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Why Is State Waiting to Release the Saudi Technical Cooperation Agreement?

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As I noted in this post, one explicit purpose of Saudi Minister of Interior Mohammed bin Nayef’s trip to the US from January 14 to 16 was to renew the Technical Cooperation Agreement first signed on May 16, 2008 by Condi Rice and MbN’s father when he was Interior Minister. MbN and Hillary Clinton signed the renewal on January 16.

Particularly given that the prior TCA is posted on State’s website and this picture was out there (not to mention the joint statement with DHS, addressing a trusted traveler program that may end up being controversial), I was surprised that the renewal was not. I checked with State and–after a day of checking–learned that the renewed agreement “hasn’t been posted yet.”

Yes, I do plan to keep trying, both through persistence or FOIA.

But I am interested in why State wouldn’t post it right away. Perhaps it’s just internal bureaucracy, but here are thoughts about some other possibilities.

State could be hiding changes in the funding structure

First, there is a change we know has taken place since the TCA was first signed.

The TCA is basically a cooperation agreement to get direct help from us–including training and toys–to protect Saudi infrastructure and borders, particularly its oil infrastructure. As part of it, the Saudis are developing a 35,000 person force, including a paramilitary force, with US training. But unlike our other defense agreements with the Saudis (and like the Joint Commission for Economic Cooperation it was explicitly modeled on, which had been in place from the 1970s until 1999), this one includes a special bank account to fund it all.

The Kingdom of Saudi Arabia will establish a dollar disbursement account in the United States Treasury. Any funds required by the United States for agreed-upon projects will be deposited by the Kingdom of Saudi Arabia in the account in such amounts and at such times as are mutually agreed, and the United States may draw on this account in the amount so agreed. If upon termination of this agreement there are funds remaining in the special account after all expenses have been paid, such funds will be refunded to the Kingdom of Saudi Arabia.

That account could fund contractors and toys. But at least at first, it could not fund US government employees.

The United States will pay for all costs of U.S. Government direct-hire employees assigned to the Kingdom of Saudi Arabia to perform services under this Agreement.

Less than a year into the agreement, that changed, with MbN agreeing the Saudis would also pay for US personnel salaries.

MbN was grateful for USG efforts and assured us full funding would soon follow the signing of these documents, and reconfirmed the SAG’s commitment to pay all OPM-MOI costs. He also agreed to fund all USG employee costs, concurring with any necessary TCA changes to allow such payments, commenting that “hopefully the lawyers will not cause us any problems.”

And already by the time MbN made that agreement, the US was installing military and State employees to oversee this effort (see more on these personnel here).

Now, I’m not entirely sure how innovative it is that the Saudis are funding US hires to defend their oil infrastructure. But MbN’s quip about the lawyers suggests some sensitivity on this front. Read more →

James Jones’ Targeted Killing Memo

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In recent weeks, both Colleen McMahon and Ron Wyden have been hinting that there is more than one targeted killing memo (indeed, Wyden has been suggesting that for almost a year). Both also suggest the Administration may be relying on the President’s Article II authority–and not the Authorization to Use Military Force–in its drone program (or at least its strike(s) on Anwar al-Awlaki).

Those hints made me return to this long passage–from the NYT’s Angler 2.0 story pitching John Brennan’s shiny object–in more detail.

The attempted bombing of an airliner a few months later, on Dec. 25, stiffened the president’s resolve, aides say. It was the culmination of a series of plots, including the killing of 13 people at Fort Hood, Tex. by an Army psychiatrist who had embraced radical Islam.

Mr. Obama is a good poker player, but he has a tell when he is angry. His questions become rapid-fire, said his attorney general, Mr. Holder. “He’ll inject the phrase, ‘I just want to make sure you understand that.’ “ And it was clear to everyone, Mr. Holder said, that he was simmering about how a 23-year-old bomber had penetrated billions of dollars worth of American security measures.

When a few officials tentatively offered a defense, noting that the attack had failed because the terrorists were forced to rely on a novice bomber and an untested formula because of stepped-up airport security, Mr. Obama cut them short.

“Well, he could have gotten it right and we’d all be sitting here with an airplane that blew up and killed over a hundred people,” he said, according to a participant. He asked them to use the close call to imagine in detail the consequences if the bomb had detonated. In characteristic fashion, he went around the room, asking each official to explain what had gone wrong and what needed to be done about it.

“After that, as president, it seemed like he felt in his gut the threat to the United States,” said Michael E. Leiter, then director of the National Counterterrorism Center. “Even John Brennan, someone who was already a hardened veteran of counterterrorism, tightened the straps on his rucksack after that.”

David Axelrod, the president’s closest political adviser, began showing up at the “Terror Tuesday” meetings, his unspeaking presence a visible reminder of what everyone understood: a successful attack would overwhelm the president’s other aspirations and achievements.

In the most dramatic possible way, the Fort Hood shootings in November and the attempted Christmas Day bombing had shown the new danger from Yemen. Mr. Obama, who had rejected the Bush-era concept of a global war on terrorism and had promised to narrow the American focus to Al Qaeda’s core, suddenly found himself directing strikes in another complicated Muslim country.

The very first strike under his watch in Yemen, on Dec. 17, 2009, offered a stark example of the difficulties of operating in what General Jones described as an “embryonic theater that we weren’t really familiar with.”

It killed not only its intended target, but also two neighboring families, and left behind a trail of cluster bombs that subsequently killed more innocents. It was hardly the kind of precise operation that Mr. Obama favored. Videos of children’s bodies and angry tribesmen holding up American missile parts flooded You Tube, fueling a ferocious backlash that Yemeni officials said bolstered Al Qaeda.

