The targeted execution of Anwar al-Awlaki struck different people along the political spectrum in the United States in many different ways, but it has been heartening most all have recognized it as a seminal moment worthy of dissection and contemplation. Despite all the discussion afforded the execution of Awlaki in the last few days, it cannot be emphasized enough how impossible it is to have a completely meaningful discussion on the topic due to the relentless blanket of secrecy imposed by the United States government. Before I get into the substantive policy and legal issues surrounding the targeting and assassination of American citizens, which I will come back to in a separate post, a few words about said secrecy are in order.

The first to note, and complain of, the strange secrecy surrounding not just the kill listing of Awlaki, but the entire drone assassination program, was Marcy right here in Emptywheel. Within a couple of hours of the news of the Awlaki strike, she called for the release of the evidence and information serving as the Administration’s foundation for the extrajudicial execution of an American citizen and within a couple of hours of that, noted the ironic inanity of the pattern and practice of the one hand of the Obama Administration, through such officials as Bob Gates, James Clapper and Panetta trotting out “state secrets” to claim drone actions cannot even be mentioned while the other hand, through mouthpieces such as John Brennan are out blabbing all kinds of details in order to buck up Administration policy.

Now, you would expect us here at Emptywheel to vociferously complain about the rampant secrecy and hypocritical application of it by the Executive Branch, what has been refreshing, however, is how broad the spectrum of commentators voicing the same concerns has been. Glenn Greenwald was, as expected, on the cause from the start, but so too have voices on the other side of the traditional spectrum such as the Brookings Institute’s Benjamin Wittes, to former Gang of Eight member and noted hawk Jane Harman, and current Senate Armed Services Chairman Carl Levin and Daphne Eviatar of Human Rights First.

But if there were any doubt that it was just left leaning voices calling for release of targeting and legal foundation information, or only sources such as Emptywheel or the New York Times pointing out the hypocrisy and duplicity with which the Administration handles their precious “state secret”, then take a gander at what former Bush OLC chief Jack Goldsmith had to say Monday, after a weekend of contemplation of the issues surrounding the take out of Awlaki:

I agree that the administration should release a redacted version of the opinion, or should extract the legal analysis and place it in another document that can be released consistent with restrictions on classified information.

I have no doubt that Obama administration lawyers did a thorough and careful job of analyzing the legal issues surrounding the al-Aulaqi killing. The case for disclosing the analysis is easy. The killing of a U.S. citizen in this context is unusual and in some quarters controversial. A thorough public explanation of the legal basis for the killing (and for targeted killings generally) would allow experts in the press, the academy, and Congress to scrutinize and criticize it, and would, as Harman says, permit a much more informed public debate. Such public scrutiny is especially appropriate since, as Judge Bates’s ruling last year shows, courts are unlikely to review executive action in this context. In a real sense, legal accountability for the practice of targeted killings depends on a thorough public legal explanation by the administration.

Jack has hit the nail precisely on the head here, the courts to date have found no avenue of interjection, and even should they in the future, the matter is almost surely to be one of political nature. And accountability of our politicians depends on the public havin sufficient knowledge and information with which to make at least the basic fundamental decisions on propriety and scope. But Mr. Goldsmith, admirably, did not stop there and continued on to note the very hypocrisy and duplicity Marcy did last Friday:

We know the government can provide a public legal analysis of this sort because presidential counterterrorism advisor John Brennan and State Department Legal Advisor Harold Koh have given such legal explanations in speeches, albeit in limited and conclusory terms. These speeches show that there is no bar in principle to a public disclosure of a more robust legal analysis of targeted killings like al-Aulaqi’s. So too do the administration’s many leaks of legal conclusions (and operational details) about the al-Aulaqi killing.

A full legal analysis, as opposed to conclusory explanations in government speeches and leaks, would permit a robust debate about targeted killings – especially of U.S. citizens – that is troubling to many people. Such an analysis could explain, for example, whether the government believed that al-Aulaqi possessed constitutional rights under the First, Fourth, Fifth or other amendments, and (assuming the government concluded that he possessed some such rights) why the rights were not implicated by the strike. It could also describe the limits of presidential power in this context.

The Obama administration frequently trumpets its commitment to transparency and the rule of law. The President and many of his subordinates were critical of what they deemed to be unnecessarily secretive Bush administration legal opinions, and they disclosed an unprecedented number of them, including many classified ones. Now is the time for the administration to apply to itself a principle that it applied to its predecessor.

