OLC Lowers Its Standards for Retroactive Legal Reviews

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There’s an interesting passage in the DOJ IG discussion of Jack Goldsmith’s efforts to rewrite the Stellar Wind OLC memos (PDF 456).

The first passage describes Jim Comey permitting a lower standard of review to apply for activities already in process.

In explaining the rationale for the revise opinion, Comey described to the OIG his view of two approaches or standards that could be used to undertake legal analysis of government action. If the government is contemplating taking a particular action, OLC’s legal analysis will be based on a “best view of the law” standard. However, if the government already is taking the action, the analysis should instead focus on whether reasonable legal arguments can be made to support the continuation of the conduct.137

137 Goldsmith emphasized to us that this second situation almost never presents itself, and that OLC rarely is asked to furnish legal advise on an ongoing program because the pressure “to say ‘yes’ to the President” invariably would result in applying a lower standard of review. Goldsmith stated that OLC’s involvement in Stellar Wind was “unprecedented” because OLC is always asked to review the facts and formulate its advice “up front.”

If it was unprecedented on March 1, 2004, it quickly became common.

After all, Goldsmith was asked to consider how the Geneva Convention applied to various types of detainees in Iraq, after the Administration had already been and continued to render people out of that occupied country. And he was also in the midst of a review of the torture program.

Indeed, Daniel Levin, who would go on to reconsider torture approvals until Cheney booted him out of the way to have Steven Bradbury rubberstamp things, would have been a part of those discussions.

So when, in fall 2004, he was asked to reconsider torture, that lower standard of review would have been in his mind.

You could even say that this standard of review gave CIA an incentive to start and continue torturing Janat Gul, on whom they pinned their need to resume torture, even after they accepted he was not, as a fabricator had claimed, planning election year plots in the US. So long as they tortured Gul, Levin would be permitted to apply a lower standard to that torture.

In any case, if this was unprecedented then, I suspect it’s not anymore. After all, by the time David Barron first considered the drone killing memo for Anwar al-Awlaki, the Administration had apparently already tried to kill him once. And the Libyan war had already started when OLC started reviewing it (though they made a heroic effort to rule it illegal, which is a testament to just how illegal it was).

With regards to the Stellar Wind OLC, the discussion of what Goldsmith found so problematic is mostly redacted. Which is why I’m interested in his opinion that “‘we can get there’ as to [redacted] albeit by using an aggressive legal analysis.” That says that one of the things his opinion would approve — either the content collection of one-end foreign communications or the dragnet collection of telephone metadata — involved “aggressive legal analysis” even to meet this lower standard.

It’d sure be nice to know which practice was considered so marginally legal.

The Burr Family USE to Assassinate People in Light of Day

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At the end of a must-read article on how the people — whom it names — in charge of the CIA’s drone program are the same people who were in charge of the torture program, the NYT also reveals that Richard Burr joined Mike Rogers pressuring CIA to kill American citizen Mohanad Mahmoud Al Farekh — who recently got captured and charged in the US with material support for terrorism — be drone killed.

The Republican lawmakers, Senator Richard M. Burr of North Carolina and Representative Mike Rogers of Michigan, said during the closed sessions that the administration was being timid, and urged that [Mohanad Mahmoud Al] Farekh be hunted and killed.

Burr is, as he likes to point out, a relative of Aaron Burr, who killed Treasury Secretary Alexander Hamilton in a duel, a detail about which Burr reminded Treasury Secretary Jack Lew last year. It appears the Burr family no longer operates with the faux honor of dueling, but instead sits inside secret closets and demands CIA conduct assassination by remotely piloted drone.

And that’s why NYT’s decision to name names is so notable.

The C.I.A. asked that Mr. D’Andrea’s name and the names of some other top agency officials be withheld from this article, but The New York Times is publishing them because they have leadership roles in one of the government’s most significant paramilitary programs and their roles are known to foreign governments and many others.

The article names D’Andrea — the long-time head of CIA’s Counterterrorism Center, whom Gawker named last month but whom the WaPo continued to refer to under the pseudonym Roger last month, it named his replacement, Chris Wood, who has served in ALEC station and oversaw operations in Afghanistan and Pakistan, and it named the Operations Chief, Greg Vogel, who was Kabul Station Chief before leading the CIA’s paramilitary Special Activities Division.

These are the men who invite people like Rogers and Burr and Dianne Feinstein (who is a champion of D’Andrea) and their staffers to watch a monthly snuff film of drone operations and with it convince them that CIA should remain in charge of assassinations.

As the NYT notes in explaining why it was refusing to cede to John Brennan’s demand that the paper hide these identities, others know who they are. It’s just the public, those who pay their salaries and in whose name those assassinations are conducted, that didn’t know.

That, of course, prevents anyone — the family of Warren Weinstein, for example — from holding them to legal account.

But it also prevents us from holding Feinstein accountable when she shields the same people who oversaw the torture program she claims to abhor.

