John Brennan, Unplugged

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As a special service to emptywheel readers, I am going to provide an abridged version of John Brennan’s answers to Additional Prehearing Questions in advance of his confirmation hearing on Thursday.

Q1 Bullet 3: 7 CIA officers died in Khost in a suicide bombing that was direct retaliation for our drone attack on a funeral, and then another drone attack on a thuggish enemy of Pakistan and his young wife. Let’s discuss this event as a counterintelligence event, shall we?

A: I have been impressed with CIA’s counterintelligence briefings.

Q6 Bullet 1: What principles should determine whether we conduct covert action under Title 50, where they’re legally supposed to be, or Title 10, where we’ve been hiding them?

A: Whatever works. But tell Congress!

Q6 Bullet 3: Should we reevaluate this?

A: Only if the President decides he wants to stop this shell game.

Q7: Should CIA be a paramilitary agency?

A: See answer to question 6.1.

Q9: We missed the Arab Spring. Shouldn’t we expect better?

A: The liaison relationships with Egypt, Israel, and Saudi Arabia that failed us before won’t fail us again.

Q10: Rather than asking whether you set up the CIA-on-the-Hudson, can you just answer whether you knew about this attempt to bypass restrictions on CIA operating in the US?

A: Yes, I did. CIA likes providing “key support” to local entities under the guise of Joint Terrorism Task Forces.

Q12: How would you manage CIA?

A: Moral rectitude.

Q13: You have lied about things like the Osama bin Laden raid to boost President Obama’s political fortunes. How will you ensure independence from the White House?

A: I will provide him with objective intelligence but I won’t necessarily provide such objective intelligence to anyone else.

Q15: How will you work with your buddies in the Saudi and similar intelligence agencies?

A: I will be the gatekeeper to all US intelligence community elements, but I promise to keep the Chief of Mission informed. At least about what the US side of that relationship is doing.

Q16: How will you staff the agency?

A: Moral rectitude.

Q17: How will you ensure accountability?

A: As CIA did when it was torturing, we’ll refer allegations of criminal wrongdoing to DOJ.

Read more →

Breaking: Most Journalists Mis-Report Release of OLC Memos

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President Obama has finally — after 2 years and 14 requests — agreed to let the intelligence committees see the Office of Legal Counsel Memos that authorize the lethal targeting of US citizens.

Kudos to Ron Wyden for having the tenacity to see that this, at least, happened.

But as big a story as this is, perhaps an equally significant story is the way it is being misreported.

First, even though quotes of Obama and direct statements from Dianne Feinstein and Ron Wyden refer to memos, plural, people persist in reporting that there is one memo.

Second, in spite of the fact that Obama has only acceded to letting the two Intelligence Committees have access to the memos, most media outlets are reporting that “Congress” will get the memos. Congress consists of 535 people elected by citizens. The Intelligence Committees consist of 35 people selected by party leaders. Among those 35 are Michelle Bachmann and Lynn Westmoreland.

And while on the Senate side, non-Intelligence Committee Senators can usually arrange to see such classified materials, it at least used to be that on the House side Members had to ask politely. And even still, the most responsible reporters are saying terms of this kind of access is still to be determined.

Ah well. At least 35 men and women can know what might get you and I killed. But you and I aren’t allowed to know yet.

The Administration’s Drafty Secrecy Claims

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As I’ve noted a couple of times, both Jason Leopold and Scott Shane FOIAed the white paper someone strategically leaked to Mike Isikoff this week.

Leopold requested the white paper in August, shortly after Pat Leahy discussed it in a hearing. Just weeks later, DOJ granted him expedited processing. But then his request dropped off the face of the earth — I guess the Administration treated this “expedited” request with the same temporal measure as the Administration treats “imminence.”

Scott Shane requested the white paper in December. In January DOJ rejected his request, citing deliberative process (basically claiming the white paper was a draft).

The disparate treatment of the two requests — and the leaking of it to Isikoff after two different people had been denied it already — is troubling enough.

But I think there’s another problem with the claim they made to Shane, that it was a draft.

