Department of Pre-Crime, Part 3: What Law Would the Drone (and/or Targeted Killing) Court Interpret?

/8 Comments/in , , /by

I’ve been writing about the nascent plan, on the part of a few Senators who want to avoid hard decisions, to establish a FISA Court to review Drone (and/or Targeted Killings) of American citizens.

A number of people presumably think it’d be easy. Just use the AUMF — which authorizes the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States” — and attach some kind of measure of the seriousness of the threat, and voila! Rubber-stamp to off an American.

And while that may while be how it would work in practice, even assuming the reviews would be halfway as thorough as the Gitmo habeas cases (with the selective presumption of regularity for even obviously faulty intelligence reports adopted under Latif, as well as the “military age male” standard adopted under Uthman, habeas petitions are no longer all that meaningful), that would still mean the Executive could present any laughably bad intelligence report showing a military aged male was hanging around baddies to be able to kill someone. The Gitmo habeas standard would have authorized the killing of Abdulrahman al-Awlaki, in spite of the fact that no one believes he was even a member of AQAP.

Then there’s the problem introduced by the secrecy of the Drone (and/or Targeted Kiling) Court. One of the several main questions at issue in US targeted killings has always been whether the group in question (AQAP, in the case of Anwar al-Awlaki, which didn’t even exist on 9/11) and the battlefield in question (Yemen, though the US is one big question) is covered by the AUMF.

Congress doesn’t even know the answers to these questions. The Administration refuses to share a list of all the countries it has already used lethal counterterrorism authorities in.

So ultimately, on this central issue, the Drone (and/or Targeted Killing) Court would have no choice but to accept the Executive’s claims about where and with whom we’re at war, because no list exists of that, at least not one Congress has bought off on.

There’s an even more basic problem, though. John Brennan has made it crystal clear that we pick imminent threats not because of any crime they might have committed in the past, but because of future crimes they might commit in the future.

BRENNAN: Senator, I think it’s certainly worth of discussion. Our tradition — our judicial tradition is that a court of law is used to determine one’s guilt or innocence for past actions, which is very different from the decisions that are made on the battlefield, as well as actions that are taken against terrorists. Because none of those actions are to determine past guilt for those actions that they took. The decisions that are made are to take action so that we prevent a future action, so we protect American lives. That is an inherently executive branch function to determine, and the commander in chief and the chief executive has the responsibility to protect the welfare, well being of American citizens. So the concept I understand and we have wrestled with this in terms of whether there can be a FISA-like court, whatever — a FISA- like court is to determine exactly whether or not there should be a warrant for, you know, certain types of activities. You know…

KING: It’s analogous to going to a court for a warrant — probable cause…

(CROSSTALK)

BRENNAN: Right, exactly. But the actions that we take on the counterterrorism front, again, are to take actions against individuals where we believe that the intelligence base is so strong and the nature of the threat is so grave and serious, as well as imminent, that we have no recourse except to take this action that may involve a lethal strike.

What law is it that describes what standards must be met to declare someone a pre-criminal?

Either there are no standards and the Drone (and/or Targeted Killing) Court would just have to take the Administration’s say-so — in which case it’s absolutely no improvement over the status quo.

Or, the courts would make up the standards as they go along, pretty much like the DC Circuit has been in habeas cases. But those standards would be secret, withheld from Americans in the same way the secret law surrounding Section 215 is.

Finally, there’s one more problem with assuming the AUMF provides a law the Drone (and/or Targeted Killing) Court would use to adjudicate pre-crime. The Administration has made it crystal clear that it believes it has two sources of authority for targeted killings; the AUMF and Article II. Which has another implication for a Drone (and/or Targeted Killing) Court.

The Executive has already said that the if the President authorizes the CIA to do something — like murder an American citizen overseas — it does not constitute a violation of laws on the books, like 18 USC 1119, which prohibits the murder of Americans overseas. The Administration has already said that the President’s Article II power supercedes laws on the books. What is a Drone (and/or Targeted Killing) Court supposed to do in the face of such claims?