Perhaps the NYT’s decision to break the spell of false secrecy will demonstrate that these men’s identities were’t really secrets. They were rather just a vacuum of accountability.

The “Sitting Next to a Baddie” American Death Authorization Has become the “Sitting in a Baddie Compound”

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As Jim laid out, yesterday President Obama admitted that we killed two hostages, including American Warren Weinstein, in a drone operation in the Af-Pak border in January. In that same strike, we killed American citizen Ahmed Faruq, though he was not specifically targeted, Administration sources assure us. We also killed Adam Gadahn in an apparently unrelated strike, though we weren’t targeting him either, Administration sources assure us.

But I want to point to something rather remarkable in the language the Administration used yesterday to discuss this.

For years, the government has used the rationale that if an American is “sitting next to a baddie” then he becomes acceptable collateral damage in a drone strike.

That’s the rationale they gave when they killed Kamal Derwish in 2002: they were not targeting Derwish, they were targeting Abu Ali al-Harethi, but Derwish — far more threatening to the US at that moment because of his presumed role in recruiting Muslims in Lackawanna, NY — just was unlucky enough to be sitting next to him.

That’s the rationale they gave when they first missed Anwar al-Awlaki on December 24, 2009, a day before the government decided he had gone operational but at a time when Pete Hoekstra was making his continued existence an embarrassing issue for the Obama Administration. The Administration hadn’t been targeting Awlaki, they explained, they were instead targeting Nasir al-Wuhayshi and some other AQAP leaders, and Awlaki just happened to be present.

That’s the rationale they gave when they killed Samir Khan. He just happened to be sitting in the car when the CIA finally scorched Awlaki.

And that’s the rationale they gave when they killed Abdulrahman al-Awlaki: They weren’t targeting him, they were targeting Ibrahim al-Banna, though al-Banna turned out not even to be present.

That’s the rationale they gave, years later, when they admitted to killing Jude Kenan Mohammed: he was killed in a signature strike targeting the group he was in as a whole.

Never mind that in a number of these cases — the first Awlaki strike and the one that killed his son — there’s reason to believe they were specifically targeted. Never mind that in the case of Derwish and Khan knowing insiders wink winked that the government knew full well they’d be killing these men too when they struck the other target. The excuse has been — with the exception of the pursuit of Anwar al-Awlaki — that they were targeting another person (another known person, with the exception of the Jude Mohammed strike), and the American just happened to die as collateral damage.

But yesterday, that rationale changed.

Now, the government wasn’t so much targeting a person, but a compound, something that Josh Earnest was quite insistent on in his press conference yesterday.

Q    Thanks, Josh.  Let’s start just with some of the facts of what happened, to the extent that you can discuss them.  How many other people were killed in these two strikes, either local civilians or militants?

EARNEST:  Josh, I won’t be able to provide specific numbers on this.  I can tell you that in the specific strike that resulted in the death of Dr. Weinstein and Mr. Lo Porto, there was one other al Qaeda leader who was among those that was killed.  That is the — Ahmed Faruq, the American citizen al Qaeda leader.  This was a strike against an al Qaeda compound, and the result was the death of at least one al Qaeda leader.

I can tell you that the assessment that we have right now does not raise questions about additional civilian loss of life. Again, the reason for that is that the standard that was in place and, to the best of our knowledge, was closely followed by our counterterrorism professionals was to adhere to this near-certainty standard.  And that near-certainty standard applied to two things.

The first is near certainty that this was an al Qaeda compound that was used by al Qaeda leaders; that turned out to be true.  That assessment did turn out to be correct.  The other near-certainty assessment was that no civilians would be harmed if this operation were carried out.  Unfortunately, that was not correct, and the operation led to this tragic, unintended consequence.
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Brennan’s Addiction to Signature Strikes Killed Weinstein

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The US insists that the deaths of hostages Warren Weinstein and Giovanni Lo Porto were a “mistake”. Both the New York Times and Washington Post open their articles about the drone strike that killed them with descriptions couched in the language of error. The Times:

The first sign that something had gone terribly wrong was when officers from the C.I.A. saw that six bodies had been pulled from the rubble instead of four.

And in the Post:

After weeks of aerial surveillance, CIA analysts reached two conclusions about a compound to be targeted in a January drone strike: that it was used by al-Qaeda militants and that, in the moment before it was hit, it had exactly four occupants.

But as six bodies were removed from the rubble, the drone feeds that continued streaming back to CIA headquarters carried with them a new set of troubling questions, including who the two other victims were and how the agency’s pre-strike assessments could have been so flawed.

