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The CIA Glomared Their Own Public Speech

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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

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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.

Brennan Continues to Stonewall on His Own Leaks

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John Brennan has now been asked three times (four, presuming Richard Burr asked during the closed hearing, as he said he would) to list the specific times he has leaked to journalists. He has refused all the unclassified questions, as he does here in his supplemental questions.

Describe each specific instance in which you were authorized to disclosure classified information to a reporter or media consultant, including the identity of the individual authorizing each disclosure and the reason for each such disclosure.

In exceptional circumstances, when classified information appears to have already been leaked to the media, it may be necessary to acknowledge classified information to a member of the media or to declassify information for the very purpose of limiting damage to national security by protecting sources and methods or stemming the flow of additional classified information. Such conversations involve only the most senior Agency officials or their designees and must be handled according to any applicable regulations. I have on occasion spoken to members of the media who appeared to already have classified information, in an effort to limit damage to national security; however, even in those circumstances I did not disclosure classified information.

Burr wants a list. Brennan isn’t giving him one.

Noted.

Is This a Benghazi Question?

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Particularly given some of the rumors about what the CIA was doing in Benghazi when Ambassador Chris Stevens got killed, I wonder whether this question — from the follow-up to John Brennan’s confirmation hearings — pertains to Benghazi.

In your responses to the Committee’s pre-hearing questions, you wrote that Chiefs of Mission must be kept fully and currently informed of the activities of U.S. government agencies in their countries, consistent with the provisions of 22 USC 3927. That statute also requires that U.S. Ambassadors “shall have full responsibility for the direction, coordination, and supervision of all United States Government officers and employees in that country,” and that “any department or agency having officers or employees in a country shall… comply fully with all applicable directives of the Ambassador.

Is it your understanding that intelligence activities are subject to the approval of the Chief of Mission?

Yes. Pursuant to the President’s instruction, codified in a 1977 agreement between the Department of State and the CIA, the Chief of Mission has a responsibility to express a judgment on all CIA activities in his or her country of accreditation in light of U.S. objectives in the host country and in the surrounding areas and to provide assessments on those activities to Washington. Further, if the Chief of Mission believes a CIA activity might impair U.S. relations with the host country, the Chief of Mission may suspect a CIA or other intelligence activity. If disputes arise between the Chief of Mission and the Chief of Station that cannot be resolved locally, they are referred to Washington for adjudication by Principals. In order to enable the Chief of Mission to meet these responsibilities, the Chief of Station must keep the Chief of Mission fully and currently informed of CIA activities in the host country (unless the President or Secretary of State has directed otherwise).

“Unless the President or Secretary of State has directed otherwise.” A rather big caveat.

MInd you, this question could be as much about Pakistan as it is about Libya. After all, the Pakistan exception to the drone rulebook arose, in part, because of Cameron Munter’s past objections to the drone strikes in Pakistan. Nevertheless, as written, the drone rulebook appears to let the CIA — that is, John Brennan, once he is confirmed — to do whatever he wants with drones in Pakistan.

None of those rules applies to the CIA drone campaign in Pakistan, which began under President George W. Bush. The agency is expected to give the U.S. ambassador to Pakistan advance notice on strikes. But in practice, officials said, the agency exercises near complete control over the names on its target list and decisions on strikes.

Imposing the playbook standards on the CIA campaign in Pakistan would probably lead to a sharp reduction in the number of strikes at a time when Obama is preparing to announce a drawdown of U.S. forces from Afghanistan that could leave as few as 2,500 troops in place after 2014.

Officials said concerns about the CIA exemption were allayed to some extent by Obama’s decision to nominate Brennan, the principal author of the playbook, to run the CIA.

None of those rules applies to the CIA drone campaign in Pakistan, which began under President George W. Bush. The agency is expected to give the U.S. ambassador to Pakistan advance notice on strikes. But in practice, officials said, the agency exercises near complete control over the names on its target list and decisions on strikes.

Imposing the playbook standards on the CIA campaign in Pakistan would probably lead to a sharp reduction in the number of strikes at a time when Obama is preparing to announce a drawdown of U.S. forces from Afghanistan that could leave as few as 2,500 troops in place after 2014.

