The NSC’s May 2011 “Draft” Legal Analysis and the Continued Stonewalling of Ron Wyden

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I’m ultimately going to get around to arguing that the reason the government response to the ACLU targeted killing FOIA is so funky is because (mind you, this is a wildarsed guess) the CIA didn’t rely on the OLC memo authorizing Anwar al-Awlaki’s killing.

But for the moment I want to point out a far tinier but nevertheless related point.

On March 30 of this year, just before the government started scrambling for extensions on this FOIA, AUSA Sarah Normand called ACLU Attorney Eric Ruzicka to ask if ACLU would “limit the first prong of its FOIA requests” to DOJ and DOD. The first prong asked for,

All records created after September 11, 2001, pertaining to the legal basis in domestic, foreign and international law upon which U.S. citizens can be subjected to targeted killings, whether using unmanned aerial vehicles (“UAVs” or “drones”) or by other means.

Normand asked Ruzicka to agree to exclude any draft legal analyses, emails, and internal communication. Ruzicka agreed to waive draft analyses, but not emails and internal communications.

Most of the internal communications from the DOD and DOJ that would have been excluded which are described in the Vaughn indices aren’t all that interesting–almost all pertain to discussions leading up to the Situation Room debate over how transparent to be on these killings or to Jeh Johnson and Eric Holder’s speeches on targeted killing.

But there is a series of three email chains I find particularly interesting.

On May 18-19, 2011 attorneys at OLC and the National Security Council deliberated discussing “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.” Then, on May 19, lawyers at OLC, DOJ’s Civil and National Security Divisions, and at the Offices of the Associate and Deputy Attorney General discussed the same thing. Finally, on May 20, the DOJ lawyers and the National Security Council lawyers continued the discussion, this time including DOJ’s Office of Legislative Affairs.

This says, at a minimum, two things. First, the White House and DOJ were discussing what they called “draft” legal analysis as late as May 2011, 11 months after OLC finalized an opinion supposedly authorizing Anwar al-Awlaki’s killing but 4 months before the US killed him. And, that the discussion of that “draft” legal analysis pertained, in part, to some issue raised by Congress.

That, by itself, is interesting. Why was this legal analysis still considered draft analysis in May 2011? (And for what it’s worth, they were having similar deliberations in November 2011, after they had already killed Awlaki.)

But then there’s the likelihood that this discussion relates to persistent requests from Ron Wyden to get basic questions about targeted killing answered.

In a letter to Eric Holder on February 8, 2012  (so before DOJ tried to get ACLU to waive precisely this information) complaining about continued stonewalling of his questions about targeted killing, Wyden made it clear he called Holder in April 2011 to get these questions answered. Read more →

Is There a Pre-2001 OLC Opinion Authorizing Targeted Killing of US Citizen Terrorists?

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Update: I realize now this can’t be the explanation. I’ve just referred back to the original request and the ACLU actually did time-limit their general requests to records created after September 11, 2001. So maybe the issue relates to non-al Qaeda terrorists?

I’m still working through all the declarations submitted in the government’s response to the drone targeting FOIAs; I will have far, far more to say about what they suggest.

But for now I wanted to point to a detail in OLC Deputy Assistant Attorney General John Bies’ declaration that suggests OLC has a pre-2001 memo authorizing the targeted killing of US citizen terrorists.

As Bies’ declaration lays out, the three FOIAs at issue in this suit ask for OLC memos relating to the targeted killing of US citizens. To summarize:

  • Scott Shane asked for OLC memos since 2001 on the targeted killing of people suspected of ties to Al Qaeda or other terrorist groups
  • Charlie Savage asked for OLC memos on the targeted killing of a United States citizen who is deemed to be a terrorist
  • ACLU asked for all records on the legal basis under which US citizens can be subjected for targeted killings

That is, Shane put a start date on his FOIA–post 2001–and limited it to terrorist groups. Savage put no start date on it and didn’t specify which terrorist groups he was addressing. ACLU didn’t limit it with either a start date or ties to terrorist groups. Note, too, ACLU was looking for info on the killing of Abdulrahman al-Awlaki as well as his father and Samir Khan; Savage used language suggesting an interest in Anwar al-Awlaki, though he did not limit his request to the older Awlaki. Shane used no such limiting language.

As I’ve analyzed and will show at more length, the government gave inconsistent responses to these three FOIAs, even though on the surface they appeared to ask for the same information.