Again, exactly right. From Marcy Wheeler, to Gang of Eight members, to Jack Goldsmith, the voice is both clear and consistent: The Obama Administration needs to come clean with as much of the legal and factual underpinnings as humanly possible short of compromising “means and methods” that truly are still secret. That would be, by almost any account, a lot of information and law with which the American public, indeed the world, could not only know and understand, but use to gauge their votes and opinions on. Doing so would make the United States, and its actions, stronger and more sound.

In the second part of this series, which I should have done by tomorrow morning sometime, I will discuss what we know, and what we don’t know, about the legal and factual underpinnings for targeted killing of US citizens, and sort through possible protocols that may be appropriate for placement of a citizen target and subsequent killing.

UPDATE: As MadDog noted in comments, Jack Goldsmith has penned a followup piece at Lawfare expounding on the need for release of the foundational underpinnings of how an American citizen such as Alawki came to be so targeted. Once again, it is spot on:

First, it is wrong, as Ben notes, for the government to maintain technical covertness but then engage in continuous leaks, attributed to government officials, of many (self-serving) details about the covert operations and their legal justifications. It is wrong because it is illegal. It is wrong because it damages (though perhaps not destroys) the diplomatic and related goals of covertness. And it is wrong because the Executive branch seems to be trying to have its cake (not talking about the program openly in order to serve diplomatic interests and perhaps deflect scrutiny) and eat it too (leaking promiscuously to get credit for the operation and to portray it as lawful). I do not know if the leaks are authorized in some sense or not, or where in the executive branch they come from, or what if anything the government might be doing to try to stop them. But of course the president is ultimately responsible for the leaks. One might think – I am not there yet, but I understand why someone might be – that the double standard on discussing covert actions disqualifies the government from invoking technical covertness to avoid scrutiny.

Second, there is no bar grounded in technical covertness, or in concerns about revealing means and methods of intelligence gathering, to revealing (either in a redacted opinion or in a separate document) the legal reasoning supporting a deadly strike on a U.S. citizen. John Brennan and Harold Koh have already talked about the legality of strikes outside Afghanistan in abstract terms, mostly focusing on international law. I don’t think much more detail on the international law basis is necessary; nor do I think that more disclosure on international law would do much to change the minds of critics who believe the strikes violate international law. But there has been practically nothing said officially (as opposed through leaks and gestures and what is revealed in between the lines in briefs) about the executive branch processes that lie behind a strike on a U.S. citizen, or about what constitutional rights the U.S. citizen target possesses, or about the limitations and conditions on the president’s power to target and kill a U.S. citizen. This information would, I think, matter to American audiences that generally support the president on the al-Aulaqi strike but want to be assured that it was done lawfully and with care. The government could easily reveal this more detailed legal basis for a strike on a U.S. citizen without reference to particular operations, or targets, or means of fire, or countries.

Listen, we may not always agree with Jack here, and both Marcy and I have laid into him plenty over the years where appropriate; but credit should be given where and when due. It is here. And, while I am at it, I would like to recommend people read the Lawfare blog. All three principals there, Ben Wittes, Goldsmith and Bobby Chesney write intelligent and thoughtful pieces on national security and law of war issues. No, you will not always agree with them, nor they with you necessarily; that is okay, it is still informative and educational. If nothing else, you always want to know what the smart people on the other side are saying.

[Incredibly awesome graphic by the one and only Darkblack. If you are not familiar with his work, or have not seen it lately, please go peruse the masterpieces at his homebase. Seriously good artwork and incredible music there.]

The Denver Post had a story detailing the superb work the FBI did to prevent Najibullah Zazi from launching his attack on the subways. As it describes, the FBI discovered an email he wrote discussing an upcoming “wedding,” and in two weeks managed to track him down.

They also had three e-mails that Zazi had reportedly sent, in which he asked about “mixtures.”

“The marriage is ready flour and oil,” one e-mail stated, in part.

It’s widely known in intelligence circles that terrorists use the word “marriage” to mean an attack or suicide bombing. To see the words “marriage” and “ready” in such close proximity, the agents knew, was cause for serious alarm.

While this story describes (as I have) how the NYPD tipped Zazi off to the investigation, it also makes clear, once again, what didn’t identify Zazi: the NYPD’s abusive spying program. The NYPD had recruited Zazi’s imam as an informant. And yet they missed the development of one of the biggest plots of recent years.

