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Obama Will Propose New Efforts to Make Our Creaky Physically Dangerous Critical Infrastructure CyberSafe

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One of Obama’s key proposals in tonight’s State of the Union will be yet another effort to shore up the cybersecurity of our critical infrastructure.

As a threshold matter, I find it a remarkable coinkydink that the WaPo just reported the leaked findings of an NIE saying that the Chinese (and Israelis and Russians and the French, but the Chinese are bigger and badder, apparently) continue to rob us blind via cybertheft. I look forward to learning whether this — unlike the convenient drone rule book leaks supporting John Brennan’s confirmation — get reported as sanctioned leaks, as required under the Intelligence Authorization.

And speaking of John Brennan, he’s the Homeland Security Czar. A big part of his job is keeping us safe from precisely these kinds of attacks. So why didn’t he get a single question about why he should be CIA Director considering he has been such an abject failure keeping us safe from cyberattacks? (He was asked a question about CIA’s role in cybersecurity, but not asked to explain why he has been such a failure in his current role.)

Now, frankly, I don’t know that that is much John Brennan’s fault. Folks will say that the problem is — as it has been since Richard Clarke first started fearmongering on this front — that corporations won’t participate willingly and no one is going to make them.

But the proposal — which you’ll see if you tune in — doesn’t change that. It’s still voluntary.

And here’s the thing that all the cyberexperts in the world seem to be missing. Not only are the private owners of our critical infrastructure unwilling to fix their cyberdefenses. They’re not willing to keep their brick and mortar infrastructure up to date either. See, for example, PG&E or ConEd‘s recent records, for example.

Look, if these companies refuse to keep up their physical infrastructure and their cyber infrastructure, there’s probably an underlying reason motivating their negligence that no amount of immunity or winks or risk-free information sharing on the cyber side is going to fix. Moreover, if they are physically fundamentally unsafe, no amount of tinkering with their cybersecurity is going to make them safe. They’ll be vulnerable to a terrorist attack and be vulnerable to not entirely random failures and explosions.

You need to solve the underlying problem if you want to keep our critical infrastructure safe. And yet another EO, particularly one limited to cybersecurity and not affect brick and mortar integrity, will not do that.

Updated: Reading Obama’s longer proposal, it does aim to increase the “resiliency” of our physical infrastructure too. So it is not limited to cyber. That said, the underlying problem remains. Private companies aren’t spending the money to invest in this, whether it is physical resilience (or bare minimum functionality) or cyberdefense.

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

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I’m going to have a series of posts on the proposed FISA Drone (and/or Targeted Killing) Court, starting with a description of why I think there’s movement to do this now.

There are, as I see it, three different motivations among those now backing a FISA Drone (and/or Targeted Killing) Court.

First, there’s Dianne Feinstein. Now that the white paper has been released — and the actual OLC memos to the other members of her committee — it has been made clear that the program she has been assuring Americans, based on her Gang of Four review, is lawful is not the slam dunk she made it out to be. And while Mike Rogers’ constituents may not object to his continued reassurances that it is okay for the President to kill an American based on his sole authority (though they may; we shall see), DiFi’s are likely to. (Saxby Chambliss, of course, is not running for re-election; Dutch Ruppersberger has been rather quiet in the last few days). So to the degree that DiFi takes a lead on this issue, it is an effort to put a palatable spin on something she has been spinning as legal for years.

If a FISA Drone (and/or Targeted Killing) Court is necessary and justified, it should have been in 2009, when she took over the Chair at Senate Intelligence Committee (or at the very least, by January 2010, when it became clear the Obama Administration was targeted Anwar al-Awlaki). But somehow, DiFi is only backing the idea now that her poor judgment in letting the killings continue without oversight is being exposed. To some degree, I’d put Patrick Leahy (who doesn’t want to be tough with Obama) and Chuck Grassley in this position, as well.

