Administration Complains that Others Are Bringing Transparency It Refuses To on Its Drone Strikes

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In a quote for a WaPo story on the Administration’s credibility problems on its Afghanistan claims, a senior Administration official complained that their Afghan plans got leaked before they wanted them to.

There are people at every piece of this — the Taliban, Islamabad, Kabul and Washington” — who object to or are trying to influence elements of the emerging strategy, a senior administration official said, speaking on condition of anonymity to talk more candidly. “They use leaking as a tool.”

Leaking as a tool, even by those in power in DC! Imagine that!?!?

Meanwhile, in the NYT article on the Bureau of Investigative Journalism’s report on the way Obama’s drone strikes have targeted rescuers and funeral attendees, another senior Administration official launches this cowardly anonymous attack.

A senior American counterterrorism official, speaking on the condition of anonymity, questioned the report’s findings, saying “targeting decisions are the product of intensive intelligence collection and observation.” The official added: “One must wonder why an effort that has so carefully gone after terrorists who plot to kill civilians has been subjected to so much misinformation. Let’s be under no illusions — there are a number of elements who would like nothing more than to malign these efforts and help Al Qaeda succeed.”

Mind you, that anonymous coward doesn’t actually dispute anything in the BIJ report. Instead, he or she just questions the motives of aiming to bring transparency to our drone program, insinuating that doing the hard work of counting the innocent victims of the drone strikes equates to sympathizing with al Qaeda.

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The Administration’s Many Excuses for Hiding Its Targeted Killing Memo

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Remember this article? It describes the debate within the Administration over how readily and extensively to acknowledge the US killing of Anwar al-Awlaki. As it describes, the debate was at least preliminarily resolved at a Situation Room meeting in November.

The issue came to a head at a Situation Room meeting in November. At lower-level interagency meetings, Obama officials had already begun moving toward a compromise. David Petraeus, the new CIA director whose agency had been wary of too much disclosure, came out in support of revealing the legal reasoning behind the Awlaki killing so long as the case was not explicitly discussed. Petraeus, according to administration officials, was backed up by James Clapper, the director of national intelligence. (The CIA declined to comment.) The State Department, meanwhile, continued to push for fuller disclosure. One senior Obama official who continued to raise questions about the wisdom of coming out publicly at all was Janet Napolitano, the Homeland Security director. She argued that the calls for transparency had quieted down, as one participant characterized her view, so why poke the hornet’s nest? Another senior official expressing caution about the plan was Kathryn Ruemmler, the White House counsel. She cautioned that the disclosures could weaken the government’s stance in pending litigation. The New York Times has filed a lawsuit against the Obama administration under the Freedom of Information Act seeking the release of the Justice Department legal opinion in the Awlaki case. (The department has declined to provide the documents requested.)

It came down to what Denis McDonough, the deputy national-security adviser, cheekily called the “half Monty” versus the “full Monty,” after the British movie about a male striptease act. In the end, the principals settled on the half Monty. As the State Department’s Koh continued to push for the maximum amount of disclosure, McDonough began referring to that position as “the full Harold.”

Note especially the stance of Kathryn Ruemmler, the White House Counsel, who argued that any disclosures on the Awlaki killing “could weaken the government’s stance in pending litigation.”

That is, Ruemmler argued the Administration couldn’t voluntarily provide information about Awlaki’s killing, because it might mean it would have to involuntarily give that information up pursuant to a lawsuit over that information. Huh?

Since November, both the NYT (on December 20, 2011) and the ACLU (yesterday) have sued to get the Awlaki memo under FOIA (the ACLU is also suing to get the underlying evidence, including that relating to Samir Khan and Awlaki’s son Abdulrahman).

So I wanted to compare the different responses different agencies gave the NYT and ACLU around the same time that many top Administration officials were advocating for some kind of transparency even while the White House Counsel was arguing that doing so might lead to transparency. Here’s how the government responded to these FOIAs when (I’ve not noted the ACLU appeals, but all were appealed before the subequent follow-up):

Around June 2010: OLC completes Awlaki memo

June 11, 2010: NYT’s Scott Shane FOIAs DOJ OLC for memos on targeted killings

October 7, 2011: NYT’s Charlie Savage FOIAs OLC for memos on targeting killings

October 19, 2011: ACLU FOIAs Anwar al-Awlaki OLC memo, underlying evidence supporting it, and information relating to Samir Khan and Abdullah al-Awalaki

October 27, 2011: OLC denies both NYT requests under FOIA exemptions (b)(1), (b)(3), and (b)(5), and, in response to Shane’s request, also notes that with regards to other agencies, “neither confirms nor denies the existence of the documents” in the request