The letter that Ron Wyden and 10 other Senators sent to President Obama the other day suggests that the reason they’re being given for not receiving the OLC memos is because they are drafts.

Specifically, we ask that you direct the Justice Department to provide Congress, specifically the Judiciary and Intelligence Committees, with any and all legal opinions that lay out the executive branch’s official understanding of the President’s authority to deliberately kill American citizens. We are not asking for any pre-decisional legal advice and do not believe that providing this information would violate and Constitutional privilege. However, if there is any concern that providing this information to Congress might implicate some sort of privilege, we would encourage you to simply waive whatever privilege might apply, if you would like to make it clear that you are not setting a precedent that applies to other categories of documents.

At one level, this language suggests a consistency from the Administration. Every single document they have on drone strikes, it would seem, is a draft.

Except that the Senators’ helpful suggestion — that if these so-called drafts really are drafts, then Obama could just waive the privilege this time around without implicating other drafts it wants to keep secret — suggests (I’m going to see if I can confirm it) that what the Committees have (remember, 9 of the 11 Senators are on either the Intelligence or Judiciary Committee, and so have officially received the white paper) was not considered a draft when it was given to them. If they already received a draft, after all, it would not be novel for them to get more drafts.

It’s just that when a reporter who has an active FOIA on precisely this kind of document asks for it, it suddenly reverts to draft status, until such time as someone finds it convenient for Mike Isikoff to have it.

Ah well, John Brennan has made it clear the terrorists will win if the Administration doesn’t presumptively turn over documents under FOIA. So I’m sure the Administration will sort this all out in “expedited” fashion.

Update: Thanks to Charlie Savage for linking to the letter off of which Scott Shane FOIAed the document. It reads:

On June 22, 2012, the Department provided us with a copy of a Department of Justice White Paper titled “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is A Senior Operational Leader of Al-Qa’ida or An Associated Force.” That document, which is marked as “Draft November 8, 2011,” sets forth the legal framework for considering the circumstances in which a particular, identifiable United States Citizen may be targeted. In transmitting that document to us, the Department acknowledged that this white paper is not classified, but took the position that it is not intended for public dissemination.

So DOJ did represent to HJC, at least, that it was a draft.

Two more interesting details, though. The memo was finalized 5 days after the date — November 3, 2011 — when DOJ’s Office of Information Policy arbitrarily enacted as the end date for their FOIA.

And the memo was handed to HJC, at least, the day after DOJ responded to the NYT and ACLU FOIA.

Man, according to John Brennan’s own rules, the terrorists are winning.

Dianne Feinstein’s Limited Hang-Out

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Shorter Dianne Feinstein: “Well, the magical release of that white paper sure eliminates any need to release the Office of Legal Council memos that depict far worse legal theories, even to the grunt members of my committee who have are legally entitled to read it.”

I have been calling for the public release of the administration’s legal analysis on the use of lethal force—particularly against U.S. citizens—for more than a year. That analysis is now public and the American people can review and judge the legality of these operations. The administration has also described its legal analysis in speeches by the Attorney General and several senior officials during the past two years.

The white paper itself was provided to the Senate Intelligence and Judiciary Committees in June 2012 as a confidential document. The white paper (along with other documents and briefings) has allowed the Intelligence Committee to conduct appropriate and probing oversight into the use of lethal force. That oversight is ongoing, and the committee continues to seek the actual legal opinions by the Department of Justice that provide details not outlined in this particular white paper.

While the analysis in the white paper is not specific to any one individual, there has been significant question over the death of a U.S. citizen and operational leader of al-Qa’ida in the Arabian Peninsula named Anwar al-Aulaqi. As President Obama said at the time of his death, Aulaqi was the external operations leader for AQAP. He directed the failed attempt to blow up an airplane on Christmas Day in 2009 and was responsible for additional attempts to blow up U.S. cargo planes in 2010. He was actively plotting and recruiting others to kill Americans until the time of his death in Yemen.

