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Red-Teaming Abdulrahman al-Awlaki’s Assassination?

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The Senate Intelligence Committee just released their Intelligence Authorization for next year. As part of it, they include “Targeted Lethal Force Reform.” Part of it — a useful part — requires the government to produce unclassified numbers on the total combatant and non-combatant deaths through targeted force (it exempts Afghanistan — though remains mute about Pakistan — and any new wars authorized by new Congressional authorizations).

But I’m even more interested in this.

(1) NOTIFICATION OF DIRECTOR.—Upon a determination by the head of an element of the intelligence community that a particular, known United States person is knowingly engaged in acts of international terrorism against the United States, such that the United States Government is considering the legality or the use of targeted lethal force against that United States person, the head of the element shall, as soon as practicable, notify the Director of the determination.

(2) INDEPENDENT ALTERNATIVE ANALYSIS.

(A) REQUIREMENT FOR ALTERNATIVE ANALYSIS.—Not later than 15 days after the date the Director receives a notification under paragraph (1), the Director shall complete an independent alternative analysis (commonly referred to as ‘‘red-team analysis’’) of the information relied on to support the determination made under paragraph (1).

It may be that SSCI put this into place to provide more “due process” to someone like Anwar al-Awlaki. And while that might have changed things back in December 2009, when they apparently tried to kill him before they believed him to be operational, it wouldn’t have changed things in the long run because his killing was so thoroughly discussed in at least 3 different Agencies of government.

Rather, this language would seem to prevent an Agency head — which, particularly giving confirmation of what I’ve been saying for years (that CIA would remain in charge of the drone campaign), means CIA — from killing someone without someone outside the Agency getting review.

Which is more like what happened to Abdulrahman al-Awlaki than his father. As Jeremy Scahill reported, John Brennan came to believe the 16 year old American citizen was purposely killed, though no one will release the report on the killing Brennan ordered.

The now-former SAO goes on to describe how pissed the Moral Rectitude Drone Assassination Czar John Brennan was about the strike, because he believed Abdulrahman was deliberately set up to be killed (though Scahill’s source doesn’t appear to specify whom Brennan thought was setting up an American teenager for death, JSOC, Yemeni partners, or the Saudis).

However, John Brennan, at the time President Obama’s senior adviser on counterterrorism and homeland security, “suspected that the kid had been killed intentionally and ordered a review. I don’t know what happened with the review.”

So Brennan sets up a review … that apparently got stashed in the same black hole as every other report on drone killing.

Yes, this language will provide a tiny modicum of protection to the Anwar al-Awlakis of the United States. But I’m far more interested in whether it’s an admission that Awlaki’s son could have been saved by a simple Red Team review.

William Webster Meets Edward Snowden, IRTPA, Roving Wiretaps, and the Phone Dragnet

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For a post on back-door searches, I’m re-reading the William Webster report on whether the FBI could have anticipated Nidal Hasan’s attack. In the light of the Edward Snowden disclosure, I’m finding there are a number of passages that read very differently (so expect this to be a series of posts).

As you read this, remember two things about Webster’s report. First, FBI and NSA’s failure to find Umar Farouk Abdulmutallab in spite of texts he sent to Anwar al-Awlaki was probably prominent on the Webster team’s mind as they completed this (and surely factors significantly in the classified version of the SSCI report on the UndieBomb). So some of the comments in the Webster report probably don’t apply directly to the circumstances of Nidal Hasan, but to that (and Webster notes that some of the topics he addresses he does because they’re central to counterterrorism approaches). And the Webster report is perhaps the most masterful example of an unclassified document that hides highly classified background.

All that said, in a section immediately following Webster’s description of Section 215, Webster discusses how Roving Wiretaps, Section 6001 of IRTPA, and Section 215 were all reauthorized in 2011.

