How Drone Strikes against American Citizens Are Like Clinton’s Blowjob

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The government has submitted its response in the ACLU/NYT suits for the authorization it used to kill three American citizens. I’m working on a more thorough response, but for the moment, I want to point to one detail that would be funny if it weren’t so damned cynical.

To argue that the flood of sanctioned leaks and official declarations about targeted killing doesn’t constitute official acknowledgment of their targeted killing program, the government says,

Plaintiffs incorrectly contend that the agencies have officially acknowledged three discrete “facts”: (1) “the existence of the targeted killing program”6 (2) “the legal analysis supporting its use against U.S. citizens,” and (3) “the killing of [Anwar] al-Awlaki.” ACLU Opp. at 14.7 To the contrary, the government has acknowledged only that it possesses some responsive records reflecting a general U.S. government interest in the legal basis for the possible use of lethal force against U.S. citizens, and the process by which U.S. citizens could be designated for targeted lethal force.

To which they append this footnote:

Plaintiffs do not define, and it is otherwise unclear from their response, what is meant by “targeted killing program.”

At one level, this cynical ploy is a refreshing breath of honesty. After all, there are probably three or four drone killing programs–the Air Force’s use of drones for force protection in Afghanistan, the CIA’s use of drones to kill both identified and unidentified targets in Pakistan, JSOC’s use of drones to kill what used to be identified but now also include unidentified targets in Yemen and other counterterrorism theaters, and CIA’s use of drones to kill both identified and unidentified targets around the world (but especially in Yemen).

These actions are not the same, and implicitly, the government is admitting what the barrage of sanctioned leaks over the last several months has led the press to forget: targeted strikes are not the same as signature strikes, and JSOC strikes are not the same as CIA strikes. And based on an implicit admission that their last several months of propaganda is a lie, they’re going to play dumb about what the ACLU is FOIAing.

Hey press corps: The government says you should stop treating all the uses of drones as targeted killings!

But of course, the reason why the press has done so is because the Administration has made great efforts to get the press to treat this all as one program–to which they even made a failed attempt to append a unified name, TADS. And when the Administration talks about its targeted killing program, they use that word–“targeted”–with great discipline.

For example, after John Brennan made the following explicit acknowledgement of the targeted killing program,

Yes, in full accordance with the law—and in order to prevent terrorist attacks on the United States and to save American lives—the United States Government conducts targeted strikes against specific al-Qa’ida terrorists, sometimes using remotely piloted aircraft, often referred to publicly as drones.  And I’m here today because President Obama has instructed us to be more open with the American people about these efforts. [my emphasis]

He went on to use that magic word, “targeted,” 20 more times in his speech. And he used it again yesterday, in his speech on Yemen.

Likewise, discussion of Yemeni and American counterterrorism efforts tend to focus almost exclusively on the use of one counterterrorism tool in particular—targeted strikes.

[snip]

Of course, attention has often focused on one counterterrorism tool in particular—targeted strikes, sometimes using remotely piloted aircraft, often referred to publicly as drones. In June, the Obama Administration declassified the fact that in Yemen our joint efforts have resulted in direct action against AQAP operatives and senior leaders. This spring, I addressed the subject of targeted strikes at length and why such strikes are legal, ethical, wise, and highly effective. Today, I’d simply say that all our CT efforts in Yemen are conducted in concert with the Yemeni government. When direct action is taken, every effort is made to avoid civilian casualties. And contrary to conventional wisdom, we see little evidence that these actions are generating widespread anti-American sentiment or recruits for AQAP. In fact, we see the opposite. Our Yemeni partners are more eager to work with us. Yemeni citizens who have been freed from the hellish grip of AQAP are more eager, not less, to work with the Yemeni government. In short, targeted strikes against the most senior and most dangerous AQAP terrorists are not the problem; they’re part of the solution. [my emphasis]

Moreover, he spoke of targeted strikes in Yemen (where all the FOIAed deaths took place) as one tool, singular, obscuring the differences between the different uses of drone killing.