Officials said concerns about the CIA exemption were allayed to some extent by Obama’s decision to nominate Brennan, the principal author of the playbook, to run the CIA.

So it’s not clear what weight Brennan’s answer has given that it appears the President has already written an exception for Pakistan and drones.

All that said, given the many reports that Chris Stevens didn’t know what the CIA (or, allegedly, Brennan, running ops out of the White House) was doing in Benghazi, I find DiFi’s effort to get Brennan on the record on this question rather interesting.

Dianne Feinstein Commits the Drone and/or Targeted Killing Fallacy

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I’m not sure whether Dianne Feinstein is this dumb, or this exchange — from follow-up questions to John Brennan’s confirmation hearings — is just an effort to trick people like Rand Paul into believing that the Administration doesn’t believe it can kill imminent threats in the US.

Could the Administration carry out drone strikes inside the United States?

The Administration has not carried out drone strikes inside the United States and has no intention of doing so.

Obama offered a similar answer in a Google hangout last night, so this must be a developing authorized line.

There has never been a drone used on an American citizen on American soil.

The white paper that has everyone so worried about drone strikes in the United States is titled — and is about — “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qa’ida or An Associated Force.”

Lethal is lethal, whether it comes from a drone or a gun or a poison pill.

And thus far, the Administration has fallen far short of denying that it has used lethal force — targeted killing — inside the US.

Department of Pre-Crime, Part 3: What Law Would the Drone (and/or Targeted Killing) Court Interpret?

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I’ve been writing about the nascent plan, on the part of a few Senators who want to avoid hard decisions, to establish a FISA Court to review Drone (and/or Targeted Killings) of American citizens.

A number of people presumably think it’d be easy. Just use the AUMF — which authorizes the President “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” — and attach some kind of measure of the seriousness of the threat, and voila! Rubber-stamp to off an American.

And while that may while be how it would work in practice, even assuming the reviews would be halfway as thorough as the Gitmo habeas cases (with the selective presumption of regularity for even obviously faulty intelligence reports adopted under Latif, as well as the “military age male” standard adopted under Uthman, habeas petitions are no longer all that meaningful), that would still mean the Executive could present any laughably bad intelligence report showing a military aged male was hanging around baddies to be able to kill someone. The Gitmo habeas standard would have authorized the killing of Abdulrahman al-Awlaki, in spite of the fact that no one believes he was even a member of AQAP.

Then there’s the problem introduced by the secrecy of the Drone (and/or Targeted Kiling) Court. One of the several main questions at issue in US targeted killings has always been whether the group in question (AQAP, in the case of Anwar al-Awlaki, which didn’t even exist on 9/11) and the battlefield in question (Yemen, though the US is one big question) is covered by the AUMF.

Congress doesn’t even know the answers to these questions. The Administration refuses to share a list of all the countries it has already used lethal counterterrorism authorities in.

So ultimately, on this central issue, the Drone (and/or Targeted Killing) Court would have no choice but to accept the Executive’s claims about where and with whom we’re at war, because no list exists of that, at least not one Congress has bought off on.

There’s an even more basic problem, though. John Brennan has made it crystal clear that we pick imminent threats not because of any crime they might have committed in the past, but because of future crimes they might commit in the future.

BRENNAN: Senator, I think it’s certainly worth of discussion. Our tradition — our judicial tradition is that a court of law is used to determine one’s guilt or innocence for past actions, which is very different from the decisions that are made on the battlefield, as well as actions that are taken against terrorists. Because none of those actions are to determine past guilt for those actions that they took. The decisions that are made are to take action so that we prevent a future action, so we protect American lives. That is an inherently executive branch function to determine, and the commander in chief and the chief executive has the responsibility to protect the welfare, well being of American citizens. So the concept I understand and we have wrestled with this in terms of whether there can be a FISA-like court, whatever — a FISA- like court is to determine exactly whether or not there should be a warrant for, you know, certain types of activities. You know…

KING: It’s analogous to going to a court for a warrant — probable cause…

(CROSSTALK)

BRENNAN: Right, exactly. But the actions that we take on the counterterrorism front, again, are to take actions against individuals where we believe that the intelligence base is so strong and the nature of the threat is so grave and serious, as well as imminent, that we have no recourse except to take this action that may involve a lethal strike.

