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ACLU, Obama’s White Whale

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Screen shot 2013-02-28 at 10.47.36 AMNPR’s Carrie Johnson, ACLU’s Jameel Jaffer, and I discussed yesterday whether the Administration decided to blow off the House Judiciary Committee panel on targeted killing because appearing and answering questions might compromise their uncompromising stance in the targeted killing FOIA.

It’s a point Ben Wittes made in a response to my query from yesterday,

I can’t imagine what kind of stupidity drove the decision to blow off the committee.

(Note, thanks to Wittes for displaying my potty-mouth in its well-celebrated glory; MSNBC Lawfare is not.)

In which he suggests both John Brennan’s nomination and ACLU’s FOIA may have driven that decision.

I can imagine two reasons, though I agree with Marcy that it was stupid—and, I will also add, wrong—of the administration to stiff the committee. The first is John Brennan’s pending confirmation. The last thing administration wants right now, prior to a Senate vote on Brennan, is to create a forum in which officials get more questions on targeted killings.

The second reason, as I said at the hearing, is FOIA litigation. Every disclosure prompts more demands for more disclosures and prompts arguments that material is not, in fact, secret. So there’s a hunker-down-and-say-nothing mentality that has kicked in. As I say, it’s wrong. And as the tone of yesterday’s hearing—where Republicans and Democrats alike were clamoring for judicial review of targeting decisions—shows, the administration has a lot of work to do with Congress if it means to maintain confidence in its policies—work that will have to be done, at least in part, in public. But it’s not hard, in my opinion, to imagine what’s behind it.

First, with regards to Brennan’s nomination, I present this:

The Senate intelligence committee on Wednesday postponed until next week a vote on the confirmation of White House aide John Brennan to be CIA director, dashing hopes of Democratic leaders who had hoped to have a vote on Thursday.

[snip]

No explanation for the delay was immediately available. However, the Obama administration has been at odds with members of the committee’s Democratic majority over White House unwillingness to disclose some highly classified legal documents related to “targeted killings,” including the use of lethal drone strikes against suspected militants.

[snip]

On Wednesday, administration officials met with intelligence committee members to discuss the contents of the disputed documents. Copies of the material were not turned over to the committee, however, said a source familiar with the matter.

On Tuesday, the Administration shared the Benghazi emails with the Benghazi Truthers, which had been their plan to move Brennan’s nomination forward without turning over any more memos. And while some Republicans, just moments after they received the emails, made a mild stink about Brennan’s thoroughly predictable involvement in efforts to craft talking points about the attack, by Wednesday, that already proved insufficient to move the nomination.

By Wednesday, the Administration was sharing more information on the memos, not Benghazi. And then, after sharing such information, we learn the Administration has been left to stew over the weekend.

Now, perhaps the leaks to National Journal changed the game:

A senator who sits on the Intelligence Committee and has read some of the memos also said that the still-unreleased memos contain secret protocols with the governments of Yemen and Pakistan on how targeted killings should be conducted. Information about these pacts, however, were not in the OLC opinions the senator has been allowed to see. The senator, who also would speak to National Journal only on condition of anonymity, said the only memos that the committee has been given represent mainly legal analysis justifying the drone strikes, and that the rest contain “case-specific” facts about operations.

In response to which an anonymous official who looks like Tommy Vietor made dickish comments about how unreasonable it would be to let the Senate Intelligence Committee exercise oversight and how mean it is to use confirmations to insist on being able to do so because it just feeds into Republican plots.

An Obama administration official who is familiar with the negotiations with Feinstein’s committee indicated that the White House was miffed at efforts by the senator and her staff to obtain all the memos at once, because such efforts play into the Republican strategy of using the dispute to delay the confirmation of John Brennan, Obama’s nominee to head the CIA and the main architect of the drone program, as well as Chuck Hagel as Defense secretary.

“These guys don’t even know what the hell they’re asking for,” the official said. “They think they can ‘reverse-engineer’ the [drone] program by asking for more memos, but these are not necessarily things that exist or are relevant…. What they’re asking for is to get more people read into very sensitive programs. That’s not a small decision.”

Perhaps senior administration officials leaking information presumably contained in the memos to the NYT didn’t help matters.

