Category Archives: Drones

Senate Intelligence Committee Member Ron Wyden STILL Hasn’t Seen Targeted Killing Memo

By:  Monday January 14, 2013 3:32 pm

Every time I get into debates about the targeted killing program–especially the killing of Anwar al-Awlai–drone boosters insist that the oversight provided by the Intelligence Committees is adequate to the task.

That’s a quaint thought.

Ron Wyden, in a letter preparing John Brennan for his confirmation hearing, reveals that he still hasn’t seen the “secret legal opinions” (plural) authorizing the targeted killing program.

First, as you may be aware, I have asked repeatedly over the past two years to see the secret legal opinions that contain the executive branch’s understanding of the President’s authority to kill American citizens in the course of counterterroism operations. Senior intelligence officials have said publicly that they have authority to knowingly use lethal force against Americans in the course of counterterrorism operations, and have indicated that there are secret legal opinions issued by the Justice Department’s Office of Legal Counsel that explain the basis for this authority. I have asked repeatedly to see these opinions, and I have been provided with some relevant information on the topic, but I have yet to see the opinions themselves.

[snip]

As I have said before, this situation is unacceptable. For the executive branch to claim that intelligence agencies have the authority to knowingly kill American citizens but refuse to provide Congress with any and all legal opinions hat explain the executive branch’s understanding of this authority represents an alarming and indefensible assertion of executive prerogative.

Remember, Wyden is a member of the Senate Intelligence Committee, that group of select men and women with whom the Executive must share even the findings authorizing the most covert operations.

And yet for two years, they have rebuffed Wyden’s questions about their claim to be authorized to kill Americans.

There’s more in the letter demonstrating how arrogant the Obama Administration has been with the purported overseers of its covert operations.

But it doesn’t get much scarier than the fact that the President won’t tell Congress the bases and limits to his authority to unilaterally kill Americans.


For Lack of the Most Appropriate Word: “Lie”

By:  Thursday January 10, 2013 11:26 am

I really wanted to just ignore this Michael Cohen column, which purports to explain to “the Left” (which by and large approves of Obama’s drone war) why they should welcome John Brennan to head the CIA because he will reform the drone war there.

But when I read this paragraph–the 10th of 11 paragraphs in the column, I couldn’t resist.

In addition, Brennan’s public statements on the drone program and U.S. policy toward Yemen have, for lack of a better term, not always passed the smell test. His assertion last year that he could not confirm the death of a single civilian from U.S. drones hardly seems credible. Moreover, if Brennan was so serious about reforming drone use, why hasn’t he done it already?

Cohen picks up a criticism I made with him on Twitter the other day, which Glenn Greenwald, the Bureau of Investigative Journalism, and I have written about: John Brennan has said things about the drone program that have, “for lack of a better term, not always passed the smell test.” (Note, Cohen doesn’t acknowledge that Brennan’s public speech on drones was also obviously misleading, not least because it disclaimed the existence of signature strikes.)

Of course, there is a better term for the assertion–made by the man who (Cohen has spent much of the previous 10 paragraphs telling us) is privy to all the information exchanged in the drone program–that there had been no civilian casualties in the drone war.

A lie.

So in paragraph 10  of an 11 paragraph column, Cohen sort of admits, even if he cowers from the best term for it, that Brennan has lied about the very subject of this column.

Which is all the funnier, because two of the assertions Cohen makes on in paragraphs 1 through 9 rely on claims Brennan made.

Brennan [] goes to President Obama for his approval [as I have noted, there's a long history of Presidential gatekeepers who do not in fact inform the President of things so he can retain plausible deniability about them]

[snip]

Brennan stated this past fall, “I think the rule should be that if we’re going to take actions overseas that result in the deaths of people, the United States should take responsibility for that.”

And while there is evidence that Brennan has reeled in the CIA Counterterrorism Center head’s out-of-control signature strike campaign in Pakistan (at least until the last couple of weeks), he also approved the same kind of signature strikes in Yemen.

This is one of the problems with Brennan’s boosters. They invest everything in chosen Brennan statements, while ignoring that he has shamelessly lied in statements about the very same topic.

Sure, Brennan might be telling the truth in some of these public statements, even in spite of the fact that his past statements were such obvious lies. Brennan might want to reform the drone program (even though he stalled the effort to do so that was part of preparation for a Mitt Romney administration and ignored his own reformed rules). But no one should build an argument off them, because given Brennan’s history of lying, they cannot be considered credible. That’s the problem with lying as embarrassingly as Brennan has done, because such lies should–in a rational world–undermine the credibility of all your statements. Cohen builds his argument, in paragraphs 1 through 9, on statements that he admits should not be trusted in paragraph 10.

