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The Timing of the White Paper

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I’m going to do a longer timeline on targeted killing authorizations, but first I wanted to address a more narrow issue: When did DOJ give the (as received) undated white paper released by NBC to Congress?

Michael Isikoff says Congress got the memo in June, 2012.

It was provided to members of the Senate Intelligence and Judiciary committees in June by administration officials on the condition that it be kept confidential and  not discussed publicly.

That actually contradicts the implication made by Pat Leahy in August of last year, who said it was shared as part of his initial request for the DOJ memos.

Leahy: The five minutes is expired, but I would note that each of the Senators has been provided with a white paper we received back as an initial part of the request I made of this administration.

On November 8, 2011, Pat Leahy complained about the Administration’s previous refusal to turn over the memos. That would put his initial request some time in 2011. He renewed that request on March 8 and June 12, 2012. So if the memo dates to June 2012, it would date to one of Leahy’s subsequent attempts to pry it out of the Administration.

But I think Isikoff’s reporting is likely correct here (and not just because Leahy has wavered between covering for the Administration and trying to get the memos from the start).

If DOJ gave Congress the memo in June 2012, then Ron Wyden would have gotten it between the time he wrote his  February 2012 letter demanding the memos and the time he wrote his January 2013 letter. Read more →

DOJ Tells Judges to Go Fuck Themselves

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I wonder how Article III is going to feel about this claim, in DOJ’s white paper on targeted killing?

Finally, the Department notes that under the circumstances described in this paper, there exists no appropriate judicial forum to evaluate these constitutional considerations. It is well established that “[m]atters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention,” Haig v. Agee, 453 US 280, 292 (1981), because such matters “frequently turn on standards that defy the judicial application,” or “involve the exercise of a discretion demonstrably committed to the executive or legislature,” Baker v. Carr, 369 US 186, 211 (1962). Were a court to intervene here, it might be required inappropriately to issue an ex ante commend to the President and officials responsible for operations with respect to their specific tactical judgment to mount a potential lethal operation against a senior operational leader of al-Qa’ida or its associated forces. And judicial enforcement of such orders would require the Court to supervise inherently predictive judgments by the President and his national security advisors as to when and how to use force against a member of an enemy force against which Congress has authorized the use of force.

Using this logic, the government can just define all of us imminent threats, and be able to execute us without any review by a court.

And remember — while the document pretends that Congress has been involved here, it refuses (still!) to show Congress the real authorization it used. So it is basically saying Fuck You to courts in the white paper, and Fuck you to Congress by releasing it.

I can see now why Ron Wyden included this in his letter to Obama today:

In your speech at the National Archives in May 2009, you stated that “Whenever we cannot release certain information to the public for valid national security reasons, I will insist that there is oversight of my actions — by Congress or by the courts.” We applaud this principled commitment to the Constitutional system of checks and balances, and hope that you will help us obtain the documents that we need to conduct the oversight that you have called for. The executive branch’s cooperation on this matter will help avoid an unnecessary confrontation that could affect the Senate’s consideration of nominees for national security positions.

Obama once believed — or purported to believe — in courts and Congress. Apparently not anymore.

Will Senators Filibuster Chuck Hagel’s Nomination to Get the Targeted Killing Memo?

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Eleven Senators just sent President Obama a letter asking nicely, for at least the 12th time, the targeted killing memo. They remind him of his promise of transparency and oversight.

In your speech at the National Archives in May 2009, you stated that “Whenever we cannot release certain information to the public for valid national security reasons, I will insist that there is oversight of my actions — by Congress or by the courts.” We applaud this principled commitment to the Constitutional system of checks and balances, and hope that you will help us obtain the documents that we need to conduct the oversight that you have called for. The executive branch’s cooperation on this matter will help avoid an unnecessary confrontation that could affect the Senate’s consideration of nominees for national security positions. 

And asks — yet again — for “any and all memos.”

Specifically, we ask that you direct the Justice Department to provide Congress, specifically the Judiciary and Intelligence Committees, with any and all legal opinions that lay out the executive branch’s official understanding of the President’s authority to deliberately kill American citizens.

But perhaps the most important part of this letter is that it refers not just to John Brennan’s nomination, but to “senior national security positions.”

