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American Dirty Hands and Chain of Command

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[Tenet] called for initiating intelligence contact with some rogue states such as Libya and Syria that he said might be helpful in trying to destroy al Qaeda. For the CIA to obtain helpful information against the terrorists, they might have to get their hands dirty. — Bob Woodward, Bush at War

On September 15, 2001, George Tenet presented Cofer Black’s plan to respond to 9/11 to George Bush. It included rendering suspects to allied torturers including Egypt, partnering with rogue regimes including Bashar al-Assad’s, and ultimately capturing and torturing suspects ourselves.

On September 17, 2001, George Bush implemented that plan by signing a Memorandum of Notification reflecting vague outlines of it.

George Bush’s signature on that document led directly the torture of Ibn Sheikh al-Libi in Omar Suleiman’s hands and Binyam Mohammed’s torture in Pakistani custody, both before DOJ’s Office of Legal Counsel gave its sanction to torture. In addition, it led to Maher Arar’s torture in Assad’s hands outside the terms permissible in our rendition program.

Yet as these details of George Bush’s personal implication in torture became clear, President Obama hid it, both with repeated state secrets invocations and by hiding official confirmation of the existence of that document with Bush’s signature on it. The Administration succeeded in hiding that official confirmation by arguing — just last year! — that it was still relying on that document that also endorsed partnering with Assad. (There’s reason to believe that that document which authorized partnering with Assad also served to authorize some of our drone assassinations, including at least the first attempt against Anwar al-Awlaki.)

Meanwhile, the most independent assessment of the August 21 chemical weapons strike — from Human Rights Watch — still has the same gap as every other case does: while it concludes the CW were launched by Assad’s regime, it provides no evidence that it was launched on his orders.

The evidence examined by Human Rights Watch strongly suggests that the August 21 chemical weapon attacks on Eastern and Western Ghouta were carried out by government forces. Our basis for this finding is:

  • The large-scale nature of the attacks, involving at least a dozen surface-to-surface rockets affecting two different neighborhoods in Damascus countryside situated 16 kilometers apart, and surrounded by major Syrian government military positions.
  • One of the types of rockets used in the attack, the 330mm rocket system – likely Syrian produced, which appear to be have been used in a number of alleged chemical weapon attacks, has been filmed in at least two instances in the hands of government forces. The second type of rocket, the Soviet-produced 140mm rocket, which can carry Sarin, is listed as a weapon known to be in Syrian government weapon stocks. Both rockets have never been reported to be in the possession of the opposition. Nor is there any footage or other evidence that the armed opposition has the vehicle-mounted launchers needed to fire these rockets.
  • The August 21 attacks were a sophisticated military attack, requiring large amounts of nerve agent (each 330mm warhead is estimated to contain between 50 and 60 liters of agent), specialized procedures to load the warheads with the nerve agent, and specialized launchers to launch the rockets

Obviously Assad has not yet publicly named — much less condemned — anyone within his regime for doing this (but then, only about 14 Americans have ever paid a price the systematic torture authorized by that Bush signature). If this deal with the Russians actually happens, naming and prosecuting the persons responsible for the August 21 attack should be part of the agreement. 

But there is a fundamental problem with America launching a war against Assad for the August CW attack based on chain of command arguments (or “common sense,” as its most recent incarnation has it). That’s because, with all the legal problems surrounding any intervention on our part (especially without UN sanction, which may change under the Russian deal), there are such clear and ongoing instances where, even with clear evidence of human rights violations done under nothing but Presidential authorization, the US doesn’t hold its own responsible.

There was a time when US violations of human rights norms weren’t so clearly documented (though the definitely existed). But now that they are, to claim we have the moral authority to hold Bashar al-Assad responsible based on a chain of command argument when we won’t even hold our own responsible for partnering with him in human rights crimes is particularly problematic.

As human rights hypocrites ourselves, that makes us not even global policemen, but rather simple enforcers when it serves our geopolitical interests.

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Nasser al-Awlaki: “My Grandson Was Killed by His Own Government”

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While the nation grieves over the senseless death of Trayvon Martin and the missed opportunity to hold his killer responsible for that death, there is another senseless death of an American teenager of color where an attempt is continuing, after previous failures, to hold accountable those responsible for the lawless way in which this life was arbitrarily ended.