Side note: It’s troubling how, just 10 years after Bush lied us into the Iraq War with help from Brennan’s boss, George Tenet, Brennan’s boosters seem unconcerned about putting a proven liar in charge of the CIA.

Continue reading →


Will NYT’s Ombud Encourage a NYT Pre-Sentencing Memo for Bradley Manning, Too?

By:  Wednesday January 9, 2013 10:56 am

When I first read Scott Shane’s long profile of John Kiriakou, I thought, “how interesting that the NYT is doing a piece that exposes the government’s double standards just in time for the sentencing of Kiriakou, one of their sources.”

That’s not to say I’m not glad to see the piece: the profile did more to raise the scandal of Kiriakou’s prosecution than just about anything short of a 60 Minutes piece might.

And I’m much less interested in Shane’s references to his own role in Kiriakou’s indictment

Mr. Kiriakou first stumbled into the public limelight by speaking out about waterboarding on television in 2007, quickly becoming a source for national security journalists, including this reporter, who turned up in Mr. Kiriakou’s indictment last year as Journalist B.

[snip]

After Mr. Kiriakou first appeared on ABC, talking with Brian Ross in some detail about waterboarding, many Washington reporters sought him out. I was among them. He was the first C.I.A. officer to speak about the procedure, considered a notorious torture method since the Inquisition but declared legal by the Justice Department in secret opinions that were later withdrawn.

Then I am by this passage.

In 2008, when I began working on an article about the interrogation of Khalid Shaikh Mohammed, I asked him about an interrogator whose name I had heard: Deuce Martinez. He said that they had worked together to catch Abu Zubaydah, and that he would be a great source on Mr. Mohammed, the architect of the Sept. 11 attacks.

He was able to dig up the business card Mr. Martinez had given him with contact information at Mitchell Jessen and Associates, the C.I.A. contractor that helped devise the interrogation program and Mr. Martinez’s new employer.

Mr. Martinez, an analyst by training, was retired and had never served under cover; that is, he had never posed as a diplomat or a businessman while overseas. He had placed his home address, his personal e-mail address, his job as an intelligence officer and other personal details on a public Web site for the use of students at his alma mater. Abu Zubaydah had been captured six years earlier, Mr. Mohammed five years earlier; their stories were far from secret. [my emphasis]

As I have mapped out before, the indictment strongly suggests that Kiriakou was Shane’s source for Martinez’ phone number, and with that suggestion, implies that Shane got Martinez’ identity from Kiriakou rather than one of the 23 other sources he had for the article.

With this passage, Shane rebuts what would have been a key point at trial (and may help Kiriakou in his sentencing). At least according to Shane, he not only learned of Martinez’ identity before he asked Kiriakou about it, but was able to find Martinez’ home address and email on an alumni network site. (Note, Shane doesn’t address whether Kiriakou was the source for the “magic box” technology discussed in the article, about which Kiriakou was also alleged to have lied to CIA’s Publication Review Board.)

In short, the whole article serves as a narrative pre-sentencing memo, offering a range of reasons why Kiriakou should get less than the 30 months his plea deal currently recommends.

Continue reading →


Blabby Brennan to Replace Publicity Petraeus at CIA?

By:  Tuesday January 8, 2013 12:21 pm

“He is a horrendously political animal, and there will be a tendency to politicize information to put the best spin for the administration on it.”

–An anonymous CIA officer, speaking of John Brennan, with whom he worked at CIA during the Bush Administration

As predicted, John Brennan’s past support for torture has generated only limited concern from John McCain and Dianne Feinstein, but no real threat that it will hold up his confirmation. No one, as far as I know, seems to care that Brennan was involved in Dick Cheney’s illegal wiretap program, nor that he decided to give NCTC access to the federal data of completely innocent Americans, nor his “intimate familiarity” with the genesis of NYPD’s abusive domestic spying program. And while there has been much discussion of his role in drone strikes–much of it credulously insisting Brennan wants to put order to drone strikes with an effort stalled after Mitt lost–even drone skeptics like Ron Wyden have not yet raised it as a confirmation issue.

John Cornyn’s warning that Brennan won’t be approved until the leak investigations finish is much more interesting, however.