More interesting still is Bies’ claim in his declaration that the responses to Savage and the ACLU were limited to the recent spate of targeted killings of US citizens. Bies wrote,

By letter dated October 27, 2011, [OLC Special Counsel] Colburn responded to the Savage Request on behalf of the OLC. … Interpreting the request as seeking OLC opinions pertaining to al-Aulaqi, OLC neither confirmed nor denied the existence of such documents, pursuant to FOIA Exemptions One, Three, and Five.

[snip]

By letter dated November 14, 2011, Mr. Colburn responded to [ACLU lawyer Nate] Wessler on behalf of OLC, interpreting the request as seeking OLC opinions pertaining to those three individuals [Anwar al-Awlaki, Samir Khan, and Abdulrahman al-Awlaki] and informing him that, pursuant to FOIA Exemptions One, Three, and Five, OLC “neither confirms nor denies the existence of the documents in your request” because the very fact of the existence of nonexistence of such documents is itself classified, protected from disclosure by statute, and privileged.” [my emphasis]

Bies’ declaration had no language about Colburn “interpreting” Shane’s FOIA to pertain only to these killings in Yemen. In addition, as you can see from the letters Colburn sent (linked above), Colburn actually didn’t note his interpretation in his response letters to Savage and ACLU. I guess they were just supposed to guess.

And while this is just a wildarsed guess, the totality of these three requests and the caveats Bies made about the responses suggests that Colburn had to make such interpretations because of the open timeframe of the requests. That is, what is common to the Savage and ACLU requests but not the Shane one is the way they set no start point for their request.

Which suggests there may be OLC documents pertaining to the targeted killing of Americans (potentially as terrorists) dating back before the 2001 start point of Shane’s request. Who knows? Maybe there’s an OLC opinion authorizing the assassination of Black Panther Fred Hampton, for example (though the FBI would only fall under Savage’s request if considered “intelligence community assets”). If that’s correct, then is that OLC memo still on the books?

There are, I suspect, a number of other reasons why the government is so squirrely about this FOIA. But one of them may relate to documents lying around OLC’s archives from before the time 9/11 changed everything … or returned an earlier state of targeted killing.

Pro-Drone Leaks from the Leak Witch Hunt Committees

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There are several interesting details in this story describing the claimed attention with which the Intelligence Committees oversee drone killing.

But let’s start with the fact that it largely relies on anonymous staffers from the Intelligence Committees (as well as on-the-record comments Dianne Feinstein has made in other contexts, and two on-the-record quotes from Democratic Congressmen).

“You can see exactly what is going on,” said a senior congressional aide, who, like other officials, spoke about the highly classified program on the condition he not be identified.

[snip]

“I don’t know that we’ve ever seen anything that we thought was inappropriate,” one senior staff member said.

Still, the drone program is under far more scrutiny than in the past, congressional officials say.

[snip]

Members of the oversight committees are limited in their ability to challenge the CIA’s conclusions, a senior staff member cautioned. “I can watch video all day long — I’m not an imagery analyst,” he said. “I can only look to see if the description reasonably concurs with what my untrained eyes are seeing.”

This, in spite of the facts in the article–to say nothing of recent government court filings–making it clear that the program is compartmented.

The lawmakers and aides with the intelligence oversight committees have a level of access shared only by President Obama, his top aides and a small number of CIA officials.

Of particular note, while the article makes clear that HPSCI senior policy advisor and Naval Reserve intelligence officer Tom Corcoran (who it describes as someone with real expertise in reviewing intelligence) did not comment for the article, it does not say whether two former Ag Committee staffers working for Saxby Chambliss on SSCI commented or not.

There’s a lot else in this article deserving of attention: its silence about the oversight of JSOC strikes (which derives from the different oversight rules for the military), conflicting details about the Abu Yahya al Libi strike, the assumptions expressed about visual evidence and real knowledge.

But most of all, I find it notable that just weeks after these staffers’ bosses have declared war on leaks, they’re out there, leaking to spin their bosses’ desired narrative that the bosses exercise adequate oversight over a controversial program.

Anwar al-Awlaki FOIA: The CIA Speech the CIA Did Not Mention

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John Brennan and Eric Holder gave speeches–the government says–and therefore the CIA admits it has documents pertaining to targeted killing, but cannot say any more about those documents.

