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Judge Kollar-Kotelly Sees No Evil, Hears No Evil

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Yesterday, Colleen Kollar-Kotelly upheld the government’s right to withhold cables already released via WikiLeaks under FOIA (see my earlier posts on this FOIA here and here). Her logic seems to have a fatal flaw: she says the State Department has proven (and the ACLU has not rebutted the claim) that the US Government owns the cables.

The ACLU simply offers no rejoinder to the State Department’s affirmative showing that all the information at issue (1) was classified by an original classification authority, (2) is owned, produced, or controlled by the United States, and (3) falls within one or more of the eight relevant categories. [my emphasis]

But then she says (noting that ACLU made no mention that these cables had also been released via WikiLeaks and therefore pretending that they might be different) that the government has not officially acknowledged these cables are authentic.

No matter how extensive, the WikiLeaks disclosure is no substitute for an official acknowledgement and the ACLU has not shown that the Executive has officially acknowledged that the specific information at issue was a part of the WikiLeaks disclosure.

I guess they should let Bradley Manning go free, then, since the State Department isn’t prepared to say the cables he is accused of leaking were authentic?

But that’s not the most troubling part of this ruling. As I lay out below–and as Kollar-Kotelly presumably knows well–the cables are full of admissions of crime, including murder, torture, and kidnapping. Thus, had she reviewed them to see whether the government’s claims that they were properly classified are valid, she would have seen that–in addition to information properly classified to protect foreign relations–a lot of the original classification and the government’s refusal to officially release them (which would presumably make them admissible in a court) serve to hide confessions of criminal activity.

So Kollar-Kotelly chose not to review these cables in camera, choosing instead to rely on the State Department declaration that makes no mention of the criminal admissions included in the cables.

In this case, because the State Department’s declarations are sufficiently detailed and the Court is satisfied that no factual dispute remains, the Court declines to exercise its discretion to review the embassy cables in camera.

It was a cowardly ruling. But all the more cowardly, given that Kollar-Kotelly prevented herself from officially reviewing a bunch of evidence of criminal wrong-doing.

Here are details on the cables Kollar-Kotelly doesn’t want to read:

The famous meeting at which Ali Abdullah Saleh promised to lie about our strikes in Yemen

Kollar-Kotelly agreed to keep what has become perhaps the most famous cable ever, in which David Petraeus and Ali Abdullah Saleh discuss the missile strikes we conducted in Yemen in late 2009.

Mind you, the government likely has a very good legal reason to keep this cable secret. The cable makes it clear we were targeting Anwar al-Awlaki (as well as Nasir al-Wuhayshi) in those strikes. And releasing that would constitute official acknowledgement of the targeting of Awlaki that the government has tried so hard to avoid. Furthermore, as I’ll show in a follow-up post, it also shows that we targeted Awlaki for death before we had evidence implicating him in a crime.

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At What Point Will the Administration Admit “American interests” Equal “What the Saudis Want”?

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There are a couple of stories this weekend on our undeclared war in Yemen that deserve some close focus.

As I pointed out in the wake of the NYT and Daily Beast stories on drone targeting, the Administration had been successfully distracting attention from Obama’s embrace of signature strikes directed out of John Brennan’s office by focusing on the vetting that goes (or went) into the Kill List.

With that in mind, compare how Greg Miller reports on those issues in this story. A key source or sources for the story are one or more former US official who describe a liberalization of the Kill List.

Targets still have to pose a “direct threat” to U.S. interests, said a former high-ranking U.S. counterterrorism official. “But the elasticity of that has grown over time.”

[snip]

One of the U.S. objectives in Yemen has been “identifying who those leaders were in those districts that were al-Qaeda and also in charge of the rebellion,” said a former senior U.S. official who was involved in overseeing the campaign before leaving the government. “There was a little liberalization that went on in the kill lists that allowed us to go after them.”