When FISA was passed in 1978, the likely targets of counterterrorism surveillance were agents of an organized terrorist group like the Red Brigades, the Irish Republican Army, or the Palestinian terrorist organizations of that era. Given the increasing fluidity in the membership and organization of international terrorists, the FBI may not be able to ascertain a foreign terrorist’s affiliation with an international organization. Section 6001 of the Intelligence Reform and Terrorist Prevention Act of 2004 (IRTPA) allows the government to conduct surveillance on a non-U.S. person who “engages in international terrorism or activities in preparation therefor” without demonstrating an affiliation to a particular international terrorist organization. Pub. L. 108-458, § 6001, 118 Stat. 3638, 3742 (2004).

Sections 206 and 215 of the PATRIOT Act and Section 6001 of IRTPA were scheduled to “sunset” on December 31, 2009. In May 2011, after an interim extension, Congress extended the provisions until June 1, 2015, without amendment. [my emphasis]

I find this interesting, first of all, because it doesn’t mention the Pen Register and Lone Wolf language that also got reauthorized in 2011 (suggesting he lumped these three together for a specific reason). And because it puts the language, “engages in international terrorism or activities in preparation therefor” together with roving wiretaps (“continuous electronic surveillance as a target moves from one device to another”), and Section 215, which we now know includes the phone dragnet.

As we’ve seen, DiFi’s Fake FISA Fix includes the language from IRTPA, on “preparation therefor,” which I thought was an expansion of potential targets but which I presume now is what they’ve been using all along. While I don’t recall either the White Paper nor Claire Eagan’s language using that language, I’m wondering whether some underlying opinion does.

Now consider how the roving wiretap goes with this. One reason — probably the biggest reason — they need all phone records in the US is so they can use it to find targets as they move from one burner cell phone to another. Indeed, one passage from DiFi’s Fake FISA Fix seems specifically designed to authorize this kind of search.

(C) to or from any selector reasonably linked to the selector used to perform the query, in accordance with the court approved minimization procedures required under subsection (g).

That language “reasonably linked” surely invokes the process of using algorithms to match calling patterns to calling patterns to find a target’s new phone. And note this is the only query that mentions minimization procedures, so the Court must have imposed certain rules about how you treat a new “burner” phone ID until such time as you’ve proven it actually is linked to the first one.

What’s interesting, though, is that the Webster report also lumps roving wiretaps in with this. What’s at issue in Nidal Hasan’s case was effectively roving electronic communication; he emailed Awlaki from several different email addresses and one of the problems FBI had was in pulling up Hasan’s communications under both identities (you can see how this relates to the back door loophole). But the inclusion of roving wiretaps here seems to suggest the possibility that a court has used the existing of roving wiretap approval for the use of the phone dragnet to find burner phones (which shouldn’t have been an issue in the Nidal Hasan case but probably was for Abdulmutallab).

One more comment? The notion that identifying an Al Qaeda target is any harder than identifying an IRA-affiliate is utter nonsense. If anything, US-based IRA affiliates were harder to identify because they were completely and utterly socially acceptable. But I guess such myths are important for people advocating more dragnet.

Lawfare Uses Incomplete Facts about Abdulmutallab Trial to Attack Dirty Wars

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I’m going to take a break from noting how Lawfare ignores the public record on NSA spying — both of past failures to inform Congress, and of Intelligence Community lies about having done so — to note how Lawfare ignores the public record on drone killing.

On Sunday, Lawfare posted a long review of Jeremy Scahill’s book Dirty Wars. While it is not entirely negative, it stakes a claim on what the public record shows to argue that Scahill glossed over what a dangerous man Anwar al-Awlaki was. Yet the review itself ignores key details in the public record.

First, full disclosure. I’m friends with Scahill, and he acknowledged me in the book. But given that I’m not quoted, I suspect he acknowledged me because I’ve followed certain aspects of the narrative he covered — especially the evidence in the Umar Farouk Abdulmutallab case and the shoddy OLC case to support Awlaki’s killing — in more detail than most other reporters.

It’s for that reason that I find the review to be so problematic.

