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The Repeated Concern about Brennan: His Ties to Saudis

In a piece questioning President Obama’s second term cabinet, David Ignatius describes John Brennan (who will be voted out of the Senate Intelligence Committee on Thursday) this way:

Obama’s choice for CIA director is also telling. The White House warily managed Petraeus, letting him run the CIA but keeping him away from the media. In choosing Brennan, the president opted for a member of his inner circle with whom he did some of the hardest work of his presidency. Brennan was not a popular choice at the CIA, where some view him as having been too supportive of the Saudi government when he was station chief in Riyadh in the 1990s; these critics argue that Brennan didn’t push the Saudis hard enough for intelligence about the rising threat of Osama bin Laden. But agency officials know, too, that the CIA prospers when its director is close to the president, which will certainly be the case with Brennan and Obama.

To some degree, the report that people within the CIA question Brennan’s actions from when he was Riyadh station chief just reports what we already know. Michael Scheuer has been airing those complaints along the way. And Saxby Chambliss asked Brennan about Scheuer’s allegations with his very first question at Brennan’s confirmation hearing.

CHAMBLISS: Mr. Brennan, the 9/11 commission report describes a canceled 1998 CIA operation to capture Osama bin Laden using tribal groups in Afghanistan. The former head of CIA’s bin Laden unit told staff that you convinced Director Tenet to cancel that operation. He says that following a meeting you had in Riyadh with Director Tenet, the bin Laden unit chief and others that you cabled National Security Adviser Sandy Berger, saying the operation should be canceled in favor of a different approach, described by the 9/11 Commission as a, quote, “an all-out secret effort to persuade the Taliban to expel bin Laden.” Now, as we know, bin Laden was not expelled. Three months later the bin Laden wrath was unleashed with the attack on our embassies. Did you advise senator — Director Tenet and National Security Adviser Berger against this operation? And if so, why?

BRENNAN: I had conversation with George Tenet at the time. But I must point out — out, Senator, that every single CIA manager — George Tenet, his deputy, the head of the director of operations at the time, and other individuals, the chief of the counterterrorism center — argued against that operation, as well, because it was no well-rounded in intelligence, and its chance of success were minimal — minimal. And it was likely that other individuals were going to be killed. And so when I was involved in those discussions, I provided the director and others my professional advice about whether or not I thought that that operation should go forward. I also was engaged in discussions with Saudi — the Saudi government at the time and encouraged certain actions to be taken so that we could put pressure on the Taliban as well as on bin Laden.

CHAMBLISS: So I’m taking it that your answer to my question is you did advise against — in favor of the cancellation of that operation?

BRENNAN: Based on what I had known at the time, I didn’t think that it was a worthwhile operation and it didn’t have a chance of success.

While it has largely been ignored in the press, there have been hints throughout Brennan’s confirmation process that some within the CIA blame Brennan for not pursuing al Qaeda more aggressively before 9/11.

But look at the formulation: this is a concern about what Brennan did 15 years ago, not what he did last year, when he decided to pursue signature strikes he had previously opposed in Yemen based on entreaties from someone in the Arabian peninsula.

Have folks at the CIA had their concerns about Brennan’s stovepipes with the Saudis assuaged, based in part on what they’ve seen with his actions in Yemen? Or does the mention of pre-9/11 concerns serve as stand-in for a bunch of covert dealings no one can discuss?

Obama Administration Not Meeting Transparency Standard Set by Bush Lawyer Steven Bradbury

Glenn Greenwald has a great post on the Administration’s refusal to say whether it can kill Americans inside the US. But he misstates how extreme Obama’s refusal to share Office of Legal Counsel memos is. That’s because he equates an Administration sharing OLC memos with the intelligence committee and sharing them with the public.

Critically, the documents that are being concealed by the Obama administration are not operational plans or sensitive secrets. They are legal documents that, like the leaked white paper, simply purport to set forth the president’s legal powers of execution and assassination. As Democratic lawyers relentlessly pointed out when the Bush administration also concealed legal memos authorizing presidential powers, keeping such documents secret is literally tantamount to maintaining “secret law”. These are legal principles governing what the president can and cannot do – purported law – and US citizens are being barred from knowing what those legal claims are.