This carries a further implication. If the Court were using the AUMF as its guide to rubber-stamping the President’s kill list, nothing would prevent the Executive from killing someone outside of that Court on its claimed Article II authority.

Until we make it clear that unilateral murder of American citizens is not an Article II authority, the President will keep doing it, whether there’s a Court or not.

Previous posts on the Pre-Crime Court:

Setting Up a Department of Pre-Crime, Part One: Why Are We Doing This?

Department of Pre-Crime, Part Two: The FISA Court Is Broken

Alleged Wacko Rand Paul Asks Serious Questions about Targeted Killings

/25 Comments/in , /by
TDS cites emptywheel for its Targeted Killing Memos request tally.

TDS cites emptywheel for its Targeted Killing Memos request tally.

The Politico went to some effort, it seems, to dismiss Rand Paul’s concerns about the drone program (as well as his threat to hold John Brennan’s nomination if and when it gets out of the Senate Intelligence Committee).

But Paul’s two letters on the subject are actually far more serious than those mocking them make out (the first one also brings the tally of congressional requests for the targeted killing memos to 19).

For example, Paul is one of the few people asking any questions about non-US citizens.

Do you believe that the president has the power to authorize lethal force, such as a drone strike, against a U.S. citizen on U.S. soil? What about the use of lethal force against a non-U.S. person on U.S. soil?

He also asks how the National Security Act and Posse Comitatus might play into a domestic strike.

Do you believe that the prohibition on CIA participation in domestic law enforcement, first established by the National Security Act of 1947, would apply to the use of lethal force, especially lethal force directed at an individual on a targeting list, if a U.S. citizen on a targeting list was found to be operating on U.S. soil? What if the individual on the targeting list was a non-U.S. person but found to be operating on U.S. soil? Do you consider such an operation to be domestic law enforcement, or would it only be subject to the president’s wartime powers?

[snip]

Do you believe that the Posse Comitatus Act, or any other prohibition on the use of the military in domestic law enforcement, would prohibit the use of military hardware and/or personnel in pursuing terrorism suspects—especially those on a targeting list—found to be operating on U.S. soil? If not, would you support the use of such assets in pursuit of either U.S. citizen or non-U.S. persons on U.S. soil suspected of terrorist activity?

And (here in his first letter to Brennan) Paul asks the seemingly unspeakable question: how 16 year old American citizen Abdulrahman al-Awlaki came to be killed by a US drone.

What role did you play in approving the drone strike that led to the death of the underage, U.S. citizen son of Anwar al-Awlaki? Unlike his father, he had not renounced his U.S. citizenship. Was the younger al-Awlaki the intended target of the U.S. drone strike which took his life? Further, do you reject the subsequent claim, apparently originating from anonymous U.S. government sources, that the young man had actually been a “military age male” of 20 years or more of age, something that was later proven false by the release of his birth certificate?

Paul even asks a question limited largely to Yemen experts — whether or expanding campaign there is really about counterinsurgency rather than counterterrorism.

Is the U.S. drone strike strategy exclusively focused on targeting al Qaeda, or is it also conducting counterinsurgency operations against militants seeking to further undermine their government, such as in Yemen?

Finally, Paul slips this question in, which has nothing to do with targeted killings, but has everything to do with Brennan’s seeming disinterest in the privacy of the American people.

Do you support the Attorney General’s 2012 guidance to the NCTC that it may deliberately collect, store, and “continually assess” massive amounts of data on all U.S. citizens for potential correlations to terrorism, even if the U.S. citizens targeted have no known ties to terrorism?

Now, to Politico this may be a big game. But Paul is asking a lot of questions that no one else in DC is asking (note: he may have more leeway to ask such questions than, say, Ron Wyden, who has presumably been read into some of these answers).

Which is, I guess, how the Village now defines wacko: those people who asks the questions they’re too afraid to ask.

Does Obama Plan on Killing More Americans Once He Has FISA Drone (and/or Targeting Killing) Court?

