600 Days after Assassinating Anwar al-Awlaki, Administration Admits Doing So

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In this letter boasting of “unprecedented transparency,” Eric Holder officially tells Congress that since 2009 the government has killed 4 Americans: Anwar al-Awlaki was specifically targeted and killed, and Samir Khan, Abdulrahman al-Awlaki, and Jude Mohammed were “not specifically targeted.”

One paragraph of the letter details how Umar Farouk Abdulmutallab told US officials of Awlaki’s involvement in the UndieBomb plot.

Too bad that in two of three confessions, Abdulmutallab said someone besides Awlaki did the things Holder lists here. Too bad that Abdulmutallab’s lawyer now says the solitary confinement associated with the interrogations in which he did implicate Awlaki made him incompetent.

Did Solitary Confinement Make UndieBomber 1.0 Incompetent to Represent Himself?

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But, in fact, the FBI do a great job as far as eliciting information after they’re Mirandizing them, and so they can get information as part of that type of negotiation with them, let them know they can in fact languish forever, or we can in fact have a dialogue about it intelligently.

— John Brennan, describing the way the FBI gets suspects to talk after Mirandizing them

Here’s something you may not know: Umar Farouk Abdulmutallab, the first UndieBomber, is appealing his conviction and sentence.

He’s doing so on several grounds, including that his confession made during public safety questioning while on fentanyl should not have been admissible at trial. But the most interesting issue — and the one that takes up the bulk of his appeal — argues Abdulmutallab was not competent to represent himself. (His appeal, as well as the government response and his reply only recently got unsealed by the Circuit Court.)

As the appeal notes, back in August 2011, after he had been in custody almost 20 months, his standby counsel Anthony Chambers submitted a motion requesting a competency hearing, one the judge rejected.

His standby counsel filed a motion requesting a competency hearing, noting that Abdulmutallab suffered “mental lapses,” engaged in “bizarre behaviors,” and sometimes seemed interested in presenting a defense while at other times he seemed indifferent to his defense. Abdulmutallab also demonstrated indifference toward his defense in front of the district court. The district court denied the motion for a competency examination based largely on Abdulmutallab’s own equivocal and rambling profession of competency. The failure to hold the competency examination cannot be cured after the fact and requires a new trial so that a “concurrent determination” of competency can be made. Abdulmutallab’s guilty plea did not waive the competency issue because a person whose competence is in doubt cannot knowingly, voluntarily, and intelligently waive a right or plead guilty.

The appeal cites consistent difficulties Abdulmutallab and attorneys tied to his case had with the Milan Correctional Facility, where he was being held in solitary confinement with communication restrictions. At almost every status hearing (save the one where he fired his court appointed lawyers), Abdulmutallab complained about the communication restrictions placed on him at Milan. (“Milan” is pronounced My-lin.)

At a status conference on April 13, 2010, his attorney’s reported that security restrictions at Federal Correctional Institute Milan (“Milan”) had severely limited their ability to meet with him to review discovery and other matters. He was held in solitary confinement under constant 24-hour manned observation.

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Why Would the US Shield Fahd al-Quso in February 2012 But Drone Kill Him in May 2012?

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On February 10, 2012, the government went out of its way to hide Fahd al-Quso’s ongoing involvement in terrorist attacks against the US. Three months later, on May 6, 2012 — the day before the AP published its story about CIA thwarting an UndieBomb attack — the government killed Quso in a drone strike.

DOJ’s narrative of UndieBomb 1.0 hides Quso’s role in it

On February 10, 2012, as part of his sentencing, DOJ submitted a narrative telling one version of how Umar Farouk Abdulmutallab attempted to bomb Northwest Flight 253 over Detroit. In it, the government tied Abdulmutallab (who, after all, had pled guilty to a conspiracy to commit terrorism) to three AQAP figures: It claimed Anwar al-Awlaki, among other things, gave Abdulmutallab his final instructions that the attack be directed at a US plane and the bomb be set off over US soil. It explained how AQAP bomb-maker Ibrahim al-Asiri constructed the bomb and personally trained Abdulmutallab on its use. And it noted that while Abdulmutallab was training with AQAP, he met Samir Khan who (the narrative helpfully noted in a footnote) would go on to publish Inspire.

The narrative DOJ submitted on February 10 did not mention Fahd al-Quso by name.

Watering trees with UndieBomber 1.0

That’s odd, because Quso reportedly did play a role in Abdulmutallab’s attack. According to a March 2011 AP story, Quso may have been the last person Abdulmutallab met with before he set off on his attack.

Before Abdulmutallab set off on his mission, he visited the home of al Qaeda manager Fahd al-Quso to discuss the plot and the workings of the bomb.

Al-Quso, 36, is one of the most senior al Qaeda leaders publicly linked to the Christmas plot. His association with al Qaeda stretches back more than a decade to his days in Afghanistan when, prosecutors said, bin Laden implored him to “eliminate the infidels from the Arabian Peninsula.”

