Posts

Trump Refuses to Keep This Country Safe from Terrorism

/47 Comments/in , /by

I thought a lot about two things over the weekend.

I thought about the line that disqualifies an otherwise excellent book on left wing terrorism in the 1970s, Days of Rage: “With the possible exception of the Ku Klux Klan,” author Bryan Burrough claimed close to the beginning of the book, “the United States until 1970 had never spawned any kind of true underground movement committed to terrorist acts.” The book, which spends a lot of time talking about left wing political violence in significant part stemmed out of a concern for the rights of African Americans, utterly dismissed (perhaps because it was so widely accepted it could barely be called “underground”?) America’s most persistent terrorist movement as such. The line has haunted me ever since as an example of the kind of blindness even experts have about the centrality of right wing terrorism in American history.

I thought, too, about Charlie Savage’s description in Power Wars of how Scott Brown’s team claimed that his polling showed he won the 2010 special election to replace Ted Kennedy chiefly because of perceptions of how Obama responded to Umar Farouk Abdulmutallab’s failed Christmas Eve bombing, because Brown attacked Obama for wanting to give terrorists due process. Once Republicans learned that, they doubled down, encouraging voters to become more afraid.

In a question-and-answer period following his prepared remarks, [Mitch] McConnell candidly acknowledged the political advantage of hammering away at the issue, citing Brown’s victory.

“If this approach of putting these people in U.S. courts doesn’t play in Massachusetts, I don’t know where it sells,” McConnell said, adding: “You can campaign on these issues anywhere in America.”

As Savage describes, that was when Obama started caving on his efforts to adopt a more reasonable approach to terrorism, first reversing Eric Holder’s decision to try the 9/11 defendants in NYC, then launching an 18-month campaign to drone kill Anwar al-Awlaki, and ultimately failing to close Gitmo or hold torturers to account.

Now, as Savage tells it, all that arose solely out of the Abdulmutallab case. He barely covered an event that preceded it, one where Republicans very much set up the Brown lines: when Pete Hoekstra leaked information obtained via FISA collection showing that Nidal Hasan had had communications with Awlaki before his attack on Fort Hood, using it to suggest the Obama Administration should have prevented the Fort Hood attack by adequately analyzing collected communications. Republican efforts to exact a cost from Obama for a more reasonable approach to terrorism (which included demanding that Obama call Hasan’s attack on a military target, terrorism) actually preceded the Abdulmutallab attack, and it was far more deliberate than made out.

The point is, though, that it had the short term desired effect of breaking the Democratic super majority in the Senate and the longer term effect of making Obama reactive on terrorism, rather than proactive (even through the time, in 2013, when Massachusetts was successfully attacked at the Boston Marathon and polls showed people actually didn’t want any more limits on civil liberties). Republicans deliberately and successfully forced a president who wanted to be something other than a War on Terror President to instead be just that.

And now, 8 years after Mitch McConnell gleefully said Republicans should run on hard nose accountability for terrorist attacks everywhere, Republicans are whining that Democrats are treating Trump’s actions in advance of and in the wake of serial right wing terrorist attacks last week as a political issue.

In the wake of last week’s terrorist attacks, we have returned to a discussion we always have after such things, why we call Islamic terrorism terror, but call the targeting of black churches and Jewish synagogues hate crimes and the attempted assassination of Democratic figures bomb attacks. Popehat wrote a worthy lawsplainer, from the viewpoint of a former prosecutor, why domestic terrorists don’t get (immediately) labeled as terrorist attacks. 9/11 Commission staffer Daniel Byman acknowledged that while we don’t have the same legal structure for pursuing domestic terrorist as we do terrorism with a foreign nexus, for the Pittsburgh case, at least, we should probably use the T-word.

I’ve talked about why it is important to call domestic terrorism terrorism here: First, because not doing so results in an equal protection problem, where Muslims are more likely to be targeted in a sting because the FBI has greater access to the communications of still-innocent people with suspect people overseas. And, because calling something terrorism conceives of the possibility of a supporting network, and investigating that network might prevent deaths, such as those perpetrated by the networks of Eric Rudolph or Kevin Harpham.

But the government may not call these acts terrorism. That’s true, in part, because DOJ has invented a separate category to criminalize (impose the death penalty on) hateful motives with hate crimes designation. In addition, Jeff Sessions’ DOJ has adopted a deliberate policy of record-keeping to try to claim that the greatest threats come from outside the country, which is paralleled by their thus far unsuccessful attempt to brand the (US-born) MS-13 gang both as a threat sourced from Central American and as a threat to rival ISIS.

Trump’s effort to brand a group of refugees 1,000 miles from the border as a more urgent threat to the country than corruption or climate change or domestic gun violence — an effort which likely had a tie to both Cesar Sayoc’s terrorist attempt and Robert Bowers’ mass killing — is more of the same, an effort to claim that the most critical threats are foreign and anything he deems a threat is therefore un-American, also foreign.

