Gang Warfare to Protect Israel’s Secrets

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Easily the most overlooked line in David Sanger’s story on StuxNet is this one:

Mr. Obama concluded that when it came to stopping Iran, the United States had no other choice.

If Olympic Games failed, he told aides, there would be no time for sanctions and diplomacy with Iran to work. Israel could carry out a conventional military attack, prompting a conflict that could spread throughout the region.

It’s a sentiment he repeats in this worthwhile interview:

FP: There haven’t been thoughtful discussions about the consequences or the ethics or the international legal ramifications of this approach. Let’s imagine for a moment that you’re [Iranian President] Mahmoud Ahmadinejad and you are confronted with this. Isn’t your first reaction, “How is them blowing up Natanz with a code any different from them blowing up Natanz with a bomb? And doesn’t that justify military retaliation?”

DS: Blowing it up with computer code, rather than bombs, is different in one big respect: It very hard for the Iranians in real time to know who the attacker was, and thus to make a public case for retaliating. It takes a long time to figure out where a cyber attack comes from.

That was a big reason for the U.S. and Israel to attack Natanz in this way. But it wasn’t the only reason, at least from the American perspective. One of the main driving forces for Olympic Games was to so wrap the Israelis into a project that could cripple Natanz in a subtle way that Israel would see less of a motivation to go about a traditional bombing, one that could plunge the Middle East into a another war. [my emphasis]

A key purpose of StuxNet, according to Sanger, was not just to set back the Iranian nuke program. Rather, it was to set back the nuke program in such a way as to set back Israel’s push for war against Iran.

With that in mind, consider the way the article blamed the Israelis for letting StuxNet escape.

An error in the code, they said, had led it to spread to an engineer’s computer when it was hooked up to the centrifuges. When the engineer left Natanz and connected the computer to the Internet, the American- and Israeli-made bug failed to recognize that its environment had changed. It began replicating itself all around the world. Suddenly, the code was exposed, though its intent would not be clear, at least to ordinary computer users.

“We think there was a modification done by the Israelis,” one of the briefers told the president, “and we don’t know if we were part of that activity.”

Mr. Obama, according to officials in the room, asked a series of questions, fearful that the code could do damage outside the plant. The answers came back in hedged terms. Mr. Biden fumed. “It’s got to be the Israelis,” he said. “They went too far.”

After having explained that the whole point of StuxNet was to stop the Israelis from bombing Iran, the article then goes on to say that what alerted the Iranians to StuxNet’s presence in their systems–and effectively gave a very dangerous weapon to hackers around the world–was an Israeli modification to the code.

The Israelis went too far.

Those details are, IMO, some of the most interesting new details, not included the last time David Sanger confirmed the US and Israel were behind StuxNet on the front page of the NYT.

How very telling, then, that of all the highly revealing articles that have come out during this Administration–of all of the highly revealing articles that have come out in general, including Sanger’s earlier one revealing some of the very same details–Congress is going apeshit over this one.

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UndieBomb 2.0: Defying the Trend

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In his story describing the lowered standards for drone strikes the other day, Greg Miller described multiple officials admitting that we’re increasing the number of drone strikes in Yemen even though there’s no evidence more people are “migrat[ing]” to join AQAP.

U.S. officials said the pace has accelerated [in the last five months] even though there has not been a proliferation in the number of plots, or evidence of a significantly expanded migration of militants to join AQAP.

That may conflict with John Brennan’s claims that AQAP has tripled in size since the UndieBomber 1.0. It may suggest that that growth all took place before the last year. Or it may suggest–particularly given the use of the word “migration”–that these officials are distinguishing between non-Yemenis and local insurgents allying with AQAP.

Whichever it is, the NCTC just reported, last year attacks from AQAP didn’t go up either–in fact, they went down slightly.

Attacks by AQ and its affiliates increased by 8 percent from 2010 to 2011. A significant increase in attacks by al-Shabaab, from 401 in 2010 to 544 in 2011, offset a sharp decline in attacks by al-Qa‘ida in Iraq (AQI) and a smaller decline in attacks by al-Qa‘ida in the Arabian Peninsula (AQAP) and al-Qa‘ida in the Islamic Maghreb (AQIM).

