Posts

Anwar al-Awlaki Is the New Aluminum Tube

/28 Comments/in /by

Mark Mazzetti, Charlie Savage, and Scott Shane team up to provide the government’s best case — and at times, an irresponsibly credulous one — for the killing of Anwar al-Awlaki and the collateral deaths of Samir Khan and Abdulrahman al-Awlaki.

Yet even in a 3,600 word story, they don’t present any evidence against the senior Awlaki that was fresher than a year old — the October 2010 toner cartridge plot — at the time the Yemeni-American was killed. (I’m not saying the government didn’t have more recent intelligence; it just doesn’t appear in this very Administration-friendly case.) Not surprisingly, then, the story completely ignores questions about the definition of “imminent threat” used in the OLC memo and whether Awlaki was an “imminent” threat when he was killed.

The “linked in various ways” standard for killing Americans

Moreover, the case they do present has various weaknesses.

The story provides a fair amount of space to Awlaki’s celebration of the Nidal Hasan attack (though it does make it clear Awlaki did not respond enthusiastically to Hasan’s queries before the attack).

Investigators quickly discovered that the major had exchanged e-mails with Mr. Awlaki, though the cleric’s replies had been cautious and noncommittal. But four days after the shootings, the cleric removed any doubt about where he stood.

“Nidal Hassan is a hero,” he wrote on his widely read blog. “He is a man of conscience who could not bear living the contradiction of being a Muslim and serving in an army that is fighting against his own people.”

It uses far vaguer language to describe Awlaki’s role in the Faisal Shahzad and toner cartridge plots.

Meanwhile, attacks linked in various ways to Mr. Awlaki continued to mount, including the attempted car bombing of Times Square in May 2010 by Faisal Shahzad, a naturalized American citizen who had reached out to the preacher on the Internet, and the attempted bombing by Al Qaeda in the Arabian Peninsula of cargo planes bound for the United States that October.

“Linked in various ways” seems to be the new standard for killing an American. That, in spite of the fact that Shahzad’s tie to Awlaki seems to be the same Hasan had: an inspiration, but not any involvement in the plot. And while Awlaki is reported to have had some role in the toner cartridge plot, reports from Saudi infiltrator Jabir al-Fayfi apparently fingered others in AQAP as the chief plotters.

I guess that would be too much nuance to include in a 3,600 word article.

NYT doesn’t care about problems with the Abu Tarak explanation

Which leaves the UndieBomb attack as the sole attack in which the NYT presents evidence about Awlaki’s direct role. But there’s a problem with their claims there, too.

The would-be underwear bomber told F.B.I. agents that after he went to Yemen and tracked down Mr. Awlaki, his online hero, the cleric had discussed “martyrdom and jihad” with him, approved him for a suicide mission, helped him prepare a martyrdom video and directed him to detonate his bomb over United States territory, according to court documents.

In his initial 50-minute interrogation on Dec. 25, 2009, before he stopped speaking for a month, Mr. Abdulmutallab said he had been sent by a terrorist named Abu Tarek, although intelligence agencies quickly found indications that Mr. Awlaki was probably involved. When Mr. Abdulmutallab resumed cooperating with interrogators in late January, an official said, he admitted that “Abu Tarek” was Mr. Awlaki. With the Nigerian’s statements, American officials had witness confirmation that Mr. Awlaki was clearly a direct plotter, no longer just a dangerous propagandist.

I don’t doubt that Awlaki was directly involved in this attack in some way. And I got the same explanation about Abu Tarak from “an official” back when I first noted the discrepancy between DOJ’s public claims (thanks for not crediting me on that one, NYT boys). But either Abdulmutallab said something beyond “Abu Tarak was Awlaki,” or the entire explanation is not credible.

That’s because Abdulmutallab’s initial interrogation — according to the version presented by Jonathan Tukel in the opening arguments of Abdulmutallab’s trial — said Abu Tarak did the following:

  1. Spoke daily with Abdulmutallab about jihad and martyrdom
  2. Suggested to Abdulmutallab that he become involved in a plane attack against the United States aircraft
  3. Gave him training in detonating the bomb
  4. Told him to make sure he attacked a U.S. aircraft and make sure the attack takes place over the United States

Yet according to the version of Abdulmutallab’s interrogation presented in his sentencing memo, here’s who did those things:

  1. Awlaki and Abdulmutallab discussed martyrdom and jihad
  2. Defendant and Ibrahim Al Asiri discussed defendant’s desire to commit an act of jihad; Asiri discussed a plan for a martyrdom mission with Awlaki, who gave it final approval
  3. Asiri trained defendant in the use of the bomb
  4. Awlaki instructed defendant that the only requirements were that the attack be on a U.S. airliner, and that the attack take place over U.S. soil

Read more →

Snowpocalypse and Obama’s Drone Talk

/2 Comments/in /by

As I’ve said a few times, I suspect one reason the Administration may be acting so ridiculously with respect to drones is because the families of Anwar and Abdulrahman al-Awlaki and Samir Khan are suing for wrongful death. The ace in the hole the Administration would use to dismiss that suit would normally be state secrets. But as more and more officials discuss aspects of the drone program, it will be harder to sustain any state secrets invocation if they need one (though that didn’t help the Jeppesen plaintiffs). And if the suit goes forward, there might be really interesting claims exposed, more so with Samir Khan (who no one has accused of being operational) and Abdulrahman than Anwar al-Awlaki.

