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Meet 3 PATRIOT Act False Positives Investigated for Buying Beauty Supplies

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Both Mike Rogers and Ron Wyden made claims about the efficacy of the surveillance scoops of the last few days, especially the use of Section 215 to collect the phone data — and other tangible stuff, including credit card records — of every American.

The assessment of efficacy ought to consider a number of factors: Whether this surveillance has prevented any attacks (Rogers says it has, but mentions only one in the entire 7 year span of the program). Why it didn’t prevent an attack like the Boston Marathon bombing, which was carried out by two guys whose lives and extremist interests were splashed all over social media, and one of whom was discussed in international texts  that would have been fair game for collection under PRISM.

But an efficacy assessment also needs to find a way to quantify the costs such surveillance has on false positives.

So let’s consider what may have happened to three probable false positives who had their lives thoroughly investigated in 2009 after being — wrongly, apparently — tied to Najibullah Zazi’s plot to bomb the NYC subway.

We first learned of these three people when they appeared in the detention motion the FBI used to keep him in custody in Brooklyn. As part of the proof offered that Zazi was a real threat, FBI described 3 people in Aurora, CO, who bought large amounts of beauty supplies.

Evidence that “individuals associated with Zazi purchased unusual quantities of hydrogen and acetone products in July, August, and September 2009 from three different beauty supply stores in and around Aurora;” these purchases include:

  • Person one: a one-gallon container of a product containing 20% hydrogen peroxide and an 8-oz bottle of acetone
  • Person two: an acetone product
  • Person three: 32-oz bottles of Ion Sensitive Scalp Developer three different times

Unlike just about everything else cited in the detention motion, there was no obvious means by which these individuals were identified.

During the debate on PATRIOT Act reauthorization later that fall, Dianne Feinstein used the Zazi investigation to insist that Section 215 retain its broad “relevant to” standard. Given her insistence Section 215 had been important to the investigation, and given that the identification of these beauty supply buying subjects appeared to work backwards from their purchase of beauty supplies, I guessed at the time that the FBI used Section 215 to cross reference all the people who had bought these beauty supplies in Aurora, CO — which are precursors for the TATP explosive Zazi made — with possible associations with Zazi.

Just days later, as part of the debate, Ben Cardin discussed using National Security Letters to track people who buy “cleaning products that could be used to make explosive device.” And John Kyl discussed wanting to “know about Joe Blow buying hydogen peroxide.” Acetone and hydrogen peroxide, the same precursors used to implicate these three people.

In February 2011, Robert Mueller confirmed explicitly that Section 215 had been used to collect “records relating to the purchase of hydrogen peroxide.”

That seems to suggest that the government used Section 215 or NSLs to search on all the people who bought acetone and hydrogen peroxide in Aurora (by all public reporting, Zazi kept to himself the entire time he lived in CO).

But here’s the thing: these three people never appeared again in the legal case against Zazi and his co-conspirators. The only one from CO ever implicated in the plot was Zazi’s father, who had lied to protect his son.

Poof!

They were three known associates buying dangerous explosives precursors one day, and apparently became either cleared innocents or recruited confidential informants the next day.

In other words, they appear to be false positives identified by the Section 215 dragnet celebrated by Obama and DiFi and everyone else implicated in it now as a great way to prevent terrorism (Zazi, remember, was discovered through legal FISA intercepts obtained after we got a tip from Pakistan).

Now, no one, as far as I know, has ever found these three probable false positives to ask them what they went through during the period when they were suspected of being co-conspirators in the biggest terrorist attack since 9/11. But given the likelihood that the association with Zazi went through his mosque (the other likely possibility is another driver from the airport), I imagine that their neighbors and employers got awfully suspicious when the FBI showed up and started asking questions. How badly does being actively — and, apparently, falsely — investigated for being a terrorist ruin your life if you’re an American Muslim? Do you lose job security? Do other kids’ parents refuse to let their kids play with yours? Does your homeowners association try to cause you trouble?

That’s what this debate about efficacy needs to quantify. Data mining is never completely accurate, and given the small number of terrorists and therefore the high degree of guessworks that goes into what counts as an association, you’re going to have false positives, as appears to have happened here.

Lots of apologists are saying they never do anything wrong, and therefore they don’t have to worry. But it appears that doing something as innocent as buying hair bleach can get you sucked into this dragnet.