[snip]

The effort nearly ground to a halt last year amid a political crisis that finally forced Yemen’s leader for three decades, Ali Abdullah Saleh, to step down. As he fought to cling to power, U.S. officials said they became concerned that he was trying to direct U.S. strikes against his adversaries under the guise of providing locations of supposed terrorist groups.

“There were times when we were intentionally misled, presumably by Saleh, to get rid of people he wanted to get rid of,” said the former U.S. official involved in overseeing the campaign.

Now, as I noted, both the AP and Daily Beast emphasized the importance of Mike Mullen (who left on September 30, the day we killed Anwar al-Awlaki) and James Cartwright (who left on August 3) to Kill List vetting. That was an aeon ago in our war on Yemen, though the discussion of pulling back on targeting because we finally admitted to ourselves that Ali Abdulllah Saleh was playing a double game with us did happen while they were still around. And, for the moment, I can’t think of any other similarly high-ranking people who have left.

Now compare what these former officials said with what current officials are telling Miller (well, ignore Tommy Vietor, because he’s obviously blowing smoke).

“We’re pursuing a focused counterterrorism campaign in Yemen designed to prevent and deter terrorist plots that directly threaten U.S. interests at home and abroad,” said Tommy Vietor, spokesman for the National Security Council. “We have not and will not get involved in a broader counterinsurgency effort.”

But other U.S. officials said that the administration’s emphasis on threats to interests “abroad” has provided latitude for expanding attacks on al-Qaeda in the Arabian Peninsula (AQAP), as the Yemen affiliate is known. Read more →

Obama’s Yemen EO Still Lets Our Spooks Pay the Targets of the EO

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As I noted earlier, Obama just signed an Executive Order ostensibly targeting the US assets of those who undermine Yemen’s stability, potentially including US citizens who do so. I’ve been comparing this EO to one of the analogous ones pointed out in Karen DeYoung’s article on the EO: one issued against Somalia in 2010 (h/t to Daveed Gartenstein-Ross for the link).

The EOs are very similar, including the language potentially targeting US citizens. But there are some interesting differences.

As DeYoung pointed out, the Yemeni EO, unlike the Somlia one, does not include an annex with named targets, even though the EO itself speaks of “certain members of the Government of Yemen.” As such, this EO seems to be a threat with consequences, not an immediate sanction.

The Yemen EO also uses slightly different language in the clause targeting those who materially support those destabilizing the country. Whereas the Somalia EO includes those who provide “logistical” or “technical” support, the Yemen EO includes those who provide “technological” support. So make sure you don’t serve as webmaster for someone Hillary Clinton thinks is destabilizing Yemen.

The most interesting difference, IMO, is this clause, which appears in the Yemen EO but does not in the Somalia one.

Sec. 5. Nothing in section 1 of this order shall prohibit transactions for the conduct of the official business of the United States Government by employees, grantees, or contractors thereof.

In other words, while Obama doesn’t want you, or Ali Abdullah Saleh’s leave-behinds, or the AP to destabilize Yemen, he reserves the right for US government employees, grantees, or contractors to do so. Which presumably means, as happened in Afghanistan, we are and plan to continue paying some of the people who are in violation of this EO.

I wonder. Among all the adjectives we might use to describe the Saudis, do we use “grantee” among them?

The Jeremy Scahill Yemen Executive Order

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For the record, I don’t think the Obama Administration would be so brazen as to freeze Jeremy Scahill’s assets because he reported critically on Obama’s Yemen policy. But the Executive Order they’re rolling out today is reportedly written so broadly so as to make something like that possible.

The unusual order, which administration officials said also targets U.S. citizens who engage in activity deemed to threaten Yemen’s security or political stability, is the first issued for Yemen that does not directly relate to counterterrorism.

Unlike similar measures authorizing terrorist designations and sanctions, the new order does not include a list of names or organizations already determined to be in violation. Instead, one official said, it is designed as a “deterrent” to “make clear to those who are even thinking of spoiling the transition” to think again.