But according to the government, all that doesn’t amount to admission of a targeted killing program–“golly, we keep using that term ‘targeted’ but we can’t even imagine what ‘targeted killing’ means!” Because it’s just too hard for powerful men to figure out the difference between fucking and a blowjob, I guess, if they can even figure out what the meaning of “is” is.

Read more →

John Brennan Vows to Combat the “Bad Guys” Attacking Our Critical Infrastructure

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John Brennan just gave a speech, purportedly about our policy in Yemen. But it ended up being largely about infrastructure, That’s partly because his speech focused on how, rather than spending 75% of our Yemen funds on bombs, we’re now spending just 50% (having bumped up the total to include an equal amount development assistance). So a good part of his talk focused on whether or not Yemen would be able to do the critical work of rebuilding its infrastructure sufficient to combat AQAP which, in some areas, has done a better job of building infrastructure.

Of course as I noted while he spoke, a number of the infrastructure challenges Brennan confidently assured we could help rebuild–things like access to water–are challenges we are increasingly failing in our own country.

And then, because the DC attention span had had enough of Yemen, moderator Margaret Warner asked Brennan what the Administration will do now that their cybersecurity bills have been defeated. To justify his talk of using Executive Orders to address some of the infrastructure problems, Brennan talked about the “bad guys” who posed a cyberthreat to our critical infrastructure.

Nowhere did Brennan acknowledge the much more immediate threat to our critical infrastructure: in the corporations and politics that let it decline. PG&E and Enbridge, failing to invest the money to fix known defects in their pipelines. Fracking companies, depleting and degrading our water supply. Verizon, eliminating choice for Internet access for rural customers. Republicans who want to gut our Postal Service and passenger rail. And heck, even Fat Al Gore and climate change, which is not only depleting our water supply but stalling key water transport routes.

Brennan promises to help rebuild Yemen’s infrastructure. But not only can’t he implement his plan against the bogeyman “bad buys” threatening our infrastructure, he seems completely unaware that those “bad guys” aren’t anywhere near the biggest threat to our infrastructure.

Don’t get me wrong. I applaud the Administration’s decision to dedicate money to Yemen’s infrastructure, even if I think a 50/50 split, aid to bombs, is still woefully inadequate. But until we begin to see what “bad guys” pose the biggest threat to our own infrastructure, I’m skeptical our efforts in Yemen will be any more successful than they were in Iraq or Afghanistan.

“Dear John Brennan: You’re Being Investigated”

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A number of people have pointed to Scott Shane’s story on the leak witch hunt for the details it gives on the increasing concern about leak witch hunts among journalists and national security experts.

But this paragraph includes the most interesting news in the article.

The F.B.I. appears to be focused on recent media disclosures on American cyberattacks on Iran, a terrorist plot in Yemen that was foiled by a double agent and the so-called “kill list” of terrorist suspects approved for drone strikes, some of those interviewed have told colleagues. The reports, which set off a furor in Congress, were published by The New York Times, The Associated Press, Newsweek and other outlets, as well as in recent books by reporters for Newsweek and The Times. [my emphasis]

That’s because prior reporting had indicated that the Kill List stories were not being investigated.

Recent revelations about clandestine U.S. drone campaigns against al Qaeda and other militants are not part of two major leak investigations being conducted by federal prosecutors, sources familiar with the inquiries said.

[snip]

The CIA has not filed a “crime report” with the Justice Department over reports about Obama’s drone policy and a U.S. “kill list” of targeted militants, an action which often would trigger an official leak investigation, two sources familiar with the matter said. They

So Shane’s revelation that the Kill List stories are being investigated amounts to the author of one of the Kill List stories reporting that some people who have been interviewed by the FBI told colleagues they got asked about the Kill List. Which might go something like, “Scott, they’re asking about your story, too.”

All without Shane acknowledging that Shane wrote one of the main Kill List Shiny Object stories.

