Another Reason David Barron Should Not Get a Lifetime Appointment without Further Disclosure

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The other day I noted that President Obama had nominated David Barron to a lifetime appointment on the First Circuit even while his government was stonewalling the release  under FOIA of Barron’s OLC memo authorizing the due process-free execution of an American citizen.

While I presume Patrick Leahy will rush Barron’s confirmation through the Senate Judiciary Committee anyway, he shouldn’t, not until Americans have a better sense of Barron’s fairly outrageous claims (including, that courts couldn’t review such executions) in that memo.

Here’s another thing Leahy should insist we see before Barron gets to be a Circuit Judge.

If the N.S.A. does not immediately use the phone and e-mail logging data of an American, it can be stored for later use, at least under certain circumstances, according to several documents.

One 2011 memo, for example, said that after a court ruling narrowed the scope of the agency’s collection, the data in question was “being buffered for possible ingest” later. A year earlier, an internal briefing paper from the N.S.A. Office of Legal Counsel showed that the agency was allowed to collect and retain raw traffic, which includes both metadata and content, about “U.S. persons” for up to five years online and for an additional 10 years offline for “historical searches.”

Now, Barron left during the summer of 2010, so it’s not at all clear he wrote the OLC briefing paper (which presumably means “memo that is called something else to make it harder to FOIA”) authorizing retention of US person data, including content (presumably collected off the switches, but who knows?), for up to 15 years.

And it may well be that this is not as outrageous as an argument as those deployed to authorize the Anwar al-Awlaki killing. Perhaps this mem — um, briefing paper — doesn’t address the legality of the underlying collection at all and only addresses reasonable (!) retention policies under the Privacy Act or some other statute. Probably this memo invests the same blind faith in minimization — the argument that collecting and holding US person data is no big deal so long as there are procedures purportedly limiting the distribution of it, even if those procedures allow the Intelligence Community to operate with great discretion in secret –as the rest of NSA’s programs do.

So I’m not asserting that I know this mem– um, briefing paper — is problematic. I’m suggesting it may be.

I’m suggesting that we ought to know whether David Barron has green-lighted pretty broad abuses of US person privacy before he takes up an appellate position for the rest of his life.

Question: What Do David Barron and Jay Bybee Have in Common?

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Answer: They were both nominated for a lifetime appellate court seat even as the Executive continued hiding their controversial OLC opinions.

Several hours ago, Barack Obama nominated David Barron, author of the notorious OLC memos authorizing the assassination of an American citizen with the kind of “due process” the Executive Branch gives, by itself, in secret, to serve on the First Circuit.

Yet even while Obama moved to make Barron a lifetime appointed judge, the FOIA suits to liberate the troubling opinion Barron authored continues at a snail’s pace. CIA filed an intransigent opinion back in August in the more general suit (that would, however, probably return Barron’s opinions). In a response a few weeks ago, the ACLU suggested that such frivolous claims could only serve to forestall the time when it will have to release the assassination-related documents.

The CIA’s blanket “no number no list” response is utterly deficient—indeed, it is so plainly inadequate that it verges on the frivolous. To justify a “no number no list” response, the agency must establish that not even one responsive document can be described, in any way,without revealing information that falls within FOIA’s exemptions. The CIA cannot carry this burden, and its brief barely makes the attempt. The agency’s “no number no list” response is so obviously deficient that one can only assume that the CIA’s goal is not to prevail on this motion but simply to delay as long as possible the day on which the agency will finally be required to explain what documents it is withholding and why.

While, when Bybee was confirmed to the Ninth Circuit, we had no idea about the Yoo-authored torture memos he rubber-stamped, we do know what one (of two) of Barron’s OLC opinions look like from the White Paper leaked to hasten John Brennan’s confirmation in February.

And at least from what we see, the authors of such an opinion have no business on a court. For starters, that’s because it suggested the Courts have no role in adjudicating the assassination of an American citizen.

Similarly, paragraph 23 (section IIC) refuses any review from Article III courts by invoking military (AUMF) operations to apply to some very spooky language.

Were a court to intervene here, it might be required  inappropriately to issue an ex ante command to the President and officials responsible for operations with respect to their specific tactical judgement to mount a potential lethal operation against a senior operational leader of al Qa’ida or its associated forces. And judicial enforcement of such orders would require the Court to supervise inherently predictive judgments by the President and his national security advisors as to when and how to use force against a member of an enemy force against which Congress has authorized the use of force.

