If Only DOJ Hadn’t Burned AP’s Sources …

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The State Department announced a broad but vague warning today.

The Department of State alerts U.S. citizens to the continued potential for terrorist attacks, particularly in the Middle East and North Africa, and possibly occurring in or emanating from the Arabian Peninsula.  Current information suggests that al-Qa’ida and affiliated organizations continue to plan terrorist attacks both in the region and beyond, and that they may focus efforts to conduct attacks in the period between now and the end of August.  This Travel Alert expires on August 31, 2013.

Terrorists may elect to use a variety of means and weapons and target both official and private interests. U.S. citizens are reminded of the potential for terrorists to attack public transportation systems and other tourist infrastructure.  Terrorists have targeted and attacked subway and rail systems, as well as aviation and maritime services.  U.S. citizens should take every precaution to be aware of their surroundings and to adopt appropriate safety measures to protect themselves when traveling.

We continue to work closely with other nations on the threat from international terrorism, including from al-Qa’ida.  Information is routinely shared between the U.S. and our key partners in order to disrupt terrorist plotting, identify and take action against potential operatives, and strengthen our defenses against potential threats.

There’s a part of me that thinks this might be credible and serious.

After all, between Iraq, Pakistan, and Libya, up to 1,750 men have just escaped prison, and extremists claim responsibility for the first two prison breaks. That’s a lot of men running around who might make mischief (though you’d think it would take a bit of time to organize after the breaks).

That said, there are aspects of this that remind me of the politicized alert surrounding the April 2012 thwarting of our own plot in Yemen (which was rolled out in May 2012, well after any threat had subsided). There’s John Pistole’s ostentatious boosting of AQAP bomb-maker Ibrahim al-Asiri as “our greatest threat.”

The use of a new explosive has been previously reported, but Pistole continued with less familiar details about Underwear 2 that reflect the growing sophistication of Asiri’s sinister craftsmanship. He said the device included redundancy, by mean of two different syringes to mix liquid explosive compounds–”a double initiation system,” apparently a response to a failure of Abdulmutallab’s initiation process. In essence, Pistole said, “they made two devices.”

Finally, Pistole said, the new bomb was encased in simple household caulk in an effort to trap vapors that might alert any bomb-sniffing machines or dogs that did happen to be capable of identifying the explosive.

“So you really have a twisted genius in Yemen,” Ross observed. “That is our greatest threat,” Pistole replied. “All the intel folks here [at the forum] know that is a clear and present danger.”

Similar sensationalized reporting preceded and followed the exposure of the UndieBomb 2.0 plot last year.

There’s the increased drone activity in Yemen. Who knows! Maybe, like last year, the plot has already been rolled up and we’re just waiting to confirm one of the several recent drone strikes have taken out our target?

And there’s the apparent disparate treatment of the threat, with the US issuing a broad alert across the Middle East but with the Brits focusing thus far only on their Yemeni Embassy.

The State Department just happened to announce its support for Yemen in conjunction with President Hadi’s visit this morning, of which security aid remains the largest part, not long before this alert went out. Last year the thwarted plot was designed to coincide with the approval of signature strikes in Yemen.

Last year, the many people the US deployed to prevent a threat that had already been rolled up may have been one of the sources that revealed the threat had already been rolled up. If this is kabuki, then perhaps the same thing would happen again: some guy sent to protect flights in the Middle East might complain that it’s just show. Perhaps someone like the AP could report that the threat has been thwarted and we can go back to worrying about climate change as the most urgent threat to “the homeland.”

Except for one thing. Since last year, DOJ went positively nuclear on the AP, which exposed the kabuki last year. Without warning, DOJ obtained records of 20 AP phone lines, identifying the sources of up to 100 journalists, for at least a 2 week period. We’ve heard not one peep about DOJ prosecuting anyone in the UndieBomb 2.0 leak (especially not CIA Director John Brennan, who made the leak far worse). But DOJ did make sure sources are going to be far warier about speaking with the guys who undermined the White House kabuki last year.

So as you wonder about the seriousness of a plot that feels like a lot of the vague warnings the Bush White House used to release, remember how useful it was back when reporters were allowed to do their jobs.

