CIA Had Warning on Khost Attack, Will Not Hold Anyone Responsible

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Jordanian intelligence warned the CIA that Humam Khalil Abu-Mulal al-Balawi, the Khost bomber, might be working for al Qaeda three weeks before al-Balawi killed 7 CIA people in the attack. But because the CIA still suffers from the same information sharing shortcomings problems that prevented it from finding out about 9/11, the CIA still allowed al-Balawi onto their forward operating base.

Three weeks before a Jordanian double agent set off a bomb at a remote Central Intelligence Agency base in eastern Afghanistan last December, a C.I.A. officer in Jordan received warnings that the man might be working for Al Qaeda, according to an investigation into the deadly attack.

But the C.I.A. officer did not tell his bosses of the suspicions — brought to the Americans by a Jordanian intelligence officer — that the man might try to lure Americans into a trap, according to the recently completed investigation by the agency.

But the CIA is not holding anyone responsible for this horrible lapse, partly because the station chief killed in the attack would have received much of the blame.

Mr. Panetta said that the report did not recommend holding a single person or group of individuals directly accountable for “systemic failures.”

“This is a war,” he said, adding that it is important for the C.I.A. to continue to take on risky missions.

[snip]

Current and former C.I.A. officials said that the decision not to hold officers directly responsible for the bombing was partly informed by an uncomfortable truth: some of them might have been among those killed in the bombing.

The officials said there was particular sensitivity about how much fault to assign to Jennifer Matthews, a Qaeda expert who was the chief of the Khost base.

Before you accept that explanation, re-read the piece that Bob Baer wrote on the Khost killing in April. He attributes the lapses to the de-professionalization of operations within CIA, and argues that Matthews (whom he calls Kathy) was set up to fail.

On January 10, 2010, CIA director Leon Panetta wrote a Washington Post op-ed in which he disputed that poor tradecraft was a factor in the Khost tragedy. Panetta is wrong.

An old operative I used to work with in Beirut said he would have picked up Balawi himself and debriefed him in his car, arguing that any agent worth his salt would never expose the identity of a valued asset to a foreigner like the Afghan driver. I pointed out that if he’d been there and done it that way, he’d probably be dead now. “It’s better than what happened,” he said.

One thing that should have raised doubts about Balawi was that he had yet to deliver any truly damaging intelligence on Al Qaeda, such as the location of Zawahiri or the plans for the Northwest bomb plot. Balawi provided just enough information to keep us on the hook, but never enough to really hurt his true comrades. And how was it that Balawi got Al Qaeda members to pose for pictures? This should have been another sign. These guys don’t like their pictures taken. So there were a few clear reasons not to trust Balawi, or at least to deal with him with extreme caution.

But the most inexplicable error was to have met Balawi by committee. Informants should always be met one-on-one. Always.

The fact is that Kathy, no matter how courageous and determined, was in over her head. This does not mean she was responsible for what happened. She was set up to fail. The battlefield was tilted in Al Qaeda’s favor long ago—by John Deutch and his reforms, by the directors who followed him, by the decision to drop the paramilitary course from the mandatory curriculum (which would have made Kathy a lot more wary of explosives), and by two endless wars in Iraq and Afghanistan that have worn the CIA down to a nub. Had Kathy spent more time in the field, more time running informants, maybe even been stung by one or two bad doubles, the meeting in Khost probably would have been handled differently—and at the very least there would have been one dead rather than eight.

And while two of the recommendations Leon Panetta offered in response to the investigation was to provide more training on counterintelligence and to make sure veterans are involved in the most critical counterterrorism operations, that doesn’t address what Baer, at least says needs to happen: fixing the entire career path of CIA professionals out in the field.

Is not holding anyone responsible for this horrible mistake about protecting a CIA officer who died after being set up to fail? Or protecting her superiors who put her in that position?

CIA Sues over Whistleblower Book

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Jeff Stein reports that, after months of rumors this would happen, the CIA has sued Ishmael Jones for publishing The Human Factor: Inside the CIA’s Dysfunctional Intelligence Culture without approval from CIA’s review board.

The Justice Department suit, on behalf of the spy agency, seeks “an injunction against any further violations of ‘Jones’ secrecy obligations and recovery of the proceeds from the unauthorized publication.”