“John Brennan has not been absolved of responsibility for the slew of high-level security leaks that have characterized this White House,” Sen. John Cornyn (R-Texas) told POLITICO in a statement Monday. “This investigation needs to be resolved before his nomination can move forward.”

An aide to Sen. John McCain (R-Ariz.), speaking on condition of anonymity, said: “The questions about national security leaks by this administration have not yet been answered, and that will obviously be an issue as the Senate considers his nomination.”

Sure, to some degree Cornyn’s professed concern just reflects Cornyn being not only a partisan asshole, but a hypocrite about leaks.

But there seems good reason to inquire into what John Brennan’s sieve-like qualities will have on national security.

Consider his role in the exposure of the sources and methods used to set up a sting entrapping AQAP in an UndieBomb plot and with it sustaining the claim that AQAP wants to–and has the ability to–strike in the US. After the AP revealed there had been a plot (having held off at the request of the Administration), Brennan called his predecessors to spin the plot and in doing so made it clear that it was a sting, thereby exposing the British passport holder who set up the sting as an infiltrator.

At about 5:45 p.m. EDT on Monday, May 7, just before the evening newscasts, John Brennan, President Barack Obama’s top White House adviser on counter-terrorism, held a small, private teleconference to brief former counter-terrorism advisers who have become frequent commentators on TV news shows.

According to five people familiar with the call, Brennan stressed that the plot was never a threat to the U.S. public or air safety because Washington had “inside control” over it.

Brennan’s comment appears unintentionally to have helped lead to disclosure of the secret at the heart of a joint U.S.-British-Saudi undercover counter-terrorism operation.

A few minutes after Brennan’s teleconference, on ABC’s World News Tonight, Richard Clarke, former chief of counter-terrorism in the ClintonWhite House and a participant on the Brennan call, said the underwear bomb plot “never came close because they had insider information, insider control.”

A few hours later, Clarke, who is a regular consultant to the network, concluded on ABC’s Nightline that there was a Western spy or double-agent in on the plot: “The U.S. government is saying it never came close because they had insider information, insider control, which implies that they had somebody on the inside who wasn’t going to let it happen.”

The White House made it clear they would have revealed the plot anyway. Indeed, they did so in an analogous situation two years earlier. And our Saudi and Yemeni partners tend to boast about such things anyway. Much of the outrage over this so-called leak served only to beat up on the AP that had exposed the aforementioned abusive NYPD program.

Nevertheless, revelations about how Brennan briefs his predecessors who then run to their respective networks to officially leak this information show that he is an enthusiastic participant in the asymmetric spread of information in DC.

But hey. We knew that.

Nevertheless, the asymmetry is key. As I’ve noted, Brennan has an interesting closeness to half of the Administration’s whistleblower prosecutions. Yet one of those prosecuted whistleblowers–John Kiriakou, whose book someone who looks exactly like Brennan helped to get published–suggested today that Brennan is “the most prolific leaker in this administration.” A former senior Administration official seems to agree.

“It’s not on people’s radar, but this could be an issue,” said the former administration official, who asked not to be named discussing a potential downside of Brennan’s nomination. “He’s a guy who comes across as a strong, silent type who never speaks, [but] he actually does a lot of talking both internally with the president and externally with select, influential reporters. … I’m not saying the guy seeks it, but [other White House officials] view him as the most credible internal mouthpiece on national security matters.”

Which brings me back to this point. It’s not just that Brennan exposes sources and methods while seemingly supporting the unprecedented prosecution of whistleblowers who do the same. But it’s also that he does so for political gain. This is not–contra Brennan’s many boosters–transparency. It’s about enforcing an official version of events that often contradicts markedly from the truth.

Mind you, it is not at all unprecedented to have a skilled leaker madly spinning Administration policies rather than leveling with the American people at CIA. That doesn’t make it good for national security, but it happens a lot.

All that said, one of yesterday’s jokes is that Brennan–a man with ties to torture and illegal wiretapping–is replacing a guy purportedly ousted for a consensual affair. There are reasons why such affairs on the part of the Director of CIA raise more concerns in the nuclear era than they might have in the past. And that nuclear tie may be the related complications cited to explain why Petraeus had to resign.

Or maybe not. In Rajiv Chandrasekaran’s recent report on Petraeus’ habit of giving the pundits who advanced his career Top Secret clearance and access to materials that might be used to oppose Administration policies, he suggested this practice was receiving new scrutiny at DOD, the kind of scrutiny that might necessitate retirement.