As the Senate considers a number of nominees for senior national security positions, we ask that you ensure that Congress is provided with the secret legal opinions outlining your authority to authorize the killing of Americans in the course of counterterrorism operations.

There are just 11 Senators on this list:

  • Ron Wyden (D-Ore.)
  • Mike Lee (R-Utah)
  • Mark Udall (D-Colo.)
  • Chuck Grassley (R-Iowa)
  • Jeff Merkley (D-Ore.)
  • Susan Collins (R-Maine)
  • Dick Durbin (Ill.)
  • Patrick Leahy (D-Vt.)
  • Tom Udall (D-N.M.)
  • Mark Begich (D-Alaska)
  • Al Franken (D- Minn.)

And just three of these — Wyden, Mark Udall, and Collins — are on the Intelligence Committee. That’s not enough to block Brennan’s confirmation.

But it may be enough to block Hagel’s confirmation, given all the other Republicans who are opposing him.

Mr. Moral Rectitude’s Sleazy Payment

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According to Defense News, John Brennan was paid roughly $2,090 a day while working for The Analysis Corporation in 2008. He was paid roughly $8,496 for each of the 20 days he worked in 2009 before he became Obama’s counterterrorism czar.

A review of Brennan’s financial disclosure reports indicates that in 2009, TAC paid him a total of $169,923 in salary and bonus, which has not been previously reported. The financial disclosure reports, submitted as required of all White House employees, don’t say why he’d receive a bonus if he was leaving the company to join the government, or why he’d received such a large salary if he worked for the company for only 20 days that year.

In November 2008, two months before Brennan joined the Obama administration, TAC announced that the CEO was taking a “leave of absence” from the firm. That is, it is not clear that he was actually on the clock for the transition period before he received that $169,000.

Mind you, this isn’t anything that such illustrious people as Dick Cheney haven’t already done (and in larger figures, too).

Tim Shorrock provided some background on the company in his book.

There were questions about Brennan’s ties to his former company when it was part of the investigation into the failure to connect-the-dots before the UndieBomber attempted to strike the US, though as part of an ethics waver he agreed to recuse himself from anything specifically pertaining to TAC. 

The White House has granted a special ethics waiver to allow President Obama’s top counterterrorism adviser to conduct a review of the intelligence and screening breakdown that preceded the failed Christmas Day bombing attempt on an American passenger plane over Detroit.

[snip]

Mr. Brennan, who was a longtime C.I.A. officer, needed the waiver because for more than three years before his current post he was chief executive of the Analysis Corporation, an intelligence firm that provides services to the government. Norm Eisen, the White House ethics counsel, wrote on the White House Web site on Wednesday that Mr. Brennan’s past ties to the company, were outweighed by his knowledge of the nation’s intelligence system.

And, of course, Brennan’s the guy who has sacrificed US privacy to get more data in databases.

The umbrella company that has absorbed TAC continues to get lots of contracts doing intelligence analysis.

When All You Have Is a CyberHammer, You Have to Expect to Go to War against Nails

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There are two things about this NYT article describing Obama’s new cyberwar policy that deserve note.

A secret legal review on the use of America’s growing arsenal of cyberweapons has concluded that President Obama has the broad power to order a pre-emptive strike if the United States detects credible evidence of a major digital attack looming from abroad, according to officials involved in the review.

[snip]

The rules will be highly classified, just as those governing drone strikes have been closely held.

First, according to the WaPo, the government has conducted a search of any and all government officials who have had contact with the lead author of the story, David Sanger.

Investigators, they said, have conducted extensive analysis of the e-mail accounts and phone records of current and former government officials in a search for links to journalists.

Frankly, I think the WaPo is naively ignoring the real possibility, given the updates to DOJ’s Domestic Investigations and Operations Guide, that DOJ has accessed Sanger’s email records directly.

Nevertheless, however they’ve gotten that information, the government now has a pretty good idea who speaks to David Sanger. Presumably, folks who talk to Sanger — particularly those privy to secret workings of the White House — are cognizant of this fact.

From that I assume it’s likely — though by no means certain — that the Administration is not that unhappy about having an article boasting about its aggressive cyberwar stance, even while noting that the details of it will be remain legally classified.