The sloppy strike shook Mr. Obama and Mr. Brennan, officials said, and once again they tried to impose some discipline.

In Pakistan, Mr. Obama had approved not only “personality” strikes aimed at named, high-value terrorists, but “signature” strikes that targeted training camps and suspicious compounds in areas controlled by militants.

But some State Department officials have complained to the White House that the criteria used by the C.I.A. for identifying a terrorist “signature” were too lax. The joke was that when the C.I.A. sees “three guys doing jumping jacks,” the agency thinks it is a terrorist training camp, said one senior official. Men loading a truck with fertilizer could be bombmakers — but they might also be farmers, skeptics argued.

Now, in the wake of the bad first strike in Yemen, Mr. Obama overruled military and intelligence commanders who were pushing to use signature strikes there as well.

“We are not going to war with Yemen,” he admonished in one meeting, according to participants.

His guidance was formalized in a memo by General Jones, who called it a “governor, if you will, on the throttle,” intended to remind everyone that “one should not assume that it’s just O.K. to do these things because we spot a bad guy somewhere in the world.”

The passage purports to explain how the Administration imposed limits on the drone program in response to the al-Majala cruise missile strike (remember, the al-Majala attack was launched from a ship, not a drone). The passage is a misleading mess–which I’ll describe at more length below.

Just as interesting, though, it leads up to the description of a James Jones memo laying out limits to–at a minimum–our strikes in Yemen. Jones’ memo may well be one of the things responsive to–at least–ACLU’s targeted killing FOIA which the Administration is so squeamish about releasing.

And the sloppiness of this passage makes that all the more interesting. The chronology it tells looks like this:

December 25, 2009 UndieBomb attack

November 5, 2009 Fort Hood attack

[unknown date] Axelrod at Terror Tuesdays

December 17, 2009 al-Majala attack

[unknown date] James Jones memo

Described in this way, the passage suggests that we identified a new risk in Yemen–a claim emphasized by this passage:

the Fort Hood shootings in November and the attempted Christmas Day bombing had shown the new danger from Yemen

In response, the passage suggests misleadingly, we launched the attack against al-Majala, which was a disaster. And in response Obama and the Moral Rectitude Drone Assassination Czar imposed some discipline.

The sloppy strike shook Mr. Obama and Mr. Brennan, officials said, and once again they tried to impose some discipline

But of course, that can’t be how it happened. While, within days of the Nidal Hasan attack, Pete Hoekstra had rushed to the press to expose Hasan’s communications with Anwar al-Awlaki, we also know that nothing in those communications showed Awlaki directed Hasan’s attack. And the December 25 attack surely can’t be the justification for the December 17 attack on al-Majala.

Moreover, the NYT conveniently doesn’t mention that the December 17 attack on al-Majala was followed by a December 24 attack on Awlaki and Nasir al-Wuhayshi. That allows them to avoid mentioning that on the day we first targeted Awlaki, the intelligence community believed him not to be operational. Which, in turn, also allows them to leave unclear whether the James Jones memo–written in response to a strike on December 17–was in operation yet when the US first tried to kill Awlaki on December 24.

This sloppy passage about “the sloppy strike” seems to cover up some other really key details. Read more →

The 2011 DIOG Permits Using NSLs to Get Journalist Contacts

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In what may be one of those stories telegraphing investigative details between people being investigated, the WaPo updates the StuxNet investigation.

Prosecutors are pursuing “everybody — at pretty high levels, too,” said one person familiar with the investigation. “There are many people who’ve been contacted from different agencies.”

The FBI and prosecutors have interviewed several current and former senior government officials in connection with the disclosures, sometimes confronting them with evidence of contact with journalists, according to people familiar with the probe.

Here’s the detail everyone is focusing on (and I’ve seen similar claims on reporting of other leak investigations).

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.

[snip]

Former prosecutors said these investigations typically begin by compiling a list of people with access to the classified information. When government officials attend classified briefings or examine classified documents in secure facilities, they must sign a log, and these records can provide an initial road map for investigators.

Former prosecutors said investigators run sophisticated software to identify names, key words and phrases embedded in e-mails and other communications, including text messages, which could lead them to suspects.

The FBI also looks at officials’ phone records — who called whom, when, for how long. Once they have evidence of contact between officials and a particular journalist, investigators can seek a warrant to examine private e-mail accounts and phone records, including text messages, former prosecutors said.

Prosecutors and the FBI can examine government e-mail accounts and government-issued devices, including cellphones, without a warrant. They can also look at private e-mail accounts without a warrant if those accounts were accessed on government computers. [my emphasis]

This description may well be how the government is conducting the StuxNet (and the UndieBomb 2.0 investigation, which the article also describes).

But if WaPo is relying solely on former prosecutors, this description may be totally outdated.

After all–as I’ve reported repeatedly in the past–the 2011 update of FBI’s Domestic Investigations and Operations Guide permits using National Security Letters to get journalists’ contacts in National Security investigations (as all of these would be).

A heavily-redacted section (PDF 166) suggests that in investigations with a national security nexus (so international terrorism or espionage, as many leak cases have been treated) DOJ need not comply with existing restrictions requiring Attorney General approval before getting the phone records of a journalist. The reason? Because NSLs aren’t subpoenas, and that restriction only applies to subpoenas.