[snip]

You know who once claimed to understand the grave dangers from maintaining secret law? Barack Obama. On 16 April 2009, it was reported that Obama would announce whether he would declassify and release the Bush-era OLC memos that authorized torture. On that date, I wrote: “today is the most significant test yet determining the sincerity of Barack Obama’s commitment to restore the Constitution, transparency and the rule of law.” When it was announced that Obama would release those memos over the vehement objections of the CIA, I lavished him with praise for that, writing that “the significance of Obama’s decision to release those memos – and the political courage it took – shouldn’t be minimized”. The same lofty reasoning Obama invoked to release those Bush torture memos clearly applies to his own assassination memos, yet his vaunted belief in transparency when it comes to “secret law” obviously applies only to George Bush and not himself.

But it is not the case that Bush always sat on OLC memos. In fact, as Dianne Feinstein noted in John Brennan’s confirmation hearing, at least by the last year of the Bush Administration, Democrats had gotten Steven Bradbury to start turning over even the most sensitive OLC memos to Congress.

I wanted to talk about, just for a moment, the provision of documents. Senator Wyden and others have had much to do about this. But our job is to provide oversight to try to see that the CIA and intelligence communities operate legally.

In order to do that, it is really necessary to understand what the legal — the official legal interpretation is. So the Office of Legal Counsel opinions becomes very important.

We began during the Bush administration with Mr. Bradbury to ask for OLC opinions. Up til last night, when the president called the vice chairman, Senator Wyden and myself and said that they were providing the OLC opinions, we have not been able to get them. It makes our job to interpret what is legal or not legal much more difficult if we do not have those opinions.

Which made it possible to — as DiFi did in an exchange with Michael Mukasey on April 10, 2008 — force the (Bush) Administration to publicly disavow some of the more extreme positions endorsed by John Yoo.  Read more

Harold Koh and the First Office of Legal Counsel Memo

When I compared what appeared in Eric Holder’s March 2012 targeted killing speech and the targeted killing white paper, I discovered two sections that appear in Holder but not the white paper: a section on leaders as targets.

Furthermore, it is entirely lawful – under both United States law and applicable law of war principles – to target specific senior operational leaders of al Qaeda and associated forces. This is not a novel concept. In fact, during World War II, the United States tracked the plane flying Admiral Isoroku Yamamoto – the commander of Japanese forces in the attack on Pearl Harbor and the Battle of Midway – and shot it down specifically because he was on board. As I explained to the Senate Judiciary Committee following the operation that killed Osama bin Laden, the same rules apply today.

And a section asserting that the technology of drones doesn’t change the legal principles behind the use of lethal force.

These principles do not forbid the use of stealth or technologically advanced weapons.   In fact, the use of advanced weapons may help to ensure that the best intelligence is available for planning and carrying out operations, and that the risk of civilian casualties can be minimized or avoided altogether.

But that language was not new to the Holder speech; it appears as two of the main bullet points in Harold Koh’s March 2010 speech addressing, in part, our use of drones.

First, some have suggested that the very act of targeting a particular leader of an enemy force in an armed conflict must violate the laws of war. But individuals who are part of such an armed group are belligerents and, therefore, lawful targets under international law. During World War II, for example, American aviators tracked and shot down the airplane carrying the architect of the Japanese attack on Pearl Harbor, who was also the leader of enemy forces in the Battle of Midway. This was a lawful operation then, and would be if conducted today. Indeed, targeting particular individuals serves to narrow the focus when force is employed and to avoid broader harm to civilians and civilian objects.

Second, some have challenged the very use of advanced weapons systems, such as unmanned aerial vehicles, for lethal operations. But the rules that govern targeting do not turn on the type of weapon system used, and there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict– such as pilotless aircraft or so-called smart bombs– so long as they are employed in conformity with applicable laws of war. Indeed, using such advanced technologies can ensure both that the best intelligence is available for planning operations, and that civilian casualties are minimized in carrying out such operations.

In addition to situating drone strikes within law of war principles, Koh also addressed two other issues that show up in the white paper (and Holder’s speech): due process and assassinations.

Third, some have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in an armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force. Our procedures and practices for identifying lawful targets are extremely robust, and advanced technologies have helped to make our targeting even more precise. In my experience, the principles of distinction and proportionality that the United States applies are not just recited at meetings. They are implemented rigorously throughout the planning and execution of lethal operations to ensure that such operations are conducted in accordance with all applicable law.

Fourth and finally, some have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.”

I raise all this because Koh’s speech comes between the reported date of the first targeted killing memo — February 2010 — and the date of the second one. (h/t to Snoopdido for pointing this out)

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Targeted Killing Timeline

A timeline!