DOJ Responds to Non-Intell Committee Member of Opposition Party, But Not Intell Committee Member of President’s Party

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On June 20, Rand Paul started seeking more information about how the FBI used drones. On July 9, he sent a second letter to find out about the FBI’s use of drones. After placing a hold on Jim Comey’s nomination to be FBI Director, Paul got results, with an unclassified letter admitting FBI had used drones 10 times, and a classified letter that presumably provided more detail. While Paul wasn’t satisfied with that information — he sent a follow-up asking when the FBI considers drones to impinge on reasonable expectations of privacy — he at least did get a letter. He released his hold and voted against Comey’s nomination.

Compare that to Ron Wyden, a member of the Intelligence Committee and of the President’s own party.

After meeting with Comey on July 18, Wyden sent Comey (care of DOJ’s Legislative Affairs Office) a letter on July 22 asking:

  • Whether the program that led to the hospital confrontation was the Internet metadata program and whether his concerns about it had been adequately address
  • Whether the Comey was satisfied with the way the government carried out surveillance activities during his tenure as Deputy Attorney General or whether he wished he had done more to rein them in
  • Whether the 2001 AUMF allowed the President to collect communications of Americans inside the US without a warrant
  • Whether collection of Americans’ phone record has any impact on their privacy and whether it is justified even if does not provide unique value
  • Whether he commits to giving a straight answer about how much evidence the FBI needs to track geolocation

DOJ’s Office of Legislative Affairs wrote Wyden back on July 29, basically saying, “Mr. Comey is not in a position to respond to the additional questions in your letter” in part because he “is not able to determine whether your questions implicate information that remains classified.”

Of course, several of these questions go to Comey’s fitness to be FBI Director and pertain to activities he knows better than anyone else. Others ask about his belief, something that doesn’t require classified information to share.

Wyden voted “present” for Comey’s nomination.

Mind you, Wyden didn’t wait as long as Paul before he got a far less responsive response. And he didn’t place a hold on Comey’s nomination (though given the almost unanimous support for Comey, a hold really wouldn’t have done much to delay the nomination).

Still, Wyden asked Comey questions that go far more directly to Comey’s own qualifications to be FBI Director. He asked Comey questions that he, as a member of the Intelligence Committee, should be able to get answers on.

And he got squat.

FBI’s Warrantless Drone Surveillance

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The FBI has responded to Rand Paul’s request for information on how it uses drones.

It provides several paragraphs detailing the use: They’ve used drones in kidnapping, drug interdiction, fugitive, and search and rescue cases, for a total of 8 criminal and 2 national security cases. Use of drones is governed by the Fourth Amendment, the Privacy Act, FAA rules, DIOG, and a bunch of other rules.

But here’s the core of the letter:

Every request to use UAVs for surveillance must be approved by FBI management at FBI Headquarters and in the relevant FBI Field Office. Without a warrant, the FBI will not use UAVs to acquire information in which individuals have a reasonable expectation of privacy under the Fourth Amendment. To date, there has been no need for the FBI to seek a search warrant or judicial order in any of the few cases where UAVs have been used.

Ultimately, this means the FBI has, on 10 occasions, claimed that drones — with what could be far superior sensor equipment and more persistent (and less apparent) surveillance than planes or helicopters — equate to naked eye surveillance. And based on that claim, it has chosen not to have a court review its determination that US persons don’t have a reasonable expectation to be free of this heightened surveillance.

Perhaps the FBI is correct in judging (itself, in secret) that drones, unlike infrared surveillance but like overhead plane surveillance, don’t go beyond people’s reasonable expectation of privacy.

But it is notable that they chose to make such determinations without asking either Congress in general or specific courts to review their determination.

That’s not in the least surprising. It is consistent with what they have done, for example, with GPS tracking. But it does show that even with something as contentious as drones the FBI — and the government generally — continues to pursue a surveil first ask permission later approach.

Nasser al-Awlaki: “My Grandson Was Killed by His Own Government”

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While the nation grieves over the senseless death of Trayvon Martin and the missed opportunity to hold his killer responsible for that death, there is another senseless death of an American teenager of color where an attempt is continuing, after previous failures, to hold accountable those responsible for the lawless way in which this life was arbitrarily ended.