It cited as precedent Snepp vs. United States, the 1980 Supreme Court decision against former CIA officer Frank Snepp that validated the agency requirement that employees submit their writings for approval as a fiduciary obligation.

As a result of the decision, the government was able to seize Snepp’s profits from the book. Snepp subsequently wrote a second book, “Irreparable Harm: A Firsthand Account of How One Agent Took on the CIA in an Epic Battle Over Free Speech,” which was cleared by the agency.

Like Snepp, whose memoir “Decent Interval” harshly criticized CIA activities at the end of the Vietnam War, Jones maintains that his book contained “no classified information.”

He said he used a pseudonym because “I was under deep cover for most of my career, so to use my real name might expose people I’ve met.”

Publishing the book without approval was necessitated because “there are no viable whistleblower mechanisms within the CIA,” he said.

I guess, unlike Bob Woodward, Jones is one of the people whom the President won’t allow to leak secrets.

Unconstitutional Surveillance & United States v. U.S. District Court: Who The Winner Is May Be A Secret – Part 1

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[Given the current surveillance state situation in America, the Keith case, formally known as United States v. United States District Court, is one of the most important cases from our recent past. But I don’t really believe you can understand or know the law of a case, without really understanding the facts. The Keith case doesn’t have simple facts, but they are fascinating and instructive. So bear with me – this is going to take awhile, and will be laid out over a series of four posts. What follows today is Part I. – Mary]

It was a time of war. America had been attacked in the Gulf of Tonkin. The National Security Agency (NSA) and our military had reassured us this was true. Our national security apparatus, Congress and press had joined behind the office of the President to lead us into a series of forays (Vietnam, Laos, Cambodia) that would leave tens of thousands of American soldiers dead and many times that wounded physically or mentally, while at the same time decimating over three million Vietnamese and over a 1.5 million Laotians and Cambodians.

At home, we were working our way through the civil rights movement, dealing with the cold war and threats of Russian nuclear weapons and witnessing anti-war protests that left students dead and buildings bombed. Algeria was hosting U.S. fugitives from justice, Eldridge Cleaver and Timothy Leary, while Cuban connections were alleged to be behind much of the organized anti-war movement.

Court martial proceedings had begun for the My Lai killings with polls showing most of America objected to the trial. President Nixon would later pardon Lt. Calley for his role. A trial had also, briefly, seemed to be in the works for the “Green Beret Affair,” the killing of Thai Khac Chuyen by Green Berets running an intelligence program called Project GAMMA. The investigation began after one of the soldiers assigned to the Project became convinced that he was also being scheduled for termination. Charges in the Green Beret Affair would be dropped after the CIA refused to make personnel available, claiming national security privileges.

Against this backdrop, Nixon and his campaign manager – attorney general, John Mitchell (the only Read more →

The Compromise Intelligence Authorization

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As DDay noted, it looks like we’ll finally have an intelligence authorization bill. The bill is a partial win for Speaker Pelosi, as it makes full briefing to the Intelligence Committees within six months of the start of a program the default (though the Administration can still avoid doing so if it provides written rationale). And it includes at least a nod to Pelosi’s demand that GAO be giving some authority to review intelligence programs. Steven Aftergood calls the GAO access “a foothold.”

The Act (in section 348) requires the Director of National Intelligence to prepare a directive on GAO access to intelligence community information — thereby setting the stage for a stable new role for the GAO in intelligence agency audits and reviews.In a letter to Congress (reprinted in the record of the floor debate) withdrawing the threat of a veto, ODNI General Counsel Robert S. Litt stressed that the new directive would not imply any change in existing law or GAO authority. He added that the new directive would also conform with “relevant opinions of the Office of Legal Counsel.” However, the only OLC opinion on the subject is from 1988, and it argued that GAO access to intelligence information is “precluded” by law. It hardly seems likely that the new directive would affirm that view.

Instead, the required directive should be seen as analogous to the recently updated Pentagon directive that permitted GAO access to highly classified special access programs,

It remains to be seen whether this compromise will give Congress enough new oversight powers to prevent the abuses that happened under Bush (and heck–I assume the Gang of Four, if not the Gang of Eight–has signed off on assassinating US citizens solely on the President’s say so, so it’s not clear that oversight will be any use in protecting the Constitution). But Jeff Stein reports both Pelosi and DiFi declaring victory, while the White House and DOD remain silent. Here’s Pelosi:

“In passing the Intelligence Authorization Act last night, the Senate upheld our first responsibility – to ensure the security of the American people – while addressing two key objectives,” Pelosi said in a statement Tuesday.