Everyone but John Brennan–who has a history of lying about drone strikes–seems to be saying that the risk from terrorism, while still real, is going down in Yemen, not up.

UndieBomb Plot 2.0, to the limited degree that it was a general plan of Ibrahim al-Asiri and not a plot from Mohammed bin Nayef, appears to defy the trend.

Which brings me to something that’s been gnawing at me about the public claims about UndieBomb 2.0.

Imagine you’re Ibrahim al-Asiri. A Saudi-Brit shows up, trains, impresses the trainers. He offers to do a suicide mission and–while you don’t meet with him personally–the trainers decide to send him off on UndieBomb Plot 2.0. He leaves and you wait, and wait, and wait. And … nothing. That is, according to all the people complaining that the AP reported the government had thwarted a plot, what the government had intended.

If you’re AQAP, wouldn’t it be more suspicious hearing nothing about the guy who just walked off with your UndieBomb than hearing John Brennan boasting that he had thwarted the UndieBomb. Not bragging that the Saudis had infiltrated AQAP, which is what Brennan ended up bragging about. Just a big dog-and-pony about thwarting an attack, as the Administration did when it intercepted the toner cartridge plot.

Probably, the AP’s version of the story is correct and the Administration planned a dog-and-pony show, which would have left Asiri with the impression that the Saudi-Brit was what he appeared to be, an aspiring suicide bomber that got caught.

One alternative is that UndieBomber 2.0 actually absconded with an UndieBomb, but intended to go back into AQAP and continue to collect information. I wonder, though: Giving the increasing number of targets in Yemen, you’d think it’d be at least as important to collect information about AQAP plans in Yemen as to obtain the latest UndieBomb in the guise of an attack on the US.

But I’m puzzled by the claim that the Administration wasn’t going to announce they had thwarted the plot. That doesn’t make sense.

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UndieBomb 2.0’s Handler

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In honor of the Queen’s Jubliee, the Times of London’s paywall is down today (with free registration). So now’s a good time to read the paper’s good coverage on Yemen from Iona Craig and others (see her description of one of the civilians injured in Jaar; her description of Brennan’s visit in Yemen just as our Special Forces (and Marines) ramped up the fight in Yemen; or her description of how the local tribe in Lawder is taking on AQAP).

But I wanted to take a look at this story on UndieBomb 2.0 by two other reporters, with some of the more extensive comments about the UndieBomber’s handler. Note, much of the article generally–including some details on how UndieBomber 2.0 infiltrated AQAP–relies on Mustafa Alani, last seen at this blog both pushing the AQAP threat as well as boasting of the important Saudi role in collecting HUMINT on it.

About a year ago [UndieBomber 2.0] moved to Yemen and, like Abdulmutallab before him, enrolled at an Islamic or Arabic language school in Sana’a, the capital, in the hope of being “talent-spotted” by AQAP. He was accompanied by a handler at the school, who briefed Saudi intelligence on a daily basis.

Within three months, Alani said, the organisation had taken the bait — and he was soon being trained at a network of safe houses.

“He received instruction on how to avoid detection at the airport, how to behave,” Alani said. “He was able to convince Al-Qaeda he was genuinely ready to carry out the mission.”

The agent never met Asiri, but the device he described to his handler pointed to a more advanced version of the “underpants” bomb.

[snip]

The agent was entrusted with the bomb and told by AQAP to reserve a seat on a transatlantic flight. The booking was never made. Instead, he and his handler were whisked out of Yemen and the device was handed over to the CIA on about April 20.

Now, Alani is supposed to be tied closely to Saudi intelligence services. If this story is correct, it’s a remarkably, willful, on-the-record exposure of how the Saudis managed the operation out of a language school in Sanaa. If it is true, it would indicate one of the reasons this leak (which of course was substantially confirmed, at least, by foreign sources) was so damaging: because it exposed the UndieBomber, but also exposed the handler in Yemen.

If it is true, then consider the timeline: UndieBomber and his handler were “whisked out of Yemen” on about April 20. Robert Mueller went for a 45 minute meeting in Yemen having little to do with his core authorities on April 24, suggesting he obtained the UndieBomb and ferried it back to the States. Fahd al-Quso was killed (reportedly netting UndieBomber a $5 million reward) on May 6. The White House informed the AP that some security concerns had been resolved on May 7, which led to their story preempting the White House announcement on May 8.