And while lofty Senators on Intelligence Committees usually couldn’t give a damn about lowly Congressman on Judiciary Committees, I can’t imagine yesterday’s hearing helped. Because in that hearing, a bunch of very partisan Republicans made a case that will be credible to moderates and civil libertarians like me (not to mention, really feed the Tea Partiers) that the Administration is abusing its power, both in regards to the way it is treating Congress, but also in its claims to potentially unchecked authority. (Note, on that front, I owe HJC Chair Bob Goodlatte an apology: it was a well-run and well-crafted hearing.)

With the Talking Point emails shared, Benghazi is frittering out, and the Republicans will need a new scandal to fundraise off of. And a potential fight over whether or not the President has to say whether he thinks he can kill Americans in America has the distinct advantage over both Fast and Furious (their most successful scandal to date) and Benghazi (which wasn’t nearly as successful) in that people across the political spectrum (save those who think Obama should be trusted with this authority because, well, he’s trustworthy) may think it’s reasonable.

That is, while (some) Republicans may only be picking this up because it demonstrates the Administration’s double standard with respect to the Bush Administration, or because their prerogatives have been slighted, or because they figure this paranoid level of secrecy might be hiding real misconduct, the targeting killing memos are close to reaching a tipping point at which they turn into a real political issue.

And that may be what the Administration will be stewing over this weekend.

In the face of that threat, then, there’s just the FOIA. Mean old ACLU Legal Director Jameel Jaffer, FOIAing for more information on the President’s authority to kill Americans (and also, it should be said, helping the Awlaki and Khan families sue for wrongful death). How dare he do that, even if John Brennan, in one of the Administration’s key counterterrorism speeches, emphasized how important presumptive disclosure on FOIA was?

Our democratic values also include—and our national security demands—open and transparent government. Some information obviously needs to be protected. And since his first days in office, President Obama has worked to strike the proper balance between the security the American people deserve and the openness our democratic society expects.

[snip]

The President also issued a Freedom of Information Act Directive mandating that agencies adopt a presumption of disclosure when processing requests for information.

So what if John Brennan says the terrorists will win if the Administration plays stupid games with FOIA? There are lawsuits to be won, damnit!

Now, I have no doubt that the Administration might delay Congressional oversight solely to gain an advantage over the ACLU. Not only did Daniel Klaidman’s sources reveal such suits were at the forefront of their considerations when deciding not to be as transparent as promised, but it appears the Administration already delayed Congressional oversight so as to gain an advantage in ACLU’s FOIA suit.

So yes, it is likely that is one of the reasons DOJ chose to snub the Committee, thereby making this issue more of a political issue.

But it seems the Administration has lost all perspective about how those FOIAs might play out. That’s true, as Jack Goldsmith pointed out, because even if a judge rules that the Administration has revealed what it has been trying to avoid revealing, it’s not the end of the FOIA world for them.

But what if the Court does rule that the USG has acknowledged CIA’s involvement in drone strikes?  What would the ACLU gain, since the whole world already knows this fact?  Such a ruling would require CIA to file a Vaughn index listing responsive documents to the CIA request.  But at that point the government would have further legal options for non-disclosure.  As I once explained:

Even if the D.C. Circuit concludes that the USG has in effect officially acknowledged CIA involvement in drone strikes, however, it need not follow that the CIA must cough up a list of all responsive documents.  These lists alone – which typically contain document titles, dates, and the like – can disclose quite a lot about what the CIA is doing.  Some of the information in a Vaughn index might reveal or point to sources and methods or other properly classified information that would harm national security.  I see no reason why the D.C. Circuit could not rule that the USG has acknowledged CIA involvement, but then rule that (a) the CIA need not produce a Vaughn index if doing so would disclose properly classified information, or (b) the CIA must produce a Vaughn index but can redact any entries in the index (including all of them) that would, if revealed, disclose properly classified information.  Option (a) was suggested by Judge Easterbrook in Bassiouni v. CIA, 392 F. 3d 244 (7th Cir. 2005) – an approach that, as Easterbrook noted, is entirely consistent with the FOIA statute.  Option (b) is simply a more fine-grained substitute for the Easterbrook approach that would force the government to explain its redactions (and which need be no trickier than the already-tricky process of forcing the government to explain why the documents referenced in a Vaughn index need not be disclosed).

Even if ACLU wins on the “official acknowledgment” issue, in short, it has a long way to go to get the records it seeks.  But as we have seen more than once in the last decade, even heavily redacted Vaughn indexes can reveal important information and constitute the basis for further FOIA requests and further disclosures (through FOIA or other means).

