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House Judiciary Makes (Partial) Progress on Drones, But Not the Senate

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Just as the House Judiciary Committee was about to vote to subpoena OLC’s targeted killing memos, DOJ finally agreed to share them with the committee tasked with overseeing OLC.

Just before the hearing, however, DOJ agreed to provide the documents. Goodlatte, the chairman, announced he would postpone the meeting to authorize the subpoena and cancel it once arrangements are made for viewing the documents.

“It’s unfortunate that it took a subpoena notice for the Department to cooperate with the House Judiciary Committee,” Goodlatte said. “The House Judiciary Committee is charged with oversight over the Justice Department and U.S. Constitution and it is imperative that we explore the issues raised by the Administration’s policy.”

Though, from the context, it sounds like DOJ agreed to hand over only the memos authorizing Anwar al-Awlaki’s killing. I’m checking on this, but if this is the case, it’s the partial cave I’ve been expecting from DOJ for some time.

The Administration really doesn’t want to share its signature strike memos.

But that’s just memos. The Administration still refuses — as it did earlier when the House Judiciary Committee held a hearing on drone killing — to send a live body to talk about its killing program.

“We do not currently plan to send a witness to this hearing and have remained in close contact with the committee about how we can best provide them the information they require,” Caitlin Hayden, a National Security Council spokeswoman, wrote in an email to McClatchy.

She added that the White House would continue working with lawmakers “to ensure not only that our targeting, detention and prosecution of terrorists remains consistent with our laws and system of checks and balances, but that our efforts are even more transparent to the American people and the world.”

Hayden declined to say why the administration doesn’t plan to provide a witness for the hearing.

Add this to John Brennan’s refusal to answer Jan Schakowsky’s questions about drones last week, and the Administration really just refuses any oversight on this issue.

But really, they promise they’re being transparent.

Update: I was correct. House Judiciary Committee will only get what the Senate Judiciary Committee got, which is understood to be the Awlaki memos.

The White House Decides Maybe They’re Not “Targeted Killings” After All

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In the 15 paragraphs that make up the core of John Brennan’s so-called transparency on drone killings, he used the word “target” in one or another form 24 times.

… the United States Government conducts targeted strikes against specific al-Qaida terrorists … the debate over strikes targeted at individual members of al-Qaida has centered on their legality, their ethics, the wisdom of using them, and the standards by which they are approved. … First, these targeted strikes are legal. … Second, targeted strikes are ethical.  Without question, the ability to target a specific individual, from hundreds or thousands of miles away, raises profound questions. …

Targeted strikes conform to the principle of necessity, the requirement that the target have definite military value.  In this armed conflict, individuals who are part of al-Qaida or its associated forces are legitimate military targets.  We have the authority to target them with lethal force just as we target enemy leaders in past conflicts, such as Germans and Japanese commanders during World War II.

Targeted strikes conform to the principles of distinction, the idea that only military objectives may be intentionally targeted and that civilians are protected from being intentionally targeted.  With the unprecedented ability of remotely piloted aircraft to precisely target a military objective while minimizing collateral damage, one could argue that never before has there been a weapon that allows us to distinguish more effectively between an al-Qaida terrorist and innocent civilians.

Targeted strikes conform to the principle of proportionality, … By targeting an individual terrorist or small numbers of terrorists with ordnance that can be adapted to avoid harming others in the immediate vicinity, … targeted strikes conform to the principle of humanity which requires us to use weapons that will not inflict unnecessary suffering. For all these reasons, I suggest to you that these targeted strikes against al-Qaida terrorists are indeed ethical and just. … Targeted strikes are wise. Remotely piloted aircraft … strike their targets with astonishing precision, … Yet they are also a wise choice because they dramatically reduce the danger to innocent civilians, especially considered against massive ordnance that can cause injury and death far beyond their intended target. … a pilot operating this aircraft remotely … might actually have a clearer picture of the target and its surroundings, … There’s another reason that targeted strikes can be a wise choice, the strategic consequences that inevitably come with the use of force.  As we’ve seen, deploying large armies abroad won’t always be our best offense. … In comparison, there is the precision of targeted strikes.