I’m actually sympathetic to the notion that if Eric Holder misled Congress about what he knew of the Fast and Furious debacle, he should pay a price for that (though it seems likely he was instead narrowly parsing).

House Republicans are calling for a special counsel to determine whether Attorney General Eric Holder misled Congress during his testimony to the House Judiciary Committee on Operation Fast and Furious, Fox News has learned.

[snip]

The question is whether Holder knowingly made false statements of fact under oath during a Judiciary Committee hearing on May 3. At the time, Holder indicated he was not familiar with the Bureau of Alcohol, Tobacco, Firearms and Explosives program known as Fast and Furious until about April 2011.

“I’m not sure of the exact date, but I probably heard about Fast and Furious for the first time over the last few weeks,” Holder testified.

[snip]

However, newly discovered memos suggest otherwise. For instance, one memo dated July 2010 shows Michael Walther, director of the National Drug Intelligence Center, told Holder that straw buyers in the Fast and Furious operation “are responsible for the purchase of 1,500 firearms that were then supplied to the Mexican drug trafficking cartels.”

Other documents also indicate that Holder began receiving weekly briefings on the program from the National Drug Intelligence Center “beginning, at the latest, on July 5, 2010,” Smith wrote.

A pity for Republicans they applauded when Elliott Abrams paid no price for lying to Congress and have remained silent as the government has made sure that Scott Bloch avoids a mere 30 day sentence for lying to Congress. Because, in effect, the government has decided there will be no consequences for lying to Congress and no one in Congress has objected.

The never-ending twists and turns in the relationship between the US and Pakistan continues, with Afghanistan now entering the picture by signing an agreement with Pakistan’s chief rival India.  Also, it is being reported that earlier this summer, Pakistan’s ISI helped to arrange a meeting between US officials and the Haqqani network.  This is a remarkable development since the relationship between the ISI and the Haqqani network has been the central feature of the latest dispute between the US and Pakistan.

While still in New Delhi after signing the agreement with India, Afghan President Hamid Karzai realized he needed to reassure Pakistan, whose biggest fear is that India will have more influence than Pakistan in Afghanistan after the US exit:

“Pakistan is our twin brother, India is a great friend. The agreement we signed with our friend will not affect our brother,” Karzai said in a foreign policy speech in New Delhi.

“This strategic partnership … is not directed against any country … this strategic partnership is to support Afghanistan.”

The Reuters report goes on to characterize the agreement:

Karzai and Indian Prime Minister Manmohan Singh sealed an agreement on Tuesday that spanned closer political ties to fighting terrorism and allowed India to help train its police and army.

It signals a formal tightening of links that may spark Pakistani concern that India is increasingly competing for leverage in Afghanistan.

In another very remarkable development, the Wall Street Journal is reporting this morning that earlier this summer, Pakistan’s ISI arranged a meeting between the US and the Haqqani network.  That article is behind a paywall, so here is how Pakistan’s Express Tribune reports on the development:

US officials met with leaders of the Haqqani network in a meeting arranged by the Inter-Services Intelligence agency (ISI) earlier this summer, The Wall Street Journal reported on Wednesday.

The meeting was held “in an effort to draw” the group into talks “on winding down the war.”

The fact that the US would meet with the Haqqani network is stunning, given the strong rhetoric the US has used in accusing the ISI of aiding the Haqqani network attack on the US embassy and ISAF headquarters.  As a result, the story of the meeting seems full of internal inconsistencies:

Officials from Pakistan and the US said the initiative did not yield much. Washington had earlier also said that the group was “beyond reconciliation.”

The report states that the US had come to terms with the fact that targeting the group was not the solution and that they would have be drawn into peace talks.

Given the current rhetoric, it is hard to accept that ” the fact that targeting the group was not the solution” is still the operative belief held by the US.  In fact, there are reports this morning of the US taking out a major leader of the Haqqani network in an airstrike near the Pakistan border in Afghanistan.  Despite the overwhelming evidence that the US position now appears to be one of attacking the Haqqani network until it is decimated, the Express Tribune article carries this quote from a US official describing the decision to meet with the Haqqani network:

We’ve got no illusions about what the Haqqanis ultimately are. The war is going to end with a deal. That’s what we’re trying to make inevitable. The more parties involved in talking, that’s probably going to make for a better deal.