Exactly one year ago today, the American Civil Liberties Union and the Center for Constitutional Rights filed a lawsuit (pdf) on behalf of Nasser al-Awlaki (father of Anwar al-Awlaki and grandfather of Abdulrahman al-Awlaki) and Sarah Khan (wife of Samir Khan). The defendants in the case are former Defense Secretary Leon Panetta, Commander of Special Operations Command William McRaven, Commander of Joint Special Operations Command Joseph Votel and former CIA Head David Petraeus. The complaint cites violation of the Fourth and Fifth Amendments as well as violation of the Bill of Attainder Clause in the targeted killings of Anwar al-Awlaki, Abdulrahaman al-Awlaki and Samir Khan. Oral arguments on the suit begin tomorrow.

Given what is known about the role of Barack Obama in these killings and his personal authorization of the “kill list” in his Terror Tuesday meetings, I find it perplexing that he is not also a defendant in this case.

The complaint seeks damages in an amount to be determined at the trial and any other relief the court deems just and proper.

Coincident with the filing of the complaint in the United States District Court for the District of Columbia a year ago, the video above was released. Today, an op-ed by Nasser al-Awlaki was published in the New York Times, helping to focus attention on tomorrow’s opening arguments. The video and op-ed are truly gut-wrenching.

From the op-ed:

I LEARNED that my 16-year-old grandson, Abdulrahman — a United States citizen — had been killed by an American drone strike from news reports the morning after he died.

The missile killed him, his teenage cousin and at least five other civilians on Oct. 14, 2011, while the boys were eating dinner at an open-air restaurant in southern Yemen.

The grandfather describes his anguish as he seeks answers to the question of why his grandson was killed:

Nearly two years later, I still have no answers. The United States government has refused to explain why Abdulrahman was killed. It was not until May of this year that the Obama administration, in a supposed effort to be more transparent, publicly acknowledged what the world already knew — that it was responsible for his death.

Nasser al-Awlaki describes the huge impact an education in the United States made on his life and how he put that education to use when he returned to Yemen. More importantly, he puts the actions of the United States in killing his son and grandson significantly at odds with the values of the United States when he was a student here:

A country that believes it does not even need to answer for killing its own is not the America I once knew. From 1966 to 1977, I fulfilled a childhood dream and studied in the United States as a Fulbright scholar, earning my doctorate and then working as a researcher and assistant professor at universities in New Mexico, Nebraska and Minnesota.

/snip/

After returning to Yemen, I used my American education and skills to help my country, serving as Yemen’s minister of agriculture and fisheries and establishing one of the country’s leading institutions of higher learning, Ibb University. Abdulrahman used to tell me he wanted to follow in my footsteps and go back to America to study. I can’t bear to think of those conversations now.

The op-ed closes with a direct and haunting question:

The government has killed a 16-year-old American boy. Shouldn’t it at least have to explain why?

Sadly, we can state with confidence that even before the proceedings open the government will argue that it does not have to explain why it killed Abdulrahman. Because terror. Even more sadly, it is quite likely that the court will side with this senseless and lawless argument. Because terror.

What has our country become?

Spying on Americans: A “Team Sport” Since 2004

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Screen shot 2013-07-11 at 6.25.06 PMOne of the more colorful revelations in today’s Guardian scoop is the newsletter piece that describes increased sharing of PRISM (Section 702) data with FBI and CIA.

The information the NSA collects from Prism is routinely shared with both the FBI and CIA. A 3 August 2012 newsletter describes how the NSA has recently expanded sharing with the other two agencies.

The NSA, the entry reveals, has even automated the sharing of aspects of Prism, using software that “enables our partners to see which selectors [search terms] the National Security Agency has tasked to Prism”.

The document continues: “The FBI and CIA then can request a copy ofPrism collection of any selector…” As a result, the author notes: “these two activities underscore the point that Prism is a team sport!”

But that’s something that has actually been built into the program for years. While the Joint IG Report on the illegal wiretap program claimed,

NSA also was responsible for conducting the actual collection of information under the PSP and disseminating intelligence reports to other agencies such as the Federal Bureau of Investigation (FBI), the Central Intelligence Agency (CIA), and the Office of the Director of National Intelligence (ODNI) National Counterterrorism Center (NCTC) for analysis and possible investigation.