After spending two paragraphs praising the on-the-ground reporting Scahill did, Lawfare reviewer Nick Basciano complains,

Scahill simply skips over facts that don’t promote his narrative of Awlaki. One such example comes in Awlaki’s relationship with Umar Farouk Abdulmutallab, the “Christmas Day Bomber” who attempted to detonate almost three ounces of PETN aboard Northwest flight 253 on its descent to Detroit. A publically-available and widely-cited sentencing memorandum for Abdulmutallab describes how Awlaki housed Abdulmutallab in Yemen and took him to AQAP’s primary bomb-maker, Ibrahim Al Asiri. There, they “discussed a plan for martyrdom mission” and Awlaki himself gave the bombing plot “final approval and instructed Defendant Abdulmutallab on it.” Awlaki’s “last instructions,” the memorandum continues, “were to wait until the airplane was over the United States and then to take the plane down.” Without dealing with this evidence from the Abdulmutallab trial, Scahill admits that Awlaki was only “in touch” with Abdulmutallab, insisting that “no conclusive evidence [was] presented, at least not publicly, that Awlaki had played an operational role in any attacks.” Why such a relevant piece of evidence isn’t included in Scahill’s retelling of the Abdulmuttallab plot is unclear, but it isn’t the only instance of turning a blind eye to evidence linking Awlaki’s directly to terrorism.

The trial, of course, took place several weeks after the final event of Scahill’s narrative, the killing of Abdulrahman al-Awlaki [Correction: The trial took place on October 11 and 12, 2009, before Abdulrahman’s death. But as I note, the narrative presented there differs in key ways from the one Basciano adopts]. The sentencing took place several months later. That doesn’t mean Scahill couldn’t have included the evidence from “the trial.” But it was not part of the narrative arc Scahill told in the book.

Moreover, Basciano’s description ignores the reporting Scahill did do on Awlaki’s role in Abdulmutallab’s attempted attack, reporting based on talking to people who knew of Abdulmutallab’s movements in Yemen.

A local trial leader from Shabwah, Mullah Zabara, later told me he had seen the young Nigerian at the farm of Fahd al-Quso, the alleged USS Cole bombing conspirator. “He was watering trees,” Zabara told me. “When I saw [Abdulmutallab], I asked Fahd, ‘Who is he?'” Quso told Zabara the young man was from a different part of Yemen, which Zabara knew was a lie. “When I saw him on TV, then Fahd told me the truth.”

Awlaki’s role in the “underwear plot” was unclear. Awlaki later claimed that Abdulmutallab was one of his “students.” Tribal sources in Shabwah told me that al Qaeda operatives reached out to Awlaki to give religious counseling to Abdulmutallab, but that Awlaki was not involved in the plot. While praising the plot, Awlaki said he had not been involved with its conception of planning. (318)

After having complimented Scahill’s efforts to speak to people on the ground, Basciano did not mention that he had done so, too, in regards to the Abdulmutallab attack.

Moreover, if Scahill had used the material released in relation to the trial, the evidence would be much muddier than Basciano lays out. Read more →

“Too much transparency defeats the very purpose of democracy”

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In truly bizarre testimony he will deliver to the House Intelligence Committee next week, Paul Rosenzweig argues that “too much transparency defeats the very purpose of democracy.” He does so, however, in a piece arguing that the government needs what amounts to be almost full transparency on all its citizens.

The first section of Rosenzweig analysis talks about the power of big data. It doesn’t provide any actual evidence that big data works, mind you. On the contrary, he points to one failure of big data.

When we speak of the new form of “dataveillance,” we are not speaking of the comparatively simple matching algorithms that cross check when a person’s name is submitted for review¾when, for example, they apply for a job. Even that exercise is a challenge for any government, as the failure to list Abdulmutallab in advance of the 2009 Christmas bombing attempt demonstrates.[11] The process contains uncertainties of data accuracy and fidelity, analysis and registration, transmission and propagation, and review, correction, and revision. Yet, even with those complexities, the process uses relatively simple technologically—the implementation is what poses a challenge.