Ultimately, the reason why the government won’t call last week’s attacks terrorism, however, is precisely the reason they should. Call them terror attacks, and the networks of support and enablers get investigated rather than just isolated men treated as lone wolves. Call them terror attacks, and we start to ask what responsibility Lou Dobbs or Steve King or Chris Farrell (or the people who vote for and fund them) — or Donald Trump — have for the attacks, in the same way we held Anwar al-Awlaki responsible for his role in the terrorist attacks that Scott Brown exploited to get elected.

Byman describes correctly how contentious this can be, because those espousing the same policies as terrorists don’t want to be associated with those terrorist acts.

[D]omestic terrorism often has a bigger political impact than jihadi violence. A foreign-based attack brings America together in the face of tragedy. But right-wing (and left-wing) violence is more likely to divide the country. Just this week, for example, 56-year-old Cesar Sayoc reportedly sent explosive packages to CNN, Democratic politicians, and others seen as “enemies” of Trump. Some right-wing voices immediately embraced conspiracy theories rather than recognizing his activities for what it was. Domestic terrorists poke at bigger political wounds than do jihadis, with at least some Americans sympathizing with their cause even as they reject their violent means.

In turn, observers often avoid the word “terrorism” because peaceful proponents of right-wing and left-wing causes don’t want to be lumped together, even by weak association, with terrorists. We can and should recognize that most political groups of all stripes abhor violence. Doing so—while also acknowledging that the groups and individuals who don’t belong in a separate category—will better enable the United States to isolate extremists and cut them off before the next tragedy.

Which is why this post bears the headline, “Trump refuses to keep this country safe from terrorism” rather than Trump fosters terrorism, even if I believe the latter to be the case.

Because until the time those willing to coddle Trump’s racism in the name of tribal loyalty are defeated politically, they will want to pitch questions about what to label Cesar Sayoc and Robert Bowers’ actions as an attack on themselves.

Instead, let’s make it an attack on Donald Trump’s basic competence as President, one the Republicans themselves, from top to bottom, have embraced.

It is the Republican party of Karl Rove and Mitch McConnell and Scott Brown and (Trump Ambassador to the Netherlands) Pete Hoekstra that says a President who won’t keep the country safe from terrorism must be defeated politically. Me, I’d rather deal with all this domestic terrorism by first closely tracking those accused of domestic violence (which would have the effect of preventing non-ideological mass killings along with the ideological mass killings and attempts) and by noting that under George W Bush and Obama, the FBI was actually pretty good at discovering right wing terrorism without the tools they have against Islamic terrorism. I’d rather Democrats run on the fear of losing health insurance or the impact of climate change or gun violence generally.

But not Republicans. Republicans believe that a President who refuses to take a very aggressive approach to terrorism should not be President. So for those Republicans, let’s make this an issue not of the ways Trump’s network fostered actions like we saw last week, but how Trump’s Administration has chosen not to combat terrorism.

10 Years of emptywheel: Key Non-Surveillance Posts 2011-2012

/in , , , , /by

Happy Birthday to me! To us! To the emptywheel community!

On December 3, 2007, emptywheel first posted as a distinct website. That makes us, me, we, ten today.

To celebrate, over the next few days, the emptywheel team will be sharing some of our favorite work from the last decade. I’ll be doing probably 3 posts featuring some of my most important or — in my opinion — resilient non-surveillance posts, plus a separate post bringing together some of my most important surveillance work. I think everyone else is teeing up their favorites, too.

Putting together these posts has been a remarkable experience to see where we’ve been and the breadth of what we’ve covered, on top of mainstays like surveillance. I’m really proud of the work I’ve done, and proud of the community we’ve maintained over the years.

For years, we’ve done this content ad free, relying on donations and me doing freelance work for others to fund the stuff you read here. I would make far more if I worked for some free-standing outlet, but I wouldn’t be able to do the weedy, iterative work that I do here, which would amount to not being able to do my best work.

If you’ve found this work valuable — if you’d like to ensure it remains available for the next ten years — please consider supporting the site.

 

2011

DOJ Points to David Passaro’s Trial as Proof We Investigate Torture, But It Actually Proves John Yoo Should Be Tried

I’v written a lot about the David Passaro case — the only one associated with the CIA (he was a contractor training Afghans) to be prosecuted for abuse. This post summarizes a lot of the problems with his case and its use to claim that the US ever held itself responsible for torture.

One Year After Collateral Murder Release, DOD’s Networks Are Still Glaring Security Problem

I’ve done a ton of posts on how the government complains about leaks even while it fails to close gaping security holes in its networks. This was one of the first. A day later I noted that DOD wasn’t aspiring to fix these problems until 2013; as it would turn out, Edward Snowden managed to download NSA’s crown jewels before they would fix them.