John Cornyn is largely being an asshole in raising Brennan’s blabby mouth in respect to his nomination. But in doing so, he may just expose the deep hypocrisy underlying this Administration’s asymmetric leaks. That may be the price Cornyn demands to rubberstamp Brennan’s CIA appointment.


Brennan Attacks First Responders Again

By:  Tuesday January 8, 2013 9:16 am

In a sane world, John Brennan would be on his best behavior while his nomination to lead the CIA is pending approval in the Senate. Sadly, the world we inhabit has become so insane that Brennan’s “best behavior” appears to be a return to drone strikes that come with alarming frequency and include so many missiles fired at each target that it seems likely Brennan has returned to the war crime of attacking first responders who are attempting to rescue survivors at the attack site.

I had noted last May that at least some US drone strikes appeared to have underpinnings that were as political as they were strategic, and my belief in that premise was strengthened as Brennan and the CIA escalated attacks to near daily at the time when US-Pakistan relations had reached a low point during negotiations to re-open NATO supply routes through Pakistan. Although some of the attacks I have described as political seem to have been very poorly targeted, especially the attack that killed 42 people gathered for a jirga just after the release of Raymond Davis, I was encouraged as the attacks slowed and appeared to be targeted on stronger underlying intelligence last fall and this winter.

However, it appears that the pace of attacks is picking up once again, both in frequency and in the number of people killed in each attack. Bill Roggio noted in Long War Journal that the attack on Sunday was already the fourth attack of January in only its sixth day. That attack left 17 dead, although it appears that three separate compounds were targeted in the attack. Today, we have yet another strike, bringing the total to five in eight days. Today’s attack, at least according to the Express Tribune, came in two separate waves, and raises the question of whether the US is once again targeting first responders who are trying to rescue survivors:

US operated armed drones fired missiles in Mir Ali and Essukhel area of North Waziristan in two sorties early on Tuesday morning killing at least eight people, Express News reported.

According to Express News, the CIA-operated drones first fired at least eight missiles at a compound in Haiderkhel area of Miranshah  killing five people. Four people were also injured in the attack.

Locals are sifting through the rubble to recover the bodies of the dead and rescue the injured.

In a second attack in as many hours, drone attacks killed at least three people.

Although the Express Tribune article could be read in a way to believe that the two sorties might not have hit the same compound, an article by Reuters and two different AP articles in the New York Times and Washington Post all make it clear that today’s attack concentrated on a single compound. Going back to the information in the Express Tribune article, then, we see eight missiles fired in the first volley. We have no information on how much time passed between missiles or if first responders had time to get to the scene and begin rescue operations. However, the second sortie, described as within two hours, seems quite likely to have been carried out despite the presence of “Locals” described by the Express Tribune as “sifting through the rubble to recover the bodies of the dead and rescue the injured”.

Such is the moral rectitude of the man who has been nominated to be the Director of the CIA. He has once again knowingly targeted first responders who were attempting to rescue survivors from a previous attack.

Update: Long War Journal now reports that today’s strikes were on two different compounds. The primary conclusion about targeting first responders still stands, since it still is being reported that eight missiles were fired at the first compound.


John Brennan Promises to Take the Gloves Off

By:  Monday January 7, 2013 10:53 pm

In response to John Brennan’s nomination, PBS sent out the clip from their 2006 interview in which he endorsed taking the gloves off. I find that clip, plus the complete interview transcript, all the more instructive given what has transpired with the Gloves Come Off Memorandum of Notification in the last two years and, I suspect, in last week’s opinion refusing to release the targeted killing memo. (Here’s a post describing the MON, and here’s the entire series: post 1, post 2, post 3, post 4, post 5, post 6,post 7, post 8, post 9, plus post 10 and post 11.) The short version of those posts is that the Executive Branch doesn’t consider the OLC memos the authorizing documents for its counterterrorism program–it considers this MON that document. But it is written such that it permits both the Agency and the Executive to avoid all accountability for these law-breaking programs.

Here, when the interviewer asks Brennan about “the Dark Side”–the title of the program–Brennan responds instead by talking about “taking the gloves off.”

Why would the vice president, and even the secretary of defense, want to talk about or have the country or want to warn the country about going to “the dark side”?