By contrast, other systems of data analysis are far more technologically sophisticated. They are, in the end, an attempt to sift through large quantities of personal information to identify subjects when their identities are not already known. In the commercial context, these individuals are called “potential customers.” In the cyber conflict context, they might be called “Anonymous” or “Russian patriotic hackers.” In the terrorism context, they are often called “clean skins” because there is no known derogatory information connected to their names or identities. In this latter context, the individuals are dangerous because nothing is known of their predilections. For precisely this reason, this form of data analysis is sometimes called “knowledge discovery,” as the intention is to discover something previously unknown about an individual. [my emphasis]

Nevertheless, having not provided evidence big data works, he concludes that “There can be little doubt that data analysis of this sort can prove to be of great value.”

The reference to Abdulmutallab is curious. At the beginning of his testimony he repeats the reference.

In considering this new capability we can’t have it both ways.  We can’t with one breath condemn government access to vast quantities of data about individuals, as a return of “Big Brother”[4] and at the same time criticize the government for its failure to “connect the dots” (as we did, for example, during the Christmas 2009 bomb plot attempted by Umar Farouk Abdulmutallab.

This formulation — and the example of Abdulmutallab even more so — is utterly crazy. Having big data is not the same thing as analyzing it correctly. Criticism that the Intelligence Community failed to connect the dots — with the UndieBomb attack, but even with 9/11 — assumes they had the dots but failed to analyze them or act on that analysis (as the IC did fail, in both cases). Indeed, having big data may actually be an impediment to analyzing it, because it drowns you. And while Rosenzweig suggests the only big data failure with Abdulmutallab involved not placing him on a watch list, that’s false. The NSA had wiretaps on Anwar al-Awlaki which, according to the government, collected information tying Abdulmutallab to an attack.

Yet they didn’t respond to it.

And you know what? We measly citizens don’t know why they didn’t respond to it — though we do know that the FBI agents who were analyzing the Awlaki data were … you guessed it! Overwhelmed.

Before anyone involved in government claims that big data helps — rather than hinders — they should have to explain why a full-time tap on Anwar al-Awlaki didn’t find the guy who was texting him about a terrorist attack. Read more →

FBI Says the FBI Wasn’t Surveilling the Tsarnaevs

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After years of questions about certain oddities in the Federal government’s treatment of Anwar al-Awlaki, Robert Mueller said this in one of his last public comments as Directof the FBI.

“I am not personally familiar with any effort to recruit Anwar al-Awlaki as an asset  — that does not mean to say there was not an effort at some level of the Bureau (FBI) or another agency to do so,”  Mueller said.

Which is why I find the specific wording of this statement, issued in response to questions Chuck Grassley is raising, to be so interesting.

Previously, members of the Joint Terrorism Task Force have responded to similar questions relating to whether or not the FBI, Boston Police, Massachusetts State Police or other members of the Joint Terrorism Task Force knew the identities of the bombers before the shootout. Members of the Joint Terrorism Task Force did not know their identities until shortly after Tamerlan Tsarnaev’s death when they fingerprinted his corpse. Nor did the Joint Terrorism Task Force have the Tsarnaevs under surveillance at any time after the Assessment of Tamerlan Tsarnaev was closed in 2011. The Joint Terrorism Task Force was at M.I.T., located in Cambridge, MA, on April 18, 2013, on a matter unrelated to the Tsarnaev brothers. Additionally, the Tsarnaev brothers were never sources for the FBI nor did the FBI attempt to recruit them as sources.

There has been recent reporting relating to whether or not the FBI, Boston Police, Massachusetts State Police or other members of the Joint Terrorism Task Force knew the identities of the bombers before the shootout with the alleged marathon bombing suspects, and were conducting physical surveillance of them on April 18, 2013. These claims have been repeatedly refuted by the FBI, Boston Police, and Massachusetts State Police.

To be absolutely clear: No one was surveilling the Tsarnaevs and they were not identified until after the shootout. Any claims to the contrary are false. [my emphasis]

I mean, sure, “No one” ought to include “not any agency or private entity, including those not listed here,” but maybe it doesn’t.

