Jay Bybee Wrote Memo Permitting Broad Sharing of Intelligence-Related Grand Jury Information

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In March 2011, I noted a previously unreleased OLC memo mentioned in Jack Goldsmith’s May 6, 2004 illegal wiretapping memo seemingly giving the President broad authority to learn about grand jury investigations.

For example, this Office has concluded that, despite statutory restrictions upon the use of Title III wiretap information and restrictions on the use of grand jury information under Federal Rule of Criminal Procedure 6(e), the President has an inherent constitutional authority to receive all foreign intelligence information in the hands of the government necessary for him to fulfill his constitutional responsibilities and that statutes and rules should be understood to include an implied exception so as not to interfere with that authority. See Memorandum for the Deputy Attorney General from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: Effect of the Patriot Act on Disclosure to the President and Other Federal Officials of Grand Jury and Title III Information Relating to National Security and Foreign Affairs 1 (July 22, 2002)

The Brennan Center has now liberated that memo (though they don’t yet have it linked). And it shows that in July 2002, Jay Bybee interpreted a section of the PATRIOT Act that expanded information-sharing to include sharing grand jury information, with no disclosure, with the President and his close aides.

The notion that grand jury testimony should be secret dates back to at least the seventeenth century. The rules governing disclosure of grand jury proceedings are set by the Federal Rules of Criminal Procedure; prior to the PATRIOT Act, those rules declared that grand jury information could be shared only under certain circumstances, such as when the material was necessary to assist a prosecutor. However, disclosures had to be reported to a judge, and everyone receiving the information had to be told of its confidentiality.

The PATRIOT Act changed these rules significantly. Government lawyers could now share “any grand-jury matter involving foreign intelligence, counterintelligence …, or foreign intelligence information” with nearly any federal official, including those working in law enforcement, intelligence, immigration, national defense, or national security. Even records about a grand jury’s deliberations or a particular grand juror’s vote were apparently fair game. And the standard for sharing the information was not whether the material was “necessary” to the official’s duties; instead, the information need only “assist” the official in some way.

[snip]

First, although the rule expressly requires that disclosures of grand jury information be reported to the court, Bybee advised that disclosures to the president need not be reported lest they “infringe on the presumptively confidential nature of presidential communications.” (OLC had previously decided that similar disclosures to the president would be reportable in some circumstances but not in others.)  In addition, disclosures to the president’s “close advisors” – including the president’s chief of staff, the vice president, and counsel to the president – could be kept secret as well. While only “information that is actually necessary for the President to discharge his constitutional duties” could be secretly disclosed to the president or his advisors, that requirement is highly unlikely to be tested in practice.

Permitting the content of deliberations or a grand juror’s vote to be shared secretly with the vice president is surprising enough.  The memo goes much further, however.  Once an attorney for the government has shared grand jury information with anyone – the president, one of his close advisors, or any other federal official whose duties are listed above – the person receiving the information can share it with anyone else without reporting to the court.  That later disclosure, according to the memo’s crabbed reasoning, is not a disclosure “under” the rule, and therefore is not bound by the reporting requirement.

And there’s more: the recipient of one of those subsequent distributions can use the information for any purpose.  Because these down-the-line releases are not technically disclosures “under” the rule, the “official duties” constraint does not apply.

I’ll have more to say about this once I get the memo.

But imagine how it might be used in, say, the Valerie Plame or the Thomas Drake investigations. They were, after all, investigations about the unauthorized disclosure of foreign intelligence information. They also happened to be investigations into Dick Cheney’s law-breaking, but they were ostensibly about leaks of precisely the kind of information Jay Bybee permitted be shared with the President and … the Vice President. And in the case of the Plame leak, once Cheney got a hold of the information, he could share it with Karl Rove who could do whatever the fuck he wanted with it.

Mind you, once Pat Fitzgerald got put in charge, I doubt such sharing happened on the Plame case–at least not before August 2005, when Jim Comey retired. After that, who’s to say what David Margolis, the master of institutional self-preservation, might have done with grand jury information implicating top White House officials?

And, yes, by all appearances, this memo remains operative.