I’ve been working on this timeline for almost nine months, trying to pull together the known dates about strikes against Americans, the evidence supporting the strike against Anwar al-Awlaki, the legal cases surrounding both targeted killing and torture, to which targeted killing is linked via the Memorandum of Notification, and Congressional efforts to exercise oversight.

September 17, 2001: George Bush signs Memorandum of Notification (henceforth, Gloves Come Off MON) authorizing a range of counterterrorism techniques, including torture and targeted killing.

September 18, 2001: Congress passes the Authorization to Use Military Force.

November 3, 2002: US citizen Kamal Derwish killed in drone purportedly targeting Abu Ali al-Harithi.

Late 2008: Ruben Shumpert reported killed in Somalia.

June 24, 2009: Leon Panetta gets briefed on assassination squad program.

June 26, 2009: HPSCI passes a funding authorization report expanding the Gang of Eight briefings.

July 8, 2009: The Administration responds with an insulting appeal to a “fundamental compact” between Congress and the President on intelligence matters.

July 8, 2009: Silvestre Reyes announces CIA lied to Congress.

October 26, 2009: British High Court first orders British government to release language on Binyam Mohamed’s treatment.

October 28, 2009: FBI kills Imam Luqman Asmeen Abdullah during Dearborn, MI arrest raid.

October 29, 2009: Hearing on declassifying mention of Gloves Come Off MON before Judge Alvin Hellerstein; in it, Hellerstein reveals NSA James Jones has submitted declaration to keep mention of MON secret.

November 5, 2009: Nidal Hasan attacks Fort Hood, killing 13.

December 24, 2009: JSOC tries but fails to hit Anwar al-Awlaki. On that day, the IC did not yet believe him to be operational.

December 25, 2009: With Umar Farouk Abdulmutallab attack, FBI develops full understanding of Awlaki’s operational goals.

January 2, 2010: In conversation with David Petraeus, Yemeni President Ali Abdullah Saleh http://www.cablegatesearch.net/cable.php?id=10SANAA4“>speaks as if Awlaki, whom he refers to as a cleric, not an AQAP member, was a designated target of December 24 attack.

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White House Capitulates to Benghazi Truthers Rather Than Coming Clean on Targeted Killing

The other day, I explained that the Administration would be forced either to cede to Republican demands for Benghazi talking points and other truther demands or release a full accounting why and in which countries it has conducted targeted killing.

It decided to capitulate to the Benghazi truthers rather than tell the Intelligence Committee what kind of targeted killing it has been doing.

Rather than agreeing to some Democratic senators’ demands for full access to the classified legal memos on the targeted killing program, Obama administration officials are negotiating with Republicans to provide more information on the lethal attack last year on the American diplomatic compound in Benghazi, Libya, according to three Congressional staff members.

The strategy is intended to produce a bipartisan majority vote for Mr. Brennan in the Senate Intelligence Committee without giving its members seven additional legal opinions on targeted killing sought by senators and while protecting what the White House views as the confidentiality of the Justice Department’s legal advice to the president.

[snip]

The administration is currently in discussions with Republican members of the Intelligence Committee about providing the trail of e-mails that were the basis of “talking points” from the intelligence agencies regarding the Sept. 11 attack in Benghazi, which killed the American ambassador to Libya, J. Christopher Stevens, and three other Americans. Such a concession would probably win at least some Republican votes for Mr. Brennan.

I get that the Benghazi truther demands are, at this point, pointless. I get that the President would rather cede to a bunch of  nutcases  from the Republican party than Senators from his own party.

But what does it say that this information on targeted killing–which the Administration should provide to the intelligence Committees under the National Security Act, by law, in any case–is more precious than a bunch of partisan hackery the Republicans have been pursuing since September.

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Department of Pre-Crime, Part 4: The NDAA Congress Is Not About to Legislate Targeted Killing

In three earlier posts, I have discussed the problem with turning the FISA Court into the Drone and/or Targeted Killing Court: As I noted, the existing FISA Court no longer fulfills the already problematic role it was set up to have, ensuring that the government have particularized probable cause before it wiretap someone. On the contrary, the FISA Court now serves as a veil of secrecy behind which the government can invent new legal theories with little check.