That is, recent events have made it more likely that wrongful death suit will turn into precisely what Steve Vladeck has proposed for targeted killings of Americans, a real review of the killings.

And that may be more true after the President makes some kind of public statement on drones, as Eric Holder suggested yesterday he would (see 53:00 and following).

What you will hear from the President in a relatively short period of time is, uh–I don’t want to preempt this, but we talked about a need for greater transparency, in what we share, what we talk about. Because I am really confident that if the American people had access, for example–some of this stuff cannot be shared. I understand that. But at least the representatives of the American people had the ability–as members of the Intelligence Committee have been able to see–some of those OLC opinions, there would be a greater degree of comfort that people would have to understand that this government does these things reluctantly, but also we do it in conformity with international law, with domestic law, and with our values as of the American people.

And so I think there is going to be a greater effort at transparency, a number of steps are going to be taken–I expect you are going to hear the President speaking, about this.

Which is why I find it interesting that DOJ used the overblown snowpocalpyse to request a two-day delay in its reply to ACLU’s response to the government’s motion to dismiss the wrongful death suit. Judge Rosemary Collyer granted the request, giving DOJ the weekend to write its brief. After all, DOJ has had a full month to write their brief, and it can be filed remotely. They didn’t ask for a delay because of not-snow. I suspect they asked for a delay because the Administration is in the middle of changing its approach to targeted killing transparency.

That doesn’t mean they’re about to let a judge review their legal case for killing Awlaki and friends. But it likely does mean they need to account for how a Presidential speech acknowledging drone killing will affect this suit.

ACLU, Obama’s White Whale

/6 Comments/in , , /by

Screen shot 2013-02-28 at 10.47.36 AMNPR’s Carrie Johnson, ACLU’s Jameel Jaffer, and I discussed yesterday whether the Administration decided to blow off the House Judiciary Committee panel on targeted killing because appearing and answering questions might compromise their uncompromising stance in the targeted killing FOIA.

It’s a point Ben Wittes made in a response to my query from yesterday,

I can’t imagine what kind of stupidity drove the decision to blow off the committee.

(Note, thanks to Wittes for displaying my potty-mouth in its well-celebrated glory; MSNBC Lawfare is not.)

In which he suggests both John Brennan’s nomination and ACLU’s FOIA may have driven that decision.

I can imagine two reasons, though I agree with Marcy that it was stupid—and, I will also add, wrong—of the administration to stiff the committee. The first is John Brennan’s pending confirmation. The last thing administration wants right now, prior to a Senate vote on Brennan, is to create a forum in which officials get more questions on targeted killings.

The second reason, as I said at the hearing, is FOIA litigation. Every disclosure prompts more demands for more disclosures and prompts arguments that material is not, in fact, secret. So there’s a hunker-down-and-say-nothing mentality that has kicked in. As I say, it’s wrong. And as the tone of yesterday’s hearing—where Republicans and Democrats alike were clamoring for judicial review of targeting decisions—shows, the administration has a lot of work to do with Congress if it means to maintain confidence in its policies—work that will have to be done, at least in part, in public. But it’s not hard, in my opinion, to imagine what’s behind it.

First, with regards to Brennan’s nomination, I present this:

The Senate intelligence committee on Wednesday postponed until next week a vote on the confirmation of White House aide John Brennan to be CIA director, dashing hopes of Democratic leaders who had hoped to have a vote on Thursday.

[snip]

No explanation for the delay was immediately available. However, the Obama administration has been at odds with members of the committee’s Democratic majority over White House unwillingness to disclose some highly classified legal documents related to “targeted killings,” including the use of lethal drone strikes against suspected militants.

[snip]

On Wednesday, administration officials met with intelligence committee members to discuss the contents of the disputed documents. Copies of the material were not turned over to the committee, however, said a source familiar with the matter.

On Tuesday, the Administration shared the Benghazi emails with the Benghazi Truthers, which had been their plan to move Brennan’s nomination forward without turning over any more memos. And while some Republicans, just moments after they received the emails, made a mild stink about Brennan’s thoroughly predictable involvement in efforts to craft talking points about the attack, by Wednesday, that already proved insufficient to move the nomination.

By Wednesday, the Administration was sharing more information on the memos, not Benghazi. And then, after sharing such information, we learn the Administration has been left to stew over the weekend.

