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.

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.

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.

Read more →

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 →

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 →

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.

Read more →

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]

 

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.

What the White House “Official Announcement” of UndieBomb 2.0 Would Have Looked Like

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As I’ve been tracing, there’s a pissing contest going on between the AP and John Brennan over the roll-out of the UndieBomb 2.0 “plot” earlier this month.

When the AP first broke the story on UndieBomb 2.0, it explained that it had held the story but decided to publish before the Administration made an official announcement on what would have been Tuesday, May 8.

The AP learned about the thwarted plot last week but agreed to White House and CIA requests not to publish it immediately because the sensitive intelligence operation was still under way.

Once those concerns were allayed, the AP decided to disclose the plot Monday despite requests from the Obama administration to wait for an official announcement Tuesday. [my emphasis]

Since that time, the Administration has tried to claim they never intended to make an official announcement about the “plot.” They did so for a May 9 LAT story.

U.S. intelligence officials had planned to keep the bomb sting secret, a senior official said, but the Associated Press learned of the operation last week. The AP delayed posting the story at the request of the Obama administration, but then broke the news Monday.

“When the AP got it and started talking about it, it caused all kinds of problems with the operation,” said a U.S. official who would not be quoted by name discussing the classified operation. “The investigation never went to its full conclusion.”

AP spokesman Paul Colford said the news agency held off publishing until U.S. officials told the AP that security concerns were allayed.

“We were told on Monday that the operation was complete and that the White House was planning to announce it Tuesday,” he said.

Then the White House tried misdirection for a Mark Hosenball story last week–both blaming AP for information about the Saudi infiltrator the AP didn’t break, and attributing Brennan’s comments implying the plot involved an infiltrator to hasty White House efforts to feed the news cycle spin respond to the story.

According to National Security Council spokesman Tommy Vietor, due to its sensitivity, the AP initially agreed to a White House request to delay publication of the story for several days.

But according to three government officials, a final deal on timing of publication fell apart over the AP’s insistence that no U.S. official would respond to the story for one clear hour after its release.

When the administration rejected that demand as “untenable,” two officials said, the AP said it was going public with the story. At that point, Brennan was immediately called out of a meeting to take charge of damage control.

[snip]

The AP denies any quid pro quo was requested by them or rejected by the White House. “At no point did AP offer or propose a deal with regard to this story,” said AP spokesman Paul Colford.

[snip]

The White House places the blame squarely on AP, calling the claim that Brennan contributed to a leak “ridiculous.”

“It is well known that we use a range of intelligence capabilities to penetrate and monitor terrorist groups,” according to an official statement from the White House national security staff.

“None of these sources or methods was disclosed by this statement. The egregious leak here was to the Associated Press. The White House fought to prevent this information from being reported and ultimately worked to delay its publication for operational security reasons. No one is more upset than us about this disclosure, and we support efforts to prevent leaks like this which harm our national security,” the statement said.

The original AP story, however, made no mention of an undercover informant or allied “control” over the operation, indicating only that the fate of the would-be suicide bomber was unknown. [my emphasis]

Now, there are several problems with this latest White House story. The allegation of a quid pro quo rests on the premise that the Administration was also about to release the information; it’s just a different version of the request to hold the story until an official White House announcement. Furthermore, if the White House didn’t want this information out there, then why brief Richard Clarke and Fran Fragos Townsend, who went from there to prime time news shows and magnified the story?

In short, the White House attempt to blame the release of this story on the AP makes less and less sense every time they change their story.

But there’s another piece of counter-evidence to claims the White House didn’t intend to do a dog-and-pony show boasting of their success at “foiling” an AQAP bomb “plot.”

The dog-and-pony show they rolled out the last time they foiled an AQAP bomb plot targeting the US, four days before the midterm elections in 2010.

Read more →

Judge Enjoins NDAA Section 1021 because Government Implies Speech May Equal Terrorism

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The Court then asked: Give me an example. Tell me what it means to substantially support associated forces.

Government: I’m not in a position to give specific examples.

Court: Give me one.

Government: I’m not in a position to give one specific example.