In addition, before the FISA Court started rubberstamping Drone Strikes and/or Targeted Killings of Americans, presumably it would need an actual law to guide it. (Though Carrie Cordero, who is opposed to the Drone and/or Targeted Killing FISA Court idea because it might actually restrain the Executive, seems to envision the Court just using the standards the Executive has itself invented.) And there’s a problem with that.

The same Congress that hasn’t been successful passing legislation on detention in the 2012 NDAA is certainly not up to the task of drafting a law describing when targeted killing is okay.

As a reminder, here’s what happened with the NDAA sections on military detention. The effort started with an attempt to restate whom we are at war with, so as to mandate that those we’re at war with be subject to law of war detention. The language attempting to restate whom we’re at war with ended up saying:

(a) IN GENERAL.—Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

(b) COVERED PERSONS.—A covered person under this section is any person as follows:

(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.

(2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

Compare that language with what the actual AUMF says:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Part of the difference arises from the shift to focusing exclusively on persons (you can’t detain a nation, after all, though Palestine might disagree).

Part of the difference comes from the effort — clause 2 above — to extend the AUMF to those associated forces. This was meant to cover groups like AQAP and al-Shabaab, but as we’ll see, it’s one source of the problem with the law.

But part of the problem is that the NDAA language smartly took out the “he determines” and “in order to prevent any future acts of international terrorism” language. The former has long been a giant loophole, allowing the President to define in secret whom we’re at war against. And I increasingly suspect the Administration has been using the latter language to expand the concept of imminent threat.

In other words, in an effort to parrot back its understanding of whom we’re at war against, Congress both introduced some new fuzzy language — associated forces — and took out existing loopholes — the “he determines” and “prevent any future acts.”

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What a Targeted Killing in the US Would Look Like

Warning: Several minutes into this video, graphic images of a corpse appear. Also, the government may start tracking your online viewing if you view this YouTube, as someone started following my mostly defunct YouTube account after I watched it.

On October 28, 2009, the FBI set out to arrest a man they claimed, in the complaint justifying the arrest, was “a highly placed leader of a … radical fundamentalist Sunni group [the primary purpose of which] is to establish a separate, sovereign Islamic state.” The leader of the group “calls his followers to an offensive jihad.” The complaint states the group trained in the use of firearms and martial arts and explains that “Abdullah is advocating and encouraging his followers to commit violent acts against the United States.”

The arrest was staged at a warehouse controlled by the FBI, outfitted with 5 closed circuit video cameras that gave the FBI full visibility into anyone entering and leaving the warehouse, as well as pallets loaded with sandbags to provide cover. Altogether 66 FBI Agents participated in the arrest, with 29 Agents, including a K-9 team and snipers, inside the warehouse itself, along with helicopter cover, another K-9 team, and a control room nearby. Members of the FBI’s Hostage Rescue and SWAT teams participated, with Agents flying in from Columbia, South Carolina and DC via a previous operation in Los Angeles. The team had practiced the arrest scenario up to 10 times before the actual arrest.

The arrest started when the FBI detonated 3 pre-positioned diversionary explosives in the room in which the leader, 4 accomplices, two undercover officers and an informant had been moving boxes (the FBI insiders had already left the scene). That allowed the FBI team, wearing bullet proof gear and helmets, to move into place.

On orders, “FBI, show me your hands, on the ground!” the leader’s four accomplices put their hands up and got down on the ground (for a variety of reasons, the FBI doesn’t have recordings of the audio of the event). The leader hesitated, but then got face down on the ground, though the FBI claims his hands were not visible.

At that point, 62 seconds after the diversionary explosions, the K-9 handler, who had been briefed that the leader was the main target of the investigation, released the dog and gave the “bite” command, the first time he had ever done so in the year he had been a K-9 handler; the dog lunged at the leader’s arm or face. The FBI claims the leader raised a gun and shot the dog three times. One accomplice disagrees, describing that the leader had both hands on the dog, trying to keep him away from his face. Two FBI Agents who admitted shooting their rifles also had Glocks, though of a different caliber than the one allegedly used by the leader. There was no gunpowder residue found on the leader and no fingerprints found on the Glock.

In the next 4 seconds, 4 different FBI officers shot the leader with their Colt M4 rifles (3 were from the Hostage Rescue Team that had flown in for this arrest), set on semiautomatic. He was hit a total of 21 times. He died within a minute.