Now, perhaps the leaks to National Journal changed the game:

A senator who sits on the Intelligence Committee and has read some of the memos also said that the still-unreleased memos contain secret protocols with the governments of Yemen and Pakistan on how targeted killings should be conducted. Information about these pacts, however, were not in the OLC opinions the senator has been allowed to see. The senator, who also would speak to National Journal only on condition of anonymity, said the only memos that the committee has been given represent mainly legal analysis justifying the drone strikes, and that the rest contain “case-specific” facts about operations.

In response to which an anonymous official who looks like Tommy Vietor made dickish comments about how unreasonable it would be to let the Senate Intelligence Committee exercise oversight and how mean it is to use confirmations to insist on being able to do so because it just feeds into Republican plots.

An Obama administration official who is familiar with the negotiations with Feinstein’s committee indicated that the White House was miffed at efforts by the senator and her staff to obtain all the memos at once, because such efforts play into the Republican strategy of using the dispute to delay the confirmation of John Brennan, Obama’s nominee to head the CIA and the main architect of the drone program, as well as Chuck Hagel as Defense secretary.

“These guys don’t even know what the hell they’re asking for,” the official said. “They think they can ‘reverse-engineer’ the [drone] program by asking for more memos, but these are not necessarily things that exist or are relevant…. What they’re asking for is to get more people read into very sensitive programs. That’s not a small decision.”

Perhaps senior administration officials leaking information presumably contained in the memos to the NYT didn’t help matters.

And while lofty Senators on Intelligence Committees usually couldn’t give a damn about lowly Congressman on Judiciary Committees, I can’t imagine yesterday’s hearing helped. Because in that hearing, a bunch of very partisan Republicans made a case that will be credible to moderates and civil libertarians like me (not to mention, really feed the Tea Partiers) that the Administration is abusing its power, both in regards to the way it is treating Congress, but also in its claims to potentially unchecked authority. (Note, on that front, I owe HJC Chair Bob Goodlatte an apology: it was a well-run and well-crafted hearing.)

With the Talking Point emails shared, Benghazi is frittering out, and the Republicans will need a new scandal to fundraise off of. And a potential fight over whether or not the President has to say whether he thinks he can kill Americans in America has the distinct advantage over both Fast and Furious (their most successful scandal to date) and Benghazi (which wasn’t nearly as successful) in that people across the political spectrum (save those who think Obama should be trusted with this authority because, well, he’s trustworthy) may think it’s reasonable.

That is, while (some) Republicans may only be picking this up because it demonstrates the Administration’s double standard with respect to the Bush Administration, or because their prerogatives have been slighted, or because they figure this paranoid level of secrecy might be hiding real misconduct, the targeting killing memos are close to reaching a tipping point at which they turn into a real political issue.

And that may be what the Administration will be stewing over this weekend.

In the face of that threat, then, there’s just the FOIA. Mean old ACLU Legal Director Jameel Jaffer, FOIAing for more information on the President’s authority to kill Americans (and also, it should be said, helping the Awlaki and Khan families sue for wrongful death). How dare he do that, even if John Brennan, in one of the Administration’s key counterterrorism speeches, emphasized how important presumptive disclosure on FOIA was?

Our democratic values also include—and our national security demands—open and transparent government. Some information obviously needs to be protected. And since his first days in office, President Obama has worked to strike the proper balance between the security the American people deserve and the openness our democratic society expects.

[snip]

The President also issued a Freedom of Information Act Directive mandating that agencies adopt a presumption of disclosure when processing requests for information.

So what if John Brennan says the terrorists will win if the Administration plays stupid games with FOIA? There are lawsuits to be won, damnit!

Now, I have no doubt that the Administration might delay Congressional oversight solely to gain an advantage over the ACLU. Not only did Daniel Klaidman’s sources reveal such suits were at the forefront of their considerations when deciding not to be as transparent as promised, but it appears the Administration already delayed Congressional oversight so as to gain an advantage in ACLU’s FOIA suit.

So yes, it is likely that is one of the reasons DOJ chose to snub the Committee, thereby making this issue more of a political issue.

But it seems the Administration has lost all perspective about how those FOIAs might play out. That’s true, as Jack Goldsmith pointed out, because even if a judge rules that the Administration has revealed what it has been trying to avoid revealing, it’s not the end of the FOIA world for them.

But what if the Court does rule that the USG has acknowledged CIA’s involvement in drone strikes?  What would the ACLU gain, since the whole world already knows this fact?  Such a ruling would require CIA to file a Vaughn index listing responsive documents to the CIA request.  But at that point the government would have further legal options for non-disclosure.  As I once explained:

Even if the D.C. Circuit concludes that the USG has in effect officially acknowledged CIA involvement in drone strikes, however, it need not follow that the CIA must cough up a list of all responsive documents.  These lists alone – which typically contain document titles, dates, and the like – can disclose quite a lot about what the CIA is doing.  Some of the information in a Vaughn index might reveal or point to sources and methods or other properly classified information that would harm national security.  I see no reason why the D.C. Circuit could not rule that the USG has acknowledged CIA involvement, but then rule that (a) the CIA need not produce a Vaughn index if doing so would disclose properly classified information, or (b) the CIA must produce a Vaughn index but can redact any entries in the index (including all of them) that would, if revealed, disclose properly classified information.  Option (a) was suggested by Judge Easterbrook in Bassiouni v. CIA, 392 F. 3d 244 (7th Cir. 2005) – an approach that, as Easterbrook noted, is entirely consistent with the FOIA statute.  Option (b) is simply a more fine-grained substitute for the Easterbrook approach that would force the government to explain its redactions (and which need be no trickier than the already-tricky process of forcing the government to explain why the documents referenced in a Vaughn index need not be disclosed).