October 27, 2011: DOJ Office of Information Policy grants ACLU’s request for expedited processing but determines the request fell within “unusual circumstances” so it could not meet the statutory deadline

October 31, 2011: DOD denies ACLU’s request for expedited processing and also claimed “unusual circumstances”

November 2011, unknown date: Situation Room meeting at which Principals decide to pursue a “half monty” strategy of limited release of information on Awlaki

November 4, 2011: NYT appeals its denial

November 7, 2011: USSOCOM denies ACLU’s request for expedited processing and determined the request fell within “unusual circumstances”

November 14, 2011: OLC denies ACLU’s request under FOIA exemptions (b)(1), (b)(3), and (b)(5)

November 17, 2011: CIA denies ACLU’s FOIA “pursuant to FOIA exemptions (b)(1) and (b)(3)” and claims that the “fact of the existence or nonexistence of requested records is currently and properly classified”

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The Non-Counterterrorist Drone Loophole: Did Clapper Admit We Targeted Iranian Scientists?

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One of the most interesting exchanges in yesterday’s Threat Assessment hearing occurred between Ron Wyden and James Clapper–with David Petraeus, whom Wyden calls out, observing silently (the exchange starts at 1:01).

Wyden: Let me wrap up with you Director Clapper on an issue that I’ve asked about before at this open hearing. General Petraeus knows about this, this is a question about the use of force and a speech that was given by Mr. Koh, Harold Koh of the State Department, a lawyer. Let me note at the beginning it’s a matter of public record that the intelligence community sometimes takes direct action against terrorists and this direct action sometimes involves the use of lethal force. And as you know Director [sic] Koh gave a speech outlining our policy with respect to various terrorist groups, talked about detention, talked about the use of unmanned drones and noted that under US law, the use of force against terrorist groups is permitted by Congressional authorization, while under international law it is permitted by America’s right to self defense. But in spite of having asked about this on a number of occasions, and General Petraeus, you know that I, too, share the Chair’s view with respect to your working with us here on this committee and your being forthright, I’ve not been able to get an answer to this specific question. And I would like to know whether that speech that Mr. Koh gave contained unstated exceptions for intelligence agencies?

Clapper: With respect to counterterrorism, it does not. So it applies to all components of the government involved in counterterrorism be it military or non-military.

Wyden: Are there other exceptions other than counterterrorist activities?

Clapper: I believe his speech dealt with counterterrorism.

Wyden: So you believe that his speech, the text of the speech–cause this would be important–applies to all agencies. It applies to the intelligence community, his entire speech, the overall thrust of the speech applies to all of the intelligence community.

Clapper: With respect to counterterrorism, yes.

Now, it seems clear that Wyden is referring to the portion of Koh’s speech that deals with drone strikes, which is reproduced in full below the line.

And my impression is that Wyden–who emphasizes targeting terrorists when he asks the question–was asking whether there was an exception to the principles of distinction and proportionality for the CIA when they used drones. Or, to put it more plainly, Wyden seemed to be asking whether the CIA could use drones to target civilians.

My guess is that Petraeus has refused to answer that question not to hide a CIA exception for the use of drones with civilian terrorists (say, with Anwar al-Awlaki) but rather to hide the CIA involvement in targeting of civilians in other contexts.

That’s the implication of Clapper’s response: “with the respect to counterterrorism, yes.” And Wyden’s expression as he delivers the question, “Are there other exceptions other than counterterrorist activities?” is worth watching.

There may be further confusion stemming from the language of Koh’s speech. While he was, in this section, specifically addressing “the Law of 9/11,” he does claim that his comments apply to “all of our operations involving the use of force.” Clapper’s caveat seems to belie that claim.

Koh’s language also addressed the use of force generally, not just those dealing with drones. We do use drones for missions outside of counterterrorism–including in drug operations, so Clapper’s caveat might suggest the CIA can target civilians in such context.

But if I had to guess, I’d say this had to deal with non-drone use of lethal force, possibly the assassinations of Iranian nuclear scientists. Was Clapper suggesting CIA targeted civilian nuclear scientists?

And while we may not have attached the bombs to Iranian civilian scientists’ cars (though our surrogates did), remember the suggestions that our drone surveillance of Iran was involved in those assassinations.

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Dianne Feinstein Complains about Executive Branch Blabbing

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In her statement at the beginning of the Threat Intelligence Assessment hearing today, Dianne Feinstein complained that the Executive Branch continues to blab about things that are supposed to be secret (this starts around 11:00).