As I noted yesterday, the government explained its changed stance toward the NYT and ACLU FOIAs for the Anwar al-Awlaki OLC memo and related documents by pointing to a bunch of speeches. The motion mentioned speeches by four Administration officials officially–those of Harold Koh, Jeh Johnson, Eric Holder, and John Brennan.

One result of that analysis has been a series of speeches by the State Department Legal Adviser, by the Department of Defense General Counsel, by the Attorney General, and by the Assistant to the President for Homeland Security and Counterterrorism that have set forth for the American people the legal analysis and process involved in the determination whether to use lethal force.

It focuses on two in particular: those by Eric Holder and John Brennan.

Since the filing of these cases, senior U.S. officials have publicly addressed significant legal and policy issues pertaining to U.S. counterterrorism operations and the potential use of lethal force against U.S. citizens who are senior operational leaders of al-Qaida or associated forces. Bennett Decl. ¶ 17. These include speeches by Attorney General Eric Holder on March 5, 2012, and by Assistant to the President for Homeland Security and Counterterrorism John Brennan on April 30, 2012, addressing the circumstances in which it would be lawful to use lethal force against such U.S. citizens, and the process employed by the government in making decisions to employ targeted lethal force, respectively.

As noted by the citation to the Bennett declaration above, this focus comes from the declaration the Director of Clandestine Services, John Bennett, submitted in this suit.

However, the CIA has since determined that it can acknowledge the existence of responsive records reflecting a general interest in these broad topics without harming national security. These records include, for example, the speech that the Attorney General gave at Northwestern University Law School on 5 March 2012 in which he discussed a wide variety of issues pertaining to U.S. counterterrorism operations, including legal issues pertaining to the potential use of lethal force against senior operational leaders of al-Qa’ida or associated forces who have U.S. citizenship. The Attorney General explained that under certain circumstances, the use of lethal force against such persons in a foreign country would be lawful when, among other things, “the U.S. government . . determined, after a thorough and careful review, that the individual pose[d] an imminent threat of violent attack against the United States.” These records also include the speech that the Assistant to the President for Homeland Security and Counterterrorism gave on 30 April 2012, in which he addressed similar legal and policy issues related to the U.S. Government’s counterterrorism operations.

There’s one speech that never gets mentioned in all of this discussion, however: the one CIA General Counsel Stephen Preston made on April 10. While Preston engaged in a liberal use of hypothetical, his speech clearly addressed targeted killing.

Suppose that the CIA is directed to engage in activities to influence conditions abroad, in which the hand of the U.S. Government is to remain hidden, – in other words covert action – and suppose that those activities may include the use of force, including lethal force.

As I noted, Preston blathered on at length about the Osama bin Laden “triumph,” but the underlying context seemed to relate to Anwar al-Awlaki, as well.

And yet, neither the CIA nor DOJ wants to mention it now.

I’m not sure what to make of that, mind you. Perhaps the CIA speech is irrelevant because this FOIA response really is kabuki intended to distract from a DOD document search conducted before the government had acknowledged its targeted killing programs. Perhaps the CIA speech goes unmentioned because doing so would constitute further acknowledgment of CIA’s involvement, meaning it would have to turn over more. Perhaps the CIA speech goes unmentioned because it appeals to inherent Presidential authority rather than the AUMF usually used to justify the Awlaki killing.

In short, I don’t know what to make of the CIA’s silence about the CIA’s own speech on targeting killings. But the silence sure seems notable.

After Month of False “Transparency,” Administration Invokes Secrets Again

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During the entire past month of leaks on targeted killings, I suspected that when the government finally got around to responding to the NYT and ACLU FOIAs for the OLC memo authorizing Anwar al-Awlaki’s death, it would once again claim the topic it had been leaking profusely about was too secret to release.

Call me cynical, but I’m still waiting for the Administration to say all this non-specific disclosure means it can tell the ACLU to take a hike.

They’re getting pathetically predictable.

The Executive Branch has determined that, while the government can acknowledge the existence of some documents responsive to the FOIA requests that form the basis of this lawsuit, for the most part it cannot provide public details regarding the classified documents that are withheld; even to describe the numbers and details of most of these documents would reveal information that could damage the government’s counterterrorism efforts.

There are two things that are especially illegitimate about this response. The response points to two of the speeches given precisely to provide a false sense of transparency about its assassination program.

One result of that analysis has been a series of speeches by the State Department Legal Adviser, by the Department of Defense General Counsel, by the Attorney General, and by the Assistant to the President for Homeland Security and Counterterrorism that have set forth for the American people the legal analysis and process involved in the determination whether to use lethal force.