The analysis is completely disingenuous for a number of reasons. As I have shown, DiFi utterly rolled John Cornyn when he tried to get the legal analysis released last year. She has done — and appears to be doing — far more to obstruct the release of the actual legal analysis than to facilitate it. And as at least 12 Senators strongly suggest, the white paper probably doesn’t reflect the memos (note that DiFi, like Wyden, uses the plural) — or at least one memo — that claims the authority to kill Americans solely on the President’s Article II power. At best, the intelligence (not evidence) to support the claims she advances about Anwar al-Awlaki is not a slamdunk; perhaps the  CIA is lying to her again, perhaps DiFi is lying herself to prevent Americans from assessing how badly she is fulfilling her role as a member of the Gang of Four who has presumably read the Administration’s legal justification and not objected to the President killing another American without due process.

Perhaps unsurprisingly, DiFi’s statement accords nicely with what Jay Carney said at the White House.

Read more →

Riyadh Station Chief Operated Drone War from and for His Old Stomping Grounds

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While the existence of a Saudi drone base has been reported before, the WaPo confirms tonight that the drone strike that took out Anwar al-Awlaki was launched, in part, from the base that no one has before liked to report on.

The only strike intentionally targeting a U.S. citizen, a 2011 attack that killed al-Qaeda operative Anwar al-Awlaki, was carried out in part by CIA drones flown from a secret base in Saudi Arabia.

The base was established two years ago to intensify the hunt against al-Qaeda in the Arabian Peninsula, as the affiliate in Yemen is known. Brennan, who previously served as the CIA’s station chief in Saudi Arabia, played a key role in negotiations with Riyadh over locating an agency drone base inside the kingdom.

The Washington Post had refrained from disclosing the location at the request of the administration, which cited concern that exposing the facility would undermine operations against an al-Qaeda affiliate regarded as the network’s most potent threat to the United States, as well as potentially damaging counterterrorism collaboration with Saudi Arabia.

A CIA spokesperson informed The Post on Tuesday night that another news organization was planning to reveal the location of the base, effectively ending an informal arrangement among several news organizations that had been aware of the location for more than a year.

Couple that with Daniel Klaidman’s confirmation of something else that was obvious: John Brennan authorized signature strikes for use in Yemen’s civil war based on the personal entreaties of his old buddies (Klaidman says it was the Yemenis, but the more obvious candidate is the Saudis).

The military wanted to conduct broad-based signature strikes in the country. But Obama was worried about getting embroiled in a domestic conflict—and he and Brennan said no.

[snip]

Then, in the spring of 2012, with Yemen falling into chaos and AQAP gaining more and more territory, Yemeni officials—with whom Brennan had close ties going back to his days as a CIA station chief in the region—beseeched Brennan to help. The Yemeni Army was collapsing under the brutal assault; soldiers were being crucified and beheaded by the jihadis. By April 2012, Brennan and Obama finally relented and permitted signature strikes in the country.

Those who defend this decision point out that it would have been a catastrophe for U.S. security if significant parts of the country had fallen to AQAP, which was intent on attacking the American homeland. Yet some inside the administration were critical. Says one senior administration official of Brennan’s history in Yemen: “He responded to the personal appeals because he has a long history with these guys.” In other words: Brennan’s lawyerly preference for rules and constraints may sometimes have taken a backseat to emotion.

How about this? Rather than holding a confirmation hearing for Brennan on Thursday, maybe we should just debate how much we will demand to rent out the entire CIA to the Saudis to do with as they wish?

None of this is surprising. Some dirty fucking hippie reported it in real time.

Secretary of State John Kerry, Our Newest “General” Leading Cambodia 2.0

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Congratulations to John Kerry, who now has the job he has always wanted.

I do hope some enterprising journalist asks him about this, a key legal justification for the forever wherever war he is now a critical leader of.