From there he rose through the ranks. He was assigned the job in Aden to videotape the 1998 suicide bombing of the USS Cole, which killed 17 sailors and injured 39 others, but fell asleep. Despite the lapse, he is now a mid-level manager in the organization. Al-Quso is from the same tribe as radical U.S.-born cleric Anwar al-Awlaki, who had an operational role in the botched Christmas attack.

In December, al-Quso was designated a global terrorist by the State Department, a possible indication that his role in al Qaeda’s Yemen franchise has grown more dangerous.

Al-Quso was indicted on 50 terrorism counts in New York for his role preparing for the Cole attack and served more than five years in prison in Yemen before he was released in 2007. On the FBI’s list, al-Quso ranks behind only bin Laden and his deputy Ayman al-Zawahiri among the most sought-after al Qaeda terrorists.

After meeting with al-Quso, Abdulmutallab left Yemen in December 2009 and made his way to Ghana, where he paid $2,831 in cash for a round-trip ticket from Nigeria to Amsterdam to Detroit and back. [my emphasis]

Indeed, Abdulmutallab’s tie to Quso is one of the only aspects of Abdulmutallab’s trip in Yemen that has been independently verified.

In his book, Dirty Wars, Jeremy Scahill notes,

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

Later in the book, Scahill reports that Zabara was assassinated this January by unknown killers.

Is Fahd al-Quso Abu Tarak?

The details of Quso’s ties to Abdulmutallab — particularly that the Nigerian was watering trees on Quso’s farm — make me wonder whether Quso isn’t the person Abdulmutallab called Abu Tarak in his initial confession on Christmas Day 2009.

In his opening argument in the abbreviated Abdulmutallab trial, AUSA Jonathan Tukel described what Abulmutallab initially confessed after he was captured. Along with all the things later attributed to Awlaki and Asiri, Tukel said Abdulmutallab described having daily talks with Abu Tarak about jihad.

He told the FBI that he and Abu-Tarak spoke daily about jihad and martyrdom and supported al-Qaeda and Osama bin Laden.

In a narrative on Abdulmutallab’s commitment to jihad also submitted for the sentencing based on his personal reviews of Abdulmutallab’s interrogation reports, DOJ expert Dr. Simon Perry suggested that Abdulmutallab was living with Abu Tarak when in Yemen, though he says that was in Sanaa, not Shabwah.

While residing at Abu Tarak’s residence in Sana, Yemen he was mainly confined to his residence and discouraged from any communication with the outside world (phone, email). During this period, UFAM spoke regularly with Abu Tarak and three other individuals who visited him daily, speaking with them about Jihad and martyrdom.

In any case, regardless of whether or not Quso is Abu Tarak, or whether Abu Tarak is an amalgam of AQAP figures, it seems clear that Quso played some role in Abdulmutallab’s preparation.

And yet DOJ chose not to mention that this guy — who had been trying to attack the US since the October 12, 2000 USS Cole attack — was among the notable AQAP figures who prepared Abdulmutallab to attack the US.

Was DOJ hiding that they knew how to infiltrate AQAP?

Whatever Quso’s role in UndieBomb 1.0, the implication of the timing is clear: he was central to the UndieBomb 2.0 plot. Indeed, it is almost certain that CIA asked AP to delay publishing their story to give time to kill Quso, who had just sent our mole off with another UndieBomb.

In other words, one plausible explanation for why DOJ did not confirm what other reports made clear is that it did not want to tip Quso off to what Abdulmutallab told them about him. That is, if they were already planning the op against him, they wouldn’t want him to know they knew how Abdulmutallab had found him 2.5 years earlier.

That is just one possibility, of course.

But if that’s the case — if DOJ obscured Quso’s role in the government’s most extensive accusations that Anwar al-Awlaki had an operational role in targeting the US — then are the claims about Awlaki true?

The Laughable Currently Operative AP Pushback Story

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It has taken several days for the government — apparently, almost exclusively DOJ — to try to spin its secret seizure of AP call records. The new version of the government’s ever-evolving story is that the reason the AP story was so damaging was because it prevented CIA from using the mole to locate Ibrahim al-Asiri, AQAP’s bomb-maker.

Here’s how the guy who headed DOJ’s Office of Legal Policy until last year explained this on Friday.

About a year ago, someone within the government who had access to highly classified information about an intelligence operation in Yemen involving a double agent saw fit to talk about it with the Associated Press. When senior government officials learned that the Associated Press had this story and intended to publish it, those officials realized that the agent’s cover had been blown. Anxious for his safety, the officials prevailed on the AP to delay publication so that first the agent’s family and then the agent himself could be extracted to safety. The AP then published its story, which focused on thwarting a plot to use a new and improved underwear bomb to blow up an airplane bound for the United States.