Update: Here’s the memo. And here’s the operative passage:

 Although the new provision in Rule 6(e) requires that any such disclosures be reported to the district court responsible for supervising the grand jury, disclosures made to the President fall outside the scope of the reporting requirement contained in that amendment, as do related subsequent disclosures made to other officials on the President’s behalf.

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We Have Always Been at War in Iran

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The NYT has a weird story on new allegations made by Iran, listing a bunch of ways the west has sabotaged it.

Iran said Tuesday that it had amassed new evidence of attempts by saboteurs to attack Iranian nuclear, defense, industrial and telecommunications installations, including the use of computer virus-infected American, French and German equipment.

[snip]

The accounts of sabotage came three days after the top Iranian lawmaker for national security and foreign policy, Aladdin Boroujerdi, said Iranian security experts haddiscovered explosives planted inside equipment bought from Siemens, the German technology company. Mr. Boroujerdi was quoted in Iran’s state-run news media as saying the explosives, which were defused, had been intended to detonate after installation and derail Iran’s enrichment of uranium.

It portrays–presumably intentionally–Iran as a crazed country lashing out in all directions.

My favorite line from the story, though, is this one.

Siemens said its nuclear division had done no business with Iran since the 1979 Islamic Revolution, suggesting that the Iranians, who are prohibited from buying nuclear equipment under United Nations sanctions, bought the booby-trapped equipment from third parties.

The NYT seems to pretend that Iran doesn’t know the US has imposed sanctions on it. It’s so funny because I’ve actually seen NatSec types respond to this article asking whether this admission–effectively Iran listing what it has gotten via illicit channels–isn’t more damning to Iran than vice versa. As if Iran and the rest of the world don’t know it shops at different markets than the US.

Compare that article with this Ellen Nakashima article repeating Joe Lieberman’s claims that Iran is behind some crude cyberattacks on American banks.

In particular, assaults this week on the Web sites of JPMorgan Chase and Bank of America probably were carried out by Iran, Sen. Joseph I. Lieberman (I-Conn.), chairman of the Homeland Security and Governmental Affairs Committee, said Friday.

“I don’t believe these were just hackers who were skilled enough to cause disruption of the Web sites,” said Lieberman in an interview taped for C-SPAN’s “Newsmakers” program. “I think this was done by Iran and the Quds Force, which has its own developing cyberattack capability.” The Quds Force is a special unit of Iran’s Revolutionary Guard Corps, a branch of the military.

Lieberman said he believed the efforts were in response to “the increasingly strong economic sanctions that the United States and our European allies have put on Iranian financial institutions.”

Somehow Nakashima doesn’t distance herself enough from the absurd man making the accusations, because she goes on to make this absurd statement.

Unlike the cyberattacks attributed to the United States and Israel that disabled Iranian nuclear enrichment equipment, experts said, the Iranian attacks were intended to disrupt commercial Web sites. Online operations at Bank of America and Chase both experienced delays this week.

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Poking Our Eyes Out in Libya

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The NYT reports that–as already happened in Lebanon and Iran in the last year or so–the attack on the Consulate in Benghazi seriously set back CIA’s intelligence gathering efforts in Libya.

“It’s a catastrophic intelligence loss,” said one American official who has served in Libya and who spoke on the condition of anonymity because the F.B.I. is still investigating the attack. “We got our eyes poked out.”

Curiously, the article doesn’t mention anything about my current obsession about the attack, the reports that attackers took away documents from the embassy listing those cooperating with our intelligence (as well as describing oil negotiations). If the attackers walked away with a CIA location’s files, of course the CIA’s HUMINT network and SIGINT efforts would be compromised; the attackers would have a road map of what the CIA was doing!

Instead, the article uses the number of spooks evacuated from Benghazi as an indication of how much intelligence work was going on.

Among the more than two dozen American personnel evacuated from the city after the assault on the American mission and a nearby annex were about a dozen C.I.A. operatives and contractors, who played a crucial role in conducting surveillance and collecting information on an array of armed militant groups in and around the city.

Remember, when rescuers showed up at a safe house after the attack, they expected 10 people; they weren’t prepared for the 37 they found, which made the ambush on the safe house more difficult to fight.

But he had a transport problem. Having been told to expect 10 Americans and having found 37, Obeidi did not have enough vehicles to break out, despite having one heavy anti-aircraft gun mounted on a pickup truck.