I get that Courts shouldn’t be making battlefield decisions. But in spite of the fact this passage invokes the AUMF twice, the invocation of “officials responsible for operations” falls far short of limiting the assertions to just the military.

In other words, it’s another instance where the white paper asserts a claim that is uncontroversial for the military to apply to the CIA as well.

Perhaps more troubling, it suggests if the President orders the CIA to assassinate an American citizen, it is legal.

[T]he white paper effectively argues (though it doesn’t say so) that the President may, under Article II power alone, authorize the CIA to kill a U.S. citizen.

Similarly, under the Constitution and the inherent right to national self-defense recognized in international law, the President may authorize the use of force against a U.S. citizen who is a member [note, they’ve dropped the senior operational leader modifier here!] of al-Qa’ida or its associated forces who poses an imminent threat of violent attack against the United States.

And just to be sure, the following paragraph again adopts the dual structure, and ends by says killing an American under such circumstances isn’t assassination because the President authorized it.

In fact, several of the claims Martha Lutz, the CIA person designated to lay out why CIA cannot reveal more details, point to covert actions that would be authorized by Presidential authorization.

Similarly, references to “legal memoranda” from either the CIA’s Office of General Counsel or the Department of Justice would reveal the extent to which the CIA’s involvement required formal legal analysis, which would raise the same concerns discussed above.

[snip]

Theoretically, such involvement could be based on not only the CIA’s foreign intelligence gathering functions, but also its ability to conduct covert action and other activities as directed by the President.

[snip]

Hypothetically, if it was officially confirmed that the CIA possesses this extraordinary authority, it would reveal that the CIA had been granted authorities against terrorists that go beyond traditional intelligence-gathering activities.

Which is all consistent with what then CIA and currently DOD General Counsel Stephen Preston said last year.

That is, there’s reason to wonder whether Barron gave legal rubber stamp to the kind of unilateral authority that has no place in a democracy.

And yet, if the Obama Administration has its way, that won’t become public before Barron’s nomination gets considered.

Say Hello To Our New Friends At Just Security

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Screen shot 2013-09-23 at 11.46.58 AMWe do a lot of things here at Emptywheel including occasionally, goofing off. But our primary focus has always been the intersection of security issues, law and politics. I think I can speak for Marcy and Jim, and I certainly do for myself, we would love it if that intersection were not so critical in today’s world. But, alas, it is absolutely critical and, for all the voices out there in the community, there are precious few that deep dive into the critical minutiae.

Today we welcome a new and important player in the field, the Just Security Blog. It has a truly all star and broad lineup of contributors (most all of whom are listed as “editors” of one fashion or another), including good friends such as Steve Vladeck, Daphne Eviatar, Hina Shamsi, Julian Sanchez, Sarah Knuckey and many other quality voices. It is an ambitious project, but one that, if the content already posted on their first day is any indication, will be quite well done. The home of Just Security is the New York University School of Law, so they will have ample resources and foundation from which to operate for the long run.

Ironically, it was little more than three years ago (September 1, 2010 actually) that the Lawfare Blog went live to much anticipation (well, at least from me). Whether you always agree with Ben Wittes, Bobby Chesney, Jack Goldsmith and their contributors or not, and I don’t always, they have done this field of interest a true service with their work product, and are a fantastic and constantly evolving resource. There is little question but that Just Security intends to occupy much of the same space, albeit it in a complimentary as opposed to confrontational manner. In fact, it was Ben Wittes who hosted the podcast with Steve Vladeck and Ryan Goodman that serves as the multi-media christening of Just Security.

Orin Kerr (who is also a must read at Volokh conspiracy), somewhat tongue in cheek, tweeted that the cage match war was on between Lawfare and Just Security. That was pretty funny actually, but Orin made a more serious point in his welcome post today, and a point that I think will greatly interest the readers of Emptywheel:

Whereas Lawfare tend to have a center or center-right ideological orientation, for the most part, Just Security‘s editorial board suggests that it will have a progressive/liberal/civil libertarian voice.

From my understanding, and my knowledge of the people involved, I believe that to be very much the case. And that is a very good thing for us here, and the greater discussion on so much of our work.