What law is it that describes what standards must be met to declare someone a pre-criminal?

Either there are no standards and the Drone (and/or Targeted Killing) Court would just have to take the Administration’s say-so — in which case it’s absolutely no improvement over the status quo.

Or, the courts would make up the standards as they go along, pretty much like the DC Circuit has been in habeas cases. But those standards would be secret, withheld from Americans in the same way the secret law surrounding Section 215 is.

Finally, there’s one more problem with assuming the AUMF provides a law the Drone (and/or Targeted Killing) Court would use to adjudicate pre-crime. The Administration has made it crystal clear that it believes it has two sources of authority for targeted killings; the AUMF and Article II. Which has another implication for a Drone (and/or Targeted Killing) Court.

The Executive has already said that the if the President authorizes the CIA to do something — like murder an American citizen overseas — it does not constitute a violation of laws on the books, like 18 USC 1119, which prohibits the murder of Americans overseas. The Administration has already said that the President’s Article II power supercedes laws on the books. What is a Drone (and/or Targeted Killing) Court supposed to do in the face of such claims?

This carries a further implication. If the Court were using the AUMF as its guide to rubber-stamping the President’s kill list, nothing would prevent the Executive from killing someone outside of that Court on its claimed Article II authority.

Until we make it clear that unilateral murder of American citizens is not an Article II authority, the President will keep doing it, whether there’s a Court or not.

Previous posts on the Pre-Crime Court:

Setting Up a Department of Pre-Crime, Part One: Why Are We Doing This?

Department of Pre-Crime, Part Two: The FISA Court Is Broken

Obama’s Reverse Imaginary Friend, the Assassination Robot

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The Obama Administration is getting more and more like that crazy old man in the park talking to an imaginary friend. Only it works in reverse. It sends out real people to engage in hours of conversations with other real people about a real topic and then pretends both were pretend.

It sends John Brennan to the Senate for 3.5 hours where he has conversations about drones over and over with people, never once claiming not to understand what they mean when they discuss drones and/or targeted killing.

He responds to Ron Wyden’s questions about how to be more transparent on drones.

WYDEN: So it was encouraging last night when the president called and indicated that, effective immediately, he would release the documents necessary for Senators to understand the full legal analysis of the president’s authority to conduct the targeted killing of an American.

[snip]

Let me now move to the public side of oversight, making sure that the public’s right to know is respected. One part of oversight is Congressional oversight and our doing our work. The other is making sure that the American people are brought into these debates, just like James Madison said, this is what you need to preserve a republic.

And I want to start with the drone issue. In a speech last year, the president instructed you to be more open with the public about the use of drones to conduct targeted killings of Al Qaeda members.

So my question is, what should be done next to ensure that public conversation about drones, so that the American people are brought into this debate and have a full understanding of what rules the government’s going to observe when it conducts targeted killings?

BRENNAN: Well, I think this hearing is one of the things that can be done because I think this type of discourse between the executive and the legislative branch is critically important.

I believe that there need to be continued speeches that are going to be given by the executive branch to explain our counterterrorism programs. I think there is a misimpression on the part of some of American people who believe that we take strikes to punish terrorists for past transgressions. Nothing could be further from the truth.

We only take such actions as a last resort to save lives when there’s no other alternative to taking an action that’s going to mitigate that threat.

[snip]

WYDEN: One other point with respect to (inaudible) public oversight. If the executive branch makes a mistake and kills the wrong person or a group of the wrong people, how should the government acknowledge that?

BRENNAN: I believe we need to acknowledge that. Read more →

Alleged Wacko Rand Paul Asks Serious Questions about Targeted Killings

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TDS cites emptywheel for its Targeted Killing Memos request tally.

TDS cites emptywheel for its Targeted Killing Memos request tally.