[snip]

The order provides criteria to take action against people who the Treasury secretary, in consultation with the secretary of state, determines have “engaged in acts that directly or indirectly threaten the peace, security or stability of Yemen, such as acts that obstruct the implementation of the Nov. 23, 2011, agreement between the Government of Yemen and those in opposition to it, which provides for a peaceful transition of power . . . or that obstruct the political process in Yemen.”

It covers those who “have materially assisted, sponsored or provided financial, material or technological support” for the acts described or any person whose property has already been blocked, as well as those who have acted on behalf of such people.

The explanation this anonymous official seems to have given Karen DeYoung is that the order is a way to make sure Ali Abdullah Saleh’s family butts out of affairs in Yemen (which would work, given that he presumably does have significant assets in the US). Using Saleh’s wealth as a way to try to keep him out of Yemeni politics is a nice idea (though the agreement itself could have done more to enforce this).

But Saleh’s not a US citizen. So why explicitly include US citizens in the order?

Moreover, since the language borrows material support language from terrorist sanctions, and since terrorist material support extends to First Amendment protected activities (as Tarek Mehanna knows well), and since Obama has already made sure a journalist remains jailed in Yemen, then what protection is there for people who say that using signature strikes in Yemen is boneheaded, or suggesting that investing all our energies in Saleh’s Vice President doesn’t really constitute a meaningful solution in Yemen?

And to make things worse, the anonymous official tries to tell DeYoung that this sanction is not the first of its kind. It was used twice before: in 2006 in Cote d’Ivoire and in 2009 in Somalia. That is, precisely this kind of sanction has been used twice–and has twice failed to do anything to bring about meaningful stability.

But the single most troubling aspect of this EO is that is guaranteed to be selectively enforced. After all, the Saudis aren’t exactly great friends of “political processes” anywhere, particularly in their backyard, and surely they’re waiting to bomb more Houthis. Yet what are the chances that any Administration would freeze the very significant assets of Saudi citizens in the US–even those operating outside official channels?

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Cluster Bombs on the Head of a Saudi Pinpoint

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Congratulations to the NYT, which offers the superlative version of a story everyone seems to be writing today. It describes a whole host of reasons why we should not trust the Saudis.

That collaboration appears to have intensified over the past two years, despite a long history of mistrust rooted in the role of Saudi hijackers in the attacks of Sept. 11, 2001. The relationship was tested again last year when Saudi leaders responded furiously to American endorsement of the revolt that ousted a Saudi ally, President Hosni Mubarak of Egypt. American diplomats were surprised and angered in turn soon afterward when Saudi Arabia sent troops to help put down unrest in neighboring Bahrain.

[snip]

The counterterrorism cooperation has not been without bumps, officials from both countries acknowledge.

In 2007, the Federal Bureau of Investigation quietly sent a handful of agents to Saudi Arabia to work with officials there on a classified counterterrorism strategy, according to a senior American official who was briefed on the program. After several months, however, the two sides disagreed on a common strategy, and the F.B.I. agents went home.

Internal State Department cables obtained by WikiLeaks and made available to several news organizations revealed American frustration with Saudi Arabia in curtailing financial supporters of many extremist activities.

“It has been an ongoing challenge to persuade Saudi officials to treat terrorist financing emanating from Saudi Arabia as a strategic priority,” said a classified cable sent by Secretary of State Hillary Rodham Clinton in December 2009, concluding that “donors in Saudi Arabia constitute the most significant source of funding to Sunni terrorist groups worldwide.”

But ultimately concludes that in spite of all this evidence, our partnership with the Saudis is working just great.

But when it comes to counterterrorism, the Saudis have been crucial partners, not only for the United States but also for an array of other Western powers.

[snip]

Under pressure from the United States, American officials now say, Saudi Arabia is taking the threat more seriously, holding financiers accountable through prosecutions and making terrorist financing a higher priority.

Like many of these stories, the NYT quotes Mustafa Alani, a counterterrorism analyst at the Gulf Research Center with close ties to the Saudi intelligence establishment, describing the division of labor on counterterrorism: the US conducts electronic surveillance, the Saudis provide HUMINT. And while the NYT gets the prize for the most self-contradictory celebration of US-Saudi counterrorism “cooperation,” my favorite quote from Alani is this one, in the WaPo’s version of the story.