Exactly one year ago today, the American Civil Liberties Union and the Center for Constitutional Rights filed a lawsuit (pdf) on behalf of Nasser al-Awlaki (father of Anwar al-Awlaki and grandfather of Abdulrahman al-Awlaki) and Sarah Khan (wife of Samir Khan). The defendants in the case are former Defense Secretary Leon Panetta, Commander of Special Operations Command William McRaven, Commander of Joint Special Operations Command Joseph Votel and former CIA Head David Petraeus. The complaint cites violation of the Fourth and Fifth Amendments as well as violation of the Bill of Attainder Clause in the targeted killings of Anwar al-Awlaki, Abdulrahaman al-Awlaki and Samir Khan. Oral arguments on the suit begin tomorrow.

Given what is known about the role of Barack Obama in these killings and his personal authorization of the “kill list” in his Terror Tuesday meetings, I find it perplexing that he is not also a defendant in this case.

The complaint seeks damages in an amount to be determined at the trial and any other relief the court deems just and proper.

Coincident with the filing of the complaint in the United States District Court for the District of Columbia a year ago, the video above was released. Today, an op-ed by Nasser al-Awlaki was published in the New York Times, helping to focus attention on tomorrow’s opening arguments. The video and op-ed are truly gut-wrenching.

From the op-ed:

I LEARNED that my 16-year-old grandson, Abdulrahman — a United States citizen — had been killed by an American drone strike from news reports the morning after he died.

The missile killed him, his teenage cousin and at least five other civilians on Oct. 14, 2011, while the boys were eating dinner at an open-air restaurant in southern Yemen.

The grandfather describes his anguish as he seeks answers to the question of why his grandson was killed:

Nearly two years later, I still have no answers. The United States government has refused to explain why Abdulrahman was killed. It was not until May of this year that the Obama administration, in a supposed effort to be more transparent, publicly acknowledged what the world already knew — that it was responsible for his death.

Nasser al-Awlaki describes the huge impact an education in the United States made on his life and how he put that education to use when he returned to Yemen. More importantly, he puts the actions of the United States in killing his son and grandson significantly at odds with the values of the United States when he was a student here:

A country that believes it does not even need to answer for killing its own is not the America I once knew. From 1966 to 1977, I fulfilled a childhood dream and studied in the United States as a Fulbright scholar, earning my doctorate and then working as a researcher and assistant professor at universities in New Mexico, Nebraska and Minnesota.

/snip/

After returning to Yemen, I used my American education and skills to help my country, serving as Yemen’s minister of agriculture and fisheries and establishing one of the country’s leading institutions of higher learning, Ibb University. Abdulrahman used to tell me he wanted to follow in my footsteps and go back to America to study. I can’t bear to think of those conversations now.

The op-ed closes with a direct and haunting question:

The government has killed a 16-year-old American boy. Shouldn’t it at least have to explain why?

Sadly, we can state with confidence that even before the proceedings open the government will argue that it does not have to explain why it killed Abdulrahman. Because terror. Even more sadly, it is quite likely that the court will side with this senseless and lawless argument. Because terror.

What has our country become?

Tasers with Wings

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I’ve been focusing on Edward Snowden’s NSA revelations, but I didn’t want this tidbit of news to go unnoticed. Among the other documents EFF has gotten in its FOIA on drones in the United States is a planning document for Customs and Border Patrol’s use of the  Predator drone. In it, there’s one line that suggests future upgrades (the report dates to 2010) might include non-lethal immobilization technology.

A Customs & Border Protection (CPB) report, released in response to EFF’s Freedom of Information Act lawsuit against the agency, shows CBP has considered adding weapons to its domestic Predator drones.

The report, titled “Concept of Operations for CBP’s Predator B Unmanned Aircraft System” and submitted to Congress on June 29, 2010 shows that, not only is the agency planning to sharply increase the number of Predator drones it flies and the amount of surveillance it conducts by 2016 (detailed further in a separate blog post tomorrow), but it has considered equipping its Predators with “non-lethal weapons designed to immobilize” targets of interest. (p. 63).

And remember: CBP loans out its drones to other Federal agencies. I suspect when Robert Mueller testified recently that FBI had used drones he had CBP ones in mind.

So the next time LAPD uses loaner drones in a manhunt across Southern California, that drone may well be armed with industrial sized tasers.