/1 Comment/in , /by

Micah Zenko argues that the language Obama used last night to describe targeted killing lowers the bar — from senior operational leaders to Al Qaeda to those who just present a grave threat.

In addition, Obama’s declaration that the United States would go after “terrorists who pose the gravest threat to Americans” muddied the scope of who can be legitimately targeted. The Obama administration is careful to offer a range of adjectives to describe who can be lawfully targeted. Previous definitions include:

  • John Brennan: “Individuals who are a threat to the United States” (September 16, 2011)
  • Department of Justice: “Senior operational leader of al-Qa’ida or an associated force” who “poses an imminent threat of violent attack against the United States” (November 8, 2011)
  • Eric Holder: “Specific senior operational leaders of al-Qaeda and associated forces” (March 5, 2012)
  • Harold Koh: “High-level al-Qaeda leaders who are planning attacks” (March 25, 2012)
  • Obama: “Our goal has been to focus on al-Qaeda and to focus narrowly on those who would pose an imminent threat to the United States of America” (September 6, 2012)

Obama’s “gravest threat to Americans” characterization is by far the most expansive definition for who can be killed by a U.S. official thus far. (The Oxford Dictionary defines grave as “giving cause for alarm or concern and solemn or serious.”) This does away with previous clarifying terms such as “senior” or “operational” leaders of al-Qaeda, any notion of attacks that are “imminent,” and the necessity to protect the U.S. homeland. This new and sweeping definition of who is “targetable” is troubling since it is open to interpretation by the executive branch interpretation, and was purposefully and deliberately included in a State of the Union address.

As Zenko’s citation of John Brennan’s September 16, 2011 speech makes clear though, at least one public statement in the past has lacked a tie to “senior operational leaders.” And that speech is all the more significant, given that it’s what the white paper points to as the public precedent for the definition of imminence they used to kill Anwar al-Awlaki (and maybe Samir Khan).

Furthermore, as I noted, that word “grave” has already been used: in John Brennan’s response to Angus King’s suggestion of a FISA Court for Drones (and/or Targeted Killing).

But the actions that we take on the counterterrorism front, again, are to take actions against individuals where we believe that the intelligence base is so strong and the nature of the threat is so grave and serious, as well as imminent, that we have no recourse except to take this action that may involve a lethal strike.

That said, the use of the word in both Brennan’s presumably practiced answer and Obama’s scripted SOTU surely indicates adoption of this new term.

Just moments after Obama used the term, he made his ludicrous promise he would “continue” to engage with Congress and provide “even more” transparency to the public.

So, in the months ahead, I will continue to engage with Congress to ensure not only that our targeting, detention, and prosecution of terrorists remains consistent with our laws and system of checks and balances, but that our efforts are even more transparent to the American people and to the world.

Given that Brennan’s use of the word “grave” came specifically in response to King’s FISA Court idea and Obama’s is somewhat tied to so-called checks and balances, I wonder whether this new standard will be one of the tradeoffs the Administration will demand for letting courts review their work: a lower standard for killing?

Department of Pre-Crime, Part Two: The FISA Court Is Broken

/2 Comments/in , /by

Largely to avoid some difficult issues, members of Congress are moving to create a FISA Court for Drones (and/or Targeted Killing) to review the assassination orders for American citizens before they are carried out.

Setting aside all the problems with such a plan (which I’ll return to), consider this more basic problem with this idea. Right now, the FISA Court isn’t even carrying out its original purpose, to ensure that when Americans are wiretapped for national security purposes, the government first gets a warrant.

Consider, first of all, that while the law requires the government to get a warrant before it collects your calls, the 9th Circuit last year eliminated any penalties for actually collecting telecommunications without a warrant. So at least in the 9th, the government can simply avoid the FISA Court altogether, knowing that so long as it doesn’t use those telecommunications in a court case, they’ll never face a penalty for having broken the law.

But even if the government uses the FISA Court, consider how far from its original mission the FISC has strayed.

