CIA General Counsel: The Osama bin Laden Killing Was Legal Because … “Triumph!”

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In this post, I unpacked how the CIA General Counsel, Stephen Preston, managed to argue that “the CIA is an institution of laws and the rule of law is integral to Agency operations” even while admitting that courts had no review over many of its activities.

In the rest of his speech, Preston examines a “hypothetical case” that I will eventually argue is the Anwar al-Awlaki killing, and then a concrete example, the Osama bin Laden killing.

While the OBL case doesn’t elucidate much–anything–really about CIA’s legal process, I want to examine what Preston said because it’s so lame.

The OBL section takes up 794 words out of the 3,488 words total in the speech–over a fifth of the speech. Preston starts by claiming (in just over 50 words) he wants to examine the OBL example because it shows “that the rule of law reaches the most sensitive activities in which the Agency is engaged.”

In the next paragraph (68 words) Preston says he won’t dwell on the importance of the OBL op in terms of the larger fight against al Qaeda, because that’s already been covered; instead, he’ll focus on the law. Except,

But if you will indulge me, there are a few other aspects of this historic event that warrant mention up front.

Preston then spends three paragraphs describing what a “triumph” of intelligence (195 words), an example of momentous Presidential decision-making (70 words), and a “triumph” for our military (164 words) the op was. Preston spends well over half the section of the speech purporting to show that the rule of law reached the most sensitive CIA ops talking, instead, about what a triumph nailing OBL is.

That’s the kind of analysis he’s conducting to make sure all this is legal, I guess? Will it be a “triumph”?  Read more →

Data Mining Adoptive Parents along with Suspected Terrorists

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I’m a sucker for groups of adoptive kids. Like the time when a group of Michigan families with adopted Ethiopian kids had a rambunctious reunion at my favorite Ethiopian restaurant, with the owner catering to the kids like a grandparent. Or the time I shared a restaurant in Guangzhou with a bunch of French families who had just picked up their baby daughters; they somehow expected these girls who had lived in Chinese orphanages to immediately understand how to act like proper French kids.

There’s a lot that can be abusive in international adoptions, but when I see joyful gatherings like these, I’m awestruck by the faith such parents have in our common humanity.

Which is why I’ve been obsessing by one of the implications of this post. As I noted, DHS’s Inspector General helpfully explained that among all the other people in DHS’ IDENT database are the American citizens who had adopted internationally.

Individuals with fingerprints in IDENT include persons with an immigration history, such as aliens who have been removed but have reentered the country, immigration visa applicants, legal permanent residents, naturalized citizens, and some U.S. citizens.
IDENT includes two categories of U.S. citizens:

  • Citizens who have adopted a child from abroad (which involves U.S. Citizenship and Immigration Services), participated in a trusted traveler program, or may have been fingerprinted by immigration officials for smuggling aliens or drugs across U.S. borders;
  • Individuals who were not citizens at the time that their fingerprints were collected, but subsequently became citizens through naturalization, legal permanent residency, or immigration.[my emphasis]

Now, we can be pretty sure that when NCTC decided it needed to acquire US agency databases and data mine them with their existing terrorism databases, complete with the US person data they included, the IDENT database–the primary purpose of which is to track people who’ve come through the immigration system–was one of the first databases they went after.

Which is another way of saying the US persons in the IDENT database should assume they’ll also be in NCTC’s databases for five years. Including those parents who adopted children from China or Ethiopia or Guatemala or Romania.

“Well, if they’ve done nothing wrong they don’t have anything to be worried about.”

Perhaps. Except that the kind of people who adopt kids internationally may also tend to have reason for a significant number of international connections, whether because of religious faith, an effort to establish some tie to their child’s native country, or a comfort with international travel.

There are a lot of people whose biometric data shouldn’t be mined along with a bunch of terrorist suspects. At the top of that list, though, are families whose primary interaction with Bureau of Customs and Immigration Services entailed adopting a baby from another country.

Did Covert Officer A–Whose Identity John Kiriakou Allegedly Leaked–Leave the CIA?