[snip]

Since the filing of these cases, senior U.S. officials have publicly addressed significant legal and policy issues pertaining to U.S. counterterrorism operations and the potential use of lethal force against U.S. citizens who are senior operational leaders of al-Qaida or associated forces. Bennett Decl. ¶ 17. These include speeches by Attorney General Eric Holder on March 5, 2012, and by Assistant to the President for Homeland Security and Counterterrorism John Brennan on April 30, 2012, addressing the circumstances in which it would be lawful to use lethal force against such U.S. citizens, and the process employed by the government in making decisions to employ targeted lethal force, respectively.

[snip]

Because the CIA is a critical component of the national security apparatus of the United States, and because the speeches covered a wide variety of issues relating to U.S. counterterrorism efforts, it does not harm national security to reveal that copies of the Attorney General’s and Mr. Brennan’s speeches exist in the CIA’s files.

Of course, within minutes of the completion of Brennan’s speech, I and others noted that it was obviously misleading since it focused only on targeted killings and not signature strikes. Then as the flood of information on the drone program continued, it became even more clear how much Brennan’s speech served as self-serving propaganda.

When Brennan gave his drone speech on April 30, I–and a few other people–noted that the speech was already outdated. Brennan did admit, unequivocally, that we use drones to kill people.

So let me say it as simply as I can.  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-Qaida terrorists, sometimes using remotely piloted aircraft, often referred to publicly as drones.

Yet he spoke repeatedly of targeting specific individuals.

Without question, the ability to target a specific individual, from hundreds or thousands of miles away, raises profound questions.

Read more →

The Machine Approving the Failing Flying Robots

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As I noted earlier this week, drones have proven to be very expensive failures in the last few weeks.Yesterday, Danger Room described yet another example, the Army’s Gray Eagle (and since I obsess about these things, note the failed chip).

Beginning in March 2011, “poor reliability across all major subsystems” led to delays [in the Gray Eagle program] that would seemingly never end, according to a report from Edward Greer, the deputy assistant secretary of defense for developmental test and evaluation. During the same month, a Gray Eagle drone crashed in California after a faulty chip blocked a subsystem from sending commands to “a portion of the aircraft’s flight control surfaces,” Col. Timothy Baxter, the Army’s project manager for unmanned aircraft systems, elaborated in an e-mail to Inside Defense.

“Flight testing was suspended,” Greer’s report added. The faulty chip was replaced and testing resumed, but the Army was now left with fewer available flight hours. The drone’s mean times between failures — or the average time the drone or a component works without failure — is also short. First, the drone itself has an average failure every 25 hours, short of a required minimum of 100 hours. The drone’s ground control station has a rate of 27 hours before a failure, short of a required 300. The Army has since lowered the requirement to 150 hours. The Gray Eagle’s sensors fare a bit better: 134 hours to 250 hours required.

Then the Gray Eagle was delayed again last October. The report concludes that for the 2011 fiscal year, the Gray Eagle is meeting only four of seven “key performance parameters,” and the drone’s “system reliability continues to fall short of predicted growth,” which could be a problem for the upcoming tests scheduled for August.

In spite of these failures, the government is pushing to accelerate our embrace of drones.

Here’s why.

In the Center for Investigative Reporting’s coverage of the DHS report I examined earlier in the week (which includes a number of additional examples where drones failed to perform as promised), they quote co-Chair of the Drone caucus and Homeland Security Committee member, Henry Cuellar, simply assuming “they” had a strategic plan.

Rep. Henry Cuellar, D-Texas, who has championed drones as the Democratic co-chairman of the Congressional Unmanned Systems Caucus, said that Customs and Border Protection has to go back to the basics and come up with a sound strategic plan for its drones.

“The first thing any agency should have is a strategic plan. I assumed they had a plan,” said Cuellar. “We have to know where we are going before we start buying any more of the assets.”

Among Cuellar’s top donors are Global Atomics, the maker of the Predators CBP can’t use effectively as well as the Gray Eagle that keeps failing, as well as Boeing and Honeywell, which also sell UAVs.

Meanwhile, Republic Report points to an even more troubling example of failed oversight: the almost $500,000 a Northrop Grumman lobbyist was advanced to spend some time in Congress overseeing–among other things–the historically wasteful F-35 program and Northrup Grumman’s Global Hawk drone (the one that crashed earlier this week).