In an 11-paragraph statement given to McClatchy in response to its reports that we’ve been “targeting” people who are not our enemies last Friday (but not, as far as I can tell, released more broadly), National Security Council spokesperson (and Tommy Vietor replacement) Caitlin Hayden uses a form of “target” just three times, Read more →

Scott Shane Defends the Commander-in-Chief’s Language

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NYT’s excellent new ombud, Margaret Sullivan, returns to a perennial ombud issue, how the Grey Lady refers to Executive Branch actions and abuses. She includes a long quote from Scott Shane that reveals a great deal about his reporting, and ultimately convinces me we should be calling drone killing assassination.

Adherence to “Targeted Killing” Even While Admitting It’s Not

Let’s start with Shane’s defense of the term “targeted killing” (a term I sometimes use but should not). Sadly, Sullivan cuts off the direct quote from Scott Shane at its most important part, but in the following, the first paragraph here is a direct quote from Shane, the second Sullivan’s report of his comment.

This leaves “targeted killing,” which I think is far from a euphemism. It denotes exactly what’s happening: American drone operators aim at people on the ground and fire missiles at them. I think it’s a pretty good term for what’s happening, if a bit clinical.

Mr. Shane added that he had only one serious qualm about the term. That, he said, was expressed by an administration official: “It’s not the targeted killings I object to — it’s the untargeted killings.” The official “was talking about so-called ‘signature strikes’ that target suspected militants based on their appearance, location, weapons and so on, not their identities, which are unknown; and also about mistaken strikes that kill civilians.”

Shane defends using “targeted killing,” even while admitting that a great deal of drone killing is not targeted. Unless Shane knows a great deal more about individual strikes than he lets on — and therefore knows which drone strikes are targeted at known identities and which are targeted at crowds of unknown military aged males — then he is party to an apparently deliberate strategy on the part of the Administration to spin its killing program as much more orderly and legally justified than it actually is. We saw this operate as recently as yesterday, when John Brennan responded to a question from Jan Schakowsky about signature strikes by telling her to look back at speeches that address only “targeted killing.”

SCHAKOWSKY: Let me ask you this, is there any way that you can define and distinguish between targeted strikes and signature strikes by the — by drones?

BRENNAN: I would refer to the comments that were made by a number of U.S. government officials publicly in speeches, including when I was at the White House. I’m not going to engage in any type of discussion on that here to the Congress, ma’am.

As I said, I’m as guilty of using this term without sufficient awareness as Shane. But doing so consciously really is participating in a propaganda effort the Administration is engaged in.

Executive Order 12333’s Invisible Ink

Then there’s Shane’s refusal to use “assassination” based on Administration claims about Executive Order 12333, which ostensibly prohibits the practice.

“Assassination” is banned by executive order, but for decades that has been interpreted by successive administrations as prohibiting the killing of political figures, not suspected terrorists. Read more →

OLC’s Overseers Will Get to See Their Handiwork

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The Hill reports that the Senate Judiciary Committee will get to read the Office of Legal Counsel memos authorizing the targeting of Anwar al-Awlaki tomorrow.

Committee Chairman Patrick Leahy (D-Vt.) told The Hill that he and other members of the panel will be given access to the detailed Office of Legal Counsel (OLC) memos, which lay out the administration’s legal support for targeting U.S. citizens who are suspected of being terrorists, pose an “imminent threat” to U.S. national security and for whom capture is not an option.

On Tuesday Leahy said the administration was planning to make documents available for committee members to read on Capitol Hill on Wednesday.

Sen. Chuck Grassley (R-Iowa), the panel’s ranking member, is also planning to attend, according to his spokeswoman.

It appears that this will be one of those quickie reviews, where Senators are not allowed to share with lawyers who will conduct more in-depth analysis.