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DOJ has apparently failed in its efforts to get John Kiriakou to agree to a plea deal; they’ve just indicted him.

Interestingly, the indictment describes Covert Officer A–whose identity Kiriakou allegedly leaked–differently than the complaint did. The complaint described him this way:

Covert Officer A is currently a covert CIA employee whose relationship to the CIA has been classified for more than two decades.

Here’s how the indictment describes him:

Covert Officer A was a covert CIA employee whose association with the CIA has been classified for more than two decades. Covert Office A was a covert agent as defined at Title 50, United States Code, Section 426(4), and the United States Government was taking affirmative measures to conceal Covert Officer A’s intelligence relationship to the United States. The association of Covert Officer A with the [Rendition, Detention, and Interrogation] Program was also classified and constituted national defense information. [my emphasis]

With the exception of the bolded passage, the information on Covert Officer A’s relationship to the CIA is now all past tense.

Which suggests several possibilities: That Covert Officer A’s status has been changed to permit this prosecution; Covert Officer A is no longer covert (though is still classified); Covert Officer A has left the CIA; or that Covert Officer A is no longer alive. Update: DOJ says this is the way they normally write their indictments.

Alternately (given the way the CIA screws up leak investigations) maybe they were giving Pat Fitzgerald bad information during the investigation. Nahh! The CIA wouldn’t screw up another leak prosecution, would they?

Update: Compare how they describe Covert Officer A with how they describe Deuce Martinez–whose employment, but not identity–is described in the past tense.

Officer B was employed by the CIA as an analyst assigned to the CIA Counterterrorism Center. Though the fact that the CIA employed Officer B was not itself classified, the associations of Officer B with the RDI Program and with the Abu Zubaydah operation were classified and constituted national defense information.

Update: The DOJ announcement says Covert Officer A “remains covert.”

 

The National Security Council Was Briefed on Anna Chapman before Her Arrest

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I frankly wasn’t all that interested in the news that Russian spy Anna Chapman was setting a honey trap for an Obama cabinet official…

In a documentary broadcast last night, FBI counter-intelligence chief Frank Figliuzzi claimed the glamorous Russian agent got close enough to ‘disturb’ U.S. spy catchers.

He said the fear that Miss Chapman was close to seducing a sitting member of the Obama administration spurred agents to swoop on the 10-strong spy ring of which she was a part.

Mr Figliuzzi told the Channel 4 documentary the auburn-haired spy got ‘closer and closer to higher and higher ranking leadership… she got close enough to disturb us.’

‘We were becoming very concerned,’ he said. ‘They were getting close enough to a sitting US cabinet member that we thought we could no longer allow this to continue.’

Until Laura Rozen noted that Peter Orszag left the White House in July 2010. Since most of the cabinet level officials with some base in NY, where Chapman lived and socialized–like Hillary Clinton and Susan Rice–are female, I simply hadn’t thought that much about who her target could have been. Though Orszag presents an interesting possibility (not least because he was personally involved in our cybersecurity efforts at the time). And an even more interesting date, to me, is the day the White House announced his departure: June 22, just 3 days before they started rolling up the Russian spy network.

Now, whether or not Orszag was the target (I’ve got some other suspicions, and if he was, Chapman would have been targeting Orszag during the period after he got engaged but before he got married), her comment was enough to get me to refer back to my coverage on Chapman’s arrest.

And there are a few interesting details about it. Here’s a timeline I put together:

June 9: Chapman’s laptop chats with Russian Official #1 surveilled

June 11: Obama briefed about Russian spy swap

June 16: Chapman’s laptop chats with Russian Official #1 surveilled

June 18: Obama chairs NSC meeting on Russian spy swap

June 24: Obama and Dmitri Medvedev go to Ray’s Hell Burger

June 25: Complaint against 9 spies dated

June 26: FBI collects evidence against last two remaining spies; FBI agent says to Chapman, “I know you are going back to Moscow in two weeks.”