Consider that for a moment. Despite all the blathering from John Brennan about “near certainty” in his infamous drone rules (whose legal basis the government still steadfastly refuses to release), we are dealing yet again with deaths of innocents from a signature strike. In those strikes, the US kills without knowing precisely who the targets are. Instead, the US claims that the pattern of activities by those targeted match those of terrorists intent on striking out against the US. The more cynical among us note that there is hubbub over this strike merely because the innocents who were killed happen to be white instead of brown. But the outcome is the same: making the decision to kill based on incomplete evidence that doesn’t even include the actual identities of those in the crosshairs is bound to result in the collateral deaths of many who are not enemies of the US.

Recall that John Brennan made a power grab in the spring of 2012 to take charge of ordering signature strikes when JSOC told the White House that such strikes were not needed in Yemen. And, of course, Brennan immediately started using this tool as a political cudgel as well as the strategic weapon it was believed to represent. But let’s go for a moment to a part of Greg Miller’s Washington Post article linked above:

The deaths of the hostages follow other recent developments that have revealed divisions among the CIA and other agencies over whether to capture or kill a U.S. citizen.

Muhanad Mahmoud al Farekh was recently arraigned in a U.S. court on federal terrorism charges after he was captured by Pakistan and secretly flown to New York. His arrest raised questions about the frequency with which the U.S. government asserts that capturing terrorism suspects is not feasible. The CIA had been pushing to kill Farekh for more than a year before his arrest, current and former U.S. officials said.

Isn’t that interesting? It appears that Farekh was on CIA’s list of targets it would like to have killed in a targeted strike, with part of the justification for killing him being that it wouldn’t be feasible to capture him. And yet the Pakistanis did capture him. And that development points out an even bigger problem with the decision to hit the compound where Weinstein was killed: that compound is in the southern part of North Waziristan. Recall that Pakistan’s offensive to clear the tribal areas of terrorists began last June. See the map embedded in this post where I discussed the beginning of the offensive. Weinstein and Lo Porto were being held in the Shawal Valley, which is at the very southern end of North Waziristan. Miram Shah and Mir Ali, two of the hottest targets for US drone strikes sit in the central part.

Just a little more patience on the part of Brennan and his signature strike shop might have led to a very different outcome. In November, Pakistan’s military claimed that 90% of North Waziristan had been cleared of terrorists. And in the very same week of the strike that killed the hostages, Pakistan noted that the Shawal area was slated for clearing:

During a journalists briefing here, about the current visit of Chief of Army Staff General Raheel Sharif to Britain, he said operation Zarb-e-Azb was continuing successfully in North Waziristan and many areas including Mir Ali, Mirshah and Dattakhel were cleared of terrorists, many of whom were killed and arrested and their infrastructure was destroyed.

In these troubled areas, militants had set up infrastructure, training and call centres and they were making phone calls to people in other parts of the country for ransom, he added. Before start of the North Waziristan operation, Pakistan informed Afghanistan and International Security Assistance Force (ISAF), so that they could take action against terrorists who cross over the border.

Operations were continuing along the border areas with Afghanistan, with whom Pakistan had improved its relations and both countries were sharing intelligence, he added. He said in the next few months the remaining areas including Shawal would be cleared.

Although Pakistan’s military is not particularly noted for protecting citizens during these clearing actions in the tribal areas, it still stands out that Weinstein and Lo Porto were killed in Shawal on January 15 and Pakistan announced on the 18th that Shawal was next up for clearing. Would Pakistani forces have rescued the hostages? We will never know.

Even worse, Brennan was supposed to have stopped signature strikes in Pakistan. Returning to the Times article:

The strike was conducted despite Mr. Obama’s indication in a speech in 2013 that the C.I.A. would no longer conduct such signature strikes after 2014, when American “combat operations” in Afghanistan were scheduled to end. Several American officials said Thursday that the deadline had not been enforced.

Brennan will never give up his prized signature strikes. Greg Miller does note, though, that this strike was one of the last ones for “Roger”, who headed the counterterrorism center and was Brennan’s right hand man for signature strikes. But I’m pretty sure that we can count on Brennan to get Roger’s replacement up to speed on his prized tool very quickly.

Mike Rogers Wanted to Drone Kill an American Citizen for Training with al Qaeda?

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There has been some good commentary on NYT’s story on Administration debates over killing Mohanad Mahmoud al-Farekh, the American citizen who was captured and charged in federal court on April 2, after the Administration considered but then decided against drone-killing him. Both David Cole and Brett Max Kaufman ask raise some important points and questions. Of particular note, they ask what the fuck Mike Rogers was doing pushing DOD and CIA to kill a US citizen.

Yet neither of those pieces gets to something I’m puzzling over. Al-Farekh was charged in EDNY (Loretta Lynch’s district), but he was only charged with conspiracy to commit material support for terrorism, a charge that carries a 15 year maximum sentence. Basically, he is accused of conspiring with Ferid Imam who in turn trained Najibullah Zazi and his co-conspirators for their planned 2009 attack on the NY Subway system.