So, say hello to our new friends at Just Security, bookmark them and give them a read. Follow them on Twitter. You will be better informed for having done so.

Happy “Dirty Your Hands” by Partnering with Bashar al-Assad Day

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As I noted last week, 12 years ago today, President Bush signed the Memorandum of Notification that governed — and as of last year, at least, still governs — our war on terror.

Part of that MON, according to Bob Woodward’s Bush at War, includes partnering with “rogue regimes” like Syria on intelligence collection.

[Tenet] called for initiating intelligence contact with some rogue states such as Libya and Syria that he said might be helpful in trying to destroy al Qaeda. For the CIA to obtain helpful information against the terrorists, they might have to get their hands dirty.

After signing that MON, Bush’s own regime sent people like Maher Arar off to be tortured by Bashar al-Assad’s government.

The same guy we almost went to war against last week because he’s so barbaric, we partnered with, in a policy set by the President, outsourcing our torture.

As of May 25, 2012, the government was still relying on this MON (probably, at a minimum, to cover the drone and other method assassinations that aren’t covered by any AUMF).

I already noted all this; I wasn’t going to otherwise call out the anniversary of the day the “Gloves Came Off.”

But then I saw this clip of Philip Mudd on Colbert. About halfway through, Mudd says we have to fight Syria because Assad is,

a tyrant who has a reckless abandon when he murders innocents. At what point do you draw a line and say we are not just US citizens, we’re global citizens?

Mudd then goes on to answer a question about whether he tortured prisoners by saying he was Deputy Director of the Counterterrorism Center, which held and tortured prisoners.

He doesn’t regret that, he says.

He then goes on to admit he signed papers to render prisoners.

Mudd: If you’re asking if I’m responsible for some of that, the answer’s yes.

Colbert: Alright, you think that was the right thing to do.

Mudd: Yes.

Colbert: And we renditioned some of those people to Syria.

Mudd: Uh, I think the answer’s yes, I don’t [shakes head]

Colbert: OK

Mudd: We rendered a lot of people.

At what point do you draw a line, says this man, who can’t even remember that Syria was indeed one of the countries we outsourced our torture to, even the torture of an innocent man. We must be global citizens, not just American citizens, he says, and doing anything else is a sign of cowardice.

And yet, this intelligence expert can’t even figure out why Assad thinks he can get away with murdering his own people.

American Dirty Hands and Chain of Command

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[Tenet] called for initiating intelligence contact with some rogue states such as Libya and Syria that he said might be helpful in trying to destroy al Qaeda. For the CIA to obtain helpful information against the terrorists, they might have to get their hands dirty. — Bob Woodward, Bush at War

On September 15, 2001, George Tenet presented Cofer Black’s plan to respond to 9/11 to George Bush. It included rendering suspects to allied torturers including Egypt, partnering with rogue regimes including Bashar al-Assad’s, and ultimately capturing and torturing suspects ourselves.

On September 17, 2001, George Bush implemented that plan by signing a Memorandum of Notification reflecting vague outlines of it.

George Bush’s signature on that document led directly the torture of Ibn Sheikh al-Libi in Omar Suleiman’s hands and Binyam Mohammed’s torture in Pakistani custody, both before DOJ’s Office of Legal Counsel gave its sanction to torture. In addition, it led to Maher Arar’s torture in Assad’s hands outside the terms permissible in our rendition program.

Yet as these details of George Bush’s personal implication in torture became clear, President Obama hid it, both with repeated state secrets invocations and by hiding official confirmation of the existence of that document with Bush’s signature on it. The Administration succeeded in hiding that official confirmation by arguing — just last year! — that it was still relying on that document that also endorsed partnering with Assad. (There’s reason to believe that that document which authorized partnering with Assad also served to authorize some of our drone assassinations, including at least the first attempt against Anwar al-Awlaki.)

Meanwhile, the most independent assessment of the August 21 chemical weapons strike — from Human Rights Watch — still has the same gap as every other case does: while it concludes the CW were launched by Assad’s regime, it provides no evidence that it was launched on his orders.