“Even with the drone strikes, the air raids, the Americans need someone on the ground,” Alani said. “The Saudis are the ones who can pinpoint targets for the Americans.”

The Saudis, Alani brags, are responsible for our pinpointed targeting in Yemen. You know? The kind that manages to kill an American teenager but fails to hit its intended target. Or the kind that will become even less pinpointed now that the Saudis have delivered up a bomb plot to convince the President that AQAP is still targeting the US (this CNN story confirms that the bomb plot was delivered up before Obama’s signature strike okay was reported) and therefore needs to be targeted with signature strikes.

But since we’re discussing Saudi pinpointed targeting, let’s look more closely at two other Saudi pinpoints. First, there’s the Saudi strike on a Houthi medical clinic in 2009-2010, which they used to ask for Predator drones. Almost the whole cable is worth reading to see the multiple ways in which Saudi Prince Khaled bin Sultan manipulated us.

USG CONCERNS ABOUT POSSIBLE STRIKES ON CIVILIAN TARGETS

——————————————————-

¶2. (S/NF) Ambassador Smith delivered points in reftel to Prince Khaled on February 6, 2010. The Ambassador highlighted USG concerns about providing Saudi Arabia with satellite imagery of the Yemen border area absent greater certainty that Saudi Arabia was and would remain fully in compliance with the laws of armed conflict during the conduct of military operations, particularly regarding attacks on civilian targets. The Ambassador noted the USG’s specific concern about an apparent Saudi air strike on a building that the U.S. believed to be a Yemeni medical clinic. The Ambassador showed Prince Khaled a satellite image of the bomb-damaged building in question.

 

IF WE HAD THE PREDATOR, THIS MIGHT NOT HAVE HAPPENED

—————————————————-

¶3. (S/NF) Upon seeing the photograph, Prince Khalid remarked, “This looks familiar,” and added, “if we had the Predator, maybe we would not have this problem.” Read more →

We Drone Strike, Ergo We Are at War

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Check out the logic top pundit David Ignatius employs here:

The United States just decided to step up its drone war [in Yemen], which is a sure sign that al-Qaeda poses a significant, continuing threat.

Ignatius has long served as a mouthpiece for the CIA, so it’s not like he lacks sources he could ask about why we’re going to start using signature strikes in Yemen. If he asked, he might find out that we’re using signature strikes because the civil war Ali Abdullah Saleh’s leadership failures incited is considered a threat to the US (or to the Saudis), independent of any threat AQAP might represent.

But instead, David Ignatius, DC insider, says we’re ramping up drone strikes, ergo al Qaeda must pose a significant, continuing threat.

The line actually serves as the punch line of a larger, equally poorly argued piece “proving” that because people are rebelling against the dictators who used the war on terror as yet another excuse to oppress their people, Osama bin Laden has won.

Egypt is a case in point: This has been a year of mostly nonviolent democratic revolution. But it has brought to power some Salafist and Muslim Brotherhood groups that share common theological roots with bin Laden. And the al-Qaeda goal of driving the “apostate,” pro-American President Hosni Mubarak from power has been achieved.

I would dismiss all this as more beltway inanity. But Ignatius wields this (il)logic even while he waves around those OBL documents he got in an authorized, exclusive leak from the Administration.

As Wednesday’s anniversary of bin Laden’s death approaches, I have been going back over my notes of these messages. I found some unpublished passages that show how bin Laden’s legacy is an ironic mix: His movement is largely destroyed, but his passion for a purer and more Islamic government in the Arab world is partly succeeding. In that sense, the West shouldn’t be too quick to claim victory.

The message the Administration has deemed Ignatius solely worthy to interpret and read is that OBL turned to unifying Muslims behind reformed governance at the end of his life, and therefore reformed governance must be opposed because it would represent a victory of what he calls “electoral bin Ladenism.”