Then there’s John Brennan, who in response to Angus King’s suggestion of a FISA Drone (and/or Targeted Killing) Court said,

And that’s why I do think it’s worthy of discussion. And the point particularly about due process really needs to be taken into account because there’s not a different standard as far as if a U.S. citizen joins Al Qaida, you know, in terms of the intelligence base or whatever. But American citizens by definition are due much greater due process than anybody else by dint of their citizenship.

I think this is a very worthwhile discussion. I look forward to talking to the committee and others about it. What’s that appropriate balance between executive, legislative and judicial branch responsibilities in this area?

I think Brennan’s motivation is far better summed up in the response he gave Jello Jay Rockefeller, who basically used his second round question to deliver a very sloppy blow job to Brennan. In response, Brennan got firey.

I want every member of this committee to be an ardent advocate, proponent, and defender of the men and women of the Central Intelligence Agency.

And I see it as my obligation to represent them to you on their behalf, so that when times get tough and when people are going to be criticizing and complaining about the CIA, I have all of you to say you knew about what the CIA was doing, you supported it, and you will defend it.

My impression is that, contrary to the moral rectitude myth, Brennan is a pretty amoral guy. It’s not right and wrong that motivates him; it’s allegiance, and as CIA Director (and, probably, even now) his allegiance is going to be to the institution.

And as he said in no uncertain terms to Jello Jay, he believes it is the role of the Intelligence Committee to support and defend the illegal actions the CIA does.

Brennan likely also knows that the easiest way to give the Committee cover for ardently defending what is, at its core, indefensible, and the only way to do so without affecting the flexibility accorded to the Executive Branch, is to let them pawn off the moral questions to a court operating in secret. Read more →

Did Logistics Guy John Brennan Set Up the Torture Taping System? Did He Buy the Torture Coffin?

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This was one of the most interesting little-noticed exchanges at John Brennan’s confirmation hearing last week.

CHAMBLISS: In 2002 what was your knowledge of interrogation videotapes about Abu Zubaydah, and did you seek any information about an Office of General Counsel review of them in 2002?

BRENNAN: I have — I don’t have a recollection of that, Senator.

CHAMBLISS: Of the tapes, or that request?

BRENNAN: At the time, in 2002, I do not know what my involvement or knowledge was at the time of the tapes. I believe that they — I was aware of the Abu Zubaydah debriefings and interrogation sessions being taped.

John Brennan not only knew of the torture tapes but … well, he doesn’t remember whether he asked about the OGC review of torture tapes or not.

As a threshold matter, remember that Brennan was in a logistical role at the time the torture sessions were first taped. He had nothing to do with the development of the techniques, he says. But thus far, I think no one has asked him if he procured any of a number of items the torturers used.

For example, did John Brennan help set up the torture taping system? That would explain how he knew they were taping the sessions.

But that’s not all. Remember, the Office of General Counsel reviewed the torture tapes — originally as a preliminary to them being destroyed in 2002 — to make sure what the torturers did matched what DOJ’s Office of Legal Counsel approved them to do.

We know they shouldn’t have. We know the tapes should have shown the torturers exceeding the guidelines of waterboarding. We know the tapes should have shown the torture preceding the date when OLC actually approved it.

And we know the tapes should have shown the torturers putting Abu Zubaydah in a box as part of a mock burial, the only torture technique John Yoo ever labeled illegal.

In short, we know that the tapes should have shown that the torturers exceeded even the limited restrictions OLC put on them.

Instead, by the time OGC reviewed the torture tapes, 15 of the tapes were already partially or entirely destroyed. Some were taped over, some were broken, some showed the taping system had been shut off. 21 hours of Abu Zubaydah’s torture somehow did not remain on the tapes at the time of the OGC review in November to December 2002. As it happened, when the Inspector General later reviewed the tapes and compared what John McPherson, the OGC lawyer who had reviewed the tapes, actually recorded, he discovered that McPherson had found it unremarkable that the torturers were deviating from the guidelines approved by OLC.

