Alleged Wacko Rand Paul Asks Serious Questions about Targeted Killings

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TDS cites emptywheel for its Targeted Killing Memos request tally.

TDS cites emptywheel for its Targeted Killing Memos request tally.

The Politico went to some effort, it seems, to dismiss Rand Paul’s concerns about the drone program (as well as his threat to hold John Brennan’s nomination if and when it gets out of the Senate Intelligence Committee).

But Paul’s two letters on the subject are actually far more serious than those mocking them make out (the first one also brings the tally of congressional requests for the targeted killing memos to 19).

For example, Paul is one of the few people asking any questions about non-US citizens.

Do you believe that the president has the power to authorize lethal force, such as a drone strike, against a U.S. citizen on U.S. soil? What about the use of lethal force against a non-U.S. person on U.S. soil?

He also asks how the National Security Act and Posse Comitatus might play into a domestic strike.

Do you believe that the prohibition on CIA participation in domestic law enforcement, first established by the National Security Act of 1947, would apply to the use of lethal force, especially lethal force directed at an individual on a targeting list, if a U.S. citizen on a targeting list was found to be operating on U.S. soil? What if the individual on the targeting list was a non-U.S. person but found to be operating on U.S. soil? Do you consider such an operation to be domestic law enforcement, or would it only be subject to the president’s wartime powers?

[snip]

Do you believe that the Posse Comitatus Act, or any other prohibition on the use of the military in domestic law enforcement, would prohibit the use of military hardware and/or personnel in pursuing terrorism suspects—especially those on a targeting list—found to be operating on U.S. soil? If not, would you support the use of such assets in pursuit of either U.S. citizen or non-U.S. persons on U.S. soil suspected of terrorist activity?

And (here in his first letter to Brennan) Paul asks the seemingly unspeakable question: how 16 year old American citizen Abdulrahman al-Awlaki came to be killed by a US drone.

What role did you play in approving the drone strike that led to the death of the underage, U.S. citizen son of Anwar al-Awlaki? Unlike his father, he had not renounced his U.S. citizenship. Was the younger al-Awlaki the intended target of the U.S. drone strike which took his life? Further, do you reject the subsequent claim, apparently originating from anonymous U.S. government sources, that the young man had actually been a “military age male” of 20 years or more of age, something that was later proven false by the release of his birth certificate?

Paul even asks a question limited largely to Yemen experts — whether or expanding campaign there is really about counterinsurgency rather than counterterrorism.

Is the U.S. drone strike strategy exclusively focused on targeting al Qaeda, or is it also conducting counterinsurgency operations against militants seeking to further undermine their government, such as in Yemen?

Finally, Paul slips this question in, which has nothing to do with targeted killings, but has everything to do with Brennan’s seeming disinterest in the privacy of the American people.

Do you support the Attorney General’s 2012 guidance to the NCTC that it may deliberately collect, store, and “continually assess” massive amounts of data on all U.S. citizens for potential correlations to terrorism, even if the U.S. citizens targeted have no known ties to terrorism?

Now, to Politico this may be a big game. But Paul is asking a lot of questions that no one else in DC is asking (note: he may have more leeway to ask such questions than, say, Ron Wyden, who has presumably been read into some of these answers).

Which is, I guess, how the Village now defines wacko: those people who asks the questions they’re too afraid to ask.

The Benghazi Truthers and the OLC Hold-Outs

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Screen shot 2013-02-14 at 8.41.25 AMDianne Feinstein announced yesterday that the Senate Intelligence Committee would not, as originally planned, vote on John Brennan’s nomination today. No Valentine’s Day love for Brennan I guess.

DiFi cited outstanding questions on Benghazi and the 7 OLC memos the White House has withheld.

That’s important background to this Joshua Hersh story, which makes fun of Richard Burr (who had just made a joke about his relative Aaron Burr killing Alexander Hamilton) grilling Jack Lew about who briefed Obama on Benghazi the night of the attack. As Hersh points out, the White House has released a picture showing Denis McDonough briefing the President that day, which ought to answer Burr’s question.

What Hersh doesn’t say is that Burr specifically asked Lew whether Brennan was in this loop. In the closed session on Tuesday, apparently, Brennan said he wasn’t. This comes on top of the White House withholding — at least as of last Thursday — Presidential Daily Briefs and some emails about the response to Benghazi as it unfolded.