In approximately 2007, Farekh, an individual named Ferid Imam and a third co-conspirator departed Canada for Pakistan with the intention of fighting against American forces.  They did not inform their families of their plan before departing, but called a friend in Canada upon arrival to let him know that he should not expect to hear from them again because they intended to become martyrs.  According to public testimony in previous criminal trials in the Eastern District of New York, in approximately September 2008, Ferid Imam provided weapons and other military-type training at an al-Qaeda training camp in Pakistan to three individuals – Najibullah Zazi, Zarein Ahmedzay and Adis Medunjanin – who intended to return to the United States to conduct a suicide attack on the New York City subway system.  Zazi and Ahmedzay pleaded guilty pursuant to cooperation agreements and have yet to be sentenced; Medunjanin was convicted after trial and sentenced to life imprisonment.  Ferid Imam has also been indicted for his role in the plot.

But the evidence laid out in the complaint is rather thin, basically amounting to the second-hand reports that al-Farekh, like Zazi and his friends, traveled to Pakistan for terrorist training.

Were we really going to kill this dude with a drone because he got terrorist training in Pakistan? That’s it?

Now, it’s quite possible the government is just charging him with the crimes the evidence for which they can introduce in a trial — though note that the government got a FISC warrant to collect on him (though it’s possible this is drone-based collection, and so sensitive enough they wouldn’t want to use it at trial).

Drones spotted him several times in the early months of 2013, and spy agencies used a warrant issued by the Federal Intelligence Surveillance Court to monitor his communications.

It’s equally possible that al-Farekh will be indicted on further charges, a more central role in plotting attacks out of the tribal lands of Pakistan. Similarly, it’s possible that al-Farekh’s High Value Interrogation Group interrogation — reported as well in this WaPo story — provided valuable intelligence on other militants that will have nothing to do with his own trial.

Still, both the earlier WaPo story (written in part by Adam Goldman, who wrote the book on the Zazi case) and the NYT story hint that the claims made about al-Farekh’s activities in 2013 have proven to be overblown. The WaPo doesn’t provide much detail.

Officials said there were questions about how prominent a role Farekh played in al-Qaeda.

The NYT provides more.

But the Justice Department, particularly Attorney General Eric H. Holder Jr., was skeptical of the intelligence dossier on Mr. Farekh, questioning whether he posed an imminent threat to the United States and whether he was as significant a player in Al Qaeda as the Pentagon and the C.I.A. described.

[snip]

Once in Pakistan, Mr. Farekh appears to have worked his way up the ranks of Al Qaeda, his ascent aided by marrying the daughter of a top Qaeda leader.

American officials said he became one of the terrorist network’s planners for operations outside Pakistan, a position that included work on the production and distribution of roadside bombs used against American troops in Afghanistan.

Some published reports have said that Mr. Farekh held the third-highest position in Al Qaeda, but Americans officials said the reports were exaggerated.

His level in the Qaeda hierarchy remains a matter of some dispute. Several American officials said that the criminal complaint against him underplayed his significance inside the terrorist group, but that the complaint — based on the testimony of several cooperating witnesses — was based only on what federal prosecutors believed they could prove during a trial.

This, then — along with the explicit connection with the Awlaki case, based as it was, at least at first, on Umar Farouk Abdulmutallab’s interrogation and all the reasons to doubt it — seems the big takeaway. We almost killed this dude, but now all we can prove is that he trained in Pakistan.

Ironically, Philip Mudd argues for the NYT that we can’t capture these people because we’d have to rely on our intelligence partners.

But many counterterrorism specialists say capturing terrorism suspects often hinges on unreliable allies. “It’s a gamble to rely on a partner service to pick up the target,” said Philip Mudd, a former senior F.B.I. and C.I.A. official.

Of course, these are often the same people we rely on for targeting intelligence, including against both Awlaki and al-Farekh. What does it say that we’d believe targeting information from allies, but not trust them to help us arrest the guys they apparently implicate?

Whatever that says, the story thus far (it could change) is that al-Farekh was almost killed on inadequate evidence because CIA and DOD were champing at the bit. That ought to be the big takeaway.

 

Government’s Assassination of Anwar al-Awlaki Used “Significantly Different” EO 12333 Analysis

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Jameel Jaffer has a post on the government’s latest crazy-talk in the ongoing ACLU and NYT effort to liberate more drone memos. He describes how — in the government’s response to their appeal of the latest decisions on the Anwar al-Awlaki FOIA — the government claims the Court’s release of an OLC memo does not constitute official release of that memo. (Note, I wouldn’t be surprised if the government is making this claim in anticipation of orders to release torture pictures in ACLU’s torture FOIA suit that’s about to head to the 2nd Circuit.)

But there’s another interesting aspect of that brief. It provides heavily redacted discussion of the things Judge Colleen McMahon permitted the government to withhold. But it makes it clear that one of those things is a March 2002 OLC memo that offers different analysis about the assassination ban than the analysis used to kill Anwar al-Awlaki.