Stephen Preston: Covert Operations Don’t Need OLC Approval

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Jane Mayer has obtained a set of questions Mark Udall made CIA General Counsel Stephen Preston answer before he would release a hold on the latter’s confirmation as DOD General Counsel. They address CIA’s response to the Senate Intelligence Committee torture report. I will have more to say about these answers later (see also this post from Katherine Hawkins).

But for now I want to point to one of the few questions Preston really didn’t answer. While the non-answer is not at all surprising, it does have implications far beyond torture.

Udall noted,

The CIA response to the Committee Study states: “while it would have been prudent to seek guidance from OLC on the complete range of techniques prior to their use, we disagree with any implication that, absent prior OLC review, the use of the ‘unapproved’ techniques was unlawful or otherwise violated policy.”

The comment does two things.

First, it confirms CIA tortured before John Yoo authored memos authorizing that torture.

That confirmation is news, though we’ve long known it to be true.

But it also reflects CIA’s view that the legality of specific torture techniques did not stem from OLC review and authorization of them.

Udall asked Preston,

Please state whether you agree with this legal determination and explain your legal reasoning.

To which Preston responded,

On the particular point raised in (c) of the question, I also agree that CIA should have sought guidance from OLC with regard to the complete range of interrogation techniques prior to their use. I understand the Agency’s response to the SSCI’s study to acknowledge this point, noting only that failure to so engage with OLC did not, in and of itself, render any given technique unlawful.

Preston doesn’t actually say whether he agrees with the Agency’s legal determination or not, which was, after all Udall’s question. Which gets him out of answering Udall’s question about his legal reasoning.

But Preston has, for all intents and purposes, already answered that question in his speech last year on CIA’s use of lethal force. In it, he laid out was required for the use of lethal force (he doesn’t say it, but this includes lethal force against an American citizen) to be legal under US law.

Let’s start with the first box: Authority to Act under U.S. Law.

First, we would confirm that the contemplated activity is authorized by the President in the exercise of his powers under Article II of the U.S. Constitution, for example, the President’s responsibility as Chief Executive and Commander-in-Chief to protect the country from an imminent threat of violent attack.

[snip]

In addition, we would make sure that the contemplated activity is authorized by the President in accordance with the covert action procedures of the National Security Act of 1947, such that Congress is properly notified by means of a Presidential Finding.

As I’ve noted elsewhere, Preston doesn’t even acknowledge the National Security Act’s requirement that covert actions be legal under US law.

His speech makes it clear he agrees with the CIA’s response on torture. The CIA doesn’t need OLC approval for covert operations (which torture was during its early years), the implication seems clear, because the only thing needed to make covert operations legal is Presidential authorization with adequate Congressional notice.

This is a stance that most discussions on drones and torture miss. The CIA doesn’t believe it needs OLC memos — whether authorizing belly slaps or the assassination of Anwar al-Awlaki. It may consider it prudent to have OLC authorization in hand, mind you. But it does not believe such authorization gives covert operations any more legal sanction that simply the President’s authorization.

CIA Aims to Hide Its SEKRIT Files at Second Circuit Again

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Roughly four years ago, then National Security Advisor James Jones submitted a nearly unprecedented sealed declaration to the Second Circuit in the ACLU’s torture FOIA lawsuit. In it he argued the government needed to keep secret a short reference making it clear the torture program operated under Presidential authorization.

The following May — perhaps not coincidentally just months after America’s first attempt to execute Anwar al-Awlaki by drone strike and as OLC was scrambling to come up with some justification for doing so — the Second Circuit granted the government’s request, deeming the language an intelligence source or method, and giving the request particular weight because the language pertained to intelligence activities unrelated to torture.

On October 1, the Second Circuit heard the ACLU and NYT’s appeal of Colleen McMahon’s decision to dismiss their FOIA on documents relating to the Awlaki killing.

At the hearing, this exchange occurred.

JUDGE NEWMAN: In one of your sealed excerpts from your briefs, I am not going to disclose a secret. There is a statutory reference from Title 50. You’re probably familiar with it. It has to do with whether affidavits are sufficient. It’s Title 50. I think it’s Section 430(f)(2). Does that ring a bell at all?