That is, if the timeline laid out in this story (presumably largely by Alani) is true, then the handler was removed well before the story came out, and we succeeded in targeting Quso over two weeks after UndieBomber and his handler were removed. None of that tells us whether we might have gotten bombmaker Ibrahim al-Asiri had the role of the Saudi infiltrator not been exposed, in part by foreign sources, on May 8.

But it provides one narrative of what happened.

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The “Kill List” Is a Shiny Object

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I recognize the term “Kill List” has some political advantages. It’s a concise way to convey the cold brutality of our use of drones. Launching a petition for a Do Not Kill list–on the White House’s own website!–is a clever use of social media.

But the “Kill List” is a shiny object.

That’s because it propagates the myth that everyone we’re killing is a known terrorist. It propagates the myth that the outdated vetting process John Brennan wants to publicize to convince the American public we use a very deliberative process before killing people with drones covers all drone killings. It propagates the myth that the government plans out each and every drone strike so thoroughly as to have the President sign off on it.

Mr. Obama is the liberal law professor who campaigned against the Iraq war and torture, and then insisted on approving every new name on an expanding “kill list,” poring over terrorist suspects’ biographies on what one official calls the macabre “baseball cards” of an unconventional war.

It propagates the myth that the only innocents killed in drone strikes–19 year old Yemeni farmer Nasser Salim killed in the Fahd al-Quso drone strike, the girl Baitullah Mehsud had just married, Abdulrahman al-Awlaki–had the poor judgment to stand next to one of the named people on one of America’s Kill Lists.

The reference to and focus on a Kill List hides precisely the most controversial use of drones outside of Afghanistan: the targeting of patterns, not people.

There is absolutely no reason to believe, for example, that Obama–or even John Brennan–knew the identity of the up to 8 civilians who were killed by a drone in Jaar, Yemen, on May 15. All anyone knew about them, according to reporting, is that they ran out after an earlier drone strike to look at the impact site. Boom! They were never on any Kill List, but they are nonetheless just as dead as Quso is.

At precisely the moment the press reported the White House had embraced signature strikes in Yemen and pulled control of those strikes into the White House, John Brennan rolled out a propaganda campaign to focus on the deliberation that goes into the Kill List–that is, into drone killings not covered by the new signature strike policy.

The effort, very clearly, is an attempt to distract attention from those drone killings that don’t involve the kind of deliberation so carefully portrayed by the NYT.

A shiny object. One that is working.

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What Happened to Mehsud’s Dirty Bomb?

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As I alluded the other day, the story the NYT told about the targeting of Baitullah Mehsud differs in key respects from the story Joby Warrick told in his book, The Triple Agent. And since the discrepancy involves yet another unsubstantiated nuclear claim, and since Mehsud’s targeting led directly to the double agent Humam Khalil al-Balawi’s successful attack on Khost, the difference is worth mapping carefully.

First, the stories provide different explanations for how Mehsud came to be targeted. As I noted here, Warrick explained that we started targeting Mehsud after NSA intercepted a discussion about nukes.

In May [2009] one such phrase, plucked from routine phone intercepts, sent a translator bolting from his chair at the National Security Agency’s listening station at Fort Meade, Maryland. The words were highlighted in a report that was rushed to a supervisor’s office, then to the executive floor of CIA headquarters, and finally to the desk of Leon Panetta, now in his third month as CIA director.

Nuclear devices.

Panetta read the report and read it again. In a wiretap in the tribal province known as South Waziristan, two Taliban commanders had been overheard talking about Baitullah Mehsud, the short, thuggish Pashtun who had recently assumed command of Paksitan’s largest alliance of Taliban groups. It was an animated discussion about an acquisition of great importance, one that would ensure Mehsud’s defeat of Pakistan’s central government and elevate his standing among the world’s jihadists. One of the men used the Pashto term itami, meaning “atomic” or “nuclear.” Mehsud had itami devices, he said. (62-63)

Shortly thereafter, the government intercepted Mehsud’s shura council debating whether Islam permitted the use of Mehsud’s devices. Ultimately, the CIA concluded Mehsud had acquired a dirty bomb and started targeting him (including killing a close associate in hopes Mehsud would show up at his funeral; the Administration targeted the funeral but didn’t get Mehsud).