Meanwhile, I find his reference to the outlets involved very interesting. Using the principle of parallelism, the passage seems to suggest the FBI is investigating the NYT for David Sanger’s sources on StuxNet, the AP for Adam Goldman and Matt Apuzzo’s sources on the UndieBomb 2.0 plot, and Newsweek for Daniel Klaidman’s sources on the Kill List. But of course the NYT also wrote a Kill List story, the AP wrote what is probably the most interesting Kill List story (which reported that the Kill List is now run by John Brennan). “And other outlets.” Which might include ABC for revealing that the UndieBomb 2.0 plotter was actually an infiltrator (ABC got the story indirectly from John Brennan, though Richard Clarke). Or the WaPo for Greg Miller’s original story on drone targeting, revealing that we were going to use signature strikes in Yemen. Or the WSJ, reporting that we had started using signature strikes.

In other words, it presents a rather interesting group of potential stories and sources.

Now I don’t know that John Brennan was the source for all this or that he’s really being investigated. I’m not saying Shane is being manipulative by reporting on this (though seriously, it’s another example of the NYT having a reporter report on a story that he is really a part of).

But I do find it rather interesting that a reporter targeted in this leak witch hunt just made news about the scope of the leak witch hunt.

Lost Among the Findings in Syria

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The Neocons have been pressuring Obama to do something in Syria. So it’s thoroughly unsurprising that we’re officially learning what we’ve known for months: the CIA has been involved in Syria. According to Mark Hosenball the Finding Obama signed authorizing such actions permits us to collaborate at a “secret” command center on or close to our air base at Incirlik.

A U.S. government source acknowledged that under provisions of the presidential finding, the United States was collaborating with a secret command center operated by Turkey and its allies.

[snip]

This “nerve center” is in Adana, a city in southern Turkey about 60 miles from the Syrian border, which is also home to Incirlik, a U.S. air base where U.S. military and intelligence agencies maintain a substantial presence.

The Finding doesn’t authorize arming the rebels (though Hosenball’s sources seem unsure about the general scope of the Finding), but NBC has reported that the Saudis and Qataris have already armed them with shoulder-launched missiles.

It’s just like old times! The US partnering with Saudis to get shoulder-launched missiles into the hands of rebels with dubious loyalties. Whatever could go wrong with that?

There are two details about this that deserve notice.

What happened to the leak hawks in Congress?

First, this story is based on the leak of a covert Finding–precisely the kind of leak that Congress has gone on the warpath against. Hosenball attributes his reporting to US sources–an attribution that can (though doesn’t necessarily) refer to Congressional sources.

U.S. sources familiar with the matter said.

[snip]

A U.S. government source acknowledged

And while he notes–and names–the Senators who have been pressuring Obama to do precisely what he has been doing for months, Hosenball doesn’t name the members of Congress who are opposed to such an action.

Some U.S. lawmakers, such as Republican Senators John McCain and Lindsey Graham, have criticized Obama for moving too slowly to assist the rebels and have suggested the U.S. government should become directly involved in arming Assad’s opponents.

Other lawmakers have suggested caution, saying too little is known about the many rebel groups.

In short, chances are not insignificant that a Congressional source leaked the contents of a Finding authorizing covert operations.

And yet … crickets!

Those same Senate Intelligence Committee leak hawks who have authorized a range of stupid actions to prevent leaks seem unperturbed by a leak revealing information that is as sensitive as the leaks they’re demanding be investigated.

How does anti-Assad Finding relate to the Assad-cooperation authorized under the Gloves Come Off Memorandum of Notification?

Then there’s this. In his description of all the things included in the Gloves Come Off Memorandum of Notification authorizing the war on terror, Bob Woodward said cooperation with Syria (and Libya) were included.

[George Tenet] called for initiating intelligence contact with some rogue states such as Libya and Syria that he said might be helpful in trying to destroy al Qaeda. For the CIA to obtain helpful information against the terrorists, they might have to get their hands dirty. (Bush at War 77)

We know the MON included such cooperation with Libya because liberated documents have reflected cooperation on renditions. And Maher Arar, who was rendered to Syria and tortured, can tell you all about what our cooperation with Syria entailed.