The department has not found any authority for the proposition that when one of the parties to an armed conflict plans and executes operations from a base in a new nation, an operation to engage the enemy in that location cannot be part of the original armed conflict and thus subject to the laws of war governing that conflict, unless the hostilities become sufficiently intense and protracted in the new location. That does not appear to be the rule of the historical practice, for instasnce, even in a traditional international conflict. See John R. Stevenson, Legal Advisor, Department of State, United States Military Action in Cambodia: Questions of International Law, Adress before the Hammerskjold Forum of the Association of the Bar of the City of New York (May 28, 1970), in 3 The Vietnam War and International Law: The Widening Context 23 28-30 (Richard A Falk, ed 1972) (arguing that in an international armed conflict, if a netural state has been unable for any reason to prevent violations of its neutrality by the troops of one belligerent using its territory as a base of operations, the other belligerent has historically  been justified in attacking those enemy forces in that state). [my emphasis]

I fear the projectiles he and his team will be throwing this time around will be far more lethal than the medals he once threw.

Update: Thanks to pushingrope for suggesting that this YouTube is more appropriate than old pictures of the Winter Soldiers.

White Paper Cites John Brennan Speech Defending Import of Transparency, FOIA, Declassified OLC Memos

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I’ve been out addressing an imminent toner cartridge emergency and taping Al Jazeera English (it’ll be on tonight at 7:30). So I haven’t yet done my timeline of the varying authorizations to kill Anwar al-Awlaki.

But I wanted to look at one citation in the white paper which I find particularly amusing.

In addition, the United States retains its authority to use force against al-Qa’ida and associated forces outside the area of active hostilities when it targets a senior operational leader of the enemy forces who is actively engaged in planning operations to kill Americans. The United States is currently in a non-international armed conflict with al-Qa’ida and its associated forces. See Hamdan v. Rumsfeld, 548 US 557 628-31 (2006) (holding that a conflict between a nation and a transnational non-state actor, occurring outside the nation’s territory, is an armed conflict “not of an international character” (quoting Common Article 3 of the Geneva Conventions) because it is not a “clash between nations”). Any US operation would be part of this non-international armed conflict, even if it were to take place away from the zone of active hostilities. See John O. Brennan, Assistant to the President for Homeland Security and Counterterrorism, Remarks at the Program on Law and Security, Harvard Law School: Strengthening Our Security by Adhering to Our Values and Laws (Sept . 16, 2011) (“The United States does not view our authority to use military force against al-Qa’ida as being restricted solely to ‘hot’ battlefields like Afghanistan.”

There are a number of things that noted legal scholar John Brennan said in this speech DOJ claims authorizes John Brennan (who presumably is the “informed, high-level official” described as judge and jury in this white paper) to kill Americans.

There’s this:

Now, I am not a lawyer, despite Dan’s best efforts.  

There’s his argument that only by adhering to the rule of law will we beat the terrorists, because it provides an alternative to the twisted world view of Al Qaeda.

Fourth—and the principle that guides all our actions, foreign and domestic—we will uphold the core values that define us as Americans, and that includes adhering to the rule of law. And when I say “all our actions,” that includes covert actions, which we undertake under the authorities provided to us by Congress. President Obama has directed that all our actions—even when conducted out of public view—remain consistent with our laws and values.

For when we uphold the rule of law, governments around the globe are more likely to provide us with intelligence we need to disrupt ongoing plots, they’re more likely to join us in taking swift and decisive action against terrorists, and they’re more likely to turn over suspected terrorists who are plotting to attack us, along with the evidence needed to prosecute them.

When we uphold the rule of law, our counterterrorism tools are more likely to withstand the scrutiny of our courts, our allies, and the American people. And when we uphold the rule of law it provides a powerful alternative to the twisted worldview offered by al-Qa’ida. Where terrorists offer injustice, disorder and destruction, the United States and its allies stand for freedom, fairness, equality, hope, and opportunity.

In short, we must not cut corners by setting aside our values and flouting our laws, treating them like luxuries we cannot afford. Indeed, President Obama has made it clear—we must reject the false choice between our values and our security.

There’s his suggestion that rule of law depends on transparency.

Our democratic values also include—and our national security demands—open and transparent government. Read more →

The Timing of the White Paper

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I’m going to do a longer timeline on targeted killing authorizations, but first I wanted to address a more narrow issue: When did DOJ give the (as received) undated white paper released by NBC to Congress?