Now, Lew’s role in Benghazi briefings really won’t affect his job as Treasury Secretary. But Brennan’s role might, particularly if the Murdoch boosted eBook alleging he was running ops in Libya out of the White House is true (I’m not saying it is).

In any case, the persistence of the Benghazi truthers has introduced an interesting dynamic I didn’t expect. Of the Republicans on the Senate Intelligence Committee, only Susan Collins and possibly Tom Coburn are not full-on Benghazi truthers (and James Inhofe, who gets a vote if he wants one as Armed Services Committee Ranking member, could add another truther vote).

But Collins is part of the other group — along with at least Ron Wyden and Mark Udall — holding up Brennan’s nomination, those demanding the 7 OLC memos on targeted killing the White House has thus far refused to turn over to the Committee purportedly overseeing these killings. That puts the vote somewhere in the vicinity of 9 votes holding out for something from the White House, 6 votes ready to vote Brennan’s nomination forward.

So who will the White House cede to? The Benghazi truthers, or the OLC holdouts? And is what is in the material the White House has thus far withheld enough for these groups to vote against Brennan?

Note, there’s always the possibility these groups will converge. The public record supports the conclusion that Libyan militants in Derna claimed to have been struck or at least surveilled by a drone. Those militants have ties, at least, to the militants who carried out the attack on the Benghazi post, and the public record also supports the claim the militants were avenging that drone surveillance or strike.  If that drone was approved by an unknown memo authorizing continued strikes in Libya, it would be something that both the Benghazi truthers and the OLC holdouts would be interested in.

How Many of the Seven Missing OLC Opinions Authorize Targeted Killing in Unknown Countries?

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Dianne Feinstein has released a statement trying to pretend the Senate Intelligence Committee’s post-killing review constitutes enough oversight of the drone program. In it, she reveals that the Committee is still waiting on 5 OLC memos on targeted killing.

Since 2010 the committee has asked for copies of all the legal opinions written by the Office of Legal Counsel (OLC) at the Department of Justice on targeted killing. I have sent three letters, each joined by Vice Chairman Kit Bond or Vice Chairman Saxby Chambliss, requesting these opinions.

In 2012, the committee included a legislative provision in its annual authorization bill to require the executive branch to provide OLC opinions. Unfortunately that provision was removed prior to final passage of the bill. Until last week, the committee had been provided access to only two of the nine OLC opinions that we believe to exist on targeted killings.

Last week, senators on the committee were finally allowed to review two OLC opinions on the legal authority to strike U.S. citizens. We have reiterated our request for all nine OLC opinions—and any other relevant documents—in order to fully evaluate the executive branch’s legal reasoning, and to broaden access to the opinions to appropriate members of the committee staff.

So there are 9 total. The Committee had already seen 2. It got 2 more last Thursday. Leaving 5 memos on targeted killing — purportedly not related to US persons.

Update: Charlie Savage asked for clarification on the number. There are 11 total. The Committee is still waiting on 7.

If they don’t relate to US persons, then why is the Administration so squeamish about releasing them?

Remember, per Ron Wyden, the Administration still hadn’t provided the committee a list of all the countries it has used its lethal counterterrorism authorities.

So it’s hiding where it is using targeted killings in that form. How many specific OLC memos authorize the use of targeted killings in countries not imagined to be part of the scope of the current war on terror?

Update: I’ve changed the title to reflect the likelihood that we’re using targeted killing in some countries we’re not operating drones.

Does Obama Plan on Killing More Americans Once He Has FISA Drone (and/or Targeting Killing) Court?

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Micah Zenko argues that the language Obama used last night to describe targeted killing lowers the bar — from senior operational leaders to Al Qaeda to those who just present a grave threat.