“I was being bombarded by calls from all over the country by Libyan government officials who wanted me to hurry and get them out,” he said. “But I told them that we were in such difficult circumstances and that I needed more men and more cars.”

Eventually dozens more vehicles were dispatched from pro-government militia brigades and, with the sun rising, the convoy headed back to the airport where an aircraft flew a first group of U.S. personnel out to the Libyan capital.

Though I’m wondering whether at least some of the 37 were DIA, since right after this happened, DOD announced it would hire contractors–including Blackwater–to train DIA personnel deploying overseas.

In any case, the number of people evacuated must have led to the discovery that many the people working at the Consulate were working off the books, because in addition to the Libyan Special Forces partnering with us to protect the Consulate, the number was also a surprise to Libya’s Deputy Prime Minister.

Though the agency has been cooperating with the new post-Qaddafi Libyan intelligence service, the size of the C.I.A.’s presence in Benghazi apparently surprised some Libyan leaders. The deputy prime minister, Mustafa Abushagour, was quoted in The Wall Street Journal last week saying that he learned about some of the delicate American operations in Benghazi only after the attack on the mission, in large part because a surprisingly large number of Americans showed up at the Benghazi airport to be evacuated.

“We have no problem with intelligence sharing or gathering, but our sovereignty is also key,” said Mr. Abushagour.

Ah sovereignty. That pesky issue keeps biting us in the ass with our so-called allies.

All of this is not to ignore the really big news from Libya over the weekend: the large protests against militias in the city, which the Administration is hailing as proof of the democratic instincts of the Libans. Though I suspect we’ll learn this was more about Libyan counter-offensive (possibly with US assistance) than just spontaneous protests (that is, as the original attack used cover of a protest, I suspect this counter-offensive did too).

But the subtext of this NYT story seems to be that we had a bunch of CIA guys working in two undefended locations-purportedly “safe houses” that the attackers knew enough about to deploy mortars to attack them. And that leaving the spooks like sitting ducks rather unsurprisingly led to the attackers compromising all their intelligence-gathering going on in Benghazi.

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How Many of the Protests Have Gotten Diplomatic Documents?

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Here’s a few data points to suggest that the protests in Muslim countries may have been, in part, an effort to grab sensitive diplomatic correspondence.

I noted–but did not quote–this report on the documents taken from the US Consulate in Benghazi.

Sensitive documents have gone missing from the consulate in Benghazi and the supposedly secret location of the “safe house” in the city, where the staff had retreated, came under sustained mortar attack. Other such refuges across the country are no longer deemed “safe”.

Some of the missing papers from the consulate are said to list names of Libyans who are working with Americans, putting them potentially at risk from extremist groups, while some of the other documents are said to relate to oil contracts.

Then on Saturday, Yemeni lawyer Haykal Bafana suggested we might soon see secret files taken from the Yemeni Embassy last week.

Forecasted in the local press : #Wikileaks #Yemen soon from secret info in computers & documents looted from the US Embassy, Sanaa.

Here’s a picture of “protestors” in Sanaa carrying out computer equipment.

Today, Tim Shorrock described a military person on Fox admitting that Marines at Embassies prioritize protecting classified information over lives.

Military guy on Fox: Marines’ priorities at the embassies are 1) protect classified communications & 2) protect human lives. In that order.

Now, possibly it’s only the Libyan attack that got or even deliberately sought documents. Libyans have proven to be master information operatives in the past. After all, somebody conveniently left documents implicating the US and UK in rendition to Libya and torture. Human Rights Watch used those files to compile its recent report on torture.

But the US Embassy in Tunis was also breached (though not, I think, sufficiently to get files). And the German Embassy in Khartoum was overrun, so the “protestors” there probably got close enough to get files as well (I’m less sure about the breaches at the British and US Embassies in Khartoum).

In all of these successful breaches, there seems to have been some cooperation from local guards who allowed the protestors to get close or into the diplomatic properties, so they may also have had information on where to look for the most sensitive files.

It’s possible that none of these breaches was designed specifically to get diplomatic correspondence (and remember, these would presumably be far more sensitive than what we’ve seen from WikiLeaks, none of which were Top Secret) and only in Libya is it clear attackers did get documents.

But it’s worth considering that all the places we’ve sent Marine response teams, there may be very compromising documents floating around.

