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The Warsame Model

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I’ll have more to say about the unsealing of the Ahmed Warsame guilty plea as the week goes forward.

But for the moment I wanted to note a few details of this story describing how the government plans to use the Warsame case as a model for other alleged terrorists — captured, interrogated under law of war conditions for months, and then clean-teamed by the FBI for prosecution in US civilian courts.

Family affairs?

First, note the terse comment from Warsame’s attorney:

Priya Chaudhry, an attorney for Warsame, said she could not comment on his cooperation. She said she was “working very hard to keep his family safe,” adding that the U.S. government was helping.

The impression I’ve gotten from my scant access to the coverage of this case is that this concept — our promise to keep Warsame’s family safe as one reason he cooperated — has been interpreted as keeping the family safe from al Qaeda associates. And the plea agreement actually talks about the Witness Security Program, suggesting Warsame’s family could be resettled in the US or elsewhere in exchange for his cooperation. Kudos to us if we in fact used Warsame’s family solely as some guarantee that his cooperation wouldn’t get them killed.

But remember there’s also been an increasing trend of using threats against family members to coerce cooperation from alleged terrorists and the like, from the kidnapping of Khalid Sheikh Mohammed’s kids to the detention of Faisal Shahzad’s family. Given that history, I’d suggest we might ask whether we’re protecting Warsame’s family from al-Shabaab or from the US?

I look forward to learning more about this, because if the US has finally returned to using carrots as well as — or even better, when innocent family members are involved, instead of — threats against the family, that would be a worthwhile development. But in the very recent past — indeed, even since Warsame’s capture — we have preferred to use threats.

Magic Awlaki information

I’m also interested by the timing of the unsealing of the Warsame plea.

The timing of the unsealing may be most closely connected to the sentencing of Mohamed Ibrahim Ahmed, a Somali-Swede who was sentenced to nine-plus years on Wednesday for materially supporting al Shabaab. Warsame would have testified against Ahmed if his case had gone to trial, though that was made clear before Ahmed himself plead guilty last June, so it’s not new information. As Ahmed’s attorney Sabrina Shroff describes, “It’s like you’re using the consigliere as a snitch against the soldier.” But because the revelation of the unsealing and the Ahmed’s sentencing coincided, it provides an easy way for the government to point to tangible intelligence that Warsame had provided, against however minimal a target.

Nevertheless, I wonder if this news flash doesn’t tie to the government’s efforts to lay out a case against Awlaki (and the still promised talk from the President about drones, and presumably Awlaki’s targeting).

If I’m not mistaken, the first we explicitly heard of Warsame implicating AQAP members comes from the NYT Awlaki production, which described Warsame providing intelligence on Samir Khan.

In April 2011, the United States captured Ahmed Abdulkadir Warsame, a Somali man who worked closely with the Qaeda affiliate in Yemen. He was held aboard a naval vessel for more than two months and spoke freely to interrogators, including about his encounters with the former North Carolina man now editing the group’s magazine, Samir Khan.

While the United States had long tracked Mr. Khan, the new details from the Warsame interrogation raised the question of whether another American citizen should be considered for targeting. There was still scant evidence tying Mr. Khan to any specific plot, so the administration left him off the list. But events would not turn out so neatly.

Note what that information amounted to: nothing tying Khan to any plot, still nothing indicating he was operational. Indeed, if Khan had been rendered rather than killed, Warsame’s failure to tie Khan to operations might have counted as exonerating information.

Now, the WaPo story reveals that Warsame also provided intelligence on Awlaki.

He also provided information about Awlaki, who had become a major target for a capture or kill operation after he was tied to an attempt to bring down a commercial aircraft over Detroit. “He was a guy who was in fairly regular contact with Awlaki and talked about his contacts with Awlaki and Awlaki’s patterns of life,” said the former administration official.

But again, neither the WaPo nor the earlier NYT (which relied on information about Warsame’s interrogations) describes information implicating Awlaki. Rather, the WaPo seems to imply Warsame helped to track down Awlaki (remember: Awlaki had a near miss in May 2011, a month after Warsame’s capture).

All that said, I wouldn’t be surprised if we got magical leaks in upcoming days stating that Warsame did provide intelligence against Awlaki in 2011. That would add something to the government narrative they currently utterly lack — any reasonably fresh intelligence against Awlaki at the time he was killed, rather than the 12 and 20-month old and problematic intelligence tied to the toner cartridge and underwear bomb plots. It would also give us something they don’t otherwise have: someone who would have testified against Awlaki.