And by pointing to documents that have purportedly been declassified but the rest of us aren’t permitted to see, and deploying the logic that says just because we’ve resumed targeting drones at people whose identity we don’t know, Ignatius “proves” there must be a reason to target those people and that reason must ultimately be OBL.

Fighting Middle Eastern Wars with Pegs and Drones

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I’m reading Currency Wars right now, which may be one of the reasons I suspect that the decision to launch signature strikes in Yemen was not requested by CIA and JSOC but instead dictated by Saudi Arabia. But I’ve also recently read the WikiLeaks cables that show how nervous recent discussions of the Saudi peg of the riyal to the dollar have been.

For example, one of the most recent cables released, describing a mid-February 2010 meeting between Deputy Treasury Secretary Neal Wolin and Saudi Monetary Agency Governor Muhammad Al Jasser and Minister of Finance Ibrahim Al Assaf, records Jasser invoking Chinese calls for an alternative to the dollar.

(C) Jasser reaffirmed Saudi Arabia’s support for the riyal-dollar peg, noting that the peg is in Saudi Arabia’s “cold-blooded self interest,” though he noted it sometimes felt like “we are alone.” Referencing past calls by China and others in the G-20 for an alternative to the U.S. dollar as the world’s reserve currency, Jasser said some have asked him why he does not give up on the U.S. dollar. He turned to a response he gave to a European newspaper that asked why Saudi Arabia hadn’t switched its peg to the Euro, “When oil is denominated in Euros, we’ll research it.”

In the same meeting, Jasser reminded Wolin that Saudi Arabia had far more ability to “undermine and safeguard” the world economy than its GDP might suggest.

Jasser stated that, as an oil economy, Saudi Arabia has the ability to both undermine and safeguard the world’s economy. He noted that Saudi Arabia was able and willing to support reform efforts at the IMF and World Bank, but that the ability to harm or help the global economy is a better measure of a nation’s relative economic importance than GDP.

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Saleh: “I have given you an open door on terrorism, so I am not responsible.”

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In a meeting on September 6, 2009–at a time when Umar Farouk Abdulmutallab was already in Yemen, seeking Anwar al-Awlaki–President Ali Abdullah Saleh assured John Brennan that the US Government had unfettered access in Yemen for counterterrorism efforts, but with that bore all responsibility in case of an attack on US targets.

(S/NF) In a September 6 meeting with Deputy National Security Advisor John Brennan, President Saleh insisted that Yemen’s national territory is available for unilateral CT operations by the U.S. Dissatisfied with current levels of USG funding and military training provided to the ROYG’s CT forces, Saleh asserted that the USG has produced “only words, but no solutions” to the terrorism issue in Yemen. Saleh repeatedly requested more funds and equipment to fight al-Qaeda in the Arabian Peninsula (AQAP), while at the same time placing responsibility for any future AQAP attacks on the shoulders of the USG now that it enjoys unfettered access to Yemeni airspace, coastal waters and land. (NOTE. The USG has been actively engaged since 2001 in training elements of Yemen’s CT forces, including the Counter-Terrorism Unit (CTU), the Yemen Special Operations Force (YSOF), the Presidential Guard, the Yemeni Border Troops, Yemen Air Force (YAF), and the Yemen Coast Guard (YCG). The USG has expended over $115 million equipping CT forces since FY02. In 2009 alone, U.S. teams have instructed Yemeni CT forces in training valued at $5 million. END NOTE.)

(S/NF) While Saleh offered assurances that the ROYG is “determined to continue the war against al-Qaeda because they’re targeting U.S. and Yemeni interests,” he continued to link increased U.S. access to AQAP targets with full responsibility for achieving CT goals. Highlighting the potential for a future AQAP attack on the U.S. Embassy or other Western targets, Saleh said, “I have given you an open door on terrorism, so I am not responsible.” [my emphasis]

The public availability of the cable reporting this conversation is just one of the things that makes ACLU’s (with CCR) FOIA of details on the December 17, 2009 missile strike in Yemen so interesting.