The thing is, the MON authorizing cooperation with Syria remains in effect. We know that to be true because Judge Richard Wesley, in enabling the government to keep all mention of this MON secret a few months ago, stated it pertained to “active intelligence activity.” Rather than writing a new MON–one that doesn’t give CIA carte blanche in deciding the limits of things like targeted killings–Obama is still relying on this MON for things like killing American citizens.

So does that mean the CIA is at once authorized to share intelligence with Bashar al-Assad (under the Gloves Come Off MON) and help rebels overthrow and probably kill him (under this new Finding)?

Probably, there is a very simple explanation for this (and for the fact that we helped to kill Moammar Qaddafi, as well). Probably, the new FInding (and whatever Finding authorized the activities our spooks engaged in in Libya) simply includes language canceling the prior language authorizing cooperation with Assad. So no big deal, really.

Still, doesn’t that give lie to the Administration’s seeming treatment of that 11 year old MON as inviolate? That is, if this Finding renders (heh) part of that MON meaningless, then maybe it wouldn’t be so hard for Obama to write a new MON, one that involved actual oversight.

Dianne Feinstein Agrees with Obama: Public Can’t Know Targeted Killing Legal Justification

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At the end of a useful Steve Coll piece on the Constitutional danger of the Administration’s unilateral decisions to kill American citizens, he argues that Congress has the ability to force the Administration to release the process by which it executes Americans with no due process publicly.

None of Obama’s legal advisers has testified similarly about what secret system and classified legal memos may exist for judging, in the case of an American citizen targeted overseas, whether and why a capture attempt may be feasible. Congress has the power to force such statements onto the public record. It must try; it is obvious by now that the Obama Administration will not volunteer them. Is “kill or capture” a policy, or are the words just a screen for politically convenient targeted killings?

As I laid out the other day, Congress has tried to ask nicely for the memos on over 10 occasions, only to be blown off by the Administration.

That’s why Dianne Feinstein’s thus far successful effort to undercut John Cornyn’s effort to mandate release of the memos is so dangerous. John Cornyn’s amendment would mandate release to six oversight committees (those overseeing Intelligence, Judiciary, and Armed Services) within a month. DiFi’s bill would require release of all intelligence related memos (which is good), but only to the Intelligence Committees, and with loopholes  that would permit the Administration to withhold a slew of their legal authorities. And any release could be delayed 6 months beyond the passage of the bill (so, if Mitt were to win, beyond the end of the Obama Administration).

There is widespread bipartisan support for releasing a real explanation of this to the public, now. Cornyn’s amendment would be an important half measure, requiring release of the Awlaki kill memo at least to the members of Congress purportedly ensuring government activities remain constitutional. And yet DiFi’s efforts undercut even that half measure.

Update: My original title, which I’ve resigned to the dustbin of over-long novels, stunk. Thankfully, Kade Ellis gave me a better one.

The Administration Has Not Responded to Over 10 Congressional Requests for Targeted Killing Memo

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Back in September 2010, when the Administration successfully argued that whether or not the government had the authority to kill Anwar al-Awlaki was a matter for the Executive and Congressional Branches to decide, it claimed Congress served as a check on that power.

The nonjusticiability of the plaintiff’s claims in this Court “does not leave the executive power unbounded.” Schneider, 412 F.3d at 200. “The political branches effectively exercise such checks and balances on each other in the area of political questions[,]” and “[i]f the executive in fact has exceeded his appropriate role in the constitutional scheme, Congress enjoys a broad range of authorities with which to exercise restraint and balance.” Id. Accordingly, “the allocation of political questions to the political branches is not inconsistent with our constitutional tradition of limited government and balance of powers.” Id.

The Administration’s behavior in the interim period has proven those assurances to be utterly false. Congress has asked the Administration on more than 10 separate occasions for the OLC memo authorizing the killing of Anwar al-Awlaki (many of these 10 documented requests refer to earlier requests, and Pat Leahy sent President Obama a letter that his office could not share).

