Janice Rogers Brown Sings “Follow the Yellow Brick Road” as She Guts Habeas

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The government has released a new version of the DC Circuit opinion in the Latif case. (Via DC Circuit Review h/t scribe)

I suppose it should comfort us that the government no longer considers this passage from Janice Rogers Brown’s opinion to be classified. [I’ve underlined the bits the government previously claimed were classified; see PDF 39-40 to compare.]

What makes Latif’s current story so hard to swallow is not its intrinsic implausibility but its correspondence in so many respects with the Report he now repudiates. Like Dorothy Gale upon awakening at home in Kansas after her fantastic journey to the Land of Oz, Latif’s current account of what transpired bears a striking resemblance to the familiar faces of his former narrative. See THE WIZARD OF Oz (MGM 1939). Just as the Gales’ farmhands were transformed by Dorothy’s imagination into the Scarecrow, Tin Man, and Cowardly Lion, it is at least plausible that Latif, when his liberty was at stake, transformed his jihadi recruiter into a charity worker, his Taliban commander into an imam, his comrades-in-arms into roommates, and his military training camp into a center for religious study.

Though it raises real questions why it was classified in the first place. Really? Our government classified a Wizard of Oz analogy! And it wonders why we doubt the men behind the curtain.

And a good thing they released it, too. It makes Rogers Brown’s comment earlier in the opinion analogizing Dorothy’s Uncle Henry to Judge Henry Kennedy look every bit as disrespectful as it did in the first draft…

Even doting Uncle Henry managed to evaluate Dorothy’s credibility when· she professed that the family and friends gathered around her bed had been with her in Oz. See THE WIZARD OF Oz (MGM 1939) (“Of course we believe you, Dorothy.”). The district court, by contrast, mustered only a guarded finding of plausibility.

But at least we know that Rogers Brown–and not Kennedy–is the one who has gotten lost in Oz.

But a look at numbered page 21 shows all you need to know about the government’s good faith in this reconsidered redaction. Read more →

Inadequate Briefing on the Drone Program Shows Congress Hasn’t Fixed the Gloves Come Off MON

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I need to finish my series (post 1, post 2, post 3, post 4, post 5, post 6) on the Obama Administration’s efforts to hide what I’ve dubbed the “Gloves Come Off” Memorandum of Notification. As I described, the MON purportedly gave CIA authority to do a whole slew of things, but left it up to the CIA to decide how to implement the programs Bush authorized. And rather than giving the Intelligence Committees written notification of the details of the programs, CIA instead gave just the Gang of Four deceptive briefings on the programs, which not only gave a misleading sense of the programs, but also prevented Congress from being able to limit the programs by refusing to fund the activities.

Yet, as MadDog and I were discussing in the comments to this post, these aspects of the MON set up did not entirely elude the attention of Congressional overseers. In fact, the very first Democrat to be briefed that torture had been used (remember, Pelosi got briefed it might be used prospectively) asked questions that went to the heart of the problem with the structure of the MON.

The CIA won’t tell Jane Harman whether the President approved torture from a policy standpoint

Jane Harman was first briefed on the torture program, with Porter Goss, on February 5, 2003. We don’t actually know what transpired in that briefing because CIA never finalized a formal record of the briefing. But five days after the briefing, Harman wrote a letter to CIA General Counsel Scott Muller. In addition to using a word for the torture program CIA has redacted and objecting to the destruction of the torture tapes, Harman asked questions that should have elicited a response revealing the Gloves Come Off MON was what authorized the torture program.

It is also the case, however, that what was described raises profound policy questions and I am concerned about whether these have been as rigorously examined as the legal questions.  I would like to know what kind of policy review took place and what questions were examined.  In particular, I would like to know whether the most senior levels of the White House have determined that these practices are consistent with the principles and policies of the United States.  Have enhanced techniques been authorized and approved by the President?

The whole point of a MON, after all, was to get the President on the record asserting that the programs authorized by it are “necessary to support identifiable foreign policy objectives of the United States and [are] important to the national security of the United States.” Here, Harman was asking whether the President was part of a policy review on torture.

Just over a week after Harman sent this letter, the CIA met with the White House to decide how to respond to Harman’s letter.

Now, granted, Harman’s question did not explicitly ask about a MON. But the CIA did not even answer the question she did ask. Muller basically told her policy had “been addressed within the Executive Branch” without saying anything about Bush’s role in it.

