detect, making the use of the N.S.A.’s powerful surveillance tools even more seductive. “That’s why the N.S.A. tools remain crucial,” Olsen told me. “Because the threat is evolving and becoming more diverse.”

Feinstein said, “It is very difficult to permeate the vast number of terrorist groups that now loosely associate themselves with Al Qaeda or Al Nusra or any other group. It is very difficult, because of language and culture and dialect, to really use human intelligence. This really leaves us with electronic intelligence.”

Olsen says the problem is, in part, that Al Qaeda is “less organized.” DiFi says one problem we have “permeating” terrorist groups is language and culture and dialect and her solution to that is to use “electronic intelligence.” While electronic intelligence — and specifically metadata — provides a way to compensate for linguistic failures (the NSA uses structure to identify which are the important conversations), in terrorist attack after terrorist attack (as well as CW attack) we turn out not to have been watching the right content feeds. And if we don’t have the linguistic skills, we’re likely not going to understand the messages correctly in any case.

And these are less organized groups! Are they really any more effective than crime gangs at this point, and crime gangs in countries far away with little means to access the US?

But rather than saving money on the dragnet and working instead on shoring up our cultural and linguistic failures, this failure is instead seen as another excuse to sustain the dragnet.

It’s clear that terror — whether NSA has failed or not — serves as a evergreen excuse for the dragnet. The real question is whether it should.

How Does a Competent Jihadi Act after 21 Months of Solitary Confinement?

I would be shocked if, after today’s appeal hearing in Umar Farouk Abdulmutallab’s trial, he were granted a new trial on competency grounds. On the panel, David McKeague seemed completely skeptical on legal grounds, Jane Branstetter Stranch seemed skeptical on the central competency issue, leaving Curtis Collier (a District Judge on loan from E TN) with the only apparent sympathy for the argument at hand in the least.

As I explained back in May, The central question was whether Abdulmutallab was competent to defend himself. He had fired his federal defenders in September 2010 and the court named a standby counsel, Anthony Chambers, for him. In August of the next year, Chambers submitted a sealed motion arguing Abdulmutallab was not competent. Judge Nancy Edmunds had a hearing on August 17, 2011 and while she addressed several questions to Abdulmutallab, she did not have him evaluated for competency. When he plead guilty on October 12, 2012, she asked standby counsel if he thought Abdulmutallab was competent to plead guilt and after he assented, she accepted the guilty plea.

Both Judge McKeague, to a lesser degree Stranch, and prosecutor Jonathan Tukel emphasized that last point in their discussion: given that the same standby counsel who had submitted the motion on competence did not re-raise it at the plea, they argued, it suggests the counsel agreed with Edmunds’ determination that Adbulmutallab was competent. Abdulmutallab’s attorney Travis Rossman argued that the Chambers could not, at that point, argue his client was totally crazy. Moreover, he argued, the standard for a defendant representing himself was higher and must be concurrent determination (meaning if he were crazy in August 2012 but competent in October 2012, it would still be an issue for a defendant representing himself). But that detail will almost certainly be the one the judges point to to reject this appeal.

Judges McKeague and Stranch also examined a different question. Some of the most obviously crazy things Abdulmutallab did (though this wasn’t and couldn’t have been Chambers’ original argument) came leading up to trial, most notably his bid to wear a Yemeni dagger to his trial. Abdulmutallab intended to martyr himself, Stranch noted, couldn’t these actions be interpreted as an effort to use the trial to make a point of his faith? McKeague pointed out that Abdulmutallab had done some pretty “well thought out logical things” leading up to his attack. He later asked whether his conduct at trial wasn’t consistent with what you’d expect a jihadi to do, to use the trial as a platform to present his views?

Rossman contested that point — noting that had Abdulmutallab let the trial play out, he would have had many more opportunities to parade his jihadi views. McKeague responded that refusing counsel left Abdulmutallab more empowered to make jihadi statements rather than mount a defense. Rossman correctly pointed out this was all getting into speculation about how a competent jihadi would act.

While it didn’t come up in the hearing, remember that the statement Abdulmutallab ultimately made was remarkably muted and took up less than 15 minutes, so by measure of his exploitation of his soapbox, the UndieBomber failed.

All that’s a way of saying that much of the hearing focused on how a competent jihadi would use his decision to represent himself to further his goals of jihad.

There is, however, a significant weakness in the government’s case, one Tukel made obvious with the central ploy he made in his argument.