In addition, Obama’s declaration that the United States would go after “terrorists who pose the gravest threat to Americans” muddied the scope of who can be legitimately targeted. The Obama administration is careful to offer a range of adjectives to describe who can be lawfully targeted. Previous definitions include:

  • John Brennan: “Individuals who are a threat to the United States” (September 16, 2011)
  • Department of Justice: “Senior operational leader of al-Qa’ida or an associated force” who “poses an imminent threat of violent attack against the United States” (November 8, 2011)
  • Eric Holder: “Specific senior operational leaders of al-Qaeda and associated forces” (March 5, 2012)
  • Harold Koh: “High-level al-Qaeda leaders who are planning attacks” (March 25, 2012)
  • Obama: “Our goal has been to focus on al-Qaeda and to focus narrowly on those who would pose an imminent threat to the United States of America” (September 6, 2012)

Obama’s “gravest threat to Americans” characterization is by far the most expansive definition for who can be killed by a U.S. official thus far. (The Oxford Dictionary defines grave as “giving cause for alarm or concern and solemn or serious.”) This does away with previous clarifying terms such as “senior” or “operational” leaders of al-Qaeda, any notion of attacks that are “imminent,” and the necessity to protect the U.S. homeland. This new and sweeping definition of who is “targetable” is troubling since it is open to interpretation by the executive branch interpretation, and was purposefully and deliberately included in a State of the Union address.

As Zenko’s citation of John Brennan’s September 16, 2011 speech makes clear though, at least one public statement in the past has lacked a tie to “senior operational leaders.” And that speech is all the more significant, given that it’s what the white paper points to as the public precedent for the definition of imminence they used to kill Anwar al-Awlaki (and maybe Samir Khan).

Furthermore, as I noted, that word “grave” has already been used: in John Brennan’s response to Angus King’s suggestion of a FISA Court for Drones (and/or Targeted Killing).

But the actions that we take on the counterterrorism front, again, are to take actions against individuals where we believe that the intelligence base is so strong and the nature of the threat is so grave and serious, as well as imminent, that we have no recourse except to take this action that may involve a lethal strike.

That said, the use of the word in both Brennan’s presumably practiced answer and Obama’s scripted SOTU surely indicates adoption of this new term.

Just moments after Obama used the term, he made his ludicrous promise he would “continue” to engage with Congress and provide “even more” transparency to the public.

So, in the months ahead, I will continue to engage with 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.

Given that Brennan’s use of the word “grave” came specifically in response to King’s FISA Court idea and Obama’s is somewhat tied to so-called checks and balances, I wonder whether this new standard will be one of the tradeoffs the Administration will demand for letting courts review their work: a lower standard for killing?

Department of Pre-Crime, Part Two: The FISA Court Is Broken

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Largely to avoid some difficult issues, members of Congress are moving to create a FISA Court for Drones (and/or Targeted Killing) to review the assassination orders for American citizens before they are carried out.

Setting aside all the problems with such a plan (which I’ll return to), consider this more basic problem with this idea. Right now, the FISA Court isn’t even carrying out its original purpose, to ensure that when Americans are wiretapped for national security purposes, the government first gets a warrant.

Consider, first of all, that while the law requires the government to get a warrant before it collects your calls, the 9th Circuit last year eliminated any penalties for actually collecting telecommunications without a warrant. So at least in the 9th, the government can simply avoid the FISA Court altogether, knowing that so long as it doesn’t use those telecommunications in a court case, they’ll never face a penalty for having broken the law.

But even if the government uses the FISA Court, consider how far from its original mission the FISC has strayed.

The FISA Court was set up in 1978, in the wake of the Nixon scandals and Church Committee, with the Keith case (in which Attorney General wiretapped members of the White Panther Party while investigating the bombing of a CIA office in Ann Arbor) in mind. The whole Keith decision is worth noting for the way the same objections raised in targeted killing — that courts can’t make tough decisions or keep secrets — were dismissed by Justice Powell. But ultimately, the decision held,

The Fourth Amendment (which shields private speech from unreasonable surveillance) requires prior judicial approval for the type of domestic security surveillance involved in this case.

The Government’s duty to safeguard domestic security must be weighed against the potential danger that unreasonable surveillances pose to individual privacy and free expression.

The freedoms of the Fourth Amendment cannot properly be guaranteed if domestic security surveillances are conducted solely within the discretion of the Executive Branch, without the detached judgment of a neutral magistrate.

The Fourth Amendment holds that judges must decide whether wiretaps are reasonable or not.

Yet after the FISA Amendments Act, that’s not what happens. Rather, judges are deprived of the ability to do more than review the government’s certifications about targeting and minimization. Once a judge has done so, however, the government can not only bulk collect telecommunications involving someone overseas, but it can later search on those telecommunications to get to the US person’s side of the conversation, apparently without court review on the back side.