Even if ACLU wins on the “official acknowledgment” issue, in short, it has a long way to go to get the records it seeks.  But as we have seen more than once in the last decade, even heavily redacted Vaughn indexes can reveal important information and constitute the basis for further FOIA requests and further disclosures (through FOIA or other means).

I’d add that, at least in the 2nd Circuit, the Administration seems to be protected by overly broad protection for the Memorandum of Notification that authorizes targeted killing and everything else.

And unless there are really big disclosures in there that even I can’t imagine (plus, who besides me is going to look that closely?), there’s simply nothing that will come out in FOIA that will be more damaging than inciting the Republicans to turn this — a real example of abuse of power — into their next political scandal.

Trust me, Obama folks, you made the wrong calculation here, and you’d do well to reverse course before it’s too late.

Though I will make one final caveat.

I don’t think the FOIA could be all that damaging to the Administration.

But I do think the wrongful death suit might. This discussion will make it very hard for the Administration to dismiss of this counterterrorism suit the same way they have every other one, by invoking state secrets (and while there might be standing issues, particularly for Nasser al-Awlaki, Sam Alito won’t be able to suggest the Awlakis and Khans can’t prove their family members were killed in a US drone strike). And having lost the veil of state secrets, there are all sorts of issues that might come out, both about Awlaki’s history, and about why the FBI let Samir Khan leave when every other known radical trying to head to Yemen gets arrested before he boards a plane.

And, quite simply, if they can’t prevent Khan from pursuing this wrongful death suit, some interesting legal conclusions.

So while I think to the extent the Administration is still stalling Congress because of the FOIA, they’re crazy. If that’s the case, they’d be risking giving Republicans a really dangerous issue to politicize next.

All that said, I think the wrongful death suit may present real issues for them, particularly as this information becomes more public. But if it does, then it just serves to prove that the case for killing Awlaki and Khan and Abdulrahman doesn’t withstand legal review.

Targeted Killing Timeline

/27 Comments/in , /by

A timeline!

I’ve been working on this timeline for almost nine months, trying to pull together the known dates about strikes against Americans, the evidence supporting the strike against Anwar al-Awlaki, the legal cases surrounding both targeted killing and torture, to which targeted killing is linked via the Memorandum of Notification, and Congressional efforts to exercise oversight.

September 17, 2001: George Bush signs Memorandum of Notification (henceforth, Gloves Come Off MON) authorizing a range of counterterrorism techniques, including torture and targeted killing.

September 18, 2001: Congress passes the Authorization to Use Military Force.

November 3, 2002: US citizen Kamal Derwish killed in drone purportedly targeting Abu Ali al-Harithi.

Late 2008: Ruben Shumpert reported killed in Somalia.

June 24, 2009: Leon Panetta gets briefed on assassination squad program.

June 26, 2009: HPSCI passes a funding authorization report expanding the Gang of Eight briefings.

July 8, 2009: The Administration responds with an insulting appeal to a “fundamental compact” between Congress and the President on intelligence matters.

July 8, 2009: Silvestre Reyes announces CIA lied to Congress.

October 26, 2009: British High Court first orders British government to release language on Binyam Mohamed’s treatment.

October 28, 2009: FBI kills Imam Luqman Asmeen Abdullah during Dearborn, MI arrest raid.

October 29, 2009: Hearing on declassifying mention of Gloves Come Off MON before Judge Alvin Hellerstein; in it, Hellerstein reveals NSA James Jones has submitted declaration to keep mention of MON secret.

November 5, 2009: Nidal Hasan attacks Fort Hood, killing 13.

December 24, 2009: JSOC tries but fails to hit Anwar al-Awlaki. On that day, the IC did not yet believe him to be operational.

December 25, 2009: With Umar Farouk Abdulmutallab attack, FBI develops full understanding of Awlaki’s operational goals.

January 2, 2010: In conversation with David Petraeus, Yemeni President Ali Abdullah Saleh http://www.cablegatesearch.net/cable.php?id=10SANAA4“>speaks as if Awlaki, whom he refers to as a cleric, not an AQAP member, was a designated target of December 24 attack.

Read more →

The Moral Rectitude Assassination Czar

/24 Comments/in /by

[youtube]7MwB2znBZ1g[/youtube]

Back in April and May, when John Brennan seized control of the drone targeting process purportedly in the interest of “showing the American public that al-Qaida targets are chosen only after painstaking and exhaustive debate,” an extensive NYT article—providing a picture of drone targeting as done before Brennan had consolidated control of it–described Brennan in religious terms. Among other descriptions offered of the guy in charge of drone assassinations, Harold Koh described him as a priest.