 

Researcher Exposes Government, Military Lies About Civilian Drone Deaths in Afghanistan

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A tweet this morning by Daphne Eviatar alerted me to a very important article by Spencer Ackerman at his new home with the Guardian. Ackerman interviewed Dr. Larry Lewis, who is a research scientist at the Center for Naval Analyses but is also described by National Defense University as a Current Field Representative to the Joint Staff J7, Joint and Coalition Operational Analysis Division. In speaking with Ackerman, Lewis referred to a study he conducted with access to classified data, where his work had a remarkable finding:

Larry Lewis, a principal research scientist at the Center for Naval Analyses, a research group with close ties to the US military, studied air strikes in Afghanistan from mid-2010 to mid-2011, using classified military data on the strikes and the civilian casualties they caused. Lewis told the Guardian he found that the missile strikes conducted by remotely piloted aircraft, commonly known as drones, were 10 times more deadly to Afghan civilians than those performed by fighter jets.

Ackerman points out in the article that Lewis mentions some of this work in a recently published article in Prism, which is published by NDU (note: To make things clearer to folks reading Marcy’s work on Snowden, I will call the journal Prism and not PRISM, even though the Guardian is once again breaking the news and the journal uses all caps in its name). Although NDU doesn’t make it easy to find the most recent issue of Prism, I finally found a pdf of the entire latest issue here, where the article by Lewis and coauthor Sarah Holewinski (who is at the Center for Civilians in Conflict) can be found on pages 57 to 65.

Lewis and Holewinski open by framing the issue of protection of civilians as a lesson that the US military has to learn repeatedly:

Civilian casualties can risk the success of a combat mission. While not new, this is a lesson us defense forces have had to repeatedly relearn. Historically, civilian protection and efforts to address harm became priorities only when external pressures demanded attention. As the Pentagon reshapes its defenses and fighting force for the next decade, continuing this ad hoc pattern in the future is neither strategically smart nor ethically acceptable.

As Ackerman notes in the Guardian article, the Prism article makes mention of the finding regarding civilian drone casualties in Afghanistan outpacing those from conventional aerial attacks:

The assumption that UAS (Unmanned Aerial Systems) strikes are surgical in nature is also belied by research on recent combat operations in Afghanistan. There, UAS operations were statistically more likely to cause civilian casualties than were operations conducted by manned air platforms.

Lewis and Holewinski describe the impact of both failing to protect civilians and lying about operations in which civilians have died. After describing relatively well-known examples of drone strikes in Pakistan that included such horrors as a double-tap targeting rescuers, the strike on a jirga addressing mining issues that killed up to 40 civilians or deaths at a restaurant, Lewis and Holewinski move back to Afghanistan:

Independent investigations are not always correct in their assessment of civilian deaths; however, the inability of the U.S. to adequately investigate the outcome of its clandestine UAS strikes calls into question official denials of civilian harm. The U.S. has stated that these strikes kill only combatants; however, operations in Afghanistan are replete with examples where all the engaged individuals were believed to be combatants, but a later investigation found many or all were civilians misidentified as combatants.

The continued claims of lack of civilian deaths despite hard evidence to the contrary takes a huge toll both on US credibility and on what takes place in the war theater:

A growing body of research, including that conducted by this article’s authors, shows that civilian casualties (CIVCAS) and the mishandling of the aftermath can compel more people to work against U.S. interests. Indeed, America’s image has suffered for years under the weight of anger and dismay that a nation, which stands by the value of civilian protection in wartime, seemed indifferent to civilian suffering.

Sadly, this is a lesson that has not been learned by such luminaries as Barack Obama, Diane Feinstein and John Brennan. As Ackerman points out:

While the drone strikes remain classified, several senior Obama administration officials and their congressional allies have described them as notable for their precision. John Brennan, now the CIA director responsible for the agency’s drones, said in 2012 they provide “targeted strikes against specific al-Qaida terrorists”. While defending the strikes as legal and “targeted”, Obama conceded in May that “US strikes have resulted in civilian casualties, a risk that exists in all wars”. Dianne Feinstein, the California Democrat who chairs the Senate intelligence committee, said in February that drones kill only “single digits” worth of civilians annually.

It does not appear that we have even gotten to a “least untruthful” official US accounting of the civilian casualty rates due to drones. In the meantime, our credibility will continue to suffer and our enemies will continue to accumulate.

DOD Inspector General Report: SOCOM Purged Their Osama bin Laden Files after Judicial Watch FOIA

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I wanted to point to one more detail from the DOD Inspector General’s report on Leon Panetta’s leaks to Zero Dark 30’s filmakers.

The very last page of the report describes how Admiral William McRaven responded after realizing the SEALs who had participated in the raid on Osama bin Laden’s compound had all hung around a Hollywood producer with their name badges exposed.