Department of Justice policy with regard to the issuances of subpoenas for telephone toll records of members of the news media is found at 28 C.F.R. § 50.10. The regulation concerns only grand jury subpoenas, not National Security Letters (NSLs) or administrative subpoenas. (The regulation requires Attorney General approval prior to the issuance of a grand jury subpoena for telephone toll records of a member of the news media, and when such a subpoena is issued, notice must be given to the news media either before or soon after such records are obtained.) The following approval requirements and specific procedures apply for the issuance of an NSL for telephone toll records of members of the news media or news organizations. [my emphasis]

So DOJ can use NSLs–with no court oversight–to get journalists’ call (and email) records rather than actually getting a subpoena.

The section includes four different approval requirement scenarios for issuing such NSLs, almost all of which are redacted. Though one only partly redacted passage makes it clear there are some circumstances where the approval process is the same as for anyone else DOJ wants to get an NSL on:

If the NSL is seeking telephone toll records of an individual who is a member of the news media or news organization [2 lines redacted] there are no additional approval requirements other than those set out in DIOG Section 18.6.6.1.3 [half line redacted]

And the section on NSL use (see PDF 100) makes it clear that a long list of people can approve such NSLs:

  • Deputy Director
  • Executive Assistant Director
  • Associate EAD for the National Security Branch
  • Assistant Directors and all DADs for CT/CD/Cyber
  • General Counsel
  • Deputy General Counsel for the National Security Law Branch
  • Assistant Directors in Charge in NY, Washington Field Office, and LA
  • All Special Agents in Charge

In other words, while DOJ does seem to offer members of the news media–which is itself a somewhat limited group–some protection from subpoena, it also seems to include loopholes for precisely the kinds of cases, like leaks, where source protection is so important.

In other words, this story about starting with the sign-in logs of people who’ve been briefed on a particular topic, then gather call records of those officials?

That may be what happened.

Or it may work the other way, with the government identifying a story it doesn’t like and then using call records to trace back from there to the potential sources of the story.

This curious phrasing would support the latter scenario.

[DC US Attorney Ronald] Machen is examining a leak to the Associated Press that a double agent inside al-Qaeda’s affiliate in Yemen allowed the United States and Saudi Arabia to disrupt the plot to bomb an airliner using explosives and a detonation system that could evade airport security checks.

The AP, after all, didn’t report that UndieBomb 2.0 was actually a sting set up by a Saudi-run infiltrator (and their reporting, at least, suggested they didn’t know UndieBomber 2.0 was an informant). John Brennan and Richard Clarke told that story. And yet WaPo describes the investigation as focusing on the AP part of the story, not the more damning part about an infiltrator.

If and when John Brennan goes unpunished for revealing the most damning part of this story, it’ll become increasingly clear: not only is the government starting with the journalists’ phone and email contacts, but it is doing so with journalists it might otherwise want to silence.

Mohammed bin Nayef’s Debutante Ball

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This Marc Lynch post on America’s Saudi problem is worth reading for its discussion of how our uncritical support for Saudi Arabia undermines our efforts in the Middle East.

America’s alliance with Saudi Arabia remains the greatest contradiction inherent in its attempt to align itself with popular aspirations for change in the region. A Saudi exception certainly makes things such as coordinating the containment of Iran easier for diplomats on a daily basis. But it sustains and perpetuates a regional order which over the long term is costly to sustain and clearly at odds with American normative preferences.

It’s also notable because it remains one of the few commentaries I’ve seen to mention Mohammed bin Nayef’s trip to DC from 10 days ago.

For instance, the symbolism of President Obama’s unusual meeting with new Saudi Interior Minister Mohammed bin Nayef, which looked to many Saudis like an endorsement of someone they identify with the most repressive and anti-democratic trends in the kingdom, was unfortunate.

As this release from the Saudi embassy lays out in detail, MbN was in DC from January 14 through 16. There were a few explicit orders of business. Hillary Clinton and MbN renewed the Technical Cooperation Agreement (which would have expired in May) providing US support to protect Saudi critical infrastructure, especially its oil facilities. MbN signed Memoranda of Understanding with Janet Napolitano on cybersecurity and a trusted traveler program. As Lynch noted, he was granted a private meeting with President Obama, which resulted in the following readout.

Today, President Obama met with Saudi Arabia’s Minister of Interior, Prince Mohammed bin Nayef bin Abdulaziz Al-Saud, in the Oval Office. They affirmed the strong partnership between the United States and Saudi Arabia, and discussed security and regional issues of mutual interest. The President congratulated Prince Mohammed bin Nayef on his appointment to Minister of Interior and asked him to convey his best wishes to King Abdullah bin Abd Al-Aziz Al Saud.

But in addition to that, MbN had a series of meetings with almost every major major player in our security establishment.

Prince Mohammad also met with a number of senior U.S. officials throughout his visit, including Secretary of State Hillary Clinton, Attorney General Eric Holder, Secretary of Homeland Security Janet Napolitano, Director of National Intelligence James Robert Clapper, Deputy Secretary of State Bill Burns, Treasury Deputy Secretary Neal Wolin, National Security Advisor Tom Donilon, John Brennan, assistant to the president for homeland security and counterterrorism, Director of the Federal Bureau of Investigation (FBI) Robert Mueller, and Director of the National Security Agency General Keith B. Alexander.

This leaves out only DOD and CIA (though even before he was nominated to be CIA Director, we could assume former Riyadh station chief John Brennan heavily influenced Saudi ties to CIA).

Given such a high profile visit, I have been expecting someone to discuss what merited the full coming out party (aside from MbN’s November appointment to be Minister of Interior, but MbN has been serving as our counterterrorism liaison for years). But I’ve seen little reporting to explain the trip.