The FISA Court was set up in 1978, in the wake of the Nixon scandals and Church Committee, with the Keith case (in which Attorney General wiretapped members of the White Panther Party while investigating the bombing of a CIA office in Ann Arbor) in mind. The whole Keith decision is worth noting for the way the same objections raised in targeted killing — that courts can’t make tough decisions or keep secrets — were dismissed by Justice Powell. But ultimately, the decision held,

The Fourth Amendment (which shields private speech from unreasonable surveillance) requires prior judicial approval for the type of domestic security surveillance involved in this case.

The Government’s duty to safeguard domestic security must be weighed against the potential danger that unreasonable surveillances pose to individual privacy and free expression.

The freedoms of the Fourth Amendment cannot properly be guaranteed if domestic security surveillances are conducted solely within the discretion of the Executive Branch, without the detached judgment of a neutral magistrate.

The Fourth Amendment holds that judges must decide whether wiretaps are reasonable or not.

Yet after the FISA Amendments Act, that’s not what happens. Rather, judges are deprived of the ability to do more than review the government’s certifications about targeting and minimization. Once a judge has done so, however, the government can not only bulk collect telecommunications involving someone overseas, but it can later search on those telecommunications to get to the US person’s side of the conversation, apparently without court review on the back side.

Effectively, discretion over this massive system has collapsed back inside the Executive Branch.

And all that’s before the government’s use of the secret law that Mark Udall and Ron Wyden keep complaining about, which probably involves — in part — the bulk collection of geolocation information from cell phones. It’s also before the government has interpreted the word “relevance” to justify other massive collection programs (at a minimum, of things like hydrogen peroxide and acetone purchases) involving US persons.

In short, the FISA Court has become a venue not for judges to exercise individualized discretion about probable cause. Rather, it has become the venue in which the government uses the secrecy offered to develop expansive legal interpretations to support vast new spying programs it won’t even tell Americans about. Not only the promise of individualized judicial discretion has been eliminated, so has the very premise that American should know what laws they are subject to.

Particularly given that a key problem with the targeted killing program (and the NDAA detention authorities, for which the Administration’s legal logic is undoubtedly the same) is that the Administration never has to clearly lay out what the criteria are for inclusion, sticking the Drone (and/or Targeted Killing) review inside the FISA Court, where the government has already been inventing secret law, simply won’t achieve one of two things that needs to happen: communicating to Americans what can get you killed.

Setting Up a Department of Pre-Crime, Part One: Why Are We Doing This?

/20 Comments/in , /by

I’m going to have a series of posts on the proposed FISA Drone (and/or Targeted Killing) Court, starting with a description of why I think there’s movement to do this now.

There are, as I see it, three different motivations among those now backing a FISA Drone (and/or Targeted Killing) Court.

First, there’s Dianne Feinstein. Now that the white paper has been released — and the actual OLC memos to the other members of her committee — it has been made clear that the program she has been assuring Americans, based on her Gang of Four review, is lawful is not the slam dunk she made it out to be. And while Mike Rogers’ constituents may not object to his continued reassurances that it is okay for the President to kill an American based on his sole authority (though they may; we shall see), DiFi’s are likely to. (Saxby Chambliss, of course, is not running for re-election; Dutch Ruppersberger has been rather quiet in the last few days). So to the degree that DiFi takes a lead on this issue, it is an effort to put a palatable spin on something she has been spinning as legal for years.

If a FISA Drone (and/or Targeted Killing) Court is necessary and justified, it should have been in 2009, when she took over the Chair at Senate Intelligence Committee (or at the very least, by January 2010, when it became clear the Obama Administration was targeted Anwar al-Awlaki). But somehow, DiFi is only backing the idea now that her poor judgment in letting the killings continue without oversight is being exposed. To some degree, I’d put Patrick Leahy (who doesn’t want to be tough with Obama) and Chuck Grassley in this position, as well.