Effectively, discretion over this massive system has collapsed back inside the Executive Branch.

And all that’s before the government’s use of the secret law that Mark Udall and Ron Wyden keep complaining about, which probably involves — in part — the bulk collection of geolocation information from cell phones. It’s also before the government has interpreted the word “relevance” to justify other massive collection programs (at a minimum, of things like hydrogen peroxide and acetone purchases) involving US persons.

In short, the FISA Court has become a venue not for judges to exercise individualized discretion about probable cause. Rather, it has become the venue in which the government uses the secrecy offered to develop expansive legal interpretations to support vast new spying programs it won’t even tell Americans about. Not only the promise of individualized judicial discretion has been eliminated, so has the very premise that American should know what laws they are subject to.

Particularly given that a key problem with the targeted killing program (and the NDAA detention authorities, for which the Administration’s legal logic is undoubtedly the same) is that the Administration never has to clearly lay out what the criteria are for inclusion, sticking the Drone (and/or Targeted Killing) review inside the FISA Court, where the government has already been inventing secret law, simply won’t achieve one of two things that needs to happen: communicating to Americans what can get you killed.

Setting Up a Department of Pre-Crime, Part One: Why Are We Doing This?

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I’m going to have a series of posts on the proposed FISA Drone (and/or Targeted Killing) Court, starting with a description of why I think there’s movement to do this now.

There are, as I see it, three different motivations among those now backing a FISA Drone (and/or Targeted Killing) Court.

First, there’s Dianne Feinstein. Now that the white paper has been released — and the actual OLC memos to the other members of her committee — it has been made clear that the program she has been assuring Americans, based on her Gang of Four review, is lawful is not the slam dunk she made it out to be. And while Mike Rogers’ constituents may not object to his continued reassurances that it is okay for the President to kill an American based on his sole authority (though they may; we shall see), DiFi’s are likely to. (Saxby Chambliss, of course, is not running for re-election; Dutch Ruppersberger has been rather quiet in the last few days). So to the degree that DiFi takes a lead on this issue, it is an effort to put a palatable spin on something she has been spinning as legal for years.

If a FISA Drone (and/or Targeted Killing) Court is necessary and justified, it should have been in 2009, when she took over the Chair at Senate Intelligence Committee (or at the very least, by January 2010, when it became clear the Obama Administration was targeted Anwar al-Awlaki). But somehow, DiFi is only backing the idea now that her poor judgment in letting the killings continue without oversight is being exposed. To some degree, I’d put Patrick Leahy (who doesn’t want to be tough with Obama) and Chuck Grassley in this position, as well.

Then there’s John Brennan, who in response to Angus King’s suggestion of a FISA Drone (and/or Targeted Killing) Court said,

And that’s why I do think it’s worthy of discussion. And the point particularly about due process really needs to be taken into account because there’s not a different standard as far as if a U.S. citizen joins Al Qaida, you know, in terms of the intelligence base or whatever. But American citizens by definition are due much greater due process than anybody else by dint of their citizenship.

I think this is a very worthwhile discussion. I look forward to talking to the committee and others about it. What’s that appropriate balance between executive, legislative and judicial branch responsibilities in this area?

I think Brennan’s motivation is far better summed up in the response he gave Jello Jay Rockefeller, who basically used his second round question to deliver a very sloppy blow job to Brennan. In response, Brennan got firey.

I want every member of this committee to be an ardent advocate, proponent, and defender of the men and women of the Central Intelligence Agency.

And I see it as my obligation to represent them to you on their behalf, so that when times get tough and when people are going to be criticizing and complaining about the CIA, I have all of you to say you knew about what the CIA was doing, you supported it, and you will defend it.

My impression is that, contrary to the moral rectitude myth, Brennan is a pretty amoral guy. It’s not right and wrong that motivates him; it’s allegiance, and as CIA Director (and, probably, even now) his allegiance is going to be to the institution.

And as he said in no uncertain terms to Jello Jay, he believes it is the role of the Intelligence Committee to support and defend the illegal actions the CIA does.

Brennan likely also knows that the easiest way to give the Committee cover for ardently defending what is, at its core, indefensible, and the only way to do so without affecting the flexibility accorded to the Executive Branch, is to let them pawn off the moral questions to a court operating in secret. Read more →

Innocent Until Proven Guilty; Imminent Until Proven — Too Late!