“It expands and improves the congressional notification process for covert action and provides the framework for GAO access to intelligence community information so that the GAO can conduct investigations, audits, and evaluations as requested by Congress,” Pelosi said.

Again, I remain skeptical, but at least this is better than nothing.

Think of it this way. Under these rules, the Bush White House would have had to tell the entire Intelligence Committees they were systematically torturing prisoners by February 1, 2003 (or at least admit in writing they hadn’t and wouldn’t inform the committees, rather than altering documents after the fact to pretend they had). Technically, they would have to have informed Congress of the September 17, 2001 finding dubiously used to authorize the torture program by March 17, 2002. As it happened, they apparently didn’t brief any Democrats that they were torturing prisoners until February 5, 2003, at which point the one they did brief (Jane Harman) objected in writing (and asked whether the President had signed off on the policy, which presumably meant she had never been briefed on the actual finding). We know Bob Graham had been proposing oversight of the interrogation program by that point, backed by a majority of the committee, even though he had no clue they were torturing (though Tony Blair apparently did). So it’s possible Congress would have at least demanded more information sooner about the torture under this system.

That may not have been enough to forestall Dick Cheney’s torture program. But it might have subjected it to at least a little more review.

At which point–as presumably has happened on Presidential hit lists–the blame for our egregious abuse of the Constitution would be more widely shared.

Congratulations, Intelligence Committees: you now share in the moral responsibility to protect the Constitution. Please take that responsibility seriously.

Obama’s Still Obfuscating about Domestic Surveillance

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Adam Serwer does a pretty thorough job debunking Obama’s lame effort to defend his civil liberties record.

When people start being concerned about, “You haven’t closed Guantánamo yet,” I say, listen, that’s something I wanted to get done by now, and I haven’t gotten done because of recalcitrance from the other side. Frankly, it’s an easy issue to demagogue. But what I have been able to do is to ban torture. I have been able to make sure that our intelligence agencies and our military operate under a core set of principles and rules that are true to our traditions of due process. People will say, “I don’t know — you’ve got your Justice Department out there that’s still using the state secrets doctrine to defend against some of these previous actions.” Well, I gave very specific instructions to the Department of Justice. What I’ve said is that we are not going to use a shroud of secrecy to excuse illegal behavior on our part. On the other hand, there are occasions where I’ve got to protect operatives in the field, their sources and their methods, because if those were revealed in open court, they could be subject to very great danger. There are going to be circumstances in which, yes, I can’t have every operation that we’re engaged in to deal with a very real terrorist threat. [my emphasis]

But I wanted to add one thing.

Obama suggests his Administration has only invoked state secrets to protect “operatives in the field.”

That’s the case only in one of the most notable state secrets invocations the Administration has made or sustained. Consider:

  • Jeppesen Dataplan
  • Al-Haramain
  • Al-Awlaki

I’ll grant that one of the things the Administration refuses to publicize about the al-Awlaki case is how they know what they know. And we know there are covert teams operating in Yemen, so it is probable that one of the things–though certainly not the only thing–they are protecting are those operatives in the field.

But in Jeppesen Dataplan, the government is protecting a publicly traded company from the backlash it would experience if its role in torture were confirmed. And it is protecting the governments that tortured on our behalf: Egypt and Morocco.

The government’s invocation of state secrets in al-Haramain has even less to do with protecting operatives in the field. In that case, the government is (again) protecting publicly traded companies from even more certain backlash from consumers. And it is protecting the details about how and the extent to which the government conducts domestic surveillance and data mining. The government is not protecting operatives in the field at all. On the contrary, the government is protecting itself from the wrath of its citizens. (He’s also protecting the prior Administration, including his current top terrorism advisor, John Brennan.)

And to hide that fact–to try to legitimize his government’s secrecy–Obama invents a largely bogus concern about men and women risking their lives overseas.

Though I guess I shouldn’t be surprised about that fact. After all, Obama’s flip-flop on FISA was the first big disappointment, the first promise he broke. From that point, it was clear Obama would place political considerations ahead of his stated commitment to civil liberties.