The Drone War on Westphalia

For Independence Day in 2011, I wrote a post arguing that the damage the use of drones will do to sovereignty will pose a real problem, particularly with regard to the consent of the governed. In a follow-up I argued against invoking “national security” to defend policies that weaken the nation.

Pakistani Bounty Claims: Adnan Farhan Abd Al Latif and TD-314/00684-02

In the first of a bunch of posts on Adnan Farhan abd al Latif, I showed that the intelligence report on which his detention relied — which Judge Henry Kennedy had originally deemed unreliable — probably was used to detain a bunch of people turned over with bounties.

49% of Michigan’s African Americans to Lose Their Right to Self-Governance

As the country started focusing on MI’s disastrous policy of  emergency managers, I was the first to note the moment when half of Michigan’s African Americans lost their right to local self-governance.

2012

Why Has the Government Story about Who Ordered the UndieBomber to Attack the US Changed?

As part of an effort to justify drone-killing Anwar al-Awlaki, the government publicly blamed him for all of Umar Farouk Abdulmutallab’s attack on the US, blame which should have been shared with others in AQAP. This was the first post where I made that clear.

“The Gloves Come Off” Memorandum of Notification

I discovered that language the government was trying to keep classified in the ACLU torture FOIA was not (as ACLU mistakenly believed) a description about waterboarding, but instead an admission that torture was authorized by the September 17, 2001 Memorandum of Notification that authorized a bunch of other programs. This was a key post in a series of posts on the MON.

US Climate Inaction: Blame Dick Cheney

I believe the US invaded Iraq as part of a Cheney-backed decision to double down on our petroleum-based hegemonic position in the world, in the apparent belief that we can clean up the damage from climate change at some later time. Even our shift to fracking is more about power than the environment. Given how catastrophic the Iraq war was, and given everything that has occurred since — not least our singular abstention from the Paris Accord — I think it a particularly ironic choice.

Lanny Breuer Covers Up Material Support for Terrorism

I wrote a ton about Obama’s failure to prosecute the banks that blew up the world’s economy. One of the most important ones was the post where I laid out Lanny Breuer’s efforts to hide the fact that HSBC had materially supported al Qaeda. Of course, it got no more than a hand slap even as Pete Seda was in prison for closely related actions (Seda’s case ultimately blew up).

Other Key Post Threads

10 Years of emptywheel: Key Non-Surveillance Posts 2008-2010

The Undie Bomber, Umar Farouk Abdulmutallab, Life Coached “Who Moved My Cheese” Weeks before Jihad

/in /by

I’m still working on the serious parts of the reports from Umar Farouk Abdulmutallab’s FBI interrogations that Scott Shane liberated. But I wanted to share this detail, because it’s pretty funny.

In his fourth interview with the FBI on January 31, 2010 (the third after he started cooperating), Abdulmutallab told about how he tried to serve as a life coach for someone — perhaps a friend or a family member — back in Nigeria. He relied, according to the interrogation report, on principles he learned not from reading the Quran, but from the pop business book, Who Moved My Cheese.

That was in May 2009. Just two months later (two paragraphs in the interrogation report), Abdulmutallab decided to take set off to find Anwar al-Awlaki to undertake jihad.

In the last few days of July, 2009, UM [Abdulutallab] emailed the headmaster at SIAL [the school he would study at in Yemen]. He obtained the email address from SIAL’s website and sent the message using UM’s [redacted]

[snip]

This decision was entirely UM’s; no one encouraged him to go to Yemen to participate in jihad.

[snip]

For security reasons, UM told no one of his plan to travel to Yemen and participate in jihad.

Perhaps it’s not just funny and schmaltzy. It also demonstrates the degree to which Abdulmutallab was just looking for a path in life. Not long before he left to Yemen, he twice to propose to a woman, but (as he told the FBI, at least), his family wouldn’t permit him to marry yet.

Having been deprived that cheese, perhaps, he set off to martyr himself in the service of Al Qaeda in the Arabian Peninsula.

Anwar al-Awlaki: Two Days from Finalized 302 to OLC Authorization for Execution

/2 Comments/in /by

After a multiple year FOIA fight, Scott Shane has liberated the interrogation 302s from Umar Farouk Abdulmutallab. Kudos to Shane and NYT.

As Shane recalls in his story on the reports, I have noted problems about the government’s public claims about Abdulmutallab’s interrogation (even aside from conflicts with his other confessions and the terms under which the interrogation took place). The reports in some ways confirm those concerns — as I’ll write in some follow-up posts. But, more important, they also answer the most fundamental ones.

Some of the reports absolutely support the government’s claim that from Abdulmutallab’s first interrogations in January 2010, he attributed the instructions to wait until he was over the US to detonate his underwear bomb to Anwar al-Awlaki, which was always a key basis for the government’s argument they could execute the cleric.