“If John Brennan is the last guy in the room with the president, I’m comfortable, because Brennan is a person of genuine moral rectitude,” Mr. Koh said. “It’s as though you had a priest with extremely strong moral values who was suddenly charged with leading a war.”

That same formulation–moral rectitude–shows up in Karen DeYoung’s profile of John Brennan today.

Some White House aides describe him as a nearly priest-like presence in their midst, with a moral depth leavened by a dry, Irish wit.

One CIA colleague, former general counsel John Rizzo, recalled his rectitude surfacing in unexpected ways. Brennan once questioned Rizzo’s use of the “BCC” function in the agency’s e-mail system to send a blind copy of a message to a third party without the primary recipient’s knowledge.

“He wasn’t joking,” Rizzo said. “He regarded that as underhanded.”

That’s not all that surprising. After all, DeYoung may have talked to Koh for this article, or “moral rectitude” may just be a well rehearsed line inside the White House.

Having anyone question Rizzo’s ethics, however, is no evidence of moral rectitude.

Indeed, the article–and the last set of similar articles–suggests Brennan does not exercise the moral rectitude the anonymous White House sources claim. Last time around, after all, the articles told how Brennan shut down signature strikes and war in Yemen. But by the time the articles came out, he had approved them.

This time around, the article notes Brennan’s belief CIA shouldn’t be in the paramilitary business, but approved such activities operating out of Djibouti. He is about to approve more drones because Petraeus wants them rather than fixing our HUMINT weaknesses. Similarly, Brennan’s moral rectitude on Mali involvement has faded.

It’s in light of this false myth of Brennan’s moral rectitude that I want to look more closely at the most remarked lines of this story.

In them, an anonymous Administration official seemingly shows regret for the killing of Abdulrahman al-Awlaki (as I noted at the time, the big profiles in May both were utterly silent about Abdulrahman).

Two administration officials said that CIA drones were responsible for two of the most controversial attacks in Yemen in 2011 — one that killed American-born cleric Anwar al-Awlaki, a prominent figure in al-Qaeda in the Arabian Peninsula, and a second a few days later that killed his 16-year-old son, also an American citizen. One of the officials called the second attack “an outrageous mistake. . . . They were going after the guy sitting next to him.”

Note, last year, Greg Miller reported JSOC carried out the Abdulrahman strike.

On Sept. 30, Awlaki was killed in a missile strike carried out by the CIA under Title 50 authorities — which govern covert intelligence operations — even though officials said it was initially unclear whether an agency or JSOC drone had delivered the fatal blow. A second U.S. citizen, an al-Qaeda propagandist who had lived in North Carolina, was among those killed.

The execution was nearly flawless, officials said. Nevertheless, when a similar strike was conducted just two weeks later, the entire protocol had changed. The second attack, which killed Awlaki’s 16-year-old son, was carried out by JSOC under Title 10 authorities that apply to the use of military force.

The detail matters, because ongoing FOIAs for information on Abdulrahman’s death face a higher bar if CIA carried out the attack than if JSOC did (Brennan’s laughable claim to want DOD to carry out these strikes so they will be transparent is another of the instances in the story where his moral rectitude proves infinitely flexible).

But it’s the statement itself–“an outrageous mistake. . . . They were going after the guy sitting next to him”–that I find even more laughable. Partly it’s word choice. Who says “outrageous mistake”? Normally, you’d expect someone to say “horrible mistake,” because if it’s a “mistake” then there’s no intent or poor judgment to get outraged about (unless the targeting here, overseen by Brennan personally, was particularly incompetent–but that’s the kind of thing these Kill List articles assure us could never happen).

Besides, according to the rules exposed in the last set of Kill List articles, Abdulrahman qualifies as a legitimate target. He’s a military aged male. Therefore, according to the rules of targeting, hitting him wasn’t a mistake at all. He was a militant considered an acceptable target by the moral rectitude Assassination Czar.

And all that’s before you consider that every other American killed by drones–Kamal Derwish, who purportedly died as “collateral damage” in the Abu Ali al-Harithi strike; Anwar al-Awlaki, who was first missed on December 24, 2009 in a strike purportedly targeting someone else, WikiLeaks evidence to the contrary notwithstanding (at a time when the Intelligence Community didn’t consider Awlaki operational); and Samir Khan, who died as collateral damage in the Awlaki strike–were or were going to be collateral damage at one point. That’s a lot of collaterally damaged inconvenient Americans.

Do people at the White House regret that they keep getting questions about the dead American teenager? Do they regret the almost nonexistent political fallout that has resulted? Do they feel a tinge of guilt that their rules make killing a teenager legal? Perhaps.

But the performance of morality in the Abdulrahman statement–like the moral rectitude rehearsed once again in a John Brennan article–is unconvincing.