The Draft NSA IG Report explained,

Coordination with FBI and CIA. By 2004, four FBI integrees and two CIA integrees, operating under SIGINT authorities in accordance with written agreements, were co-located with NSA PSP-cleared analysts. The purpose of co-locating these individuals was to improve collaborative analytic efforts.

And the minimization procedures released by the Guardian (which date to 2009), make it clear NSA can provided unminimized content to CIA and FBI on whatever selectors they request.

6(c)

(1) NSA may provide to the Central Intelligence Agency (CIA) unminimized communications acquired pursuant to section 702 of the Act. CIA will identify to NSA targets for which NSA may provide unminimized communications to CIA. CIA will process any such unminimized communications received from NSA in accordance with CIA minimization procedures adopted by the Attorney General, in consultation with the Director of National Intelligence, pursuant to subsection 702(e) of the Act.

(2) NSA may provide to the FBI unminimized communications acquired pursuant to section 702 of the Act. FBI will identify to NSA targets for which NSA may provide unminimized communications to the FBI. FBI will process any such unminimized communications received from NSA in accordance with FBI minimization procedures  adopted by the Attorney General, in consultation with the Director of National Intelligence, pursuant to subsection 702(e) of the Act.

And none of that should be surprising, given the tasking slide — above — that was first published by the WaPo. FBI, at least, is solidly in the midst of this collection, for a program deemed to be foreign intelligence collection.

There have been a variety of claims about all this team sport participation. But I’m not convinced any of them explain how all this works.

And in perhaps related news, the Fifth Circuit today said that Nidal Hasan could not have access to the FISA material on him, in spite of the fact that William Webster published a 150 page report on it last year. Legally, that material should be utterly distinct from PRISM, since a wiretap on Anwar al-Awlaki would require a specific FISA warrant (and the latest Guardian scoop refers to expanded cooperation since 2012). But I suspect the reason Hasan, the FISA evidence against whom has already been extensively discussed, can’t see it is because we would see what this actually looks like from the FBI side.

DOJ has to protect its team, you know.

The FBI and CIA Unminimized Collections and the Holes in Article III Review of FISA Amendments Act

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In my piece confirming that the NSA can search on US person data collected incidentally in Section 702 collection, I pointed to these two paragraphs from the minimization procedures.

6(c)

(1) NSA may provide to the Central Intelligence Agency (CIA) unminimized communications acquired pursuant to section 702 of the Act. CIA will identify to NSA targets for which NSA may provide unminimized communications to CIA. CIA will process any such unminimized communications received from NSA in accordance with CIA minimization procedures adopted by the Attorney General, in consultation with the Director of National Intelligence, pursuant to subsection 702(e) of the Act.

(2) NSA may provide to the FBI unminimized communications acquired pursuant to section 702 of the Act. FBI will identify to NSA targets for which NSA may provide unminimized communications to the FBI. FBI will process any such unminimized communications received from NSA in accordance with FBI minimization procedures  adopted by the Attorney General, in consultation with the Director of National Intelligence, pursuant to subsection 702(e) of the Act.

It’s not clear what this entails.

But Dianne Feinstein once defended the FISA Amendments Act authorization to search on US person information by pointing to Nidal Hasan. Remember, his emails were picked up on a generalized collection of Anwar al-Awlaki’s communications, which should have been a traditional FISA warrant, but may have been conducted via the same software tools as FAA collection. In which case, the kind of access described in the Webster report would provide one idea of what this looks like from the FBI side. That process has almost certainly been streamlined, given that the god-awlful software the FBI used prevented it from pulling the entire stream of Hasan’s emails to Awlaki.

First, the FBI’s database of intercepts sucked. When the first Hasan intercepts came in, it allowed only keyword searches; tests the Webster team ran showed it would have taken some finesse even to return all the contacts between Hasan and Awlaki consistently. More importantly, it was not until February 2009 that the database provided some way to link related emails, so the Awlaki team in San Diego relied on spreadsheets, notes, or just their memory to link intercepts. (91) But even then, the database only linked formal emails; a number of Hasan’s “emails” to Awlaki were actually web contacts, (100) which would not trigger the database’s automatic linking function. In any case, it appears the Awlaki team never pulled all the emails between Hasan and Awlaki and read them together, which would have made Hasan seem much more worrisome (though when the San Diego agent set the alert for the second email, he searched and found the first one).