Which is, I guess, what his lame defense is all about.

This Raid on Peace Activists Brought to You By Elena Kagan

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This article not only describes the hundreds of people who protested FBI raids of peace activists last week, but it provides more detail on what the FBI was looking for.

Agents were seeking “evidence relating to activities concerning the material support of terrorism,” the FBI said. Chicago FBI spokesman Ross Rice declined on Monday to discuss what agents were looking for, citing an “ongoing criminal investigation.” There have been no arrests.

Search warrants and subpoenas indicate authorities are looking for connections between the activists and groups including the Revolutionary Armed Forces of Colombia (FARC), the Popular Front for the Liberation of Palestine (PFLP) and Hezbollah. The U.S. government considers those groups to be terrorist organizations.

[snip]

Sundin said Monday she met FARC rebels when she visited Colombia in 2000, but noted that the Colombian government was holding peace talks at the time with the rebels, who held public forums where she met them. She said she has had no contacts with FARC since.

Kelly and Sundin acknowledged they’re active in the Freedom Road Socialist Organization, a group named in several warrants that openly supports FARC and PFLP and shares their Marxist ideologies. Two groups use the name after a 1999 split. They said their Freedom Road is a small group, but that they weren’t sure how many supporters it has. Kelly edits its newspaper.

These descriptions suggest that the FBI is raiding a bunch of peace activists it tracked during the RNC Convention to establish attenuated ties between them and at least three groups on the Foreign Terrorist Organization list.

What’s particularly interesting is the description of the work these activists were doing in Palestine and Colombia.

“We meet with human rights activists in other countries to get understanding of situations they face,” said Yorek.

Sundin said committee members use the trips to gather information that the group then uses in presentations to the public back in the United States.

“All trips always been very public,” Sundin said.

Aby said that in Palestine, committee members met with the Palestinian Women’s Commission and another group that advocates for Palestinian prisoners in Israeli jails. In Colombia, she said members met with representatives of Colombian unions.

“In Colombia, you’re considered to be a FARC supporter if you’re a member of a union,” Aby said. Critics of current Colombian President Juan Manuel Santos or former president Alvaro Uribe were also considered supporters of the FARC by Colombian authorities.

That is, after meeting with groups that the authorities in the country have an incentive to claim are terrorist groups, they come back to the US and publicize the conditions in the country.

Law Professor Peter Erlinder has said repeatedly precisely what I’ve been thinking about these raids since they happened: SCOTUS’ decision in Holder v. Humanitarian Law Project probably made such activities (which appear to have all happened before the decision in the case) illegal.

Congress has prohibited the provision of “material support or resources” to certain foreign organizations that engage in terrorist activity. 18 U. S. C. §2339B(a)(1). That prohibition is based on a finding that the specified organizations “are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct.” Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), §301(a)(7), 110 Stat. 1247, note following 18 U. S. C. §2339B (Findings and Purpose). The plaintiffs in this litigation seek to provide support to two such organizations. Plaintiffs claim that they seek to facilitate only the lawful, nonviolent purposes of those groups, and that applying the material-support law to prevent them from doing so violates the Constitution. In particular, they claim that the statute is too vague, in violation of the Fifth Amendment, and that it infringes their rights to freedom of speech and association, in violation of the First Amendment. We conclude that the material-support statute is constitutional as applied to the particular activities plaintiffs have told us they wish to pursue. We do not, however, address the resolution of more difficult cases that may arise under the statute inthe future.

Obviously, the six justices (the conservatives plus Stevens) who made peace activism material support for terrorism deserve the bulk of the blame for this decision. But this was also the argument where then Solicitor General Elena Kagan advocated for the broadest interpretation of the statute.

JUSTICE KENNEDY: Do you stick with the argument made below that it’s unlawful to file an amicus brief?

GENERAL KAGAN: Justice Kennedy —

JUSTICE KENNEDY: I think I’m right in saying it that that was the argument below.

GENERAL KAGAN: Yes, I think that would be a service. In other words, not an amicus brief just to make sure that we understand each other. The Petitioners can file amicus briefs in a case that might involve the PKK or the LTTE for themselves, but to the extent that a lawyer drafts an amicus brief for the PKK or for the LTTE, that that’s the amicus party, then that indeed would be prohibited.