Near the end of [Abdulmutallab’s — he is referred to as UM throughout these reports] stay at the camp, Aulaqi gave UM final specific instructions: that the operation should be conducted on a U.S. airliner;

[snip]

Aulaqi told UM: “Wait until you are in the US, then bring the plane down.” [PDF 24]

As a number of people have observed, the reports also show that (aside from the isolation later alleged by Abdulmutallab’s lawyers and whatever leverage the FBI got his family to exert), the FBI and the High Value Interrogation Group got a great deal of cooperation from Abdulmutallab without physical coercion, with Abdulmutallab providing intelligence on AQAP into the summer.

In this post, though, I want to note how the reports coincide with two other events from that period of 2010.

As many of you know, there’s a big, still somewhat unsolved problem with FBI interrogations. At the time, FBI didn’t record interrogations (and they still create big loopholes around a recently imposed rule that custodial interviews must be recorded). Rather, the FBI agent would take notes and subsequently write up those notes into a “302,” which is what the FBI calls their reports on interviews.

In Abdulmutallab’s case, there was an interesting lag between the time his interrogators conducted the interrogation and when they wrote it up. For example, his January 29, 2010 interrogation (and all the ones from the subsequent intense period of interrogation), were not dictated until February 5, 2010.

And those dictations did not start to get transcribed into finished 302s until starting on February 17, 19 days after the interrogation.

Let me be clear: there is nothing suspect about the delay. The timing cues in the interrogation makes it clear these initial interrogations were full-day interrogations. Add in the preparation time interrogators would have to do overnight, and it makes sense that they wouldn’t dictate out their notes until the end of the week (though that is yet another reason FBI Agents should always make recordings of interrogations). Moreover, the one week delay is not so long that an agent would forget substantial parts of the interrogation. Plus, a federal defender was present and could have challenged any problems with this report.

So we should assume the report is a fair indication of the conduct of the interrogation.

I’m more interested in the timing of other events in early 2010.

Consider the public comments Director of National Intelligence Dennis Blair made on February 3, at a House Intelligence hearing. Responding to a Dana Priest article from the prior week, Blair assured Congress they get specific permission before they drone kill an American citizen (there are a bunch of still unreleased memos that suggest they were actually still working on this policy).

“We take direct actions against terrorists in the intelligence community,” he said. “If we think that direct action will involve killing an American, we get specific permission to do that.”

He also said there are criteria that must be met to authorize the killing of a U.S. citizen that include “whether that American is involved in a group that is trying to attack us, whether that American is a threat to other Americans. Those are the factors involved.”

Obliquely asked about Awlaki, Blair responded that they would only kill an American “for taking action that threatens Americans or has resulted in it” — a standard that falls short of what OLC would eventually adopt, but one it appears they believed they had already surpassed with Awlaki.

“So there is a framework and a policy for what’s hypothetically a radical born cleric … who’s living outside of the United States, there’s a clear path as to when this person may be engaging in free speech overseas and when he may have moved into recruitment or when he may have moved into actual coordinating and carrying out or coordinating attacks against the United States?”

Mr. Blair responded that he would rather not discuss the details of this criteria in open session, but he assured: “We don’t target people for free speech. We target them for taking action that threatens Americans or has resulted in it.”

That comment was made after Abdulmutallab had implicated Awlaki in giving him final orders, but before it had been dictated, much less transcribed.

Then there’s the first of two OLC memos written to authorize Awlaki’s execution. That was finalized on February 19, 2010, just two days after the first 302 implicating Awlaki in final instructions for the attack was finished.

That is, only two days elapsed from the time that the one document we know of memorializing Abdulmutallab’s confession for David Barron to authorize Awlaki’s execution.

That’s also not that surprising. After all, the government deemed (and had, before this time) Awlaki to be an urgent threat, and they shouldn’t be faulted for wanting to prepare to respond to any opportunity to neutralize it, as quickly as possible. Moreover, unlike the subsequent OLC memo, this one doesn’t appear to analyze the intelligence on Awlaki closely — it just deems him a “senior leader of Al-Qa’ida in the Arabian Peninsula” and moves on to analysis about whether killing him constitutes assassination.

But the timing of all this at least suggests that there were more communications about these issues than have been identified in ACLU’s FOIAs on the subject. They at least suggest (and this would not be surprising in the least, either) that there were less formal communications about Abdulmutallab’s interrogation provided to Washington DC well before this 302 was finalized.

Again — that’s not surprising. I imagine a secure cable went out to Washington after the interrogation on the 29th — if not during Abdulmutallab’s afternoon prayer break — saying that Abdulmutallab had implicated Awlaki in providing the final instructions making sure that the US would be targeted.

But it is an interesting data point on how deliberative the process behind authorizing Awlaki’s execution was.

Mike Rogers Wanted to Drone Kill an American Citizen for Training with al Qaeda?