The district court also upheld the withholding of a March 2002 OLC Memorandum analyzing the assassination ban in Executive Order 12,333 (the “March 2002 Memorandum”). (CA 468-70; see CA 315-29). Although the district court noted that the OLC-DOD Memorandum released by this Court contained a “brief mention” of Executive Order 12,333, the district court concluded that the analysis in the March 2002 Memorandum is significantly different from any legal analysis that this Court held has been officially disclosed and for which privilege has been waived.

The statement here is carefully worded, probably for good reason. That’s because the February 19, 2010 memo McMahon permitted the government to almost entirely redact clearly explains EO 123333 and its purported ban on assassinations in more depth than the July 16, 2010 one; the first paragraph ends,

Under the conditions and factual predicates as represented by the CIA and in the materials provided to us from the Intelligence Community, we believed that a decisionmaker, on the basis of such information, could reasonably conclude that the use of lethal force against Aulaqi would not violate the assassination ban in Executive Order 12333 or any application constitutional limitations due to Aulaqi’s United States citizenship.

I pointed out that there must be more assassination analysis here. It almost certainly resembles what Harold Koh said about a month later, for which activists at NYU are now calling into question his suitability as an international law professor.

Fourth and finally, some have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.”

But the government is claiming that because that didn’t get disclosed in the July 2010 memo, it doesn’t have to be disclosed in the February 2010 memo, and the earlier “significantly different” analysis from OLC doesn’t have to be disclosed either.

At a minimum, ACLU and NYT ought to be able to point to the language in the white paper that addresses assassinations that doesn’t appear in the later memo to show that the government has already disclosed it.

But I’m just as interested that OLC had to change its previous stance on assassinations to be able to kill Awlaki.

Of course, the earlier memo was written during a period when John Yoo and others were pixie dusting EO 12333, basically saying the President didn’t have to abide by EO 12333, but could instead violate it and call that modifying it. Perhaps that’s the difference — that David Barron invented a way to say that killing a high ranking leader (whether or not he’s a citizen) didn’t constitute assassination because of the weapons systems involved, as distinct from saying the President could blow off his own EOs in secret and not tell anyone.

I suggested Dick Cheney had likely pixie dusted EO 12333’s ban on assassinations back in 2009.

But there’s also the possibility the government had to reverse the earlier decision in some other fashion. After all, when Kamal Derwish was killed in a drone strike in Yemen on November 9, 2002, the government claimed Abu Ali al-Harithi was the target, a claim the government made about its December 24, 2009 attempt to kill Anwar al-Awlaki, but one they dropped in all subsequent attempts, coincident with the February 2010 memo. That is, while I think it less likely than the alternative, it is possible that the 2010 analysis is “significantly different” because they had to interpret the assassination ban even more permissively. While I do think it less likely, it might explain why Senators Wyden, Udall, and Heinrich keep pushing for more disclosure on this issue.

One thing is clear, however. The fact that the government can conduct “significantly different” analysis of what EO 12333 means, in secret, anytime it wants to wiretap or kill a US citizen makes clear that it is not a meaningful limit on Executive power.

Did Authorizing Torture Make the National Security Council an Agency Subject to FOIA?

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Almost 3 years ago, I discovered that the judge in the ACLU torture FOIA, Alvin Hellerstein (who recently ordered the Administration to release images from torture), was trying to force the Administration to declassify a phrase making it clear torture had been authorized by the September 17, 2001 “Gloves Come Off” Memorandum of Notification. The phrase appeared on a January 28, 2003 Guidelines on Interrogation document signed by George Tenet (this post describes what great CYA including the phrase was).

In my reporting on it, I noted that National Security Advisor James Jones had secretly written a declaration in the suit arguing the phrase couldn’t be released. And I also noted that CIA’s own declarations conflicted about who had made torture a Special Access Program, CIA or the National Security Council.

Ultimately, however, the 2nd Circuit — in an opinion written by Judge Richard Wesley — reversed Hellerstein and permitted the Administration to keep that short phrase secret (though the Administration permitted that detail to be declassified for the Torture Report).

These issues have resurfaced in a related FOIA suit being reviewed by the 2nd Circuit (including Wesley and Judges Reena Raggi and Gerard Lynch).

Back in late 2012, Main Street Legal Services FOIAed the NSC for records on drone killing (including minutes of NSC meetings in 2011). The government refused to respond, arguing NSC is not an Agency subject to FOIA. So Main Street asked for discovery that might help it show that NSC is an Agency. It lost that argument with District Judge Eric Vitaliano, and this Appeal focuses on the issue of whether NSC is an Agency for purposes of FOIA or not.

In addition to pointing to statutory and historical reasons why NSC is an Agency, the appeal also points to things — including torture, but also including things like cybersecurity, crafting Benghazi talking points, and drone-killing — that were run out of NSC. The government, in response, argued that the President was very closely involved in NSC and presided over the Principals Committee, meaning NSC was too proximate to the President to be subject to FOIA. The response also keeps insisting that NSC is an advisory body, not anything that can make decisions without the President.

