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What Was the Anthrax Attack Targeting Patrick Leahy Doing in the Iraq NIE?

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Screen Shot 2015-03-19 at 1.27.47 PMAs Jason Leopold reports, the government recently released a newly declassified version of the 2002 NIE that justified the war with Iraq to Black Vault’s John Greenwald. Leopold has a useful overview of what the report includes. But I’m most appalled by this.

The NIE also restores another previously unknown piece of “intelligence”: a suggestion that Iraq was possibly behind the letters laced with anthrax sent to news organizations and senators Tom Daschle and Patrick Leahy a week after the 9/11 attacks. The attacks killed five people and sickened 17 others.

“We have no intelligence information linking Iraq to the fall 2001 attacks in the United States, but Iraq has the capability to produce spores of Bacillus anthracis — the causative agent of anthrax — similar to the dry spores used in the letters,” the NIE said. “The spores found in the Daschle and Leahy letters are highly purified, probably requiring a high level of skill and expertise in working with bacterial spores. Iraqi scientists could have such expertise,” although samples of a biological agent Iraq was known to have used as an anthrax simulant “were not as pure as the anthrax spores in the letters.”

Perhaps the inset discussing the US-developed anthrax used to attack two Senators and members of the media purports to respond to questions raised by anonymous sources leaking the previous year. But it basically does nothing but suggest the possibility Iraq might have launched the attack, even while providing one after another piece of evidence showing why that was all but impossible.

Moreover, by the time this NIE was completed in October 2002, that deliberate leak had been silent for a almost a year.

That the rumor appeared again, secretly, in the Iraq NIE really ought to raise questions about a whole slew of unanswered questions about the anthrax attack: about why Judy Miller got fake anthrax, about why the FBI scoped its investigation to find only lone wolves and therefore not to find any conspirators (and still almost certainly hasn’t found the culprit), about why the first person framed for the attack also happened to be someone who knew of efforts to reverse engineer Iraq’s purported bioweapon labs.

No. No, Iraq wasn’t linked to the anthrax letters in fall 2001. It’s a simple answer. But nevertheless, the question got treated as a serious possibility when Bush Administration was trying to drum up war against Iraq.

As FBI’s Amerithrax Case Continues to Crumble, Bureau Digs in on North Korea Claims

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Screen shot 2014-12-30 at 12.16.49 PM

In ads released even as their claims about North Korea come under scrutiny, FBI tries to make cybersecurity Agents look like Eliot Ness.

Less than 10 days ago, Jim laid out yet more evidence that the FBI’s claimed explanation for the anthrax attack — that USAMRIID researcher Bruce Ivins not only perpetrated the attack, but did so acting alone — was scientifically problematic. So 13 years ago, anonymous sources blamed Iraq for the attack, 12 years ago they blamed Steven Hatfill, and 6 years ago, they started blaming Bruce Ivins. Probably, none of those claims are true.

The FBI still hasn’t solved one of the most alarming terrorist attacks in this country, an attempt to kill two sitting US Senators. Instead, it persists in a claim (versus Ivins) that doesn’t comport with the science, to say nothing of the other circumstantial evidence. FBI only ever sustained that claim by assuming — based on no known evidence — that a Lone Wolf, rather than conspirators, launched the attack.

Even as new evidence undermining the FBI’s obstinate claims about Ivins got released, the FBI has been making equally obstinate claims that North Korea is behind the Sony hack.

And then someone crashed North Korea’s Internet which, given how tiny it is, is the strategic equivalent of launching spitballs at a small group of North Korea’s elite. A truly awesome use of American power!

As I noted on Salon, even as the FBI was leaking its certitude to the big press that North Korea was behind the hack, Kim Zetter was pointing out all the reasons that made no sense.

Now, with a week of holiday cheers under their belts, more of the press is beginning to note all the experts questioning the FBI’s claim. Shane Harris describes the FBI “doubling down” on its original theory.

In spite of mounting evidence that the North Korean regime may not have been wholly responsible for a brazen cyberassault against Sony—and possibly wasn’t involved at all—the FBI is doubling down on its theory that the Hermit Kingdom solely bears the blame.

“We think it’s them,” referring to the North Koreans, an FBI spokesperson told The Daily Beast when asked to respond to reports from private investigators that other culprits were responsible. The latest evidence, from the cyberanalysis firm the Norse Corp., suggests that a group of six individuals, including at least one disgruntled ex-Sony employee, is behind the assault, which has humiliated Sony executives, led to threats of terrorist attacks over the release of a satirical film, and prompted an official response from the White House.