Meanwhile, I’m struck by this claim.

Mr. Obama is known to have approved the use of cyberweapons only once, early in his presidency, when he ordered an escalating series of cyberattacks against Iran’s nuclear enrichment facilities.

Sure, there’s only been the one attack (or rather the serial set of attacks) on Iran.

But I’m struck — particularly in the wake of DOJ’s filing making it clear they’re investigating WikiLeaks as a spy, while refusing to tell us what laws it is using to conduct that investigation — that there has been a rather notable cyberattack whose author we don’t know: the DDOS attacks on WikiLeaks as it first started to release the WikiLeaks cables, and then again last summer (a group called AntiLeaks claimed credit for the second one).

As Jack Goldsmith and Thomas Rid both point out, the Administration appears to be badly fumbling cyber defense (largely because the private sector doesn’t want to play along and the Administration isn’t prepared to make them), but they are very aggressively pursuing cyberoffense. Perhaps, as Goldsmith suggests, this leak to the journalist whose contacts are being monitored is intended to deter attacks on the US (though I’m not sure how a story in a newspaper that the Chinese have hacked is going to scare the Chinese from doing what they have been doing for years).

But if the US is so intent on bragging about its offensive capability, isn’t it time we learned the scope of that offensive capability? Shouldn’t we finally know whether the government took down a publisher’s website?

Our Illegal Drone Program

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Here’s Daniel Klaidman’s idea of a rule book that represents restraint.

And then there is “the playbook”—an ambitious attempt to create explicit rules and procedures for when lethal force is justified. The initiative began more than a year ago. It is highly detailed and lays out, for example, criteria for the so-called disposition-matrix, which prescribes whether terrorist suspects should be killed, captured, or dealt with in some other way. Embedded in the document are the legal authorizations for pursuing the enemy away from conventional battlefields in places like Yemen, Somalia, and now Mali—a crucial check on a war without defined boundaries. The playbook also toughens the standard for when a targeted killing is justified. Simply being a threat to “United States interests,” for example, no longer meets the threshold. That standard is too elastic, according to officials who have been involved in writing the new rules. And the document makes finely grained distinctions about where one must be in the chain of command of a terrorist organization to be targetable. A driver or cook, who can be easily replaced, may not represent the kind of unique threat that would warrant lethal action. A bomb maker, on the other hand, would.

Mind you, as described, the Rule Book does represent an improvement. I’ve noted that the disposition matrix may or may not be a good thing; while legal process is better than drone killing, we may still have the trigger for that set too low.

But the real news in this passage seems to be both what was permitted and what still is.

Klaidman reveals, for example, that the standard for killing has been nothing more than threatening US interests, which may or may not even equate to a physical threat. We’re killing people because they represent a threat to our interests? Isn’t that cheating?

He strongly suggests we’ve been targeting all manner of alleged terrorists, including cooks and drivers. And we’ve changed that practice not because of the dubious legality of targeting non-combatants, but because cooks are easily replaced.

But even still the drone program seems to be illegal. Consider this passage.

Embedded in the document are the legal authorizations for pursuing the enemy away from conventional battlefields in places like Yemen, Somalia, and now Mali—a crucial check on a war without defined boundaries.

As Jack Goldsmith has recently noted, AQIM is not covered in the AUMF.

This framework is becoming obsolete because some newly threatening Islamist terrorist groups do not plausibly fall within the AUMF.  Many of these groups—such as al Qaeda in the Islamic Maghreb (in Northern Africa) or the al-Nusra Front (a rebel group in Syria associated with al Qaeda in Iraq)—have no direct links to al Qaeda and unclear ones to al Qaeda affiliates.  Regardless of where the precise outer boundaries of the AUMF lie, there is a growing gap between the threats posed by Islamist terrorist groups and the president’s legal authority to meet the threats under the AUMF.

So if we’re targeting people in Mali as part of a war, whose authorization are we using for that war?

And as Klaidman notes and was reported earlier by the WaPo, these rules will not even go into place universally. We’ve built in an exception for Pakistan (which, unless the Senate does something totally unexpected, means for John Brennan at CIA). Which means presumably these things — targeting cooks for being a threat to our interests — will continue in Pakistan at least until we withdraw from Afghanistan.