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Those defending the language on imminence in the white paper released last week are right on one count: it is not new language. Below the fold, I’ve excerpted the language on imminence from three different formulations on imminence –Brennan’s speech at Harvard, the white paper, and Holder’s Northwestern speech — to show the consistency (and also, with John Brennan’s September 16, 2011 speech, exactly two weeks to Anwar al-Awlaki notice that this was now US policy).

All three point to al Qaeda’s non-combatant structure to describe the need for a more flexible concept of imminence. Both the white paper and Holder’s speech discuss a “window of opportunity,” which I find to be one of the more provocative aspects of this definition. And while Holder’s speech appears to have been edited to make it pretty, it is almost precisely the ideas presented in the white paper on imminence. There is clear continuity between Brennan’s 2011 speech, the white paper, and Holder’s speech.

Which is why I’m interested in the language Brennan used last week when responding to Angus King’s proposal for a FISA court for drone (and what should be targeted killing generally).

It’s telling not because it introduces wholesale new ideas. But because it makes clear what is implicit — but unstated — in the three other formulations.

A person who poses an imminent threat does not have to have committed any crime in the past. Imminence is exclusively about the future possibility of violence, not necessarily past involvement in it.

BRENNAN: Senator, I think it’s certainly worth of discussion. Our tradition — our judicial tradition is that a court of law is used to determine one’s guilt or innocence for past actions, which is very different from the decisions that are made on the battlefield, as well as actions that are taken against terrorists. Because none of those actions are to determine past guilt for those actions that they took. The decisions that are made are to take action so that we prevent a future action, so we protect American lives. That is an inherently executive branch function to determine, and the commander in chief and the chief executive has the responsibility to protect the welfare, well being of American citizens. So the concept I understand and we have wrestled with this in terms of whether there can be a FISA-like court, whatever — a FISA- like court is to determine exactly whether or not there should be a warrant for, you know, certain types of activities. You know… KING: It’s analogous to going to a court for a warrant — probable cause…

(CROSSTALK)

BRENNAN: Right, exactly. But the actions that we take on the counterterrorism front, again, are to take actions against individuals where we believe that the intelligence base is so strong and the nature of the threat is so grave and serious, as well as imminent, that we have no recourse except to take this action that may involve a lethal strike.

The white paper actually has the most language about past deeds, but with the language about membership plus past involvement in activities that pose an imminent threat that I keep pointing to, it doesn’t actually require past deeds either. It does, however, at least imply that an American must be involved in past crimes to be deemed an imminent threat.

John Brennan’s language last week does not.

And that’s precisely the explanation he gave for why the courts aren’t the appropriate place to measure imminent threat: because they only get involved when people have already committed crimes. This new definition of imminence envisions declaring people to be imminent threats even before they’ve committed a crime.

One note about this. Brennan ties all this to the President’s responsibility “to protect the welfare, well being of American citizens.” The biggest threat to the well being of the American citizens is not terrorists at this point, not by a long shot. It’s the big banksters who serially collapse our economy and require bailouts (and, it should be said, are often funding terrorists and drug cartels along the way because it is profitable).  Does this definition of “imminent” threat extend to the banksters who are a much more systematic front than the rump of al Qaeda is at this point?

In any case, be warned. If the plan for a FISA Drone (and Targeted Killing) Court moves forward, it will not be measuring guilt — what courts were established to measure. But instead, potential future guilt.

Read more →

John Brennan Can’t Even Last One 3-Hour Hearing without Engaging in Information Asymmetry

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One of the questions Dianne Feinstein asked John Brennan in his confirmation hearing last week pertained to the role in approving drone strikes he’ll have at CIA. He refused the answer the question directly because the program is classified.

Feinstein: I’d like to ask you about the status of the Administration’s efforts to institutionalize rules and procedures for the conduct of drone strikes. In particular, how do you see your role as CIA Director in that approval process?

Brennan: Chairman, as this committee knows and I’m sure wants to continue to protect certain covert action activities. But let me talk generally about the counterterrorism program and the role of CIA and this effort to try to institutionalize and to ensure we have as rigorous a process as possible that we feel that we’re taking the appropriate actions at the appropriate time. The President has insisted that any actions we take will be legally grounded, will be  thoroughly anchored in intelligence, will have the appropriate review process, approval process before any action is contemplated, included those actions that might involve the use of lethal force.The different parts of the government that are involved in this process are involved in the interagency, and my role as the President’s counterterrorism advisor was to help to orchestrate this effort over the past four years to ensure again that any actions we take fully comport with our law and meet the standards that I think this committee and the American people fully expect of us as far as taking actions we need to protect the American people but at the same time ensuring we do everything possible to ensure we need to resort to lethal force.