The FBI said in a separate statement to journalists on Monday that “there is no credible information to indicate that any other individual is responsible for this cyberincident.” When asked whether that left open the possibility that other individuals may have assisted North Korea or were involved in the assault on Sony, but not ultimately responsible for the damage that was done, the FBI spokesperson replied, “We’re not making the distinction that you’re making about the responsible party and others being involved.”

Time catalogs the alternatives to FBI’s theories.

And Politico notes that when one cybersecurity company, Norse, shared its analysis, the FBI refused to share its own data, as the company had expected.

The FBI says it is standing by its conclusions, but the security community says the agency has been open and receptive to help from the private sector throughout the Sony investigation.

Norse, one of the world’s leading cyber intelligence firms, has been researching the hack since it was made public just before Thanksgiving.

Norse’s senior vice president of market development said the quickness of the FBI’s conclusion that North Korea was responsible was a red flag.

“When the FBI made the announcement so soon after the initial hack was unveiled, everyone in the [cyber] intelligence community kind of raised their eyebrows at it, because it’s really hard to pin this on anyone within days of the attack,” Kurt Stammberger said in an interview as his company briefed FBI investigators Monday afternoon.

He said the briefing was set up after his company approached the agency with its findings.

Stammberger said after the meeting the FBI was “very open and grateful for our data and assistance” but didn’t share any of its data with Norse, although that was what the company expected.

It’s a bad thing, given how much evidence is out there about this hack, that the FBI won’t let more of its thinking be tested publicly.

Meanwhile, in a remarkable joining of opinion, both Jack Goldsmith and Moon of Alabama note that Obama may have wasted US credibility by so quickly accusing North Korea.

And NYT’s Ombud, Margaret Sullivan, admits that NYT too quickly repeated — and granted anonymity to — FBI’s flimsy claims.

[A]s a reader, Brad Johnson, noted in an email. He wrote: “Did NYT learn its lesson from the Iraq WMD debacle, or is the paper back to bad habits of writing stories from whole cloth based on anonymous White House and intelligence agency officials?”

Now that the matter of who was behind the hack is coming under more scrutiny, including in The Times (though with less prominence), those kinds of questions are even more germane.

One thing is certain: Anonymity continues to be granted to sources far more often than a last-resort basis would suggest.

Though Sullivan’s caution didn’t lead the Editorial Board to show any.

I’m glad people are now showing skepticism, even if it is too late to preserve American credibility (as if we had that anyway after StuxNet).

There’s one more factor that deserves notice here: the role of cybersecurity firms in laundering government propaganda.

One of the most pregnant observations in Zetter’s Countdown to Zero Day comes after Symantec published the first details implicating the US and Israel in the StuxNet attack. The Symantec team expected a bunch of others to jump in and start validating their work. Instead, they were met with almost complete silence. While Zetter didn’t say it explicitly, the implication was that the security industry is driven by its interest in retaining the good will of the US Government. Here, the first security firm to back the North Korea claim was Mandiant, the firm that served as a surrogate for claims against China.

And while in this case there is no lack of experts willing to push back against US claims, I just wonder whether at least some of the initial credulity on the North Korea claims arose because of the dominance of USG contractors among the earliest reports on the hack? While there are some equivalents in the WMD vein, the cyberindustry, in particular, seems particularly prone to serving as a cut-out for both poorly analyzed intelligence and even propaganda.

Ah well. It’s not like anyone is demanding FBI resume its hunt for the terrorist who might have killed two sitting US Senators. Why do I think this will be any different?

Zoe Lofgren Didn’t Vote to Let Presidents Wage Unlimited War, But John Yoo Did

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As a series of Presidents continue to claim the September 18, 2001 Authorization to Use Military Force authorizes fairly unlimited power on an unlimited battlefield, I keep coming back to this Tom Daschle op-ed, in which he described how Congress refused to extend the AUMF to US soil.

Just before the Senate acted on this compromise resolution, the White House sought one last change. Literally minutes before the Senate cast its vote, the administration sought to add the words “in the United States and” after “appropriate force” in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas — where we all understood he wanted authority to act — but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.

The op-ed is, as far as I know, the only public statement describing how Congress narrowed a breathtakingly broad claim for military force.

Until Wednesday’s drone hearing, that is.