June 27: Spies arrested

June 29: Russian Foreign Minister Sergey Lavrov complains about timing of arrest; Obama reported to be miffed about timing of arrest; DOJ attributes timing to pending travel–presumably Chapman’s

Week of July 5: White House almost cancels spy swap because names of proposed spies in Russia leaked

July 10: Two weeks after FBI Agent said Chapman would be traveling to Russian in two weeks

Of particular note is the June 18 NSC meeting. Most key cabinet members that would make interesting targets for Russian spies are members of the NSC. Director of OMB attends NSC meetings that pertain to its area of responsibility. They all learned–at least in the abstract–of the looming spy trade on June 18, 2010, a week before the FBI started rolling up the spies.

Read more →

The Intelligence Community Has Cleaned Up Its Attribution Problem … Has the Press?

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James Risen has another article on the evolution of intelligence analysis, this time describing how screwing up the Iraq intelligence so badly now weighs on Iran analysts (for the better, IMO).

I was struck by the description of one way the intelligence community has improved its analysis.

The intelligence community also now requires that analysts be told much more about the sources of the information they receive from the United States’ human and technological spies. Analysts were left in the dark on such basic issues in the past, which helps explain why bogus information from fabricators was included in some prewar intelligence reports on Iraq. And, when they write their reports, they must include better attribution and sourcing for each major assertion.

While I’m skeptical the IC has improved sufficiently on this front (I suspect, for example, that attribution problems are one reason the IC was looking for an AQAP attack in 2009 in Yemen and not on a plane bound for Detroit), I am heartened that at least the IC is trying to give analysts more information on where information comes from and what biases might come with that information. At the very least, it should help avoid the stovepiping of information from people like Curveball.

But reading that passage got me wondering whether the press has gotten any better on this front. This article was published in the NYT, a newspaper that rather famously promised to clean up its anonymous sourcing after the Judy Miller fiasco, but which routinely fails to meet its own guidelines.

Don’t get me wrong–Risen himself meets these guidelines in the story, explaining why around 3 anonymous sources had to remain anonymous.

one former senior intelligence official, who like several others quoted in this article would speak only on the condition of anonymity about internal agency matters

He also includes on-the-record quotes from sources that appear identical to the named anonymous sources he quotes from; leaving little doubt as to who and where his story came from.

one former official who worked with the [CIA] analyst [who had a breakdown after the Iraq intelligence debacle]

Greg Thielmann, a former State Department intelligence analyst who resigned to protest what he considered the Bush administration’s politicization of the prewar Iraq intelligence

Paul Pillar, a former senior C.I.A. analyst on the Middle East

according to the former officials [who worked on the 2007 Iran NIE]

one official [who worked on the 2007 NIE] recalled

Thomas Fingar, who was chairman of the National Intelligence Council at the time of the 2007 assessment on Iran

He even describes John Bolton in such a way as to downplay Bolton’s own role in intelligence as Undersecretary of State for Arms Control and International Security, presumably making it clear (as if there were any doubt) that Bolton was not among his sources describing the problems with intelligence under Bush.

John R. Bolton, a senior fellow at the American Enterprise Institute and a former ambassador to the United Nations in the Bush administration

So this is not a commentary on Risen. Read more →

What Went Into the FBI Intelligence That Will Be in NCTC’s Database for Five Years?

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Last year, after Spencer Ackerman exposed some of the Islamophobic materials the FBI was using to train its counterterrorism agents, the FBI conducted a review of its training materials to weed out such counterproductive materials.

Unsurprisingly, as Spencer reports today, they found additional offensive and just downright stupid materials.

A sample of that possibly harmful training comes from a document on “Establishing Relationships,” which instructed: “Never attempt to shake hands with an Asian. Never stare at an Asian. Never try to speak to an Arab female prior to approaching the Arab male first.”

Another document, titled “Control and Temper,” contrasted the “Western Mind” with that of the “Arab World.” The “Western” mind possessed an “even keel” and “outbursts” of emotion were “exceptional.” In the “Arab World,” by contrast, “Outburst and Loss of Control [is] Expected.” A bullet point below asked, “What’s wrong with frequent Jekyll & Hyde temper tantrums?”