The FOIA asks, for example, for details of the understanding between Yemen and the US at the time of the strike.

All records pertaining to agreements, understandings, cooperation or coordination between the United States and the government of Yemen regarding the strike on al-Majalah, including but not limited to records regarding:

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The Damage Abdulrahman Al-Awlaki Was Collateral To? Not Dead.

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I’m not sure which details from Michelle Shephard’s story on 16-year old Adbulrahman Al-Awlaki’s death in a US drone strike are most compelling. I find the description of the carnival rides Abdulrahman snuck past as he ran away from home to go look for his father haunting.

Abdulrahman al Awlaki crossed the front yard past potted plants and a carnival ride graveyard — Dumbo, Donald Duck, an arched seal balancing a beach ball — debris from his uncle Omar’s failed business venture to install rides in local shopping malls.

I’m intrigued by the report that Ali Abdullah Saleh denied to Nasser al-Awlaki, Adbulrahman’s grandfather and Anwar’s father, that he had any role in Anwar’s death.

“(Deposed Yemeni president) Saleh sent me a message through the former prime minister that said, ‘Tell Dr. Nasser I swear to God that I have nothing to do with the killing of his son,’ ” Nasser said.

By far the most infuriating, however, is the juxtaposition of Leon Panetta’s boasts of how accurate the targeting on these drone strikes are with Shephard’s reminder of the previously reported news that the claimed target of the strike that killed Abdulrahman, Ibrahim al Bana, was not killed in the attack.

It later emerged, but was not widely reported, that the strike did not kill its purported target, AQAP’s media chief, Egyptian Ibrahim al Bana.

[snip]

Defence Secretary Leon Panetta responded to questions about drone use during a 2009 public appearance when he was the head of the CIA.

“I think it does suffice to say that these operations have been very effective because they have been very precise in terms of the targeting and it involved a minimum of collateral damage,” he said.

That’s what we call American teenagers now: a minimum of collateral damage. To a target that our purportedly precise targeting somehow missed.

The US Still Doesn’t Want to Admit to the 44 Dead Yemenis

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In a timely report, the Bureau of Independent Journalism yesterday released a report on the increased number of US drone strikes in Yemen in the last year, since Arab Spring uprisings challenged Ali Abdullah Saleh’s power and insurgents made significant gains in the south.

Covert US strikes against alleged militants in Yemen have risen steeply during the Arab spring, and are currently at the same level as the CIA’s controversial drone campaign in Pakistan, a new study by the Bureau reveals.

At least 26 US military and CIA strikes involving cruise missiles, aircraft, drones or naval bombardments have taken place in the volatile Gulf nation to date, killing hundreds of alleged militants linked to the regional al Qaeda franchise. But at least 54 civilians have died too, the study found.

[snip]

The recent surge in attacks appears linked to the appointment of the new president, Abed Rabbo Mansour Hadi. In his inauguration speech he called for ‘the continuation of war against al-Qaida as a religious and national duty.’

Along with an update on drone strike numbers in Yemen, TBIJ released the results of a report the Yemeni government commission did into the December 17, 2009 strike in which–the report concludes–44 civilians were killed. The report provides names and ages of those civilian victims; half are children. It also describes the lethal effect of cluster bombs included in the missiles.

This is the attack, of course, that journalist Abdelelah Haider Shaye reported on, one of the reasons, presumably the President Obama personally intervened to keep Shaye in prison. And the Yemeni government found even more civilians had died in the attack than Shaye first reported.

Among other things, the release of the report gave TBIJ to ask State–WikiLeaked cables from which clearly confirm the US role in this strike–for comment on the strike. And in spite of irrefutable evidence we were behind the attack, here’s what State said to TBIJ.

A State Department spokesperson, speaking on background terms, replied: ‘I don’t have any information for you with respect to the December 17, 2009 incident in question. I refer you to the Government of Yemen for additional information on its counterterrorism efforts.’

It’s bad enough that State pretends to know nothing of this strike. But at this point, deferring questions to Yemen really destroys our credibility.