The Politico went to some effort, it seems, to dismiss Rand Paul’s concerns about the drone program (as well as his threat to hold John Brennan’s nomination if and when it gets out of the Senate Intelligence Committee).

But Paul’s two letters on the subject are actually far more serious than those mocking them make out (the first one also brings the tally of congressional requests for the targeted killing memos to 19).

For example, Paul is one of the few people asking any questions about non-US citizens.

Do you believe that the president has the power to authorize lethal force, such as a drone strike, against a U.S. citizen on U.S. soil? What about the use of lethal force against a non-U.S. person on U.S. soil?

He also asks how the National Security Act and Posse Comitatus might play into a domestic strike.

Do you believe that the prohibition on CIA participation in domestic law enforcement, first established by the National Security Act of 1947, would apply to the use of lethal force, especially lethal force directed at an individual on a targeting list, if a U.S. citizen on a targeting list was found to be operating on U.S. soil? What if the individual on the targeting list was a non-U.S. person but found to be operating on U.S. soil? Do you consider such an operation to be domestic law enforcement, or would it only be subject to the president’s wartime powers?

[snip]

Do you believe that the Posse Comitatus Act, or any other prohibition on the use of the military in domestic law enforcement, would prohibit the use of military hardware and/or personnel in pursuing terrorism suspects—especially those on a targeting list—found to be operating on U.S. soil? If not, would you support the use of such assets in pursuit of either U.S. citizen or non-U.S. persons on U.S. soil suspected of terrorist activity?

And (here in his first letter to Brennan) Paul asks the seemingly unspeakable question: how 16 year old American citizen Abdulrahman al-Awlaki came to be killed by a US drone.

What role did you play in approving the drone strike that led to the death of the underage, U.S. citizen son of Anwar al-Awlaki? Unlike his father, he had not renounced his U.S. citizenship. Was the younger al-Awlaki the intended target of the U.S. drone strike which took his life? Further, do you reject the subsequent claim, apparently originating from anonymous U.S. government sources, that the young man had actually been a “military age male” of 20 years or more of age, something that was later proven false by the release of his birth certificate?

Paul even asks a question limited largely to Yemen experts — whether or expanding campaign there is really about counterinsurgency rather than counterterrorism.

Is the U.S. drone strike strategy exclusively focused on targeting al Qaeda, or is it also conducting counterinsurgency operations against militants seeking to further undermine their government, such as in Yemen?

Finally, Paul slips this question in, which has nothing to do with targeted killings, but has everything to do with Brennan’s seeming disinterest in the privacy of the American people.

Do you support the Attorney General’s 2012 guidance to the NCTC that it may deliberately collect, store, and “continually assess” massive amounts of data on all U.S. citizens for potential correlations to terrorism, even if the U.S. citizens targeted have no known ties to terrorism?

Now, to Politico this may be a big game. But Paul is asking a lot of questions that no one else in DC is asking (note: he may have more leeway to ask such questions than, say, Ron Wyden, who has presumably been read into some of these answers).

Which is, I guess, how the Village now defines wacko: those people who asks the questions they’re too afraid to ask.

The Benghazi Truthers and the OLC Hold-Outs

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Screen shot 2013-02-14 at 8.41.25 AMDianne Feinstein announced yesterday that the Senate Intelligence Committee would not, as originally planned, vote on John Brennan’s nomination today. No Valentine’s Day love for Brennan I guess.

DiFi cited outstanding questions on Benghazi and the 7 OLC memos the White House has withheld.

That’s important background to this Joshua Hersh story, which makes fun of Richard Burr (who had just made a joke about his relative Aaron Burr killing Alexander Hamilton) grilling Jack Lew about who briefed Obama on Benghazi the night of the attack. As Hersh points out, the White House has released a picture showing Denis McDonough briefing the President that day, which ought to answer Burr’s question.

What Hersh doesn’t say is that Burr specifically asked Lew whether Brennan was in this loop. In the closed session on Tuesday, apparently, Brennan said he wasn’t. This comes on top of the White House withholding — at least as of last Thursday — Presidential Daily Briefs and some emails about the response to Benghazi as it unfolded.