The evidence examined by Human Rights Watch strongly suggests that the August 21 chemical weapon attacks on Eastern and Western Ghouta were carried out by government forces. Our basis for this finding is:

  • The large-scale nature of the attacks, involving at least a dozen surface-to-surface rockets affecting two different neighborhoods in Damascus countryside situated 16 kilometers apart, and surrounded by major Syrian government military positions.
  • One of the types of rockets used in the attack, the 330mm rocket system – likely Syrian produced, which appear to be have been used in a number of alleged chemical weapon attacks, has been filmed in at least two instances in the hands of government forces. The second type of rocket, the Soviet-produced 140mm rocket, which can carry Sarin, is listed as a weapon known to be in Syrian government weapon stocks. Both rockets have never been reported to be in the possession of the opposition. Nor is there any footage or other evidence that the armed opposition has the vehicle-mounted launchers needed to fire these rockets.
  • The August 21 attacks were a sophisticated military attack, requiring large amounts of nerve agent (each 330mm warhead is estimated to contain between 50 and 60 liters of agent), specialized procedures to load the warheads with the nerve agent, and specialized launchers to launch the rockets

Obviously Assad has not yet publicly named — much less condemned — anyone within his regime for doing this (but then, only about 14 Americans have ever paid a price the systematic torture authorized by that Bush signature). If this deal with the Russians actually happens, naming and prosecuting the persons responsible for the August 21 attack should be part of the agreement. 

But there is a fundamental problem with America launching a war against Assad for the August CW attack based on chain of command arguments (or “common sense,” as its most recent incarnation has it). That’s because, with all the legal problems surrounding any intervention on our part (especially without UN sanction, which may change under the Russian deal), there are such clear and ongoing instances where, even with clear evidence of human rights violations done under nothing but Presidential authorization, the US doesn’t hold its own responsible.

There was a time when US violations of human rights norms weren’t so clearly documented (though the definitely existed). But now that they are, to claim we have the moral authority to hold Bashar al-Assad responsible based on a chain of command argument when we won’t even hold our own responsible for partnering with him in human rights crimes is particularly problematic.

As human rights hypocrites ourselves, that makes us not even global policemen, but rather simple enforcers when it serves our geopolitical interests.

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Has Federal Use of Drones Violated EO 12333?

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The Privacy and Civil Liberties Oversight Board just sent a letter to Eric Holder and James Clapper requesting that they have all the Intelligence Committee agencies update what are minimization procedures (though the letter doesn’t call them that), “to take into account new developments including technological developments.”

As you know, Executive Order 12333 establishes the overall framework for the conduct of intelligence activities by U.S. intelligence agencies. Under section 2.3 of the Executive Order, intelligence agencies can only collect, retain, and disseminate information about U.S. persons if the information fits within one of the enumerated categories under the Order and if it is permitted under that agency’s implementing guidelines approved by the Attorney General after consultation with the Director of National Intelligence.

The Privacy and Civil Liberties Oversight Board has learned that key procedures that form the guidelines to protect “information concerning United States person” have not comprehensively been updated, in some cases in almost three decades, despite dramatic changes in information use and technology.

The whole letter reads like the public record of a far more extensive and explicit classified discussion. Which makes me wonder what PCLOB found, in particular.

There are many technological issues that might be at issue — especially location data, but also generally Internet uses. Then there’s the advance in database technology, making the sharing of information much more invasive because of the way it can be used. But I wonder if this letter isn’t a demand that members of the intelligence community correct their use of drones.

The letter seems to point to something in EO 12333 Section 2.3 as its concern. Among the other potential enumerated categories of interest is this one:

Agencies within the Intelligence Community are authorized to collect, retain or disseminate information concerning United States persons only in accordance with procedures established by the head of the agency concerned and approved by the Attorney General, consistent with the authorities provided by Part 1 of this Order. Those procedures shall permit collection, retention and dissemination of the following types of information:

[snip]

(h) Information acquired by overhead reconnaissance not directed at specific United States persons; [my emphasis]

We recently learned that the FBI has used drones in the following situations:

UAVs have been used for surveillance to support missions related to kidnappings, search and rescue operations, drug interdictions, and fugitive investigations. Since late 2006, the FBI has conducted surveillance using UAVs in eight criminal cases and two national security cases.  For example, earlier this year in Alabama, the FBI used UAV surveillance to support the successful rescue of the 5-year-old child who was being held hostage in an underground bunker by Jimmy Lee Dykes.