What went completely without mention in the initial coverage was the fact that thwarting this plot was not the objective of the ongoing undercover operation. Its true objective was to gain enough intelligence to locate and neutralize the master bomb builder, Ibrahim Hassan al-Ashiri, who works with an Al-Qaeda affiliate, Al-Qaeda in the Arabian Peninsula (AQAP). Penetrating AQAP is incredibly difficult. This double agent provided a rare opportunity to gain critical, life-saving information. Whoever disclosed the information obtained by the AP had not only put the agent’s life and his family’s life in danger. He also killed a golden opportunity to save untold more lives that now remain at risk due to al-Ashiri remaining at large.

Here’s how three former high-ranking DOJ officials explained it in an op-ed today.

The United States and its allies were trying to locate a master bomb builder affiliated with Al Qaeda in the Arabian Peninsula, a group that was extremely difficult to penetrate. After considerable effort and danger, an agent was inserted inside the group. Although that agent succeeded in foiling one serious bombing plot against the United States, he was rendered ineffective once his existence was disclosed.

And here’s how Walter Pincus reported it today.

Whoever provided the initial leak to the Associated Press in April 2012 not only broke the law but caused the abrupt end to a secret, joint U.S./Saudi/British operation in Yemen that offered valuable intelligence against al-Qaeda in the Arabian Peninsula.

One goal was to get AQAP’s operational head, Fahd Mohammed Ahmed al-Quso. That happened one day before the AP story appeared.

A second goal was to find and possibly kill AQAP bombmaker Ibrahim Hassan al-Asiri, whose first underwear device almost killed Prince Mohammed bin Nayef, Saudi Arabia’s anti-terrorism chief.

[snip]

Hitting targets in the United States is one of AQAP’s goals. In association with Saudi intelligence, the CIA inserted a Saudi who convinced AQAP that he wanted to be a suicide bomber. Eventually he was outfitted with Asiri’s newest device, which he was to use on a U.S. aircraft. After the device was delivered to U.S. officials, someone or several people leaked the information to the AP. [my emphasis]

Now, Pincus’ story is generally balanced. Unlike the other two, he admits that Fahd al-Quso got killed while the AP held their story and that, in killing Quso, the government accomplished at least one objective of the mole’s mission and did so thanks to AP’s willingness to cede to government requests about this story. He also admits that before the AP ever came to the government with the story, the mole’s UndieBomb had already been delivered to the US.

That chronology is important. And it is one backed by the government’s official timeline (not to mention the CNN report that said the mole had turned over the bomb around April 20 and the report that Robert Mueller traveled to Yemen for an unscheduled 45 minute meeting on April 24). The day after the AP story, Jay Carney said that Obama had been informed about the plot in “early April.”

Q Do you expect that he’ll address at all — I know we got statements yesterday, but the Yemeni al Qaeda plot, do you think he will address that at all in his remarks today?

MR. CARNEY: I don’t expect him to address that issue in his remarks. I mean, I will say that he’s certainly pleased with the success of our intelligence and counterterrorism officials in foiling the attempt by al Qaeda to use this explosive device. It is indicative of the kind of work that our intelligence and counterterrorism services are performing regularly to counter the threat posed by al Qaeda in general, and AQAP in particular.

So he was regularly — as you know, he was made aware of this development in early April and he was regularly briefed on it by John Brennan. [my emphasis]

The NSC’s official statement on that day also said Obama had been informed of the plot in April.

So the government rolled up the plot in April — almost certainly by April 24 — and then the AP came to the CIA and White House with their story about a foiled plot on May 2.

It’s that timing that undermines the claim that the government still hoped to use the mole to get at Ibrahim al-Asiri. 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?”

The government must believe AQAP has far worse counterintelligence than Asiri’s longevity would seem to suggest. Alternately, they’re just inventing stories right now to justify their seizure.

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Obama’s Headlong Rush to Counterterrorism Transparency

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By my count, Thursday will be the 100th day since Obama promised, in his State of the Union Adress delivered February 12, “to engage Congress to ensure not only that our targeting, detention and prosecution of terrorists remains consistent with our laws and system of checks and balances, but that our efforts are even more transparent to the American people and to the world.”

Back then there were, officially at least, just a handful of Gitmo detainees on hunger strike. And it’s possible — if DOJ used the two 45-day gags on subpoenas they permit themselves — a subpoena seizing the phone records for 21 AP phone lines had already been issued.

After Obama promised more transparency on drones and other counterterrorism programs, Members of Congress continued to have to demand minimal transparency. On February 20, Rand Paul sent his third request for that information. On February 27, House Judiciary Chairman Bob Goodlatte repeated that Committee’s request to see OLC’s drone targeting memos; he also expressed anger that the Administration had refused to send a witness to the hearing.

On March 7, Eric Holder hinted that we would “will hear from the President in a relatively short period of time” on drones and transparency and counterterrorism.  On March 8, guards at Gitmo shot non-lethal bullets at detainees. The following day US conducted a drone strike in Pakistan, one of two strikes that month.

On March 11, Progressive Members of Congress sent a letter asking for information on drone targeting.