This was the culmination of a 3-year counterterrorism investigation into Imam Luqman Abdullah, a black Muslim who led a mosque in Detroit. The investigation intensified in 2007 as Abdullah and his associates reacted against the transfer of H. Rap Brown (now Jamil Abdullah al-Amin), who had been convicted of killing two police officers in Georgia in 2002, to Florence SuperMax Prison.

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The War and Intelligence behind Anwar al-Awlaki’s Targeting

Believe it or not, there’s a fascinating debate going on over at NRO. First, Charles Krauthammer points to the muddle of the Administration’s white paper, which could have (he argues) just authorized Awlaki’s killing under the laws of war.

Unfortunately, Obama’s Justice Department memos justifying the drone attacks are hopelessly muddled. They imply that the sole justification for drone attack is imminent threat — and since al-Qaeda is plotting all the time, an al-Qaeda honcho sleeping in his bed is therefore a legitimate target.

Nonsense. Slippery nonsense. It gives the impression of an administration making up criteria to fit the president’s kill list. No need to confuse categories. A sleeping Anwar al-Awlaki could lawfully be snuffed not because of imminence but because he was a self-declared al-Qaeda member and thus an enemy combatant as defined by congressional resolution and the laws of war.

Nowhere, unfortunately, does Krauthammer consider why they didn’t do this — or indeed look more closely at the details behind Awlaki’s killing.

Kevin Williamson takes issue with that, reviewing both Awlaki’s lack of indictment after 9/11, but also expressing doubt that Awlaki moved beyond propaganda.

There is a difference between sympathizing with our enemies and taking up arms against the country; there is even a difference between actively aiding our enemies and taking up arms against the country, which is why we have treason trials rather than summary execution.

The question of whether al-Awlaki in fact took up arms against the United States is unanswered, at least in my mind. The evidence suggests that he was very much the “bin Laden of the Internet” rather than a man at arms. What perplexes me is that so many conservatives trust the same government authorities who got it so spectacularly wrong about al-Awlaki the first time around — feting him at the Pentagon, treating him as an Islamic voice of reason — to get it right the second time around. This is not a libertarian criticism but a conservative one. It is entirely possible that the same unique strain of stupidity that led to al-Awlaki’s being invited to the Pentagon as an honored guest of the U.S. military is alive and well in the Obama administration. This is precisely why we have institutions such as the separation of powers, congressional oversight, and trials. Killing a U.S. citizen in the heat of battle is one thing, but Al-Awlaki was not killed in a battle; he was not at arms, but at breakfast. Enemy? Obviously. Combatant? Not obviously.

And then Andrew McCarthy writes in to suggest that Jane Fonda would have made the Kill List had we had one during Vietnam.

Now aside from McCarthy (who serves here only as a warning in where this is going), both these contributions are worth reading.

But what both are missing are the known details about the development of intelligence on Anwar al-Awlaki between the time he was first targeted, on December 24, 2009, and the time he was killed, on September 30, 2011. And while I can’t claim to know the classified intelligence, there’s enough in the public record that ought to give both men more nuance in their arguments. Three key points I lay out in more detail here:

  • Awlaki was first targeted, by the military and before the OLC memo the white paper is based on was written, at a time when the intelligence community did not consider him operational.
  • During negotiations for a plea agreement that never happened, Umar Farouk Abdulmutallab implicated Awlaki in a clearly operational role, but after plea negotiations fell apart, that testimony was never presented in an antagonistic courtroom (indeed, the government itself told a significantly different story at Abdulmutallab’s trial).
  • By the time Awlaki was killed, the government likely had additional evidence suggesting Awlaki’s role in actual plots — notably the October 2010 toner cartridge plot — was weaker than the “senior operational leader” role they invoked when they killed him.

The one time we presumably did try to kill Awlaki under the Krauthammer standard — even the government now says — he did not fit that standard. There was probably a moment to kill Awlaki under that standard (if you ignore that the government was only at this point formalizing AQAP’s status as a terrorist group) around February 2010, before the white paper was written. But by the time we did kill him, not only were there unidentified reasons to get CIA involved (probably having to do with the unreliability of Ali Abdullah Saleh), but the contorted pre-crime standard of imminence John Brennan described probably was what the government was working with (as well as, I suspect, a theory that made Awlaki’s propaganda into an act of war), because the intelligence implicating Awlaki had gotten weaker over time.

There are probably multiple reasons why the argument in support of Awlaki’s killing is so contorted. But one of them appears to be changes in the intelligence the government had implicating him.