In response to a comment from John Bellinger that it was appropriate for the Executive Branch to refuse to share its OLC memos with Congress, Zoe Lofgren suggested (1:36 and following) the President was exceeding the terms of the AUMF (she comes very close to saying the President broke the law, but stops herself). She refers to — as Daschle did — negotiations leading up to the AUMF that actually did get passed.

Lofgren: If you take a look at the Authorization to Use Military Force, which all of us voted for — those of us who were here (there was only one no vote in the House) — it says “the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks.” Now, are we to believe that everyone on this list was responsible for the 9/11 attack? I mean, is that the rationale?

Bellinger: No, your exactly right. All four of us agree with you that the 2001 AUMF, which was only about 60 words long — I was involved in drafting it literally almost on the back of an envelope while the World Trade Center was still smoldering — now is very long in the tooth. The good government solution, while extremely difficult and controversial, would be for Congress to work together with the Executive Branch to revise that AUMF. It’s completely unclear about what it covers, who it covers, where it covers.

Lofgren: If I may, I think it’s not as unclear as you suggest. There are — this was a limitation, and there were big arguments about it as you’re, I’m sure, aware, there was a prior draft that was  much more expansive. There was a prior draft that was much more expansive and it was narrowed so we could get bipartisan consensus and it was narrowed for an important reason. And I guess I — yes, the Executive has the ability to keep his legal advice confidential, that’s a long-standing principle, but since it looks like — at least, questions are raised — as to whether the executive is complying with the law, then if he feels he is, then I feel it would be a very positive thing for the Administration to share that legal advice with this committee and with the American people. Read more →

Jeh Johnson on the “Military’s Domestic Legal Authority”

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In addition to suggesting that the 16 year old American citizen Abdulrahman al-Awlaki was a legitimate military target, Jeh Johnson spoke yesterday about the “military’s domestic legal authority.” Now, rest assured, Johnson said the Administration does not rely on aggressive interpretations of such authority.

Against an unconventional enemy that observes no borders and does not play by the rules, we must guard against aggressive interpretations of our authorities that will discredit our efforts, provoke controversy and invite challenge.

He acknowledges that posse comitatus requires express authorization from Congress before extending the reach of the military onto US soil.

As I told the Heritage Foundation last October, over-reaching with military power can result in national security setbacks, not gains.  Particularly when we attempt to extend the reach of the military on to U.S. soil, the courts resist, consistent with our core values and our American heritage – reflected, no less, in places such as the Declaration of Independence, the Federalist Papers, the Third Amendment, and in the 1878 federal criminal statute, still on the books today, which prohibits willfully using the military as a posse comitatus unless expressly authorized by Congress or the Constitution. [my emphasis]

Then he proceeds directly from describing the express authorization required from Congress to a discussion of the AUMF–as the basis for the “military’s domestic legal authority.”

Second: in the conflict against al Qaeda and associated forces, the bedrock of the military’s domestic legal authority continues to be the Authorization for the Use of Military Force passed by the Congress one week after 9/11.[2]  “The AUMF,” as it is often called, is Congress’ authorization to the President to:

use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Ten years later, the AUMF remains on the books, and it is still a viable authorization today. [my emphasis]

Then Johnson describes how the Administration–with no express authority from Congress until the NDAA–stretched an authorization limited to those people and groups with ties to 9/11 to include those “associated with” such groups. And, again with no express authorization from Congress, expanded it to include those who “engaged in hostilities” with coalition partners.

In the detention context, we in the Obama Administration have interpreted this authority to include:

those persons who were part of, or substantially supported, Taliban or al-Qaeda forces or associated forces that are engaged in hostilities against the United States or its coalition partners.[3]

This interpretation of our statutory authority has been adopted by the courts in the habeas cases brought by Guantanamo detainees,[4] and in 2011 Congress joined the Executive and Judicial branches of government in embracing this interpretation when it codified it almost word-for-word in Section 1021 of this year’s National Defense Authorization Act, 10 years after enactment of the original AUMF.[5]  (A point worth noting here: contrary to some reports, neither Section 1021 nor any other detainee-related provision in this year’s Defense Authorization Act creates or expands upon the authority for the military to detain a U.S. citizen.)

Johnson doesn’t mention, of course, that the government is using the same interpretation to extend the military’s domestic legal authority to non-detention areas. Those applications are secret, you see.

Note, in this passage, how Johnson gracefully re-specifies that he’s talking about the 2001 AUMF, and not the 2002 AUMF, which also remains in effect?