On April 9, McClatchy reported that most drone strikes had hit low level militants, contrary to public claims; it also revealed the intelligence reports themselves were false.

On April 10, the House Judiciary Committee finally threatened to subpoena the OLC memos authorizing the killing of an American citizen; that was at least the 23rd request for such information from Congress. A week later the Committee would finally get a promise to see just those memos, memos squarely within the Committee’s oversight jurisdiction.

On April 13, the military locked down Gitmo, effectively depriving most detainees of the human company they had enjoyed for years. On that day, 43 men were hunger striking.

On April 14, Samir Haji al Hasan Moqbel described, in a NYT op-ed, “I’ve been on a hunger strike since Feb. 10 and have lost well over 30 pounds. I will not eat until they restore my dignity.” That same day, the US launched one of two drone strikes in Pakistan that month.

On April 15, the Tsarnaev brothers attacked the Boston Marathon, reportedly in retaliation for treatment of Muslims in Afghanistan and Iraq.

April 17, a US drone struck the Yemeni village of a Yemeni, Farea al-Muslimi, already scheduled to testify before the Senate Judiciary Committee about how drones turn Yemenis against the US.

On April 21, the number of hunger strikes at Gitmo reached 84 — over half the men there. Six days later, on April 27, that number reached 100. Three more men have since joined the hunger strike.

As those numbers were growing, on April 25, Dianne Feinstein called on Obama to transfer those detainees who have been cleared. On April 30, Obama renewed his promise to close Gitmo. The next day, the White House made clear that the moratorium preventing almost half the detainees, men who have been cleared for transfer, to return home to Yemen, remained in place.

On May 10, the AP learned that DOJ had seized phone records from 21 phone lines with no notice, potentially exposing the sources of up to 100 journalists.

On May 16, in a hearing querying whether Congress should eliminate or expand the September 18, 2001 Authorization to Use Military Force, Assistant Defense Secretary Michael Sheehan testified the war on terror would last at least 10-20 more years. He also said DOD won’t be taking over CIA’s side of the drone war anytime soon.

Saturday, a drone strike killed at least 4 thus far unidentified men in Yemen.

Which brings us to Thursday when, the WaPo details, Obama will give a speech telling us once again the drone strikes are legal, his desire to close Gitmo is real, and leaks his new CIA Director exacerbated are serious. He will, apparently, also tell us how he plans to make his counterterrorism plan look more like what he promised it would look like 4 years ago.

President Obama will deliver a speech Thursday at the National Defense University in which he will address how he intends to bring his counterterrorism policies, including the drone program and the military prison at Guantanamo Bay, Cuba, in line with the legal framework he promised after taking office.

In the interim between when he promised this transparency and when he’ll start to sort of deliver it (but not, apparently, any actions to close Gitmo), about 7% of his second term will have passed.

Some of the delay, apparently, comes from the need to address the issues that have been festering during the delay.

Obama was prepared to deliver the speech earlier this month, but it was put off amid mounting concerns over a prisoner hunger strike at Guantanamo Bay and more recently the Justice Department leaks investigation — both of which the revised speech may address.

But otherwise, it appears it has taken 100 days to be able to craft a speech good enough to make his paranoia about secrecy and lip service to human rights in counterterrorism look like something else.

Ah well, at least they’ve sharply curtailed drone strikes while they’ve been writing a speech.

DOD Won’t Be Taking Over Drone Strikes Anytime Soon

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In today’s Senate Armed Services Committee Hearing on the AUMF, Carl Levin asked Assistant Secretary of Defense for Special Operations/Low-Intensity Conflict Michael Sheehan whether CIA should get to use drone strikes, in addition to DOD. (at 1:29)

Levin: Should the use of these drones be limited to the Department of Defense or should other government agencies be allowed to use such force as well, for instance the CIA.

Shaheen: Mr. Chairman, the President has indicated that he has a preference preference for those activities be conducted under Title 10 [that is, DOD], we’re reviewing that right now, but I think we also recognize that that type of transition may take quite a while depending on the theater of operation.

That language — depending on the theater of operation — would seem to suggest the problem is target country dependent. Which is to say, the CIA will not give up its authority to use drones in Pakistan and/or Yemen anytime soon.

The reasons why that’s true presented in this Defense Week article aren’t all that convincing. The article starts with the claim that moving CIA’s drone targeting to DOD wouldn’t make much difference, in part because it’s always a uniformed Air Force pilot pulling the trigger to kill someone.

It does point to some nifty toys that CIA has acquired through its more “agile” contracting regime.

The CIA has outfitted its Air Force UAVs, all purchased from General Atomics, with special features, sources say. They say the agency has a more “agile” contracting process than the Air Force.

The refits include four-bladed propellers, which enable the CIA UAVs to take off from shorter runways and may give them a higher operating ceiling as well. With more blades, “you can slice through more air,” one UAV expert said.