And lo and behold, just three months after this decision, the FBI is investigating a bunch of peace activists for their efforts to foster peace in areas contested by these terrorist organizations.

Now, I have no idea what Kagan thinks about this raid (though she used Hezbollah as her example in the argument, not the Tamil Tiger groups actually named in the suit, and Hezbollah is one of the organizations named in the warrants). But even during the argument, she sustained a fiction that the Court’s interpretation of material support to include peace efforts would be an unlikely use of prosecutorial discretion.

GENERAL KAGAN: First, because with respect to overbreadth, all of those uncertain or even unconstitutional applications will be but a thimbleful, compared to the ocean full of completely legitimate applications of this statute.

[snip]

GENERAL KAGAN: Of course, that’s a different thing as to how prosecutorial judgment is used to decide which are the high-priority cases and which are the low-priority cases.

Or maybe she just badly misinterpreted what FBI’s priorities really were.

Is this How the Yemeni-American Partnership Works?

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In my post on the government’s invocation of state secrets to hide the things national security officials have already leaked to the press, I linked to David Ignatius’ largely-overlooked report that Yemen first asked us to target Anwar al-Awlaki, and only thereafter did we get around to targeting him and telling courts they had no business asking why we had done so.

Last October, the Yemeni government came to the CIA with a request: Could the agency collect intelligence that might help target the network of a U.S.-born al-Qaeda recruiter named Anwar al-Aulaqi?

Keep that in mind as you read this story about a Yemeni woman trying to FOIA information about US involvement in her US citizen husband’s abduction in Yemen. (h/t Political Carnival)

As [Sharif Mobley] drank tea on a Sana’a street, eight masked men burst from two white vans and tried to grab him. Terrified, he ran, but was brought crashing to the ground by two bullets to his legs and bundled into one of the vans.

The method of abduction may have been brutal, but it was not the work of a rebel group or criminal gang. Instead, the armed men were Yemeni security agents, and in a set of legal documents seen by Al Jazeera, Mobley’s lawyers allege they were operating on behalf of the US government.

Now, the story only presents the Mobley’s family’s story, in which they claim that while Mobley had had contact with Anwar al-Awlaki, he never had any dealings or awareness of ties to al Qaeda.

“Sharif openly admits that he had been in limited contact with al-Awlaki,” says Cori Crider, Mobley’s  lawyer. “But he categorically denies that he was involved in or aware of any plot or link to al-Qaeda.”

Perhaps Mobley’s family is just spinning, downplaying more developed ties between Mobley and AQAP. Though note that any contact with al-Awlaki would have happened before Al Qaeda in the Arabian Peninsula was designated a terrorist organization, and even then, the government claims that terrorist designation should not limit others’ First Amendment rights to associate with members of designated terrorist groups.

Whether or not Mobley’s story is correct or not, it doesn’t dismiss the other allegation: that someone apparently tied to the US embassy raided the Mobley family home, all while pretending that Yemen–not the US–had sole custody of Mobley.

When she realised her husband was missing, [Mobley’s wife, Nzinga Saba Islam] immediately reported his disappearance to the embassy, where she was told to file a report with Yemeni police.

That night, at 1am, as she lay worrying about what had happened to her husband, the documents say around 15 men burst into the family home. The family were held at gunpoint and searched, while the house was raided and items confiscated.

Nzinga has told lawyers that the following morning she returned to the US embassy. As she waited to file a report about what had happened, she insists that she saw the man who had led the raid on her home wearing a US embassy pass.

“He was, as far as Nzinga could tell, in charge of the raid on her home,” Crider says. “She asked the embassy about him and what he was doing there, but embassy officials never gave her a straight answer.”

The documents allege that embassy officials listened to what Nzinga had to say, and began to question her about her husband’s activities in Yemen. Amongst the items she says they showed her were photographs taken during the raid on the house.

Mind you, none of this would be new. By all appearances, the US has used Pakistan as a proxy for arresting US citizens to avoid granting those citizens the legal rights they otherwise would have.

But the move is troubling, given the appearance that Yemen pushed this crack-down before the US did, and given the US government’s refusal to make public their larger case against al-Awlaki.