While I do not think it appropriate for me to comment on issues that are a matter of policy, much less the nature and extent of Executive Branch policy deliberations, I think it would be fair to assume that policy as well as legal matters have been addressed within the Executive Branch.

Kudos to Harman for actually asking questions. But at this point, she should have known that there was something funky about the legally required MON for the torture program.

Two years later, she was still trying to get answers about the MON. In her third briefing on torture (PDF 29-31; see also this post)–on July 13, 2004, which was almost 3 weeks after Harman should have received the Inspector General Report–Muller first claimed that the legal foundation for the torture program were the Bybee Memos (he provided this explanation in the context of explaining considerations of whether the program complied with Article 16 of the Convention against Torture).

The General Counsel said that the effort was working effectively under the DOJ 1 August 2002 memo which was the legal foundation for the debriefings and interrogations.

But later in the briefing, Harman appears to have noted that the MON didn’t authorize torture, it only authorized capture and detention.

Rep. Harman noted that the [redaction] did not specify interrogations and only authorized capture and detention. Read more →

Is the Government Worried about Revealing Broader Targeted Killing Authority in the Drone FOIAs?

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In addition to yesterday’s letter’s explanation that the government needed an extension in ACLU and NYT’s Anwar al-Awlaki drone FOIA because Obama and/or his closest aides–the highest level of the Executive Branch–were getting involved, there was one other interesting phrase I wanted to note: the way in which it portrays the FOIA.

We write respectfully on behalf of the Department of Justice and the Central Intelligence Agency (collectively, the “Government”) to seek a further extension until May 21, 2012, of the Government’s deadline to file its consolidated motion for summary judgment in these related Freedom of Information Act cases seeking records pertaining to alleged targeted lethal operations directed at U.S. citizens and others affiliated with al Qaeda or other terrorist groups. [my emphasis]

That description doesn’t precisely match the request in any of the three FOIAs, which ask for:

ACLU: the legal authority and factual basis of the targeted killing of [Anwar] al-Awlaki, Abdulrahman [al-Awlaki], and [Samir] Khan.

NYT Savage: all Office of Legal Counsel memorandums analyzing the circumstances under which it would be lawful for United States armed forces or intelligence community assets to target for killing a United States citizen who is deemed to be a terrorist.

NYT Shane: all Office of Legal Counsel opinions or memoranda since 2001 that address the legal status of targeted killings, assassination, or killing people suspected of ties to Al-Qaeda or other terrorist groups by employees or contractors of the United States government.

The government seems squeamish, first of all, about repeating the language used in all three of these requests–targeted killing–opting instead for the phrase “targeted lethal operations.” Note, significantly, that these requests, and especially Shane’s, would not be limited to drone strikes, but also would include hit squads.

The government understandably opts not to use the names specified by ACLU, opting instead to use the generic “US citizen” used by Savage.

Equally understandably, it uses Shane’s language to describe the target: “Al-Qaeda or other terrorist groups.” But I find the adoption of Shane’s formulation significant, because it is much broader than the language from the AUMF:

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

And somewhat broader than the language from the NDAA:

person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners

Now, it’s not just Shane’s language that broadens the scope here. None of the three requests mention AQAP, which would at least give the government the ability to focus on questions about how it decided that Awlaki was a legitimate target under the AUMF (on that topic, note this exchange between Robert Chesney and Bruce Ackerman). Both NYT requests ask for information about targeting terrorists generally. Which might get into some interesting targeting decisions both specific to Pakistan (for example, the original decision to target Beitullah Mehsud–and therefore the Pakistani Taliban–was based on a potentially erroneous information about a dirty bomb) and more generally in places like Gaza or Iran or Latin America.

In other words, if the government maintains it has the authority to assassinate terrorists, generally, perhaps tied to the Iraq AUMF or perhaps tied to the Gloves Come Off MON, then this language might make it hard for the government to provide a tidy response to this FOIA.

Read more →

Yet More White House Involvement in FOIA Responses

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As I’ve been writing my series on the Administration’s extensive efforts to hide all mention of what I have decided to call the Gloves Come Off Memorandum of Notification, this passage from Daniel Klaidman’s article on the Administration’s equivocations about revealing information on the Anwar al-Awlaki killing has been nagging me.

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.)