That back and forth took place in the first half of 2014.

Then, the Torture Report Summary got released, showing that CIA records indicate President Bush was not briefed on torture until 2006 but that NSC figures — Alberto Gonzales and Condi Rice, among others — told CIA torture was authorized. Main Street wrote a letter in February pointing to the evidence that the President was not in the loop and that NSC authorized torture.

The SSCI Report found that NSC committees, on which the President does not sit, debated, authorized, and directed CIA to apply specific interrogation techniques to specific detainees. In 2004, for example, CIA “sought special approval from the National Security Council Principals Committee” to use “enhanced interrogation techniques” on detainee Janat Gul. Thereafter, NSC principals met and “agreed that ‘[g]iven the current threat and risk of delay, CIA was authorized and directed to utilize” the techniques on Mr. Gul.

The question of who authorized torture thus became a central issue at the oral argument in this suit on March 2 (this discussion starts after 34:00). After Raggi raised this issue, Wesley went on with some urgency about the possibility that someone started torturing without the input of the President.

Judge Wesley: Are you saying then that anything the CIA did in terms of enhanced interrogation techniques clearly, was clearly a Presidential directive?

NSC Counsel Jaynie Lilley:  No, your honor —

Wesley: Well then, well if that’s not the case, its a very curious position for you to take because some of these bear heavy burdens. Some of these assertions that you’re making that the President is at the end of all these decision chains bear heavy burdens and I don’t quite understand it. Congress said sole duty is to advise and assist the President. If someone else decides to use enhanced interrogation techniques and we decide that this is done by the group, solely by the advisor, assistant to the President, then it’s the President’s decision is it not? Did the decision flow through the NSC?

Lilley: Your Honor, many decisions–

Wesley: Would it, structurally, I’ll it easier, would it structurally have flowed through the NSC as it’s currently structure pursuant to presidential order and an act of Congress, would a decision to conduct enhanced interrogation techniques have flowed through the NSC up to the President. Pursuant to the way it’s structured now.

Lilley: Your Honor, let me be sure I’m answering the question that your asking. There are decisions that are made on matters of national security policy that come through the various–

Wesley: Pursuant to law and the structure of the NSC who had the authority?  Did only one person have the authority to order enhanced interrogations techniques?

Lilley: Your Honor, –

Wesley [voice is rising]: Yes or no?!

Lilley: I cannot speak to individual decisions –

Wesley: Well, if you can’t tell me, then you’re telling me that then the President perhaps didn’t make that decision. And then you’re telling me that someone else did. And if someone else did, then I begin to have a problem. Because I have a hard time understanding how their sole function is to advise or assist the President if suddenly they decide, independent of any Presidential approval, that they can torture someone!

Lilley: Your Honor–

Wesley: It’s very simple Counselor, and I’ve been troubled by the government’s position on this throughout. I’ve been troubled — for twenty years the Office of Legal Counsel said that this was an Agency. And then suddenly in a letter, in 1994, for some reason the Agency flips. We have in the legislative record, we have the committee notes from the two committees, and what is one of the entities that’s listed when they decided to include the Executive office, what is one of the Agencies that Congress lists, one of the groups that Congress lists as an Agency? The NSC. Who created the NSC? The President didn’t. An act of Congress did. An Act of Congress creates two of the Subcommittees. A very curious advisor forced on the President — it sounds like a Separation of Powers issue to me. But, tell me. And then I won’t ask again. And if you don’t want to answer my question don’t answer.

Pursuant to the way the it is currently structured if in your view the NSC is solely an advisory authority, who had the authority to order enhanced interrogation techniques? Who?

Lilley: In any matter of national security policy, there are two places where decisions can be made. One by the President and one by that Agency with the statutory authority to take the act.

Wesley: So you’re telling me that the CIA had the authority to do that?

[snip]

Wesley: The Director of the CIA could have done this independent of the President’s directive?

Lilley: Your Honor, I cannot speak to that.

Wesley: But for purposes of this discussion you’re saying ‘not someone in the NSC’?

Lilley: The NSC could not — does not direct any individual Agency to take individual actions.

Wesley went onto to describe the plight of the CIA that might not want to do something (torture) it has been ordered to do by the NSC, “it’s on him, legally, not on the NSC.” “Yes, your Honor,” Lilley agreed.

While Wesley didn’t say so, that is, precisely, what Tenet argued when he noted Torture was done pursuant to Presidential order on his 2003 Interrogation document, dodging responsibility for torture. But if Lilley’s claim is correct, then CIA bears all the legal responsibility for torture.

At the end of the hearing, Wesley asked Lilley whether they intend to respond to Main Street’s letter. When Lilley said no, Wesley and Raggi specifically instructed Lilley to respond, noting actual page numbers.