Anwar al-Awlaki is very quickly becoming our next surrogate bogeyman in the war on terror (the one designed to distract from the continued freedom of the people who actually targeted us on 9/11). And along with that, the government seems intent on hanging a whole lot more terrorist designations on people–including American citizens–without ever showing the evidence that al-Awlaki himself was operational.

Obama’s Panopticon

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It seems the Administration has declared today “Power Grab Monday.”

Charlie Savage reports that the government is again asking for a “technical fix” (as they have during PATRIOT debates) that extends CALEA to cover all the Toobz.

Federal law enforcement and national security officials are preparing to seek sweeping new regulations for the Internet, arguing that their ability to wiretap criminal and terrorism suspects is “going dark” as people increasingly communicate online instead of by telephone.

Essentially, officials want Congress to require all services that enable communications — including encrypted e-mail transmitters like BlackBerry, social networking Web sites like Facebook and software that allows direct “peer to peer” messaging like Skype — to be technically capable of complying if served with a wiretap order. The mandate would include being able to intercept and unscramble encrypted messages.

And Ellen Nakashima reports an effort to create what sounds like a US version of SWIFT, covering all international transactions, no matter how small.

The Obama administration wants to require U.S. banks to report all electronic money transfers into and out of the country, a dramatic expansion in efforts to counter terrorist financing and money laundering.

Officials say the information would help them spot the sort of transfers that helped finance the al-Qaeda hijackers who carried out the Sept. 11, 2001, attacks. They say the expanded financial data would allow anti-terrorist agencies to better understand normal money-flow patterns so they can spot abnormal activity.

Financial institutions are now required to report to the Treasury Department transactions in excess of $10,000 and others they deem suspicious. The new rule would require banks to disclose even the smallest transfers.

Any communication you make, any financial transaction you make, the Obama Administration thinks nine years after 9/11 is the time to demand such access.

I suspect it’s only the corporations can save us from this power grab. Not only are corporations doing business in the US not going to want all their transactions accessible by the government (we’ve already stolen enough corporate secrets), but banks aren’t going to want to track transactions at that level.

Though who knows? Maybe the corporations are ready to join Obama’s panopticon?

The Secrets They’re Keeping Selectively Leaking about Anwar al-Awlaki

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As I noted yesterday (and Glenn has examined at more length), in addition to asserting that the government can target Anwar al-Awlaki … because they said so, the Obama Administration also invoked state secrets in its motion to dismiss the ACLU/CCR suit challenging targeted killings.

The Obama Administration has officially positioned itself to the right of hack lawyer David Rivkin.

But the state secrets invocation is interesting not just because it shows a Democratic Administration out-hacking a noted hack.

For example, I think the invocation shows just how weak they recognize their own argument to be. Consider what Robert Gates (who invoked something newfangled called the “military and state secrets privilege”) and James Clapper described as falling under their invocation of state secrets (Leon Panetta basically said only that CIA could neither confirm nor deny its involvement, which sort of makes me wonder whether CIA really has targeted al-Awlaki or not).

Robert Gates:

A. Intelligence information DoD possesses concerning AQAP and Anwar al-Aulaqi, including intelligence concerning the threat AQAP or Anwar al-Aulaqi pose to national security, and the sources, methods, and analytic processes on which any such intelligence information is based;

B. Information concerning possibly military operations in Yemen, if any, and including criteria or procedures DoD may utilize in connection with such military operations; and

C. Information concerning relations between the United States and the Government of Yemen, including with respect to security, military, or intelligence cooperation, and that government’s counterterrorism efforts.

James Clapper:

A. (U) Intelligence information concerning al-Qaeda and the sources and methods for acquiring that information.

B. (U) Intelligence information concerning AQAP and the sources and methods for acquiring that information.

C. (U) Intelligence information concerning Anwar al-Aulaqi and the sources and methods for acquiring that information.

The Administration is sort of kind of relying on the President’s authority under the AUMF (unless the judge doesn’t buy that argument, in which case the Administration promises to try something else), which states:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

In other words, the Administration is relying on some tie between AQAP and the al Qaeda organization that hit us on 9/11 for its authority to kill an American citizen with no due process. Mind you, it can’t say precisely what that tie is–whether AQAP is al Qaeda or whether it is just closely connected enough to be included under the AUMF. But that’s precisely what it has called a state secret: the evidence of ties between the group against which Congress declared war in 2001 and the group we’re targeting in Yemen.