The NYT provides a much vaguer story.

The C.I.A. worried that Mr. Mehsud, whose group then mainly targeted the Pakistan government, did not meet the Obama administration’s criteria for targeted killing: he was not an imminent threat to the United States. But Pakistani officials wanted him dead, and the American drone program rested on their tacit approval. The issue was resolved after the president and his advisers found that he represented a threat, if not to the homeland, to American personnel in Pakistan.

The description is not inconsistent with Warrick’s description, which describes the US originally hesitating to target Mehsud and the Paksitanis rejoicing once we did.

U.S. officials had long viewed the Mehsud clan as a local problem for the Pakistanis and were reluctant to agitate yet another militant faction that might cross into Afghanistan to attack U.S. troops.

The dirty bomb threat changed everything. Now the Obama administration was privately talking about targeting Mehsud, and Pakistani officials, for once, were wholeheartedly embracing the idea of a U.S. missile strike on their soil. (71)

Perhaps it was the dirty bomb that convinced the US Mehsud threatened US troops, as described by the NYT. Mind you, it’s unclear whether an as-yet unconfirmed dirty bomb in the hand of a guy targeting Pakistan (the Pakistanis blamed him for Benazir Bhutto’s death) really presented a threat to US troops.  Perhaps it represented–like the insurgents in Yemen–a sufficient threat to our allied government we considered it a threat?

In any case, the NYT doesn’t mention the dirty bomb. Maybe that’s because no one ever found it.

By the time the campaign [against the Pakistani Taliban] ended, the Pakistanis were sitting on a mountain of small arms and enough explosives to supply a madrassa full of suicide bombers. But they found no trace of a dirty bomb. The radiation detectors never sounded at all.

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The Commercial for John Brennan’s Signature Strike Drone Shop TADS

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Between them, the NYT and the Daily Beast published over 10,000 words on Obama’s drone assassination program yesterday. Both stories rolled out the new acronym the Administration wants us to use: terrorist-attack-disruption strikes, or TADS. Neither of them, in those over 10,000 words, once mentioned Abdulrahman al-Awlaki, Anwar al-Awlaki’s 16 year old American citizen son also killed in a drone strike last year.

And while both stories break important new ground and challenge the Administration’s narrative in key ways, the prioritization of TADS over Abdulrahman in them is a pretty clear indication of the success with which the Administration pushed a certain agenda in these stories.

As I suggested at the end of this post, I think John Brennan hoped to use them to reframe recent changes to the drone program to make them more palatable.

Drone Strikes before They Got Worse

Before I lay out the new spin these stories offer on the signature strikes and vetting process rolled out last month, let’s recall what was included in the drone program before these recent changes, in addition to the killing of a 16-year old American citizen.

According to the NYT, the Administration assumed that, “people in an area of known terrorist activity, or found with a top Qaeda operative, are probably up to no good” and therefore all military age males in a strike zone could be targeted. A former senior counterterrorism official calls earlier drone targeting, “guilt by association.” Of signature strikes in Pakistan, a senior (apparently still-serving) official joked “that when the C.I.A. sees ‘three guys doing jumping jacks,’ the agency thinks it is a terrorist training camp.” And one of Obama’s top political advisors, David Axelrod, was attending targeting meetings, injecting a political taint on the program.

Even with all of that, these stories don’t explain how the intense vetting process they describe resulted in the al-Majala strike that made Jeh Johnson think about going to Catholic confession and “shook” John Brennan and President Obama. Or, of course, how we came to kill a 16 year old American citizen.

So all of that was in place before the recent changes to the drone assassination program made it worse. Don’t worry, though, it’s TADS now.

With all that in mind–Abdulrahman and the guilt by association and the three guys doing jumping jacks–let’s look at how these stories reframe signature strikes in Yemen and White House consolidation of the vetting.

Assassination Czar John Brennan’s Drone Shop

Consider the way the articles describe the targeting process. The NYT–relying on a single source, “an administration official who has watched [Obama] closely”–describes a very aggressive vetting process led by the DOD, then nods to a “parallel” process at CIA in countries where it leads the vetting.

The video conferences are run by the Pentagon, which oversees strikes in those countries, and participants do not hesitate to call out a challenge, pressing for the evidence behind accusations of ties to Al Qaeda.