But now, they’re trying to just bury it–they’re withdrawing it, sure, but they’re not doing anything to counteract the damage this may have done in training agents.

Which makes this detail exposed in the FBI’s own review all the more troubling:

One FBI PowerPoint — disclosed in a letter Durbin sent to FBI Director Robert Mueller on Tuesday and shared with Danger Room — stated: “Under certain circumstances, the FBI has the ability to bend or suspend the law to impinge on the freedom of others.”

Among the things FBI refuses to do in response to this report is to review intelligence reports collected subsequent to being trained that–among other things–sometimes it’s okay to “suspend the law to impinge on the freedom of others.”

For example, was any of the “intelligence” gathered during Muslim outreach activities in the San Francisco Bay Area collected by such Agents? As the ACLU reported yesterday, here are some of “intelligence collection” activities done in the guise of outreach.

The FBI visited the Seaside Mosque five times in 2005 for “mosque outreach,” and documented congregants’ innocuous discussions regarding frustrations over delays in airline travel, a property purchase of a new mosque, where men and women would pray at the new mosque, and even the sale of date fruits after services. It also documented the subject of a particular sermon, raising First Amendment concerns. Despite an apparent lack of information related to crime or terrorism, the FBI’s records of discussions with mosque leaders and congregants were all classified as “secret,” marked “positive intelligence,” and disseminated outside the FBI.
Read more →

The WMD Charges against White People Get Thrown Out

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As Bane of Our Existence and Dirty Masquerade have been noting in comments, the case against the Hutaree Militia has been crumbling in court. Today, Judge Victoria Roberts threw out most of the charges against most of the defendants, based on her judgment that the government had based its conspiracy charges on speculation. Among those charges are the Conspiracy to Use WMD which–as I’ve noted in the past–was one of the few times white defendants have been charged with what is a garden variety charge against Muslim defendants who are caught in stings.

Some of the case law Roberts relies on for her case is specific to the 6th Circuit. Nevertheless, her opinion lays out principles that would–if applied to Muslims–undermine the cases against brown terrorists are significantly as it has against these white alleged terrorists (not to mention Manssor Arbabsiar and two of the four Waffle House plotters).

First, she lays out that a conspiracy must entail explicit agreement to a specific plot.

In order to sustain a conviction for conspiracy, the Government must prove that each Defendant: (1) agreed to violate the law; (2) possessed the knowledge and intent to join the conspiracy; and (3) participated in the conspiracy. See United States v. Sliwo, 620 F.3d 630, 633 (6th Cir. 2010); see also Sixth Circuit Pattern Jury Instructions §§ 3.01A, 3.03 (To prove a conspiracy, the government must show that (1) two or more individuals conspired to commit the crime; and (2) that each defendant voluntarily joined the conspiracy, knowing of its main purpose and intending to help advance its goals.). In addition, a conspiracy requires a specific plan. See Pinkerton v. United States, 145 F.2d 252, 254 (5th Cir. 1944) (holding that a criminal conspiracy requires (1) an object to be accomplished; (2) a plan or scheme embodying means to accomplish that object; (3) an agreement by two or more defendants to accomplish the object; and (4) an overt act, where applicable); see also United States v. Bostic, 480 F.2d 965, 968 (6th Cir.1973).

Roberts goes on to note that the law requires evidence that each alleged conspirator entered into the conspiracy; guilt by association is not enough.

The issue of guilt or innocence in a conspiracy is always an individualized inquiry. Kotteakos v. United States, 328 U.S. 750, 772 (1946) (“Guilt with us remains individual and personal, even as respects conspiracies. It is not a matter of mass application.”). The government must prove the intent of each individual conspirator to enter into the conspiracy, knowing of its objectives, and agreeing to further its goals. See Sixth Circuit Pattern Jury Instruction § 3.03. Consistent with these principles, it is useful to note that there are two distinct intents required to prove the crime of conspiracy — the basic intent to agree, which is necessary to establish the existence of the conspiracy, and the more traditional intent to effectuate the object of the conspiracy. United States v. United States Gypsum Co., 438 U.S. 422, 443 n.20 (1978); Sixth Circuit Pattern Jury Instruction, Committee Commentary 3.03; 2 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 12.2 (2d ed. 2011).