Even before this was streamlined, the collection seemed to lack real minimization. Though to be fair, the Agents spending a third of their days reading Awlaki’s emails were drowning and really had an incentive to get reports out as quickly as possible. But they seemed to be in the business of sending out reports with IDs, not the reverse.

In addition, we know that subsequent to that time, the FBI started using this collection (and, I’m quite certain, Samir Khan’s), as a tripwire — what they call “Strategic Collections.”

The Hasan attack (and presumably subsequent investigations, as well as the Umar Farouk Abdulmutallab attack) appears to have brought about a change in the way wiretaps like Awlaki’s are treated. Now, such wiretaps–deemed Strategic Collections–will have additional follow-up and management oversight.

The Hasan matter shows that certain [redacted] [intelligence collections] [redacted] serve a dual role, providing intelligence on the target while also serving as a means of identifying otherwise unknown persons with potentially radical or violent intent or susceptibilities. The identification and designation of Strategic Collections [redacted] will allow the FBI to focus additional resources–and, when appropriate, those of [redacted] [other government agencies]–on collections most likely to serve as “trip wires.” This will, in turn, increase the scrutiny of information that is most likely to implicate persons in the process of violent radicalization–or, indeed, who have radicalized with violent intent. This will also provide Strategic Collections [redacted] with a significant element of program management, managed review, and quality control that was lacking in the pre-Fort Hood [review of information acquired in the Aulaqi investigation] [redacted].

If implemented prior to November 5, 2009, this process would have [redacted] [enhanced] the FBI’s ability to [redacted] identify potential subjects for “trip wire” and other “standalone” counterterrorism assessments or investigations. (99)

Many many many of the aspirational terrorists the FBI rolled up in 2010 and afterwards were people who had communicated or followed Awlaki or Khan. And to the extent we’ve prosecuted a bunch of wayward youth who can’t pull together a plot without the FBI’s assistance, that ought to be a concern on many levels.

Because it would mean this unminimized production is part of the Terror Manufacturing Industry. (Mind you, the FBI was doing this with their own surveillance based off Hal Turner in the 00s, so it’s not an approach limited to Muslim radicals.)

To the extent that FAA collection might be sent to FBI as a way to identify non-criminal leads to criminalize, it’s a problem, particularly if the FISA Court doesn’t see what minimization the FBI uses.

Read more →

Why Would the UndieBomber Make a Martyrdom Video in Arabic?

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In his drone letter to Congress 11 days ago, Eric Holder quoted a recording Anwar al-Awlaki made — it was prominently reported across the US media in March 2010, not long after he was added to the drone kill list — calling on Americans to take up jihad.

In this role, al-Aulaqi repeatedly made clear his intent to attack U.S. persons and his hope that these attacks would take American lives. For example, in a message to Muslims living in the United States, he noted that he had come “to the conclusion that jihad against America is binding upon myself just as it is binding upon every other able Muslim.” But it was not al-Aulaqi’s words that led the United States to act against him: they only served to demonstrate his intentions and state of mind, that he “pray[ed] that Allah [would] destro[y] America and all its allies.” Rather, it was al-Aulaqi’s actions — and, in particular, his direct personal involvement in the continued planning and execution of terrorist attacks against the U.S. homeland — that made him a lawful target and led the United States to take action.

Though Holder doesn’t quote these bits, the same recording mentions Umar Farouk Abdulmutallab several times, boasting about how such attacks proved the futility of American security systems.

9/11, the war in Afghanistan and Iraq, and then operations, such as that of our brother Omar al-Farouq which could have not cost more than a few thousand dollars, end up draining the US Treasury billions of dollars, in order to give Americans a false sense of security.

[snip]

Our brother Omar Farouq has succeeded in breaking through the security systems that have cost the US government alone over $40 billion since 9/11.

[snip]

And after the operation of our brother Omar Farouq, the initial comments coming from the administration were looking the same: another attempt at covering up the truth. But Al-Qaida cut off Obama from deceiving the world again; by issuing their statement claiming responsibility for the operation.

[snip]

The operation of our brother Omar Farouq was in retaliation to American cruise missiles and cluster bombs that killed women and children in Yemen.

When the recording was originally released, American news outlets noted they had not confirmed the authenticity of the recording. Whether it is or not, the Administration has formally presented this release — as anonymous reporting had in the past — as proof that Awlaki was trying to reach out to American Muslims in early 2010, and therefore proof he could be killed.