The UAVs assigned to the CIA also carry more advanced sensors. For example, they shoot high-definition, 1080p full-motion video, while the Air Force UAV sensors offer just standard definition. Air Force drones may be used as much to gather intelligence as for airstrikes, where CIA UAVs are configured so they can watch, gather intelligence, and eventually kill.

But in either case — at least this article claims — whether DOD or CIA flies the drones, the targeting relies on Counterterrorism Center intelligence.

One former intelligence officer points out that the most important part of the entire program isn’t the UAVs at all. It’s the intelligence that officials use to pick their targets. And that’s the part the Air Force would have the most difficult time getting, if it were not for the CIA.

“Where is the intelligence going to come from in the first place?” he asked rhetorically. “The targeting? It’s the CTC,” the CIA’s Counterterrorism Center.

Which of course doesn’t explain what about the theaters in which CIA owns the drones  rather than DOD (which the article agrees are Pakistan and Yemen) would make it so hard to transition.

I suspect the reasons are different for each. In Pakistan, we’re facing a new Prime Minister in Nawaz Sharif who has claimed to be skeptical of drones. And we’re facing the tensions between Pakistan’s security establishment and its democratic government that necessitate a thoroughly unconvincing kabuki about whether Pakistan consents.

There’s a similar tension in Yemen, too. In addition, I suspect we’re captive to what our drone base hosts in Saudi Arabia want. And there was never much chance they were going to accept a partner other than the old Riyadh Station Chief, John Brennan, run their drone program.

In other words, nothing will change anytime soon. As has been clear in every single piece that simultaneously said DOD would be taking over drone killing even while admitting there would be exceptions tied to Brennan for quite some time.

Surprise: Obama’s National Security people are going to keep saying they’re moving drones to DOD, even while admitting they don’t mean that’s happening right now.

I Wonder What Fahd Al-Quso Thought of the AP’s UndieBomb 2.0 Story?

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It turns out Fahd al-Quso, whom the government alleged was Al Qaeda in the Arabian Peninsula’s external operations director when he was killed in a drone strike May 6 of last year, never lived to see the AP’s UndieBomb 2.0 story, which presumably described a plot he masterminded. That’s because he died during the time period AP was delaying publication at the government’s request.

As part of its effort to show how ridiculous it is for the Administration to seize 20 phone lines of call records to investigate a story on which the AP ceded to White House requests, the AP released this timeline of Administration statements surrounding their UndieBomb 2.0 plot.

Most of the dates were previously known (and have appeared in my posts on the subject). But I believe this one–the date AP first went to the White House with the UndieBomb story–is new.

May 2, 2012: Federal government officials ask the AP to delay publishing a story about a foiled plot by al-Qaida’s affiliate in Yemen to destroy a U.S.-bound airliner, which the AP had recently discovered. They cite national security concerns. The AP agrees to temporarily delay publishing until national security concerns are allayed.

Which makes the timeline from that period look like this:

April 18: Greg Miller first reports on debate over signature strikes

Around April 20: UndieBomb 2.0 device recovered

Around April 22: John Brennan takes over drone targeting from JSOC

April 22: Drone strike that–WSJ reports, “Intelligence analysts [worked] to identify those killed” after the fact, suggesting possible signature strike

April 24: Robert Mueller in Yemen for 45 minute meeting, presumably to pick up UndieBomb

April 25: WSJ reports that Obama approved use of signature strikes

April 30: John Brennan gives speech, purportedly bringing new transparency to drone program, without addressing signature strikes

May 2: Government asks AP to delay reporting the UndieBomb 2.0 story, citing national security

May 6: Fahd al-Quso killed

May 7: Government tells AP the national security concerns have been allayed; AP reports on UndieBomb 2.0

May 8: ABC reports UndieBomb 2.0 was Saudi-run infiltrator

May 15: Drone strike in Jaar kills a number of civilians

While it was fairly clear in any case (and reporting had linked the UndieBomb 2.0 plot with Quso’s death), this timeline makes it crystal clear.

The delay was about killing Fahd al-Quso.

And yet, even after the AP waited 5 days to break the story, allowing the government to drone kill a human being in the interim, the Administration still launched a witch hunt against the AP for a story that became damaging only after John Brennan ran his blabby mouth.

The AP Grab: NSL versus Subpoena

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Update: In his letter responding to AP’s complaints, Deputy Attorney General James Cole says these were subpoenas. Cole tries to argue the scope of the subpoena was fair. But what he doesn’t explain is why the government didn’t give the AP notice or an opportunity to turn over the contacts voluntarily.

I want to return to a question I introduced in my post describing DOJ’s grab of call records from 20 AP phone lines.

The assumption has been that DOJ subpoenaed these call records. While that’s probably right, I still think it’s possible DOJ got them via National Security Letter, which DOJ has permitted using to get journalist contacts in national security investigations since fall 2011. I’ll grant that AP President Gary Pruitt mentions subpoenas twice in his letter, once specifically in connection with DOJ’s grab and once more generally.