/2 Comments/in , , /by

There has been some good commentary on NYT’s story on Administration debates over killing Mohanad Mahmoud al-Farekh, the American citizen who was captured and charged in federal court on April 2, after the Administration considered but then decided against drone-killing him. Both David Cole and Brett Max Kaufman ask raise some important points and questions. Of particular note, they ask what the fuck Mike Rogers was doing pushing DOD and CIA to kill a US citizen.

Yet neither of those pieces gets to something I’m puzzling over. Al-Farekh was charged in EDNY (Loretta Lynch’s district), but he was only charged with conspiracy to commit material support for terrorism, a charge that carries a 15 year maximum sentence. Basically, he is accused of conspiring with Ferid Imam who in turn trained Najibullah Zazi and his co-conspirators for their planned 2009 attack on the NY Subway system.

In approximately 2007, Farekh, an individual named Ferid Imam and a third co-conspirator departed Canada for Pakistan with the intention of fighting against American forces.  They did not inform their families of their plan before departing, but called a friend in Canada upon arrival to let him know that he should not expect to hear from them again because they intended to become martyrs.  According to public testimony in previous criminal trials in the Eastern District of New York, in approximately September 2008, Ferid Imam provided weapons and other military-type training at an al-Qaeda training camp in Pakistan to three individuals – Najibullah Zazi, Zarein Ahmedzay and Adis Medunjanin – who intended to return to the United States to conduct a suicide attack on the New York City subway system.  Zazi and Ahmedzay pleaded guilty pursuant to cooperation agreements and have yet to be sentenced; Medunjanin was convicted after trial and sentenced to life imprisonment.  Ferid Imam has also been indicted for his role in the plot.

But the evidence laid out in the complaint is rather thin, basically amounting to the second-hand reports that al-Farekh, like Zazi and his friends, traveled to Pakistan for terrorist training.

Were we really going to kill this dude with a drone because he got terrorist training in Pakistan? That’s it?

Now, it’s quite possible the government is just charging him with the crimes the evidence for which they can introduce in a trial — though note that the government got a FISC warrant to collect on him (though it’s possible this is drone-based collection, and so sensitive enough they wouldn’t want to use it at trial).

Drones spotted him several times in the early months of 2013, and spy agencies used a warrant issued by the Federal Intelligence Surveillance Court to monitor his communications.

It’s equally possible that al-Farekh will be indicted on further charges, a more central role in plotting attacks out of the tribal lands of Pakistan. Similarly, it’s possible that al-Farekh’s High Value Interrogation Group interrogation — reported as well in this WaPo story — provided valuable intelligence on other militants that will have nothing to do with his own trial.

Still, both the earlier WaPo story (written in part by Adam Goldman, who wrote the book on the Zazi case) and the NYT story hint that the claims made about al-Farekh’s activities in 2013 have proven to be overblown. The WaPo doesn’t provide much detail.

Officials said there were questions about how prominent a role Farekh played in al-Qaeda.

The NYT provides more.

But the Justice Department, particularly Attorney General Eric H. Holder Jr., was skeptical of the intelligence dossier on Mr. Farekh, questioning whether he posed an imminent threat to the United States and whether he was as significant a player in Al Qaeda as the Pentagon and the C.I.A. described.

[snip]

Once in Pakistan, Mr. Farekh appears to have worked his way up the ranks of Al Qaeda, his ascent aided by marrying the daughter of a top Qaeda leader.

American officials said he became one of the terrorist network’s planners for operations outside Pakistan, a position that included work on the production and distribution of roadside bombs used against American troops in Afghanistan.

Some published reports have said that Mr. Farekh held the third-highest position in Al Qaeda, but Americans officials said the reports were exaggerated.

His level in the Qaeda hierarchy remains a matter of some dispute. Several American officials said that the criminal complaint against him underplayed his significance inside the terrorist group, but that the complaint — based on the testimony of several cooperating witnesses — was based only on what federal prosecutors believed they could prove during a trial.

This, then — along with the explicit connection with the Awlaki case, based as it was, at least at first, on Umar Farouk Abdulmutallab’s interrogation and all the reasons to doubt it — seems the big takeaway. We almost killed this dude, but now all we can prove is that he trained in Pakistan.

Ironically, Philip Mudd argues for the NYT that we can’t capture these people because we’d have to rely on our intelligence partners.

But many counterterrorism specialists say capturing terrorism suspects often hinges on unreliable allies. “It’s a gamble to rely on a partner service to pick up the target,” said Philip Mudd, a former senior F.B.I. and C.I.A. official.

Of course, these are often the same people we rely on for targeting intelligence, including against both Awlaki and al-Farekh. What does it say that we’d believe targeting information from allies, but not trust them to help us arrest the guys they apparently implicate?