I’d also like to say that once again this committee has been put in a difficult position of trying to avoid any mention of classified matters when various parts of the executive branch may be doing somewhat the opposite. I ask members to be careful in their questions and statements and to remember that public discussion of some intelligence programs and assets can lead to them being compromised.

On the particular issue of drone strikes, I will only say that I was cleared to say in our joint hearing with the House Intelligence Committee last September “And there’s no issue that receives more attention and oversight from this Committee than the United States Counterterrorism efforts going on along the Afghanistan-Pakistan border. These efforts are extremely precise and carefully executed and are the most effective tools we have. Non-combatant casualties are kept to an absolute minimum.”

Given the timing, given her references to both assets and programs, and given her comments about the drone strikes on the Pakistani border, I assume she’s complaining about Leon Panetta’s blabbing to 60 Minutes the other night. (Plus, DiFi and Panetta have had their difficulties in the past.)

You see? It’s not just me that is fed up with this double standard on secrecy.

Update: Josh Gerstein talked to DiFi after the hearing, and she made it clear she was not criticizing the President.

Feinstein insisted after Tuesday’s hearing that her remarks were not aimed at Obama.

“I was not criticizing the president.  I was reminding the committee about protecting classified information,” she said in a statement e-mailed to POLITICO. She did not elaborate on what “parts of the executive branch” she was referring to in her public comments earlier in the day. A spokesman had no immediate response to a request for clarification.

CIA’s Drone Cowboys Complaining about “General Betrayus”

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Remember when it was verboten to criticize David Petraeus, particularly in anticipation of his testimony to Congress?

Apparently it’s okay to do so if you run a secret killer drones program. While couched in anonymous sources, this story provides a forum for members of CIA’s counterterrorism center and their congressional backers to insinuate that David Petraeus has betrayed the CIA’s ability to wantonly kill Pakistanis.

The CIA is infamous for challenging outsiders, especially from the Pentagon, and Petraeus has won plaudits for not bringing his former military aides to his new job. Some officials close to the agency praise major espionage operations he has approved but say he has clashed with senior officers at the counter-terrorism center, a powerful fiefdom inside the agency that helps run the covert drone war.

Those officers are frustrated by the drop-off in drone strikes in Pakistan, including an undeclared two-month moratorium that ended Jan. 11, according to several current and former U.S. officials. In interviews, one member of Congress and four senior aides from the House and Senate committees said they were upset as well.

I guess the CIA considers trying to keep our relationship with a nuclear armed Pakistan intact a character flaw.

Now there is actually a complaint in here of concern.

Several aides on the House and Senate committees, however, say Petraeus has not always accommodated lawmakers’ schedules when he plans classified briefings and has limited the briefings’ duration so some questions go unanswered.

The aides, who asked for anonymity while discussing classified briefings, said he also has balked at providing some classified information that members have requested. They declined to provide details.

Mind you, Dianne Feinstein–in the article as well as her statement at the hearing (which you can watch here)–refuted the statement. Which I take to suggest that Petraeus is making ample use of the Gang of Four, briefing DiFi and Saxby Chambliss, but not other members of the committee.

Leon’s Book of Law

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Glenn Greenwald and Adam Serwer already hit this part of 60 Minutes interview with Leon Panetta yesterday. But I wanted to tie Panetta’s comments about how, “in his book” a citizen who wants to attack our people and kill Americans is first and foremost a terrorist.

If someone is a citizen of the United States and is a terrorist who wants to attack our people and kill Americans in my book that person is a terrorist. And the reality is that under our laws that person is a terrorist. And we’re required under process of law to be able to justify that despite the fact that this person may be a citizen, he is first and foremost a terrorist who threatens our people. [my emphasis]

Now, Panetta suggests that if someone who, in Leon’s book, is a terrorist is here in the US, that person will get due process.

But the logic of the Fourth Circuit’s Padilla decision the other day defies that. As I read it, the Fourth Circuit argued that once Padilla became an enemy combatant–once Leon’s predecessors decided that, in their book, he was a terrorist, then he lost access to the legal means to (for example) seek redress for torture, much less to anything but habeas corpus–on the schedule the government chose, which effectively nullified it.

So while it sounds odd that all it might take is the CIA Director or the Defense Secretary to say, “in my book, he’s a terrorist,” that is actually how things are functioning.

 

And the Drones Start Patrolling Iraq, Again

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Back when I went on a tear about how drones undermine nation-states (both ours and those countries we use them in) I predicted we’d be using drones in Iraq again.