All the more so, Roberts lays out, when the alleged conspiracy entails the freedom of assembly.

Where a conspiracy implicates First Amendment protections such as freedom of association and freedom of speech, the court must make a “specially meticulous inquiry” into the government’s evidence so there is not “an unfair imputation of the intent or acts of some participants to all others.” Read more →

Is It Possible 20 Were Killed at Panjwai, 3 by Another Soldier?

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Update: See this post, which gives DOD’s latest update on the lack of military operations during the attack.

According to Amy Davidson, the explanation that Robert Bales’ 17th victim was an unborn child, which I noted here, has been debunked. That explanation was based on the presence of an unnamed Afghan male–listed as murder charge 5–in Bales’ charge sheet. But that explanation missed another unnamed victim–this one a female–under murder charge 4.

So let’s take a step back, and consider another possibility: that there are actually more than 17 victims, several of whom Afghans aren’t naming, and possibly at least one other solider known to have killed at least 3 Afghans as well. Here’s why I think that may be true.

First, when asked about the discrepancy in numbers yesterday, here’s how General John Allen answered.

Q:  General, one quick housekeeping thing and then a question. There’s been some ongoing confusion over the jump in the number of casualties from 16 to 17.  I was wondering if you might be able to discuss that briefly.

[snip]

GEN. ALLEN:  I’m getting your one question in three parts here, so give me just a second.  And if I miss one, let me — just tell me.

There is a — there was an increase in the number of what we believe to have been those who were killed tragically in this event. But this is — the number increased was based upon the initial reporting by the Afghans.  And so we should not be surprised that in fact, as the investigation went forward, that an — that an additional number was added to that.  So that is something that we understand and we accept, and as the investigation goes forward, we’ll get greater clarity in that.

[snip]

Q:  (Off mic) — 16 versus 17, did the — just to be clear — did the Afghans miscount?  Did someone die after the initial assessment?

GEN. ALLEN:  We’ll have to let that come out in the investigation.

Note that he never says 17 is the correct number. Rather, he says the original number came from the Afghans, “there was an increase in the number,” and “we’ll have to let” the correct number “come out in the investigation.”

All that is perfectly consistent with the number being greater than the 17 the reporters are working with, which is based on Bales’ charge sheet.

So now compare Bales’ charge sheet with the two lists offered by Afghans.

Read more →

Abdulelah Haider Shaye and Anwar al-Awlaki’s Emails

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Al-Jazeera did another long piece on the imprisonment of Abdulelah Haider Shaye, whose story Jeremy Scahill first covered here. There are two details worth note. First, just after 15:40, AJE describes the White House’s non-denial denial of their involvement with Shaye’s continued imprisonment.

Well, we got in touch with the White House on this last week, and this is what we were told: “The President’s comments have absolutely nothing to do with Shaye’s reporting or his criticism of Yemen or the United States. A Yemeni court, not a US court, convicted him.”

It’s an odd comment because if, as alleged, Shaye’s imprisonment has something to do with being an AQAP propagandist, then it would have to do with his journalism. Furthermore, given the language the White House itself included in its readout of the February 2, 2011 conversation between President Obama and Ali Abdullah Saleh…

President Obama called President Ali Abdullah Saleh of Yemen on February 2 to welcome the significant reform measures that President Saleh had announced earlier that day, and to stress that President Saleh now needs to follow-up his pledge with concrete actions.  President Obama asked that Yemeni security forces show restraint and refrain from violence against Yemeni demonstrators who are exercising their right to free association, assembly, and speech.  The President also told President Saleh that it is imperative that Yemen take forceful action against Al Qaida in the Arabian Peninsula (AQAP) to protect innocent lives in Yemen as well as abroad.  Finally, President Obama expressed concern over the release of Abd-Ilah al-Shai, who had been sentenced to five years in prison for his association with AQAP.  President Saleh thanked the President for U.S. support and committed to continuing and strengthening relations with the United States. [my emphasis]

… It’s quite clear that regardless of whose courts convicted Shaye, Obama’s comments played a key role in his continued imprisonment.