MS. SWINGLE: I believe so, your Honor.

JUDGE NEWMAN: Is that a correct citation? Because I  couldn’t find it.

MS. SWINGLE: I can check and provide the information for your Honor. Off the top of my head, I can’t say that I know either.

JUDGE NEWMAN: Do they have it there?

MS. SWINGLE: Again, your Honor, that would be information we could provide separately to the Court, to the extent it is something that’s only in the classified part.

JUDGE NEWMAN: Just the statutory reference. Is it the right statute? That’s all I want to know.

Citing this passage, on Thursday the government asked to submit an ex parte filling clarifying both the answer Swingle gave, as well as the answer to an unidentified question raised in the hearing.

During the oral argument on October 1, 2013, a member of the panel asked the government to clarify a citation contained in a classified declaration in the record. See Tr. 73-74. The government’s proposed supplemental classified submission provides the clarification requested by the Court. The proposed supplemental classified submission also provides an additional answer to a question posed during oral argument that could not be adequately and completely answered in a public setting.

Both the NYT and the ACLU objected to this ex parte clarification of the answer (the NYT doesn’t object to such a filing pertaining to the citation), given that the Court didn’t ask for any further clarification.

The Government’s motion does not at any point include information about the nature of the “additional answer” that the Government is providing to the Court or the question to which it is addressed. The Court did not request such a supplemental answer, and there is no basis for a party to unilaterally provide itself with a further opportunity to extend argument – especially in secret – after the conclusion of oral argument.

Now, it’s entirely unclear what the erroneous citation in the classified government brief is. Though 50 USC 431(f) may describe this section of the National Security Act on  to CIA files being FOIAed (though 50 USC 403 includes definitions and roles of CIA).

(f) Whenever any person who has requested agency records under section 552 of title 5, United States Code (Freedom of Information Act), alleges that the Central Intelligence Agency has improperly withheld records because of failure to comply with any provision of this section, judicial review shall be available under the terms set forth in section 552(a)(4)(B) of title 5, United States Code, except that–

(2) the court shall, to the fullest extent practicable, determine issues of fact based on sworn written submissions of the parties;

In which case, surprise surprise, this is about hiding CIA files.

But we already knew that.

And unsurprisingly, the two questions that DOJ’s Sharon Swingle referred back to the classified documents to answer also pertained to the CIA’s SEKRIT role in drone killing Americans.

One — which gets repeated several times — pertains to why DOJ’s prior disclosure that OLC wrote one drone killing memo for DOD forces DOJ to use a No Number No List response because admitting there were other OLC memos would also entail admitting an Other Government Agency carries out those drone killings.

JUDGE NEWMAN: I come back to saying, why can’t you have a redacted Vaughn index, at least on legal reasoning. Because I don’t understand your argument that if we say there are five of them, that somehow tells people more information. What does it tell them? It says five lawyers were working.

MS. SWINGLE: With respect, your Honor, it says that OLC on five separate instances wrote advice memoranda about the use of targeted lethal force. It now tells us, and I do think this is critical, that on four of those instances, it did not involve the Department of Defense. Because we have acknowledged there is a single responsive document as to the Department of Defense. I think that is really significant information. And it is not information that has been made public by the U.S. government.

JUDGE NEWMAN: That’s a secret.

MS. SWINGLE: It is.

Read more →

Dianne Feinstein’s Pre-UndieBomb Thinking

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A whole bunch of people have pilloried Dianne Feinstein’s defense of the phone dragnet and related programs.

But one bizarre argument I haven’t seen challenged is the underlying logic of this passage.

The U.S. must remain vigilant against terrorist attacks against the homeland. Al Qaeda in the Arabian Peninsula (AQAP), considered the world’s most capable and dangerous terrorist organization, is determined to attack the United States. As we have seen since the “underwear bomber” attempted to blow up an airliner over Detroit on Christmas Day 2009, AQAP has developed nonmetallic bombs that can elude airport screeners, and the organization’s expert bomb maker, Ibrahim al-Asiri, remains at large.