According to ADM McRaven, the DoD provided the operators and their families an inordinate level of security. ADM McRaven held a meeting with the families to discuss force protection measures and tell the families that additional protective monitoring will be provided, and to call security personnel if they sensed anything. ADM McRaven also directed that the names and photographs associated with the raid not be released. This effort included purging these records to another Government Agency. [my emphasis]

The report doesn’t reveal when SOCOM purged its records and handed the documents to, presumably though not definitely, CIA, though if McRaven directed it, it happened after he took command in August 2011. (Update: That’s probably not right, as he was in command of the operation in any case.)

But it’s a relevant question because Judicial Watch had FOIAed pictures of OBL on May 3, 2011, and sued 10 days later, so before all the leaking and presumably therefore the purging began. On June 26, 2011, just two days after Panetta’s leaky party, the government stalled on the suit, saying Judicial Watch had not exhausted its administrative remedies. By September 26, DOD claimed they had no pictures of OBL (though earlier this year there were reports 7 new photos had been found) and CIA claimed none of the 52 pictures they had could be released. Along with that filing, McRaven submitted a declaration explaining why these photos couldn’t be released, though the interesting parts remain redacted. John Bennett’s declaration for the CIA does not describe when the Agency searched its files for photographs, and therefore doesn’t indicate whether they searched before or after DOD purged its files.

Now, none of this timing would mitigate CIA’s claims about the extremely grave harm that would arise from releasing OBL death porn.

But it is, at the very least, very sketchy — and all that’s before having a really good sense of when the purging and the FOIA response occurred.

Update: I spoke to Judicial Watch’s lawyer for this FOIA, Michael Bekesha, and they have never been informed of this purge. Though it may explain some other details about the progress of the FOIA, including some funkiness with the classification of the photos.

Update: Here’s DOD’s declaration about their search from September 26, 2011.

It’s interesting for two reasons. First, they make claims about SOCOM files that is the exact opposite of what DOD said in the NYT/ACLU FOIA for Anwar al-Awlaki related OLC memos. Whereas in the drone FOIA, they claimed CENTCOM handled SOCOM’s FOIA responses, this one says,

The mission of USSOCOM is to provide Special Operations Forces to defend the United States and its interests. A priority of USSOCOM is to “Deter, Disrupt, and Defeat Terrorist Threats,” and a primary aspect of this priority is to plan and conduct special operations. When a special operation is conducted, the military service Components of USSOCOM (U.S. Army Special Operations Command, Navy Special Warfare Command, U.S. Air Force Special Operations Command, and Marine Corps Special Operations Command) provide Special Operations Forces (personnel and equipment) to the operation. Accordingly, it is DoD FOIA policy that documents created or maintained by these military service Components during or for a joint special operation come under the cognizance of USSOCOM and not the military services for purposes of the FOIA. Therefore, USSOCOM and not the military services, is responsible for the searches of records responsive to plaintiff’s FOIA request at those service components that may have participated in the subject operation.

And like CIA, they don’t date their search description at SOCOM, so don’t say whether it happened pre- or post-purge.

USSOCOM searched the Headquarters and relevant Components, and no records responsive to plaintiff’s request were located. The specific filing systems searched at the Headquarters USSOCOM offices and relevant Components were all hard copy and electronic records including all email records during the inclusive dates of May 1, 2011, through May 31, 2011.

Sharif Officially Elected as Prime Minister, Calls For End to Drone Strikes

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Nawaz Sharif (via WIkimedia Commons)

Nawaz Sharif (via WIkimedia Commons)

Although the formal casting of ballots by the National Assembly was delayed for an hour by the presence of three times as many observers as the capacity of the parliament house, Nawaz Sharif breezed to an easy victory today and was elected Prime Minister for the third time in his career. Once he is sworn in later this evening by President Asif Ali Zardari, Pakistan will have completed its first-ever transition from one government serving out its entire elected term to another elected government. Sharif wasted no time in making headlines, as he called once again for an end to US drone strikes in Pakistan in his acceptance speech.

Dawn brings us the final tally on the voting in the National Assembly:

Nawaz Sharif of the PML-N was elected the country’s 18th prime minister in a race which also featured Pakistan Peoples Party’s Makhdoom Amin Fahim and Pakistan Tehrik-i-Insaaf’s Javed Hashmi. The PML-N chief is scheduled to take oath from President Asif Ali Zardari on Wednesday evening.