Which is why Williamson is ultimately correct. This is why we have courts and separation of powers.

The CIA Glomared Their Own Public Speech

I’ve been reading the Colleen McMahon ruling on the ACLU Awlaki FOIA again in light of the release of the white paper. And I realized that the CIA must be treating the public targeted killing speech of CIA General Counsel Stephen Preston with a “No Number, No List” declaration — a modified Glomar invocation that admits the CIA has documents responsive to FOIA, but refuses to say how many or what they entail. That’s interesting, because it demonstrates that the CIA is refusing to admit that the analysis Preston laid out pertaining to lethal covert operations has a tie to Anwar al-Awlaki’s death.

Admittedly, this all should have been clear to me when I first went looking for mentions of Preston’s speech last June. After all, when CIA Clandestine Services Director John Bennett explained why CIA was shifting from a Glomar (not admitting they had any documents) to a No Number No List (admitting they had some, but refusing to list them) declaration last June, he specifically admitted the CIA had Eric Holder and John Brennan’s targeted killing speeches in their files, but did not admit they had the one made by CIA’s own General Counsel.

Several developments have occurred subsequent to the issuance of Plaintiffs’ FOIA requests and the filing of these lawsuits that have caused the CIA to reconsider its response, as described further below. Those events include several speeches by senior U.S. officials that address significant legal and policy issues pertaining to U.S. counterterrorism operations and the potential use of lethal force by the U.S. government against senior operational leaders of al-Qa’ida or associated forces who have U.S. citizenship. In light of these recent speeches and the official disclosures contained therein, the CIA decided to conduct a reasonable search for records responsive to the ACLU’s request. Based on that search, it has determined that it can now publicly acknowledge that it possesses records responsive to the ACLU’s FOIA request. As described below, however, the CIA cannot provide the number, nature, or a categorization of these responsive records without disclosing information that continues to be protected from disclosure by FOIA exemptions (b) (1) and (b) (3).

[snip]

These records include, for example, the speech that the Attorney General gave at Northwestern University Law School on 5 March 2012 in which he discussed a wide variety of issues pertaining to U.S. counterterrorism operations, including legal issues pertaining to the potential use of lethal force against senior operational leaders of al-Qa’ida or associated forces who have U.S. citizenship. The Attorney General explained that under certain circumstances, the use of lethal force against such persons in a foreign country would be lawful when, among other things, “the U.S. government . . determined, after a thorough and careful review, that the individual pose[d] an imminent threat of violent attack against the United States.” These records also include the speech that the Assistant to the President for Homeland Security and Counterterrorism gave on 30 April 2012, in which he addressed similar legal and policy issues related to the U.S. Government’s counterterrorism operations. Because the CIA is a critical component of the national security apparatus of the United States and because these speeches covered a wide variety of issues relating to U.S. counterterrorism efforts, it does not harm national security to reveal that copies of the speeches exist in the CIA’s files. And because these speeches refer to both the “legal basis” for the potential use of lethal force against U.S. citizens and a review “process” related thereto, the speeches are responsive to these two categories. [my emphasis]

By comparison, DOD (which also invoked No Number No List) did admit that Jeh Johnson’s speech was responsive to ACLU’s FOIA in their declaration.

Now, of all the reasons Bennett lists why CIA must use a No Number No List invocation –whether CIA was involved in Awlaki’s death and whether they can use drones — only one really seems to describe why could not acknowledge that Preston’s speech is responsive to ACLU’s FOIA. CIA doesn’t want you to know that CIA can kill US citizens.

Although it has been acknowledged in the Attorney General’s speech and elsewhere that, as a legal matter, a terrorist’s status as a citizen does not make him or her immune from being targeted by the U.S. military, there has been no acknowledgement with respect to whether or not the CIA (with its unique and distinct roles, capabilities, and authorities as compared to the U.S. military) has been granted similar authority to be directly involved in or carry out such operations.

[snip]

In this case, if it were revealed that responsive OLC opinions pertaining to CIA operations existed, it would tend to reveal that the CIA had the authority to directly participate in targeted lethal operations against terrorists generally, and that this authority may extend more specifically to terrorists who are U.S. citizens.

But I think it’s more than that. After all, Preston used a hypothetical that definitely admitted the possibility CIA would be asked to kill on covert operations, if not Americans specifically.