DOJ Attributes Its Inadequate Response to Targeted Killing FOIA on the Deputy and Attorney General’s Staff

/8 Comments/in , /by

Back in June, I showed several departments in the government had done inadequate searches for documents responsive to the NYT and, especially, ACLU FOIAs on targeted killing.

DOJ did not perform a reasonable search for documents responsive to ACLU’s FOIA

Part of the problem–for all respondents save the OLC (and CIA, which didn’t describe its search)–is that they used search terms that were likely to leave out responsive documents. In the case of DOJ’s Office of Information Policy, that problem was exacerbated because it searched only on the names of Anwar and Abdulrahman al-Awlaki and Samir Khan in conjunction with the word “target;” not only would that search leave out documents responsive to the NYT FOIA, it was pretty much guaranteed to leave out several important parts of the ACLU request, notably those pertaining to the underlying evidence that Anwar al-Awlaki was an imminent threat or operational.

OIP’s inadequate search was proven by the results of OLC’s search. OLC found 50 documents responsive to the ACLU’s FOIA that also included offices under OIP’s area of responsibility; 32 of those fell in the abbreviated time frame OIP included in their search. OIP only found one of those documents on its own, and only found 4 documents, total, on its own. Given that there were surely a bunch of conversations that transpired exclusively within the Attorney General and Deputy Attorney General’s offices that OLC couldn’t find, we can say with certainty that OIP’s searches found just a tiny fraction (probably less than one percent) of responsive documents.

DOJ doesn’t acknowledge scope of missed documents

The ACLU raised those and other problems with the government’s search in July. In last week’s response, the government didn’t admit what the record clearly shows–that their search was inadequate–and offer to do a real search. Rather, it called the ACLU’s points “nitpicks.” It responded to ACLU’s argument that only searching documents in conjunction with “target” would miss a lot of responsive documents (the ACLU didn’t make the point about the “imminent” and “operational” intelligence as strongly as they might have) by effectively saying, “excluding documents was the point,” even while misrepresenting the content of ACLU’s request as pertaining only to the decision to kill Awlaki and not the underlying decision that he represented an imminent threat because he had gone operational.

And it responded to the ACLU’s demonstration that the search clearly missed responsive documents because OLC had found 10 times more documents from OIP’s area of responsibility than OIP had with a citation to a case that found the government hadn’t conducted an adequate search because it relied on a name search, which is what OIP effectively used. The one line of the decision they cite pertains to the government failing to find one document, not 49 (nowhere in the government response do they admit to how many documents they failed to find).

The ACLU points out that OIP did not uncover some of the documents located by OLC. “Of course, the failure to turn up [a] document does not alone render the search inadequate; there is no requirement that an agency produce all responsive documents.” Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 892 n.7 (D.C. Cir. 1995). Again, the focus is on whether the search was reasonable.

Moreover, this case’s holding would support the ACLU argument that it’s not enough to do a name search if it clearly leaves out the intent of the request, as OIP’s searches do.

OIP didn’t search FOR responsive documents, it worked to exclude documents

As I said, DOJ tried to explain their use of names plus “target” as a justifiable means of search because the Office of the Attorney General and Office of the Deputy Attorney General had so many files they needed to sort somehow.

OIP used fewer search terms than OLC in part because it covers offices with a broader range of interests.

[snip]

Moreover, OIP’s limitation on the search of names to documents also including the word “target” is reasonable in light of the language of the ACLU’s request, which did not seek all documents concerning Aulaqi, but rather information on the factual and legal basis for the alleged individual targeting decisions.

But that doesn’t explain why “target” was the proper way of excluding bunches of non-responsive documents. Read more →

Conflation of Military and Sports to Give Us Basketball Game on Ship Used for Rendition, Torture

/10 Comments/in /by

Colorado-born Abdulrahman al-Awlaki will never get to choose between college sports and the military. A drone strike ordered by Obama killed him in October.

The sickness in American culture today that praises violence has seeped into college athletics in a manner that leaves me cold. I am appalled when college football or baseball teams “honor” the military by incorporating camouflage motifs into their uniforms. College sports are college sports and the military is the military. Yes, in both college sports and the military young people of the same age group are the primary participants, but sports at one time were merely entertaining pastimes and the military ultimately comes down to being about killing and maiming. Directing the team spirit of college sports toward military praise always comes off to me as an attempt to move praise of the military to a level of unquestioning support that can only have bad consequences.

We have been reminded recently that unquestioning support of college sports also leads to bad consequences. The debacle at Penn State was enabled in large part by the elevation of the Penn State football coaching staff to a level where they were treated as completely above the law, even when it came to sexual abuse of young boys. Unquestioning support of the military (George W. Bush: “You’re either with us or against us”) likewise has enabled it to move above the law. The Great War on Terror under George W. Bush and Dick Cheney relied heavily on the illegal practices of rendition and torture. Barack Obama, as suggested by Tom Junod, seems to have moved another large step beyond the law into extrajudicial killing:

But what if the the kind of militant who was captured and tortured under Bush is the kind of militant who is simply being killed under President Obama?