Sharif won the office by bagging 244 votes with his rivals Fahim and Hashmi securing 42 and 31 votes respectively.

The Express Tribune describes the overcrowding and its resultant delay:

The session was delayed by an hour due to overcrowding in the parliament house as more than 2000 guests turned up to see the historic transition.

Guests, most of whom had legitimate passes to enter the parliament house, were shifted to the media gallery which frustrated reporters present at the venue. The house is meant to seat nearly 700 observers, thus the surplus of 1300 individuals added last minute chaos.

Speaker Ayaz Sadiq personally went to the media gallery to speak to disgruntled reporters and guests and urged for cooperation.

The New York Times brings us an account of Sharif’s speech:

Pakistan’s new prime minister, Nawaz Sharif, called for an end to American drone strikes in Pakistan’s tribal belt on Wednesday, shortly after he won a parliamentary vote to lead the country for an unparalleled third time.

“The chapter of daily drone attacks should stop,” Mr. Sharif told the packed lower house of Parliament, where he won a comfortable majority of votes. “We respect sovereignty of other countries but others should also respect our sovereignty.”

As the new government continues to form, it will be very interesting to see if Sharif carries through on his pledge to open negotiations with the Taliban, especially with the Taliban saying that they have withdrawn their willingness to negotiate peace after a drone strike killed their number two in command (who may well have been leading the efforts on peace negotiation).

Pakistan’s successful transfer of power from one government to another is to be commended, Perhaps the stage is now set for addressing a number of the issues the country faces beyond drones, such as the huge number of internally displaced people, stopping disappearances in Balochistan and generating enough electricity to end the load-shedding that only provides electricity to many customers for just a brief period each day.

Michael Hayden, Troll Extraordinaire

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“Intelligence agencies often act on the edges of executive prerogative and move forward based on a narrow base of lawfulness and limited congressional notification,” says Michael Hayden, the guy who oversaw Bush’s illegal wiretap for 2.5 years before the full Gang of Eight first got adequately briefed, and who never briefed Congress on CIA’s assassination program.

In the same piece, Hayden hails media editors who ceded to his requests to hold or adjust a story.

So, how do we limit the damage? Well, journalists will have to expand the kind of sensitivities to the national welfare that some already show. In those calls I made to slow, scotch or amend a pending story, most on the other end of the line were open to reasonable arguments. In one case a writer willingly changed a reference that had read “based on intercepts” to “based on intelligence reports,” somewhat amazed that that change made much of a difference. (It did.)

But then insists the UndieBomb 2.0 story — for which AP editors had made precisely those kinds of concessions — was right to be investigated because John Brennan’s push back to it exposed a mole.

The two prominent cases being debated were indeed serious leaks, because they touched upon sources, not just information.

In the case of the Associated Press report on a Yemen-based bomb plot, the source had apparently penetrated an al Qaeda network and there were hopes that he could continue to be exploited.

[snip]

And, since the Yemen source appears to have actually been recruited by a liaison partner, the impact of a leak goes far beyond our own service. In that same talk with bureau chiefs, I pointed out that several years before 9/11, one chief of station reported that a press leak of liaison intelligence had “put us out of the (Osama) bin Laden reporting business”.

In both stories, investigations were in order. Journalists, of all people, should understand the need to protect sources and relationships.

As the LAT story Hayden links to says clearly, “The AP did not mention the informant in its report.” And, as I laid out some weeks back, to believe our mole was going to return, the former head of the CIA would have to believe that AQAP shows great tolerance for recruits who fuck up and then return right after high ranking operatives get drone killed.

Because to maintain that claim, you’d have to explain how an AQAP operative who had been entrusted with the latest version of Ibrahim al-Asiri’s UndieBomb sometime in early April, had left (at least as far as Sanaa), had not apparently succeeded in his mission (which was, after all, meant to be a suicide bombing), could return to AQAP without the UndieBomb and infiltrate even further than he had the first time.

“Oh, hi, AQAP gatekeeper” — their story must imagine the mole saying as he returned to AQAP — “I’ve both failed in my mission and somehow lost the bomb you gave me, but based on that would you be willing to let me spend some quality time with even higher-ranking AQAP operatives?”

In short, Hayden appears to have decided it’d be a good idea to ignore the facts, good sense, and his own history so as to suggest that the Obama Administration is worse than the reasonable old Bush Administration.