Also no word on whether the House Judiciary Committee will laso get to glimpse these memos.

They really don’t want people to really scrutinize these memos, I guess.

Disposition Matrix: $5 Million Rewards in Lieu of Kill Lists?

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Mike Rogers, perhaps bolstered by the Administration’s insistence that he can say all he wants about drone targeting without it amounting to “admission” of the program for FOIA purposes, ran his mouth the other day about whether any Americans are currently on the kill list.

“There is no list where Americans are on the list,” House Intelligence Chairman Mike Rogers told National Journal. Still, he suggested, that could change.

[snip]

“Some notion that every American would even rise to the list by just going over and even signing up is, candidly, just not the truth,” Rogers said.

Awlaki, Rogers said, was unique among homegrown terrorists—he publicly declared jihad against the United States, and he was involved in multiple terrorist-related plans, including the failed Christmas Day bombing and the Fort Hood shooting.

“What worries me is they are taking this isolated case and saying, ‘Oh well, there’s a list of Americans, and you could be on the list of Americans.’ That just simply is not how this works,” he said.

But Rogers, who said he reviews every strike after it is carried out and sends his staff to a monthly meeting with intelligence officials to ensure staffers have enough information on the strike program, cautioned that should another American citizen again attain the status Awlaki did, the U.S. government has the authority to kill him.

“If you ever got another American who rose to that same level in the ranks and leadership role in al-Qaida and they were operating in Yemen or Mali or southern Algeria or Libya, well, they’ve picked their team, and their team is al-Qaida. And the United States is in conflict with al-Qaida. In the rules of war, you’re allowed to defend yourself.”

And while the White House has no comment about Rogers running his mouth, just after he did so, the Administration announced $5 million rewards for tips leading to the capture of two American extremists, Omar Shafik Hammami and Jehad Serwan Mostafa, who have both been indicted on charges of materially supporting a terrorist organization. The Rewards for Justice descriptions, however, say Hammami and Mostafa have done more than just materially support terror.

It accuses Hammami of serving as a military leader.

In 2006, Hammami moved to Somalia where he joined and received training from Islamist militants. In 2007, Hammami began serving as a propagandist for al-Shabaab, helping to recruit English-speaking youth through his writings, rap songs, and televised statements. He also served as a military leader for al-Shabaab, and he at one time led foreign fighters under Jehad Mostafa.

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Yemeni Government Intensifies Harassment of Journalist Who Presented Counter-Evidence to US Case against Awlaki

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Ever since I wrote this post, I’ve been thinking about the fate of Yemeni journalist Abdulelah Haider Shaye. As Jeremy Scahill reported last year, President Obama personally intervened in February 2011 to make sure that Shaye would remain in prison, for terrorism charges presented at a kangaroo court, for at least five years.

In the course of pointing out the holes in the NYT piece on Anwar al-Awlaki, I revisited the discrepancy between what, according to DOJ, Umar Farouk Abdulmutallab confessed to immediately after he was arrested on December 25, 2009 and what, according to DOJ, he said in interrogations conducted a month and more later. I’m now convinced, at a minimum, that the discrepancies are much more problematic than I thought when I first reported the discrepancy, and I also think (though I’m still working on this) that the original confession may be more reliable given other known facts. If that’s true, it significantly undermines the government’s case against Awlaki, as Abdulmutallab is the key known witness attesting to Awlaki’s operational role which — at least publicly — is the key criteria that must be met before Awlaki’s killing was legal (though at precisely the moment Abdulmutallab started cooperating, Dennis Blair described the standard to be something different).

Which brings me to this article, which reports on an interview Shaye conducted with Awlaki some time after the UndieBomb attack, presumably at least several days before it was published and therefore before Abdulmutallab started cooperating. The story originally took Awlaki’s acknowledgment he had “communications” with Abdulmutallab to support its claim that Awlaki “met” with the UndieBomber.