I don’t know. You’d have to ask them. … The point is the war or the campaign against terrorism can be a long one, and that the opposition, whether it be Al Qaeda, or whether it be Iraq, doesn’t play by the Marquis de Queensbury rules. Therefore, the U.S. in some areas has to take off the gloves. And I think that’s entirely appropriate. I think we do have to take off the gloves in some areas, but within balance, and at the right time and the right way, and for the right reason and with full understanding of what the consequences of that might be. [emphasis mine]

As I observed, the interviewer asks about “the Dark Side”, but then Brennan offers up the term “gloves come off” instead. He does so, notably, with regards to both al Qaeda–the terrorists–and Iraq (in 2006!)–the nation-state against which we trumped up a war. He not only endorses the notion that the Iraq war was part of the war on terror, but also that the US could “take its gloves off” even in a war with another nation-state purportedly governed by the traditional law of war.

In the phrase, John Brennan is endorsing “taking the gloves off,” in the name of terrorism, with any country we happen to be fighting that might–maybe–play dirty.

Then the interviewer asks Brennan–first and foremost–about the Bybee memo, but also about the AUMF. Brennan responds by talking about Findings.

One of the things that [the administration does] right away is get lots of legal justifications lined up, from the Bybee memo [the so-called "torture memo"] to everything, commander-in-chief power, the War Authorization Act. Would there have been very much difference between what Tenet believed the CIA should do in terms of renditions and all of it and what we can assume the vice president and the president and others would want the CIA to do? Was Tenet especially more careful, more cautious, more anything than they were sounding like they were?

I think George had two concerns. One is to make sure that there was that legal justification, as well as protection for CIA officers who are going to be engaged in some of these things, so that they would not be then prosecuted or held liable for actions that were being directed by the administration. So we want to make sure the findings and other things were done appropriately, with the appropriate Department of Justice review. [brackets original; my emphasis]

At least one and probably two courts have said that no sitting Administration official has admitted that all the law-breaking in pursuit of terrorists was authorized not by an OLC memo, but first and foremost a Finding.

Oh yes one has.

And he did so in a conversation framed precisely in the same way Cofer Black, author of the Gloves Come Off MON, did.

Continue reading →


The Official John Brennan Story

By:  Monday January 7, 2013 10:30 am


The NYT has chosen to have someone who presented an outdated picture of drone targeting that covered up changes implemented under John Brennan report on John Brennan’s nomination to be CIA Director. The story is predictably imbalanced.

Take this claim, for example:

It is uncertain whether the torture issue will now cause any problems for Mr. Brennan. But he is a far more well-known figure than in 2009, having made many public appearances in the wake of terrorist plots and to explain the legal and policy arguments behind drone strikes.

It’s fair, as far as it goes. I do doubt that Obama will care that his CIA Director has protected the CIA’s torturers. I do think Brennan has seduced enough beltway journalists so as to withstand criticism for his views.

But Scott Shane suggests Brennan’s many public statements on drones were 1) accurate and 2) consisted of actual explanations for drone strikes.

This, coming from a guy who has noted Brennan getting caught lying about there being no civilian casualties from drones in the past.

And from a guy who knows well that Brennan’s drone targeting speech fails to explain signature strikes (which Brennan approved in Yemen).

Sadly, Shane didn’t note those past lies.

Then there’s this claim.

He has spoken out repeatedly about the need for strong oversight and review of counterterrorism actions.

It would be useful for Shane to note that Brennan’s plans to establish rules for drones faltered after Mitt Romney lost the election. It would also be useful to note that his idea of “strong oversight” consists of him–John Brennan–centralizing all decision making under himself, then operating within the oversight free National Security Council. All at the same time the Administration refuses to exercise real transparency (and doesn’t even share the “kill list” with the Gang of Four).

That is, it would be nice if Shane had distinguished the myth he has helped to create from the reality.

But it seems the real role of Shane’s article is to point this out.

During Mr. Brennan’s tenure as Mr. Obama’s top adviser on counterterrorism, Al Qaeda’s leadership has been devastated and Mr. Bin Laden been killed.

That, I suppose, is the plan to get Brennan confirmed: paper over the serial lies and instead repeat Osama bin Laden over and over again.

Well done, Scott Shane!


The Seduction of John Brennan’s “Moral Rectitude”

By:  Monday January 7, 2013 8:01 am

As has been floated over the last few days, Obama will reportedly appoint John Brennan CIA Director later today.

FWIW, having John Brennan in a position where he will be subject to Congressional oversight–rather than the oversight-free and more expansive position he’s in now–might not be an entirely bad thing. And after the DiFi-Jose Rodriguez smackdown, I’m not sad to see Morell get passed over, because I don’t think he has sufficient independence from people like Rodriguez.