Suppose that the CIA is directed to engage in activities to influence conditions abroad, in which the hand of the U.S. Government is to remain hidden, – in other words covert action – and suppose that those activities may include the use of force, including lethal force.

I keep coming back to what makes Preston’s speech different from all the others given at the time (which were invoked in FOIA responses, even while they also didn’t mention Awlaki by name).

Preston makes it clear that this lethal authority can come exclusively from Article II power.

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

First, we would confirm that the contemplated activity is authorized by the President in the exercise of his powers under Article II of the U.S. Constitution, for example, the President’s responsibility as Chief Executive and Commander-in-Chief to protect the country from an imminent threat of violent attack. This would not be just a one-time check for legal authority at the outset. Our hypothetical program would be engineered so as to ensure that, through careful review and senior-level decision-making, each individual action is linked to the imminent threat justification.

A specific congressional authorization might also provide an independent basis for the use of force under U.S. law.

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

Sure, he mentions that a congressional authorization — like the AUMF — might also provide such authority. But it’s just gravy on top of a steaming pile of biscuits, a little extra flavor, but not the main course.

Preston also doesn’t mention a key part of the National Security Act — the purported prohibition on covert ops violating US law. On the contrary, Preston’s “box” suggests the only analysis needed to decide whether a lethal covert mission is legal under US law is that Presidential order.

So it’s not just that CIA doesn’t want Americans to know the CIA can kill you. It also doesn’t want to know that CIA believes it can kill you solely on the say-so of the President.

John Brennan Refuses to Deny the Government Collects US Person Data with No Predicate

John Brennan pointedly refused to answer Mark Udall’s question about whether the government collects information on Americans without a predicate.

In 2008, you stated, “I would argue the government needs to have access to only those nuggets of information that have some kind of predicate. That way the government can touch it and pull back only that which is related.” You also stated that the issue needed to be discussed, “not to the point of revealing sources and methods and giving the potential terrorists out there insights into our capability – but to make sure there is a general understanding and consensus that these initiatives, collections, capabilities, and techniques comport with American values and are appropriately adjusted to deal with the threat we face.” Do you believe the U.S. government currently has access to only nuggets of information that have some kind of predicate? Do you believe that the public has adequate information on this topic?

I believe your first question is referencing statements I made about the need to balance security, privacy, and civil liberty interests in connection with the then ongoing public debate over changes to the Foreign Intelligence Surveillance Act. With respect to FISA, this Administration has worked hard to ensure that any electronic surveillance that targets the American people is subject to judicial review through the Foreign Intelligence Surveillance Court to ensure, among other things, that such surveillance complies with the Constitution, and I strongly supported these efforts. I believe it is important that the Judicial Branch act as a check on the Executive Branch to ensure there is an adequate factual predicate to conduct lawful electronic surveillance that targets the American people. I have also supported – and will continue to support – the Administration’s efforts to ensure that Congress is kept informed of our surveillance practices and processes.

Moreover, the Act provides the process and procedures the Government must follow to undertake surveillance, as well as the role the Judicial Branch and the Congress play in that process. As I have stated publicly, I support as much transparency as possible on our counterterrorism efforts, consistent with our obligation to protect sources and methods. Thus, to the extent we could discuss with the public some of the factual predicates that have been deemed by courts as sufficient to justify surveillance, I would support doing so. Indeed I do believe, as I said in my September 2011 speech at Harvard Law School that an “open and transparent government” is one of the values our democratic society expects and demands. [my emphasis]

As a threshold matter, Brennan is addressing underlying predicates only with regards to the FISA Amendments Act, not to Section 215, which uses the relevance standard to collect information — from acetone and hydrogen peroxide purposes, probably to geolocation — of totally innocent Americans.

But even so, this answer not only doesn’t answer Udall’s question — didn’t you once believe that we should only collect intelligence for which there is a predicate so we don’t conduct fishing expeditions — but it points to the inadequate role of the FISA Court in limiting who the US can spy on.

I guess John Brennan has become a fan of fishing expeditions into US person data.

In any case, unlike Lisa Monaco, Brennan isn’t going to promise to release the secret law.

In 2008, you stated that it was important that there be a public airing, including public congressional hearings, related to the predicate for the surveillance of U.S. persons. Do you believe there is more on this topic that could be declassified?

[snip]

And while I am not aware of any particular information on this topic that could be declassified, I do believe any such information should be disclosed to the extent that such a disclosure could be done consistent with our national security.