But, the AUMF, the statutory authorization from 2001, is not open-ended.  It does not authorize military force against anyone the Executive labels a “terrorist.”  Rather, it encompasses only those groups or people with a link to the terrorist attacks on 9/11, or associated forces.

That’s important because the government at least used to–and presumably still does (otherwise they wouldn’t have panicked when Congress considered repealing the AUMF authorizing a war that is supposed to be over)–rely on the Iraq AUMF to target “anyone the Executive labels a ‘terrorist.'”

Given that the Iraq AUMF has been used to go beyond the definitions in the 2001 AUMF, I’ll skip the paragraphs were Johnson talks about how narrow the government’s interpretation of “associated forces” is.

Particularly because this paragraph is my very favorite bit in this entirely disingenuous speech.

Third: there is nothing in the wording of the 2001 AUMF or its legislative history that restricts this statutory authority to the “hot” battlefields of Afghanistan.  Afghanistan was plainly the focus when the authorization was enacted in September 2001, but the AUMF authorized the use of necessary and appropriate force against the organizations and persons connected to the September 11th attacks – al Qaeda and the Taliban — without a geographic limitation.

Pretty comprehensive, huh, Jeh? Neither the wording of the AUMF or the legislative history limits the AUMF, right?

Read more →

Ten Years Ago, Anthrax Attacks–and Judy Miller–Had Huge Effect on Passage of Patriot Act

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Ten years ago today, George W. Bush signed the Patriot Act into law. (US National Archives photo)

Ten years ago today, George W. Bush signed the Patriot Act into law in what many consider to be the single biggest blow to civil liberties our country has seen.  I will leave it to others to detail the damage done to our rights, but a quick list of that damage can be seen here on the History Commons website.  Instead, what I want to focus on is the prominent role played by the anthrax attacks in the passage of the Patriot Act.

Although most would say that the Patriot Act was a direct result of the 9/11 attacks, timeline analysis shows that key events in the anthrax attacks took place during the critical days leading up to passage of the act.  The timeline I have assembled here draws on data in timelines prepared by Marcy Wheeler, History Commons (anthrax), History Commons (Patriot Act) and Ed Lake, along with my own contributions.

September 4, 2001 Exactly one week before the 9/11 attacks, Judy Miller disclosed Project Bacus, in which the Defense Threat Reduction Agency demonstrated that they could construct a functional small bioweapons facility at the Dugway Proving Grounds in Utah for under $1 million.  The facility is capable of both growing and weaponizing biowarfare agents.

September 18, 2001 Letters containing anthrax mailed to the New York Post and Tom Brokaw were postmarked one week after the 9/11 attacks.  It is presumed that the letter that lead to the death of Robert Stevens of American Media in Boca Raton, Florida was also mailed around this time but the letter itself was never recovered.

September 30, 2001 Robert Stevens begins to feel ill. Read more →

Why Didn’t FBI Investigate AFIP’s Role in Starting the Iraq-Anthrax Rumors?

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I’ve been reading the National Academy of Sciences Anthrax Report and noted something odd in follow-up to the McClatchy report of the other day describing unexplained tin and silicon in one of the anthrax samples. (Here’s Jim White’s post on the report.) As McClatchy reported, there’s some weird data about silicon and tin in some of the samples.

The lab data, contained in more than 9,000 pages of files that emerged a year after the Justice Department closed its inquiry and condemned the late Army microbiologist Bruce Ivins as the perpetrator, shows unusual levels of silicon and tin in anthrax powder from two of the five letters.

[snip]

To arrive at that position, however, the FBI had to discount its own bulk testing results showing that silicon composed an extraordinary 10.8 percent of a sample from a mailing to the New York Post and as much as 1.8 percent of the anthrax from a letter sent to Democratic Sen. Patrick Leahy of Vermont, far more than the occasional trace contamination. Tin — not usually seen in anthrax powder at all — was measured at 0.65 percent and 0.2 percent, respectively, in those letters.

But it turns out that the weirdest data–showing the 10.8 silicon in the NY Post sample–didn’t come from FBI. As NAS explained, that data came from the Armed Forces Institute of Pathology.

Early in the investigation, AFIP performed [scanning electron microscopy-energy-dispersive X-ray] SEM-EDX analysis of a New York Post letter sample and found regions in the sample having high silicon content but no oxygen, suggesting the presence of silicon-rich material that was not related to nanoparticulate silica. While this observation could have led to an explanation for the difference between the bulk and individual spore measurements, follow-up experiments apparently were not performed.