Update: The AP reports the Lebanese Embassy is preemptively destroying classified documents. (h/t TPM via fatser)

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Leaky Leon Does More Damage

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Even in his official photos Panetta can’t keep his lips closed.

Marcy pointed out even before it aired that Defense Secretary (and former CIA Director) Leon Panetta’s televised confirmation that Dr. Shakeel Afridi worked for the CIA in the effort to find and kill Osama bin Laden was a breech of security. Since then, both Marcy and I have documented the damage resulting from this disclosure, which includes Afridi being jailed instead of quietly slipping out of Pakistan and a UN doctor being shot while hundreds of thousands of Pakistani children have been denied vaccines. In further damage from Panetta’s improper disclosure, Pakistan is now in the process of expelling the aid group Save the Children over concerns that they may have a CIA tie through a link with Afridi.

But that is not the only time Panetta has disclosed secret information that he should have kept quiet. In this post where I was discussing what looked like signs of increasing cooperation between the US and Pakistan, I included video from an AP interview of Panetta. The segment I chose to post turns out to be very significant. Here is my description of the video clip and its significance:

The absence of drone strikes continued and then on August 13 Defense Secretary Leon Panetta was interviewed by Lolita Baldor and Robert Burns of AP. As seen in the video excerpt above, Panetta said that he expected Pakistan to launch military operations soon against Taliban militants in Pakistan’s Federally Administered Tribal Areas. As Bill Roggio noted at Long War Journal, this was a shocking development. After opening with “This is absolutely stunning”, Roggio went on to list his reasoning for why the announcement didn’t make much sense.

Panetta’s claim that Pakistan was about to launch military action in the FATA stunned those who watch the area closely. By publicly announcing such an unexpected action before it started, Panetta put Pakistan into an untenable position. Today’s Express Tribune details the damage arising from Panetta’s disclosure:

Pakistan has quietly conveyed to the United States to not make any public statement on its planned operation against militants in the restive North Waziristan Agency bordering Afghanistan.

The advice stems from the fact that any remarks by American officials may complicate the Pakistani authorities’ plan to create the ‘necessary environment’ for the Waziristan offensive, a senior government official said.

Speaking on the condition of anonymity, the official told The Express Tribune that the military does not want to be seen as aligned with the US on the issue of launching a fresh operation in the rugged tribal belt because of growing anti-American sentiments in the country.

Pakistan protested directly to the US about Panetta’s leak:

Islamabad voiced concerns when US Defence Secretary Leon Panetta disclosed last month that the Pakistani military was planning to start an operation against militants in North Waziristan.

/snip/

“It was inappropriate for Panetta to make that statement. There was no need for that … it really complicated the situation,” a military official commented.

Why does Leaky Leon still hold a security clearance? The Haqqani network, operating now with virtual impunity from Pakistan’s FATA, is seen as one of the largest barriers to a stable Afghanistan. By delaying Pakistan’s action against them, Panetta has made himself directly responsible for additional harm to NATO troops and innocent Afghan civilians who happen to be in the wrong place at the wrong time.

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Latif’s Death: A Blow to the Head of Our System of Justice

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I’d like to take issue with Ben Wittes’ post on the sadness of Adnan Farhan abd al Latif’s death. I certainly agree with Wittes that Latif’s death is terribly sad. But I object to Wittes’ take on three related grounds. Wittes,

  • Provides a problematic depiction of the justification for Latif’s detention
  • Misstates the importance of Latif’s clearance for release
  • Assigns responsibility for Latif’s continued detention to the wrong people

Wittes tries hard to downplay how much Latif’s death in custody damns Gitmo. But he does so by obscuring a number of key facts all while accusing Gitmo foes of building up “myths.”

A problematic depiction of the justification for Latif’s detention 

Before he talks about how sad this is, Wittes tries to refute the “myths” Gitmo opponents have spread. First, he argues, we should not be arguing Latif was innocent.