In 2011, after Republicans seized the House of Representatives in a landslide victory, the House Armed Services Committee, which oversees the military, gained a new chairman, Representative Buck McKeon (R-CA). As with most leadership changes, McKeon and his committee hired new professional staff. Thomas MacKenzie, a vice president at Northrop Grumman, was tapped to work for the committee beginning in March of 2011.

Read more →

The Soon to Be Announced War in Yemen

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In response to my speculation that the Administration might be treating UndieBomb 2.0 as one part of a larger secret including our war against Yemeni insurgents led out of the NSC, a reader Mark Hosenball alerted us to Mark Hosenball’s reporting that drone strikes are not included among the leak investigations.

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.

Most detailed information on the drone wars, which were initiated by the George W. Bush administration but expanded by President Barack Obama, is highly classified, officials said.

But Obama and top administration officials, including White House counter-terrorism chief John Brennan, recently have been alluding more openly to drone operations in public remarks, and detailed news coverage has been widespread.

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 requested anonymity to discuss sensitive information.

By contrast, the CIA did file a “crime report” following publication by the Associated Press last month of a report disclosing the foiling of a plot by Yemen-based Al Qaeda in the Arabian Peninsula to attack an airliner using a newly designed underwear bomb, sources said.

It’s worth remembering, btw, that Hosenball was the person who reported that John Brennan revealed information that led Richard Clarke to learn that UndieBomb 2.0 was actually carried out by a Saudi asset. Just saying.

Meanwhile, the AP reports that the White House is going to acknowledge our undeclared wars in Yemen and Somalia in a report to Congress today.

For the first time, the White House’s semiannual report to Congress on the state of U.S. combat operations abroad mentions what has been widely known for years but never formally acknowledged: The U.S. has taken “direct action” against al-Qaida members in Yemen and Somalia.

All this comes in advance of a June 20 deadline (I will be on a beach in England with the in-laws) in one of the ACLU’s FOIAs on drones (the one on the Awlaki OLC memo) in which the CIA will have to decide whether it can confirm that it has a drone program.

Call me cynical, but I’m still waiting for the Administration to say all this non-specific disclosure means it can tell the ACLU to take a hike.

Ultimately, though, we have yet to see whether the kill list stories–which the AP reported to be out of date before they came out–will be presented in FOIA response as the current state of affairs in our drone war in Yemen.

Update: Here’s the language on Yemen.

The U.S. military has also been working closely with the Yemeni government to operationally dismantle and ultimately eliminate the terrorist threat posed by al-Qa’ida in the Arabian Peninsula (AQAP), the most active and dangerous affiliate of al-Qa’ida today. Our joint efforts have resulted in direct action against a limited number of AQAP operatives and senior leaders in that country who posed a terrorist threat to the United States and our interests.

The United States is committed to thwarting the efforts of al-Qa’ida and its associated forces to carry out future acts of international terrorism, and we have continued to work with our CT partners to disrupt and degrade the capabilities of al-Qa’ida and its associated forces. As necessary, in response to the terrorist threat, I will direct additional measures against al-Qa’ida, the Taliban, and associated forces to protect U.S. citizens and interests. It is not possible to know at this time the precise scope or the duration of the deployments of U.S. Armed Forces necessary to counter this terrorist threat to the United States. A classified annex to this report provides further information.

Very interesting, particularly the nod to the classified annex, which presumably is more forthcoming about all the insurgents we’ve now promoted into “operatives and senior leaders” than we get here. And what’s that construction about, anyway? “Operatives and senior leaders”??? To say the least, the order is odd.

Update: the comment from Hosenball was not from him himself–I’ve changed the post accordingly.

Hugo Chavez’ Balsa Wood Drone

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There were two very fascinating pieces of news out of Venezuela today.

First, Venezuela has officially surpassed Saudi Arabia in terms of proven petroleum reserves.

Venezuela surpassed Saudi Arabia to become the world’s largest holder of proven oil reserves, a resource that President Hugo Chavez promises to tap if he gets re-elected in October.

The South American country’s deposits were at 296.5 billion barrels at the end of last year, data from BP Plc (BP/) show. Saudi Arabia held 265.4 billion barrels, BP said yesterday in its annual Statistical Review of World Energy.

[snip]

Venezuela now holds 18 percent of the world’s reserves, according to BP data.