Iraq: While plenty of America’s wars have been dubiously legitimate, Iraq certainly is at the top of that list. We trumped up a case against a sovereign nation-state (one with manufactured legitimacy internally, but no less than many of our allies in the region). In what may be the last traditional nation-state war we fight, we managed to (at least thus far and only barely) avoid breaking the country up into three or more parts and establish another leader with questionable legitimacy. In most of that, drones weren’t key. But I’m betting that they will be going forward as a threat to Nuri al-Maliki that if he doesn’t invite our troops to stay longer, we will feel free to use drones in his country. That’s just a guess, mind you, but the evolution of our drone power (and the influence Iran has in Iraq) surely has a bearing on whether and how Iraq fully reasserts is sovereignty by kicking our troops out.

Sure enough, it’s happening and Iraqis are worried about what it says about their sovereignty.

A month after the last American troops left Iraq, the State Department is operating a small fleet of surveillance droneshere to help protect the United States Embassy and consulates, as well as American personnel. Some senior Iraqi officials expressed outrage at the program, saying the unarmed aircraft are an affront to Iraqi sovereignty.

The program was described by the department’s diplomatic security branch in a little-noticed section of its most recent annual report and outlined in broad terms in a two-page online prospectus for companies that might bid on a contract to manage the program. It foreshadows a possible expansion of unmanned drone operations into the diplomatic arm of the American government; until now they have been mainly the province of the Pentagon and the Central Intelligence Agency.

[snip]

A senior American official said that negotiations were under way to obtain authorization for the current drone operations, but Ali al-Mosawi, a top adviser to Prime Minister Nuri Kamal al-Maliki; Iraq’s national security adviser, Falih al-Fayadh; and the acting minister of interior, Adnan al-Asadi, all said in interviews that they had not been consulted by the Americans.

Mr. Asadi said that he opposed the drone program: “Our sky is our sky, not the U.S.A.’s sky.”

[snip]

The State Department confirmed the existence of the program, calling the devices unmanned aerial vehicles, but it declined to provide details. “The department does have a U.A.V. program,” it said in a statement without referring specifically to Iraq. “The U.A.V.’s being utilized by the State Department are not armed, nor are they capable of being armed.”

Though I gotta hand it to this drone-happy Administration. I didn’t predict they’d have the tone-deafness of running these drones through the Department of State.

It says “State” right there in the name. How can you pretend to be conducting diplomacy between states when you insist on having your own robot air force (albeit unarmed) flying over theirs?

The Administration’s Half-Striptease of Anwar al-Awlaki’s Rotting Corpse

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This article, which claims the “Obama administration is planning to reveal publicly the legal reasoning behind its decision to kill” Anwar al-Awlaki, also reveals that Administration debates about whether to do so likened such necessary transparency to a “Full Monty.”

It came down to what Denis McDonough, the deputy national-security adviser, cheekily called the “half Monty” versus the “full Monty,” after the British movie about a male striptease act.

Though it looks like, instead of real disclosure, the Administration is mooning us. They’ve decided to provide some of the legal argument–which Charlie Savage already gave us. But none of the actual proof that Awlaki was what they have claimed in anonymous quotes to journalists: an operational leader.

An early draft of Holder’s speech identified Awlaki by name, but in a concession to concerns from the intelligence community, all references to the al Qaeda leader were removed. As currently written, the speech makes no overt mention of the Awlaki operation, and reveals none of the intelligence the administration relied on in carrying out his killing. (White House spokesman Tommy Vietor declined to comment).

This is simply an asinine compromise. We all know the Administration killed Awlaki. We all know the Administration used a drone strike to do so. Savage’s article surely provides far more detail on the legal argument than they’ll give in a speech.

The problem–the problem that strikes at the very heart of democratic accountability–is that the Administration plans to keep secret the details that would prove (or not) that Awlaki was what the Administration happily claims he is under the veil of anonymity, all while claiming that precisely that information is a state secret.

The Administration seems to be planning on making a big speech on counterterrorism–hey! it’s another opportunity to brag again about offing Osama bin Laden!–without revealing precisely those details necessary to distinguish this killing, and this country, from that of an unaccountable dictator.

The CIA seems to have dictated to our democratically elected President that he can’t provide the kind of transparency necessary to remain a democracy. We can kill you–they appear to be planning to say–and we’ll never have to prove that doing so was just. You’ll just have to trust us!

If the Only News Is Good News and There Is No News …?