Section 215: The White House’s Bullshit Talking Points

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Here’s what the White House has offered as talking points to defend collecting (DiFi has confirmed) all the call data from all Americans since 2006. Interspersed is my commentary.

The article discusses what purports to be an order issued by the Foreign Intelligence Surveillance Court under a provision of the Foreign Intelligence Surveillance Act that authorizes the production of business records. Orders of the FISA Court are classified.

As they’ve done with drone strikes and, especially, WikiLeaks cables before, the Administration refuses to confirm that this is, in fact, what several members of Congress have made it clear it is: an authentic FISA Order that (as Dianne Feinstein revealed) is just the quarterly renewal of a program that goes back to the PATRIOT Act renewal in March 2006.

In other words, with its “talking points,” the Administration is recommitting to keeping this program legally secret, even though it’s not secret.

Everything that say after they set up that information asymmetry should be regarded with the knowledge that the White House refuses to permit you to check its claims.

The talking points go on.

On its face, the order reprinted in the article does not allow the Government to listen in on anyone’s telephone calls. The information acquired does not include the content of any communications or the name of any subscriber. It relates exclusively to metadata, such as a telephone number or the length of a call.

Here, the White House does two things. With its “exclusively metadata” comment, it tries to minimize how much metadata really provides. Here’s how Shane Harris, in a superb explainer, describes what metadata can really provide.

What can you learn with metadata but no content?

A lot. In fact, telephone metadata can be more useful than the words spoken on the phone call. Starting with just one target’s phone number, analysts construct a social network. They can see who the target talks to most often. They can discern if he’s trying to obscure who he knows in the way he makes a call; the target calls one number, say, hangs up, and then within second someone calls the target from a different number. With metadata, you can also determine someone’s location, both through physical landlines or, more often, by collecting cell phone tower data to locate and track him. Metadata is also useful for trying to track suspects that use multiple phones or disposable phones. For more on how instructive metadata can be, read this.

Note the White House fails to mention the forms of some metadata, such as geolocation, that are particularly invasive.

But the other thing this White House bullshit talking point does is precisely the same thing the Bush White House did when, in 2005 after James Risen and Eric Lichtblau exposed the illegal wiretap program, it dubbed a subpart of the program the Terrorist Surveillance Program and talked about how innocuous it was taken in solitary. The White House is segregating one part of the government’s interdependent surveillance system and preening about how harmless that isolated part is in isolation.

What the White House doesn’t mention is how the government uses this data, among other ways, to identify possible terrorists who they can conduct more investigation of, including accessing their content using this data mining to establish probable cause.

What the White House is trying to hide, in other words, is that this collection is part of a massive collection program that uses algorithms and other data analysis to invent people to investigate as terrorists.

And then the bullshit White House talking points contradict themselves.

Information of the sort described in the Guardian article has been a critical tool in protecting the nation from terrorist threats to the United States, as it allows counterterrorism personnel to discover whether known or suspected terrorists have been in contact with other persons who may be engaged in terrorist activities, particularly people located inside the United States.

Wait, what? Just one talking point ago, the White House told us that, “The information acquired does not include the content of any communications or the name of any subscriber.” But here we are, a mere talking point later, and the White House is claiming that it is used to discover whether known terrorists are in contact with other persons? Uh, so it does involve the known identities of both existing suspects and those gleaned from this massive collection of data, huh?

But don’t worry. Because a court has rubber stamped this.

As we have publicly stated before, all three branches of government are involved in reviewing and authorizing intelligence collection under the Foreign Intelligence Surveillance Act. Congress passed that act and is regularly and fully briefed on how it is used, and the Foreign Intelligence Surveillance Court authorizes such collection.

How does the separation of powers work again? Congress passes the law, the Executive enforces the law, and Courts review the law?

Only, in its bold claim that all three branches of government support this, the Court’s role is to “authorize such collection.” There’s a reason for that word, authorize. The only thing the courts are permitted to review are whether the government has provided,

(A) a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, such things being presumptively relevant to an authorized investigation if the applicant shows in the statement of the facts that they pertain to—
(i) a foreign power or an agent of a foreign power;

(ii) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or

(iii) an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation; and

(B) an enumeration of the minimization procedures adopted by the Attorney General under subsection (g) that are applicable to the retention and dissemination by the Federal Bureau of Investigation of any tangible things to be made available to the Federal Bureau of Investigation based on the order requested in such application.