A release from AFIP describing their analysis of the Daschle letter (not the NY Post letter) is one of the most cited sources of the claim that the anthrax was weaponized in a uniquely Iraqi fashion.

“Ft Detrick sought our assistance to determine the specific components of the anthrax found in the Daschle letter,” said Florabel G. Mullick, MD, ScD, SES, AFIP Principal Deputy Director and department chair. AFIP experts utilized an energy dispersive X-ray spectrometer (an instrument used to detect the presence of otherwise-unseen chemicals through characteristic wavelengths of X-ray light) to confirm the previously unidentifiable substance as silica. “This was a key component,” Mullick said. “Silica prevents the anthrax from aggregating, making it easier to aerosolize. Significantly, we noted the absence of aluminum with the silica. This combination had previously been found in anthrax produced by Iraq.”

This was the analysis that a USAMRID scientist used to declare that the anthrax was weaponized–which said scientist retracted after later Sandia analysis was done (from the NAS report).

An initial finding by the Armed Forces Institute of Pathology (AFIP) found, upon gross examination, that the spores exhibited a silicon signal and sometimes exhibited an oxygen signal. Subsequent studies conducted by Sandia National Laboratories (as described in Chapter 4 of this report) determined that the silicon was localized to the spore coat within the exosporium—that is, it was incorporated into the cell as a natural part of the cell formation process. The USAMRIID scientist who first reviewed the AFIP results and made statements regarding the presence of silicon and possible weaponization retracted those earlier statements.

So some of this was known before–that AFIP served a key role in early rumors that the anthrax was weaponized in a way that pointed to Iraq. But the NAS report seems to confirm that the Iraq rumors originated at least in part from AFIP.

That’s all very interesting for several reasons. First, because FBI claims to have gotten data on AFIP’s SEM-EDX tests just last year.

The committee notes that this information was not made available to it or to the FBI until spring 2010.

That would mean FBI didn’t get (or ask for?) the information until after it had closed the investigation (they closed the investigation in February 2010)!

It would also suggest–rather incredibly–that FBI didn’t hunt down this information when they were stonewalling Jerry Nadler about it (as McClatchy reminds).

New York Democratic Rep. Jerrold Nadler asked FBI Director Robert Mueller how much silicon was in the Post and Leahy letters at a hearing before the House Judiciary Committee in September 2008. The Justice Department responded seven months later that silicon made up 1.4 percent of the Leahy powder (without disclosing the 1.8 percent reading) and that “a reliable quantitative measurement was not possible” for the Post letter.

More interesting still, NAS can’t explain what relationship existed between FBI and AFIP.

The committee also reviewed reports of work carried out in parallel at the AFIP although it is not clear how closely AFIP and the FBI investigative and scientific teams worked together or coordinated their efforts.

I’m also confused about when AFIP did these tests. In its list of official tests, NAS describes the AFIP SEM-EDX tests as having taken place in November 2001.

But somewhere along the way, perhaps along with information about the investigation of a claimed al Qaeda anthrax site explored in 2004, NAS got additional materials from AFIP dating to October 2001.

AFIP Materials related to USAMRIID Specimens October 2001 (41 pages)

And still more interesting is the reference to documents provided to NAS in December 2010–at the time when FBI was trying to stall the release of this document–showing AFIP, along with USAMRID, purportedly conducted anthrax studies on the remains of the Flight 93 9/11 hijackers.

Finally, in the new materials provided to the committee it is noted that [polymerase chain reaction] PCR analysis was performed on human remains from United flight 93 on 9/11/2001 that were identified as those of the hijackers (B3D1). Analysis was performed at USAMRIID and at AFIP for sequences diagnostic of B. anthracis. One assay at USAMRIID gave positive results, but these results were believed by the FBI to be due to laboratory contamination. All other results were negative. As the committee learned at the January 2011 meeting, there were no tests done on remains from any of the other September 11, 2001 hijackers. [my emphasis]

So let’s see. At some point during the anthrax attacks in 2001, USAMRID and AFIP decided to do anthrax tests on material from Flight 93. They purportedly  found the hijackers tested positive for anthrax! But on second thought, FBI tells us, that positive result came from “lab contamination.” And then, presumably just after those tests, USAMRID and AFIP, perhaps working outside the chain of the official FBI investigation of anthrax, discover evidence implicating Iraq in the anthrax attacks. Results that, once again, further testing suggested was inaccurate.