Whatever that says, the story thus far (it could change) is that al-Farekh was almost killed on inadequate evidence because CIA and DOD were champing at the bit. That ought to be the big takeaway.

 

Pre-Empting the Abdulmutallab “Confession” with a Drone Killing Decision

/1 Comment/in /by

Make sure to read the update below: It’s possible McMahon’s estimate is off and this whole review process has gotten hopeless screwed up. 

Update: yes, this memo is actually the February 19, 2010 memo, not an earlier one. The referenced pages refer to the discussion from the February 19 memo. I’m marking out this post, because it appears to be incorrect.

If I’m understanding this heavily redacted memo from Colleen McMahon correctly, the government was reviewing whether it was legal to kill Anwar al-Awlaki before Umar Farouk Abdulmutallab implicated him in his High Value Interrogation Group obtained “confession.”

That’s because, in her discussion of what she, at times, calls “the first Barron memo,” she says this:

Bies Exhibits B, which is responsive to both FOIA requests, is a memorandum prepared by OLC six months prior to its preparation of the OLC-DoD memorandum and the Draft White Paper. It pertains specifically to the proposed al-Aulaqi operation that was the subject of the Draft White Paper and the OLC-DoD Memorandum. Written by David J. Barron, it is entitled “Lethal Operation Against Shaykh Anwar Aulaqi.” I will refer to it hereafter as the Bies Exhibit B or as “The First Barron Memorandum.”

The “OLC-DoD” memo is the July 16, 2010 memo. McMahon justifies the partial release of “the First Barron Memo” because the July 16, 2010 memo cites it specifically. Apparently, the reference “As we explained in our earlier memorandum, Barron Memorandum at 5-7” (page 94) refers to that memo, and further discussions on the Fourth and Fifth Amendment and EO 12333 rely on that memo.

But McMahon tells us this earlier memo — the first Barron memo considering the drone killing of Anwar al-Awlaki — was “prepared by OLC six months prior” to the July 16, 2010 one.

That would date it around January 16, 2010. Before Umar Farouk Abdulmutallab could have implicated Awlaki in his plot. We know that’s true because:

  • In the opening at Abdulmutallab’s trial, prosecutor Jonathan Tukel made it clear that Abdulmutallab’s Christmas Day confession attributed everything to “Abu Tarak.”
  • After that confession, Abdulmutallab stopped cooperating for almost a month.
  • According to the sentencing documents turned over, Abdulmutallab did not start “cooperating” until January 29, which accords with public claims as well.

That is, unless McMahon’s estimate is off by 2 weeks, there’s no way they could be relying on Abdulmutallab’s confession in their case against Awlaki. And yet that is the one thing the government points to to explain its changed view — from December 24, 2009 — that Awlaki was not operational.

The government appears to be aware of this problem. In trying to claim this document was still secret, they claimed “the date, title, and recipient of the analysis provided in the document relate to “entirely separate deliberative processes.” Indeed, it seems likely this was one of the memos the government was trying to bury after the Second Circuit ruled.

Because, when this memo gets released with a mid-January release date, it will be clear that the entire story they’ve been telling about Awlaki doesn’t hold up.

In any case, McMahon is having none of that claim.

The Government’s arguments are demonstrably untrue. There were no “separate deliberative processes” here; rather, the Government deliberated about  whether or not it could and should kill al-Aulaqi over the course of many months, during which time it asked OLC to render advice on a number of occasions.

The deliberation process is the same process. And it started before such time as the government had what it claims is first-hand evidence against Awlaki.

Update: There is one more possibility. That this memo—released in August and dated February 19, 2010–is the memo in question. That would mean 1) That McMahon was off in her estimate by a month and 2) that she’s very confused about what she’s reviewing, given that her opinion dates to a month and a half after the memo was released. But the content and the title would match up. So it seems possible that’s the memo, at which point they had their first “confession” implicating Awlaki.

Why Was CIA Assessing Whether They Could Drone-Kill Anwar al-Awlaki?

/4 Comments/in /by

For years, defenders of the drone killing of Anwar al-Awlaki have always pointed to the second confession Umar Farouk Abdulmutallab made, implicating Awlaki in each and every part of his plot.

There were always problems with that. Several pieces of evidence indicate the drone attack on December 24, 2009 that missed Awalaki had specifically targeted him; at that point, the government did not consider Awlaki operational. Abdulmutallab made 3 confessions, and only the one made to the High Value Interrogation Group (HIG) after a month of isolation and in the context of a (I’ve heard second-hand, unbelievably generous) plea deal that was never finalized implicated Awlaki in planning his attack. Claims Awlaki helped Abdulmutallab make his martyrdom video don’t explain why AQAP’s best English language propagandist would make a video with a man schooled in English in Arabic. Subsequent evidence suggests actions attributed to Awlaki in that confession were probably taken by Fahd al-Quso and Nasir al-Wuhayshi.