[snip]

Saudi Arabia now trails Venezuela with a 16 percent share of world proven oil reserves, according to the report. Canada ranks third with 175.2 billion barrels, or 11 percent of total, unchanged from the revised number for 2010.

While Saudi oil remains a lot easier to extract and refine, the assholes holding us by the nuts in the Middle East are now officially second fiddle to the asshole we tried to overthrow a decade back. Lucky for us, the guy in charge of Canada right now is an asshole who likes to suck up to America.

This state of affairs may be one reason why Chavez just rolled out Venezuela’s very own drone. In terms of capabilities, Chavez’ drone is not much more sophisticated than the balsa-wood and duck tape contraption Saddam had which Bush used to help drum up the Iraq War.

The drone has a range of 100 kilometers (60 miles), can reach an altitude of 3,000 meters (nearly 10,000 feet) according to General Julio Morales, head of the state-run Cavim arms manufacturer, which developed the aircraft.

Read more →

“The Yemeni situation and … the Iranian cyber situation”

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As MadDog noted yesterday, Dianne Feinstein seemed to answer a question I’ve written about here and here regarding the scope of the leak investigations.

She said the U.S. attorneys would not face political pressures from the Obama administration and would “call the shots as they see them.”

“We can move ahead much more rapidly,” Feinstein said. “Instead of one special prosecutor, you essentially have two here, one is the Yemeni situation and the other is the Iranian cyber situation. I think you’re going to get there much quicker.”

I’m not sure I agree with MD, though, that “the UndieBomb 2.0 and the Stuxnet leaks are the ones being investigated,” meaning implicitly that just those two “leaks” are being investigated.

DiFi’s quote seems to confirm that there is a distinct investigation into the source of the detail (one of the only new parts of David Sanger’s StuxNet reporting) that Israel let StuxNet free, possibly deliberately. Since Eric Holder suggested there was a jurisdictional component to his choice of US Attorneys on these investigations, we can assume that Rod Rosenstein, US Attorney for the National Security Agency, will investigate that alleged leak.

But what does DiFi include when she says, “the Yemeni situation”? Does it include only the leaks about UndieBomb 2.0? And if so, why isn’t it being investigated out of Eastern District of VA, the CIA’s US Attorney district, which purportedly had a lead on that operation in the US?

Further, MD suggested (though did not say explicitly) this means they’re not investigating the drone targeting leaks.

Now, as I’ve noted, one possible reason they wouldn’t investigate the drone targeting “leaks” would be if the stories reported falsehoods or–more charitably–a drone targeting process that was no longer in place, as the AP has reported to be the case and the White House, in their response to the AP story, seemed to confirm. That is, one possible reason why they wouldn’t investigate the “leaks” about drone targeting would be because those stories did not report accurate classified information (and I’ll remind here that the Klaidman story differs in some notable ways from the Joby Warrick story, which we now know came in part from Rahm Emanuel’s effort to publicize Baitullah Mehsud’s killing).

But there’s another possibility. I’m struck by DiFi’s description of “the Yemeni situation” rather than–as most people refer to it–the “thwarted” bomb “plot.” It’s possible that in DiFi’s mind–the mind of a Gang of Four member who has presumably been briefed on our ongoing operations in Yemen–that the leak of the bomb sting, the leak of the Saudi role in it, and the stories that made it clear that John Brennan is running a secret war against Yemeni insurgents using signature strikes out of the NSC largely at the behest of the Saudis all constitute for her “the Yemeni situation.” UndieBomb 2.0 is a part of that secret war–perhaps the legal justification for US involvement in it (and also a useful way to remove an asset and a key handler before the drones start wreaking havoc). But if this speculation is right, it may well be the other details–the report that this war is being run out of NSC, the details that make it clear we’re targeting insurgents, not just AQAP, the fact that we’re clearly in an undeclared war–that DiFi worries about most.

Mind you, this is all supposition. It may be that DiFi was just using shorthand for the UndieBomb 2.0 plot. But to a great degree, all the stories about drone targeting were efforts to expose–and then cover up–the war we’re engaging in Yemen. And that does seem like a secret the Administration is trying to prevent the American public from learning about.

The Baitullah Mehsud Propaganda

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I have twice before noted some curious details about Joby Warrick’s telling of the events leading up to Baitullah Mehsud’s death. I noted that it is another example–like the Iraq War–of an attack justified by nukes in which the nukes were ultimately never found. And I noted there are some significant differences between the NYT’s version of the story and Joby Warrick’s. Daniel Klaidman apparently tells his own version in his book, which I hope to read next week.