“What’s a Qaeda facilitator?” asked one participant, illustrating the spirit of the exchanges. “If I open a gate and you drive through it, am I a facilitator?” Given the contentious discussions, it can take five or six sessions for a name to be approved, and names go off the list if a suspect no longer appears to pose an imminent threat, the official said. A parallel, more cloistered selection process at the C.I.A. focuses largely on Pakistan, where that agency conducts strikes.

The nominations go to the White House, where by his own insistence and guided by Mr. Brennan, Mr. Obama must approve any name. He signs off on every strike in Yemen and Somalia and also on the more complex and risky strikes in Pakistan — about a third of the total.

Since for the most part, DOD has managed the Yemen and Somalia strikes, while CIA managed the Pakistan ones, this conflates the vetting for personality strikes targeted at known people and the signature strikes the CIA has targeted against men doing jumping jacks in Pakistan. Somehow, al-Majala and Abdulrahman still got through that vetting process, but the exhaustive DOD one was, for the most part, far more rigorous than the CIA one.

Now compare that description of the DOD vetting process with the one the AP gave on May 21, which it says is “mostly defunct.”

The previous process for vetting them, now mostly defunct, was established by Mullen early in the Obama administration, with a major revamp in the spring of 2011, two officials said.

[snip]

Under the old Pentagon-run review, the first step was to gather evidence on a potential target. That person’s case would be discussed over an interagency secure video teleconference, involving the National Counterterrorism Center and the State Department, among other agencies. Among the data taken into consideration: Is the target a member of al-Qaida or its affiliates; is he engaged in activities aimed at the U.S. overseas or at home?

If a target isn’t captured or killed within 30 days after he is chosen, his case must be reviewed to see if he’s still a threat. [my emphasis]

That is, that free-ranging discussion, the process by which targets could come off the list as well as get put on it? At least according to the AP, it is now defunct–or at least “less relevant.” Read more →

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Panetta: We Do Not Share Anything Inappropriate with Anybody … Except Our Assets’ Identities

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When Leon Panetta confirmed that Shakeel Afridi was working with the CIA when he used a vaccination program to collect intelligence on Osama bin Laden, he likely made it much harder for Pakistan to release the doctor, or even give him a light sentence. Had the Pakistanis gone easy on Afridi after that confirmation, it would have amounted to the government admitting it had ceded the government’s sovereignty to the war on terror.

While I’m sure he had authorization to confirm the ties, there are a whole bunch of reasons it was stupid to do so (including the delegitimization of public health programs).

Panetta’s own role in increasing the likelihood Afridi would face harsh punishment from Pakistan didn’t prevent him from complaining about Afridi’s fate on ABC’s Sunday show, however, claiming he just couldn’t understand why a country would punish one of its citizens working as a spy for an ally.

“It is so difficult to understand and it’s so disturbing that they would sentence this doctor to 33 years for helping in the search for the most notorious terrorist in our times,” Panetta told me in a “This Week” interview.

“This doctor was not working against Pakistan. He was working against al Qaeda,” Panetta added. “And I hope that ultimately Pakistan understands that, because what they have done here … does not help in the effort to try to reestablish a relationship between the United States and Pakistan.”

I sort of wish Jake Tapper had asked Panetta if he’s ever heard of Jonathan Pollard, who we’ve imprisoned, thus far, for 25 years, for spying for an ally. Even more, I’m, um, disappointed that Tapper didn’t ask Panetta WTF he confirmed Afridi’s work for the US, particularly since Tapper himself commented on Panetta’s earlier comments this morning.

Panetta in January was first US official to on-the-record confirm the doctor’s help

More curious still, when Tapper asked Panetta why the Administration shared so much information with Hollywood about the Osama bin Laden raid–and Panetta claimed the Administration “do[es] not share anything inappropriate with anybody”–Tapper didn’t ask the obvious follow-up. Read more →

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The Assassination Czar’s War Crimes Dodge: Revisiting John Brennan’s Targeted Killing Speech

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Now that John Brennan is in charge of selecting which patterns of behavior we should target with drones, it ought to be easy to charge him with war crimes. The at least eight civilians we killed in Jaar a number of weeks after Brennan seized control of targeting? John Brennan killed them, presumably based not on intelligence about who they were and what ties to AQAP they had, but because they ran out of a house after an earlier strike.