Asiri is believed to be behind the October 2010 plot to place bombs disguised as printer cartridges onto cargo planes headed for the U.S. He is also a suspect in the May 2012 suicide-bomber plot against an airliner headed for the U.S. that was foiled when U.S. authorities obtained the planned explosive device through good intelligence work.

Earlier this month, Director of National Intelligence James Clapper testified that in the case of the AQAP threat this summer, there were a number of phone numbers or emails “that emerged from our collection overseas that pointed to the United States.” Fortunately, the NSA call-records program was used to check those leads and determined that there was no domestic aspect to the plotting. [my emphasis]

So here’s the logic.

UndieBomb 1.0 proves AQAP wants to attack the US.

UndieBomb 2.0 is further proof of that, although DiFi doesn’t mention that it was a US-Saudi-Brit sting, meaning the intent came from us.

As part of the Legion of Doom investigation, NSA found phone numbers tied to the US that have, on investigation, proved to be unrelated to the actual alleged plot.

It’s that same theory that 36,000 innocent people must be investigated every time a terrorist plots something to keep us “safe.”

But let’s take a step back. UndieBomb 1.0 … UndieBomb 1.0 …

Yes.

I remember now.

UndieBomb 1.0 was the guy who was allegedly plotting out Jihad with Anwar al-Awlaki — whose communications the FBI had two guys reading — over things like chats and calls. That is, Umar Farouk Abdulmutallab was a guy whose plot the NSA and FBI should have thwarted before he got on a plane. (To say nothing of the CIA and NCTC’s fuck-ups.)

And yet, he got on that plane. His own incompetence and the quick work of passengers prevented that explosion, while a number of needles went unnoticed in the NSA’s most closely watched haystacks.

Nevertheless, the lesson DiFi takes is that we need more haystacks.

Shouldn’t the lessons of UndieBomb 1.0 be just as important to this debate as the partial, distorted, lessons of 9/11?

David Kris: I’m Not Saying CIA Shoots Drones, Assassinates Americans, and Influences Media, But …

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In the passage of David Kris’ paper that address more public transparency, he included on paragraph on covert action.

For example, the covert action statute 221 could be interpreted and applied in ways that may be extraordinarily important, but about which very, very few Members of Congress, let alone the American People, ever learn.222 The statute defines covert action to exclude “traditional” military and law-enforcement activities,223 provides that a covert action finding “may not authorize any action that would violate the Constitution or any statute of the United States,”224 and specifically warns that “No covert action may be conducted which is intended to influence United States political processes, public opinion, policies, or media.”225 Without making any comment, express or implied, on any actual or hypothetical covert action, or even acknowledging that any covert action of any kind has ever actually taken place, it is quite obvious that each of those elements of the statute could raise enormously difficult and complex interpretive questions, some of which might affect many Americans.226 Yet it might be impossible, in many cases, to explain those interpretations without revealing the most sensitive classified information. 227 [60]

In other words, in a passage explaining the challenges and limits to making information available to the public, he implies (“without making any comment, express or implied, on any actual or hypothetical covert action, or even acknowledging that any covert action of any kind has ever actually taken place”) that CIA may have:

And while he very studiously avoids confirming these things that have all been confirmed elsewhere, his argument about the transparency of the matter has more to do with our treatment of covert ops than with transparency per se.

That is, it’s not so much that the US doesn’t and can’t know about the drone strikes, US person assassinations, and really bad propaganda the CIA has been involved in. It’s just that the government keeps the law on covert operations on the book, pretending it abides by it, while telling just the Gang of Four it doesn’t.

That is, it’s not about transparency, it’s about the legal sanction to lie about actions that everyone knows the Executive undertakes.

None of that is shocking (though it’s an interesting argument). But it’d be nice if Kris wanted to hint whether these covert actions included more politicized spying on American people.

Question: What Do David Barron and Jay Bybee Have in Common?

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Answer: They were both nominated for a lifetime appellate court seat even as the Executive continued hiding their controversial OLC opinions.