And yet here we are, 22 months after the Administration assured Judge John Bates that Congress exercised some kind of check on the Executive, at least 17 months after members of Congress first started asking for the legal analysis, and the Administration has not responded to those requests.

Here are the requests.

February 2011: Ron Wyden asks the Director of National Intelligence for the legal analysis behind the targeted killing program. (1)

April 2011: Ron Wyden calls Eric Holder to ask for legal analysis on targeted killing. (2)

May 2011: DOJ responds to Wyden’s request, yet doesn’t answer key questions.

May 18-20, 2011: DOJ (including Office of Legislative Affairs) discusses “draft legal analysis regarding the application of domestic and international law to the use of lethal force in a foreign country against U.S. citizens” (this may be the DOJ response to Ron Wyden).

October 5, 2011: Chuck Grassley sends Eric Holder a letter requesting the OLC memo by October 27, 2011. (3)

November 8, 2011: Pat Leahy complains about past Administration refusal to share targeted killing OLC memo. (4)

February 8, 2012: Ron Wyden follows up on his earlier requests for information on the targeted killing memo with Eric Holder. (5)

March 7, 2012: Tom Graves (R-GA) asks Robert Mueller whether Eric Holder’s criteria for the targeted killing of Americans applies in the US; Mueller replies he’d have to ask DOJ. Per his office today, DOJ has not yet provided Graves with an answer. (6)

March 8, 2012: Pat Leahy renews his request for the OLC memo at DOJ appropriations hearing. (7)

June 7, 2012: After Jerry Nadler requests the memo, Eric Holder commits to providing the House Judiciary a briefing–but not the OLC memo–within a month. (8)

June 12, 2012: Pat Leahy renews his request for the OLC memo at DOJ oversight hearing. (9)

June 27, 2012: In Questions for the Record following a June 7 hearing, Jerry Nadler notes that DOJ has sought dismissal of court challenges to targeted killing by claiming “the appropriate check on executive branch conduct here is the Congress and that information is being shared with Congress to make that check a meaningful one,” but “we have yet to get any response” to “several requests” for the OLC memo authorizing targeted killing. He also renews his request for the briefing Holder had promised. (10)

July 19, 2012: Both Pat Leahy and Chuck Grassley complain about past unanswered requests for OLC memo. (Grassley prepared an amendment as well, but withdrew it in favor of Cornyn’s.) Leahy (but not Grassley) votes to table John Cornyn amendment to require Administration to release the memo.

July 24, 2012: SSCI passes Intelligence Authorization that requires DOJ to make all post-9/11 OLC memos available to the Senate Intelligence Committee, albeit with two big loopholes.

Congress Can’t Legislate Oversight for Fear of Legal Challenges That’d Accomplish Oversight Congress Can’t Legislate

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Julian Sanchez has his own rebuttal to former DOJ official Carrie Cordero’s claims that FISA has plenty of oversight (see mine here). You should definitely read it, which is wonky and interesting. But I wanted to add my non-wonky answer to a question Sanchez poses.

I’ll grant Cordero this point: as absurd as it sounds to say “we can’t tell you how many Americans we’re spying on, because it would violate their privacy,” this might well be a concern if those of us who follow these issues from the outside are correct in our surmises about what NSA is doing under FAA authority. The only real restriction the law places on the initial interception of communications is that the NSA use “targeting procedures” designed to capture traffic to or from overseas groups and individuals. There’s an enormous amount of circumstantial evidence to suggest that initial acquisition is therefore extremely broad, with a large percentage of international communications traffic being fed into NSA databases for later querying. If that’s the case, then naturally the tiny subset of communications later reviewed by a human analyst—because they match far narrower criteria for suspicion—is going to be highly unrepresentative. To get even a rough statistical sample of what’s in the larger database, then, one would have to “inspect”—possibly using software—a whole lot of the innocent communications that wouldn’t otherwise ever be analyzed. And possibly the rules currently in place don’t make any allowance for querying the database—even to analyze metadata for the purpose of generating aggregate statistics—unless it’s directly related to an intelligence purpose.