Guantanamo’s foes are building up a lot of myths about the Latif case—many of which I don’t buy at all. While I have criticized the D.C. Circuit’s opinion in the case, it does not follow from the decision’s flaws that Latif was an innocent man wrongly locked up for more than a decade. Indeed, as I argued inthis post, it is possible both that the district court misread the evidence as an original matter and that the D.C. Circuit overstepped itself in reversing that decision. The evidence in the case—at least what we can see of it—does not suggest to me that Latif had no meaningful connection to enemy forces. [my emphasis]

After twice using the squirreliest of language, Wittes finally settles on a lukewarm endorsement of the argument that Latif had some “meaningful connection” to the enemy. Curiously, though, he exhibits no such hesitation when he describes Latif this way:

Latif—a guy whose mental state was fragile, who had suffered a head injury, and who seems to have had a long history of self-injury and suicide attempts. [my emphasis]

That’s curious because whether or not Latif continued to suffer from his 1994 head injury was a central issue in whether or not Latif was credible and therefore whether he should be released. Moreover, it is one area where–as I explained in this post–Janice Rogers Brown fixed the deeply flawed argument the government made, thereby inventing a new (equally problematic, IMO) argument the government had not even plead to uphold the presumption of regularity that has probably closed off habeas for just about all other Gitmo detainees.

As you’ll recall, Henry Kennedy found Latif’s argument he had traveled to Afghanistan for medical treatment for his head injury credible because DOD’s own intake form said he had medical records with him when they took custody of him in Kandahar.

Furthermore, there are indications in the record that when Latif was seized traveling from Afghanistan to Pakistan, he was in possession of medical records. JE 46 at 1 (noting that Latif was seized in a “[b]order [t]own in [Pakistan]” with “medical papers”); JE 66 (unidentified government document compiling information about Latif) at 2 (stating that “[Latif] had medical papers but no passport or weapon” when he “surrendered himself to [Pakistani] authorities”).12

David Tatel, too, pointed to that in his dissent: “the most plausible reason for why Latif would have had medical papers in his possession when first seized is that his trip in fact had a medical purpose.”

Yet the government argued that Latif offered no corroboration for his story.

The court improperly gave no adverse weight to the conclusory nature of Latifs declaration, and the lack of corroboration for his account of his trip to Afghanistan, both factors which should have weighed heavily against his credibility.

[snip]

Latif also provided no corroboration for his account of his trip to Afghanistan. He submitted no evidence from a family member, from Ibrahim, or from anyone to corroborate his claim that he was traveling to Pakistan in 2001 to seek medical treatment.

That’s a laughable claim. Latif submitted one of the government’s own documents as corroboration for his story. The government, however–in a brief arguing that all government documents should be entitled to the presumption of regularity–dismissed that corroborating evidence by implying that government document didn’t mean what it said–which is that Latif had medical papers with him when captured.

Respondents argue that these indications are evidence only that Latif said he had medical records with him at the time he was seized rather than that he in fact had them.

The claim is all the more ridiculous given that, unlike the CIA interrogation report the government argued should be entitled to the presumption of regularity, there’s a clear basis for the presumption of regularity of Latif’s intake form: the Army Field Manual. It includes instructions that intake personnel examine documents taken into custody with detainees. They don’t just take detainees’ words for it, they look at the documents.

I’m not suggesting that the government’s claim–that the screener just wrote down whatever Latif said–is impossible; I think it’s very possible. But they can only make that argument if they assume the intake screener deviated from the AFM, and therefore a document created under far more regulated conditions than the CIA report, and one created in US–not Pakistani–custody, should not be entitled to the presumption of regularity. Read more →

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Chris Hedges et. al Win Another Round On the NDAA

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You may remember back in mid May Chris Hedges, Dan Ellsberg, Jennifer Bolen, Noam Chomsky, Alexa O’Brien, Kai Wargalla, Birgetta Jonsdottir and the US Day of Rage won a surprising, nee stunning, ruling from Judge Katherine Forrest in the Southern District of New York. Many of us who litigate felt the plaintiffs would never even be given standing, much less prevail on the merits. But, in a ruling dated May 16, 2012, Forrest gave the plaintiffs not only standing, but the affirmative win by issuing a preliminary injunction.

Late yesterday came even better news for Hedges and friends, the issuance of a permanent injunction. I will say this about Judge Forrest, she is not brief as the first ruling was 68 pages, and todays consumes a whopping 112 pages. Here is the setup, as laid out by Forrest (p. 3-4):

Plaintiffs are a group of writers, journalists, and activists whose work regularly requires them to engage in writing, speech, and associational activities protected by the First Amendment. They have testified credibly to having an actual and reasonable fear that their activities will subject them to indefinite military detention pursuant to § 1021(b)(2).