Several hours ago, Barack Obama nominated David Barron, author of the notorious OLC memos authorizing the assassination of an American citizen with the kind of “due process” the Executive Branch gives, by itself, in secret, to serve on the First Circuit.

Yet even while Obama moved to make Barron a lifetime appointed judge, the FOIA suits to liberate the troubling opinion Barron authored continues at a snail’s pace. CIA filed an intransigent opinion back in August in the more general suit (that would, however, probably return Barron’s opinions). In a response a few weeks ago, the ACLU suggested that such frivolous claims could only serve to forestall the time when it will have to release the assassination-related documents.

The CIA’s blanket “no number no list” response is utterly deficient—indeed, it is so plainly inadequate that it verges on the frivolous. To justify a “no number no list” response, the agency must establish that not even one responsive document can be described, in any way,without revealing information that falls within FOIA’s exemptions. The CIA cannot carry this burden, and its brief barely makes the attempt. The agency’s “no number no list” response is so obviously deficient that one can only assume that the CIA’s goal is not to prevail on this motion but simply to delay as long as possible the day on which the agency will finally be required to explain what documents it is withholding and why.

While, when Bybee was confirmed to the Ninth Circuit, we had no idea about the Yoo-authored torture memos he rubber-stamped, we do know what one (of two) of Barron’s OLC opinions look like from the White Paper leaked to hasten John Brennan’s confirmation in February.

And at least from what we see, the authors of such an opinion have no business on a court. For starters, that’s because it suggested the Courts have no role in adjudicating the assassination of an American citizen.

Similarly, paragraph 23 (section IIC) refuses any review from Article III courts by invoking military (AUMF) operations to apply to some very spooky language.

Were a court to intervene here, it might be required  inappropriately to issue an ex ante command to the President and officials responsible for operations with respect to their specific tactical judgement to mount a potential lethal operation against a senior operational leader of al Qa’ida or its associated forces. And judicial enforcement of such orders would require the Court to supervise inherently predictive judgments by the President and his national security advisors as to when and how to use force against a member of an enemy force against which Congress has authorized the use of force.

I get that Courts shouldn’t be making battlefield decisions. But in spite of the fact this passage invokes the AUMF twice, the invocation of “officials responsible for operations” falls far short of limiting the assertions to just the military.

In other words, it’s another instance where the white paper asserts a claim that is uncontroversial for the military to apply to the CIA as well.

Perhaps more troubling, it suggests if the President orders the CIA to assassinate an American citizen, it is legal.

[T]he white paper effectively argues (though it doesn’t say so) that the President may, under Article II power alone, authorize the CIA to kill a U.S. citizen.

Similarly, under the Constitution and the inherent right to national self-defense recognized in international law, the President may authorize the use of force against a U.S. citizen who is a member [note, they’ve dropped the senior operational leader modifier here!] of al-Qa’ida or its associated forces who poses an imminent threat of violent attack against the United States.

And just to be sure, the following paragraph again adopts the dual structure, and ends by says killing an American under such circumstances isn’t assassination because the President authorized it.

In fact, several of the claims Martha Lutz, the CIA person designated to lay out why CIA cannot reveal more details, point to covert actions that would be authorized by Presidential authorization.

Similarly, references to “legal memoranda” from either the CIA’s Office of General Counsel or the Department of Justice would reveal the extent to which the CIA’s involvement required formal legal analysis, which would raise the same concerns discussed above.

[snip]

Theoretically, such involvement could be based on not only the CIA’s foreign intelligence gathering functions, but also its ability to conduct covert action and other activities as directed by the President.

[snip]

Hypothetically, if it was officially confirmed that the CIA possesses this extraordinary authority, it would reveal that the CIA had been granted authorities against terrorists that go beyond traditional intelligence-gathering activities.

Which is all consistent with what then CIA and currently DOD General Counsel Stephen Preston said last year.

That is, there’s reason to wonder whether Barron gave legal rubber stamp to the kind of unilateral authority that has no place in a democracy.

And yet, if the Obama Administration has its way, that won’t become public before Barron’s nomination gets considered.