Nevertheless, this appointment no doubt will lead to (already has) a bunch of people suggesting John Brennan will bring new order to the drone program.

I’m actually far more worried about Brennan’s control over other programs, particularly profiling Americans (though NCTC owns much of that task now). Remember, in addition to having ties to torture, Brennan was in charge of profiling for Dick Cheney’s illegal wiretap program. And he’s the guy who decided it’d be great to give the NCTC unfettered access to any federal database. This man loves data mining, and we should expect to see more of it from the CIA.

But I’m amused that people believe–based on anonymous claims by Brennan supporters–that he’ll bring order to the drone program. Such belief, it seems to me, overlooks Brennan’s actions in favor of anonymous comments.

Brennan was purportedly putting more order to the program. Until Mitt lost, and then he stalled that effort and broke what rules are said to govern the program.

Brennan was purportedly opposed to signature strikes. Until he approved them for use in Yemen.

Brennan has had control over all aspects of the drone program for 8 months. But the drone program is, if anything, accelerating again.

And remember, Brennan is a liar. A proven liar on this and a number of other issues. As well as a key instigator for the self-interested leaking the Administration would criminally punish coming from others. He spends a great deal of energy telling useful but not factually accurate stories to spin the Administration’s counterterrorism programs.

So I can’t help but think the people hailing his “moral rectitude” have been seduced by an old spook. Because every story that claims Brennan has some kind of higher ethics or a plan to put order to our out-of-control CT programs is either followed–or has the proof within itself–that the moral rectitude is the PR, whereas the embrace of unchecked power seems to be backed by his actions.


Why Ask the FBI about Classification on the Targeted Killing FOIA?

By:  Friday January 4, 2013 3:33 pm

The FBI, as far as we know, never gets to press the buttons on JSOC and CIA’s drones. And as I noted last June, FBI information we know exists (some of it in unclassified form) was suspiciously absent from the materials identified in the response to ACLU’s request for information on the evidence supporting the targeting of Anwar al-Awlaki and Samir Khan.

Remember, in addition to general information about the legal authorization process, ACLU asked for:

Facts supporting a belief that al-Awlaki posed an imminent threat to the United States or United States interests;

[snip]

Facts supporting the assertion that al-Awlaki was operationally involved in al Qaeda, rather than being involved merely in propaganda activities;

[snip]

All documents and records pertaining to the factual basis for the killing of Samir Khan

DOJ probably has information pertaining to the assessment–for example–that Samir Khan could leave the US and travel to Yemen even though a long line of FBI terror investigation subjects have gotten arrested for doing the same. There’s also information submitted in the Mohamed Osman Mohamud prosecution pertaining to Khan which also probably would have received high level attention.

And we know that DOJ claims to have evidence that proves that Awlaki was operational, much of it pertaining to Umar Farouk Abdulmutallab’s attempted attack and subsequent interrogation (indeed, two of the few documents OIP says were responsive date to January and February 2010 and almost certainly pertain to the aftermath of Abdulmutallab’s attempted attack).

Yet in spite of FBI’s notable absence from the discussion of the targeted killing FOIA, Judge Colleen McMahon asked them–and not ODNI or CIA, both of which submitted declarations in this case–whether anything in her unclassified opinion was classified.

The final draft of this unclassified opinion was provided to the FBI several days ago, in order to give the Government an opportunity to object to the disclosure of any classified information that may have inadvertently found its way into this document.

The FBI?!? Why would the FBI be the entity to review this opinion, in which they have no apparent role?

Meanwhile, one of the assertions for which McMahon provides absolutely no support in her unclassified opinion is this one.

Most of what is sought in the facially overbroad request filed by the American Civil Liberties Union (“ACLU”) was properly withheld pursuant to one or more properly invoked exemptions that Congress wrote into the FOIA statute to guard against the disclosure of highly confidential and operational information–if, indeed, the Government has acknowledged that any such documents exist.

In her unclassified opinion, McMahon discusses at length why the government can withhold the (or one of the) OLC opinion on killing Awlaki we all know exists. But she says nothing about what makes a request for the evidence backing the Awlaki targeting (she says ACLU presented no evidence Khan was targeted) “facially overbroad.”