At the March hearing, the Government was unable to provide this Court with any assurance that plaintiffs’ activities (about which the Government had known–and indeed about which the Government had previously deposed those individuals) would not in fact subject plaintiffs to military detention pursuant to § 1021(b)(2). Following the March hearing (and the Court’s May 16 Opinion on the preliminary injunction), the Government fundamentally changed its position.

In its May 25, 2012, motion for reconsideration, the Government put forth the qualified position that plaintiffs’ particular activities, as described at the hearing, if described accurately, if they were independent, and without more, would not subject plaintiffs to military detention under § 1021. The Government did not–and does not–generally agree or anywhere argue that activities protected by the First Amendment could not subject an individual to indefinite military detention under § 1021(b)(2). The First Amendment of the Read more →

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DOD Gets Awfully Sensitive When They’re Cornered

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Just about every outlet that reported on George Little’s whine about Matt Bissonnette’s book yesterday claimed that Little had said there was “classified” information in the book.[all emphasis in this post mine]

CNN: A Pentagon official said Tuesday that a former Navy SEAL who helped kill Osama bin Laden included classified material in his new book and did not follow protocol for pre-publication review.

AP: George Little said that an official review of the book, “No Easy Day,” determined that it reveals what he called “sensitive and classified” information.

ABC: Top Pentagon officials said today that a controversial firsthand accountof the nighttime raid that killed Osama bin Laden written by a former U.S. Navy SEAL reveals classified information and could endanger other special operations servicemen.

Fox: “Sensitive and classified information is contained in the book,” Pentagon spokesman George Little told reporters in Washington. “It is the height of irresponsibility not to have this material checked.”

The reality is far more telling. Little did not commit to saying there was classified information in the book until cornered after repeated questions by the press. The transcript is worth reviewing in more detail since, if this ever gets litigated, Little’s hesitation to claim the book included classified information will become an issue.

In response to the first question on Bissonnette’s book, Little gave what was probably his rehearsed answer to it. He focused on Bissonnette’s failure to do a prepublication review (remember, Bissonnette’s lawyer, Bob Luskin, says such a review was recommended but not required). And when discussing the actual review, Little said there was sensitive information; only later, speaking more generally, did Little say “sensitive and classified.”

George, on the separate issue, on the SEAL book, has the department made a decision yet on whether to take any legal action regarding this and on whether or not there is classified material in the book, and if there — if, indeed, you’ve determined there is, can you tell us what it is and what action may or may not be taken at this point?

MR. LITTLE: Thank you very much, Lita, for that question. We continue to review our options when it comes to legal accountability for what in our estimation is a material breach of nondisclosure agreements that were signed by the author of this book.

With respect to the information that’s contained in the book, people inside the department have read it. And we do have concerns about some of the sensitive information that we believe is contained in it. I’m not going to get out ahead of what the process going forward might be and what options we might decide to pursue, but this is a very serious concern that we have.

When it comes to sensitive special operations missions, such as the operation that took down Osama bin Laden, it is important that those who are involved in such operations take care to protect sensitive and classified information. And if I had been part of the raid team on the ground and I had decided to write a book about it, it wouldn’t have been a tough decision for me to submit the book for pre-publication review. That is common sense. It’s a no-brainer. And it did not happen.

Thus far into the process, the press wasn’t buying Little’s slight of hand. He gets a followup on the sensitive/classified distinction, which he dodges by focusing on pre-publication review again.

Q: Will you — just as a follow-up — you made a distinction between sensitive and classified. So is the determination that it is sensitive information there and not classified? And also, is there any determination on whether the book will be sold on — on bases (off mic)

MR. LITTLE: There’s been no directive from this department to withhold sale of the book from military exchanges. This book is being made widely available in bookstores and online. It is not our typical practice to get into the business of deciding what and what does not go on bookshelves in military exchanges. But that doesn’t mean in any way, shape or form that we don’t have serious concerns about the fact that this process of pre-publication review was not followed.

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Did the CIA Agents in Mexico Shoot at Their Pursuers?