The NYT case against Awlaki not only had significant holes and slanted coverage, but there are further problems with the Umar Farouk Abdulmutallab intelligence I hope to lay out going forward. Ultimately, just weeks after Awlaki’s death the government went forward with a conspiracy charge against Abdulmutallab but never (as far as we know) indicted the guy they much later claimed was the key driver of that conspiracy, Awlaki. That says something about the confidence they had in the case against Awlaki even as they killed him, at least as it related to the underwear bomb plot.

Which is why, if Warsame did provide more viable intelligence against Awlaki, I expect we’ll be hearing about it in upcoming weeks.

Ahmed Warsame and StuxNet

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Back in November, I suggested one intended purpose of the detainee provisions in the Defense Authorization is to require a paper trail that would make it a little harder for the Administration to disappear detainees on floating prisons. The bill:

  • Requires written procedures outlining how the Administration decides who counts as a terrorist
  • Requires regular briefings on which groups and individuals the Administration considers to be covered by the AUMF
  • Requires the Administration submit waivers whenever it deviates from presumptive military detention

These are imperfect controls, certainly. But they do seem like efforts to bureaucratize the existing, arbitrary, detention regime, in which the President just makes shit up and tells big parts of Congress–including the Armed Services Committees, who presumably have an interest in making sure the President doesn’t make the military break the law–after the fact.

I suggested this effort to impose bureaucratic controls was, in part, a reaction to the Ahmed Warsame treatment, in which it appears that the Armed Services Committees learned Obama had declared war against parts of al-Shabaab and used that declaration as justification to float Warsame around on a ship for two months. (It appears that the Intelligence Committees, but not the Armed Services Committees, got briefed in this case, though Admiral McRaven was testifying about floating prisons as it was happening). [Update: I may be mistaken about what Lindsey Graham’s language about making sure the AUMF covered this action meant, so italicized language may be incorrect.]

This is not to say the ASCs are going to limit what the President does–just make sure they know about it and make sure the military has legal cover for what they’re doing.

With that in mind, take a look at Robert Chesney’s review of the new cyberwar authorization in the Defense Authorization, which reads:

SEC. 954. MILITARY ACTIVITIES IN CYBERSPACE.

Congress affirms that the Department of Defense has the capability, and upon direction by the President may conduct offensive operations in cyberspace to defend our Nation, Allies and interests, subject to—

(1) the policy principles and legal regimes that the Department follows for kinetic capabilities, including the law of armed conflict; and

(2) the War Powers Resolution (50 U.S.C. 1541 et seq.).

Chesney’s interpretation of this troubling language is that by requiring a Presidential statement in some cases, it will force interagency consultation before, say, DOD launches a cyberwar on Iran. (Oh wait, too late.)

Read more →

Ahmed Abdulkadir Warsame and the Paper Trail Preventing Floating Ghost Prisons

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Given the defeat of the Udall Amendment, it looks likely the Defense Authorization will include provisions mandating military detention for most accused terrorists (though the Administration has already doubled down on their veto threat).

So I’d like to look at an aspect of the existing detainee provision language that has gotten little notice: the way it requires the Administration to create a paper trail that would prevent it from ghosting–disappearing–detainees. In many ways, this paper trail aspect of the detainee provisions seems like a justifiable response to the Administration’s treatment of Ahmed Abdulkadir Warsame.

The Administration unilaterally expanded detention authorities in its treatment of Warsame

As you recall, Ahmed Abdulkadir Warsame is a Somali alleged to be a member of al-Shabab with ties with Al Qaeda in the Arabian Peninsula. When the Administration detained Warsame, al-Shabab was not understood to fall under the 2001 AUMF language. The Administration effectively admitted as much, anonymously, after he was captured.

While Mr. Warsame is accused of being a member of the Shabab, which is focused on a parochial insurgency in Somalia, the administration decided he could be lawfully detained as a wartime prisoner under Congress’s authorization to use military force against the perpetrators of the Sept. 11, 2001, attacks, according to several officials who spoke on the condition of anonymity to discuss security matters.

But the administration does not consider the United States to be at war with every member of the Shabab, officials said. Rather, the government decided that Mr. Warsame and a handful of other individual Shabab leaders could be made targets or detained because they were integrated with Al Qaeda or its Yemen branch and were said to be looking beyond the internal Somali conflict.

And while he had no problem extending the AUMF to include al-Shabab in the war on terror detention authorities, one of the big SASC champions of these detainee provisions, Lindsey Graham, clearly believed Warsame was not included in existing detention authorities.

Senator Lindsey Graham, Republican of South Carolina, said in an interview that he would offer amendments to a pending bill that would expand tribunal jurisdiction and declare that the Shabab are covered by the authorization to use military force against Al Qaeda.

So to begin with, Warsame was detained under AUMF authority that one loud-mouthed, hawkish member of the SASC didn’t believe was actually included under it.

And then there’s the way the Administration ghosted Warsame for 2 months.