Then there’s John Brennan, who in response to Angus King’s suggestion of a FISA Drone (and/or Targeted Killing) Court said,

And that’s why I do think it’s worthy of discussion. And the point particularly about due process really needs to be taken into account because there’s not a different standard as far as if a U.S. citizen joins Al Qaida, you know, in terms of the intelligence base or whatever. But American citizens by definition are due much greater due process than anybody else by dint of their citizenship.

I think this is a very worthwhile discussion. I look forward to talking to the committee and others about it. What’s that appropriate balance between executive, legislative and judicial branch responsibilities in this area?

I think Brennan’s motivation is far better summed up in the response he gave Jello Jay Rockefeller, who basically used his second round question to deliver a very sloppy blow job to Brennan. In response, Brennan got firey.

I want every member of this committee to be an ardent advocate, proponent, and defender of the men and women of the Central Intelligence Agency.

And I see it as my obligation to represent them to you on their behalf, so that when times get tough and when people are going to be criticizing and complaining about the CIA, I have all of you to say you knew about what the CIA was doing, you supported it, and you will defend it.

My impression is that, contrary to the moral rectitude myth, Brennan is a pretty amoral guy. It’s not right and wrong that motivates him; it’s allegiance, and as CIA Director (and, probably, even now) his allegiance is going to be to the institution.

And as he said in no uncertain terms to Jello Jay, he believes it is the role of the Intelligence Committee to support and defend the illegal actions the CIA does.

Brennan likely also knows that the easiest way to give the Committee cover for ardently defending what is, at its core, indefensible, and the only way to do so without affecting the flexibility accorded to the Executive Branch, is to let them pawn off the moral questions to a court operating in secret. Read more →

Innocent Until Proven Guilty; Imminent Until Proven — Too Late!

/16 Comments/in , /by

Those defending the language on imminence in the white paper released last week are right on one count: it is not new language. Below the fold, I’ve excerpted the language on imminence from three different formulations on imminence –Brennan’s speech at Harvard, the white paper, and Holder’s Northwestern speech — to show the consistency (and also, with John Brennan’s September 16, 2011 speech, exactly two weeks to Anwar al-Awlaki notice that this was now US policy).

All three point to al Qaeda’s non-combatant structure to describe the need for a more flexible concept of imminence. Both the white paper and Holder’s speech discuss a “window of opportunity,” which I find to be one of the more provocative aspects of this definition. And while Holder’s speech appears to have been edited to make it pretty, it is almost precisely the ideas presented in the white paper on imminence. There is clear continuity between Brennan’s 2011 speech, the white paper, and Holder’s speech.

Which is why I’m interested in the language Brennan used last week when responding to Angus King’s proposal for a FISA court for drone (and what should be targeted killing generally).

It’s telling not because it introduces wholesale new ideas. But because it makes clear what is implicit — but unstated — in the three other formulations.

A person who poses an imminent threat does not have to have committed any crime in the past. Imminence is exclusively about the future possibility of violence, not necessarily past involvement in it.

BRENNAN: Senator, I think it’s certainly worth of discussion. Our tradition — our judicial tradition is that a court of law is used to determine one’s guilt or innocence for past actions, which is very different from the decisions that are made on the battlefield, as well as actions that are taken against terrorists. Because none of those actions are to determine past guilt for those actions that they took. The decisions that are made are to take action so that we prevent a future action, so we protect American lives. That is an inherently executive branch function to determine, and the commander in chief and the chief executive has the responsibility to protect the welfare, well being of American citizens. So the concept I understand and we have wrestled with this in terms of whether there can be a FISA-like court, whatever — a FISA- like court is to determine exactly whether or not there should be a warrant for, you know, certain types of activities. You know… KING: It’s analogous to going to a court for a warrant — probable cause…

(CROSSTALK)

BRENNAN: Right, exactly. But the actions that we take on the counterterrorism front, again, are to take actions against individuals where we believe that the intelligence base is so strong and the nature of the threat is so grave and serious, as well as imminent, that we have no recourse except to take this action that may involve a lethal strike.