And there are a few more reasons why I would really like to know what MbN discussed with almost the entire national security establishment.

There’s Turki al-Faisal’s call for “sophisticated, high-level weapons” to be sent to Syria (not to mention the recent release of a purported April 2012 Saudi directive releasing Saudi death row prisoners to fight jihad against Bashar al-Assad).

Then there’s the escalation of drone strikes in Yemen since MbN’s visit, attacking targets that have no apparent tie to America’s stated targeting criteria there–a threat to American interests. Yemen-based journalist Adam Baron has observed that the drone strikes–as opposed to overflights–have been unusually concentrated in northern provinces.

interestingly, drone uptick has been concentrated in northern provinces: 2013 has yet to see one reported in shabwa/abyan/hadramawt.

Add in a bit of confusion over the reported scope of the new drone rulebook. The WaPo’s report describes that only Pakistan is exempted from the rulebook, yet some have suggested that the CIA’s drone program in Yemen, too will be exempted.

Then there’s the role that MbN has played in the past. In addition to being the key player on the roll-out of the TCA (more on that below), he created Saudi Arabia’s deradicalization program, which this March 2009 WikiLeaks cable ties closely to the TCA renewed on the trip. At least two former Gitmo detainees who went through the program ended up serving as infiltrators into AQAP. This Saudi-US Relations Information Service release actually points to the toner cartridge plot revealed by deradicalization graduate Jabir al-Fayfi along with the recent UndieBomb 2.0 plot–which was created by a third infiltrator directed by the Saudis–in its coverage of MbN’s visit, suggesting he may have had a role there, too. Should we expect similar operations in the near future? Note, while he is understood to have been a genuine recidivist, another graduate of Gitmo and then MbN’s deradicalization program, AQAP’s number 2, Said al-Shirhi, was reported on Thursday to have died from wounds suffered in a November counterterrorism strike.

All this takes place against the background of unrest in Saudi Arabia (which Lynch describes at length). While Lynch disagrees, Bruce Reidel has been warning–and hawking a book–about a possible revolution in Saudi Arabia. To the extent the unrest represents a serious threat, it would put MbN, as Minister of the Interior, at the forefront. Interestingly, as part of the TCA renewed on this trip and led by MbN, the US helped Saudi Arabia develop a 35,000 person strong Facilities Security Force, which includes a paramilitary function, which would be crucial in the Eastern Provinces experiencing the most real unrest (the same day MbN came to the US, King Abdullah put MbN’s older brother in charge of the Eastern Province). When you couple that with the cybersecurity cooperation MbN discussed with Janet Napolitano–remember the fear-mongering around the technically simple but executed by insiders ARAMCO hack–and it suggests the US may be more worried about the Eastern Province than Lynch.

So maybe MbN’s visit represents real concerns about unrest in the Kingdom (which would play into our pressure on Iran), not least because the Saudis blame Iran for the unrest among its Shia population. Or maybe MbN’s visit represents a further expansion of our already significant counterterrorism and other covert operations.

I sure would like to know, though.

Lisa Monaco Moves On without Fulfilling Promise to Reveal FISA Court Opinions

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In response to Chuck Grassley’s question whether the government has struck the right balance between national security and civil liberties leading up to her confirmation as Assistant Attorney General for National Security, Lisa Monaco claimed the right balance had indeed been found.

Do you believe that an appropriate balance has been struck between national security concerns and civil liberties?

Agents, analysts and prosecutors who work every day to protect us from national security threats do so pursuant to the authorities Congress has given them under the Constitution. I believe these authorities reflect an effort to strike a balance between the imperative of protecting national security interests of the United States on the one hand and the importance of doing so consistent with the fundamental rights guaranteed under the Constitution. Through carefully crafted authorities, compliance efforts within the Executive Branch and robust Congressional oversight of those compliance efforts, I believe we have been able to strike the right balance over time.  As the threat continues to evolve, and technology develops that better enables us to detect and disrupt threats while at the same time providing new tactics and capabilities to those who would do us harm, we must be constantly vigilant in our efforts to maintain that balance.

In her other answers, she emphasized the importance of having “relevance” standard access to call data and other records so as to provide the probable cause to investigate people.

As noted above, NSLs (some of which are issued under ECPA) form the building blocks of national security investigations under a relevance standard. This is vital to the ability of national security investigators to obtain information that forms the basis for probable cause and to further national security investigations.

In utterly related news, Jeff Merkley recalled last month that during her confirmation process in 2011, Monaco supported the idea of releasing FISA Court opinions that–it appears–would reveal how these “relevant to” laws have been used to substantiate probable cause.

Congress never intended the intelligence community to have a huge database to sift through without first getting a regular probable cause warrant, but because we do not have the details of exactly how this proceeds and we cannot debate in a public forum those details, then we are stuck with wrestling with the fact that we need to have the sorts of protections and efforts to close loopholes that Senator Wyden has put forward.

What we do know is that this past summer, the Director of National Intelligence said in a public forum that on at least one occasion the FISA Court has ruled that a data collection carried out by the government did violate the fourth amendment. We also know that the FISA Court has ruled that the Federal Government has circumvented the spirit of the law as well as the letter of the law. But too much else of what we should know about this law remains secret. In fact, we have extremely few details about how the courts have interpreted the statutes that have been declassified and released to the public.