Brennan Approved Signature Strikes in Yemen because of “Personal Appeals”

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Daniel Klaidman has what must be intended as a defense of John Brennan. Given that it (once again) fails to mention Abdulrahman al-Awlaki,  accepts Brennan’s claims to have opposed torture on its face, and makes no mention of Brennan’s assault on Americans’ privacy, it fails to make the case it tries to, that Brennan would rein in the war on terror at CIA.

Nevertheless, I find it fascinating for the way in which Klaidman updates his earlier work to explain why Brennan approved signature strikes in Yemen.

First, Klaidman explains that Brennan’s deep knowledge of Yemen stems from his years as CIA Station Chief … in Saudi Arabia.

Nowhere were the subtleties in Brennan’s worldview more obvious than in Yemen, a country he had long personal ties to from his days as CIA station chief in Saudi Arabia.

That’s a really funny claim. After all, while many of the tribes are the same and the Saudis have really close ties to the Yemenis, the description makes it clear (as if it weren’t already) that Brennan sees and understands Yemen through a Saudi lens.

As Gregory Johnsen tweeted,

If you rely on the Saudis to explain Yemen to you, then you are asking to be deceived.

Which is what we have demonstrably been in Yemen, since Brennan took over.

So when Brennan says things like,

Contrary to the conventional wisdom, we see little evidence that these actions are generating widespread anti-American sentiment or recruits of AQAP.

We should remember, then, that even according to Brennan’s own description (as parroted by Klaidman) he understands Yemen from a Saudi perspective.

Consider what that means for Klaidman’s admission that Brennan reversed his celebrated opposition to signature strikes in Yemen because of personal ties. Ties, to the Yemenis, Klaidman says.

The military wanted to conduct broad-based signature strikes in the country. But Obama was worried about getting embroiled in a domestic conflict—and he and Brennan said no. Then, in the spring of 2011, with bin Laden dead, the military again proposed massive signature strikes in Yemen, thinking that the time was right to deliver a knockout blow to al Qaeda and its most dangerous affiliate, AQAP.

But Obama and Brennan, fearful of getting sucked into a wider war, remained opposed. Brennan employed his best bureaucratic weapon to brush back the generals: Obama. He told the president that it was time to make an “unequivocal statement,” which would go out through the “interagency,” that he was opposed to such signature strikes. Soon thereafter, at one of his weekly counterterrorism briefings—the so-called Terror Tuesday meetings—Yemen was on the agenda. When one of the president’s military advisers made a reference to the ongoing “campaign” in Yemen, Obama, according to two participants in the meeting, abruptly cut him off. There’s no “campaign” in Yemen, he said sharply, reminding the general that the goal there was to protect the homeland by going after members of al Qaeda, not to get involved in a civil war.

[snip]

Then, in the spring of 2012, with Yemen falling into chaos and AQAP gaining more and more territory, Yemeni officials—with whom Brennan had close ties going back to his days as a CIA station chief in the region—beseeched Brennan to help. The Yemeni Army was collapsing under the brutal assault; soldiers were being crucified and beheaded by the jihadis. By April 2012, Brennan and Obama finally relented and permitted signature strikes in the country.

Those who defend this decision point out that it would have been a catastrophe for U.S. security if significant parts of the country had fallen to AQAP, which was intent on attacking the American homeland. Yet some inside the administration were critical. Says one senior administration official of Brennan’s history in Yemen: “He responded to the personal appeals because he has a long history with these guys.” In other words: Brennan’s lawyerly preference for rules and constraints may sometimes have taken a backseat to emotion.

On at least two occasions, Obama and Brennan agreed that getting involved in Yemen would amount to taking sides in a civil war. And then, when Yemenis (was it really just Yemenis?) made a personal appeal to Brennan, he reversed course, and agreed to get involved in a civil war.

I guess all those claims — which were obviously false on their face — that we only use signature strikes because of a risk to American interests are no longer operative?

Which makes it all the more curious that Klaidman makes no mention of the Saudi created bomb plot that directly preceded the decision to use signature strikes. It seems rather pertinent, no?