The suggestion here is that White House Counsel Kathryn Ruemmler didn’t want to affirmatively reveal details about Awlaki’s killing because doing so would mean they’d have to reveal details in the ACLU and NYT’s FOIAs for … the same information.

That never really made sense (though I never dwelt too much on it because the Administration’s stance on secrecy rarely makes sense).

But in the last few days, I’ve been wondering if Ruemmler was thinking not about the drone FOIA–about revealing details of one element authorized by the Gloves Come Off MON–but instead thinking about the MON itself. After all, if the government reveals one (torture) after another (drones) of the programs authorized by the Gloves Come Off MON, then it gets harder and harder to claim the whole MON must remain secret. And remember, still to be litigated in the torture FOIA is the MON itself, in addition to what I believe are references to it in the title of the Tenet memo.

And while this may mean nothing, the government has been stalling on its response to the drone FOIA. Back on April 9, the government asked for 10 more days to respond to the FOIA. Judge Colleen McMahon responded by snipping, “Ok, but dont ask for any more time. If government official can give speeches about this matter without creating security problem, any involved agency can.” Yet in spite of her warning, they asked for an additional month-long extension today.

We write respectfully on behalf of the Department of Justice and the Central Intelligence Agency (collectively, the “Government”) to seek a further extension until May 21, 2012, of the Government’s deadline to file its consolidated motion for summary judgment in these related Freedom of Information Act cases seeking records pertaining to alleged targeted lethal operations directed at U.S. citizens and others affiliated with al Qaeda or other terrorist groups. Attorney General Eric H. Holder, Jr. has personally directed us to seek this additional time to allow the Government to finalize its position with regard to the sensitive national security matters presented in this case.

We are mindful of the Court’s admonition in its April 9, 2012, order that the Government not seek an further extensions of its briefing deadline, and we do not take this request lightly. Given the significance of the matters presented in this case, the Government’s position is being deliberated at the highest level of the Executive Branch. It has become clear that further consultation and discussion at that level of the Executive Branch is necessary before the Government can make its submission to the Court.

Read more →

“The Gloves Come Off” Memorandum of Notification

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Operational flexibility: This is a highly classified area. All I want to say is that there was “before” 9/11 and “after” 9/11. After 9/11 the gloves come off.

-Cofer Black, 9/11 Congressional Inquiry, September 26, 2002

When Cofer Black, the main author of the plan laid out in the September 17, 2001 Memorandum of Notification that appears to be at issue in the FOIA dispute between the CIA and White House and the ACLU (post 1, post 2, post 3, post 4, post 5), testified before the 9/11 Congressional Inquiry, he described the expanded operational flexibility CIA’s counterterrorism efforts gained after 9/11 by saying “the gloves come off.”

As this post shows, the legal means by which “the gloves come off” was the MON in question. Thus, rather than referring to the MON by its date, perhaps the best way for us to think of it is as the “Gloves Come Off MON.”

Before we get into what the MON did, here’s what the National Security Act, as amended, says such MONs are supposed to do. The NSA requires the President to notify congressional intelligence and appropriations committees (or, in rare cases, the Gang of Eight) of any covert operations he has authorized the CIA to conduct. Some important excerpts:

SEC. 503. [50 U.S.C. 413b] (a) The President may not authorize the conduct of a covert action by departments, agencies, or entities of the United States Government unless the President determines such an action is necessary to support identifiable foreign policy objectives of the United States and is important to the national security of the United States, which determination shall be set forth in a finding that shall meet each of the following conditions:

(1) Each finding shall be in writing, unless immediate action by the United States is required and time does not permit the preparation of a written finding, in which case a written record of the President’s decision shall be contemporaneously made and shall be reduced to a written finding as soon as possible but in no event more than 48 hours after the decision is made.

[snip]

(5) A finding may not authorize any action that would violate the Constitution or any statute of the United States.

[snip]

(d) The President shall ensure that the congressional intelligence committees, or, if applicable, the Members of Congress specified in subsection (c)(2) [the Gang of Eight], are notified of any significant change in a previously approved covert action, or any significant undertaking pursuant to a previously approved finding, in the same manner as findings are reported pursuant to subsection (c).