In its response on March 16, the government — some members of which have been arguing for months that the NSC approved torture at every step of the process — newly asserted (ignoring the references that show Bush was never briefed until 2006) that George Tenet was only getting NSC’s advice; he was not being ordered or authorized by them.

Another cites a CIA official’s notes indicating that the Principals Committee “agreed” that CIA was “authorized and directed” to engage in certain activity, confirming the CIA had such authority, and that the then-Attorney General approved the resulting action. See id. at 345. These references confirm that the NSC functions in accordance with the advice and assistance role assigned to it by statute and by the President (currently in Presidential Policy Directive-1) as an interagency forum for coordination and exercises no independent decisional authority. The authority for the underlying decisions rested with the relevant heads of departments and agencies or the President himself.

Remember, DOJ has been claiming it never opened this document. Has it now done so?

But the SSCI evidence that Bush was never briefed is a point Main Street made in a letter last night.

Defendant still fails to explain who authorized the torture if not NSC, as CIA’s own records describe, especially given that CIA did not brief the President until years later.

A great deal of documentation shows that “NSC” (or rather, Dick Cheney and David Addington) authorized torture. But the NSC is trying to sustain the unsustainable position that a Memorandum of Notification not listing torture authorized torture, that Bush never got briefed on torture, and that all those meetings at which NSC members (and Dick Cheney) authorized torture didn’t amount to authorizing torture.

Because if it admitted the truth — that NSC or the Vice President authorized torture without any review by the President — then it would make all these documents, the 9000 documents President Obama got CIA to successfully hide, subject to FOIA.

And then we’d really start having some fun.

Update: I’ve added some to my transcription from the hearing and some additional analysis.

DOJ Pissed Away $2.1 Million on Drones that Don’t Work

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DOJ’s IG just released a report on the Department’s drone use. Its overall recommendation is that FBI get more drones, so it has them in locations around the country for quick use if they’re needed (sigh). It also found that FBI doesn’t have good records of how it partners with other agencies (notably, Customs and Border Patrol) to use their drones, which seems like it might present discovery problems.

But I’m most struck by how much money DOJ is blowing on drones that don’t work.

The IG reports — but seems unconcerned — that half of the drones FBI has bought are not operational.

Our September 2013 interim report found that between 2004 and 2013, the FBI spent approximately $3 million to acquire small UAS it deployed to support its investigations. As of August 2014, the FBI had acquired 34 UAS vehicles and associated control stations, of which it considered 17 vehicles and a smaller number of control stations to be operational.

I find this more troubling given that FBI claims only to have used drones in 13 investigations between September 2006 and August 2014. So are they losing more than one drone every time they use one for an investigation?

The IG is far more concerned about ATF’s sunk drone costs.

Our September 2013 interim report found that ATF possessed UAS and planned to deploy them operationally. Specifically, between September 2011 and September 2012, ATF’s UAS program spent approximately $600,000 to purchase three different types of rotary-wing UAS with a total of six UAS vehicles.

[snip]

ATF officials reported that ATF never flew its UAS in support its operations because TOB testing and pilot training revealed a series of technological limitations with the UAS models it had acquired. In particular, ATF determined the real-time battery capability for one UAS model lasted for only about 20 minutes even though the manufacturer specified its flight time was 45 minutes. ATF determined that the other two models of UAS acquired also were unreliable or unsuitable for surveillance. One UAS program manager told us ATF found that one of its smaller UAS models, which cost nearly $90,000, was too difficult to use reliably in operations. Furthermore, the TOB discovered that a gas-powered UAS model, which cost approximately $315,000 and was specified to fly for up to 2 hours, was never operable due to multiple technical defects.

In June 2014, the Special Operations Division concluded that ATF’s UAS were unsuitable for operational use, suspended all ATF UAS-related activities, and reassigned all UAS staff until after DOJ issues and ATF reviews new UAS policy recommendations. In September 2014, the TOB transferred its six UAS vehicles and other related equipment purchased prior to June 2014 to the Naval Criminal Investigative Service at no cost.

Although the OIG did not specifically audit ATF’s UAS contracts, we are troubled that the process ATF used to purchase these UAS resulted in ATF spending approximately $600,000 on UAS models it ultimately determined to have significant mechanical and technical problems that rendered them unsuitable to deploy in support of ATF operations.

By my calculation, all of ATF’s investments in drones ($600,000) and half of FBI’s investments in drones (half of $3 million) have been lost to drones that either never did or no longer work. $2.1 million on drones that don’t fly.

Don’t get me wrong. I’m not crazy about DOJ buying up a fleet of small drones for investigative uses they’re keeping inadequate paperwork on in the first place.

But neither am I happy about DOJ pissing away all this money on drones that don’t work.

The Unopened Torture Report and Trusting CIA on Other Covert Operations

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Yesterday, Pat Leahy issued a Sunshine Week statement criticizing Richard Burr for attempting to reclaim all copies of the Torture Report, but also complaining that State and DOJ haven’t opened their copy of the Torture Report.