If the government maintains that Awlaki would propagandize Abdulmutallab’s attack in English, then why does it claim that Awlaki helped Abdulmutallab make his martyrdom video, which is in Arabic?

Here’s how they describe that claim in the narrative they submitted with Abdulmutallab’s sentencing.

Awlaki told defendant that he would create a martyrdom video that would be used after the defendant’s attack. Awlaki arranged for a professional film crew to film the video. Awlaki assisted defendant in writing his martyrdom statement, and it was filmed over a period of two to three days.

Why would al Qaeda’s best English language propagandist set out to make a video with a man schooled in English about an attack targeting America, but make it in Arabic?

Read more →

Will the Saudis Let JSOC Take Over Yemeni Targeting?

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There were three airstrikes in Yemen this week, with the last being a strike in al-Jawf, a province on the Saudi border, that local observers have variously described as a drone strike and a Saudi jet strike.

Keep ongoing confusion about airstrike attribution in mind as you read this Greg Miller article. It purportedly examines how easy it will be to cede CIA control over drones to DOD. But Miller focuses on Yemen, where, as he portrays it, the question of CIA control over drone strikes is inescapably tied to use of the Saudi base to launch them.

As Miller describes, after initially intending to keep JSOC in charge of strikes in Yemen, the Administration shifted to the CIA because of some serious fuck-ups, among them the al-Majala strike, which killed a Bedouin tribe, the May 2010 strike that took out the Deputy Governor of Shabwah province (probably on deliberately bad intelligence), and the May 2011 attempt that allowed Anwar al-Awlaki to escape.

The change was driven by a number of factors, including errant strikes that killed the wrong people, the use of munitions that left shrapnel with U.S. military markings scattered about target sites and worries that Yemen’s unstable leader might kick the Pentagon’s planes out.

But President Obama’s decision also came down to a determination that the CIA was simply better than the Defense Department at locating and killing al-Qaeda operatives with armed drones, according to current and former U.S. officials involved in the deliberations.

The first two of these fuck-ups almost certainly came from the intelligence sharing process. Yet one of Miller’s sources describes it as a problem with DOD’s kinetic skills, the actual targeting of drones.

“I never fully understood why they struggled so much,” the former official said, referring to the Pentagon’s problems. “Of all the pieces, the kinetic piece at the end was what they should have been good at.”

Given the chronology Miller’s story lays out, it was this last strike, the only one that represented an actual kinetic rather than intelligence failure, that led the Administration to decide to go to the Saudis.

Miller then lays out the thin kabuki the Saudis engaged in to claim this wasn’t a new expansion of US military presence on Saudi soil (as if building a 35,000 person infrastructure protection force, developed under the leadership of a US Major General, were not also one). And he describes the deal the Saudis struck: they’re in charge.

The Saudi government imposed conditions, including full authority over the facility and assurances that there would be no U.S. military personnel on site. The operation would be run by the CIA and Saudi intelligence, who for years had jointly operated a fusion center in Riyadh.

But it’s the excuses used to rule out JSOC drones that are most telling. JSOC couldn’t be involved, the kabuki claims, because it would involve a more tedious vetting process.

Feeding targeting intelligence to JSOC drones was not seen as a valid option, in part because doing so would require military approvals that could bog down a process requiring split-second decisions, officials said.

“The military’s culture is very uncomfortable with someone not in the chain of command handing them a target package and saying, ‘Hit this,’ ” said Jeremy Bash, who served as a senior aide to Panetta at the Pentagon and the CIA.

The first CIA flights began in August 2011. Six weeks later, Awlaki was killed in a CIA strike.

Voila! DOD no longer vets drone targeting and Awlaki dies within weeks!

Funny how that worked out.

Miller then lays out several of the advantages CIA purportedly has over DOD. In addition to the longevity of command at CIA’s counterterrorism center as compared to JSOC, he also cites CIA’s involvement in infiltrating terrorist organizations like al Qaeda in the Arabian Peninsula.

Among them is its expertise at penetrating terrorist groups through networks of informants, and the expertise of officers and analysts who tend to stay in their assignments longer than their military counterparts.

Of course, CIA doesn’t do that by itself in Yemen. It does it with the Saudis and the Yemenis. And always has.