But it appears, given Saxby’s comment, that Brennan was not so much interested in what the IG found, but in what McPherson found. Brennan appears to have been interested in what remained on the tapes after they had been partially destroyed, the first time, after the presumably most incriminating aspects of Abu Zubaydah’s torture had been destroyed.

Here’s another question. Did logistics guy John Brennan procure the waterboard the use of which exceeded the guidelines laid out by OLC? More importantly, did logistics guy John Brennan procure the box used to conduct an even-John-Yoo-said-it-was-illegal mock burial? And if so, did John Brennan know that the torturers considered the box a coffin?

Did John Brennan know, because he had done the logistics for the torture program, that the torturers had violated the only law Yoo ever put into place?

It would sure explain why the Obama Administration worked so hard to cover up the torture program.

Innocent Until Proven Guilty; Imminent Until Proven — Too Late!

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Those defending the language on imminence in the white paper released last week are right on one count: it is not new language. Below the fold, I’ve excerpted the language on imminence from three different formulations on imminence –Brennan’s speech at Harvard, the white paper, and Holder’s Northwestern speech — to show the consistency (and also, with John Brennan’s September 16, 2011 speech, exactly two weeks to Anwar al-Awlaki notice that this was now US policy).

All three point to al Qaeda’s non-combatant structure to describe the need for a more flexible concept of imminence. Both the white paper and Holder’s speech discuss a “window of opportunity,” which I find to be one of the more provocative aspects of this definition. And while Holder’s speech appears to have been edited to make it pretty, it is almost precisely the ideas presented in the white paper on imminence. There is clear continuity between Brennan’s 2011 speech, the white paper, and Holder’s speech.

Which is why I’m interested in the language Brennan used last week when responding to Angus King’s proposal for a FISA court for drone (and what should be targeted killing generally).

It’s telling not because it introduces wholesale new ideas. But because it makes clear what is implicit — but unstated — in the three other formulations.

A person who poses an imminent threat does not have to have committed any crime in the past. Imminence is exclusively about the future possibility of violence, not necessarily past involvement in it.

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.

The white paper actually has the most language about past deeds, but with the language about membership plus past involvement in activities that pose an imminent threat that I keep pointing to, it doesn’t actually require past deeds either. It does, however, at least imply that an American must be involved in past crimes to be deemed an imminent threat.

John Brennan’s language last week does not.

And that’s precisely the explanation he gave for why the courts aren’t the appropriate place to measure imminent threat: because they only get involved when people have already committed crimes. This new definition of imminence envisions declaring people to be imminent threats even before they’ve committed a crime.

One note about this. Brennan ties all this to the President’s responsibility “to protect the welfare, well being of American citizens.” The biggest threat to the well being of the American citizens is not terrorists at this point, not by a long shot. It’s the big banksters who serially collapse our economy and require bailouts (and, it should be said, are often funding terrorists and drug cartels along the way because it is profitable).  Does this definition of “imminent” threat extend to the banksters who are a much more systematic front than the rump of al Qaeda is at this point?

In any case, be warned. If the plan for a FISA Drone (and Targeted Killing) Court moves forward, it will not be measuring guilt — what courts were established to measure. But instead, potential future guilt.

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John Brennan Can’t Even Last One 3-Hour Hearing without Engaging in Information Asymmetry

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One of the questions Dianne Feinstein asked John Brennan in his confirmation hearing last week pertained to the role in approving drone strikes he’ll have at CIA. He refused the answer the question directly because the program is classified.

Feinstein: I’d like to ask you about the status of the Administration’s efforts to institutionalize rules and procedures for the conduct of drone strikes. In particular, how do you see your role as CIA Director in that approval process?