That is, the government just has to make a “reasonable” argument that this stuff is “relevant” to an investigation geared toward protecting against international terror or foreign clandestine activities. And if they can point to any number of foreign types (a foreign power, a suspected agent of a foreign power, or someone in contact with a suspected agent of a foreign power), the judge is instructed to presume it is related even if that seems like a stretch.

This is not a robust review of the claims the government is making. On the contrary, it is designed not to be a robust review of those claims.

Which brings us to Congress, that other branch the White House touts. It is utterly and embarrassingly true that they have repeatedly bought off on this, even if James Sensenbrenner, among others, is suckering journalists claiming that he didn’t. Indeed, oversight committees shot down efforts to limit Section 215 orders to people who actually had a tie to a suspected terrorist or foreign spy in 2006, 2009, and 2011. Such language was shot down each time. So, too, were efforts in 2011 and 2012 to reveal what was really going on in Section 215 collection; oversight committees shot that down too.

So here, in a rarity for national security overreach, the White House is absolutely right. Congress repeatedly bought off on this program, including its unbelievably broad standard for “relevance.”

Except … except … when Ron Wyden tried to get the government to tell him how many Americans’ records had been reviewed (by using this front-end collection to identify the back-end collection) the Inspectors General in question professed to be helpless to do that (later hints suggested they had done that study, but refused to share it with the Intelligence Committees).

So while it is true that Congress, with a few exceptions, have been completely complicit in this, it is also true that the Executive Branch has withheld the information Congress needs to understand what is happening with US person data.

I wonder why?

Never you worry, though, because it’s all constitutional.

There is a robust legal regime in place governing all activities conducted pursuant to the Foreign Intelligence Surveillance Act. That regime has been briefed to and approved by the Court.

Activities authorized under the Act are subject to strict controls and procedures under oversight of the Department of Justice, the Office of the Director of National Intelligence and the FISA Court, to ensure that they comply with the Constitution and laws of the United States and appropriately protect privacy and civil liberties.

Don’t worry, the White House concludes. The legal review designed not to be robust is robust.

And to be fair, the FISA Court has, on at least one occasion, told the Administration they were violating the Fourth Amendment. Though apparently DOJ and ODNI thought this Fourth Amendment violative collection was kosher, as they had to be slapped down by the court, so I’m not sure what purpose their purported oversight serves.

But as I pointed out this morning, there’s a flaw to this argument that is grounded in the Administration’s refusal to admit this is a real FISA Court order.

Standing.

The government, over and over and over and over, assures us this is all very Constitutional. Even while the government, over and over and over and over, goes to great lengths to ensure citizens don’t learn how they’re being surveilled, which would (in addition to pissing them off) give them the ability to sue.

Until the Americans who have been surveilled are permitted to challenge this in a court — precisely what the government has gone to great lengths to prevent — White House claims to constitutionality ring hollow.

The government doesn’t have the confidence to let us test these claims in court. That ought to tell you what they really think about its constitutionality.

Journalists: Eric Holder Believes You’re Probably a Criminal But Won’t Charge You

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As I noted the other day, Eric Holder seems intent on calling journalists whom he believes are co-conspirators in a criminal leak something else.

Which is why I think this detail, from Politico’s leaks-about-a-meeting-about-leaks story, is the most telling I’ve seen on the Holder meeting.

“The guidelines require a balance between law enforcement and freedom of the press, and we all argued that the balance was out of kilter, with the national security and law enforcement interests basically overwhelming the public’s right to get information,” one journalist at the meeting said. “The language concerning ‘aiding and abetting’ comes out of the Privacy [Protection] Act, and they discussed trying to revise that language so that reporters don’t need to be defined as co-conspirators in order to execute search warrants.”

This is a reference to part of the Privacy Act that prohibits the government from seizing media work product unless it is connected to a crime (see pages 5 ff for how it affected the James Rosen warrant application). After claiming Rosen was aiding and abetting a violation of the Espionage Act and therefore his emails could be seized, the FBI then said that since he was potentially criminally liable, he should not get notice. In other words, the aiding abetting was an investigative tactic DOJ used to get around protections put into place just for someone like Rosen.

And DOJ’s solution for abusing a protection meant to protect someone like Rosen is apparently to simply redefine the law, so it can overcome those protections without having to accuse Rosen of being a criminal.