A few points about this.  First: assuming, for the moment, that  this is the case, why can’t NSA and DOJ say so clearly and publicly?

Sanchez dismisses a bunch of lame excuses that the government might provide. But he doesn’t consider another obvious answer.

The government can’t tell us it can’t tell us how many Americans get spied on after every foreign telecommunication gets sucked up because if it did, then it’d be a lot easier for the plaintiffs in Amnesty v. Clapper to get standing. And the government can’t have that–particularly not before SCOTUS hears the case on October 29–because if so it would allow the plaintiffs to actually challenge the underlying surveillance, and possibly even to challenge what I’ve called the database exception.

So the government can’t answer Ron Wyden’s questions before the FISA Amendments Act gets extended because the government is not about to let this extension wait until after the election, which is, after all, just a week after SCOTUS hears Clapper. And since the House is planning to leave DC for the election on October 5, it means the public simply can’t be told the underlying facts of this spying program, because it’d give Amnesty and the ACLU more than three weeks to figure out how to win their standing case at SCOTUS.

Which brings me to another piece of oversight we can’t have. Read more →

More Evidence US Views Drone Strikes as Political Retaliation Tool

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On the same day that the US and Pakistan formally signed the agreement reopening the NATO supply routes through Pakistan, a piece profiling the US-Pakistan relationship in the New York Times provides further evidence supporting the idea that the US sometimes uses drone strikes as a tool for political retaliation. The retaliatory strikes previously have been stepped up to almost one per day when a particular point is being emphasized.

The entire Declan Walsh and Eric Schmitt piece in today’s Times is worth reading, but I want to focus on the evidence they provide for drone strikes as retaliation. The piece focuses on the Haqqani network and how the perceived ties between them and Pakistan’s ISI complicate the US-Pakistan relationship. At one point in the article, the discussion moves to contingencies the US has considered about what the US would do if the Haqqani network manages to inflict a significant blow against US forces in Afghanistan:

But a new boldness from the Haqqanis that aims at mass American casualties, combined with simmering political tension, has reduced the room for ambiguity between the two countries. Inside the administration, it is a commonly held view that the United States is “one major attack” away from unilateral action against Pakistan — diplomatically or perhaps even militarily, one senior official said.

/snip/

American officials recently considered what that could mean. Days after the Salerno attack, the White House held a series of interagency meetings to weigh its options in the event of a major success by the Haqqanis against American troops.

/snip/

The meetings yielded a list of about 30 possible responses, according to a senior official who was briefed on the deliberations — everything from withdrawing the Islamabad ambassador, to a flurry of intensified drone attacks on Haqqani targets in Pakistan’s tribal belt, to American or Afghan commando raids on Haqqani hide-outs in the same area.

Gosh, “a flurry of intensified drone attacks” sounds very familiar. That is exactly what happened last May when Zardari’s visit to the NATO summit in Chicago did not produce the agreement for reopening the supply routes. Retaliatory strikes started almost immediately, with at least four strikes coming within a span of six days.

With the understanding that the US views drone strikes as a retaliation tool, we can watch this week’s visit to Washington by new ISI chief Lieutenant General Zaheer ul-Islam. Islam will visit with David Petraeus and others Wednesday through Friday of this week. Drones are expected to be on the agenda for the meetings:

Lieutenant General Zaheer ul-Islam, who was appointed in March, “will visit USA from 1st to 3rd August. This will be a service-to-service bilateral visit,” the statement said.

“He will meet his counterpart General David Petraeus, director CIA.”

The short statement gave no other details, but a senior Pakistani security official earlier told AFP that the pair would discuss counter-terror cooperation and intelligence sharing.

Islam would also demand an end to US drone attacks against the Taliban and al Qaeda, and again ask for the means for Pakistan to carry out the attacks instead, the security official said.