Brennan: Chairman, as this committee knows and I’m sure wants to continue to protect certain covert action activities. But let me talk generally about the counterterrorism program and the role of CIA and this effort to try to institutionalize and to ensure we have as rigorous a process as possible that we feel that we’re taking the appropriate actions at the appropriate time. The President has insisted that any actions we take will be legally grounded, will be  thoroughly anchored in intelligence, will have the appropriate review process, approval process before any action is contemplated, included those actions that might involve the use of lethal force.The different parts of the government that are involved in this process are involved in the interagency, and my role as the President’s counterterrorism advisor was to help to orchestrate this effort over the past four years to ensure again that any actions we take fully comport with our law and meet the standards that I think this committee and the American people fully expect of us as far as taking actions we need to protect the American people but at the same time ensuring we do everything possible to ensure we need to resort to lethal force.

Brennan was equally evasive to similar questions in the hearing, and did not really answer a very simple question in his questions for the committee, whether the drone rule book had been finalized (see question 39: Is there a drone rulebook? A: Not so much a rulebook as little scraps of paper strewn around I sometimes lose).

But let it be noted that when the Chairwoman of the committee purportedly overseeing this program asked him what his role would be, as CIA Director, under the new rule book — a topic which has been addressed in part in the press — he suggested he couldn’t answer because it was classified.

Less than three hours later, this exchange occurred.

Burr: On January 15th of this year, the President signed the 2012 Intelligence Authorization Act, which requires congressional notification of any authorized disclosure of national intelligence. Now, we’ve not received any notification of authorized disclosures. Have there been any authorized disclosures to your knowledge?

Brennan: I would like to say that since you haven’t received any notification there haven’t been.

Burr: Would you consider the information reported in the press about the counterterrorism playbook unauthorized disclosure?

Brennan: Um, I don’t know which piece you’re talking about. There’s been a lot of discussion out there in the media and in the newspapers about this, so I don’t know specifically about any classified information — the fact that the Administration may be going through a process to try to institutionalize, codify, make as rigorous as possible our processes and procedures in and of itself is not a classified issue. So those details that are classified — I don’t know of any that came out in some of those reports.

Burr: If there are classified information that’s out there, and it’s not authorized, was there a crime report filed relative to the playbook?

Brennan: Um, presumably there was, Senator. Those decisions as far as initiating criminal investigations are done by those departments and agencies that have stewardship of that classified information. And in discussions with the Department of Justice they make the determination whether or not, in light of the fact that so many people have access to it, how they can proceed with some type of criminal investigation.

There have been two major stories on the drone rule book since Obama signed the new intelligence authorization and each contains information that is almost certainly classified. This January 19 WaPo story reveals that CIA Director John Brennan won’t have to play by the rules for the next year 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.

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Garbage In, Garbage Out: The Problem with a FISA Drone Court

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Since the Administration turned over the OLC memos authorizing the killing of Anwar al-Awlaki Thursday, there’s been a sudden surge of support for setting up a FISA type court for targeted killing (actually, for drone targeting; I guess Americans being killed by cruise missile or gun still won’t get due process).

There are a lot of problems with such a court, which I hope to explore at length in upcoming weeks.

But, in the same way John Brennan undermined the very premise of drone targeting in his hearing (by attesting that the judge and jury in the existing targeting program is not competent to serve as judge and jury), he also undermined the value of a FISA Drone Court.

In this exchange, Richard Burr finds a way to corner John Brennan into agreeing that he trusted information gotten in the torture program. Burr gets Brennan to admit that he submitted declarations to the FISA court that may have relied on information gained from torture.

Burr: I’m still not clear on whether you think the information from CIA interrogations saved lives.  Have you ever made a representation to a court, including the FISA court, about the type and importance of information learned from detainees including detainees in the CIA detention and interrogation program?

Brennan: Ahm, first of all, in the first part of your question, as to you’re not sure whether I believe that there has been information … I don’t know myself.

Burr: I said I wasn’t clear whether I understood, whether whether I was clear.

Brennan: And I’m not clear at this time either because I read a report that calls into question a lot of the information that I was provided earlier on, my impressions. Um. There, when I was in the government as the head of the national counterterrorism center I know that I had signed out a number of um affirmations related to the uh continuation of certain programs uh based on the analysis and intelligence that was available to analysts. I don’t know exactly what it was at the time, but we can take a look at that.