That the Department undertook this unprecedented step without providing any notice to the AP, and without taking any steps to narrow the scope of its subpoenas to matters actually relevant to an ongoing investigation, is particularly troubling.

The sheer volume of records obtained, most of which can have no plausible connection to any ongoing investigation, indicates, at a minimum, that this effort did not comply with 28 C.F.R. §50.10 and should therefore never have been undertaken in the first place. The regulations require that, in all cases and without exception, a subpoena for a reporter’s telephone toll records must be “as narrowly drawn as possible.’’ This plainly did not happen. [my emphasis]

But the entire point of Pruitt’s letter is to call attention to the way in which DOJ did not honor the spirit of its media guidelines, which are tied to subpoenas, not NSLs. That’s what the Domestic Investigations and Operations Guide says explicitly (PDF 166) when it talks about using NSLs with journalists: when using NSLs, the rules don’t apply.

Department of Justice policy with regard to the issuances of subpoenas for telephone toll records of members of the news media is found at 28 C.F.R. § 50.10. The regulation concerns only grand jury subpoenas, not National Security Letters (NSLs) or administrative subpoenas. (The regulation requires Attorney General approval prior to the issuance of a grand jury subpoena for telephone toll records of a member of the news media, and when such a subpoena is issued, notice must be given to the news media either before or soon after such records are obtained.) The following approval requirements and specific procedures apply for the issuance of an NSL for telephone toll records of members of the news media or news organizations. [my emphasis]

For a variety of reasons, I think it possible the AP doesn’t actually know how DOJ got its reporters’ contact information. And thus far, the most compelling argument (one Julian Sanchez made) that DOJ used a subpoena is that they did ultimately disclose the grab to the AP; with NSLs they wouldn’t have to do that, at least certainly not in the same time frame.

But Pruitt’s emphasis is sort of why I’m interested in this question: either DOJ used a subpoena and in so doing implicitly claims several things about its investigation, or DOJ used an NSL as a way to bypass all those requirements (and use this as a public test case of broad new self-claimed authorities). Both could accomplish the same objective — getting call records with a gag order — but each would indicate something different about how they’re approaching this investigation.

Here are DOJ’s own regulations about when and how they can subpoena a journalist or his call records. Some pertinent parts are:

(b) All reasonable attempts should be made to obtain information from alternative sources before considering issuing a subpoena to a member of the news media, and similarly all reasonable alternative investigative steps should be taken before considering issuing a subpoena for telephone toll records of any member of the news media.

(d) Negotiations with the affected member of the news media shall be pursued in all cases in which a subpoena for the telephone toll records of any member of the news media is contemplated where the responsible Assistant Attorney General determines that such negotiations would not pose a substantial threat to the integrity of the investigation in connection with which the records are sought. Such determination shall be reviewed by the Attorney General when considering a subpoena authorized under paragraph (e) of this section.

(g)(1) There should be reasonable ground to believe that a crime has been committed and that the information sought is essential to the successful investigation of that crime. The subpoena should be as narrowly drawn as possible; it should be directed at relevant information regarding a limited subject matter and should cover a reasonably limited time period.

(g)(3) When the telephone toll records of a member of the news media have been subpoenaed without the notice provided for in paragraph (e)(2) of this section, notification of the subpoena shall be given the member of the news media as soon thereafter as it is determined that such notification will no longer pose a clear and substantial threat to the integrity of the investigation. In any event, such notification shall occur within 45 days of any return made pursuant to the subpoena, except that the responsible Assistant Attorney General may authorize delay of notification for no more than an additional 45 days. [my emphasis]

US Attorney Ronald Machen statement about the grab largely echoes those parts of the regulations (though somehow he forgot to mention that “subpoenas should be as narrowly drawn as possible”).

We take seriously our obligations to follow all applicable laws, federal regulations, and Department of Justice policies when issuing subpoenas for phone records of media organizations. Those regulations require us to make every reasonable effort to obtain information through alternative means before even considering a subpoena for the phone records of a member of the media. We must notify the media organization unless doing so would pose a substantial threat to the integrity of the investigation. Because we value the freedom of the press, we are always careful and deliberative in seeking to strike the right balance between the public interest in the free flow of information and the public interest in the fair and effective administration of our criminal laws.

So either DOJ used an NSL, which would give them a longer gag, fewer express limits on the scope of the request, and zero expectation of giving notice beforehand (in addition, obtaining NSLs from journalists in national security cases doesn’t appear to require Attorney General sign-off). In which case Machen is playing the same kind of word games the DIOG plays, acknowledging there are regulations the spirit of which DOJ appears to have violated.