Read more

William Webster Meets Edward Snowden, IRTPA, Roving Wiretaps, and the Phone Dragnet

For a post on back-door searches, I’m re-reading the William Webster report on whether the FBI could have anticipated Nidal Hasan’s attack. In the light of the Edward Snowden disclosure, I’m finding there are a number of passages that read very differently (so expect this to be a series of posts).

As you read this, remember two things about Webster’s report. First, FBI and NSA’s failure to find Umar Farouk Abdulmutallab in spite of texts he sent to Anwar al-Awlaki was probably prominent on the Webster team’s mind as they completed this (and surely factors significantly in the classified version of the SSCI report on the UndieBomb). So some of the comments in the Webster report probably don’t apply directly to the circumstances of Nidal Hasan, but to that (and Webster notes that some of the topics he addresses he does because they’re central to counterterrorism approaches). And the Webster report is perhaps the most masterful example of an unclassified document that hides highly classified background.

All that said, in a section immediately following Webster’s description of Section 215, Webster discusses how Roving Wiretaps, Section 6001 of IRTPA, and Section 215 were all reauthorized in 2011.

When FISA was passed in 1978, the likely targets of counterterrorism surveillance were agents of an organized terrorist group like the Red Brigades, the Irish Republican Army, or the Palestinian terrorist organizations of that era. Given the increasing fluidity in the membership and organization of international terrorists, the FBI may not be able to ascertain a foreign terrorist’s affiliation with an international organization. Section 6001 of the Intelligence Reform and Terrorist Prevention Act of 2004 (IRTPA) allows the government to conduct surveillance on a non-U.S. person who “engages in international terrorism or activities in preparation therefor” without demonstrating an affiliation to a particular international terrorist organization. Pub. L. 108-458, § 6001, 118 Stat. 3638, 3742 (2004).

Sections 206 and 215 of the PATRIOT Act and Section 6001 of IRTPA were scheduled to “sunset” on December 31, 2009. In May 2011, after an interim extension, Congress extended the provisions until June 1, 2015, without amendment. [my emphasis]

I find this interesting, first of all, because it doesn’t mention the Pen Register and Lone Wolf language that also got reauthorized in 2011 (suggesting he lumped these three together for a specific reason). And because it puts the language, “engages in international terrorism or activities in preparation therefor” together with roving wiretaps (“continuous electronic surveillance as a target moves from one device to another”), and Section 215, which we now know includes the phone dragnet.

As we’ve seen, DiFi’s Fake FISA Fix includes the language from IRTPA, on “preparation therefor,” which I thought was an expansion of potential targets but which I presume now is what they’ve been using all along. While I don’t recall either the White Paper nor Claire Eagan’s language using that language, I’m wondering whether some underlying opinion does.

Now consider how the roving wiretap goes with this. One reason — probably the biggest reason — they need all phone records in the US is so they can use it to find targets as they move from one burner cell phone to another. Indeed, one passage from DiFi’s Fake FISA Fix seems specifically designed to authorize this kind of search.

(C) to or from any selector reasonably linked to the selector used to perform the query, in accordance with the court approved minimization procedures required under subsection (g).

That language “reasonably linked” surely invokes the process of using algorithms to match calling patterns to calling patterns to find a target’s new phone. And note this is the only query that mentions minimization procedures, so the Court must have imposed certain rules about how you treat a new “burner” phone ID until such time as you’ve proven it actually is linked to the first one.

What’s interesting, though, is that the Webster report also lumps roving wiretaps in with this. What’s at issue in Nidal Hasan’s case was effectively roving electronic communication; he emailed Awlaki from several different email addresses and one of the problems FBI had was in pulling up Hasan’s communications under both identities (you can see how this relates to the back door loophole). But the inclusion of roving wiretaps here seems to suggest the possibility that a court has used the existing of roving wiretap approval for the use of the phone dragnet to find burner phones (which shouldn’t have been an issue in the Nidal Hasan case but probably was for Abdulmutallab).

One more comment? The notion that identifying an Al Qaeda target is any harder than identifying an IRA-affiliate is utter nonsense. If anything, US-based IRA affiliates were harder to identify because they were completely and utterly socially acceptable. But I guess such myths are important for people advocating more dragnet.

Lawfare Uses Incomplete Facts about Abdulmutallab Trial to Attack Dirty Wars

I’m going to take a break from noting how Lawfare ignores the public record on NSA spying — both of past failures to inform Congress, and of Intelligence Community lies about having done so — to note how Lawfare ignores the public record on drone killing.

On Sunday, Lawfare posted a long review of Jeremy Scahill’s book Dirty Wars. While it is not entirely negative, it stakes a claim on what the public record shows to argue that Scahill glossed over what a dangerous man Anwar al-Awlaki was. Yet the review itself ignores key details in the public record.