As I suggested the other day, it is perhaps judicious to assume that any big holes in McMahon’s ruling are dealt with, by necessity, in her classified Appendix. Note too that in addition to providing an overview of the ACLU request in her unclassified opinion, McMahon also includes–but doesn’t discuss at length–the ACLU’s full request as an Appendix itself.

All of which is my way of suggesting that one thing in McMahon’s classified Appendix is almost certainly a discussion of why the American people are not allowed to know what the government knows–or claims to know–about Awlaki’s ties to terrorism. And that, as part of her discussion, McMahon actually got into some of what the government knows (or claims to know) or how it claims to have learned it.

I’m not really interested in that–though I do hope the ACLU points out this big gap in her unclassified opinion in their appeal, because their request doesn’t seem overbroad to me, particularly since the government has made unclassified claims about Awlaki being an operational leader without supporting those claims.

But I want to reflect on what it suggests that the FBI–and not CIA or NSA intelligence–seems to be treated as the crown jewels of the Anwar al-Awlaki intelligence.

As I keep repeating, we know that on the day Umar Farouk Abdulmutallab tried to attack a Detroit bound plane, the day after the government first targeted Awlaki in a drone strike, the FBI did not believe Awlaki to be operational. And while there are other big claims against Awlaki–the toner cartridge plot that implicated other AQAP members more directly, for example (and yes, I know Fox and Judicial Watch are making new claims, but they’ve been debunked)–the key claim always comes back to the UndieBomb plot.

And yet the government has avoided–in the suit Awlaki’s father took against the government, in the Abdulmutallab trial, and in this FOIA–presenting this information in any antagonistic venue. Only when they had the opportunity to present the information in a venue where their interlocutors could not challenge the provenance of their claims–in the Abdulmutallab sentencing hearing–did the government make the legal claim that Awlaki was the operational leader they ultimately killed him for being.

Again, I hope the ACLU pursues a better explanation for why the government doesn’t have to present the same level of information they’d have to present in a trial, especially given that they’ve made unclassified claims about this stuff.

Because I find it damned telling that information they’ve protected so assiduously from the antagonistic challenges they would have faced in a terror trial appear to be the central secret they’re protecting here.


The Disposition of Informants and Citizens

By:  Friday January 4, 2013 1:02 pm

A lot of the commentary about Craig Whitlock’s Tuesday article on three alleged al Shabaab members rendered to the US focused on whether he accurately described this rendition–to a law enforcement proceeding and not, as happened under Bush, to a black site–or not.

But I was more interested in whether the treatment of these three–Swedish citizens Ali Yasin Ahmed and Mohamed Yusuf and Madhi Hashi, a Somali who was raised in the UK, got citizenship there when he was 14, only to have it stripped shortly before he was detained–was indicative of the so-called disposition matrix first reported back in October then reportedly put on hold after Obama beat Mitt.

Consider the timing of both series of events. Hashi was stripped of his British citizenship in June. Shortly thereafter he disappeared from his home in Mogadishu. All three men were in detention in Djibouti by August. On October 18–five days before the first reporting on the disposition matrix–a grand jury returned a sealed indictment against the three. On November 14–conveniently after the election–the US government officially took custody of the men, thereby violating the intent of last year’s NDAA by bringing foreigners onto US soil. And on December 21, while most people were distracted by holidays and fiscal cliffs, the men were arraigned in the Eastern District (curiously, not the Southern District) of New York.

All of which took place as hints of this disposition matrix–an effort to map out contingencies for alleged extremists in a range of different positions–were reported.

“We had a disposition problem,” said a former U.S. counterterrorism official involved in developing the matrix.

The database is meant to map out contingencies, creating an operational menu that spells out each agency’s role in case a suspect surfaces in an unexpected spot. “If he’s in Saudi Arabia, pick up with the Saudis,” the former official said. “If traveling overseas to al-Shabaab [in Somalia] we can pick him up by ship. If in Yemen, kill or have the Yemenis pick him up.”

In other words, the rendition of these three men–in addition to whatever else it was, and I think the case that it was a legitimate use of US law enforcement is thus far weak, though still preferable to a drone strike against the three–seems like a test drive of this disposition process.

Which is why I find it so interesting that two wired up commentators like Daniel Byman and Benjamin Wittes have rolled out what they represent to be the flow chart–they even call it the disposition matrix–the Obama Administration uses if it believes you’re a terrorist.

Because that flow chart is not just incomplete, but factually wrong on several points.

Take step 11, which asks whether a person overseas is an operational leader or not.