Or Machen maintains the following about the grab:

  • DOJ has already checked the US person call records of the people known to be read into the UndieBomb plot and not found any obviously calls or emails implicating the journalists involved in the story and either hasn’t been able to access or hasn’t found any obvious clues in the potential Saudi, Yemeni, and British people read into the operation (note, some Saudis were on the record on this within days and Yemenis also appear to have leaked it).
  • Notifying the AP that DOJ was going to go get journalist contact information for two months, in an investigation that has been widely publicized for an entire year, would pose some threat to the investigation. Normally, such a claim is usually based on the premise that revealing the investigation at all would alert the targets who would otherwise not know about it, but that’s obviously not what’s going on here, because this has been one of the most public leak investigations in recent years.

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“A Full Two Month Period” that Covers John Brennan’s Entire Drone Propaganda Campaign

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In his letter to Eric Holder, AP’s President Gary Pruitt emphasized how inexcusably overbroad the call record seizure had been.

Last Friday afternoon, AP General Counsel Laura Malone received a letter from the office of United States Attorney Ronald C. Machen Jr. advising that, at some unidentified time earlier this year, the Department obtained telephone toll records for more than 20 separate telephone lines assigned to the AP and its journalists. The records that were secretly obtained cover a full two-month period in early 2012 and, at least as described in Mr. Machen’s letter, include all such records for, among other phone lines, an AP general phone number in New York City as well as AP bureaus in New York City, Washington, D.C., Hartford, Connecticut, and at the House of Representatives. This action was taken without advance notice to AP or to any of the affected journalists, and even after the fact no notice has been sent to individual journalists whose home phones and cell phone records were seized by the Department. [my emphasis]

AP’s most recent story on the seizure seems to suggest that “full two-month period” spanned April and May of last year.

In all, the government seized the records for more than 20 separate telephone lines assigned to AP and its journalists in April and May of 2012.

If so, it means the government grabbed phone records for Adam Goldman,  Matt Apuzzo, Kimberly Dozier, Eileen Sullivan, and Alan Fram for three weeks after (and five weeks before) the UndieBomb 2.0 story Goldman and Apuzzo by-lined.

That would mean they’d get the sources for this Kimberly Dozier story published May 21 which starts,

White House counterterror chief John Brennan has seized the lead in guiding the debate on which terror leaders will be targeted for drone attacks or raids, establishing a new procedure to vet both military and CIA targets.

The move concentrates power over the use of lethal U.S. force outside war zones at the White House.

The process, which is about a month old, means Brennan’s staff consults the Pentagon, the State Department and other agencies as to who should go on the list, making a previous military-run review process in place since 2009 less relevant, according to two current and three former U.S. officials aware of the evolution in how the government targets terrorists.

Within 10 days of the time Dozier published that story, John Brennan had rolled out an enormous propaganda campaign — based on descriptions of the drone targeting process that Brennan’s power grab had replaced, not the new drone targeting process — that suckered almost everyone commenting on drones that drone targeting retained its previous, more deliberative, targeting process, the one Brennan had just changed.

And that propaganda campaign, in turn, hid another apparent detail: that UndieBomb 2.0, a Saudi sting had actually occurred earlier in April, and that UndieBomb 2.0 preceded and perhaps justified the signature strikes done at the behest of the Yemenis (or more likely the Saudis).

April 18: Greg Miller first reports on debate over signature strikes

Around April 20: UndieBomb 2.0 device recovered

Around April 22: John Brennan takes over drone targeting from JSOC

April 22: Drone strike that–WSJ reports, “Intelligence analysts [worked] to identify those killed” after the fact, suggesting possible signature strike

April 24: Robert Mueller in Yemen for 45 minute meeting, presumably to pick up UndieBomb

April 25: WSJ reports that Obama approved use of signature strikes

April 30: John Brennan gives speech, purportedly bringing new transparency to drone program, without addressing signature strikes

May 6: Fahd al-Quso killed

May 7: AP reports on UndieBomb 2.0

May 8: ABC reports UndieBomb 2.0 was Saudi-run infiltrator

May 15: Drone strike in Jaar kills a number of civilians

Now, frankly, I think the witch hunt response to the UndieBomb 2.0 plot was mostly just an excuse to start investigating the AP, though it did lead John Brennan to make it clear that it was a Saudi-manufactured plot in the first place.

But the response to that Dozier article, which provided the final piece of evidence for the timeline above showing Brennan grabbed control of drone targeting at roughly the moment we started signature strikes in Yemen, was more dramatic, at least in terms of the breathtaking propaganda the White House rolled out to pretend the drone strikes were more orderly than they actually were.

I’m guessing, but when Pruitt says this,

These records potentially reveal communications with confidential sources across all of the newsgathering activities undertaken by the AP during a two-month period, provide a road map to AP’s newsgathering operations, and disclose information about AP’s activities and operations that the government has no conceivable right to know.

I’m guessing he might have other AP stories in mind.

I know I’m as least as worried about DOJ targeting Dozier’s sources, who revealed a critical detail of how illegal the drone program was, as I am about the original UndieBomb 2.0 story.

DOJ Goes Nuclear on Goldman and Apuzzo

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While the AP doesn’t say it in their report that DOJ got two months of unnamed reporters’ call records, but this effectively means they’ve gone nuclear on Goldman and Apuzzo for breaking a story the White House was going to break the following day anyway.