When Judge Katherine Forrest asked the government, repeatedly, for both generalized clarification and descriptions specific to plaintiffs like Chris Hedges and Brigitta Jonsdottir explaining the scope of Section 1021 of the NDAA, the government refused to give it. Not only was the government unwilling to reassure that even a Pulitzer Prize winning journalist like Hedges would not be indefinitely detained as “a person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces” if he reported on any number of terrorist groups, but it also refused to explain the meaning of the section generally.

Which is the core reason why Forrest not only ruled that the plaintiffs have standing and the case should go forward, but also enjoined any enforcement of Section 1021. In explaining this, she noted that she was forced by the government’s refusal to give clarification to assume that the government believes First Amendment speech is included in the orbit of “substantially supported” that might be indefinitely held under 1021.

It must be said that it would have been a rather simple matter for the Government to have stated that as to these plaintiffs and the conduct as to which they would testify, that § 1021 did not and would not apply, if indeed it did or would not. That could have eliminated the standing of these plaintiffs and their claims of irreparable harm. Failure to be able to make such a representation given the prior notice of the activities at issue requires this Court to assume that, in fact, the Government takes the position that a wide swath of expressive and associational conduct is in fact encompassed by § 1021.

[snip]

This Court is left then, with the following conundrum: plaintiffs have put forward evidence that § 1021 has in fact chilled their expressive and associational activities; the Government will not represent that such activities are not covered by § 1021; plaintiffs’ activities are constitutionally protected. Given that record and the protections afforded by the First Amendment, this Court finds that plaintiffs have shown a likelihood of succeeding on the merits of a facial challenge to § 1021.

I spent much of the day explaining to people why Obama’s Yemen EO is so troubling. I’ve had to describe all the things that have transpired that have criminalized speech since Obama issued a similar EO in 2010–the decision in Holder v. Humanitarian Law Project, the conviction of Tarek Mehanna, and the charging of Bradley Manning with aiding the enemy.

Now I can point to Forrest’s opinion to show that the proposition that journalists might be prosecuted for material support of terrorism for their First Amendment speech–to the extent it’s an extreme proposition–it is the government’s extreme proposition.

Forrest used the government’s stubbornness against it in one other way, too–to get past the rather high bar on whether to issue a preliminary injunction or not. The decision on whether to issue an injunction or not depends on a lot of things. But ultimately, it requires a balancing test between the hardships imposed on the plaintiff and the defense. And since–Forrest explained–the government repeatedly insisted that Section 1021 does no more or less than what the AUMF already does, then enjoining the enforcement of 1021 would not harm the government at all.

In considering whether to issue a preliminary injunction, the Court must consider, as noted above, “the balance of the hardships between the plaintiff and defendant and issue the injunction only if the balance of the hardships tips in the plaintiff’s favor.” Salinger, 607 F.3d at 80.

The Government’s primary argument in opposition to this motion is that § 1021 is simply an affirmation of the AUMF; that it goes no further, it does nothing more. As is clear from this Opinion, this Court disagrees that that is the effect of § 1021 as currently drafted. However, if the Government’s argument is to be credited in terms of its belief as to the impact of the legislation–which is nil–then the issuance of an injunction should have absolutely no impact on any Governmental activities at all. The AUMF does not have a “sunset” provision: it is still in force and effect. Thus, to the extent the Government believes that the two provisions are co-extensive, enjoining any action under § 1021 should not have any impact on the Government.

While most of Forrest’s ruling involved hoisting the government on its own obstinate petard, she also left a goodie in her ruling for the higher courts that will surely review her decision after the government surely appeals (unless Congress passes a fix to the NDAA tomorrow, as they might). Forrest established the importance of speech by pointing to … Anthony Kennedy’s opinion in Citizens United.

In Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010), Justice Kennedy wrote that “[s]peech is an essential mechanism of democracy, for it is the means that hold officials accountable to the people . . . . The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a pre-condition to enlightened self-government.” Id. at 899. Laws that burden political speech are therefore subject to strict scrutiny. Id. at 898. “The First Amendment protects speech and speaker, and the ideas that flow from each.” Id. at 899.

If corporations can avail themselves of unlimited campaign speech, then mere journalists and activists ought to be able to engage in political speech without being indefinitely detained.

And yet, it took a judge to make that argument to the government.