Indeed, the Saudis were involved in at least one of the fuck-ups given as reason to switch to the Saudi base. The Yemenis probably dealt us the bad intelligence that killed the Deputy Governor of Shabwah.

Now, I’m willing to entertain the possibility that moving to CIA targeting under Saudi control is mostly about bypassing Yemeni vetting, as I’ve suggested before. But it is also the case that some of our more recent drone strikes took out people, like that Deputy Governor, who had reportedly served as mediators between extremists and the government in the past, so it is not entirely clear that putting the Saudis in charge has resulted in better targeting.

But we are doing what the Saudis asked us to do 4 years ago, giving them drone intelligence, if not drone kills, they can use to target Saudi enemies in the north of Yemen.

It’s fairly clear that CIA will remain in charge of drone strikes in Pakistan at least through the official pull-out of US troops from Afghanistan. But whether or not the CIA — and with them, the Saudis — will retain control of Yemeni targeting is a far more interesting question going forward.

The Reason Holder Recused in UndieBomb 2.0 Probably Relates to Reasons He Thinks It’s So Bad

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A lot of people are responding furiously with what should not be news: that Eric Holder approved the warrants in the investigation into Fox report James Rosen’s story.

Attorney General Eric Holder signed off on a controversial search warrant that identified Fox News reporter James Rosen as a “possible co-conspirator” in violations of the Espionage Act and authorized seizure of his private emails, a law enforcement official told NBC News on Thursday.

[snip]

Holder previously said he recused himself from the AP subpoena because he had been questioned as a witness in the underlying investigation into a leak about a foiled bomb plot in Yemen. His role in personally approving the Rosen search warrant had not been previously reported.

DOJ policy requires Attorney General sign-off on such warrants and subpoenas, Holder has no apparent reason to recuse in this case, so we should have all expected he signed off on them.

To be clear, I don’t defend the warrant to get Rosen’s emails; the claims he conspired in a leak are terribly dangerous. So I won’t defend Holder for having approved the warrant in the least.

But people seem to be suggesting that because Holder approved the Rosen warrant, he could have approved the UndieBomb 2.0 subpoena, so must be dodging some issue by recusing.

Consider a few basic details. First, the UndieBomber 2.0 mole reportedly infiltrated AQAP up to a year in advance, which would put him in Yemen, at least, if not AQAP, before Anwar al-Awlaki was killed September 30, 2011. And UndieBomber 2.0 was eventually working with Fahd al-Quso, who had a role — perhaps a more dominant role — in some of the attacks used to justify Awlaki’s killing, including UndieBomb 1.0 and the toner cartridge plot.

As I noted, for some reason DOJ did not implicate Fahd al-Quso in Umar Farouk Abdulmutallab’s sentencing memo 2 months before the UndieBomb 2.0 “plot” was “thwarted,” even though he clearly had a role in the earlier UndieBomb plot. But to the extent that sentencing memo was about providing a public justification for the Awlaki killing (and it was billed as such when it was rolled out), then it would have gone through review if not have been developed in the Attorney General’s office, as that’s where everything else on transparency on the Awlaki killing went (and probably still goes, up to Wednesday’s letter on the topic).

In other words, to the extent that an operation to get either Ibrahim al-Asiri or Quso would be tied up with the at that point recent killing of Awlaki, the AG’s office would be involved (and all that assumes things went down generally as the government claims it does; the AG’s office could be far far more involved, and therefore exposed by the leak, in a number of other scenarios).

Then there’s the question of the security theater rolled out for the Osama bin Laden anniversary, the “scores” of Air Marshals sent to Europe to prevent a threat that had already been rolled up. While the implementation of such security would be directed primarily out of Department of Homeland Security, the decision to deploy it likely involved discussions of the President’s entire national security team, including Eric Holder.

And all this makes sense. The only way the UndieBomb 2.0 leak could have anywhere near the gravity Eric Holder claims it does (even though the claimed reasons for its seriousness appear totally bogus) is if this kind of high level operation and deception were going on.

Which really ought to raise more questions about why the Administration (or Holder) panicked so much about the leak in the first place.

Obama’s Finger Is On the Trigger Except Where It Matters

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Update: In his speech, Obama took clear responsibility for killing Awlaki.

And as President, I would have been derelict in my duty had I not authorized the strike that took out Awlaki.