[snip]

The FBI does not use UAVs to conduct “bulk” surveillance or to conduct general surveillance not related to an investigation or an assessment.

It goes on to cite the Domestic Investigations and Operations Guide as its internal authority for the use of drones.

And while FBI’s use of drones to catch a kidnapper may not fall under the FBI’s intelligence mandate (and therefore may not violate EO 12333, which is about intelligence collection), it seems the two national security uses would.

If the subject of those national security investigations was a US person, it would seem to be a violation of EO 12333.

Note, too, that drones are listed among PCLOB’s focus items (see page 13).

That’s just a guess. I would also imagine that minimization procedures need updated given the more prevalent use of databases (NCTC’s access of government databases is another of PCLOB’s focuses). I would imagine that some intelligence community members (including both the NCTC and DHS) are in violation of the mandate that the FBI collect foreign intelligence within the US. And PCLOB also cites GPC use as another of its foci, which is one of the technologies that has developed in the last 30 years.

But given the timing of it all, I wonder if this is a push to get the FBI to stop using drones for intelligence collection.

New High School Course in Iran: Drone Hacking

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AP informs us that a reformist newspaper in Iran has a story on a new course to be taught in high schools in Iran beginning in September:

Iran’s powerful Revolutionary Guards paramilitary units plan to teach drone-hunting to school students, an Iranian newspaper reported Monday.

The report by pro-reform Etemad daily quoted Gen. Ali Fazli, acting commander of the Guard’s Basij militia, as saying the new program will be taught as part of a “Defensive Readiness” lesson in high schools from late September.

And just how would these drones be “hunted”? By hacking them, of course:

He did not elaborate but the plan suggests students would be taught how to track and bring down drone aircraft by hacking their computer systems.

But students could never hack a drone, could they?

[youtuber youtube=’http://www.youtube.com/watch?v=C8OqwpEllkE’]

 

But, but, the video tells us that military drones are much more secure against hacking than civilian drones, aren’t they? Oh, wait. Wow, that was even the latest drone model the Iranians hacked?

I’m calling dibs on the Persian translation of “See something, hack something”.

Did NSA and JSOC Team Up to Game Obama and Monaco on Yemen Terror Alert?

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NBC published a fascinating article yesterday that provided new and interesting details on the events surrounding the escalation of drone strikes in Yemen that took place in response to the “intercepted conference call” that wasn’t a conference call. Matthew Cole, Richard Esposito and Jim Miklaszewski report on the personnel and policy changes that were taking place in the Obama administration as these events unfolded and how these changes had led to a decrease in drone strikes:

Obama announced that he had chosen Lisa Monaco to replace Brennan as his top counterterror official on January 25, and she officially assumed the role of Homeland Security Advisor on March 8. The U.S. launched four strikes on Yemen between January 19 and January 23, just before Obama’s announcement about Monaco, but didn’t launch another until April 17.

“With Brennan going over to CIA and Monaco replacing him, it took time,” said a senior counterterrorism official. “This was a while coming. JSOC (the Pentagon’s Joint Special Operations Command) was pushing for more strikes and more operations but the White House slowed everything down.”

Those three strikes in mid-April were followed by another lull in strikes until mid-May, when there were two strikes just before Obama’s drone policy speech:

In tandem with the drone speech, the President issued new internal guidance to officials that tightened controls on what targets could be hit and who could make the decision to launch a drone.

What followed, sources said, was more frustration from Defense Department officials, and a third, seven-week-long interruption in drone strikes that led to a backlog of identified militant targets in Yemen.

But the “targeting” done by JSOC in Yemen isn’t of the same quality as the information prepared for targeting by the CIA for strikes in Pakistan, according to the NBC report:

In May, around the time of Obama’s speech, senior military officials prepared “targeting packages” for Monaco, with a roster of suspected militants in Yemen that they wanted to eliminate. The “targeting packages” contain background information on the identified targets. The CIA’s packages for Pakistan are often very detailed, while the Defense Department’s research on Yemeni targets was sometimes less detailed.

In fact, the JSOC apparently even admitted that some of these recent targeting packages pertained to lower level targets, but in an apparent use of pre-cogs, they claimed these were going to be important al Qaeda figures in the future and the administration had to deal with the question of “pain now, or pain later” in their recommendation to take out these lower level operatives.