The outcome would remain the same; DOJ would just avoid saying mean things about people associated with powerful media outlets.

But the letter Principal Assistant Deputy Attorney General Peter Kadzik sent to answer Bob Goodlatte and Jim Sensenbrenner’s questions about Eric Holder’s testimony about whether he ever prosecuted a journalist makes it clear he thinks James Rosen probably is a criminal, regardless of what he calls it.

When the Department has initiated a criminal investigation into the unauthorized disclosure of classified information, the Department must, as it does in all criminal investigations, conduct a thorough investigation and follow the facts where they lead. Seeking a search warrant is part of an investigation of potential criminal activity, which typically comes before any final decision about prosecution. Probable cause sufficient to justify a search warrant is different from a decision to bring charges for that crime; probable cause is a significantly lower burden of proof than beyond a reasonable doubt, which is required to obtain a conviction on criminal charges.

Note the slippage here: Kadzik says the standard for a probable cause warrant is different than the standard for charging, then says a probable cause warrant is different from the standard for convicting.

What Kadzik is implicitly suggesting is that while DOJ might think Rosen was a criminal co-conspirator, they’d never win their case against him. So they never considered charging him.

I joked some weeks ago that journalists should take solace in all this: Obviously, Eric Holder holds them in precisely the same category as banksters, those who are guilty of a crime but that DOJ chooses not to charge with one.

This letter seems to support this.

Press Freedom: It Depends on What the Meaning of the Word “Is” Is

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As we get further away from last week’s what’s-new-is-old counterterrorism speech, I’m increasingly convinced all that happened was the Administration yoked the word “continuing” onto the word “imminent” and declared an entirely new standard that just happens to replicate the existing one.

Which is why I think this detail, from Politico’s leaks-about-a-meeting-about-leaks story, is the most telling I’ve seen on the Holder meeting.

“The guidelines require a balance between law enforcement and freedom of the press, and we all argued that the balance was out of kilter, with the national security and law enforcement interests basically overwhelming the public’s right to get information,” one journalist at the meeting said. “The language concerning ‘aiding and abetting’ comes out of the Privacy [Protection] Act, and they discussed trying to revise that language so that reporters don’t need to be defined as co-conspirators in order to execute search warrants.”

This is a reference to part of the Privacy Act that prohibits the government from seizing media work product unless it is connected to a crime (see pages 5 ff for how it affected the James Rosen warrant application). After claiming Rosen was aiding and abetting a violation of the Espionage Act and therefore his emails could be seized, the FBI then said that since he was potentially criminally liable, he should not get notice. In other words, the aiding abetting was an investigative tactic DOJ used to get around protections put into place just for someone like Rosen.

And DOJ’s solution for abusing a protection meant to protect someone like Rosen is apparently to simply redefine the law, so it can overcome those protections without having to accuse Rosen of being a criminal.

The outcome would remain the same; DOJ would just avoid saying mean things about people associated with powerful media outlets.

And note, from the reports I’ve seen thus far, none of these crack journalists seem to have suggested to DOJ that even the way it was using the Espionage Act to go after sources (many of whom are whistleblowers) is a dangerous misapplication of statute, just like calling James Rosen a co-conspirator is. That is, DOJ’s use of the Espionage Act to give the clearance system more teeth than it was meant to have seems to have escaped these media representatives’ notice.

Ah well. If they had raised DOJ’s abuse of the Espionage Act, DOJ would just do what they appear to intend to do with its abuse of Privacy Act restrictions: redefine the terms and proceed as they had been.

Torquemada Pursued Suspected Muslims, Not Journalists

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In an article flattering Eric Holder’s sense of remorse once he realized how inappropriate it was to claim a journalist engaging in flattery might be a co-conspirator in a leak, Daniel Klaidman quotes a Holder friend explaining that the Attorney General doesn’t see himself as some kind of Torqemada figure pursuing journalists.

But for Attorney General Eric Holder, the gravity of the situation didn’t fully sink in until Monday morning when he read the Post’s front-page story, sitting at his kitchen table. Quoting from the affidavit, the story detailed how agents had tracked Rosen’s movements in and out of the State Department, perused his private emails, and traced the timing of his calls to the State Department security adviser suspected of leaking to him. Then the story, quoting the stark, clinical language of the affidavit, described Rosen as “at the very least … an aider, abettor and/or co-conspirator” in the crime. Holder knew that Justice would be besieged by the twin leak probes; but, according to aides, he was also beginning to feel a creeping sense of personal remorse.