The US has made it clear multiple times that it will not give up on carrying out drone strikes and that it does not trust ISI enough to bring them closely into the loop when choosing targets or timing for strikes. It seems very likely to me that the US will carry out a strike within the first day or two after the meeting ends, just to send the message to the ISI that the meeting has changed nothing in how the US will operate. If the strike is as reckless as the one that killed a group of 40 who turned out to be mostly civilians on the day after the release of Raymond Davis, then the US could be accused of letting the need for political retaliation move it all the way to blind rage. Another hint in the Times piece tells us that Haqqani leader “Sirajuddin Haqqani surrounds himself with civilians — often women and children — at his base in the town of Miram Shah”. Will the US decide to allow some “collateral damage” to women and children in an attempt to take out Sirajuddin Haqqani as Islam returns to Pakistan from his meeting with Petraeus?

Dianne Feinstein Undermines John Cornyn’s Effort to Get Transparency on Targeted Killing

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As I noted a few weeks ago, the Democrats on the Senate Judiciary Committee voted to prevent John Cornyn from adding an amendment to the FISA Amendments Act Extension. I will have to hunt down the language of his amendment tomorrow, but it would basically have required the Administration to share the memos authorizing the killing of Anwar al-Awlaki–with targeted killing addressed specifically–with the Intelligence and Judiciary Committees. [Update: The Amendment is below.]

The Senate Intelligence Committee just passed the language that–DiFi promised–would address the issue. And it still leaves the Administration leeway to do what it has been doing for two years–withholding the actual memo from the committees that oversee it.

That’s because the legislation passed as part of the Intelligence Authorization allows the government to withhold opinions from people not read into covert programs.

(a) REQUIREMENT TO PROVIDE.—Except as provided in subsections (c) and (d), not later than 180 days after the date of the enactment of this Act, the Attorney General, in coordination with the Director of National Intelligence, shall provide to the congressional intelligence committees a copy of every classified opinion of the Office of Legal Counsel of the Department of Justice that was provided to an element of the intelligence community on or after September 11, 2001.

[snip]

(c) EXCEPTION FOR COVERT ACTION.—If the President determines that it is essential to limit access to a covert action finding under section 503(c)(2) of the National Security Act (50 U.S.C. 413b(c)(2)), the President may limit access to information concerning such finding that is subject to disclosure under subsection (a) or (b) to those members of Congress who have been granted access to the relevant finding under such section 503(c)(2).

(d) EXCEPTION FOR INFORMATION SUBJECT TO EXECUTIVE PRIVILEGE.—If the President determines that a particular opinion subject to disclosure under subsection  (a) or listing subject to disclosure under subsection (b) is subject to an executive privilege that protects against such disclosure, the Attorney General shall not be required to disclose such opinion or listing, if the Attorney General notifies the congressional intelligence committees, in writing, of the legal justification for such assertion of executive privilege prior to the date by which the opinion or listing is required to be disclosed.

This is, frankly, an outrage both specifically and generally.

First, nothing in this language guarantees the committees will get the memos in question. That’s because the Administration has long been withholding the information even from members of the Senate Intelligence Committee based on claims that it is too secret to share with those who oversee intelligence and the Constitution.

Furthermore, both the Bush and Obama Administrations have fairly routinely withheld OLC memos–particularly drafts–on the basis they’re deliberative and have nothing to do with the basis on which the Administration makes the final decision. The language on Executive Privilege here codifies that practice. Further, in the case of targeted killing, the government went out of its way to get ACLU to agree not to ask for the drafts of their opinions on targeted killing. And remember, before they finalized the memo we think was ostensibly used to authorize the killing of Anwar al-Awlaki, they had already tried to kill him, at a time when FBI, at least, didn’t have evidence showing he was operational. The authorization they used for the earlier kill attempt–if it exists–almost certainly looks nothing like the authorization described in the government’s recent transparency theater.

And then there’s this: the 6 months it allows the government to sit on this. That gets the Administration beyond the election, but also beyond the time when, if Obama loses, he’ll leave office. So if there’s anything really embarrassing, he can use late Administration game playing to clean it up.