I’d add that, at least in the 2nd Circuit, the Administration seems to be protected by overly broad protection for the Memorandum of Notification that authorizes targeted killing and everything else.

And unless there are really big disclosures in there that even I can’t imagine (plus, who besides me is going to look that closely?), there’s simply nothing that will come out in FOIA that will be more damaging than inciting the Republicans to turn this — a real example of abuse of power — into their next political scandal.

Trust me, Obama folks, you made the wrong calculation here, and you’d do well to reverse course before it’s too late.

Though I will make one final caveat.

I don’t think the FOIA could be all that damaging to the Administration.

But I do think the wrongful death suit might. This discussion will make it very hard for the Administration to dismiss of this counterterrorism suit the same way they have every other one, by invoking state secrets (and while there might be standing issues, particularly for Nasser al-Awlaki, Sam Alito won’t be able to suggest the Awlakis and Khans can’t prove their family members were killed in a US drone strike). And having lost the veil of state secrets, there are all sorts of issues that might come out, both about Awlaki’s history, and about why the FBI let Samir Khan leave when every other known radical trying to head to Yemen gets arrested before he boards a plane.

And, quite simply, if they can’t prevent Khan from pursuing this wrongful death suit, some interesting legal conclusions.

So while I think to the extent the Administration is still stalling Congress because of the FOIA, they’re crazy. If that’s the case, they’d be risking giving Republicans a really dangerous issue to politicize next.

All that said, I think the wrongful death suit may present real issues for them, particularly as this information becomes more public. But if it does, then it just serves to prove that the case for killing Awlaki and Khan and Abdulrahman doesn’t withstand legal review.

What Is the Overlap between Signature Strikes and “Side Payment” Counter-Insurgency Drone Strikes?

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ProPublica has a very worthwhile article drawing attention back to signature drone strikes.

My favorite part is their focus on John Brennan’s effort to dodge a question about signature strikes last year, which happened not long before anonymous sources working on Brennan’s behalf launched his Kill List Shiny Object campaign, which served to distract from the signature strikes he had just approved for use in Yemen.

Brennan was asked about signature strikes last April but sidestepped the question. He replied: “You make reference to signature strikes that are frequently reported in the press. I was speaking here specifically about targeted strikes against individuals who are involved.”

He continued that “everything we do, though, that is carried out against Al Qaeda is carried out consistent with the rule of law, the authorization on the use of military force, and domestic law… that’s the whole purpose of whatever action we use, the tool we use, it’s to prevent attack [sic] and to save lives.”

The article also catalogs how Brennan and the Administration have dodged questions from Jerry Nadler, John Conyers, and Bobby Scott, as well as from John McCain.

The administration has rebuffed repeated requests from Congress to provide answers – even in secret.

[snip]

Sen. John McCain, R-Ariz., recently sent his own letter to Brennan asking several pointed questions on signature strikes.

“How do ‘signature strikes’ square with your statement that targeted killing operations are only approved when a targeted individual poses a ‘significant threat to U.S. interests?’” McCain asked, quoting a speech Brennan gave on drone strikes last April.

“How can the Administration be certain it is not killing civilians in areas, like many parts of Yemen and Pakistan, where virtually all men, including civilians, carry weapons?” the letter continued.

A McCain spokesman said the senator had not received a response.

In any case, go read the article. But read it in conjunction with this remarkable Lawfare post on How to Make a Kill List, from Gregory McNeal, who once worked in counterterroism at State (though this work derives from a range of sources). McNeal has a follow-up on network analysis, which I’ll return to later.

McNeal’s post is notable because it is, as far as I know, one of the first times that someone has gone on the record admitting that our drone war is, in part, targeting people our allies pick, effectively us waging their counterinsurgency for them.

There are three basic categories of targets who might find their way onto a kill-list: (1) Targets who fall within the AUMF, and its associated forces interpretations [AUMF Targets], (2) targets who fall within the terms of a covert action finding [Covert Action Targets], and (3) targets provided by allies in a non-international armed conflict in which the U.S. is a participant. [Ally Targets or derisively “side payment targets.”] [my emphasis; all other brackets original]

“Side payment targets.” Wow. Evocative.

The reason I say this article should be read in conjunction with the ProPublica one is that the two places where we know the US is engaging in counterinsurgency targets, Pakistan and Yemen, are also the two places we know we’ve used signature strikes. Read more →

The Repeated Concern about Brennan: His Ties to Saudis

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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

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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

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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

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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

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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

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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

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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

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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.