As used in this title, the term ‘‘covert action’’ means an activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly, but does not include—

(1) activities the primary purpose of which is to acquire intelligence, traditional counterintelligence activities, traditional activities to improve or maintain the operational security of United States Government programs, or administrative activities;

Basically, the MONs are supposed to provide an up-to-date written notice of all the  potentially very embarrassing things the CIA is doing. And given that MONs cannot authorize unconstitutional or illegal (within the US) actions, it should impose some legal limits to covert operations.

Dick Cheney, in a 1989 speech complaining about Congressional overreach in foreign policy (Charlie Savage just posted this), described how this requirement to inform Congress of covert ops provided a way for Congress to oppose such actions by defunding any ongoing ones.

The 1980 law [requiring notice] did not challenge the President’s inherent constitutional authority to initiate covert actions. In fact, that law specifically denied any intention to require advance congressional approval for such actions.

[snip]

Any time Congress feels that an operation is unwise, it may step in to prohibit funds in the coming budget cycle from being used for that purpose. As a result, all operations of extended duration have the committees’ tacit support.

That’s the understanding of the limitations MONs might impose on Presidents that Cheney brought to discussions of the Gloves Come Off MON.

Bob Woodward provides an extensive discussion of what George Tenet and Cofer Black requested in this MON in Bush at War.

At the heart of the proposal was a recommendation that the president give what Tenet labeled “exceptional authorities” to the CIA to destroy al Qaeda in Afghanistan and the rest of the world. He wanted a broad intelligence order permitting the CIA to conduct covert operations without having to come back for formal approval for each specific operation. The current process involved too much time, lawyering, reviews and debate. The CIA needed new, robust authority to operate without restraint. Tenet also wanted encouragement from the president to take risks.

Another key component, he said, was to “use exceptional authorities to detain al Qaeda operatives worldwide.” That meant the CIA could use foreign intelligence services or other paid assets. Tenet and his senior deputies would be authorized to approve “snatch” operations abroad, truly exceptional power.

Tenet had brought a draft of a presidential intelligence order, called a finding, that would give the CIA power to use the full range of covert instruments, including deadly force. For more than two decades, the CIA had simply modified previous presidential findings to obtain its formal authority for counterterrorism. His new proposal, technically called a Memorandum of Notification, was presented as a modification to the worldwide counterterrorism intelligence finding signed by Ronald Reagan in 1986. As if symbolically erasing the recent past, it superseded five such memoranda signed by President Clinton.

Woodward describes other things included in Tenet’s request:

  • Providing hundreds of millions to “heavily subsidize Arab liaison services,” effectively “buying” key services in Egypt, Jordan, and Algeria
  • Equipping Predator drones with Hellfire missiles for lethal missions to take out top al Qaeda figures Read more →

The CIA Continues to Cover Up Bush’s Authorization of Torture

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Reading the unredacted sections of this ex parte hearing on the ACLU’s torture FOIA leads me to suspect the CIA is trying to keep hidden all mention of Bush’s September 17, 2001 Memorandum of Notification authorizing a range of counterterrorism activities.

Take a look, first of all, at the discussion about Judge Alvin Hellerstein’s problems treating something that is redacted in the “second and fourth” OLC memos as an Exemption 3 sources and methods withholding. He objected, apparently, because the redacted information was not a method, but instead the source of authority.

Judge Carney: Judge Hellerstein rejected the characterization of that as a method, and said instead this is a source of authority.

[snip]

JUDGE CARNEY: I have a follow up, if I may.

So if I understand the government’s position, your position Is the material redacted from the second and fourth OLC memos was properly exempt under Exemption 1, and that Judge Hellerstein’s ruling then was somewhat incomplete in that he rejected and demanded that you use an alternative characterization under–he rejected it under Exemption 3. He was saying this was, a source of authority, not a method.

[snip]

MS. LA MORTE: I don’t recall an expressed ruling in the transcript about Exemption 1. I think what Judge Hellerstein’s thought process was, was that this was a source of authority, and that’s it, not an activity, not a method.

Now, we know what the source of authority for the torture program was thanks to reporting on it–it was purportedly authorized by Bush’s September 17, 2001 Memorandum of Notification. Here’s how the NYT described it as early as 2006.

According to accounts by three former intelligence officials, the C.I.A. understood that the legal foundation for its role had been spelled out in a sweeping classified directive signed by Mr. Bush on Sept. 17, 2001. The directive, known as a memorandum of notification, authorized the C.I.A. for the first time to capture, detain and interrogate terrorism suspects, providing the foundation for what became its secret prison system.