This is disgusting. Really, really pathetic, even for the serially pathetic Senate Intelligence Committee.

Update: Here’s Cornyn’s amendment. His amendment would have gotten just the targeted killing opinions, shared with just the oversight committees (I had forgotten it included the Armed Services committees, too). But it also would have gotten the opinions within a month (and therefore before the election).

Not later than 30 days after the date of the enactment of this Act, the President shall submit, in classified or unclassified form, all legal analysis in effect on the date of the enactment of this Act related to the President’s authority to target and kill United States citizens overseas to—

(1) the Select Committee on Intelligence of the Senate;

(2) the Committee on Armed Services of the Senate;

(3) the Committee on the Judiciary of the Senate;

(4) the Permanent Select Committee on Intelligence of the House of Representatives

(5) the Committee on Armed Services of the House of Representatives; and

(6) the Committee on the Judiciary of the House of Representatives.

Pakistan Press Reporting UK Lawmakers Wrote Letter Urging Obama to Stop Drone Strikes in Pakistan

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Virtually every press outlet I scan in Pakistan is reporting today that a group of at least twelve member of the House of Lords and House of Commons have written a letter variously reported as addressed to Barack Obama, the United States and to NATO, urging an end to US drone strikes in Pakistan. So far, however, I have seen no mention of the letter in the British or US press. [Update: Chris Woods of the Bureau of Investigative Journalism points out in comment number 1 below that the letter was sent to the London Times and provides a link to its full text.]

It appears that two major concerns are stated in the letter. First, it is claimed that the drone strikes put the UK and US at risk because the drone strikes provide justification for terrorist strikes. Second, the letter expresses concern for the killing of innocent people in the drone strikes. There is also concern that the strikes do damage to Pakistan’s sovereignty.

Here is the description from the Express Tribune:

A squad of UK parliamentarians have written to President Barack Obama to stop drone attacks in Pakistan, Radio Pakistan reported on Thursday.

The 12 parliamentarians in a letter written to the United States said that the Britain and Western countries are under threat because drone attacks provide justification for future terrorist activities.

The letter also stated that innocent people are killed in drone strikes.

The parliamentarians said that the attacks are creating hatred for the US amongst Pakistanis and they are also harming a British allied country’s sovereignty.

Both Dawn and Pakistan Today list the same twelve MP’s (although in different order in their lists) as having signed the letter. From Dawn:

George Galway, Yasmin Qureshi, John Hemming, Jeraldko Famin, Paul Flain and Simon Disnek include members of House of Commons while Lord Nazir Ahmad, Lord Hussain, Lord Steel Acowood, Lord Jad, , Lord E Escadel and Lord Eubarry are from House of Lords who have signed the letter written to the US President.

This is a very interesting development, coming just on the heels of complaints from the left in Denmark:

Danish lawmakers are levelling unprecedented criticism at the US president, Barack Obama, for his use of remote-controlled attack drones in Pakistan, Somalia and Yemen.

Rasmus Helveg Petersen, Radikale foreign policy spokesperson, told Politiken newspaper that Obama’s actions mirror those of the terrorists he professes to be fighting against.

“It’s terrible,” said Petersen. “The United States has no right to carry out these types of executions of suspected political adversaries. It contravenes international law.”

Petersen added that executing political adversaries within another country’s borders was tantamount to terrorism.

But there is even more:

The comments came after Søren Pind, of the opposition party Venstre, in an interview with the magazine Ræson, likened the drone attacks to “assassination”.

“I criticised George Bush for allowing torture during his presidency,” Pind told Politiken. “But what he is doing is much worse and violates the principals of the Western world.”

Finally, the article quotes “Ole Wæver, who teaches political science at the University of Copenhagen” who points out that Obama has not lived up to the expectations of Danes and that he has “used up his goodwill account.”

With the opening ceremony of the London Olympics just hours away and the nonstop coverage of the Romney gaffe-orama, it will be very difficult for the drone letter to break into the British press, but if it does, it is hard to see how the Obama administration can avoid putting out a response of some sort.