Burr: But the committee can assume that you had faith if you made that claim to a court or including the FISA court, you had faith in the documents in the information that was supplied to you to make that declaration.

Brennan: Absolutely. At the time if I had made any such affirmation, i would have had faith that the information I was provided was an accurate representation.

To corner Brennan, however, Burr also gets him to admit that a number of FISA-approved programs were probably based on torture.

The government was wiretapping people based on tortured confessions the Senate Intelligence Committee has now, a decade later, deemed unreliable.

And because of how rarely FISA-derived information gets double checked, we’ll never learn which wiretaps were approved based on tortured evidence.

Compare that to what has happened even in the Gitmo habeas cases, even with some limits on discovery. Because detainee lawyers got to challenge the information behind accusations, and because the source of accusations were somewhat public, it made it much easier to challenge the accusations from certain detainees, especially Abu Zubaydah, who had been tortured. Indeed, the government dropped a number of charges originally derived from Abu Zubaydah.

As a threshold matter, intelligence is different from evidence. And a FISA Court would be relying on the former.

But because it operates in secret, it would never be able to vet out the intelligence of dubious provenance, whatever the reason. It was torture 9 years ago when Brennan was making dicey declarations. We’re still seeing questionable allegations from informants work through the system (even in the regular courts!). It could be the self-interested claims of our foreign partners, setting up the death of someone they don’t like.

In the FISA Court, unlike a regular court, there’s no way to clean up Brennan’s torture-based declarations.

The very same day Congres started talking about a FISA Drone Court in earnest, John Brennan demonstrated how dodgy some of the representations submitted to the existing FISA Court have been. That ought to give us pause before we extend the court’s warrants to death, in addition to wiretaps.

They Knew the Evidence against Anwar al-Awlaki Was Weak When They Killed Him

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In case you don’t want to read these two long posts, I want to point to two passages from the white paper that show, on two key points, the government wasn’t even claiming Anwar al-Awlaki was the “senior operational leader of Al Qaeda or associated forces” they keep saying he was when they killed him.

First, on the issue of whether someone is an imminent threat or not, the white paper says a person is an imminent threat if he has “recently been involved in activities posing an imminent threat against the US” and has not renounced those activities.

Moreover, where the al-Qa’ida member in question has recently been involved in activities posing an imminent threat of violent attack against the United States, and there is no evidence suggesting that he has renounced or abandoned such activities, that member’s involvement in al-Qa’ida’s continuing terrorist campaign against the United States would support the conclusion that the member is an imminent threat.

And this part of the definition requires only that the target be an al Qaeda member, not a “senior operational leader.”

And then, when examining whether killing an American overseas counts as murder, the white paper says the President can order the murder of an al Qaeda member who poses an imminent threat to the US.

Similarly, under the Constitution and the inherent right to national self-defense recognized in international law, the President may authorize the use of force against a U.S. citizen who is a member of al-Qa’ida or its associated forces who poses an imminent threat of violent attack against the United States.

Again, the American need only be a member, not a senior operational leader.

These are, to be sure, two short passages in a much longer memo. But consider how they work with the 3-part criteria laid out in the memo, which requires only that 1) John Brennan determines that someone is an imminent threat,  2) John Brennan determines that capture is not feasible, and 3) that the killing be consistent with applicable law of war principles.

Once you get to that “imminence” designation, you can kill the American, based on John Brennan’s say so. And “imminence,” for these purposes, can be as weak as past involvement (not leadership — and remember they once said that actions that lead to actions that pose a threat can get you killed, too) in activities that pose an imminent threat of violent attack on the US, so long as you haven’t formally renounced those activities.

This, I strongly suspect, is why Ron Wyden keeps asking “Does the President have to provide individual Americans with an opportunity to surrender before using lethal force against them?” Because as the white paper stands, being uninvolved with any attack for at least a year and perhaps as long as 20 months — which may well be the case with Awlaki — doesn’t count as renunciation.