LaMorte’s descriptions introducing these particular OLC redactions make it fairly clear that the authorization in question is the one that authorized the capture and detention of top Al Qaeda figures–that is, the September 17 MON.

Ms. La Morte: [In response to a question about sources and methods redactions] That’s absolutely correct. So, for example, in the OLC memos, [1.5 lines redacted] So that program was a program where the CIA was authorized to capture international terrorists abroad, detain them in foreign countries, and interrogate them using not only standard methods but enhanced interrogation techniques.

But that detention, that CIA detention and interrogation program, was a program that [3 paragraphs redacted]

I love how she makes a point of calling this a “CIA detention and interrogation” program; we know that the finding that authorized the program actually didn’t lay out the interrogation program. She seems awfully concerned about insisting that the MON authorized not just capture and detention, but also interrogation; I’ll explain a likely source of her concern in a follow-up post.

She goes on to suggest that if these passages in the OLC memos were revealed, it would amount to the first time this content–presumably the Presidential MON–were revealed.

And that’s important because here, the references to [half line redacted] contained in the OLC memos reveals for the first time the existence and the scope of [1.5 lines redacted] That has never before been acknowledged, and would be acknowledged for the first time simply by revealing [few words redacted] in the OLC memos.

I’ll rip this claim to shreds in a subsequent post. But for the moment I’d like to point to what I think are the redactions in question.

As noted above, Judge Carney said these redactions are in the second and fourth OLC memos. As part of the same exchange, Judge Richard Wesley makes it clear they are in one of the March 10 and the March 30 memos.

Page 29 of the March 10, 2005 Techniques memo includes this passage:

Interrogators (and other personnel deployed as part of this program) are required to review and acknowledge the applicable interrogation guidelines. See Confinement Guidelines at 2; Interrogation Guidelines at 2 (“The Director, DCI Counterterrorist Center shall ensure that all personnel directly engaged in the interrogation of persons detained pursuant to the authorities set forth in [half line redacted]

And in addition to the large redactions on page 4 and 5 of the March 30, 2005 CAT memo–which appear to provide general background on the torture program and therefore might address authorization–page 7 includes a reference to the same Tenet Guidelines.

Any interrogation plan that involves the use of enhanced techniques must be reviewed and approved by “the Director, DCI Counterterrorist Center, with the concurrence of the Chief, CTC Legal Group.” George J. Tenet, Director of Central Intelligence, Guidelines on Interrogations Conducted Purusant to the [half line redacted].

Here’s the Guidelines on Interrogation in question. You will be thoroughly unsurprised the authorities referenced in the title, as well as most of the paragraph that lays out those authorities, are redacted.

As I noted, I will have a follow-up post or two on this one. But it appears that amid the big argument whether waterboarding is an intelligence method or not is one the CIA is fighting just as aggressively: whether or not it has to reveal the already widely-reported fact that George Bush unilaterally authorized all this torture on September 17, 2001.

Read more →

Obama Takes a Position to the Right of Congress on Indefinite Detention

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Back when I reported on Obama’s stated intent to interpret the good part of the NDAA–the part requiring a meaningful review for all detainees held by DOD–to mean DOD could decide how long to hold people before it gave them the review mandated by Congress, I complained that Obama would hold detainees more than 6 months before granting detainees this review.

In addition, this says DOD gets to decide how long new detainees will have to wait before they get a status review with an actual lawyer–and Congress is perfectly happy making them wait over six months before that time.

Obama seems to have taken that language and pushed it further still: stating that DOD will get broad discretion to decide which reviews will carry the requirement of a judge and a lawyer.

It sort of makes you wonder why the Obama Administration wants these men to be held for over six months with no meaningful review?

It turns out I was far, far too optimistic. As Daphne Eviatar reports, Obama plans to hold detainees for three years before giving them this congressional mandated review.

On April 5, the Defense Department quietly sent a report to Congress indicating how it intends to implement a new law requiring lawyers and judges for detainees held in long-term U.S. military custody. As expected, DoD largely wrote the new rights out of existence, ensuring they’d be accorded to few, if any, detainees. What’s more, it severely limited the scope of judicial review even that small number will receive.