The white paper actually has the most language about past deeds, but with the language about membership plus past involvement in activities that pose an imminent threat that I keep pointing to, it doesn’t actually require past deeds either. It does, however, at least imply that an American must be involved in past crimes to be deemed an imminent threat.

John Brennan’s language last week does not.

And that’s precisely the explanation he gave for why the courts aren’t the appropriate place to measure imminent threat: because they only get involved when people have already committed crimes. This new definition of imminence envisions declaring people to be imminent threats even before they’ve committed a crime.

One note about this. Brennan ties all this to the President’s responsibility “to protect the welfare, well being of American citizens.” The biggest threat to the well being of the American citizens is not terrorists at this point, not by a long shot. It’s the big banksters who serially collapse our economy and require bailouts (and, it should be said, are often funding terrorists and drug cartels along the way because it is profitable).  Does this definition of “imminent” threat extend to the banksters who are a much more systematic front than the rump of al Qaeda is at this point?

In any case, be warned. If the plan for a FISA Drone (and Targeted Killing) Court moves forward, it will not be measuring guilt — what courts were established to measure. But instead, potential future guilt.

Read more →

Garbage In, Garbage Out: The Problem with a FISA Drone Court

/10 Comments/in , /by

Since the Administration turned over the OLC memos authorizing the killing of Anwar al-Awlaki Thursday, there’s been a sudden surge of support for setting up a FISA type court for targeted killing (actually, for drone targeting; I guess Americans being killed by cruise missile or gun still won’t get due process).

There are a lot of problems with such a court, which I hope to explore at length in upcoming weeks.

But, in the same way John Brennan undermined the very premise of drone targeting in his hearing (by attesting that the judge and jury in the existing targeting program is not competent to serve as judge and jury), he also undermined the value of a FISA Drone Court.

In this exchange, Richard Burr finds a way to corner John Brennan into agreeing that he trusted information gotten in the torture program. Burr gets Brennan to admit that he submitted declarations to the FISA court that may have relied on information gained from torture.

Burr: I’m still not clear on whether you think the information from CIA interrogations saved lives.  Have you ever made a representation to a court, including the FISA court, about the type and importance of information learned from detainees including detainees in the CIA detention and interrogation program?

Brennan: Ahm, first of all, in the first part of your question, as to you’re not sure whether I believe that there has been information … I don’t know myself.

Burr: I said I wasn’t clear whether I understood, whether whether I was clear.

Brennan: And I’m not clear at this time either because I read a report that calls into question a lot of the information that I was provided earlier on, my impressions. Um. There, when I was in the government as the head of the national counterterrorism center I know that I had signed out a number of um affirmations related to the uh continuation of certain programs uh based on the analysis and intelligence that was available to analysts. I don’t know exactly what it was at the time, but we can take a look at that.

Burr: But the committee can assume that you had faith if you made that claim to a court or including the FISA court, you had faith in the documents in the information that was supplied to you to make that declaration.

Brennan: Absolutely. At the time if I had made any such affirmation, i would have had faith that the information I was provided was an accurate representation.

To corner Brennan, however, Burr also gets him to admit that a number of FISA-approved programs were probably based on torture.

The government was wiretapping people based on tortured confessions the Senate Intelligence Committee has now, a decade later, deemed unreliable.

And because of how rarely FISA-derived information gets double checked, we’ll never learn which wiretaps were approved based on tortured evidence.

Compare that to what has happened even in the Gitmo habeas cases, even with some limits on discovery. Because detainee lawyers got to challenge the information behind accusations, and because the source of accusations were somewhat public, it made it much easier to challenge the accusations from certain detainees, especially Abu Zubaydah, who had been tortured. Indeed, the government dropped a number of charges originally derived from Abu Zubaydah.

As a threshold matter, intelligence is different from evidence. And a FISA Court would be relying on the former.