Anwar al-Awlaki, the fugitive American-born cleric accused of terrorist ties, acknowledged for the first time that he met with the Nigerian suspect in the Dec. 25 airliner bomb plot, though he denied any role in the attack, according to a Yemeni journalist who said he met with him.

Mr. Awlaki said he had met and spoken with the Nigerian suspect, Umar Farouk Abdulmutallab, in Yemen last fall, according to the journalist, Abdulelah Hider Sha’ea, who played a digital recording of the cleric’s comments for this reporter.

[snip]

“Umar Farouk is one of my students; I had communications with him,” Mr. Awlaki can be heard saying on the recording. “And I support what he did, as America supports Israel’s killing of Palestinians, and its killing of civilians in Afghanistan and Iraq.”

[snip]

Mr. Awlaki, 38, said on the recording that he had no part in the planning or execution of the bomb plot. He did not say whether he had advance knowledge of it. “I did not tell him to do this operation, but I support it,” Mr. Awlaki said on the tape, adding that he was proud of Mr. Abdulmutallab. [my emphasis]

Nine days later it added this correction, and took the word “met” out of the second though not lead paragraph of the article.

An article last Monday about possible connections between Anwar al-Awlaki, a fugitive American-born cleric accused of terrorist ties, and Umar Farouk Abdulmutallab, the Nigerian suspect in the Christmas Day plot against an American passenger jet, paraphrased incorrectly from comments by a Yemeni journalist about the relationship between the two men. The journalist, Abdulelah Hider Sha’ea, said that Mr. Awlaki told him he had “communications” with Mr. Abdulmutallab last fall, not that the two men had met in person. [my emphasis]

To be sure, the correction (which presumably came from Shaye and not Awlaki) doesn’t rule out Awlaki meeting with Abdulmutallab; it just clarifies that’s not what Awlaki said (or even, to take the most cynical view, that Shaye shifted the emphasis after reports of Abdulmutallab’s cooperation were made public).

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Breaking! Brennan Extends No Rule Drones for 2 Years

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It’s hard to take this story — reporting, Exclusive: No More Drones for CIA — all that seriously given this assertion:

Brennan has publicly stated that he would like to see the CIA move away from the kinds of paramilitary operations it began after the September 11 attacks, and return to its more traditional role of gathering and analyzing intelligence.

Here’s what Brennan has in fact said about paramilitary operations and the CIA, in statements to Congress and therefore presumably with a bit more legal weight than what he says secretly to journalists.

What role do you see for the CIA in paramilitary-style intelligence activities or covert action?

The CIA, a successor to the Office of Strategic Services, has a long history of carrying out paramilitary-style intelligence activities and must continue to be able to provide the President with this option should he want to employ it to accomplish critical national security objectives.

How do you distinguish between the appropriate roles of the CIA and elements of the Department of Defense in paramilitary-style covert action?

As stated in my response to Question 6 above, the CIA and DOD must be ready to carry out missions at the direction of the President. The President must be able to select which element is best suited. Factors that should be considered include the capabilities sought, the experience and skills needed, the material required, and whether the activity must be conducted covertly. [my emphasis]

What Brennan does have the habit of doing is providing evasive answers when people who want CIA out of the paramilitary business ask him about it, as he did several times in his confirmation hearing.

MIKULSKI: So, let me get to my questions. I have been concerned for some time that there is a changing nature of the CIA, and that instead of it being America’s top spy agency, top human spy agency to make sure that we have no strategic surprises, that it has become more and more executing paramilitary operations.

And I discussed this with you in our conversation. How do you see this? I see this as mission-creep. I see this as overriding the original mission of the CIA, for which you’re so well versed, and more a function of the Special Operations Command. Could you share with me how you see the CIA and what you think about this militarization of the CIA that’s going on?