[snip]

In 2010, due to concerns that were raised by a number of Senators about the problem of classified FISA Court opinions, the Department of Justice and the Office of the Director of National Intelligence said they would establish a process to declassify opinions of the FISA Court that contained important rulings of law. In 2011, prior to her confirmation hearing, Lisa Monaco, who is our Assistant Attorney General for National Security, expressed support for declassifying FISA opinions that include “significant instructions or interpretations of FISA.”

Yet here were are, two years later, and Lisa Monaco is moving on to replace John Brennan at the White House. Yet we still haven’t seen the memos that describe how the government uses massive databases of information collected using this “relevance” standard to then access the private communications of Americans (which are probably the same databases).

Mind you, Monaco is not the person most responsible for refusing to declassify documents that describe the shreds of the Fourth Amendment in this country–she’s not the Original Classification Authority.

Nevertheless, we’ve got another fan of massive data mining moving into an oversight free position in the White House without having fulfilled her commitment to tell the American people what they’re doing with that data mining.

Jack Goldsmith, Open Source OLC Lawyer, to Obama: You’re Breaking the Law

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Eleven days ago, Senate Intelligence Committee member Ron Wyden sent a publicly released letter to John Brennan making two things clear:

  • The Administration has refused to tell grunt (that is, non-Gang of Four) members of the Senate Intelligence Committee whether its targeted killing program–extending even to the killing of US citizens–is authorized under Article II or AUMF power.
  • The Administration has refused to tell grunt members of the Senate Intelligence Committee which countries it uses “lethal counterterrorism authorities” in.

Nine days later, Jack Goldsmith, a man best known for going to some length to force a President to have credible legal justifications for his counterterrorism programs, wrote this column, offering his advice about “What to do about growing extra-AUMF threats?”

Mind you, Goldsmith is addressing the legal problem presented by (and explaining his column by pointing to) our fight against AQIM in North Africa and al-Nusra in Syria. He is not pointing–at least not explicitly–to the troubling revelations of Wyden’s letter.

But Goldsmith’s advice is directly relevant to the topics on which the Administration refuses to brief the grunt Senate Intelligence Committee members. Goldsmith warns that Article II power–on which it increasingly appears the Administration is relying–doesn’t extend as far as AUMF authority would.

One possibility is to rely on the president’s independent Article II power, which authorizes the president to use force, in the absence of congressional authorization, in defense of the nation. This approach faces at least three problems.  First, it is a fraught basis for action because the president must act without the overt support of Congress, which can later snipe at his decisions, or worse.  Relatedly, courts are more inclined to uphold presidential action supported by Congress.  Second, the scope of Article II targeting authorities is less certain than the scope of AUMF targeting authorities, and might be narrower. [my emphasis]

And Goldsmith describes the importance of telling Congress–and he’s talking about telling all of Congress, not just grunt Senate Intelligence Committee members–what groups are actually included among legal counterterrorism targets.

Congress could authorize the President to use force against specified terrorist groups in specified countries (or perhaps just against particular groups without specifying nations).  The Wall Street Journal recently reported that some in the administration are considering asking Congress for just such a statute to address Islamist terrorist threats in some North African countries.  This retail approach is in theory the best option because Congress defines the enemy, and because Congress stays in the loop politically and legally and must debate and approve any expansions of the conflict. The problem with the retail approach is that it is unclear whether Congress can or will, on a continuing basis, authorize force quickly or robustly enough to meet the ever-morphing threat.

Third, Congress could set forth general statutory criteria for presidential uses of force against new terrorist threats but require the executive branch, through an administrative process, to identify particular groups that are targetable.  One model here is the State Department’s “Foreign Terrorist Organization” designation process.  There are at least two problems with this approach.  First, it is unclear whether Congress may constitutionally delegate the war power in this fashion.  And second, it lessens congressional involvement and accountability as compared to the second approach. [my emphasis]

Now, let me be clear: Goldsmith never comes out and directly says that the Obama Administration is, currently, breaking the law (and he makes no comment on whether the Administration is violating National Security Act requirements on briefing Congress). And if he did, he’d probably couch it in language about needing the cover of Congressional sanction–more language about Congress “sniping, or worse.” Nevertheless, the clear implication if you take Wyden’s letter in conjunction with Goldsmith’s Office of Legal Counsel-type advice is that the Obama Administration is conducting counterterrorism ops without legal sanction.

But consider what it means that this solidly conservative lawyer is telling the Obama Administration the same thing he had to tell George Bush when the latter relied on John Yoo’s crappy legal advice.

This suggests that the administration will continue to rely as much as possible on an expansive interpretation of the AUMF and on Article II.  We will see if these authorities suffice to meet the threat.

When Jim Comey, in response Goldsmith’s advice, dramatically stood up to Andy Card and Alberto Gonzales’ bullying in a DC Intensive Care Unit, he did so to convey to them that an “expansive interpretation” of Article II power was not good enough (though according to Tom Daschle’s read of the AUMF discussions, Goldsmith replaced John Yoo’s expansive interpretation of Article II authority with an expansive interpretation of the AUMF).

Goldsmith’s advice, writing without the authority he once had as the confirmed OLC head, and lacking the leverage of an expiring wiretapping authorization or the imposing figure of a 6’8″ Acting Attorney General to deliver his message, may not carry the weight it once did.

But he is offering fundamentally the same warning he did 9 years ago.

Update: This post has been updated for clarity.

Ron Wyden: There Is More than One Targeted Killing Memo

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I’ve been comparing Ron Wyden’s February 2012 letter demanding the authorization the Administration uses to kill American citizens with the one he sent John Brennan last week.