I also was appalled to learn that several of the agencies that received the full report in December have not yet opened it.  In a Freedom of Information Act (FOIA) lawsuit seeking release of the full report, Justice Department and State Department officials submitted declarations stating that their copies remain locked away in unopened, sealed envelopes.  I do not know if this was done to attempt to bolster the government’s position in the FOIA lawsuit, or to otherwise avoid Federal records laws.  I certainly hope not.  Regardless of the motivation, it was a mistake and needs to be rectified.

The executive summary of the torture report makes clear that both the State Department and the Justice Department have much to learn from the history of the CIA’s torture program.  Both agencies were misled by the CIA about the program.  Both should consider systemic changes in how they deal with covert actions.  Yet neither agency has bothered to open the final, full version of the report, or apparently even those sections most relevant to them.

Today, Ron Wyden issued a Sunshine Week release linking back to a February 3 letter Eric Holder is still ignoring.  The letter — which I wrote about here — addresses 4 things: 1) the unclear limits on the President’s ability to kill Americans outside of war zones 2) the common commercial service agreement OLC opinion that should be withdrawn 3) some action the Executive took that Wyden and Russ Feingold wrote Holder and Hillary about in late 2010 and 4) DOJ’s failure to even open the Torture Report. Wyden’s statement, lumps all these under “secret law.”

U.S. Senator Ron Wyden, D-Ore., renewed his call for Attorney General Eric Holder to answer crucial questions on everything from when the government believes it has the right to kill an American to secret interpretations of law. The Justice Department has ignored these questions or declined to answer them, in some cases for years.

[snip]

“It is never acceptable to keep the basic interpretations of U.S. law secret from the American people. It doesn’t make our country safer, and erodes the public’s confidence in the government and intelligence agencies in particular,” Wyden said. “While it is appropriate to keep sources, methods and operations secret, the law should never be a mystery. Sunshine Week is the perfect time for the Justice Department to pull back the curtains and let the light in on how our government interprets the law.”

This may be secret law.

But I find it interesting that both Wyden’s letter and Leahy’s statement tie covert operations to the lessons from the Torture Report.

There are many reasons DOJ (and FBI) are probably refusing to open the Torture Report. The most obvious — the one everyone is pointing to — is that by not opening it, these Agencies keep it safe from the snooping FOIAs of the ACLU and Jason Leopold.

But the other reason DOJ and FBI might want to keep this report sealed is what it says about the reliability of the CIA.

The CIA lied repeatedly to DOJ, FBI, and FBI Director Jim Comey (when he was Deputy Attorney General) specifically. Specifically, they lied to protect the conduct of what was structured as a covert operation, CIA breaking the law at the behest of the President.

Of course, both DOJ generally and FBI specifically continue to partner with CIA as if nothing has gone on, as if the spooks retain the credibility they had back in 2001, as if they should retain that credibility. (I’m particularly interested in the way FBI participated in the killing of Anwar al-Awlaki, perhaps relying on CIA’s claims there, too, but it goes well beyond that.)

That’s understandable, to a point. If DOJ and the FBI are going to continue pursuing (especially) terrorists with CIA, they need to be able to trust them, to trust they’re not being lied to about, potentially, everything.

Except that ignores the lesson of the Torture Report, which is that CIA will lie about anything to get DOJ to rubber stamp criminal behavior.

No wonder DOJ and FBI aren’t opening that report.

John Brennan Predicts the Dissolution of the Nation-State Structure

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Rather than asking John Brennan challenging questions about the reform of CIA at Brennan’s Council on Foreign Relations event Friday, Charlie Rose instead asked John Brennan what he saw as the challenge to CIA’s analytical function over the next 15 years (around 39:50).

Here’s how Brennan responded:

The world is becoming more and more challenging. Nation-states are under increasing challenge and threat. More and more, we see individuals in different corners of the world who are identifying with sub-national groups and organizations. And so just the authority of nation-states and governments I think is being looked at in a different way than it did just 20 years ago. And so this is one of the things that we really have to be able to understand and anticipate and work with foreign governments because if you’re going to have basically the dissolution of the nation-state structure that we’ve had for centuries, it’s really going to be even a more chaotic world.

I don’t actually disagree with Brennan. I’ve been saying we’re headed for NeoFeudalism for over a decade.

That said, the policies of the US government are really fostering this change. Drones — as well as increased reliance on paramilitary forces — are one thing that contributes to this. So do trade agreements, especially the ones the US is trying to force on Asia and Europe right now. US demands that its corporations help the US spy in other countries is another factor.

Yet, nevertheless, the government is pursuing these policies even while recognizing that the dissolution of the nation-state system will bring much more chaos.

Brennan describes it like a bug, but US policy suggests it’s a feature.

Update: Take this prediction in tandem with James Clapper’s judgement that “Roughly half of the world’s currently stable countries are at some risk of instability over the next two years.”