Effectively, the Executive Branch–with no known support from Congress–is saying we’re at war against AQAP. But it’s also saying no one outside of select people within the Executive Branch (and, presumably, a group of four or maybe eight members of Congress who serve in leadership or on the Intelligence Committees) can see the evidence that proves we’re at war against AQAP.

The President has unilaterally declared war against a group but then said no one can see why he has done so.

And then both Gates and Clapper invoke state secrets over the evidence the government has against al-Awlaki.

Rather than prove to a judge that they even have reasonable suspicion to believe al-Awlaki is part of AQAP, much less enough evidence to execute him, the government has instead asserted that all of that is a state secret. They’ve declared everything al-Awlaki would need to challenge his execution a state secret. Even KSM will be able to see the evidence against him; and he has admitted to killing 3,000 Americans. But American citizen al-Awlaki, whom no one has accused of actually killing anyone, can’t see the same kind of information.

Finally, there’s the tired old sources and methods catch all. We can’t know how the government has collected the evidence it has against al-Awlaki.

Except we already do.

Thanks largely to the efforts of Crazy Pete Hoekstra, we know that the government had wiretaps on al-Awlaki going back at least since December 2008. Al-Awlaki himself has challenged the government to release the intercepts they have on him (which public reports say include correspondence with tens of thousands of people). Al-Awlaki has even made some of that correspondence available himself. But the government says all that is a state secret.

Furthermore, some of the evidence against al-Awlaki appears in court documents, from the public testimony of Umar Farouk Abdulmutallab. The alleged recruitment of Abdulmutallab is one of the key issues the government describes al-Awlaki to have been involved in. That information is public. Yet the government also says it is a state secret.

And if all this really is a state secret, then why isn’t Crazy Pete Hoekstra in jail? Read more →

The Six FBI Reports Treating Merton Center Anti-War Activism as Terrorism

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Glenn Fine–DOJ’s Inspector General–is usually one of the most credible agents of oversight in the federal government. But his last report–examining whether the FBI investigated the First Amendment activities of lefty groups as terrorism–is a masterpiece of obfuscation. It manages to look at three different investigative efforts of the Thomas Merton Center’s anti-war activism, all treated as terrorism, and declare them unconnected and therefore not evidence that during the Bush Administration anti-war activism was investigated as terrorism.

The coverage of the report has largely focused on Robert Mueller’s reportedly unintentional lies to Congress explaining why an anti-war event sponsored by Pittsburgh’s Thomas Merton Center was investigated in the guise of international terrorism. For good examples, see Charlie Savage and Jeff Stein’s versions of the story.

The short version of Meuller’s misinformation to Congress the report offers is that 1) a rookie FBI officer was sent out as make-work to improperly surveil a peace protest, 2) after that became clear through FOIA, his boss and a lawyer in the office and the FBI’s Counterterrorism Division tried to retroactively invent reasons for the surveillance, 3) largely through the bureaucratic game of telephone that resulted, Robert Mueller (and in more significant ways, a response to a Patrick Leahy Question For the Record) provided false information to Congress.

One cornerstone to this rather credulous narrative is the way the IG Report treats the surveillance of Pittsburgh’s Thomas Merton Center. Rather than treat all the surveillance of the center together–which would reveal an obvious pattern and much better reason to lie to Congress–the report treats  several different iterations of surveillance separately. As a result, Fine was able to look at at least six reports treating Merton Center anti-war activism as terrorism (and ignore one more FBI investigative effort) and declare each of them acceptable.

The Chronology of FBI’s Thomas Merton Center Surveillance

Let’s start with the timeline (note all the names, except that of Farooq Hussaini, are pseudonyms chosen by DOJ IG, as reflected by the quotation marks) which shows fairly sustained surveillance of the Center over the course of three years:

November 29, 2002: Supervisory Special Agent “Susan Crosetti” sends rookie FBI officer “Mark Berry” to surveil people associated with the Thomas Merton Center distributing leaflets opposing the Iraq War. Berry takes photos of some participants. The report recording the surveillance is placed in the “international terrorism” file.

January 2003: Secret Service agent visits Merton Center to discuss upcoming protest in Pittsburgh.