Brennan was equally evasive to similar questions in the hearing, and did not really answer a very simple question in his questions for the committee, whether the drone rule book had been finalized (see question 39: Is there a drone rulebook? A: Not so much a rulebook as little scraps of paper strewn around I sometimes lose).

But let it be noted that when the Chairwoman of the committee purportedly overseeing this program asked him what his role would be, as CIA Director, under the new rule book — a topic which has been addressed in part in the press — he suggested he couldn’t answer because it was classified.

Less than three hours later, this exchange occurred.

Burr: On January 15th of this year, the President signed the 2012 Intelligence Authorization Act, which requires congressional notification of any authorized disclosure of national intelligence. Now, we’ve not received any notification of authorized disclosures. Have there been any authorized disclosures to your knowledge?

Brennan: I would like to say that since you haven’t received any notification there haven’t been.

Burr: Would you consider the information reported in the press about the counterterrorism playbook unauthorized disclosure?

Brennan: Um, I don’t know which piece you’re talking about. There’s been a lot of discussion out there in the media and in the newspapers about this, so I don’t know specifically about any classified information — the fact that the Administration may be going through a process to try to institutionalize, codify, make as rigorous as possible our processes and procedures in and of itself is not a classified issue. So those details that are classified — I don’t know of any that came out in some of those reports.

Burr: If there are classified information that’s out there, and it’s not authorized, was there a crime report filed relative to the playbook?

Brennan: Um, presumably there was, Senator. Those decisions as far as initiating criminal investigations are done by those departments and agencies that have stewardship of that classified information. And in discussions with the Department of Justice they make the determination whether or not, in light of the fact that so many people have access to it, how they can proceed with some type of criminal investigation.

There have been two major stories on the drone rule book since Obama signed the new intelligence authorization and each contains information that is almost certainly classified. This January 19 WaPo story reveals that CIA Director John Brennan won’t have to play by the rules for the next year in Pakistan.

None of those rules applies to the CIA drone campaign in Pakistan, which began under President George W. Bush. The agency is expected to give the U.S. ambassador to Pakistan advance notice on strikes. But in practice, officials said, the agency exercises near complete control over the names on its target list and decisions on strikes.

Read more →

Garbage In, Garbage Out: The Problem with a FISA Drone Court

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Since the Administration turned over the OLC memos authorizing the killing of Anwar al-Awlaki Thursday, there’s been a sudden surge of support for setting up a FISA type court for targeted killing (actually, for drone targeting; I guess Americans being killed by cruise missile or gun still won’t get due process).

There are a lot of problems with such a court, which I hope to explore at length in upcoming weeks.

But, in the same way John Brennan undermined the very premise of drone targeting in his hearing (by attesting that the judge and jury in the existing targeting program is not competent to serve as judge and jury), he also undermined the value of a FISA Drone Court.

In this exchange, Richard Burr finds a way to corner John Brennan into agreeing that he trusted information gotten in the torture program. Burr gets Brennan to admit that he submitted declarations to the FISA court that may have relied on information gained from torture.

Burr: I’m still not clear on whether you think the information from CIA interrogations saved lives.  Have you ever made a representation to a court, including the FISA court, about the type and importance of information learned from detainees including detainees in the CIA detention and interrogation program?

Brennan: Ahm, first of all, in the first part of your question, as to you’re not sure whether I believe that there has been information … I don’t know myself.

Burr: I said I wasn’t clear whether I understood, whether whether I was clear.

Brennan: And I’m not clear at this time either because I read a report that calls into question a lot of the information that I was provided earlier on, my impressions. Um. There, when I was in the government as the head of the national counterterrorism center I know that I had signed out a number of um affirmations related to the uh continuation of certain programs uh based on the analysis and intelligence that was available to analysts. I don’t know exactly what it was at the time, but we can take a look at that.

Burr: But the committee can assume that you had faith if you made that claim to a court or including the FISA court, you had faith in the documents in the information that was supplied to you to make that declaration.