[snip]

Here’s how it works. According to the new regulations:

The combatant commander with responsibility for the theater of operations in which the unprivileged enemy belligerent is detained will ensure that a determination by the DRB or analogous review that the 1024(b) process is applicable is made as soon as practicable but not later than 18 months after the detainee is captured by, or transferred to the custody and control of, the Department of Defense. Additionally, the combatant commander will ensure that a Section 1024(b) review is conducted as soon as practicable after such a determination is made, but not later than 18 months after such a determination is made.

Eighteen months plus 18 months equals three years. So any newly-captured suspect is not entitled to a hearing by a military judge and represented by military defense counsel until three years after his initial detention.

What’s more:

A military judge will conduct a hearing for the purposes of determining whether the detainee is a covered person as defined in subsection (b) of Section 1021 of the Act. The review will be limited to this status determination; it will not include an assessment of the level of threat the detainee poses, nor will it serve as a substitute for the judgment of the combatant commander as to the appropriate disposition of a detainee lawfully detained by the Department of Defense.

In other words, the judge will decide only if the suspect is appropriately classified as an “unprivileged enemy belligerent” — that is, any person “who was part of or substantially supported al Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.” The judge will not decide whether that person actually poses a threat to U.S. forces. Yet under international law, that’s a critical part of determining whether someone can be lawfully detained in a war against insurgent groups. That critical determination will continue to be made secretly by a military commander in the field, not by the more neutral judge following an open hearing.

Someone who did laundry, cooked meals or provided medical assistance for a member of al Qaeda, the Taliban or unidentified “associated forces” could therefore continue to be detained indefinitely even after his judicial review if the commander deems him dangerous. And the commander doesn’t have to explain that decision to anyone. [my emphasis]

Those Bedouin women and children we killed in a missile strike and then excused our war crime by saying the Bedouins had been selling AQAP? They’re the kind of people that this order would include.

So in response to Congress–Congress!!!!–trying to put all our military detainees on some kind of legitimate legal footing, Obama (the guy who ran on closing Gitmo), basically blew them off and embraced still more indefinite detention.

CIA General Counsel: If the President Authorizes It, It’s Legal

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I do hope the Harvard students who listened to this speech from CIA General Counsel Stephen Preston–in which he purported to explain what a law-abiding agency the CIA is and which appears to be the CIA’s effort to prove that the Anwar al-Awlaki killing was legal–are sophisticated enough to realize he, like all spooks, was peddling deceit. I’ll get to those details below.

But first I want to focus on how he bookends his claim that CIA’s “activities are subject to strict internal and external scrutiny.”

He starts by admitting that courts and citizens are not part of this “external scrutiny.”

It is true that a lot of what the CIA does is shielded from public view, and for good reason: much of what the CIA does is a secret! Secrecy is absolutely essential to a functioning intelligence service, and a functioning intelligence service is absolutely essential to national security, today no less than in the past. This is not lost on the federal judiciary. The courts have long recognized the state secrets privilege and have consistently upheld its proper invocation to protect intelligence sources and methods from disclosure. Moreover, federal judges have dismissed cases on justiciability or political question grounds, acknowledging that the courts are, at times, institutionally ill-equipped and constitutionally incapable of reviewing national security decisions committed to the President and the political branches.

Let’s unpack the logic of this: first, CIA operations are subject to strict “external scrutiny.” But because–“national security”–such external scrutiny is not possible.

Next, Preston claims that the courts have been in the business of consistently upholding the “proper invocation” of state secrets “to protect intelligence sources and methods.” Of course, just about every invocation of state secrets has been subsequently or contemporaneously shown to be an effort to protect–at best–misconduct and, in most cases, illegal activities: things like kidnapping, illegal wiretapping, and torture. So when he describes this “proper invocation” of states secrets, he is effectively saying that when lawsuits threatened to expose CIA’s law-breaking, courts have willingly dismissed those cases in the name of sources and methods.

And even before it gets to that stage, courts will bow to the Executive Branch’s claim that only Congress and the Executive can decide what forms of law-breaking by the CIA will be tolerated; courts are “ill-equipped” to judge the legality of illegal actions if those illegal actions are committed by the CIA.

So to prove that CIA’s ops are subject to “external scrutiny,” Preston starts by admitting that two of the most important agents of external scrutiny–citizens and courts–don’t actually exercise any scrutiny, particularly in cases where the government is willing to invoke state secrets to shield illegal activities.