Another example of lab contamination, I guess. Funny how that happens.

And the FBI wants us to believe that over the course of a 9 year investigation, they never decided to investigate the circumstances surrounding this partnership that somehow always resulted in convenient propaganda?

FBI’s Shrinks-4-Hire: Stalkers Are Likely Bioterrorists

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The FBI has linked to a redacted executive summary of the report some shrink contractors did on Bruce Ivins. While it is just the executive summary and even that is partly redacted, the report basically paints Bruce Ivins was a stalker which therefore makes him a possible bioterrorist.

Unfortunately for the shrinks who did the report, they start by endorsing the FBI’s now questionable anthrax theory.

Dr. Ivins acknowledged that he was the sole custodian of the “RMR-1029” flask that held the anthrax used in the attacks, and had unrestricted and unobserved access to the “hot suites” where work with anthrax could be conducted anytime day or night. From his own laboratory writings we know that the quality and spore concentration of the anthrax he produced matched that contained in the letters. In addition, he had the equipment necessary to produce the non-weaponized dried spores found in the letters.

The National Academy of Science had this to say about the source of the anthrax:

The flask designated RMR-1029 was not the immediate, most proximate source of the letter material. If the letter material did in fact derive from RMR-1029, then one or more separate growth steps, using seed material from RMR-1029 followed by purification, would have been necessary. Furthermore, the evidentiary material in the New York letters had physical properties that were distinct from those of the material in the Washington, D.C. letters.

And this to say about whether or not anyone could comment on how the anthrax was prepared.

The committee finds no scientific basis on which to accurately estimate the amount of time or the specific skill set needed to prepare the spore material contained in the letters. The time might vary from as little as 2 to 3 days to as much as several months. Given uncertainty about the methods used for preparation of the spore material, the committee could reach no significant conclusions regarding the skill set of the perpetrator.

In other words, because the shrinks based their entire report on the claim that Ivins had the “means and opportunity” to commit the attack based on the scientific claims about the anthrax, they pretty much undermine their entire argument from the start (and undermine their claim that they had “no predispositions regarding Ivins’ guilt or innocence”).

But what I’m even more intrigued by is their apparently shoddy explanation for one of the FBI’s claims that has been subsequently debunked.

In its report on the investigation, the FBI claimed that Ivins targeted Senators Leahy and Daschle because they were pro-choice Catholics.

In 2001, members of the Catholic pro-life movement were known to be highly critical of Catholic Congressional members who voted pro-choice in opposition to the beliefs of the Catholic Church. Two of the more prominent members of Congress who fell in this category were Senator Tom Daschle, then Senator Majority Leader; and Senator Patrick Leahy, Chairman of the Senate Judiciary Committee, both recipients of the 2001 anthrax mailings.

But the claim was primarily based on his wife’s beliefs (the wife who, we now know, Ivins was trying to cheat on at every opportunity). More importantly, Ivins figured out a way to foil his wife’s beliefs after his death by mandating that if he were not cremated, then $50,000 of his estate would be donated to Planned Parenthood. In other words, the notion that Ivins targeted the two guys standing in the way of unquestioning passage of the PATRIOT Act because they are pro choice Catholics never really added up.

The shrinks, however, boldly assert they have identified the real themes that motivated Ivins.

As the Analysis section of this report explains in greater detail, Dr. Ivins had multiple motives in launching what he later called [redacted] through the mail. The key themes were revenge, a desperate need for personal validation, career preservation and professional redemption, and loss. These themes guided him not only in making the attacks, but in choosing his targets and shaping his methods.

The attacks above all enabled Dr. Ivins to gain retribution against his various perceived enemies. Some of those enemies, like Senators Daschle and Leahy, had directly incurred his wrath; others, like the New York Post, which to him represented the media and New York City, appeared to have been symbolic stand-ins for broader targets.

They explain (sort of) why Ivins might view Daschle as an enemy.

In June 2001, Senator Daschle, the Senate majority leader, sent a letter to the Department of Defense that heightened concerns about the vaccine.

But nowhere does the report provide an explanation for why Leahy would be a target. Nor why Ivins would target the other newspapers. And as all the crappy explanations for this crime do, the report apparently ignores the question of why Judy Miller received a fake version of the anthrax; particularly for conservatives, you’d think the NYT, not the Post, would be the symbol of evil decadent New York.