In other words, there are a lot of holes in the confession always used to justify Awlaki’s drone killing. Abdulmutallab’s second confession should be treated the same as his first and third ones: a narrative crafted by someone who has a big incentive to shade the truth, and therefore of dubious reliability.

The release of yesterday’s ridiculously cursory OLC memo authorizing the drone killing of Anwar al-Awlaki introduces one more reason to doubt the narrative that claims Abdulmutallab’s second confession provided justification for Awlaki’s killing.

CIA Assesses

 

The memo relies not on what FBI has told OLC. It relies on CIA’s assessment that Awlaki is “a senior leader of al-Qa’ida in the Arabian Peninsula” based on “factual predicates as represented by the CIA and in the materials provided to use from the Intelligence Community.”Abdulmutallab’s second confession might be included in those materials provided from the IC. Even though the confession was obtained as part of a criminal investigation, the FBI is part of the IC, so broadly speaking that second confession would qualify, I guess.

But the assessment came not from FBI, which had the lead investigating the Undiebomb attack, but from the CIA. Which ought to give you pause, given that just months before this memo was written, the intelligence community’s partners had convinced the US that they hadn’t killed a Bedouin clan in the al-Majala strike. Indeed, the intelligence relating to Awlaki seemed to be consistently stinky until such time as the CIA set up its own drone base in Saudi Arabia in mid-2011.

Besides, what are we executing American citizens based on the CIA’s assessment for anyway?

At least according to David Barron, the case against Awlaki came not from FBI, but from CIA. That doesn’t mean CIA didn’t have evidence supporting its claims (and remember, CIA has a role in HIG, as does JSOC). But it does suggest Abdulmutallab’s second confession may not have the role the defenders of Awlaki’s execution like to cling to.

Fact-Checking 9/11 Anniversary Report on Info and Dragnets with 9/11 Report

/4 Comments/in , , , /by

In Salon, I point out something funny about the report released on Tuesday to mark the 10 year anniversary of the release of the 9/11 Commission report. The report says we must fight the “creeping tide of complacency.” But then it says the government has done almost everything the 9/11 Commission said it should do.

There is a “creeping tide of complacency,” the members of the 9/11 Commission warned in a report released on Tuesday, the 10-year anniversary of the release of their original report. That complacency extends not just to terrorism. “On issue after issue — the resurgence and transformation of al Qaeda, Syria, the cyber threat — public awareness lags behind official Washington’s.” To combat that “creeping tide of complacency,” the report argues, the government must explain “the evil that [is] stalking us.”

Meanwhile, the commissioners appear unconcerned about complacency with climate change or economic decline.

All that fear-mongering is odd, given the report’s general assessment of counterterrorism efforts made in the last decade. “The government’s record in counterterrorism is good,” the report judged, and “our capabilities are much improved.”

If the government has done a good job of implementing the 9/11 Commission recommendations but the terror threat is an order of magnitude worse now, as the report claims, then those recommendations were not sufficient to addressing the problem. Or perhaps the 13 top security officials whom the Commission interviewed did a slew of other things — like destabilizing Syria and Libya — that have undermined the apparatus of counterterrorism recommended by the original 9/11 Commission?

Which is a polite way of saying the 10-year report is unsatisfying on many fronts, opting for fear-mongering than another measured assessment about what we need to do to protect against terrorism.

Perhaps that’s because, rather than conduct the public hearings with middle-level experts, as it boasted it had done in the original report, it instead privately interviewed just the people who’ve been in charge for the last 10 years, all of whom have a stake in fear and budgets and several of whom now have a stake in profiting off fear-mongering?

Suffice it to say I’m unimpressed with the report.

Which brings me to this really odd detail about it.

The report takes a squishy approach to Edward Snowden’s leaks. It condemns his and Chelsea Manning’s leaks and suggests they may hinder information sharing. It also suggests Snowden’s leaks may be impeding recruiting for cybersecurity positions.

But it also acknowledges that Snowden’s leaks have been important to raising concerns about civil liberties — resulting in President Obama’s decision to impose limits on the Section 215 phone dragnet.

Since 2004, when we issued the report, the public has become markedly more engaged in the debate over the balance between civil liberties and national security. In the mid-2000s, news reports about the National Security Agency’s surveillance programs caused only a slight public stir. That changed with last year’s leaks by Edward Snowden, an NSA contractor who stole 1.7 million pages of classified material. Documents taken by Snowden and given to the media revealed NSA data collection far more widespread than had been popularly understood. Some reports exaggerated the scale of the programs. While the government explained that the NSA’s programs were overseen by Congress and the courts, the scale of the data collection has alarmed the public.

[snip]

[I]n March, the President announced plans to replace the NSA telephone metadata program with a more limited program of specific court-approved searches of call records held by private carriers. This remains a matter of contention with some intelligence professionals, who expressed to us a fear that these restrictions might hinder U.S. counterterrorism efforts in urgent situations where speedy investigation is critical.