It would be interesting to know whether the summer meeting, followed by the enhanced rhetoric this fall, represents evolution in the consensus of US leaders, where an attempt at negotiation was found to be fruitless or, alternatively, whether there are competing camps within US leadership who continue to hold to advocate opposite approaches favoring violent or peaceful solutions.  Only time will tell.

When I recover a bit more from having finished Dick Cheney’s infernal tome, I will have more to say about it.

But I wanted to point to this piece of news in it that no one has yet noted:

I participated in two lengthy sessions with the special counsel. The first was in my West Wing office in May 2004. The second was in Jackson Hole Wyoming, in August 2004. The second session was conducted under oath so that my testimony could be submitted to the grand jury.(408)

That is, Patrick Fitzgerald interviewed Cheney not just the one time we knew about–on May 8, 2004. But he also interviewed Cheney sometime during August 2004 (at least according to Cheney), apparently in anticipation of submitting that testimony to the grand jury.

The timing of this is pretty telling.

On August 12, 2004, Fitzgerald subpoenaed Judy Miller to testify. And on August 27, 2004, he wrote an affidavit justifying his subpoena, focusing closely on Scooter Libby’s claims that he had been ordered by Dick Cheney to leak material to Miller. And we know from Cheney’s first interview that he hung Libby out to dry, denying any knowledge of such things.

The Vice President does not recall any member of his staff, including Scooter Libby, meeting with New York Times reporter Judith Miller during the week of 7/7/03, just after publication of Joe Wilson’s editorial in the New York Times.

[snip]

The Vice President advised that no one ever told him of a desire to share key judgments of the NIE with a news reporter prior to the NIEs declassification on 7/18/03.

[snip]

The Vice President cannot specifically recall having a conversation with Scooter Libby during which Libby advised the Vice President that he wanted to share with the key judgments of the NIE with Judith Miller. Although if it did occur, he would have advised Libby only to use something if it was declassified. He believed Libby would have told him about any attempts to put something out to the media prior to its declassification and the Vice President cannot recall such a discussion.

When asked if he ever had a conversation with Scooter Libby wherein Libby informed the Vice President that certain material within the NIE needed to be declassified before it could be shared externally, Vice President Cheney advised he does not recall.

To a large degree, Cheney’s first answers–assuming they remained substantively the same in the second interview–necessitated Judy Miller’s testimony, since Libby had clear notes about being ordered to leak material to Miller that had been effectively hidden by his lies about Russert. Libby’s notes made it appear like he might have leaked Plame’s identity to Miller (which turned out to be the case). And Cheney’s refusal to claim he had authorized that leak put Libby at real risk of an IIPA indictment.

This interview raises a few more questions. First, in his first interview, Cheney did not release the journalists he had spoken with from their pledge of confidentiality. Bob Novak testified on September 14, 2004; though Fitzgerald’s affidavit makes it clear much of that discussion was about his conversation with Richard Armitage, Novak spoke with someone at OVP on July 7, 2003, so it has always been possible he was hiding a Cheney conversation.

In addition, Judy Miller explained away the “Aspens connected at the roots” comment by relating a chance encounter with Libby in Jackson Hole in August 2003 (not 2004). Though when I asked her if she had seen Cheney on that same trip, she did not answer. Is it possible the reference to Jackson Hole was a coded reference to Cheney?

Finally–and critically importantly–when CREW FOIAed this interview, they asked for “all transcripts, reports, notes and other documents relating to any interviews outside the presence of the grand jury of Vice President Richard B. Cheney that are part of Special Counsel Patrick Fitzgerald’s investigation into the leak of the identity of Valerie Plame Wilson.” In other words, this second interview would have been squarely within the terms of their request. This interview should have been released under their FOIA, but was not.

This previously unreported Cheney interview would appear to go right to the heart of why Patrick Fitzgerald subpoenaed Judy Miller to find out whether Scooter Libby leaked Valerie Plame’s identity to her. And for some reason, it appears the Bush and Obama DOJ didn’t want us to read it.

Raymond Davis is to make a second appearance in a Colorado courtroom today, as prosecutors have upgraded the assault charge against him from misdemeanor to felony level.  The charge arises from an argument and fight over a parking space at a suburban Denver bagel shop on Saturday morning.  While the descriptions that have emerged of the fight suggest that it is appropriate for Davis to face this charge, the appearance of Davis in a criminal proceeding raises a larger question.  Back when Davis was still in Pakistani custody, one of the arguments presented by the US in trying to obtain his release was that Davis would face investigation and potential prosecution for the killing of two Pakistanis once he was back in the US.  Davis was released March 16, but no reports of him facing even an investigation, let alone charges, from the killings in Pakistan have emerged.