Daniel Klaidman remains the Administration’s go-to guy for stories that report facts that contradict the spin he gives them. Today’s installment explains that Obama insisted on retaining direct say over DOD drone strikes in part to ensure we don’t get embroiled in new wars.

Obama wanted to assume the moral responsibility for what were in effect premeditated government executions. But sources familiar with Obama’s thinking say he also wanted to personally exercise supervision over lethal strikes away from conventional battlefields to avoid getting embroiled in new wars.

But at the same time reports that Obama didn’t exercise direct control over those strikes — in Pakistan and, starting in 2011, in Yemen — that have threatened to embroil us in new wars (and indeed, in the case of our strikes on the Pakistani Taliban, led directly to terrorist attacks on the US as well as the Khost attack).

While Obama had broadly signed off on the CIA’s targeted killing program through a presidential finding for covert action, he did not authorize individual killings except in rare instances.

Effectively, by the time Obama overruled the military in the fight Klaidman portrays in this piece last year, all of the strikes away from battlefields were conducted by the CIA, the strikes Obama apparently took no moral responsibility for.

Klaidman’s report includes another laugher, one which undermines the central Administration claim that today’s speech will represent new drone guidelines.

Lethal force can only be used against targets who represent a “continuing, imminent threat,” and where “capture is not feasible,” Holder said in his letter. It is unclear whether that would signal an end to the controversial practice of “signature strikes,” where groups of suspected terrorists have been targeted even though their identities were not known. (The tactic is believed to have led to significant civilian casualties, while at the same time increasing the number of high level al Qaeda members who were killed.) One senior Obama administration official said the question of signature strikes, sometimes referred to morbidly as “crowd killing,” has yet to be resolved.

I guess my earlier suggestion that the word “ongoing” will be defined so broadly as to allow a great number of problematic drone strikes was correct: it apparently might even include signature strikes.

But ultimately, this is the funniest thing about this perfectly time advertisement that on drones Obama is (yes, Klaidman uses this term) “the decider.” Klaidman’s headline (one he likely didn’t choose) is,

Obama: I Make the Drone Decisions

His closing two sentences are,

Obama won’t be declaring the end of the war anytime soon. And that is why his finger will still be on the trigger.

Yet the day before this obviously sanctioned story, Obama’s Attorney General sent out a letter that shielded the President from all responsibility for the decision to kill an American citizen. Again, maybe Obama will change this trend today by taking responsibility for personally ordering the execution of Anwar al-Awlaki. But it seems as though, even as the Administration boasts of “unprecedented transparency,” they still want to legally protect one of the most important facts about drone killing.

Obama (Almost) Capitulates to ACLU on Drone Killing Standards

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Actually, that headline overstates things. Obama will never capitulate to ACLU, the organization. As I’ve shown, his Administration has gone to absurd lengths to defeat ACLU in Court, even holding up legitimate congressional oversight to do so.

But Eric Holder’s letter to Congress yesterday suggested that the government’s new drone rulebook will almost adhere to the standard the ACLU tried to hold the President to almost 3 years ago. Holder claims,

This week the President approved and relevant congressional committees will be notified and briefed on a document that institutionalizes the Administration’s exacting standards and processes for reviewing and approving operations to capture or use lethal force against terrorist targets outside the United States and areas of active hostilities; these standards are either already in place or are to be transitioned into place.

[snip]

When capture is not feasible, the [new drone] policy provides that lethal force may be used only when a terrorist target poses a continuing, imminent threat to Americans, and when certain other preconditions, including a requirement that no other reasonable alternatives exist to effectively address the threat are satisfied.

That’s very close to the standard Nasser al-Awlaki, the ACLU, and Center for Constitutional Rights sought in August 2010 when they sued to prevent the government from killing Anwar al-Awlaki unless he was such an imminent threat.

Plaintiffs seek a declaration from this Court that the Constitution and international law prohibit the government from conducting targeted killing outside of armed conflict except as a last resort to protect against concrete, specific, and imminent threats of death or serious physical injury; and an injunction prohibiting the targeted killing of U.S. citizen Anwar al-Aulaqi outside this narrow context.

When I noted the Administration was now embracing the standard it had refused in 2010, ACLU’s Jameel Jaffer responded on Twitter,

Is it? What’s the function of the word “continuing”?