I have suggested this language may have gotten introduced in a second memo, not long before they killed Awlaki in September 2011, at a point when all the evidence against him was very stale and had gotten weaker over time (the government moved to protect something under CIPA in the UndieBomber case just a week before Awlaki was killed, though that could have been the first memo).

Whether that’s what happened, though, it seems highly unlikely the language would be in the white paper if it weren’t in some document somewhere authorizing Awlaki’s killing.

Which seems to suggest they couldn’t prove — even if they once had been able to — that Awlaki was the senior operational leader they have insisted him to be. And so they wrote the memo to authorize the killing anyway.

Article II or AUMF? “A High Level Official” (AKA John Brennan) Says CIA Can Murder You

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I’m not sure whether Michael Isikoff decided to stamp his version of the white paper all over with “NBC News” to make sure we all knew who was the go-to for sanctioned leaks, or whether Dianne Feinstein and the Administration asked him to do so to make it all but unreadable.

But I’m grateful that Jason Leopold has now liberated another copy that he has made available in readable form. Because now that I can read it, it becomes even more clear why Ron Wyden has persistent questions about whether the Administration killed Anwar al-Awlaki based on authorities granted under the the 2001 Authorization to Use Military Force or Article II.

Contrary to what I said in this post, the memo is actually very nearly balanced, never ultimately committing to whether it relies on AUMF or Article II. In fact, the white paper often employs a dual structure, invoking both the AUMF and self-defense in the same sentence or successive ones. At times, that dual structure is sound. At other times — as with its invocation of Hamdi — it uses the dual structure to rhetorically adopt a precedent for Article II authority that has only been granted under the AUMF.

The most troubling incidence of that comes in one of the white paper’s most extensive sections, analyzing whether 18 USC 1119’s prohibition on murdering Americans overseas includes a public authority exception for those acting in an official capacity. While bmaz promises to refute the argument they do make, for the military it does seem to make sense. A soldier at war can kill someone without being subject to murder charges, right? But applying such a public authority exception to the CIA — which is prohibited from breaking US law under the National Security Act — effectively asserts that if the President authorizes the CIA to murder Americans, based solely on his Article II authority, it can murder Americans.

This dual structure, then, seems to serve more to allow rhetorical argumentative moves that would be astonishing if made to apply to the CIA alone than to authorize DOD to kill Anwar al-Awlaki.

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CIA Director Petraeus’ Traditional Military Operations

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One of Brennan’s answers to Additional Prehearing questions I didn’t gloss the other day is this one:

Question 8: What are your views on what some have described as the increased “militarization” of the CIA mission following September 11, 2001 attacks?

In my view, the CIA is the Nation’s premier “intelligence” agency, and needs to remain so. While CIA needs to maintain a paramilitary capability to be able to carry out covert action as directed by the President, the CIA should not be used, in my view, to carry out traditional military activities.

[snip]

Do you envision the CIA becoming more or less “militarized” in its mission, should you be confirmed?

The evolution of foreign threats will determine how the CIA adjusts its intelligence activities in the future. If I were to become the Director, I would plan to carry out CIA’s crucial missions, including collecting foreign intelligence, providing all-source analysis, conducting robust counterintelligence, and carrying out covert actions as directed by the President. If confirmed, I would not be the Director of a CIA that carries out missions that should be carried out by the U.S. military.

Brennan brought up the issue again in response to a question (which was prefaced by a totally inappropriate bid to his Jesuit training) from Barbara Mikulski.

At the beginning of her questioning, Sen. Barbara Mikulski (D-Md.) noted dryly that she had been “jerked around” by every CIA director she’d known as a legislator, with the exception of Leon Panetta. Brennan assured her “truthfulness is a value that was inculcated in me in my home in New Jersey.” But when Mikulski brought up about the CIA’s increasing role in paramilitary operations, describing that as “mission creep” and asking whether Brennan would steer the Agency back towards its more traditional intelligence-gathering role, Brennan said only that he would “take a look at the allocation of that mission,” before saying that the CIA “should not be involved in traditional military activities.” But Mikulski was talking about paramilitary activities such as drone strikes. No one actually accused the CIA of engaging in “traditional military activities.”