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Tara McKelvey, the woman who wrote one of the most detailed stories on drone targeting (which has subsequently gotten John Rizzo into some trouble), has a CJR piece on the problems of reporting on drones. The whole thing is worth reading, but I want to take a number of quotes McKelvey includes out of order, starting with David Ignatius, noting the Administration’s flexibility in secrecy rules.

Ignatius, of the Post, explained that Obama administration officials are sometimes willing to discuss drone operations in an attempt to promote the White House’s counterterrorism strategy. In February 2010, for instance, Ignatius was able to write a detailed account of the escalation of drone strikes because officials were eager to demonstrate that Obama was more aggressive in his pursuit of al Qaeda than Bush was.

“These rules about covert activities can be bent when it becomes politically advantageous,” Ignatius said. “When it suits them, you get quite a detailed readout.”

That’s a sentiment Jonathan Landay echoes.

Journalists know that finding non-official sources is crucial in covering the drone war, especially under the tight-lipped Obama administration. “The only time I’m allowed to talk to senior staff or the nsc is for stories that make the administration look good,” McClatchy’s Landay said.

In other words, an experienced journalist reputed to be a mouthpiece, and an experienced journalists known for bucking the Administration propaganda leading up to the Iraq War. Both in agreement that the Administration won’t tell you anything unless it puts the Administration and its drone program in the best light.

Which is why I love this bit, which McKelvey puts right after a discussion about the clouded legality of the program.

A spokesman for the White House National Security Council, who spoke only on condition he not be named, rebuffed questions about why the administration refuses to speak with reporters on the record about the program. “You’re going to have a lot of people on the outside, and they all love to talk,” he said. “We can’t do that.” And, the official added, if outsiders are talking about the drone war, “that means they don’t know very much.”

This NSC spokesperson may or may not be Tommy Vietor, who is, after all, the NSC spokesperson.

For McKelvey, this Tommy Vietor sound-alike basically claims he cannot comment. Both Ignatius (who ought to know) and Landay make it clear they would have comment if there were good news to share.

Which further adds to the evidence that where they refuse to give us evidence–as they have with Anwar al-Awlaki’s assassination–it’s because they have no good news to give.

The OTHER Assault on the Fourth Amendment in the NDAA? Drones at Your Airport?

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Steven Aftergood notes that the Army just issued new directives for the use of drones in civilian airspace. The new directives include nothing earth shattering (my favorite part is the enclosure from 2009 explaining what to do when you lose contact with one of your drones, on PDF 18–but really, what could go wrong?). But it does, as Aftergood notes, reflect a real enthusiasm for using more drones in civilian airspace.

Which brings me to a part of the NDAA debate that has remained largely undiscussed.

Days after the NDAA past, Chuck Schumer started boasting about how the NDAA would bring jobs to Syracuse, NY because the city’s airport might be one of 6 sites approved as test sites for drones flying in civilian airspace.

The National Defense Authorization Act signed into law last week by President Barack Obama allows for the establishment of six national test sites where drones could fly through civil air space.

Schumer, D-N.Y., said Tuesday he pushed for the establishment of six spots, instead of the planned four, to improve the chances that Hancock Field would be included.

[snip]

Schumer said Hancock already meets FAA requirements for unmanned aerial vehicles because about 7,000 square miles surrounding the airport is designated as “special use” airspace.

He said that “making Hancock a test site for this technology would be a boon for Central New York, creating jobs and bringing new investments to our defense contractors that provide thousands of good paying jobs.”

Curiously, the language addressing drones in civilian airspace in the NDAA, as passed, doesn’t actually say this.

SEC. 1074. REPORT ON INTEGRATION OF UNMANNED AERIAL SYSTEMS INTO THE NATIONAL AIRSPACE SYSTEM.

(a) REPORT REQUIRED.—Not later than 90 days after the date of the enactment of this Act, the Secretary of Defense shall, in consultation with the Administrator of the Federal Aviation Administration and on behalf of the UAS Executive Committee, submit to the appropriate committees of Congress a report setting forth the following:

(1) A description and assessment of the rate of progress in integrating unmanned aircraft systems into the national airspace system.

(2) An assessment of the potential for one or more pilot program or programs on such integration at certain test ranges to increase that rate of progress.

Rather, it seems to require Secretary Panetta to tell Congress whether “one or more” test ranges would “help” us get drones into civilian airspace more quickly. Perhaps the new Army guidelines are part of DOD’s preparation for the report to Congress.

That said, there is evidence that the legislative intent behind the NDAA is to push those 6 sites forward. Here’s what the managers’ statement said about this section (note, the numbering changed as sections got squished together into a bill).

Unmanned aerial systems and national airspace (sec. 1097)

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