The Los Angeles Times has details on the Saturday fight:

The fight was reported Saturday outside Einstein Bros. Bagels in Highlands Ranch. Authorities have released few details about the fight and did not identify the other person involved, and a Douglas County sheriff’s spokesman did not return calls or email late Monday.

But KUSA-TV in Denver reported that Jeff Maes was the man allegedly assaulted by Davis. Maes told KUSA-TV that the fight began over a parking space in the crowded lot about 9 a.m.

“Instead of going by and saying, ‘Hey that was my spot,’ he goes behind me, rolls his window down and starts cussing me out,” Maes said.

He added that the altercation quickly escalated as his wife and two young daughters watched.

“I said, ‘You need to relax,’ ” Maes said. “I said, ‘This is stupid,’ I turned, and he hit me.”

Just one month before Davis was released, Senator John Kerry traveled to Pakistan to lobby high level Pakistani government figures for Davis’ release.  One of the enticements Kerry offered was that Davis would face investigation for killing the two Pakistanis in Lahore once he returned to the US:

The Guardian described Kerry’s efforts:

Senator John Kerry, the former US presidential candidate, is holding high-level meetings in Pakistan in an attempt to defuse a diplomatic crisis involving a US embassy worker who shot dead two Pakistanis last month.

Kerry has scheduled talks with the prime minister, Yousuf Raza Gilani, and the head of the army, General Ashfaq Parvez Kayani, over the case of Raymond Davis, which has pushed anti-American sentiment in Pakistan to fever pitch.

The article then gives Kerry’s assurance that Davis would face investigation in the US:

Ahead of today’s discussions, Kerry expressed regret over the deaths and promised that Davis would face a US criminal investigation if he were to be released by the Pakistani government.

“It is customary in an incident like this for our government to conduct a criminal investigation. That is our law. And I can give you the full assurance of our government today that that will take place,” Kerry told reporters in the eastern city of Lahore. “So there is no such thing as a suggestion that something is out of law or that America thinks somehow we’re not subject to the law.”

It would appear that Kerry was just blowing smoke and that at least when it comes to Davis killing two people in Pakistan, Davis was indeed “not subject to the law”.  At the very least, if the investigation Kerry promised is ongoing, it is being conducted in utter secrecy. However, it appears that Davis is not above the law when it comes to the local authorities in suburban Denver.

Kill two people in a foreign country, stirring up massive anti-American protests in the process, and the government will spare no expense in freeing you with no further consequences, but punch a man over a parking space in an Einstein Brothers parking lot and face the full fury of the law.  Ain’t justice in the US grand?

While supervisors from the NYPD are pepper-spraying peaceful political protestors, the Department is also coming under scrutiny for its past (and presumably ongoing) civil liberties abuse, the profiling of Muslim and Arab residents of NY.

As the original AP story on the NYPD’s profiling program described, in the 1980s, the city was put under court orders limiting the kind of intelligence-gathering programs it could conduct.

Since 1985, the NYPD had operated under a federal court order limiting the tactics it could use to gather intelligence. During the 1960s and 1970s, the department had used informants and undercover officers to infiltrate anti-war protest groups and other activists without any reason to suspect criminal behavior.

To settle a lawsuit, the department agreed to follow guidelines that required “specific information” of criminal activity before police could monitor political activity.

In September 2002, [NYPD Intelligence Unit Head David] Cohen told a federal judge that those guidelines made it “virtually impossible” to detect terrorist plots. The FBI was changing its rules to respond to 9/11, and Cohen argued that the NYPD must do so, too.

“In the case of terrorism, to wait for an indication of crime before investigating is to wait far too long,” Cohen wrote.

U.S. District Judge Charles S. Haight Jr. agreed, saying the old guidelines “addressed different perils in a different time.” He scrapped the old rules and replaced them with more lenient ones.

As the AP has been exposing the NYPD profiling program, it has never been entirely clear how this agreement simply got put aside, not least because the intelligence department was also involved in the 2004 RNC abuses.