Now maybe the explanation of why Pat Leahy is such an evil man that Bruce Ivins allegedly tried to kill him appears in the redacted section. But at least in this summary, it appears the shrinks’ report doesn’t answer some of the most basic questions raised about the attack.

Update: Pro choice/life error fixed thanks to WO.

Government Trying to Fudge on Its Claim to Absolute Power

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I’m working on a post on the news that DOJ will not charge Jose Rodriguez for destroying the torture tapes. But that’s going to take a while (read the NYT on the news in the meantime).

In the meantime, though, I wanted to point to Adam Serwer’s summary of yesterday’s hearing on the Anwar al-Awlaki suit. The most amusing detail in Adam’s story is that the government only wants to rely on its invocation of State Secrets as a fallback position.

Letter explicitly asked Bates to dismiss the lawsuit on state-secrets grounds only as a last resort.

See?!? They have some shame about their abuse of executive power, even if they’re going to rely on it anyway.

The most important issue, IMO, pertains to standing–I have already suggested that Judge Bates might reject the suit for lack of standing, not least because it’s the easiest way to punt. Adam suggests that Bates was thoroughly uninterested in one of two potential ways to establish standing.

The ACLU/CCR contends they have standing under two criteria, “Next Friend” and “Third Party.” Meeting the standard under “Next Friend” requires the ACLU/CCR to show that the younger al-Awlaki would want to sue but can’t, while “Third Party” demands that the elder al-Awlaki show that he would “suffer a concrete, redressable injury” from the government’s actions. Although Ben Wittes, who was also there, would disagree with me, I think Bates was more sympathetic to “Next Friend” than he was to the “Third Party” question, as he warned the latter could lead to a flood of lawsuits based on government action, and an “unprincipled landscape” in which judges arbitrarily decide standing based on the plaintiffs they’re sympathetic to.

But perhaps the most dramatic part of the hearing appears to have been when Jameel Jaffer stood up and stated that this suit was about whether or not the President can order the assassination of a citizen with no review. I actually differ with Adam’s take on some of this.

There was an exchange at the end of arguments that, beyond the legalese, really crystallized what this case is about. Both sides had offered their final rebuttals, but ACLU attorney Jameel Jaffer stood again and stated that the lawsuit was really about whether the president possesses an “unreviewable authority to order the assassination of an American citizen.” It moved Bates to ask Letter if he wanted to respond.

[DOJ Attorney Douglas] Letter rose and called Jaffer’s statement “absurd” and “ridiculous” but what followed was less convincing. He pointed out that the AUMF limits the president to overseas operations, that al-Awlaki was part of an “officially designated” terrorist group who was “attempting to carry out operations” against Americans.The fact that al-Awlaki had just released a new video calling for Muslims to kill Americans probably weighed on reporters in the courtroom.

Only the first of Letter’s statements is beyond dispute. The other two concern unproven — but not necessarily inaccurate — assumptions of fact that go to the heart of the case: whether or not al-Awlaki is actually an “operational leader” of al-Qaeda in the Arabian Peninsula or simply a vicious hatemonger who justifies and exhorts terrorism against Americans. The government is actually saying that its unilateral determination that the latter two assumptions are accurate that allow the government to deprive al-Awlaki of life without due process.

First, note that Letter’s claim that al-Awlaki was part of an “officially designated” terrorist group is a bunch of baloney. He is now part of that group, at least according to the unproven allegations of the government. But the State Department didn’t get around to designating al Qaeda in the Arabian Peninsula as such until several weeks after they had put al-Awlaki on the JSOC kill list (though he was not yet on the CIA kill list), so the suggestion that the President would only target someone formally designated a terrorist for assassination is a lie.

But the other claim–that the AUMF only covers operations overseas–is even sillier.

Consider: the government has not yet withdrawn the White Paper retroactively authorizing the illegal wiretap program under the AUMF. Thus, DOJ still supports claims that the AUMF authorized the President–any President–to conduct operations (in that case, military operations in the form of NSA wiretapping) in the United States.

Mind you, Tom Daschle has made it clear that Congress specifically refused to grant the President authority to operate in the United States. But so long as DOJ supports that White Paper, they stand by a public claim that the AUMF authorized the President to operate within the US.