Read more →

Prediction: Latif Will Be Repatriated

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The WaPo reports that the US is finally trying to resolve the cases of 50 non-Afghans we’ve had stashed at Bagram. It focuses on two Yemenis who may be repatriated.

The government of Yemen has agreed to closely monitor two Yemenis held by the U.S. military in Afghanistan if they are repatriated, and attorneys for the men asked the Pentagon on Monday to authorize the transfer of the two detainees.

Amin al-Bakri, 44, and Fadi al-Maqaleh, 26, have been cleared for release by military detainee review boards on three occasions, beginning in 2010, according to Pentagon records.

Now, these aren’t just any prisoners. They’re two of the three Bagram prisoners who tried to challenge their detention by filing a habeas corpus petition. And while the DC Circuit overturned their case, it remains alive based on the question of whether the US moved them to Bagram to ensure they’d be on an “active battlefield” where the government could deny habeas review. As Lawfare has suggested, one reason the government might want to transfer al-Bakri and al-Maqaleh is to be able to move to dismiss their case–to be able to prevent any expansion of legal review beyond GItmo.

Well, if the government is negotiating transfers of Yemeni prisoners they had already cleared for release, what are the chances they’re also negotiating transfers of Yemeni prisoners cleared for release who present even bigger legal problems for the government, like Adnan Farhan Abd al-Latif?

Latif’s SCOTUS appeal, after all, should be a slam-dunk. If habeas is to be remotely meaningful, the government can’t be permitted to just submit whatever obviously flawed intelligence document it wants, without some corroborating evidence, to justify imprisoning someone. Nevertheless, if Latif wins at SCOTUS, then all the habeas victories the government has won from a DC Circuit that has tried to undermine Boumediene at every turn could be lost.

And it would be just like the Imperial Bush-Obama continuum to resolve an important detention case to avoid SCOTUS review.

So I predict that if SCOTUS grants Latif cert, he, like al-Bakri and al-Maqaleh will be whisked off to Yemen to avoid any return of real review on the President’s authority.

Mind you, I wish all these men (who have never been charged) will be released from imprisonment the government says is unnecessary. I just suspect the government will do so in a way that keeps others imprisoned.

The Senate Judiciary Committee Hasn’t Seen the Targeted Killing Memo Either

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I guess it should be no surprise that Pat Leahy, the Chair of the Senate Judiciary Committee, hasn’t seen the memo authorizing the killing of Anwar al-Awlaki. After all, if the full Senate Intelligence Committee–which is supposed to exercise oversight over covert operations like that assassination–hasn’t seen the memo, then it’d be unlikely the Administration would share it with Leahy, much less the full committee.

But Charlie Savage confirms that Leahy has not seen it (while also catching Eric Holder giving a response far more comprehensive than the Glomar response the NYT and ACLU have received in FOIA requests).

For months, the Obama administration has refused to confirm or deny the existence of a Justice Department memorandum that approved the targeted killing of a United States citizen, Anwar al-Awlaki, who died in a drone strike in Yemen last September.

But in an exchange at a budget hearing on Thursday, Senator Patrick J. Leahy and Attorney General Eric H. Holder Jr. came close to implicitly conceding that there is indeed such a memo, which was written by the Justice Department’s Office of Legal Counsel.

Mr. Leahy, a Vermont Democrat who is chairman of the Senate Judiciary Committee, brought up a conversation he said he and Mr. Holder had earlier this week about a speech on “drones and targeting of U.S. citizens” that the attorney general delivered on Monday.

“I still want to see the Office of Legal Counsel memorandum and I would urge you to keep working on that,” Mr. Leahy said to Mr. Holder. “I realize that’s a matter of some debate within the administration but …”

The senator then paused, smiled and laughed. Mr. Holder responded by nodding and said, chuckling, “That would be true.”

Say, Pat?

You were in an Appropriations Committee hearing.

One way–the only proven way–of forcing an Administration to act like it’s still a democracy is to withhold funds. Attach rules like, “DOJ may not authorize the targeted killing of US citizens unless it has shared the legal argument with its oversight committees.” Or, “DOJ may not authorize the targeted killing of US citizens without due process including judicial review.”

Unless you actually make the Administration act like they’re in a democracy, we’re all just pretending. And an Appropriations meeting is the perfect time to do such things.