The US captured Warsame on April 19, then whisked him away to the amphibious assault ship, the Boxer, where he was interrogated by members of the High Value Detainee Interrogation Group (which, remember, includes DOJ, Intelligence, and military members) for two months. Read more →

Panetta: Kill 20 Leaders, End the War on Terror

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Leon Panetta kicks off his new job as Secretary of Defense with a trip to Afghanistan. On the plane over there this morning, he told reporters that we just need to kill 10 or 20 leaders of al Qaeda and we will “strategically defeat” al Qaeda. (h/t Spencer)

Defense Secretary Leon Panetta declared Saturday that the United States is “within reach” of “strategically defeating” Al Qaeda as a terrorist threat, but that doing so would require killing or capturing the group’s 10 to 20 remaining leaders.

Heading to Afghanistan for the first time since taking office earlier this month, Panetta said that intelligence uncovered in the raid that killed Osama bin Laden in May showed that 10 years of U.S. operations against Al Qaeda had left it with fewer than two dozen key operatives, most of whom are in Pakistan, Yemen, Somalia, and North Africa.

“If we can be successful at going after them, I think we can really undermine their ability to do any kind of planning to be able to conduct any kinds of attack on this country,” Panetta told reporters on his way to Afghanistan aboard a U.S. Air Force jet. “That’s why I think” that defeat of Al Qaeda is “within reach,” he added.

To kill or capture those 20 leaders, mind you, we’ve got 100,000 troops in Afghanistan–where none of these key al Qaeda leaders are, according to Panetta–and will have 70,000 there after we withdraw the surge troops. So I’m guessing Panetta isn’t really promising we’ll end the war; we’ll just have tens of thousands of troops in harms way to do … something.

Compare Panetta’s characterization of what we’re up against with Charlie Savage’s description of the government’s justification for capturing Ahmed Abdulkadir Warsame. As you read this, remember that Warsame was captured on April 19, over a week before the government killed Osama bin Laden and started analyzing the intelligence at OBL’s compound. Though, according to ProPublica, we already knew that OBL nixed a suggestion to make Anwar al-Awlaki the head of Al Qaeda in the Arabian Peninsula.

Savage suggests that we nabbed Warsame on his way back to Somalia from a meeting with al-Awlaki.

Meanwhile, new details emerged about Mr. Warsame’s detention on a Navy ship after his capture in April aboard a fishing skiff between Yemen and Somalia, and about internal administration deliberations on legal policy questions that could have implications for the evolving conflict against Al Qaeda and its affiliates.

A senior counterterrorism official said Wednesday that Mr. Warsame had recently met with Anwar al-Awlaki, the American-born radical cleric now hiding in Yemen.

The Administration justified capturing Warsame based on an argument not that we’re at war against al-Shabaab as a group, but that a handful of al-Shabaab leaders adhere to al Qaeda’s ideology and “could” conduct attacks outside of Somalia.

While Mr. Warsame is accused of being a member of the Shabab, which is focused on a parochial insurgency in Somalia, the administration decided he could be lawfully detained as a wartime prisoner under Congress’s authorization to use military force against the perpetrators of the Sept. 11, 2001, attacks, according to several officials who spoke on the condition of anonymity to discuss security matters.

But the administration does not consider the United States to be at war with every member of the Shabab, officials said. Rather, the government decided that Mr. Warsame and a handful of other individual Shabab leaders could be made targets or detained because they were integrated with Al Qaeda or its Yemen branch and were said to be looking beyond the internal Somali conflict.

“Certain elements of Al Shabab, including its senior leaders, adhere to Al Qaeda’s ideology and could conduct attacks outside of Somalia in East Africa, as it did in Uganda in 2010, or even outside the region to further Al Qaeda’s agenda,” said a senior administration official. “For its leadership and those other Al Qaeda-aligned elements of Al Shabab, our approach is quite clear: They are not beyond the reach of our counterterrorism tools.”

Now, logic dictates that this handful of leaders of a group that did not exist on 9/11 (and therefore couldn’t logically be included in the authorization of force against those who planned the attack) includes the Somalian al-Shabaab leaders included in Panetta’s 10-20 targets.

That is, among the 20 or so people we need to kill or capture to declare victory and go home try to invent some justification to keep 70,000 troops in Afghanistan, are people who simply “could” attack outside of Somalia, but may not have yet. And of course the nexus here seems to focus on al-Awlaki, a guy the Administration has declared a state secret, yet still feels free to leak details with impunity.

Don’t get me wrong, if Panetta is preparing to declare victory and come home, I’m all for it (if the Secretary of Defense actually brings these men and women home, which there’s no plan to do yet).

But there’s something fishy underlying even his claim we need to get these 10-20 leaders.