But the investigations have been very aggressive and the acquisition of journalists’ communications records has been broad, invasive, secret and—one suspects—unnecessary.

A quick survey of former Bush administration colleagues confirmed my belief that a proposal to sweep up a trove of AP phone records or James Rosen’s e-mails would have had a half-life of about 30 seconds in that administration.

Just ignore the fact that the government was asking people questions about James Risen‘s phone contacts — indicating they had probably doing just what the Obama Administration did to the AP reporters, only without telling him — before Obama took over.

But here’s my favorite part:

The government may also want to adjust its approach to enforcement. The current tsunami of leak prosecutions is based largely on the Espionage Act, a blunt World War I statute designed to punish aiding the enemy. It’s sometimes a tough fit. The leak case against former National Security Agency employee Thomas Drake collapsed of its own overreach in 2011.

Perhaps in many of these cases the best approach is not through the courts or the Department of Justice.

Remember, Drake was investigated for telling a journalist about Hayden’s own boondoggle that cost many times what NSA’s existing better solution cost. There is virtually no way the investigation against him didn’t rely, in part, on Hayden’s own testimony.

And now, 6 years after the investigation into Drake started in earnest, Hayden suggests Drake shouldn’t have been criminally investigated at all.

Hayden can afford that very belated generosity, of course. He’s been profiting off the same kind of boondoggles Drake tried to expose for years now.

I mean, sure, the main jist of what Hayden says is true: the Administration is pursuing leaks far too aggressively. But coming from a guy who has long benefitted from the Executive Branch asymmetric abuse of secrecy, he’s not exactly the right person to be making the point.

Why Would the UndieBomber Make a Martyrdom Video in Arabic?

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In his drone letter to Congress 11 days ago, Eric Holder quoted a recording Anwar al-Awlaki made — it was prominently reported across the US media in March 2010, not long after he was added to the drone kill list — calling on Americans to take up jihad.

In this role, al-Aulaqi repeatedly made clear his intent to attack U.S. persons and his hope that these attacks would take American lives. For example, in a message to Muslims living in the United States, he noted that he had come “to the conclusion that jihad against America is binding upon myself just as it is binding upon every other able Muslim.” But it was not al-Aulaqi’s words that led the United States to act against him: they only served to demonstrate his intentions and state of mind, that he “pray[ed] that Allah [would] destro[y] America and all its allies.” Rather, it was al-Aulaqi’s actions — and, in particular, his direct personal involvement in the continued planning and execution of terrorist attacks against the U.S. homeland — that made him a lawful target and led the United States to take action.

Though Holder doesn’t quote these bits, the same recording mentions Umar Farouk Abdulmutallab several times, boasting about how such attacks proved the futility of American security systems.

9/11, the war in Afghanistan and Iraq, and then operations, such as that of our brother Omar al-Farouq which could have not cost more than a few thousand dollars, end up draining the US Treasury billions of dollars, in order to give Americans a false sense of security.

[snip]

Our brother Omar Farouq has succeeded in breaking through the security systems that have cost the US government alone over $40 billion since 9/11.

[snip]

And after the operation of our brother Omar Farouq, the initial comments coming from the administration were looking the same: another attempt at covering up the truth. But Al-Qaida cut off Obama from deceiving the world again; by issuing their statement claiming responsibility for the operation.

[snip]

The operation of our brother Omar Farouq was in retaliation to American cruise missiles and cluster bombs that killed women and children in Yemen.

When the recording was originally released, American news outlets noted they had not confirmed the authenticity of the recording. Whether it is or not, the Administration has formally presented this release — as anonymous reporting had in the past — as proof that Awlaki was trying to reach out to American Muslims in early 2010, and therefore proof he could be killed.

If the government maintains that Awlaki would propagandize Abdulmutallab’s attack in English, then why does it claim that Awlaki helped Abdulmutallab make his martyrdom video, which is in Arabic?

Here’s how they describe that claim in the narrative they submitted with Abdulmutallab’s sentencing.

Awlaki told defendant that he would create a martyrdom video that would be used after the defendant’s attack. Awlaki arranged for a professional film crew to film the video. Awlaki assisted defendant in writing his martyrdom statement, and it was filmed over a period of two to three days.

Why would al Qaeda’s best English language propagandist set out to make a video with a man schooled in English about an attack targeting America, but make it in Arabic?

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