Keep in mind that these meetings to discuss drone targets, also know as “Terror Tuesday” meetings, are populated by high level security personnel from many agencies. Both JSOC, as the target developer for drone strikes in Yemen, and NSA, as the purveyor of information gleaned from surveillance, would of course be present.

As @pmcall noted to me on Twitter, the “intercept” then magically appeared and opened the floodgates for strikes:

Here’s how the NBC article described that: Read more →

Drone Strikes in Yemen Are Very Effective — For AQAP Recruitment

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Marcy has been all over the current episode of security theater surrounding the latest al Qaeda “conference call” that led to the closure of many US embassies, but I want to focus on news reports that have come out over the last month or so that remind us, once again, that high rates of civilian deaths in drone strikes in Yemen, as they do elsewhere, contribute dramatically to recruitment for al Qaeda. Analyst Gregory Johnsen is one of the most authoritative voices on militants in the region (a must-follow on Twitter as @gregorydjohnsen). He appeared on the PBS News Hour last week to discuss the latest flurry of US drone strikes in Yemen. A startling statistic he cited is that on the date of Underwear Bomb 1.0, Christmas Day of 2009, al Qaeda had approximately 200-300 members in Yemen. Today, after dramatic increases in US drone strikes, al Qaeda has “more than a few thousand”. Johnsen informs us that the estimate of al Qaeda force size in Yemen today comes from the US State Department. Here is his interview in full:

[youtuber youtube=’http://www.youtube.com/watch?v=Gh5njqgeHrY’]

Wow, US “targeted killings” of high-level AQAP figures in Yemen has been so effective that the group is now only ten times larger than it was less than four years ago.

In an extended video report posted at BBC last week, Yalda Hakim talked to family members of civilians killed in US drone strikes along with a widely known “pro-US democracy advocate” and Yemen’s Foreign Minister.

A particularly sad story comes from Mohammed Ahmad Bagash, whose eight year old daughter died in a strike:

During the fighting, al Qaeda fighters stored ammunition in the local hospital against the wishes of the doctors.

After the hospital was hit by a missile strike, Mohammed and his two children ran to a school and hid in the basement.

But then the school was hit in a suspected drone strike.

“It was as if everyone was burning. It was all dark,” said Mr Bagash.

“When the smoke cleared, I saw my son’s leg was bleeding, and my daughter was hit on the back of the head,” he said.

He carried both children out. His son survived but his eight-year-old daughter bled to death on the way to the hospital.

/snip/

Mr Bagash has a question for the person who ordered the drone strike: “What did my daughter ever do to them? She was only eight years old.”

And then a bleak observation.

“They think we’re rats. We’re not. We’re human beings.”

Even fans of the US in Yemen see that drone strikes work against the US: Read more →

Count Von Count Drones Yemen

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[youtube]L5bqMDGWXO8[/youtube]

The flurry of drone strikes in Yemen has gotten so difficult to keep up with that I imagine a twisted version of Count Von Count leading counting lessons after each one.

As of last count, he’d be up to the number 8. “You can hold it this way you can hold it that way.”

Three U.S. drone strikes killed a total of 12 suspected al-Qaida militants Thursday, a Yemeni military official said, raising to eight the number of attacks in less than two weeks as the Arab nation is on high alert against terrorism.

The uptick in drone strikes signals that the Obama administration is stepping up its efforts to target Yemen’s al-Qaida offshoot — al-Qaida in the Arabian Peninsula — amid fears of attacks after the interception of a message between its leader and the global leader of the terror network.

Since July 27, drone attacks have killed 34 suspected militants, according to an Associated Press count provided by Yemeni security officials.

Happy Eid, Yemen, Count Von Count would sing. Ha ha ha.

I can’t help but wonder whether the US wouldn’t look like it was in such a frenzy if it hadn’t leaked news of the conference call it compromised last week. It’s possible the compromise included location data. But at the very least, intelligence captured from the courier would seem to provide information that will lose value as AQAP figures out the US has it.

And given trickling reports that civilians are among the dead, on Eid? This drone frenzy could backfire if the attacks aren’t very carefully targeted.

Update: Tweaked courier language to reflect possibility he was never captured, just his message was.