John Brennan is choosing to target people in Yemen without making adequate efforts to avoid civilian casualties. Given that we know he’s making these choices, you’d expect someone to try to hold him accountable.

Of course, such an effort would present all kinds of difficulties. You can’t really make a legal case against Brennan based on anonymous sources in an AP story. Furthermore, moving the drone program into the National Security Council makes it inaccessible to FOIA and, probably, to full Congressional oversight.

Most of all, though, Brennan appears to be preemptively crafting his defense.

When Brennan gave his drone speech on April 30, I–and a few other people–noted that the speech was already outdated. Brennan did admit, unequivocally, that we use drones to kill people.

So let me say it as simply as I can.  Yes, in full accordance with the law, and in order to prevent terrorist attacks on the United States and to save American lives, the United States Government conducts targeted strikes against specific al-Qaida terrorists, sometimes using remotely piloted aircraft, often referred to publicly as drones.

Yet he spoke repeatedly of targeting specific individuals.

Without question, the ability to target a specific individual, from hundreds or thousands of miles away, raises profound questions.

[snip]

In this armed conflict, individuals who are part of al-Qaida or its associated forces are legitimate military targets. [my emphasis]

Thus, he wasn’t talking about the program in Yemen that–perhaps 10 days earlier–had been expanded to target patterns rather than individuals. Rather, he was pretending that the program remained limited to personality strikes, strikes against known targets.

The speech always seemed like an attempt to put the best spin on the program. But the approach makes even more sense now that we know Brennan is the one who has legal liability for making these targeting decisions.

When and if anyone were to charge Brennan for war crimes for targeting civilians, for example, he will point back to these paragraphs as “proof” of his “belief” that we were not targeting civilians.

Targeted strikes conform to the principles of distinction, the idea that only military objectives may be intentionally targeted and that civilians are protected from being intentionally targeted.  With the unprecedented ability of remotely piloted aircraft to precisely target a military objective while minimizing collateral damage, one could argue that never before has there been a weapon that allows us to distinguish more effectively between an al-Qaida terrorist and innocent civilians.

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Flaunting Shakeel Afridi’s CIA Ties Appears Not to Have Worked All that Well

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When Leon Panetta went on 60 Minutes and confirmed Pakistani doctor Dr. Shakeel Afridi was working for the US when he faked vaccinations in Abbottbad to collect information from Osama bin Laden’s compound, I noted the hypocrisy of his public confirmation of the CIA role, but assumed the Administration had approved the confirmation.

Meanwhile, tomorrow the above clip will be shown on 60 Minutes, showing Panetta confirming that the Pakistani doctor who conducted fake vaccinations in Abbottabad, Pakistan in order to get a glimpse into Osama bin Laden’s compound was, in fact, working for the CIA.

Panetta also acknowledged that Shikal Afridi, the Pakistani doctor conducting health tests in the village in an effort to collect DNA and verify bin Laden’s presence, was in fact working for the U.S. Afridi was arrested and charged with treason by the government of Pakistan. “I’m very concerned about what the Pakistanis did with this individual…who in fact helped provide intelligence that was very helpful with regards to this operation,” says Panetta. “He was not in any way treasonous towards Pakistan…Pakistan and the United States have a common cause here against terrorism…and for them to take this kind of action against somebody who was helping to go after terrorism, I just think is a real mistake on their part,” he tells Pelley.

Not only does this presumably put more pressure on Pakistan to convict Afridi of treason (he remains in custody), but it exacerbates the problem of having used a vaccination campaign as cover in the first place, confirming on the record that similar campaigns in poor countries might be no more than a CIA front.

I presume someone in the White House gave Panetta permission to go blab this on 60 Minutes; I assume he’s in no more legal jeopardy than Dick Cheney was when he insta-declassified Valerie Plame’s identity.

I suppose that last line–“I just think [arresting Afridi] is a real mistake on their part”–was intended as an implicit threat.

But Panetta’s move–going on TV to suggest that Pakistan was wrong to prosecute one of its citizens working as a spy for the US–risked making it harder for Pakistani authorities to release Afridi by publicizing the ties (in the analogous situation with Ray Davis, the Administration demanded the US press hold all stories confirming Davis’ ties).