[snip]

As attorney general, a position at the intersection of law, politics, and investigations, Holder has been at the center of partisan controversy almost since taking office. But sources close to the attorney general says he has been particularly stung by the leak controversy, in large part because his department’s—and his own—actions are at odds with his image of himself as a pragmatic lawyer with liberal instincts and a well-honed sense of balance—not unlike the president he serves. “Look, Eric sees himself fundamentally as a progressive, not some Torquemada out to silence the press,” says a friend who asked not to be identified. [my emphasis]

Granted, the Torquemada metaphor was Holder’s friend’s, not his own. And granted, Holder’s DOJ has worked to avoid the kind of Muslim-bashing people like Peter King have called for (though his DOJ has also slow-walked its investigation into NYPD’s profiling of Muslims and allowed FBI to engage in similar behavior).

But the reference to Torquemda highlighted how limited this remorse is — just to investigations involving journalists, not Muslims, for example — and how thin Holder’s apparent understanding of the problem remains.

Read more →

Putin: You Show Me Yours and … I Might Show You Mine

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AG-meeting1-300x199It’s not until the 17th and 18th paragraph of this Moscow Times article on Russian Interior Minister Vladimir Alexandrovich Kolokoltsev’s discussion with Attorney General Eric Holder about sharing more law enforcement information that it reminds readers that just three days before the Boston Marathon attack, Russia and the US were exchanging blacklists of people prohibited from travel to their respective country.

The Interior Ministry won a court ruling to authorize Browder’s arrest and place him on an international arrest warrant shortly after the U.S. released its so-called Magnitsky list of 18 Russians banned from entry into the country. Among those on the list are Artyom Kuznetsov and Pavel Karpov, Interior Ministry investigators who put Magnitsky behind bars.

The blacklist, published April 12, provoked a storm of protest from Moscow and a tit-for-tat release of a blacklist of U.S. officials. But the Boston bombing occurred just three days later, causing the two sides to tone down their rhetoric and take a second look at relations.

The Russian blacklist not only includes torturers like John Yoo, but people involved in Viktor Bout’s prosecution.

And it makes no mention of the complaints that Russia has been slow to share information since.

Details on tensions surrounding Magnitsky come long after the details on information sharing in the article: Robert Mueller promises to open up some FBI files to the Russians in anticipation of the 2014 Winter Olympics, and we’ve exchanged 827 documents this year.

FBI director Robert Mueller promised Kolokoltsev in Washington late last week to open some FBI data to the Russians, saying, “Such resources could be useful to Russian law enforcement agencies in view of the Sochi Olympics,” the Interior Ministry said in a statement.

About 15,000 U.S. citizens could attend the Sochi Olympics, according to Mueller.

Mueller also thanked the Russian side for the help it provided in investigating the Boston Marathon bombing, which U.S. investigators believe was masterminded and carried out by brothers Tamerlan and Dzhokhar Tsarnaev, who have mixed Chechen-Dagestani origin.

[snip]

Kolokoltsev also met with U.S. Attorney General Eric Holder and suggested that the Interior Ministry sign a legal cooperation agreement with the U.S. Justice Department.

“Since the beginning of this year, we have exchanged 827 documents with U.S. law enforcement agencies,” Kolokoltsev told reporters, noting that the U.S. is one of top five countries with which Russia cooperates within the framework of the Interpol.

So if you’re planning on attending the Olympics in Russia next year, don’t piss off the FBI before then!

Then there’s the bit Russian Times doesn’t mention, which happens to be one of the very few things included in the US Department of Justice statement on this meeting. The US plans to share not just counterterrorism information, but also transnational crime organization.

They also discussed law enforcement cooperation between the two countries in areas including counterterrorism, transnational organized crime and child pornography.

Recall, Russian mobsters are among the four organizations the Obama Administration listed among the Transnational Criminal Organizations we would use terrorism-like tactics to hunt down; we’ve focused on Central Asian mobsters in our specific sanctions. It’s not clear that Russia has been particularly forthcoming with cooperation on this front in the past.

Let’s see whether this buzz about information sharing changes that.