Brennan: Absolutely. At the time if I had made any such affirmation, i would have had faith that the information I was provided was an accurate representation.

To corner Brennan, however, Burr also gets him to admit that a number of FISA-approved programs were probably based on torture.

The government was wiretapping people based on tortured confessions the Senate Intelligence Committee has now, a decade later, deemed unreliable.

And because of how rarely FISA-derived information gets double checked, we’ll never learn which wiretaps were approved based on tortured evidence.

Compare that to what has happened even in the Gitmo habeas cases, even with some limits on discovery. Because detainee lawyers got to challenge the information behind accusations, and because the source of accusations were somewhat public, it made it much easier to challenge the accusations from certain detainees, especially Abu Zubaydah, who had been tortured. Indeed, the government dropped a number of charges originally derived from Abu Zubaydah.

As a threshold matter, intelligence is different from evidence. And a FISA Court would be relying on the former.

But because it operates in secret, it would never be able to vet out the intelligence of dubious provenance, whatever the reason. It was torture 9 years ago when Brennan was making dicey declarations. We’re still seeing questionable allegations from informants work through the system (even in the regular courts!). It could be the self-interested claims of our foreign partners, setting up the death of someone they don’t like.

In the FISA Court, unlike a regular court, there’s no way to clean up Brennan’s torture-based declarations.

The very same day Congres started talking about a FISA Drone Court in earnest, John Brennan demonstrated how dodgy some of the representations submitted to the existing FISA Court have been. That ought to give us pause before we extend the court’s warrants to death, in addition to wiretaps.

They Knew the Evidence against Anwar al-Awlaki Was Weak When They Killed Him

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In case you don’t want to read these two long posts, I want to point to two passages from the white paper that show, on two key points, the government wasn’t even claiming Anwar al-Awlaki was the “senior operational leader of Al Qaeda or associated forces” they keep saying he was when they killed him.

First, on the issue of whether someone is an imminent threat or not, the white paper says a person is an imminent threat if he has “recently been involved in activities posing an imminent threat against the US” and has not renounced those activities.

Moreover, where the al-Qa’ida member in question has recently been involved in activities posing an imminent threat of violent attack against the United States, and there is no evidence suggesting that he has renounced or abandoned such activities, that member’s involvement in al-Qa’ida’s continuing terrorist campaign against the United States would support the conclusion that the member is an imminent threat.

And this part of the definition requires only that the target be an al Qaeda member, not a “senior operational leader.”

And then, when examining whether killing an American overseas counts as murder, the white paper says the President can order the murder of an al Qaeda member who poses an imminent threat to the US.

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 of al-Qa’ida or its associated forces who poses an imminent threat of violent attack against the United States.

Again, the American need only be a member, not a senior operational leader.

These are, to be sure, two short passages in a much longer memo. But consider how they work with the 3-part criteria laid out in the memo, which requires only that 1) John Brennan determines that someone is an imminent threat,  2) John Brennan determines that capture is not feasible, and 3) that the killing be consistent with applicable law of war principles.

Once you get to that “imminence” designation, you can kill the American, based on John Brennan’s say so. And “imminence,” for these purposes, can be as weak as past involvement (not leadership — and remember they once said that actions that lead to actions that pose a threat can get you killed, too) in activities that pose an imminent threat of violent attack on the US, so long as you haven’t formally renounced those activities.

This, I strongly suspect, is why Ron Wyden keeps asking “Does the President have to provide individual Americans with an opportunity to surrender before using lethal force against them?” Because as the white paper stands, being uninvolved with any attack for at least a year and perhaps as long as 20 months — which may well be the case with Awlaki — doesn’t count as renunciation.

I have suggested this language may have gotten introduced in a second memo, not long before they killed Awlaki in September 2011, at a point when all the evidence against him was very stale and had gotten weaker over time (the government moved to protect something under CIPA in the UndieBomber case just a week before Awlaki was killed, though that could have been the first memo).

Whether that’s what happened, though, it seems highly unlikely the language would be in the white paper if it weren’t in some document somewhere authorizing Awlaki’s killing.

Which seems to suggest they couldn’t prove — even if they once had been able to — that Awlaki was the senior operational leader they have insisted him to be. And so they wrote the memo to authorize the killing anyway.