BRENNAN: Senator, the principal mission of the agency is to collect intelligence, uncover those secrets, as you say, to prevent those strategic surprises and to be the best analytic component within the U.S. government, to do the allsource analysis that CIA has done so well for many, many years. At times, the president asks and directs the CIA to do covert action. That covert action can take any number of forms, to include paramilitary.

[snip]

And the CIA should not be doing traditional military activities and operations.

Now, Brennan has actually made that last comment — that he wants CIA out of traditional military activities — several times, as well.

From this we can make the following conclusions:

  • If flying remotely piloted aerial vehicles and shooting missiles from them is a traditional military operation — and they sure should be — then Brennan wants out.
  • If flying remotely piloted aerial vehicles and shooting missiles from them is a paramilitary operation (which is the implied understanding of most people who comment on this), then Brennan very much plans on keeping that capability in case the President wants to conduct such operations covertly.

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Why Would Jeh Johnson Suggest the Drone and/or Targeted Killing Court Would Be Bipartisan?

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I’ll have more to say about Jeh Johnson’s skeptical speech on a drone and/or targeted killing court later.

But I wanted to point to this detail:

Our government finds itself in a lose-lose proposition: it fails to officially confirm many of its counterterrorism successes, and fails to officially confirm, deny or clarify unsubstantiated reports of civilian casualties.

Our government’s good efforts for the safety of the people risks an erosion of support by the people.

It is in this atmosphere that the idea of a national security court as a solution to the problem — an idea that for a long time existed only on the margins of the debate about U.S. counterterrorism policy but is now entertained by more mainstream thinkers such as Senator Diane Feinstein and a man I respect greatly, my former client Robert Gates – has gained momentum.

To be sure, a national security court composed of a bipartisan group of federal judges with life tenure, to approve targeted lethal force, would bring some added levels of credibility, independence and rigor to the process, and those are worthy goals.

In the eyes of the American public, judges are for the most part respected for their independence.

In the eyes of the international community, a practice that is becoming increasingly controversial would be placed on a more credible footing. [my emphasis]

As I understand it, the model under discussion is simply to give the existing FISA Court the additional task of reviewing kill decisions, not creating a new court.Yet the FISA Court — whose judges are appointed by the Chief Justice of the Supreme Court (and therefore, for the entire life of the FISA Court, by a Republican appointee) — is in no way bipartisan.

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The Global War on Wayward Knuckleheads

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103 minutes into todays Global Threat Hearing in the Senate Intelligence Committee, National Counterterrorism Center Director Matt Olsen got asked his first question, about what his agency is seeing as rising threats. As part of the discussion that ensued, he noted that homegrown Islamic terrorists continued to be a threat though, he admitted, such attacks would be “unsophisticated.”

He then admitted that those who get inspired by Al Qaeda propaganda are “wayward knuckleheads.”

The comment sure seems to confirm a key premise of Trevor Aaronson’s book, The Terror Factory. Our domestic war on terror — complete with FBI-concocted plots — really consists of getting wayward knuckleheads to respond to FBI incitment. “FBI’s trawling in Muslim communities has resulted largely in sting operations that target easily susceptible men on the margins of society.”

Meanwhile, Robert Mueller had a curious comment in his discussion about the ongoing al Qaeda threat. He said that airplane plots remain a threat. The individuals responsible for previous airline attempts still out there, he said.

Um, I thought we had killed at least one individual responsible for previous airline attempts in September 2011. You mean Anwar al-Awlaki wasn’t the mastermind of the UndieBomb threat?

Of course not: Ibrahim al-Asiri was the operational mastermind of it (or maybe Abu Tarak!). Which is why we had another purported attempt last year, more than six months after Awlaki died.

In any case, Mueller’s comment seems to be an at least implicit admission that the Administration oversold Awlaki’s single centrality to the first UndieBomb plot.

The Author of the White Paper, Stuart Delery, Argues Selective, Misleading Disclosures Should Not Be Checked by FOIA

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As I noted in this post, Daniel Klaidman has identified the author of the targeted killing white paper as Stuart Delery.