It’s striking how similar the letters are, particularly given the Administration’s drone publicity tour last year, between the time Wyden wrote the two letters. Wyden dismisses the value of the publicity tour in his latest letter.

Both you and the Attorney General gave public speeches on this topic early last year, and these speeches were a welcome step in the direction of more transparency and openness, but as I noted at the time, these speeches left a larger number of important questions unanswered. A federal judge recently noted in a Freedom of Information Act case that “no lawyer worth his salt would equate Mr. Holder’s statements with the sort of robust analysis that one finds in a properly constructed legal opinion,” and I assume that Attorney General Holder would agree that this was not his intent.

And in fact, what’s most striking is how similar some key features of the letters are.

For example, the list of questions Wyden appends to his later letter largely repeats and expands on questions Wyden poses in his earlier letter; the only new questions are (these are my summaries):

  • What standard is used to determine whether it is feasible to capture a particular American.
  • What is the rationale for applying Ex Parte Quirin, Hamdi v. Rumsfeld, and Mathews v. Eldridge to the question of when the President may legally kill an American?
  • What impact does Holder’s reference to the use of lethal force “outside the hot battlefield in Afghanistan” have on the applicable legal principles of due process laid out in Hamdi?

And given my contention that Judge Colleen McMahon, in her opinion denying ACLU and NYT’s request for the drone killing opinion, suggested there were multiple opinions, some of them pertaining solely to CIA, and potentially invoked the Gloves Come Off Memorandum of Notification, I’m especially interested in these two details that remained consistent over the two Wyden letters.

First, in both letters Wyden refers to legal opinions–in the plural. Here’s the first letter.

Senior intelligence officials have said publicly that they have the authority to knowingly use lethal force against Americans in the course of counterterrorism operations, and have indicated that there are secret legal opinions that explain the basis for this authority.

[snip]

The Director indicated that he would have liked to be responsive to my request, but he told me that he did not have the authority to provide formal written opinions of the Department of Justice’s Office of Legal Counsel to Congress.

 

So, as you will remember, I called you in April 2011 and asked you to ensure that the secret Justice Department opinions that apparently outline the official interpretation of this lethal authority were provided to Congress.

[snip]

For the executive branch to claim that intelligence agencies have the authority to knowingly kill American citizens (subject to publicly unspecified limitations) while at the same time refusing to provide Congress with any and all legal opinions that delineate the executive branch’s understanding of this authority represents an indefensible assertion of executive prerogative, and I expected better from the Obama Administration.

[snip]

So I request, again, that you provide me with any and all legal opinions regarding the authority of the President, or individual intelligence agencies, to kill Americans in the course of counterterrorism operations. [my emphasis]

And here’s the Brennan letter.

I have asked repeatedly over the past two years to see the secret legal opinions that contain the executive branch’s understanding of the President’s authority to kill American citizens in the course of counterterrorism operations.

Senior intelligence officials have said publicly that they have authority to knowingly use lethal force against Americans in the course of counterterrorism operations, and have indicated that there are secret legal opinions issued by the Justice Department’s Office of Legal Counsel that explain the basis for this authority. I have asked repeatedly to see these opinions, and I have been provided with some relevant information on the topic, but I have yet to see the opinions themselves.

[snip]

As I have said before, this situation is unacceptable. For the executive branch to claim that intelligence agencies have the authority to knowingly kill American citizens but refuse to provide Congress with any and all legal opinions that explain the executive branch’s understanding of this authority represents an alarming and indefensible assertion of executive prerogative. [my emphasis]

I’m especially intrigued by Wyden’s repetition of “any and all,” as if he suspects the Administration might hide the existence of one by revealing the existence of only one more respectable one–a suggestion I myself have made.

And given that Wyden seems certain there are more than one opinions authorizing the President to kill American citizens, I find this question–raised in both letters–very provocative.

Is the legal basis for the intelligence community’s lethal counterterrorism operations the 2001 Congressional Authorization for the Use of Military Force, or the President’s Commander-in-Chief authority?

I assume “President’s Commander-in-Chief authority”–which is the formulation Stephen Preston used in his speech on targeted killing, in contradistinction to the formulation Holder and everyone else used–is shorthand for “authorized under the National Security Act.” That is, I assume “President’s Commander-in-Chief authority” is a polite way to invoke covert operations.

Here you have a member of the Senate Intelligence Committee–the members of which according to the same law that permits the President to unilaterally authorize covert operations must be briefed on those covert operations–revealing complete ignorance as to whether the President’s execution of US citizens was done as a covert op or a legally military one.

Along with a bunch of other troubling things, these details from Wyden’s letters reveal something else. The Obama Administration is playing the same shell game with the authorization to kill American citizens that the Bush Administration played with the illegal wiretap program: waving the AUMF around as purported Congressional sanction all the while insisting that the President could–and appears to have, in this case, given the strong hints in McMahon’s opinion–unilaterally approve such actions without Congressional sanction.

The evidence is building that the Administration believes it can–and did, in the case of Anwar al-Awlaki–simply kill an American based solely on the President’s say-so, under the National Security Act.

Drone Fallout in Pakistan; Falling Drone in Afghanistan

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Marcy has been dutifully noting the alignment of forces behind the Czar of Moral Rectitude, John Brennan, in his nomination to be Director of the CIA, as well as the disclosure over the weekend that although a rule book is being drawn up to govern drone strikes, Brennan will be given a free pass for a year or so to avoid any rules for strikes in Pakistan. Who could object to having no rules in Pakistan?