What “Not Specifically Targeted” Means for Abdulrahman al-Awlaki

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A number of people are discussing the killing of Abdulraham al-Awlaki as if the government has claimed he was accidentally targeted.

That’s not what the government has officially said. In his letter declassifying American drone deaths the other day, Eric Holder said Abdulrahman, Samir Khan, and Jude Kenan Mohammad were “not specifically targeted.” Which is quite different from saying it was an accident.

Administration officials were quick to offer an explanation about one of these deaths, that of Mohammad: he died in a signature strike, officials said anonymously, but a former consultant also suggests he was on the kill list.

American officials said on Wednesday that Mr. Mohammad had been killed with about 12 other insurgents in what the C.I.A. calls a “signature strike,” an attack based on patterns of activity, such as men toting arms in an area controlled by extremist groups. Such strikes have prompted the sharpest divisions inside the Obama administration, with some officials questioning whether killing unidentified fighters is legally justified or worth the local backlash.

[snip]

While Mr. Mohammad was not directly targeted, he had come under increasing scrutiny by American counterterrorism officials, who said he was involved in recruiting militants for Al Qaeda and the Pakistani Taliban, as well as making videos on YouTube to incite violence against the United States.

“He had risen to the top of the U.S. deck,” said Seth G. Jones, a senior political scientist at the RAND Corporation and former adviser to the military’s Special Operations Command. Mr. Jones said that while in Pakistan, Mr. Mohammad had made contact with five young Virginia men who disappeared from their homes around Thanksgiving in 2009 and turned up seeking to join militant groups. Instead they were arrested and remain in Pakistani custody.

But officials have been a lot more squirmy about Abdulrahman’s death.

At a pre-speech briefing yesterday, a senior Administration official was asked about Abdulrahman specifically. Between an unbelievable number of “ums,” he first tried to generalize about all three “not specifically targeted” individuals and then provided two possibilities: presence at “al Qaeda and associated facilities” or civilian accidents (neither of which incorporates the explanations provided the NYT for Mohammad’s death).

I don’t want to get into the details of each of those instances.  What I will say generally is that there are times when there are individuals who are present at al Qaeda and associated forces facilities, and in that regard they are subject to the lethal action that we take.  There are other instances when there are tragic cases of civilian casualties and people that the United States does not in any way intend to target — because, again, as in any war, there are tragic consequences that come with the decision to use force, including civilian casualties.

The first of those — presence at an al Qaeda “facility” — is closer to what the Administration has said about Abdulrahman’s death in the past, when they have claimed they were targeting Ibrahim al-Banna. Though AQAP reported that he was never at the site.

But here’s what a former Obama official told Jeremy Scahill about Abdulrahman’s killing.

A former senior official in the Obama administration told me that after Abdulrahman’s killing, the president was “surprised and upset and wanted an explanation.” The former official, who worked on the targeted killing program, said that according to intelligence and Special Operations officials, the target of the strike was al-Banna, the AQAP propagandist. “We had no idea the kid was there. We were told al-Banna was alone,” the former official told me. Once it became clear that the teenager had been killed, he added, military and intelligence officials asserted, “It was a mistake, a bad mistake.” 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.”

In other words, it sounds like some in the Administration suspect that someone within the targeting chain of command may have invented the Ibrahim al-Banna presence as a way to get at Awlaki’s son. (Note, elsewhere Scahill suggested that the Awlaki family suspects a teacher may have been trying to recruit Abdulrahman to help hunt down his father, which might give those recruiters reason to want to silence him after they did kill Awlaki.)

In a piece on the drone program yesterday, Daniel Klaidman revealed that some people within the Administration were trying to keep mention of Abdulrahman and the two others out of Holder’s letter from the other day.

Officials tell The Daily Beast the original plan was to name only Anwar al-Awlaki, while referring to the other three anonymously. That changed when some officials at the Department of Justice argued that withholding the names would defeat the purpose of Obama’s much-touted call for more openness.

If Abdulrahman was killed deliberately, via some kind of deceit, I can understand why the Administration was reluctant to make its role in his death official. John Brennan’s report about it is presumably out there somewhere (though as a White House report, it would be harder to FOIA than a CIA IG Report).

Clearly, the Administration has made some effort to gain a greater understanding of how Abdulrahman was killed than the hemming and hawing official admitted to yesterday. Which suggests “not specifically targeted” might not even rule out “targeted in deceitful fashion.”

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.