But because it operates in secret, it would never be able to vet out the intelligence of dubious provenance, whatever the reason. It was torture 9 years ago when Brennan was making dicey declarations. We’re still seeing questionable allegations from informants work through the system (even in the regular courts!). It could be the self-interested claims of our foreign partners, setting up the death of someone they don’t like.

In the FISA Court, unlike a regular court, there’s no way to clean up Brennan’s torture-based declarations.

The very same day Congres started talking about a FISA Drone Court in earnest, John Brennan demonstrated how dodgy some of the representations submitted to the existing FISA Court have been. That ought to give us pause before we extend the court’s warrants to death, in addition to wiretaps.

Every Laptop and Cell Phone in Detroit (and Dearborn) Can Be Searched at Will

/33 Comments/in /by

I’m not really sure how Detroit is supposed to pursue an arts-based resurgence if the Department of Homeland Security maintains that it can seize any electronics along the nation’s borders — which extend 100 miles and therefore include the bulk of the population of Michigan

The Department of Homeland Security’s civil rights watchdog has concluded that travelers along the nation’s borders may have their electronics seized and the contents of those devices examined for any reason whatsoever — all in the name of national security.

The DHS, which secures the nation’s border, in 2009 announced that it would conduct a “Civil Liberties Impact Assessment” of its suspicionless search-and-seizure policy pertaining to electronic devices “within 120 days.” More than three years later, the DHS office of Civil Rights and Civil Liberties published a two-page executive summary of its findings.

“We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits,” the executive summary said.

[snip]

According to legal precedent, the Fourth Amendment — the right to be free from unreasonable searches and seizures — does not apply along the border. By the way, the government contends the Fourth-Amendment-Free Zone stretches 100 miles inland from the nation’s actual border.

I mean, if I were a business of any kind I’d move outside of this 100-mile border zone to protect my company secrets. Though that would up-end a good deal of the US auto industry, which they can’t really afford.

This is absurd. The notion that the border exception would expose entire cities (San Diego and, I think, Miami, would be similarly exposed) to this kind of privacy invasion shows how absurd the contention is.

Five Questions for John Brennan

/20 Comments/in , , , , , /by

I’m sure I could grill John Brennan for hours. But after a lot of thought, here are the five questions I believe most important that should be asked of him Today.

1) Do you plan to continue lying to Americans?

You have made a number of demonstrable lies to the American people, particularly regarding the drone program and the Osama bin Laden raid. Most egregiously in 2011, you claimed “there hasn’t been a single collateral death” in almost a year from drone strikes; when challenged, you revised that by saying, “the U.S. government has not found credible evidence of collateral deaths,” even in spite of a particularly egregious case of civilian deaths just months earlier. On what basis did you make these assertions? What definition of civilian were you using in each assertion? (More background)

In addition, in a speech purportedly offering transparency on the drone program, you falsely suggested we know the identities of all people targeted by drones. Why did you choose to misrepresent the kind of intelligence we use in some strikes?

2) What was the intelligence supporting the first attempt to kill Anwar al-Awlaki?

The US government’s first attempt to kill Anwar al-Awlaki with a drone strike was December 24, 2009. WikiLeaks cables make it clear that Awlaki was a primary target of that strike, not just intended collateral damage. Yet the Webster report makes clear that on that day — that is, until the Underwear Bomber attempt the next day — the Intelligence Community did not consider Awlaki to be operational. Thus, the strike seems to have been approved before he fulfilled the criteria of the white paper released the other day, which authorizes the targeting of senior operational leaders of groups like AQAP. What was the legal basis for targeting this American citizen at a time when the IC did not believe him to be operational? (More background)

3) Will your close friendships with Saudis cloud your focus on the US interest?

In a fawning profile the other day, Daniel Klaidman nevertheless laid out the following points:

  • You considered Yemen to be a “domestic conflict.”
  • You opposed signature strikes in the country.
  • You nevertheless approved signature strikes in Yemen because of personal entreaties from people you know from when you were stationed on the Arabian peninsula in the 1990s.

In addition, recent reports have confirmed that the drone strike that killed Anwar al-Awlaki was launched from Saudi territory.