And the question is more pressing given that Anthony Bologna, the pepper sprayer, is part of the NYPD’s counterterrorism group. I

It’s bad enough, after all, that the NYPD is profiling the city’s Moroccan restaurants, but it seems to be abusing the kind of political persecution the court order–Handschu v. Special Services Division–was supposed to prevent.

Today, the NYCLU is asking more questions about what is going on.

The New York Civil Liberties Union and partnering civil rights attorneys today filed papers in federal court seeking information on the NYPD’s surveillance of Muslims in New York City to determine whether the spying operation violates an existing court order. The filing is part of the Handschu v. Special Services Divisionproceedings, a decades-old federal case that has produced a series of court orders regulating NYPD surveillance of political and religious activity.

The filing asks the court to initiate a discovery process pertaining to the NYPD’s surveillance of Muslims to determine whether those efforts have violated a 1985 consent decree in the Handschu case that restricts the Police Department’s ability to conduct surveillance targeting political and religious activity. The filing also asks the court to order the NYPD to preserve any records relating to its surveillance of Muslims while the discovery process takes place.

“The NYPD’s reported surveillance of local Muslim communities raises serious questions concerning whether the Police Department has violated court-ordered restrictions on its ability to spy on and keep dossiers on individuals,” said NYCLU Legal Director Arthur Eisenberg. “In order to know whether the NYPD is violating the court order, we need a more complete explanation of the NYPD’s surveillance practices.”

To be clear, this is a response to the ethnic profiling, not the crack-down on #OccupyWallStreet.

But if the NYCLU effort succeeds, it may succeed in exposing a lot more about how the NYPD became the CIA-on-the-Hudson. Anthony Bologna’s aggression is already being investigated by the NYPD itself and the DA. But with this NYCLU action, other activities of the NYPD may get scrutinized by the courts, too.

In an article published on CNN.com on Saturday and a program aired Sunday evening, CNN does their best to lend credence to DOJ’s shoddy work that resulted in the unsupported conclusion that Bruce Ivins acted alone in the anthrax attacks of 2001.  Remarkably, in their effort to shore up DOJ’s weak evidence, CNN chose to emphasize one of the weakest links used to tie Ivins to the attacks.

The article and program center on Ivins’ apparent fixation on the Kappa Kappa Gamma sorority.  One former object of Ivins’ attentions, researcher Nancy Haigwood, is relied upon almost exclusively for making the leap from Ivins’ obsession with the sorority to his role in the anthrax attacks.  The article relates the early interactions between Haigwood and Ivins:

Haigwood had met Bruce Ivins in the mid-1970s during graduate school at the University of North Carolina at Chapel Hill. She recalled his incessant questions about her sorority, Kappa Kappa Gamma.

Having joined the sorority as an undergraduate, Haigwood stayed involved as the adult adviser at the UNC chapter. Ivins, she says, always asked her for information about Kappa Kappa Gamma.

“Every time I talked to him, nearly, he would mention it,” says Haigwood. “And finally I said, ‘You know, Bruce, that’s enough!’”

As time went on, Ivins continued to contact Haigwood and apparently submitted a false letter to the editor of a newspaper under her name and vandalized her car.  Haigwood began to suspect Ivins in the attacks because of an email he sent to her and others in November, 2001 highlighting his work with the anthrax isolated from the attacks.  In one a photo in the email, he is handling culture plates without gloves, a break of containment protocol for working with such dangerous material.  Haigwood felt that by sending out this photo, Ivins was emphasizing his immunity to anthrax because he had been vaccinated.

In January of 2002, the FBI emailed members of the American Society of Microbiology, asking for help in identifying suspects in the attack.  Only Haigwood replied to this request and she submitted Ivins’ name.

Once the FBI finally got around to concentrating on Ivins as their primary suspect, they had to undergo some very significant contortions in order to incorporate the Kappa Kappa Gamma obsession into the “evidence” of Ivins’ guilt:

Prosecutors were convinced they had solved a crucial aspect of the mystery: why the anthrax letters were mailed from Princeton, New Jersey. The nondescript but heavily contaminated drop box was on Nassau Street — across from Princeton University.

It had taken several years from the time Nancy Haigwood first contacted the FBI about Bruce Ivins for investigators to make what they believe to be the critical connection:

The mailbox on Nassau Street was just a few doors from a building that leased office space to a sorority: Kappa Kappa Gamma.

That’s it: according to the FBI, Ivins has to be the guilty party and his Kappa Kappa Gamma obsession led him to drive about three and a half hours from where he lived and worked, in order to mail the anthrax letters from a mailbox a few doors away from an office space rented by the sorority.