Moreover, between the time the Pakistanis arrested Afridi and the time Panetta made these statements, the US arrested Syed Ghulam Nabi Fai for serving as an unregistered foreign agent, then convicted him in December on conspiracy and IRS charges. Yes, he was allowed to plead to lesser charges; yes, he was ultimately sentenced to only 2 years. But Fai’s prosecution made it clear we insist on sovereignty even in matters of political influence, much less spying a mile or so from a key military academy.

In any case, it didn’t work. As Jim has already noted, today Pakistan sentenced Afridi to a whopping 33 years in prison for treason.

Funny how other nations don’t like being told our covert operations should take precedence over their sovereignty.

Update: In a joint statement, Carl Levin and John McCain have suggested Pakistan may lose funding over this:

It is shocking and outrageous that Dr. Shakil Afridi, the Pakistani doctor who assisted the United States in the search for Osama bin Laden, has been sentenced to 33 years in prison for the crime of treason. What Dr. Afridi did is the furthest thing from treason. It was a courageous, heroic, and patriotic act, which helped to locate the most wanted terrorist in the world – a mass murderer who had the blood of many innocent Pakistanis on his hands.

Dr. Afridi’s actions were completely consistent with the multiple, legally-binding resolutions passed over many years by the United Nations Security Council, which required member-states to assist in bringing Osama bin Laden and his Al-Qaeda network to justice. Dr. Afridi set an example that we wish others in Pakistan had followed long ago. He should be praised and rewarded for his actions, not punished and slandered.

We call upon the Pakistani government to pardon and release Dr. Afridi immediately. At a time when the United States and Pakistan need more than ever to work constructively together, Dr. Afridi’s continuing imprisonment and treatment as a criminal will only do further harm to U.S.-Pakistani relations, including diminishing Congress’s willingness to provide financial assistance to Pakistan. [my emphasis]

 

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SCOTUS Cert Grant In Clapper Takes Key 9th Circuit Cases Hostage

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Marcy noted briefly Monday morning, the Supreme Court granted certiorari in Clapper v. Amnesty International:

SCOTUS did, however, grant cert to Clapper v. Amnesty, which I wrote about here and here. On its face, Clapper is just about the FISA Amendments Act. But it also has implications for wiretap exceptions–and, I’ve argued–data mining exceptions to the Fourth Amendment. In any case, SCOTUS seems interested in reversing the 2nd Circuit opinion, which had granted standing to people whose work had been chilled by the passage of the FAA. Also, as I hope to note further today, SCOTUS’ Clapper decision may also impact the Hedges v. Obama ruling from last week.

As Marcy indicated, there is nothing good afoot from SCOTUS taking cert in Clapper; if they wanted to leave the very nice decision of the 2nd Circuit intact, they simply leave it intact and don’t grant review. Oh, and, yes, Marcy is quite right, it’s a very safe bet that Clapper will “impact” the also very nice recent decision in Hedges, which is, itself, headed with a bullet to the 2nd Circuit.

There was, of course, much discussion of the significance of the Clapper cert grant yesterday on Twitter; one of the best of which was between Marcy, Lawfare’s Steve Vladeck and, to a lesser extent, me. To make a long story a little shorter, I said (here and here):

See, and I HATE saying this, I think Kennedy will do just that+then same 5 will kill al-Haramain once it gets to SCOTUS and then they will have capped the Bush wiretapping well completely and closed off standing significantly for the future.

Yikes, I did not contemplate just how true this statement was; the Clapper cert grant has already had a far deeper and more pernicious effect than even I suspected. This morning, in a move I do not believe anybody else has caught on to yet, the 9th Circuit quietly removed both al-Haramain and the CCR case encaptioned In Re: NSA Telecommunications Litigation/CCR v. Obama from the oral argument calendar that has long been set for June 1 in the old 9th Circuit Pasadena courthouse. The orders for both al-Haramain and CCR are identical, here is the language from the al-Haramain one:

Argument in this case scheduled for June 1, 2012 in Pasadena, California, is vacated pending the Supreme Court’s decision in Clapper v. Amnesty Int’l, No. 11- 1025. The court may order supplemental briefing following the Supreme Court’s decision. Oral argument will be rescheduled.