February 26, 2003: Pittsburgh office produces Letterhead Memorandum, titled “International Terrorism Matters,” describing a vigil the Merton Center was planning for when the Iraq War started, as well as local events that had taken place on February 15, 2003 in association with the NY-based United for Peace and Justice sponsored protest.

April 4, 2003: FBI produces EC on Pittsburgh organizational meeting at the Merton Center in advance of Miami FTAA.

July 8, 2003: FBI EC describes threats that FTAA protesters would use puppets to attack riot police and Molotov cocktails.

July 10, 2003: First document recording ties between Person B (alleged to have pro-Palestinian feelings) and the Merton Center (note, this document must have been withheld from the FOIA).

July 21, 2003: Miami Field Office opens domestic terrorism investigation in relation to the FTAA protests.

July 25, 2003: Miami Field Office sends EC to Pittsburgh Field Office on August 29-31 planning meeting for FTAA including Merton Center.

July 26, 2003: FBI designates FTAA a Special Event worthy of heightened surveillance.

August 29-31, 2003: FBI conducts research on FTAA planning meeting at Merton Center in Pittsburgh.

October 29 (?), 2004: First report from confidential source mentioning the Merton Center (all these reports were faxed on July 8, 2005 and declassified on January 4, 2006). The source was apparently the friend of an agent’s son, and included reporting on planning for an anti-war march the Merton Center was planning. The source was purportedly recruited for an investigation into several alleged members of the Pittsburgh Organizing Group; that investigation was a terrorism investigation.

February 25, 2005: Second report from confidential source on the Merton Center.

March 1, 2005: Third report from confidential source on the Merton Center.

March 19, 2005: Fourth report from confidential source on the Merton Center.

Unknown date (before May 18, 2005): FBI agent visits Merton Center intern at intern’s residence asking for information about Merton Center activities.

May 18, 2005: ACLU PA FOIAs FBI documents referencing the Thomas Merton Center (among others).

Unknown date, 2006: Pittsburgh’s Chief Division Counsel reviews the source reporting (and two earlier anti-war reports) and tells agent to close the source.

January 23, 2006: “Carl Fritsch,” a member of Pittsburgh FBI’s legal staff, and Crosetti, both search FBI databases on Farooq Hussaini’s name.

February 1, 2006: National ACLU files FOIA.

February 8, 2006: FBI Field Division Attorney “Stanley Kempler” sends Record Management Division a routing slip, written by “Carl Fritsch,” indicating that the November 29, 2002 surveillance had been directed at Farooq Hussaini and alleging that Hussaini was associated with “Person B” who was the subject of a different investigation. This routing slip was–in the IG Report’s judgment–the first attempt to invent a cover story for the November 2002 surveillance. The same slip provided background on the February 26, 2003 and urged RMD not to release it.

March 14, 2006: ACLU releases FOIA documents, focusing on November 29, 2002 report; FBI issues a press release see PDF 205) inventing a public rationale for the surveillance and purporting to address the February 26, 2003 report.

March 22, 2006: FBI Director’s Research Group writes document “ACLU Allegations of Spying.”

May 2, 2006: Patrick Leahy asks Robert Mueller why FBI was surveilling anti-war demonstrators.

“Soon after” hearing: Leahy asks several Questions For the Record, including for any “earlier investigative memos” that served as the basis for the November 2002 surveillance.

May 16, 2006: Counterterrorism Division’s Executive Staff tasks “Clarence Parkman,” from their Iraq Unit, to draft a response to Leahy. Minutes earlier, Parkman had done a database search on Thomas Merton Center. Two analytical employees in the Iraq section emailed Kempler (cc’ing Berry) for more information. Kempler forwarded the request to Crosetti.

June 5, 2006: Iraq Unit of Counterterrorism Division provides 3-paragraph response to Leahy’s question about November 2002 anti-war rally newly claiming that Person B was the subject of the surveillance. The response also claims–contrary to the description in the original EC but corresponding to story Berry first told to IG–that Berry took pictures of just one, female, protester.

The IG presents this series of surveillance actions directed at the Merton Center as discrete events. It attempts to find an explanation for each incident of surveillance in isolation, and as such, is able to describe each as legally permissible, leaving only the attempt to retroactively invent an explanation for the November 2002 surveillance as really problematic.

But examining the other reports makes it clear that there was a pattern of investigating the Merton Center’s anti-war activities under the guise of terrorism.

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