Oh, well, there are the Pakistanis:

Pakistan has asked the United States to halt its highly controversial drone campaign following reports that US President Barack Obama’s administration was planning to give the Central Intelligence Agency (CIA) a “free hand” to continue its remotely-controlled war in tribal regions.

The issue was raised by Foreign Minister Hina Rabbani Khar in a meeting with Richard Olson, the US ambassador in Islamabad, on Tuesday, a foreign ministry official told The Express Tribune.

Foreign Minister Khar voiced her concern over reports that the CIA would step up its drone campaign in the tribal areas along the border with Afghanistan, said the official, who wished not to be named.

She also urged Ambassador Olson to explain his government’s position on the new “playbook” for targeted killings, which would not apply to Pakistan. This, according to The Washington Post, means the CIA will continue to hunt for al Qaeda and its Taliban cohorts in the tribal regions for a year or so before the new rules become applicable to it.

But the fallout from the drone campaign in Pakistan is not limited to the political arena only. Drone strikes are claimed to be targeted, but targeting relies heavily on intelligence. It appears that those targeted have found and executed a man believed to be a spy assisting in drone targeting:

Militants on Wednesday dumped the mutilated body of a purported Afghan spy accused of collaborating on US drone strikes that killed prominent warlord Mullah Nazir in South Waziristan this month, officials said.

The body of the man identified as Asmatullah Kharoti was found in Wana, the main town of the South Waziristan tribal district, which borders Afghanistan.

Local officials said he had been shot dead and there were wounds on his neck.

Two notes on the body ordered the remains to be left on the roadside until 10:00 am “so that everyone could see the fate of spies”, and the second accusing him of being a spy and being responsible for US drone attacks.

Kharoti was accused of “tagging” militants with an electronic marker:

Two militants from Nazir’s group who spoke to AFP accused Kharoti of giving Nazir a digital Quran, fitted with chips to track his movements, during a meeting at an undisclosed location in Afghanistan.

“He presented Nazir and others digital Qurans as a gift which were fitted with chips which help US drones strike their targets,” one of the militants said.

“When Mullah Nazir was returning, US drones fired missiles at him in a Pakistani area,” he said.

I’m guessing that many digital Qurans will be found in roadside ditches in the next few days.

While fallout from US drone operations in Pakistan continues, drones themselves are falling in Afghanistan. Well, at least one did yesterday:

A spy drone belonging to the US-led forces in Afghanistan has crashed in the country’s southeastern Paktika Province, Press TV reports.

The aircraft went down in the Jani Khel district of the Afghan province on Tuesday.

Taliban militants claimed that they had downed the spy drone.

NATO confirmed the crash in a statement on Wednesday. However, it did not provide any details about the cause of the incident.

But don’t worry. I’m sure that our benevolent drone dictator can keep both the rules and the drones up in the air a bit longer.

Crowd of Unilateral Lawyers Applaud Unilateral Operator

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Sarah Cleveland? Not a judge. Greg Craig? Not a judge. William Dodge? Not a judge. Jeh Johnson? Not a judge. David Kris? Not a judge. David Martin? Not a judge. Daniel Meltzer? Not a judge. And Trevor Morrison?

Also not a judge.

Nevertheless, these eight lawyers–all of whom served the function of interpreting the law for the Executive Branch within the Executive Branch for Obama (and, in Kris’ case, for Bush)–assure you that John Brennan will uphold our laws.

Throughout his tenure as Assistant to the President for Homeland Security and Counterterrorism in the Obama Administration, John Brennan has been a persistent and determined leader in support of adherence to the rule of law, a principled commitment to civil liberties and humanitarian protection, and transparency. On a broad range of issues, he has endeavored to ensure that the national security practices of the United States Government are based on sound long-term policy goals and are consistent with our domestic and international legal obligations, as well as with broader principles of democratic accountability. John Brennan has been a steadfast champion of the President’s commitment to closing the detention facility at Guantánamo, and has urged that our Article III courts remain a vital tool in our counterterrorism toolbox. He has stood firmly with the President’s efforts to ensure that interrogations are conducted in accord with the law and our values. And he has worked to ensure that the responsible and effective pursuit of our counterterrorism objectives will not depend simply on the good instincts of officials, but will instead be institutionalized in durable frameworks with a sound legal basis and broad interagency oversight.

[snip]

John Brennan understands that adherence to the Constitution and the rule of law serve, rather than undermine, our national security interests. Time and again, he has demonstrated seasoned wisdom and judgment in responding to our nation’s greatest national security threats, and he has consistently reaffirmed his core commitment to conducting our national security and counterterrorism policy in a fashion that comports with our deepest values. [my emphasis]

Sure, there are a few tells–such as the boast that his pursuit of counterterrorism objectives will be institutionalized in a broad interagency–not interbranch–oversight. Or, on the reverse, the claim that John Brennan–whose solution to the National Counterterrorism Center’s failure to fulfill minimization requirements was just to open up all Federal databses to NCTC without that minimization–has a “principled commitment to civil liberties.”

But mostly, it’s the structural problem here. Regardless of what John Brennan himself believes–and all the public evidence suggests these lawyers are too close to judge and perhaps just a little seduced by the old spook–this Administration doesn’t stand for any of these things.

More importantly, this Administration has refused just about every opportunity to have someone else–lawyers and judges who hadn’t counseled these policies from the start–weigh these issues. The Administration has shown great disdain for both democratic accountability and Article III courts. It has ensured that interrogations–both those conducted under Bush and those conducted in dark prisons under Obama–never be tested for whether they accord with the law. Indeed, Obama’s Administration has gone to great lengths to hide our torture from international oversight and even from litigants in our own courts.