Whoa. This is extremely significant, and extremely unfortunate. Also fairly inexplicable. Entering the order for CCR makes some sense, since it involves the same “fear of surveillance” standing issue as is at issue in Clapper; but doing it for al-Haramain makes no sense whatsoever, because al-Haramain is an “actual” surveillance standing case.

There simply is no issue of the claimed, putative, standing concern that permeates Clapper and CCR. Well, not unless the 9th Circuit panel thinks the Supreme Court might speak more broadly, and expand the parameters wildly, in Clapper just as they did in Citizens United. That would be a pretty ugly path for the Supreme beings to follow; but, apparently, not just a cynical bet on my part, but also a bet the 9th Circuit immediately placed as well.

To be fair, even positive forward thinking players, like Steve Vladeck, thought the lower courts might be copacetic, or that the Supremes might comply. Maybe not so much. I know, shocking. Here is a glimpse, through Vladeck, of the situation:

But at a more fundamental level, there’s one more point worth making: Readers are likely familiar with Alex Bickel’s Passive Virtues, and his thesis that, especially on such sensitive questions where constitutional rights intersect with national security, courts might do best to rely on justiciability doctrines to duck the issue—and to thereby avoid passing upon the merits one way or the other. [Think Joshua at the end of WarGames: “The only winning move is not to play.”] And at first blush, this looks like the perfect case for Bickel’s thesis, given the implications in either direction on the merits: recognizing a foreign intelligence surveillance exception and thereby endorsing such sweeping, warrantless interceptions of previously protected communications vs. removing this particular club from the government’s bag…

And yet, the foreign intelligence surveillance exception only exists because it has already been recognized by a circuit-level federal court, to wit, the FISA Court of Review. Whether the passive virtues might otherwise justify judicial sidestepping in such a contentious case, the fact of the matter is that this is a problem largely (albeit not entirely, thanks to the FISA Amendments Act) of the courts‘ making. To duck at this stage would be to let the FISA Court of Review—the judges of which are selected by the Chief Justice—have the last word on such a momentous question of constitutional law. In my view, at least, that would be unfortunate, and it’s certainly not what Bickel meant…

Back to al-Haramain and the effects in the 9th Circuit. Here is the latest, taken from the Motion for Reconsideration filed late yesterday by al-Haramain, Wendell Belew and Asim Ghafoor:

The question presented in Clapper is thus wholly unrelated to the issues presented on the defendants’ appeal in the present case. The Supreme Court’s decision in Clapper will have no effect on the disposition of the present case. Thus, there is no reason to delay the adjudication of this appeal pending the decision in Clapper, which would only add another year or more to the six-plus years that this case has been in litigation.

It makes sense for the Court to have vacated the oral argument date for Center for Constitutional Rights v. Obama, No. 11-15956, which involves theories of Article III standing similar to those in Clapper. It does not, however, make sense in the present case, where Article III standing is based on proof of actual past surveillance rather than the fear of future surveillance and expenditures to protect communications asserted in Clapper.

Yes, that is exactly correct.

And, therein, resides the problem with Vladeck’s interpretation of what is going on with the Clapper case. Steve undersold, severely, just how problematic Clapper is. Both the discussion herein, and the knee jerk action of the 9th Circuit, the alleged liberal scourge of Democratic Federal Appellate Courts, demonstrate how critical this all is and why Clapper is so important.

Clapper has not only consumed its own oxygen, it has consumed that of independent, and important, nee critical, elements of the only reductive cases there are left in the United States judicial system in regards to these ends. That would be, at an irreducible minimum, al-Haramain in the 9th Circuit.

If you have forgotten about al-Haramain, and the proceedings that took place in the inestimable Vaughn Walker’s, court, here it is. Of all the attempts to attack the Bush/Cheney wiretapping crimes, al-Haramain is the only court case that, due to its unique circumstances, has been successful. It alone stands for the proposition that mass crimes were, in fact, committed. al-Haramain had a tough enough road ahead of it on its own, the road has become all the more treacherous now because of Clapper.

The 9th Circuit should grant the motion for reconsideration and reinstate al-Haramain on the oral argument calendar, but that is quite likely a longshot at this point. Expect the DOJ to file a very aggressive response, they are undoubtedly jumping for joy at this stroke of good fortune and will strive to protect it.

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