Mind you, I’m not saying that any of these journalists is telling the complete story or even that any one journalist presents a story that is entirely true, I’m just noting that different Administration sources are feeding different stories.

Last week Ben Wittes transcribed the complete passage from Klaidman’s book that describes how Rahm Emanuel decided to publicize Baitullah’s killing for political benefit.

When they finally took Mehsud out in August 2009, [White House Chief of Staff Rahm] Emanuel celebrated. He had a hawkish side to him, having volunteered with the Israeli Defense Forces as a civilian during the 1991 Gulf War. But above all, Emanuel recognized that the muscular attacks could have a huge political upside for Obama, insulating him against charges that he was weak on terror. “Rahm was transactional about these operational issues,” recalled a senior Pentagon official. “He always wanted to know ‘how’s this going to help my guy,’ the president.”

Though the program was covert, Emanuel pushed the CIA to publicize its covert successes.  When Mehsud was killed, agency public affairs officers anonymously trumpeted their triumph, leaking colorful tidbits to trusted reporters on the intelligence beat. Newspapers described the hit in cinematic detail, including the fact that Mehsud was blown up on the roof of his father-in-law’s compound while his wife was massaging his legs. [italics Wittes’, bold mine]

Here’s how Warrick describes the killing in his book.

It was now 1:00 A.M. in the Paksitani village. Baitullah Mehsud, leader of the Pakistani Taliban and chief protector of the Jordanian physician Humam al-Balawi, now lay on his back, resting as the IV machine dripped fluid into his veins. At his feet, a pair of young hands, belonging not to a doctor, as the CIA supposed, but to his new wife, were massaging his swollen legs. Barely aware of the buzzing distance drone, oblivious of the faint hissing of the missile as it cleaved the night air, he took a deep breath and looked up at the stars.

The rocket struck Mehsud where he lay, penetrating just below the chest and cutting him in two. A small charge of high explosives detonated, hurling his wife backward and gouging a small crater in the bricks and plaster at the spot where she had knelt. The small blast reverberated against the nearby hills, and then silence.

Overhead, the drones continued to hover for several minutes, camera still whirring. A report was hastily prepared and relayed to Panetta at the White House.

Two confirmed dead, no other deaths or serious injuries. Building still stands. [italics original, bold mine]

That is, while Klaidman is too polite to say it, this account is the one that derives from Rahm’s decision to publicize Mehsud’s killing. (Warrick sources these details to “three U.S. intelligence officials involved in the planning or oversight of the operation.”)

Now, the NYT reveals that some sources say there were other civilian casualties.

Mr. Obama, through Mr. Brennan, told the C.I.A. to take the shot, and Mr. Mehsud was killed, along with his wife and, by some reports, other family members as well, said a senior intelligence official.

This doesn’t mean Warrick’s version of the drones originally reporting there were no other casualties is incorrect on that front–after all, drones don’t provide perfect intelligence, contrary to what their boosters say, and it’s possible that reports of other casualties came later from HUMINT. But if there were other casualties, it probably means many of these cinematic details about the pinpoint nature of the strike–Meshud being cut in two and his wife being blown back but the strike leaving only a small crater–are not entirely true.

Again, I’m not saying any of these journalists are fully capturing the truth; what they’re telling is what Administration sources have told them, and I doubt NYT and Klaidman’s sources have any less of an agenda than Warrick’s did. And note all the details about Mehsud’s death distract from the way we tried to get to him by first killing one of his clan-members, then targeting that man’s funeral, which Warrick does include; Warrick was reporting on our funeral targeting tactic before TBIJ did, to great controversy.

But I am noting that this cinematic picture of very controlled killing (even the killing of a young woman who was probably pushed into this marriage as a teenager) comes from a decision from Rahm to push such picture for political advantage.

One more thing. The killing of Mehsud’s commander and then Mehsud and his young wife and maybe her family, reportedly justified by intelligence on nukes that never materialized? Mehsud claimed direct credit for Faisal Shahzad’s attempted attack on Times Square, and al-Balawi killed 7 CIA officers at Khost in direct revenge for the killing of Mehsud. These are some of the most serious attacks on us or attempts in recent years, both stemming from this attack on someone whose aspirations to attack us may never have been real beforehand.