Now, Lew’s role in Benghazi briefings really won’t affect his job as Treasury Secretary. But Brennan’s role might, particularly if the Murdoch boosted eBook alleging he was running ops in Libya out of the White House is true (I’m not saying it is).

In any case, the persistence of the Benghazi truthers has introduced an interesting dynamic I didn’t expect. Of the Republicans on the Senate Intelligence Committee, only Susan Collins and possibly Tom Coburn are not full-on Benghazi truthers (and James Inhofe, who gets a vote if he wants one as Armed Services Committee Ranking member, could add another truther vote).

But Collins is part of the other group — along with at least Ron Wyden and Mark Udall — holding up Brennan’s nomination, those demanding the 7 OLC memos on targeted killing the White House has thus far refused to turn over to the Committee purportedly overseeing these killings. That puts the vote somewhere in the vicinity of 9 votes holding out for something from the White House, 6 votes ready to vote Brennan’s nomination forward.

So who will the White House cede to? The Benghazi truthers, or the OLC holdouts? And is what is in the material the White House has thus far withheld enough for these groups to vote against Brennan?

Note, there’s always the possibility these groups will converge. The public record supports the conclusion that Libyan militants in Derna claimed to have been struck or at least surveilled by a drone. Those militants have ties, at least, to the militants who carried out the attack on the Benghazi post, and the public record also supports the claim the militants were avenging that drone surveillance or strike.  If that drone was approved by an unknown memo authorizing continued strikes in Libya, it would be something that both the Benghazi truthers and the OLC holdouts would be interested in.

Has the Government Left Minh Quang Pham “Languishing Forever”?

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Screen shot 2013-02-13 at 3.55.43 PMJohn Brennan made two interesting comments about FBI interrogation at his hearing last week. First, in response to a Martin Heinrich question, he suggested that the Army Field Manual shouldn’t be the interrogation standard for the entire government because the FBI “has its own processes and procedures.”

HEINRICH: Thank you. Do you believe that all agencies of the United States government should be held to the interrogation standards that are laid out in the Army Field Manual as it — as currently required by Executive Order 13491? And do you support efforts to codify those requirements into law?

BRENNAN: The Army Field Manual certainly should govern the U.S. military’s detention and interrogation of individuals.

The FBI has its own processes and procedures and laws that govern its activities. So what I wanted to do is to make sure that, you know, appropriate sort of attention is paid to FBI as opposed to the military.

Then, when Brennan was very patiently explaining to Marco Rubio that his ideas about detention and interrogation are erroneous and stupid (my words), he said this about FBI interrogations.

BRENNAN: No. Again, it’s tailored to the circumstances. Sometimes an individual will be Mirandized. Sometimes they will not be Mirandized right away. Mirandizing an individual means only that the information that they give before then cannot be used in Article III court.

But, in fact, the FBI do a great job as far as eliciting information after they’re Mirandizing them, and so they can get information as part of that type of negotiation with them, let them know they can in fact languish forever, or we can in fact have a dialogue about it intelligently.

“They can languish forever”? I didn’t think the Sixth Amendment had a “languish forever” exception.

But Brennan’s apparent belief there is one got me thinking about Minh Quang Pham, whom I wrote about here.

Pham is a Vietnamese immigrant to the UK who traveled to Yemen in December 2010 and went on to help Samir Khan produce Inspire magazine. He was arrested to great fanfare last June, when his May 24 indictment was purportedly unsealed. Though his docket shows no sign of that unsealing; rather, it says the indictment was unsealed two months later. He returned to the UK in December 2011, where he was held in immigration detention. It’s unclear whether he’s still there — the Brits can hold someone in detention indefinitely and extradition to the US has been taking a lot of time of late — or whether he was moved here either in June when DOJ had a big dog and pony show over his arrest or in August when the docket says his previously unsealed indictment was unsealed. That’s the last thing that appears in Pham’s docket. I’ve asked SDNY for a status report but have not yet gotten an answer.

In any case, one of the last people with ties to the UK or US to spend time with Anwar al-Awlaki and, especially, Samir Khan is languishing … somewhere.