At the time he wrote the white paper, Delery was Senior Counselor to Attorney General Eric Holder. Last March, he became Principal Deputy Assistant Attorney General in the Civil Division of DOJ and, in the absence of an Assistant AG (or, as far as I can tell, even a nominee, in which case this feels a lot like what George Bush did with Steven Bradbury when he left the Acting head in charge for years on end), the Acting head of the Civil Division.

As I also noted, Delery actually argued the government’s case in the ACLU’s Drone FOIA on September 20, 2012. Now, that’s the ACLU’s other drone FOIA, not the one specifically requesting information that should have included the unclassified white paper Delery wrote if DOJ had answered the FOIA in good faith.

Nevertheless, it asked for closely related information:

The Request seeks a variety of records relating to the use of unmanned aerial vehicles to conduct targeted killings, including the legal basis for the strikes and any legal limits on who may be targeted; where targeted drone strikes can occur; civilian casualties; which agencies or other non-governmental entities may be involved in conducting targeted killings; how the results of individual drone strikes are assessed after the fact; who may operate and direct targeted killing strikes; and how those involved in operating the program are supervised, overseen or disciplined.

At the time ACLU submitted the request on January 13, 2010, Delery was in the Deputy Attorney General’s Office. DOJ responded to its part of the FOIA on February 3, 2010 — 16 days after DOJ worked on a briefing on targeted killing Eric Holder would make to President Obama and 15 days after he delivered that briefing — by claiming only FBI would have responsive records. When FBI searched its records it found none. DOJ made that initial response 6 days before someone in DAG — Delery’s office — wrote an email to OLC about the Holder briefing.

So while DOJ’s non-responsiveness in the drone FOIA is not as egregious as it was in the Awlaki FOIA, it’s still clear that the department Delery worked in, if not (as in the Awlaki FOIA) Delery’s work itself, was shielded from FOIA by a disingenuous FOIA response.

Yet Delery, the Acting head of the Civil Division, nevertheless decided he should argue the government’s case. Technically, Delery was arguing for CIA’s right to pretend it hadn’t confirmed its role in drone strikes in spite of repeated public statements doing just that, so he wasn’t defending the non-disclosure of his Department’s work, per se. Still, it’s not generally considered good form for a lawyer to argue a matter in which he has been so closely involved. He did so, however, at a time before we knew just how centrally involved he was in this matter.

With all that in mind, I thought I’d look at what Delery said to the DC Circuit.

MR. DELERY: May it please the Court, Stuart Delery for the Appellee, CIA.

This Court in several cases has identified two important interests that the strict test for official confirmation serves. It protects the Government’s vital interest in information related to national security and foreign affairs, and it advances FOIA’s interest in disclosure by not punishing officials for attempting to educate the public on matters of public concern because otherwise officials would be reluctant to speak on important national security matters.

Here, the Government has acknowledged that the United States makes efforts to target specific terrorists as part of its counter-terrorism operations, that as part of those operations or, in some cases, those operations involve the use of remotely piloted aircraft or drones, and it’s also described the legal framework and standards that apply in this context in a series of speeches and interviews including by the President’s counter-terrorism advisor, John Brennan, but also the Attorney General, the legal advisor to the State Department, the General Council of DOD, and as has been  referenced in yesterday’s or the recent exchange of 28J letters including a recent interview by the President. But, there’s been no official acknowledgment one way or the other about whether the CIA is involved in these particular operations. [my emphasis]

Delery suggests that a series of Leon Panetta comments (both before and after he moved from CIA to DOD) making the CIA’s role in drone killing clear should not amount to confirmation that the CIA is involved in drone killing because, he says, FOIA’s interest in disclosure should not punish public officials for attempting to educate the public.

Or, to put it another way, the Administration giving a bunch of self-serving speeches should not then make the topic of those speeches subject to FOIA because, in Delery’s mind, that would work contrary to FOIA’s support for disclosure because it would punish officials for giving self-serving speeches.

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