First, full disclosure. I’m friends with Scahill, and he acknowledged me in the book. But given that I’m not quoted, I suspect he acknowledged me because I’ve followed certain aspects of the narrative he covered — especially the evidence in the Umar Farouk Abdulmutallab case and the shoddy OLC case to support Awlaki’s killing — in more detail than most other reporters.

It’s for that reason that I find the review to be so problematic.

After spending two paragraphs praising the on-the-ground reporting Scahill did, Lawfare reviewer Nick Basciano complains,

Scahill simply skips over facts that don’t promote his narrative of Awlaki. One such example comes in Awlaki’s relationship with Umar Farouk Abdulmutallab, the “Christmas Day Bomber” who attempted to detonate almost three ounces of PETN aboard Northwest flight 253 on its descent to Detroit. A publically-available and widely-cited sentencing memorandum for Abdulmutallab describes how Awlaki housed Abdulmutallab in Yemen and took him to AQAP’s primary bomb-maker, Ibrahim Al Asiri. There, they “discussed a plan for martyrdom mission” and Awlaki himself gave the bombing plot “final approval and instructed Defendant Abdulmutallab on it.” Awlaki’s “last instructions,” the memorandum continues, “were to wait until the airplane was over the United States and then to take the plane down.” Without dealing with this evidence from the Abdulmutallab trial, Scahill admits that Awlaki was only “in touch” with Abdulmutallab, insisting that “no conclusive evidence [was] presented, at least not publicly, that Awlaki had played an operational role in any attacks.” Why such a relevant piece of evidence isn’t included in Scahill’s retelling of the Abdulmuttallab plot is unclear, but it isn’t the only instance of turning a blind eye to evidence linking Awlaki’s directly to terrorism.

The trial, of course, took place several weeks after the final event of Scahill’s narrative, the killing of Abdulrahman al-Awlaki [Correction: The trial took place on October 11 and 12, 2009, before Abdulrahman’s death. But as I note, the narrative presented there differs in key ways from the one Basciano adopts]. The sentencing took place several months later. That doesn’t mean Scahill couldn’t have included the evidence from “the trial.” But it was not part of the narrative arc Scahill told in the book.

Moreover, Basciano’s description ignores the reporting Scahill did do on Awlaki’s role in Abdulmutallab’s attempted attack, reporting based on talking to people who knew of Abdulmutallab’s movements in Yemen.

A local trial leader from Shabwah, Mullah Zabara, later told me he had seen the young Nigerian at the farm of Fahd al-Quso, the alleged USS Cole bombing conspirator. “He was watering trees,” Zabara told me. “When I saw [Abdulmutallab], I asked Fahd, ‘Who is he?'” Quso told Zabara the young man was from a different part of Yemen, which Zabara knew was a lie. “When I saw him on TV, then Fahd told me the truth.”

Awlaki’s role in the “underwear plot” was unclear. Awlaki later claimed that Abdulmutallab was one of his “students.” Tribal sources in Shabwah told me that al Qaeda operatives reached out to Awlaki to give religious counseling to Abdulmutallab, but that Awlaki was not involved in the plot. While praising the plot, Awlaki said he had not been involved with its conception of planning. (318)

After having complimented Scahill’s efforts to speak to people on the ground, Basciano did not mention that he had done so, too, in regards to the Abdulmutallab attack.

Moreover, if Scahill had used the material released in relation to the trial, the evidence would be much muddier than Basciano lays out. Read more

“Too much transparency defeats the very purpose of democracy”

In truly bizarre testimony he will deliver to the House Intelligence Committee next week, Paul Rosenzweig argues that “too much transparency defeats the very purpose of democracy.” He does so, however, in a piece arguing that the government needs what amounts to be almost full transparency on all its citizens.

The first section of Rosenzweig analysis talks about the power of big data. It doesn’t provide any actual evidence that big data works, mind you. On the contrary, he points to one failure of big data.

When we speak of the new form of “dataveillance,” we are not speaking of the comparatively simple matching algorithms that cross check when a person’s name is submitted for review¾when, for example, they apply for a job. Even that exercise is a challenge for any government, as the failure to list Abdulmutallab in advance of the 2009 Christmas bombing attempt demonstrates.[11] The process contains uncertainties of data accuracy and fidelity, analysis and registration, transmission and propagation, and review, correction, and revision. Yet, even with those complexities, the process uses relatively simple technologically—the implementation is what poses a challenge.