So even assuming John Brennan is the nice guy these lawyers say he is–an assumption that defies the evidence–they’re still damning Brennan with the same illegitimate argument the Obama Administration has always relied on:

Trust us.

They are emphasizing precisely why John Brennan’s success in an Administration that has refused even basic oversight should not be sufficient for confirmation to lead a secretive agency.

And while in any other week I might be inclined to grant David Kris’ word great weight, not this week. After all, Kris warned we might get into trouble with Hamdan’s material support for terrorism conviction years ago. Nevertheless, the Obama Administration is treating Gitmo with the same Kangaroo arrogance that Bush did, refusing to take the DC Circuit’s ruling on Hamdan as law, overriding their own prosecutor at Gitmo. This Administration–Brennan’s Administration–is defiant of even the warnings Kris offered years ago. So when Kris and other lawyers boast that Brennan will be a great leader consistent with Obama’s policies…

He is also exceptionally qualified to provide leadership and direction to the Agency, consistent with President Obama’s national security objectives.

… It’s shouldn’t exactly count as a glowing endorsement.

Sure, this letter to Dianne Feinstein in support of Brennan’s nomination will work. It’ll provide cover for all the evidence that Brennan is none of these things. At the very least, it’ll force a few Democrats on the Senate Intelligence Committee to consider whether they’re prepared to admit that Obama’s policies exhibit none of this respect for rule of law. Which they aren’t, yet. So it’ll serve its purpose.

The last actual judge who got a glimpse at the Obama Administration’s claim to abide by the rule of law had this to say:

I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping reasons for their conclusion a secret.

John Brennan is the knave of this Alice in Wonderland system of legal justice.

I take that as a far better read of Brennan’s fitness to be CIA Director than the word of the Queen of Hearts’ other cards up her sleeve.

Update: Conor Friedersdorf does more fact-checking of the claims in the letter.

Rather than Lying to Congress, CIA Now Blows It Off

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Five months into Obama’s first term, then-CIA Director Leon Panetta caused a scandal by telling Congress about Blackwater-staffed assassination squads deployed under the Bush Administration; we would ultimately learn the program was run by a still-active mafia hitman.

Partly in response and partly because of the CIA’s lies to Congress under the Bush Administration, the Intelligence Committees began to tie funding to full briefing of the Committees, rather than just Gang of Eight (which were really Gang of Four) briefings Bush used to avoid oversight. The White House responded by issuing a veto threat if Congress violated the “fundamental compact” of letting CIA operate with almost no oversight. In response, after adding the shoot-down of a missionary plane to the scope, then House Intelligence Chair Silvestre Reyes got Pete Hoekstra to support an investigation into all the times CIA lied to Congress, which Reyes announced in July 2009. By October 2009, the House Intelligence Committee released its preliminary conclusion that CIA had lied to Congress on at least five occasions. In summer 2010, Nancy Pelosi got pissed. In October 2010, Obama finally signed Intelligence Authorization purportedly agreeing to new oversight. In November 2010, Reyes released the final results of the HPSCI inquiry, which showed that “in several specific instances, certain individuals did not adhere to the high standards set forth by the Intelligence Community and its agencies.” However, he said, most of the problems were fixed with that year’s Authorization. In the next Congress, Reyes would be replaced as Ranking Member at HPSCI by Dutch Ruppersberger, a servant to the NSA.

From June 2009 until October 2010, a Democratic Congress and the Obama Administration were engaged in a surprisingly contentious argument over whether the Administration would permit Congress to engage in adequate oversight of the Intelligence Community. In October 2010, the Administration purportedly agreed to abide by the clear terms of the National Security Act, which requires briefing of all members of the Intelligence Committees on covert programs.

With that in mind, consider the timeline suggested by Senate Intelligence Committee member Ron Wyden’s letter to John Brennan (see also this post).

December 2010: Wyden and Russ Feingold ask Eric Holder about “the interpretation of a particular statute” (probably having to do with online privacy)

Before January 2011: Wyden asks about targeted killing authority

April 2011: Wyden calls Eric Holder with questions about targeted killing authority

May 2011: Intelligence Community provides some response to Wyden, without answering basic questions

Before January 2012: Wyden asks for “the complete list of countries in which the intelligence community has used its lethal counterterrorism authorities”

Early 2012: Wyden repeats request for response to letter about a particular statute (probably online privacy)

February 2012: Wyden renews his request for answers on targeted killing

In October 2010, the Obama Administration agreed to let Congress oversee the Intelligence Community’s activities.

Almost immediately thereafter, the Administration started stonewalling Wyden, a member of one of those Committees with supposedly renewed oversight authority, on at least three issues (though two–the lethal authority and the targeted killing–are closely related). (As I’ll discuss in a follow-up post, they also blew off Wyden’s request to revoke an OLC opinion that probably guts Americans’ privacy.)

And remarkably, one of the topics on which the IC is stonewalling Wyden–where the IC has engaged in lethal counterterrorism authorities–may well be precisely the issue that set off this process back in June 2009, the use not just of drones to kill alleged terrorists, but also assassination squads.

Even as Wyden made this timeline clear, he also revealed not only that the CIA lied to all the outside entities overseeing its torture program, but continues to lie to the American people about that program.

As Obama’s top counterterrorism advisor and an at least tangential participant in the earlier decisions on the “lethal counterterrorism authorities,” John Brennan has presumably been instrumental in the continued stonewalling of Congress. In a few weeks, he hopes to be approved to lead the CIA.