Propagandists, to some degree, are also protected under U.S. law. Glorifying jihad and saying that Americans fighting in Iraq and Afghanistan, or even living ordinary lives stateside, deserve death, is not in itself a crime. So even Anwar al-Awlaki, who inspired Americans and Western Muslims in general to take up jihad, was not aggressively targeted until he was linked to attacks on U.S. airlines and aviation targets in the United Kingdom — thus going from “propagandist” to “operator.” Non-operational figures abroad — however dangerous — will tend to be tolerated to the extent they cannot be captured.

The claim that Awlaki was “not aggressively targeted until he was linked to attacks on U.S. airlines” is false. JSOC targeted him the day before the Intelligence Community first started tying him to operations.

But the case of these three men also illustrates the grey areas of this matrix. Presumably, their path would go:

1. Where is the suspect located? Abroad.

3. Is he coming [back to] the US? No. [As far as we know, none were ever in the US]

5. Can a reliable government arrest him? Yes.

6. Will the ally transfer him to the US? Yes.

2. Arrest, indict, prosecute.

As a threshold matter, what happened before this matrix–at least for Hashi–is that the suspect was returning to the UK when his “disposition” process started. As far back as April 2009, MI5 was blackmailing Hashi and his friends to turn informants.

Five Muslim community workers have accused MI5 of waging a campaign of blackmail and harassment in an attempt to recruit them as informants.

The men claim they were given a choice of working for the Security Service or face detention and harassment in the UK and overseas.

[snip]

Madhi Hashi, a 19-year-old care worker from Camden, claims he was held for 16 hours in a cell in Djibouti airport on the orders of MI5. He alleges that when he was returned to the UK on 9 April this year he was met by an MI5 agent who told him his terror suspect status would remain until he agreed to work for the Security Service. He alleges that he was to be given the job of informing on his friends by encouraging them to talk about jihad.

After that he returned to Somalia and married. In June, he was stripped of his citizenship, and then disappeared even before he could have appealed the decision.

In June 2012, a letter delivered to Hashi’s family home in London informed him that the home secretary Theresa May had decided to strip him of his British citizenship, claiming he had been ‘involved in Islamist extremism’.

The letter added that he had four weeks to appeal, but he disappeared before he was able to act.

A man later contacted his family in Somalia claiming he had been held alongside Hashi in a Djibouti jail.

Mahdi’s father Mohamed Hashi told the Bureau: ‘He said [Hashi] was fingerprinted and his DNA was taken, and they found out that he was a British citizen and contacted the British consulate – but the British said sorry, we took his citizenship away from him and we can’t help him.’

And somewhere along the line, Hashi got transferred from Somalia (does that count as a reliable government?) to Djibouti, which has largely become an appendix to the US base there.

Then Hashi sat in Djibouti for up to four months, undergoing who knows what kind of interrogations and under whose authorities. That grey zone interrogation curiously doesn’t show up on Byman and Wittes’ matrix, though such extended interrogations leading to US prosecutions are becoming more and more frequent.

Finally, note the US focus of the matrix: US presence, “return to” US, US prosecution.

In this case, all for crimes connected with a group with which we’re not at war (though we have declared it a terrorist organization). (In his piece on renditions, Whitlock correctly points to Ahmed Warsame as a direct precedent, but in that case Warsame was conspiring with AQAP, against which we are at war.)

The indictments, too, are interesting. Not only do both the October indictment and the November superseding indictment obscure the timeline involved by stating only the alleged crimes occurred from 2008 (before the Brits started harassing Hashi) until 2012 (when he was detained). But the superseding indictment adds the weaker charge of conspiracy to commit material support, suggesting some concern about the strength of the material support charge itself. In press releases but not the indictments, the government claims the men were training at a suicide bomber camp, but even after having Djibouti detain Hashi for 5 months and then detaining him secretly here for a month, they apparently don’t tie any charge to that alleged suicide bomb training.

Given the timing of all this, I wonder whether the celebrated British-recruited Saudi-run UndieBomb infiltrator was once buddies with Hashi, and they rolled Hashi up in the aftermath of that plot?

In any case, the most likely thing that will come out of this “disposition” is that, having refused to become an informant, Hashi will spend the rest of his life living in US taxpayer funded prisions, without the government actually accusing him of plotting against the US.

Maybe he did, in which case the disposition matrix worked. But that’s why we used to demand transparency (and no five month period without due process) for this kind of thing

In short, this rendition might be an improvement over the drone strikes. But if it is, the government has not made the case it is.