Michael Isikoff says Congress got the memo in June, 2012.

It was provided to members of the Senate Intelligence and Judiciary committees in June by administration officials on the condition that it be kept confidential and  not discussed publicly.

That actually contradicts the implication made by Pat Leahy in August of last year, who said it was shared as part of his initial request for the DOJ memos.

Leahy: The five minutes is expired, but I would note that each of the Senators has been provided with a white paper we received back as an initial part of the request I made of this administration.

On November 8, 2011, Pat Leahy complained about the Administration’s previous refusal to turn over the memos. That would put his initial request some time in 2011. He renewed that request on March 8 and June 12, 2012. So if the memo dates to June 2012, it would date to one of Leahy’s subsequent attempts to pry it out of the Administration.

But I think Isikoff’s reporting is likely correct here (and not just because Leahy has wavered between covering for the Administration and trying to get the memos from the start).

If DOJ gave Congress the memo in June 2012, then Ron Wyden would have gotten it between the time he wrote his  February 2012 letter demanding the memos and the time he wrote his January 2013 letter. Read more →

This Isn’t the Memo You’re Looking For

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As important as it is to see the white paper DOJ gave Congress to explain its purported legal rationale, it is just as important to make clear what this white paper is not.

First, is it not the actual legal memos used to authorize the killing of Anwar al-Awlaki and who knows who else. As Michael Isikoff notes in his story, the Senators whose job it is to oversee the Executive Branch — even the ones on the Senate Intelligence Committee that are supposed to be read into covert operations — are still demanding the memos, for at least the 12th time. The release of this white paper must not serve to take pressure off of the White House to release the actual memos.

Which brings me to an equally important point: memos. Plural.

NBC suggests and the close tracking appears to support that this white paper is a version of the OLC memo written in June 2010 and reported on — the last time there was clamor to release the targeting killing authorization publicly — by Charlie Savage.

But as Colleen McMahon strongly hinted last month, that doesn’t mean that this white paper — and the OLC memo which it summarizes — describe the legal basis actually used to kill Anwar al-Awlaki.

Indeed, Ron Wyden has been referring to memos, in the plural, for a full year (even before, if Isikoff’s report is correct, this white paper was first provided to the Committees in June 2012).

And there is abundant reason to believe that the members of the Senate committees who got this white paper aren’t convinced it describes the rationale the Administration actually used. Just minutes after Pat Leahy reminded the Senate Judiciary Committee they got the white paper at a hearing last August, John Cornyn said this,

Cornyn: As Senator Durbin and others have said that they agree that this is a legitimate question that needs to be answered. But we’re not mere supplicants of the Executive Branch. We are a coequal branch of government with the Constitutional responsibility to conduct oversight and to legislate where we deem appropriate on behalf of our constituents. So it is insufficient to say, “pretty please, Mr. President. pretty please, Mr. Attorney General, will you please tell us the legal authority by which you claim the authority to kill American citizens abroad?” It may be that I would agree with their legal argument, but I simply don’t know what it is, and it hasn’t been provided. [my emphasis]

More importantly, one question that Wyden keeps asking would be nonsensical if he believed the content of this white paper reflected the actual authorization used to kill Awlaki. [Update: I take this part back — go read this post for why Wyden keeps asking this question.]

This white paper, after all, speaks repeatedly of the AUMF and invoked Congressional approval (this is just a limited sampling).

The United States is in an armed conflict with al-Qa’ida and its associated forces and Congress has authorized the President to use all necessary and appropriate force against those entities. See Authorization for Use of Military Force.

[snip]

Accordingly, the Department does not believe that U.S. citizenship would immunize a senior operational leader of al-Qa’ida or its associated from a use of force abroad authorized by the AUMF or in national self-defense.

[snip]

None of the three branches of the U.S. Government has identified a strict geographical limit on the permissible scope of the AUMF’s authorization.

[snip]

In such circumstances, targeting a U.S. citizen of the kind described in this paper would be authorized under the AUMF and the inherent right to national self-defense.