The irony? In the same conversation Obama pressured Saleh to show restraint with Yemenis exercising their right to speech. So now the White House is issuing non-denial denials about a conversation in which they criticized Saleh for his violent repression by attributing responsibility to Yemen’s legal system?

Nevertheless, I find it significant that, rather than offer some explanation for Obama’s pressure to keep Shaye imprisoned, the White House is now dodging the issue.

Particularly given this detail Scahill reveals just after 20:00.

What I’m going to say right now about it is the extent of what I can say about any specific media organization. My understanding from sources within one of those media organizations [ABC, WaPo, and NYT] that you cited, and a major American media organization, was that they were approached by the US government earlier on, before Shaye was actually locked up and put in prison and sentenced by this court, that a major US media organization that had done work with him was approached and told that they should stop working with him, suggesting that his relationship to Al Qaeda was more than just journalist source relationship and that organization stopped working with Abdulelah Haider. To my knowledge, none of those organizations have take an editorial stance calling for his release or even or even condemning the sham nature of his trial.

That is, presumably around the time ABC and WaPo and NYT were all relying on Shaye to get reporting from Yemen, the government approached at least one of them and told them to stop, which they did.

I find that particularly interesting given some reporting I reviewed yesterday while working on posts assessing whether the new NCTC data-sharing guidelines would have prevented the Nidal Hasan and Undiebomber attacks.

On November 16, 2009, 11 days after Nidal Hasan’s attack and about a week after Pete Hoekstra revealed the email exchanges, the WaPo published a story based on a Shaye interview with Anwar al-Awlaki which provides far more information about the emails Awlaki exchanged with Hasan before the attack.

Shaea allowed a Post reporter to view a video recording of a man who closely resembles pictures of Aulaqi sitting in front of his laptop computer reading the e-mails, and to hear an audiotape in which a man, who like Aulaqi speaks English with an American accent, discusses his e-mail correspondence with Hasan.

The quotes in this article are based on Shaea’s handwritten notes. Shaea said he was allowed to review the e-mails between Hasan and Aulaqi, but they were not provided to The Post.

Read more →

Michael Leiter Went Skiing … And All We Got Were Vast Expansions of Data-Sharing and No T-Shirt

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In its short summary of the new NCTC data sharing guidelines, Lawfare said this:

The White House has passed new ”Guidelines for Access, Retention, Use, and Dissemination. . . of Information in Datasets Containing Non-Terrorism Information.” Read the new guidelines here. The Times tells us that the National Counterterrorism Center can now ”retain private information about Americans when there is no suspicion that they are tied to terrorism” for 5 years, instead of the previous 6 months. You can thank Umar Farouk Abdulmutallab for that. The Wall Street Journal and the Post also have the story. [my emphasis]

Actually, no.

I guess you can’t blame Michael Leiter for going skiing right after the UndieBomber attack. But when the report on the 14 failures that led us to miss the attack was released, it was pretty clear the National Counterterrorism Center–Leiter’s unit–deserved most of the blame.

Leiter wasn’t fired. He served over a year longer.

We didn’t do the most basic thing we could have done in response to the UndieBomber attack–hold those who failed accountable.

Instead, we’re now rolling back Americans’ privacy yet again, because those in charge would prefer to trade citizens’ civil liberties for actual accountability for failure.

It’s easy for folks like Lawfare to blame all this on the terrorist and none of it on the people who failed to defend against terrorism. And ultimately, that means the rest of us pay because Michael Leither chose to ski instead of ensuring we found terrorists.