Listen to the announcer’s words near the beginning of this YouTube of the national anthem being played at a game at this year’s NCAA College World Series in Omaha. Why is it necessary to say “And now ladies and gentlemen, please join us in honoring America and those who support our freedom at home and abroad” at a college baseball game? Isn’t honoring the country enough? Why do we need more of a military reference beyond the military color guard? This was not a one-off event. Virtually the same script was used at every regional and super-regional game I attended here in Gainesville where teams were vying for the right to go to Omaha, so it clearly is part of the script put into place by the NCAA. Normal home games for the Gators during the regular season did not employ the language.

But now the conflation of the military and college sports has moved to a level where the symbolism is just too warped for me to allow it to go unchallenged. Last year, I was content merely to spout lots of snark on Twitter about conflating college sports and the military while the 2011 Carrier Classic was played on the USS Carl Vinson. This year, however, my Florida Gators will be playing in the game and it will be held on the USS Bataan. I have written previously on the Bataan. It has a particularly upsetting history, as I quoted Clive Stafford-Smith and the Reprieve project: Read more →

Will the Government Finally Use a Lawsuit as an Opportunity to Explain the Anwar al-Awlaki Killing?

/8 Comments/in , /by

When the ACLU and CCR represented Nasser al-Awlaki in a suit to prevent the government from killing Nasser’s son Anwar unless the government could prove he was an imminent threat, Judge John Bates threw the case out on standing grounds. The civil rights groups think they’ll face no such problem on the suit alleging wrongful death they just filed suing Leon Panetta, David Petraeus, SOCOM Commander William McRaven, and JSOC Commander Joseph Votel. That’s because Nasser al-Awlaki–suing on behalf of both his son and grandson, Abdulrahman–and Sarah Khan–suing on behalf of her son Samir, who was killed in the strike on Anwar–represent the estates of the dead men, so they should clearly have standing.

If that’s right, the courts will have to find some other way to punt on this issue. Alternately, for the first time, the government will have to provide evidence to a court to judge whether or not it wrongly killed three American citizens.

That’s one of the big issues behind this suit–an issue which I hope to follow up on later. As the Director of ACLU’s National Security Project, Hina Shamsi, noted, while the facts alleged against Anwar (though not against his son or Samir Khan) are very serious, none of them have been attested in court yet (the government submitted some of the facts in the Abulmutallab sentencing, but only after the trial was over).

We don’t want to minimize the seriousness of the allegations [against Anwar al-Awlaki]. It is the role of the courts to distinguish between actual evidence and mere allegations.

She describes this as an opportunity for the government. If the government has evidence Awlaki presented an imminent threat, this case is an opportunity to present the evidence so it can be tested.

Of course, the government has had that opportunity three times before: in the earlier Nasser al-Awlaki suit, the Abdulmutallab trial, and the FOIA response. The government’s efforts to avoid using that opportunity have gotten more and more ridiculous. But since they appear to have no shame on this point, I’m betting they find a way to avoid doing so now.

Why Is DOJ Deliberately Hiding Information Responsive to ACLU’s Anwar al-Awlaki FOIA?

/25 Comments/in , , /by

As part of its strategy to not respond to the Anwar al-Awlaki FOIAs, the government seems to have decided to bury the NYT and ACLU under declarations. It submitted declarations and exhibits from 3 departments in DOJ, CIA, DOD, and DIA. Each attempts to appear helpful while (usually) blathering on at length but in no detail about why the President’s authority to kill an American citizen must remain hidden.

That said, the declarations can be distinguished by how convincing (or not) are their claims to have searched for relevant documents. In particular, DOJ Office of Information Policy was patently unresponsive, probably to hide the intelligence DOJ has on Anwar al-Awlaki (and possibly Samir Khan).

DOJ OLC presented by far the most convincing evidence of a real search. As described by Deputy Assistant Attorney General John Bies, the department conducted searches for the following terms: target! kill!, drones, assassinat!, extrajudicial killing, UAV, unmanned, awlaki, aulaqi, lethal force, lethal operation.

DOD primarily searched legal officers. While Lieutenant General Robert Neller didn’t provide a full list of search terms used, he claimed the search “included relevant key words,” including “Citizen,” “AG Speech,” “al-Awlaki,” and “Samir Khan.” While Neller says DOD used “multiple spellings” of al-Awlaki, it’s not clear whether they only searched hyphenated names. And there are some terms clearly missing–such as anything to do with targeted killing. And “citizen”? Really?!?!?

CIA, meanwhile, had this to say about their search:

In light of these recent speeches and the official disclosures contained therein, the CIA decided to conduct a reasonable search for records responsive to the ACLU’s request. Based on that search, it has determined that it can now publicly acknowledge that it possesses records responsive to the ACLU’s FOIA request.

The DOJ response provides this nonsensical excuse for why CIA can’t reveal how it searched for relevant documents.