[snip]

And judicial enforcement of such orders would require the Court to supervise inherently predictive judgments by the President and his national security advisors as to when and how to use force against a member of an enemy force against which Congress has authorized the use of force. [my emphasis]

But Ron Wyden, who has gotten this white paper, still keeps asking this question.

Is the legal basis for the intelligence community’s lethal counterterrorism operations the 2001 Congressional Authorization for the Use of Military Force, or the President’s Commander-in-Chief authority?

Now, to be fair, those bolded sections do hint at something else, the reliance on inherent authority. And in an early passage laying out the authorities, the white paper lists that Article II authority first, well before it lists the AUMF.

The President has authority to respond to the imminent threat posed by al-Qa’ida and its associated forces, arising from his constitutional responsibility to protect the country, the inherent right of the United States to national self defense under international law, Congress’s authorization of the use of all necessary and appropriate force against the enemy, and the existence of an armed conflict with al-Qa’ida under international law. [my emphasis]

But everything about this white paper uses the AUMF — that Congressional authorization — as the key authorization.

This white paper admits the President claims he could kill an American solely on his inherent Article II powers. But that’s not the argument laid out in the white paper.

Now, there are other reasons to believe this is not the authority relied on — at least not for all the attempts to kill Awlaki. After all, when they first tried to kill him on December 24, 2009, the Intelligence Community didn’t believe him to be operational; at that point, according to the knowledge the government had at that time, Awlaki would not meet the three criteria laid out in this memo.

Never fear though! This white paper makes clear that the government may not even need to fulfill those requirements before it offs a US citizen.

As stated earlier, this paper does not attempt to determine the minimum requirements necessary to render such an operation against a U.S. citizen lawful in other circumstances.

Even as shoddy as this argument is — as forced its interpretation of the word “imminent” and the court precedents — this white paper holds out the possibility that there may be other circumstances, other lesser requirements fulfilled, that would still allow the President to kill an American citizen.

And that, I fear, is what is in the real memos.

Update: Note, too, that 9 of the 11 Senators who demanded the memo have seen this white paper (all but Tom Udall and Jeff Merkley are on either the Senate Intelligence of Judiciary Committee). Yet they’re still demanding to know the “executive branch’s official understanding of the President’s authority to deliberately kill American citizens.”

DOJ Tells Judges to Go Fuck Themselves

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I wonder how Article III is going to feel about this claim, in DOJ’s white paper on targeted killing?

Finally, the Department notes that under the circumstances described in this paper, there exists no appropriate judicial forum to evaluate these constitutional considerations. It is well established that “[m]atters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention,” Haig v. Agee, 453 US 280, 292 (1981), because such matters “frequently turn on standards that defy the judicial application,” or “involve the exercise of a discretion demonstrably committed to the executive or legislature,” Baker v. Carr, 369 US 186, 211 (1962). Were a court to intervene here, it might be required inappropriately to issue an ex ante commend to the President and officials responsible for operations with respect to their specific tactical judgment to mount a potential lethal operation against a senior operational leader of al-Qa’ida or its associated forces. And judicial enforcement of such orders would require the Court to supervise inherently predictive judgments by the President and his national security advisors as to when and how to use force against a member of an enemy force against which Congress has authorized the use of force.

Using this logic, the government can just define all of us imminent threats, and be able to execute us without any review by a court.

And remember — while the document pretends that Congress has been involved here, it refuses (still!) to show Congress the real authorization it used. So it is basically saying Fuck You to courts in the white paper, and Fuck you to Congress by releasing it.

I can see now why Ron Wyden included this in his letter to Obama today:

In your speech at the National Archives in May 2009, you stated that “Whenever we cannot release certain information to the public for valid national security reasons, I will insist that there is oversight of my actions — by Congress or by the courts.” We applaud this principled commitment to the Constitutional system of checks and balances, and hope that you will help us obtain the documents that we need to conduct the oversight that you have called for. The executive branch’s cooperation on this matter will help avoid an unnecessary confrontation that could affect the Senate’s consideration of nominees for national security positions.

Obama once believed — or purported to believe — in courts and Congress. Apparently not anymore.