By contrast, other systems of data analysis are far more technologically sophisticated. They are, in the end, an attempt to sift through large quantities of personal information to identify subjects when their identities are not already known. In the commercial context, these individuals are called “potential customers.” In the cyber conflict context, they might be called “Anonymous” or “Russian patriotic hackers.” In the terrorism context, they are often called “clean skins” because there is no known derogatory information connected to their names or identities. In this latter context, the individuals are dangerous because nothing is known of their predilections. For precisely this reason, this form of data analysis is sometimes called “knowledge discovery,” as the intention is to discover something previously unknown about an individual. [my emphasis]

Nevertheless, having not provided evidence big data works, he concludes that “There can be little doubt that data analysis of this sort can prove to be of great value.”

The reference to Abdulmutallab is curious. At the beginning of his testimony he repeats the reference.

In considering this new capability we can’t have it both ways.  We can’t with one breath condemn government access to vast quantities of data about individuals, as a return of “Big Brother”[4] and at the same time criticize the government for its failure to “connect the dots” (as we did, for example, during the Christmas 2009 bomb plot attempted by Umar Farouk Abdulmutallab.

This formulation — and the example of Abdulmutallab even more so — is utterly crazy. Having big data is not the same thing as analyzing it correctly. Criticism that the Intelligence Community failed to connect the dots — with the UndieBomb attack, but even with 9/11 — assumes they had the dots but failed to analyze them or act on that analysis (as the IC did fail, in both cases). Indeed, having big data may actually be an impediment to analyzing it, because it drowns you. And while Rosenzweig suggests the only big data failure with Abdulmutallab involved not placing him on a watch list, that’s false. The NSA had wiretaps on Anwar al-Awlaki which, according to the government, collected information tying Abdulmutallab to an attack.

Yet they didn’t respond to it.

And you know what? We measly citizens don’t know why they didn’t respond to it — though we do know that the FBI agents who were analyzing the Awlaki data were … you guessed it! Overwhelmed.

Before anyone involved in government claims that big data helps — rather than hinders — they should have to explain why a full-time tap on Anwar al-Awlaki didn’t find the guy who was texting him about a terrorist attack. Read more

How to Evaluate the HIG? Exploitation? Dead Bodies?

Carrie Johnson uses the arraignment of Abu Anas al-Libi as an opportunity to consider the success of the High Value Interrogation Group. She weighs the following details:

  • There haven’t been that many cases
  • Some governments refuse access to HIG
  • The group lacks leadership
  • The clean team model has problems

But I think we need to take a step back.

First, while Johnson gives a list of some of the interrogations conducted by HIG, it’s not comprehensive (for example, it doesn’t include Umar Farouk Abdulmutallab, with whom HIG was used in an ad lib capacity — it had just started; and it doesn’t include Manssor Arbabsiar). And it’s not clear we would know every time HIG gets used. For example, there were unnamed officials present at Ibragim Todashev’s death; given that we know HIG was used from the start with Dzhokhar Tsarnaev, it’s fair to at least ask whether any HIG members were present, and whether they remained in the room when Todashev was killed.

That expanded list of HIG interrogees quickly gets you to the question of consequences for HIG interrogees. Just from this possible list, you get questions such as,

  • If HIG was present at Todashev’s interrogation did they have a role in his killing?
  • Al-Libi was brought to New York because of health problems attributed to his choice to stop eating and drinking; did HIG use any food manipulation before this?
  • While I expect him to lose, Abdulmutallab’s appeal on competency grounds remains active; did HIG-induced solitary tip Abdulmutallab over the edge, as his appeal claims (he was reportedly not-altogether there when first detained)?

And these issues, plus the refusal of lawyers for Dzhokhar all could endanger convictions — and certainly, death penalties (which has already been taken off the table in al-Libi’s case) — in these cases.

Then there’s the question of what we’re after: the truth, or exploitation?

I’ve written about exploitation and HIG here, and Jason Leopold and Jeff Kaye showed how that — not necessarily truthful intelligence — was the goal of the torture program.

Exploitation is the use of interrogations not just to get intelligence, but also to support propaganda and/or generate informants. If exploitation is HIG’s goal, we might raise questions about whether both Abdulmutallab and Tsarnaev really implicated Anwar al-Awlaki of their own accord. In the former case, both non-HIG confessions did not implicate Awlaki as anything but an inspiration. In the latter, we know Tamerlan was also influenced by right wing propaganda. If exploitation is the goal, should we really believe the government story about the Scary Iran Plot, particularly given that most details of the “plot” — such as the restaurant targeted in Georgetown — came from our informant in the first place?

I don’t know the answer to these questions. But they seem to be ones we need to answer whether HIG works or not — to say nothing of whether a Democratic society should embrace HIG or not.