Were the personal entreaties you responded to from Yemenis or Saudis (or both)?

What role did the Saudis have in the Awlaki strike? Did they have an operational role?

As someone with such close ties to liaison sources, how have you and will you manage to prioritize the interests of the United States over the interests of friends you have from two decades ago?

To what degree is your intelligence sharing — especially with the Saudis — a stovepipe that creates the same risks of intelligence failures that got us into the Iraq War? (More background)

4) What role did you have in Bush’s illegal wiretap program?

The joint Inspector General report on the illegal wiretap program reported that entities you directed — the Terrorist Threat Integration Center in 2003 and 2004, and the National Counterterrorism Center in 2004 and 2005 — conducted the threat assessments for the program.

What role did you have, as the head of these entities, in the illegal wiretapping of Americans? To what extent did you know the program violated FISA? What role did you have in counseling Obama to give telecoms and other contractors immunity under the program? What influence did you have in DOJ decisions regarding suits about the illegal program, in particular the al-Haramain case that was thrown out even after the charity had proved it had been illegally wiretapped? Did you play any role in decisions to investigate and prosecute whistleblowers about this and other programs, notably Thomas Drake? (More background)

5) Did you help CIA bypass prohibitions on spying domestically with the NYPD intelligence (and other) programs?

In your additional prehearing questions, you admit to knowing about CIA’s role in setting up an intelligence program that profiled Muslims in New York City. What was your role in setting up the program? As someone with key oversight over personnel matters at the time, did you arrange Larry Sanchez’ temporary duty at the NYPD or CIA training for NYPD detectives?

Have you been involved in any similar effort to use CIA resources to conduct domestic spying on communities of faith? You said the CIA provides (among other things) expertise to local groups spying on Americans. How is this not a violation of the prohibition on CIA spying on Americans?  (More background)

Update: I realized that I have left out a caveat in Brennan’s drone lies — he was talking in the previous year. I’ve fixed that.

Mr. Moral Rectitude’s Sleazy Payment

/2 Comments/in , , /by

According to Defense News, John Brennan was paid roughly $2,090 a day while working for The Analysis Corporation in 2008. He was paid roughly $8,496 for each of the 20 days he worked in 2009 before he became Obama’s counterterrorism czar.

A review of Brennan’s financial disclosure reports indicates that in 2009, TAC paid him a total of $169,923 in salary and bonus, which has not been previously reported. The financial disclosure reports, submitted as required of all White House employees, don’t say why he’d receive a bonus if he was leaving the company to join the government, or why he’d received such a large salary if he worked for the company for only 20 days that year.

In November 2008, two months before Brennan joined the Obama administration, TAC announced that the CEO was taking a “leave of absence” from the firm. That is, it is not clear that he was actually on the clock for the transition period before he received that $169,000.

Mind you, this isn’t anything that such illustrious people as Dick Cheney haven’t already done (and in larger figures, too).

Tim Shorrock provided some background on the company in his book.

There were questions about Brennan’s ties to his former company when it was part of the investigation into the failure to connect-the-dots before the UndieBomber attempted to strike the US, though as part of an ethics waver he agreed to recuse himself from anything specifically pertaining to TAC. 

The White House has granted a special ethics waiver to allow President Obama’s top counterterrorism adviser to conduct a review of the intelligence and screening breakdown that preceded the failed Christmas Day bombing attempt on an American passenger plane over Detroit.

[snip]

Mr. Brennan, who was a longtime C.I.A. officer, needed the waiver because for more than three years before his current post he was chief executive of the Analysis Corporation, an intelligence firm that provides services to the government. Norm Eisen, the White House ethics counsel, wrote on the White House Web site on Wednesday that Mr. Brennan’s past ties to the company, were outweighed by his knowledge of the nation’s intelligence system.

And, of course, Brennan’s the guy who has sacrificed US privacy to get more data in databases.

The umbrella company that has absorbed TAC continues to get lots of contracts doing intelligence analysis.