He’s got a point. Read more →

In Guilty Plea, Abdulmutallab Named Awlaki as Inspiration, Not as Co-Conspirator

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In Eric Holder’s letter on drone killing today, he used Umar Farouk Abdulmutallab’s UndieBomb attack as the most extensive evidence justifying the assassination of Anwar al-Awlaki.

For example, when Umar Farouk Abdulmutallab — the individual who attempted to blow up an airplane bound for Detroit on Christmas Day 2009 — went to Yemen in 2009, al-Aulaqi arranged an introduction via text message. Abdulmutallab told U.S. officials that he stayed at al-Aulaqi’s house for three days, and then spent two weeks at an AQAP training camp. Al-Aulaqi planned a suicide operation for Abdulmutallab, helped Abdulmutallab draft a statement for a martyrdom video to be shown after the attack, and directed him to take down a U.S. airline. Al-Aulaqi’s last instructions were to blow up the airplane when it was over American soil. [Emphasis original]

That version of what Abdulmutallab said about his attack draws on Abdulmutallab’s confession to the High Value Interrogation Group at Milan Correctional Facility, last presented in a narrative submitted at Abdulmutallab’s sentencing. I commented on some oddities in that narrative here and will likely return to it.

Contrast that with how Abdulmutallab pled guilty to conspiracy to commit terrorism in court in October 2011.

In the name of Allah, the most merciful, if I were to say I the father did not do it, but my son did it and he conspired with the holy spirit to do it, or if I said I did it but the American people are guilty of the sin, and Obama should pay for the crime, the Court wouldn’t accept that from me or anyone else.

In late 2009, in fulfillment of a religious obligation, I decided to participate in jihad against the United States. The Koran obliges every able Muslim to participate in jihad and fight in the way of Allah, those who fight you, and kill them wherever you find them, some parts of the Koran say, an eye for an eye, a tooth for a tooth.

I had an agreement with at least one person to attack the United States in retaliation for U.S. support of Israel and in retaliation of the killing of innocent and civilian Muslim populations in Palestine, especially in the blockade of Gaza, and in retaliation for the killing of innocent and civilian Muslim populations in Yemen, Iraq, Somalia, Afghanistan and beyond, most of them women, children, and noncombatants.

As a result, I traveled to Yemen and eventually to the United States, and I agreed with at least one person to carry an explosive device onto an aircraft and attempt to kill those onboard and wreck the aircraft as an act of jihad against the United States for the U.S. killing of my Muslim brothers and sisters around the world.

I was greatly inspired to participate in jihad by the lectures of the great and rightly guided mujahideen who is alive, Sheikh Anwar al-Awlaki, may Allah preserve him and his family and give them victory, Amin, and Allah knows best. [my emphasis]

He pleads to a conspiracy (the first crime he was charged with), but he doesn’t name the person or people with whom he conspired.

Then, immediately after not naming his co-conspirators, he says he was inspired to conduct this act by Anwar al-Awlaki. But even there, he doesn’t attribute Awlaki’s influence to conversations he had with Awlaki in Yemen — even Awlaki acknowledged to having contact with Abdulmutallab, though he maintained he did not order the attack. Rather, Abdulmutallab points to speeches Awlaki published, speeches which, according to other court documents, he listened to as early as 2005.

Thus, at a moment when Abdulmutallab controlled his own speech, when there was no question of coercion (though his current lawyer now challenges his competence at the time), in a speech in which he boasted of Awlaki’s role in inspiring his terror attack, he did not name Awlaki as his co-conspirator.

You could argue, I suppose, that Abdulmutallab did so out of some belief the government or news had lied about Awlaki’s death almost two weeks before (as he makes clear, he refused to believe Awlaki was dead), in an attempt to get him to implicate Awlaki, and that his tribute to Awlaki’s influence but not co-conspiracy was an attempt to push back. The FBI appears to have badgered Abdulmutallab about the likelihood Awlaki would be killed after he got put on a kill list, so it is possible he worried that if he implicated Awlaki he might lead to his death (which had already happened).

Whatever the explanation, these two narratives present two of the three confessions Abdulmutallab gave (the other being the one he gave just after he had been captured, as presented by AUSA Jonathan Tukel at trial, in which Abdulmutallab did not name Awlaki at all). And as the Administration’s newfound transparency rolls out tomorrow, it’s worth keeping in mind that the confession that implicates Awlaki is just one of three Abdulmutallab made, and not even the most recent known one.