But this shaky claim already has been thoroughly destroyed.  In this post from August, 2008, Marcy showed that Ivins’ work records–from data released by the FBI–indicate that it would not have been possible for him to make the round trip to Princeton and put the letters in the mailbox with them getting the appropriate postmark:

It would not be possible for Ivins to have mailed the anthrax. According to my calculations above, the window during which Ivins could have put the letter in the mailbox on September 17 was from 10:25 to 1:35. But here’s what the FBI itself says about the window in which the letter was mailed:

The investigation examined Dr. Ivins’s laboratory activity immediately before and after the window of opportunity for the mailing of the Post and Brokaw letters to New York which began at 5:00 p.m. Monday, September 17,2001 and ended at noon on Tuesday, September 18, 2001. [my emphasis]

In other words, had he mailed the anthrax when they’re arguing he did, the letter would have been picked up at the 5:00 PM pick-up (if not an earlier one–often boxes have a mid-day pick-up as well), and post-marked on September 17, not on September 18.

When DOJ adjusted their claims on the mailing slightly, Marcy was able to point out that adjustment also was faulty.

Also not explained by DOJ or CNN is why Ivins chose to go all the way to Princeton and use a mailbox near an office (where there likely would have been employees of the sorority but few if any undergraduate members) when there are other Kappa Kappa Gamma chapters closer to where Ivins lived:

All of which ought to raise the stakes on the FBI’s really dubious explanation for why Ivins purportedly mailed the anthrax in Princeton. After all, there are Kappa Kappa Gamma chapters at George Washington in DC, at Johns Hopkins in Baltimore, and Washington and Lee in Lexington, VA–all much closer to Ft. Detrick than Princeton. So what’s the explanation for driving to Princeton (twice), when Ivins could have associated the anthrax mailing with KKG which much less effort if he had mailed it from any of a number of other schools.

It’s a real mystery why CNN chose to try to shore up DOJ’s weak case against Ivins.  In their defense, they do include these two paragraphs in the online story:

Ivins denied having anything to do with the anthrax letters. And investigators had no direct evidence linking Ivins to the crime: no DNA on the letters, no fingerprints, no eyewitness.

“How [the anthrax] was made, how it was prepared, where it was done, over what period of time — there’s a total void of evidence,” Ivins’ attorney, Paul Kemp, said in a recent CNN interview.

Those weaknesses, however, were simply brushed aside by CNN as they happily joined DOJ in making the leap from Ivins’ harassment of Haigwood to making the Kappa Kappa Gamma obsession a central part of their “proof” Ivins carried out the anthrax attacks entirely on his own.

Because DOJ has officially closed the Amerithrax investigation, it is highly unlikely that the true culprit or culprits in this attack will ever be known.  CNN, however, is doing its part to make sure the DOJ’s unsupported conclusion is cemented in the minds of the low information public.

Particularly given the questions bmaz raised the other day, I wanted to point to something Dutch Ruppersberger, the Democratic Ranking Member of the House Intelligence Committee, had to say the other day. As part of the assurance he offered that the killing of Anwar al-Awlaki was legal, he admitted he doesn’t know whether Samir Khan, the other American citizen killed, was on the government’s kill list, because he doesn’t have access to the list.

Ruppersberger said al-Awlaki was on a special list of individuals that have attempted to attack the United States and are a severe threat to U.S. citizens.

“There’s a process that goes through the National Security Council, and then after that it goes to the president, and then the president then indicates that these individuals are on this list, and as a result of that process we followed it’s legal,” Ruppersberger said. “It’s legitimate, and we’re taking out someone who has attempted to attack us on numerous occasions, and he was on that list. It was pursuant to a process.”

Ruppersberger said he didn’t know if Khan was on the list.

“But Khan was a collateral damage issue here, and I don’t know because I don’t really have access to that list,” Ruppersberger said.

The Gang of Four (or possibly the full Eight, though only the Four have made comments about the killing) is presumably the only review anyone outside of the Executive Branch gives of its decisions to target people, including American citizens, for killing.

But if the Gang of Four doesn’t have access to the kill list, then the only opportunity they’ll have to review the government’s case that the target is indeed a legal target will come at a time when the government already has the person in their sights, presumably with a great deal of time sensitivity.

Yet another reason why this process is inadequate.