So Jaffer is right: there’s nothing about Douglas Letter’s claims that rebut Jaffer’s argument that this is about whether the President can unilaterally assassinate an American citizen. As Adam has shown, simply asserting someone is a member of a terrorist organization does not make the assertion any less unilateral. And Letter’s claims that the AUMF does not authorize operations in the United States seems to ignore DOJ policy that supports just such a claim.

John Yoo’s Wrestling Match with the First Amendment

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Among his other specious attempts at self defense in this column, John Yoo claims,

The government faced another fundamental question, which we addressed in our memo. Does the Fourth Amendment’s requirement of a search warrant based on probable cause regulate the use of the military against terrorists on our soil. In portraying our answer, the media has quoted a single out-of-context sentence from our analysis: "First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully."

This line deliberately misrepresents the memo. The sentence only summarized a 1931 holding of the Supreme Court in the case of Near v. Minnesota concerning press freedom: "When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and no Court could regard them as protected by any constitutional right." The Court continued: "No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops."

Our memo had nothing to do with the First Amendment.

Pot, Kettle

Understand, one of Yoo’s central strategies in this memo is to strip the 2001 AUMF out of the context in which Congress specifically refused to authorize the use of "appropriate force" in the United States. Stripped from that context, Yoo claims in the memo that the AUMF explicitly allows for the "domestic use of force."

Section 2 [of the AUMF] authorizes the use of "all necessary and appropriate force" against the designated nations, organizations or person. Further, Congress declares that "the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States." … This broad statement reinforces the War Powers Resolution’s acknowledgment of the President’s constitutional powers in a state of national emergency. Like the War Powers Resolution, [the AUMF] does not limit its authorization and recognition of executive power to the use of force abroad. Indeed, [the AUMF] contemplates that the domestic use of force may well be necessary and appropriate. For example, [the AUMF’s] findings state that the September 11 attacks "render it both necessary and appropriate that the United States … protect United States citizens both at home and abroad." (emphasis Yoo’s).

By focusing on a "single out-of-context sentence," Yoo claims Congress authorized something it specifically refused to do–authorize "all necessary and appropriate force in the United States and against those nations, organizations or persons [the president] determines planned, authorized, committed or aided" 9/11.

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The FISA Dance in the Wake of 9/11

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Looseheadprop asks some good questions about the September 25, 2001 opinion on FISA David Kris requested from OLC.

Now that the Obama Administration has released this opinion (as well as others–see more FDL coverage from Christy and emptywheel), the first thing that strikes me is: How did he get this researched and written so fast (especially during a period when many people where spending lots of work hours reconnecting with friends and family and chewing over every scrap of information coming out of the attack sites)? Or had he started work on it earlier? And if so, why?

The question Kris asked, 

You have asked for our opinion on the constitutionality of amending the Foreign Intelligence Surveillance Act. . . so a search may be approved when the collection of foreign intelligence is "a purpose" of the search. In its current form, FISA requires that "the purpose" of the search be the collection of foreign intelligence.

… presents a ready answer for the timing. After all, Congress made almost precisely this change when it amended FISA as part of the PATRIOT Act, which got rushed through Congress from October 23 to October 26, 2001 ("the purpose" became "a significant purpose").

Change in certification requirement for electronic surveillance and physical searches under FISA from “the purpose” being gathering of foreign intelligence information to “a significant purpose” being gathering of foreign intelligence information.

Under Section 218, Sec. 104(a)(7)(B) and Sec. 303(a)(7)(B) of FISA, 50 U.S.C. §§ 1804(a)(7)(B) and 1823(a)(7)(B) respectively, are amended to strike “the purpose” and to replace it with “a significant purpose.” As amended, under Sec. 104(a)(7)(B), in an application for a FISA court order authorizing electronic surveillance, a national security official must certify that “a significant purpose” of the surveillance is to gather foreign intelligence information. Similarly, in an application for an order authorizing a physical search under FISA, a national security official must certify, under the amended Sec. 303(a)(7)(B), that “a significant purpose” of the search is to gather foreign intelligence information. This has been interpreted to mean that the primary purpose of the electronic surveillance or physical search may be criminal investigation, as long as a significant purpose of the surveillance or search is to gather foreign intelligence information.

And the admission in the memo that "most courts have adopted the test that the ‘primary purpose’ of a FISA search is to gather foreign intelligence" may be the reason the PATRIOT Act ultimately included the modifer "significant" on "purpose." Thus, it seems that Kris was using this memo to prepare more general changes to FISA to make it easier to use intelligence information in criminal prosecutions (as LHP points out).

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