Prosecutors took records showing incoming and outgoing calls for work and personal numbers for individual reporters, plus for general AP offices in New York, Washington and Hartford, Conn. The government also seized those records for the main phone number for AP in the House of Representatives press gallery.

The Justice Department disclosed the seizure in a letter the AP received Friday.

[snip]

In the letter notifying the AP received Friday, the Justice Department offered no explanation for the seizure, according to Pruitt’s letter and attorneys for the AP. The records were presumably obtained from phone companies earlier this year although the government letter did not explain that. None of the information provided by the government to the AP suggested the actual phone conversations were monitored.

As a reminder, here’s a history of the White House’s attempts to dubiously claim they weren’t planning on releasing the information themselves, as they had the last time a Saudi infiltrator tipped us to a plot.

When the AP first broke the story on UndieBomb 2.0, it explained that it had held the story but decided to publish before the Administration made an official announcement on what would have been Tuesday, May 8.

The AP learned about the thwarted plot last week but agreed to White House and CIA requests not to publish it immediately because the sensitive intelligence operation was still under way.

Once those concerns were allayed, the AP decided to disclose the plot Monday despite requests from the Obama administration to wait for an official announcement Tuesday. [my emphasis]

Since that time, the Administration has tried to claim they never intended to make an official announcement about the “plot.” They did so for a May 9 LAT story.

U.S. intelligence officials had planned to keep the bomb sting secret, a senior official said, but the Associated Press learned of the operation last week. The AP delayed posting the story at the request of the Obama administration, but then broke the news Monday.

[snip]

“We were told on Monday that the operation was complete and that the White House was planning to announce it Tuesday,” he said.

Then the White House tried misdirection for a Mark Hosenball story last week–both blaming AP for information about the Saudi infiltrator the AP didn’t break, and attributing Brennan’s comments implying the plot involved an infiltrator to hasty White House efforts to feed the news cyclespinrespond to the story.

According to National Security Council spokesman Tommy Vietor, due to its sensitivity, the AP initially agreed to a White House request to delay publication of the story for several days.

But according to three government officials, a final deal on timing of publication fell apart over the AP’s insistence that no U.S. official would respond to the story for one clear hour after its release.

[snip]
The White House places the blame squarely on AP, calling the claim that Brennan contributed to a leak “ridiculous.”

“It is well known that we use a range of intelligence capabilities to penetrate and monitor terrorist groups,” according to an official statement from the White House national security staff.

“None of these sources or methods was disclosed by this statement. The egregious leak here was to the Associated Press. The White House fought to prevent this information from being reported and ultimately worked to delay its publication for operational security reasons. No one is more upset than us about this disclosure, and we support efforts to prevent leaks like this which harm our national security,” the statement said.

The original AP story, however, made no mention of an undercover informant or allied “control” over the operation, indicating only that the fate of the would-be suicide bomber was unknown. [my emphasis]

Now, there are several problems with this latest White House story. The allegation of a quid pro quo rests on the premise that the Administration was also about to release the information; it’s just a different version of the request to hold the story until an official White House announcement. Furthermore, if the White House didn’t want this information out there, then why brief Richard Clarke and Fran Fragos Townsend, who went from there to prime time news shows and magnified the story?

Meanwhile, John Brennan, who leaked the most damaging part of this (that it was just a Saudi sting), has since been promoted to run the CIA, even though, at least according to James Clapper’s definition, he’s a leaker.

Also, note the language used here: “seized.” Not “subpoenaed.”

That, plus the description of these as “phone records” suggests DOJ may well have relied on a National Security Letter to get journalist contacts, as I’ve long been predicting they’ve been doing.

Update, per the more detailed AP update: Apparently the letter says they were subpoenaed.

Update: Actually, the letter itself doesn’t say they were subpoenaed, and given that no notice was provided, it seems like NSLs are a likely candidate.

Last Friday afternoon, AP General Counsel Laura Malone received a letter from the office of United States Attorney Ronald C. Machen Jr. advising that, at some unidentified time earlier this year, the Department obtained telephone toll records for more than 20 separate telephone lines assigned to the AP and its journalists. The records that were secretly obtained cover a full two-month period in early 2012 and, at least as described in Mr. Machen’s letter, include all such records for, among other phone lines, an AP general phone number in New York City as well as AP bureaus in New York City, Washington, D.C., Hartford, Connecticut, and at the House of Representatives. This action was taken without advance notice to AP or to any of the affected journalists, and even after the fact no notice has been sent to individual journalists whose home phones and cell phone records were seized by the Department.

This entire leak investigation was always a witch hunt, because sources in the Middle East were blabbing about it anyway, because John Brennan was blabbing too, and because the White House planned to blab about it the following day.

But that, apparently, didn’t stop DOJ from throwing its most aggressive weapons against Adam Goldman and Matt Apuzzo, who first broke the story.