Although the CIA acknowledges its possession of some records responsive to the FOIA 6 requests, information concerning the depth and breadth of that interest, including the number of documents, is classified. See infra Point II; Bennett Decl. ¶¶ 27-28. We therefore do not describe the CIA’s search on the public record; it is described in the Classified Declaration of John Bennett.

Given the CIA’s well-documented history of not searching where they know the most interesting documents are, I think it safe to assume the search was completely negligent. But I find it mighty interesting they didn’t even tell us what their search consisted of–the better to avoid contempt proceedings in the future, I guess.

Nevertheless, I think the least defensible search comes from Deputy Chief of the Initial Request Staff at Office of Information Policy Joseph Hibbard. OIP conducted the search in offices of top DOJ officials like the Attorney General, the Deputy Attorney General, and so on. Their search terms were: “targeted killings,” “kill lists,” “lethal operation,” “lethal force,” “al-Aulaqi” and “target,” “al-Awlaki” and “target,” “Samir Khan” and “target,” and “Abdulrahman” and “target.” Read more →

Is There a Pre-2001 OLC Opinion Authorizing Targeted Killing of US Citizen Terrorists?

/9 Comments/in , , /by

Update: I realize now this can’t be the explanation. I’ve just referred back to the original request and the ACLU actually did time-limit their general requests to records created after September 11, 2001. So maybe the issue relates to non-al Qaeda terrorists?

I’m still working through all the declarations submitted in the government’s response to the drone targeting FOIAs; I will have far, far more to say about what they suggest.

But for now I wanted to point to a detail in OLC Deputy Assistant Attorney General John Bies’ declaration that suggests OLC has a pre-2001 memo authorizing the targeted killing of US citizen terrorists.

As Bies’ declaration lays out, the three FOIAs at issue in this suit ask for OLC memos relating to the targeted killing of US citizens. To summarize:

  • Scott Shane asked for OLC memos since 2001 on the targeted killing of people suspected of ties to Al Qaeda or other terrorist groups
  • Charlie Savage asked for OLC memos on the targeted killing of a United States citizen who is deemed to be a terrorist
  • ACLU asked for all records on the legal basis under which US citizens can be subjected for targeted killings

That is, Shane put a start date on his FOIA–post 2001–and limited it to terrorist groups. Savage put no start date on it and didn’t specify which terrorist groups he was addressing. ACLU didn’t limit it with either a start date or ties to terrorist groups. Note, too, ACLU was looking for info on the killing of Abdulrahman al-Awlaki as well as his father and Samir Khan; Savage used language suggesting an interest in Anwar al-Awlaki, though he did not limit his request to the older Awlaki. Shane used no such limiting language.

As I’ve analyzed and will show at more length, the government gave inconsistent responses to these three FOIAs, even though on the surface they appeared to ask for the same information.

More interesting still is Bies’ claim in his declaration that the responses to Savage and the ACLU were limited to the recent spate of targeted killings of US citizens. Bies wrote,

By letter dated October 27, 2011, [OLC Special Counsel] Colburn responded to the Savage Request on behalf of the OLC. … Interpreting the request as seeking OLC opinions pertaining to al-Aulaqi, OLC neither confirmed nor denied the existence of such documents, pursuant to FOIA Exemptions One, Three, and Five.

[snip]

By letter dated November 14, 2011, Mr. Colburn responded to [ACLU lawyer Nate] Wessler on behalf of OLC, interpreting the request as seeking OLC opinions pertaining to those three individuals [Anwar al-Awlaki, Samir Khan, and Abdulrahman al-Awlaki] and informing him that, pursuant to FOIA Exemptions One, Three, and Five, OLC “neither confirms nor denies the existence of the documents in your request” because the very fact of the existence of nonexistence of such documents is itself classified, protected from disclosure by statute, and privileged.” [my emphasis]

Bies’ declaration had no language about Colburn “interpreting” Shane’s FOIA to pertain only to these killings in Yemen. In addition, as you can see from the letters Colburn sent (linked above), Colburn actually didn’t note his interpretation in his response letters to Savage and ACLU. I guess they were just supposed to guess.

And while this is just a wildarsed guess, the totality of these three requests and the caveats Bies made about the responses suggests that Colburn had to make such interpretations because of the open timeframe of the requests. That is, what is common to the Savage and ACLU requests but not the Shane one is the way they set no start point for their request.

Which suggests there may be OLC documents pertaining to the targeted killing of Americans (potentially as terrorists) dating back before the 2001 start point of Shane’s request. Who knows? Maybe there’s an OLC opinion authorizing the assassination of Black Panther Fred Hampton, for example (though the FBI would only fall under Savage’s request if considered “intelligence community assets”). If that’s correct, then is that OLC memo still on the books?

There are, I suspect, a number of other reasons why the government is so squirrely about this FOIA. But one of them may relate to documents lying around OLC’s archives from before the time 9/11 changed everything … or returned an earlier state of targeted killing.