Clearly, Brennan is making a distinction between paramilitary actions he insists (contrary to the many claims he’d get out of the business) are a central part of CIA’s mandate and traditional military operations.

To some degree, he seems to be saying he will not abide by putting himself in the chain-of-command to give a JSOC op a legally pretty face.

But I couldn’t help thinking about Brennan’s answers as I read this WaPo article. While the article never comes out and says it, what it describes is Obama’s decision — taken at precisely the moment when Petraeus ousted, ostensibly for a consensual affair — to abandon an approach put in place by the retired general.

President Obama is unlikely to shift his stance against the expansion of a U.S. role in Syria’s civil war, despite a death toll topping 60,000 and acknowledgment that key members of his national security staff favored a plan first proposed in June to arm the Syrian rebels.

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Did Administration Stall Congressional Oversight Just to Beat ACLU in Court?

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In an interview with WSJ last March, White House Counsel Kathryn Ruemmler said that publicly explaining the drone program would be “self-defeating.”

White House Counsel Kathy Ruemmler acknowledged Mr. Obama has developed a broader view of executive power since he was a senator. In explaining the shift, she cited the nature of the office.

“Many issues that he deals with are just on him, where the Congress doesn’t bear the burden in the same way,” she said. “Until one experiences that first hand, it is difficult to appreciate fully how you need flexibility in a lot of circumstances.”

[snip]

Ms. Ruemmler said Mr. Obama tries to publicly explain his use of executive power, but says certain counterterrorism programs like the drone campaign are exceptions. Opening them to public scrutiny would be “self-defeating,” she said.

At the time, I thought she was treating the NYT and ACLU as “the public.” After all, in a debate over releasing the targeted killing memos in the situation room in November 2011, she had warned that releasing the memo might weaken the government’s position in litigation, presumably the FOIA battle with the two entities.

The CIA and other elements of the intelligence community were opposed to any disclosures that could lift the veil of secrecy from a covert program. Others, notably the Justice and State departments, argued that the killing of an American citizen without trial, while justified in rare cases, was so extraordinary it demanded a higher level of public explanation. Among the proposals discussed in the fall: releasing a “white paper” based on the Justice memo, publishing an op-ed article in The New York Times under Holder’s byline, and making no public disclosures at all.

The issue came to a head at a Situation Room meeting in November. At lower-level interagency meetings, Obama officials had already begun moving toward a compromise. David Petraeus, the new CIA director whose agency had been wary of too much disclosure, came out in support of revealing the legal reasoning behind the Awlaki killing so long as the case was not explicitly discussed. Petraeus, according to administration officials, was backed up by James Clapper, the director of national intelligence. (The CIA declined to comment.) The State Department, meanwhile, continued to push for fuller disclosure. One senior Obama official who continued to raise questions about the wisdom of coming out publicly at all was Janet Napolitano, the Homeland Security director. She argued that the calls for transparency had quieted down, as one participant characterized her view, so why poke the hornet’s nest? Another senior official expressing caution about the plan was Kathryn Ruemmler, the White House counsel. She cautioned that the disclosures could weaken the government’s stance in pending litigation. The New York Times has filed a lawsuit against the Obama administration under the Freedom of Information Act seeking the release of the Justice Department legal opinion in the Awlaki case. [my emphasis]

But having now updated my timeline of the over 14 requests members of Congress have made for the targeted killing memos, she seems to lump Congress with the ACLU and NYT.

More troubling, though: it appears the White House stalled its response to Congress for almost nine months simply to gain an advantage in the ACLU FOIA lawsuits.

Here are the relevant dates: Read more →