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The NYT’s story on the CIA officers shot at in Mexico–and possibly the WaPo one as well–appear to be partly a response to the publication of the CIA connection in Mexico’s lefty La Jornada, which published a series of stories on the event yesterday.  But there are details in those stories not treated in the US stories I’ve seen–details that increase my questions about whether the CIA guys shot at their pursuers.

The NYT, for example, repeats the Mexico Navy’s clarification of its original release that their captain wasn’t actually driving the car, but was sitting in the back seat.

The Mexican Navy said Tuesday in a statement that an American was driving the vehicle and that during the attack the captain, who was handling logistics and translating for the men, remained in the back seat calling for help on his cellphone.

The men were wounded, the Navy said, when the rain of bullets managed to tear through the car’s protective armor.

This appears to be an attempt to answer how the Americans got hurt inside a bullet proof car. But it actually presents more problems than it answers. The pictures of the Land Cruiser show three main kinds of bullet damage to the car: the tires appear to have been shot out (and something may have happened to the back right wheel), at least four bullets hit–and may have pierced–the rear window of the vehicle, and a ton of shots hit–but don’t appear to have pierced–the passenger window. But there appears to be less damage to the driver side, mostly bullets in the steel. Did the bullets enter the rear window and go past the Mexican captain to injure Americans in the front seat? And how do such shots injure people in the leg and stomach–through the steel doors? Remember, too, that some reports say 30 bullets hit the car, but 60 shell casings were found at the scene.

Which is why I find it interesting that Mexico’s Attorney General is asking the Federales for the guns used in the attack.

Oh, and by the way, according to this article, the CIA officers were shooting instructors who were training the Mexican Navy’s special forces on, among other things, sharpshooting.  Are you telling me shooting instructors had no guns in the car–not even the Mexican Navy captain–as reports say over and over?

Though of course if they were really training the Navy on shooting, it’d be more likely that they were JSOC or retired JSOC, which might explain why all these stories came out saying they’re CIA, which is bad, but still not as bad as active duty military would be.

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Matt Bissonnette’s Information Operation Against a Broken System of Secrecy

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“We all knew the deal. We were tools in the toolbox, and when things go well they promote it. They inflate their roles.” –Mark Bissonnette

HuffPo and AP/CBS have an initial description of how Matt Bissonnette’s story of the Osama bin Laden killing differs from the story the Administration has told. While the details are interesting, I expect we can learn as much about how a well-trained SEAL manages InfoOps as we learn about the events of Bissonnette’s life from the book.

As I pointed out yesterday, once DOD got a copy of the book, the publisher announced it would almost double the initial print run and advance the publication date by a week–making it much harder for DOD to pre-empt the unredacted publication by buying up the copies. Bissonnette has also already planned to give at least some of the proceeds of the book to the families of SEALs who have died (something that former CIA officer Ishmael Jones also did), meaning DOD can’t punish him by seizing his earnings.

And now, with just the bits of information already public about the book, Bissonnette has made it very difficult for the government to prosecute him–and certainly not before the election.

The most interesting detail that both HuffPo and AP report is that Osama bin Laden never put up a fight.

“We were less than five steps from getting to the top when I heard suppressed shots. BOP. BOP,” writes Owen. “I couldn’t tell from my position if the rounds hit the target or not. The man disappeared into the dark room.”

Team members took their time entering the room, where they saw the women wailing over Bin Laden, who wore a white sleeveless T-shirt, loose tan pants and a tan tunic, according to the book.

Despite numerous reports that bin Laden had a weapon and resisted when Navy SEALs entered the room, he was unarmed, writes Owen. He had been fatally wounded before they had entered the room.

“Blood and brains spilled out of the side of his skull” and he was still twitching and convulsing, Owen writes. While bin Laden was in his death throes, Owen writes that he and another SEAL “trained our lasers on his chest and fired several rounds. The bullets tore into him, slamming his body into the floor until he was motionless.”

While I’m sure there are many details that are of greater tactical sensitivity, this one differs just enough from the previously official version that it makes it toxic to pursue. After all, prosecuting Bissonnette would require acknowledging that Bissonnette violated his non-disclosure agreement, which would in turn requiring admitting to the truth of what he presents in his book. Read more →

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