Having just raised the phone dragnet changes, the report goes on to argue “these programs” — which in context would include the phone dragnet — should be preserved.

We believe these programs are worth preserving, albeit with additional oversight. Every current or former senior official with whom we spoke told us that the terrorist and cyber threats to the United States are more dangerous today than they were a few years ago. And senior officials explained to us, in clear terms, what authorities they would need to address those threats. Their case is persuasive, and we encountered general agreement about what needs to be done.

Senior leaders must now make this case to the public. The President must lead the government in an ongoing effort to explain to the American people—in specific terms, not generalities—why these programs are critical to the nation’s security. If the American people hear what we have heard in recent months, about the urgent threat and the ways in which data collection is used to counter it, we believe that they will be supportive. If these programs are as important as we believe they are, it is worth making the effort to build a more solid foundation in public opinion to ensure their preservation.

This discussion directly introduces a bizarre rewriting of the original 9/11 Report.

Given how often the government has falsely claimed that we need the phone dragnet because it closes a gap that let Khalid al-Midhar escape you’d think the 9/11 Commission might use this moment to reiterate the record, which shows that the government had the information it needed to discover the hijacker was in the US.

Nope.

It does, however, raise a very closely related issue: the FBI’s failure to discover Nawaf al Hazmi’s identity. Read more →

AQAP Drone Strikes Obama’s Awlaki Drone Story

/1 Comment/in , /by

Shirhi Abdulmutallab KissTwo days before the Administration was due to release a memo laying out its rationale for drone-killing American citizen Anwar al-Awlaki, AQAP released a video that challenges the narrative the Administration has used for doing so.

As Gregory Johnsen reports, the memo shows (see correction below) former Gitmo detainee Said al-Shihri embracing Umar Farouk Abdulmutallab, then whispering in his ear.

In the video, Shihri says he was the head of external operations — the title the US always used to describe Anwar al-Awlaki.

The video says that it was Shihri — not Awlaki — who was “responsible for external operations against America.” For years, the Obama administration has argued the opposite, claiming that Awlaki was directing AQAP’s efforts against the U.S., including the failed underwear bomb on an airliner over Detroit on Christmas Day 2009.

On the day Awlaki was killed, Obama called him “the leader of external operations for al-Qaeda in the Arabian Peninsula” and said he “directed” the 2009 attack. The video appears to refute both claims, giving credit to Shihri, the former Guantanamo Bay detainee.

Halfway through the video there is a clip of Shihri embracing Umar Farouk Abdulmutallab, the underwear bomber in the Christmas Day attack, and whispering in his ear as a narrator reads that the attack was conducted “under the direct supervision of (Shihri) and a number of his brothers in the section in charge of external operations.”

While there may be some disagreement about how best to translate Shihri’s role — “directed” or “supervised” — this video clearly says that Shirhi was in charge, directly to the contrary to the narrative DOJ released purportedly summarizing Abulmutallab’s confession (the one that conflicted in key ways with his two other confessions).

What Johnsen doesn’t say — but is clear from comparison — is that that embrace took place while Abdulmutallab was dressed to make his martyrdom video.

Compare this frame, which appears just after the embrace in the new video (at 21:54),

Abdulmutallab Video Shihri

With this one from Abdulmutallab’s martyrdom video (at 0:52).

Abdulmutallab Video Martyr

That’s important because arranging to make the martyrdom video is one of the tasks DOJ’s narrative says Awlaki did.

Awlaki told defendant that he would create a martyrdom video that would be used after the defendant’s attack. Awlaki arranged for a professional film crew to film the video. Awlaki assisted defendant in writing his martyrdom statement, and it was filmed over a period of two to three days. The full video was approximately five minutes in length.

Shihri’s presence at the making of Abdulmutallab’s martyrdom video doesn’t refute the claim that Awlaki had a role in making it (though none of the experts I have asked has ever given a remotely credible explanation why AQAP’s greatest English-language propagandist and someone formally schooled in English would make a martyrdom video in Arabic). But it does place him there, suggesting Awlaki was not the only one directing the production of the video, if he had a role at all.

This video definitely doesn’t prove that Awlaki didn’t have an operational role in the UndieBomb attack. But it shows that the narrative the government released — which Abdulmutallab’s lawyer said had been made in the context of a plea deal never finalized and which the government agreed not to rely on at the trial, where it could have been challenged — neglects not just the role of Fahd al-Quso, but also Said al-Shihri. It is, at the very least, incomplete in some important ways.

And yet that is the only public “proof” the government has ever released that justified their execution of Anwar al-Awlaki.

Update: Apparently al-Shihri isn’t the one portrayed in this video, Nasir al-Wuhayshi is. In which case this connection is not meaningful.

Please No Drone and/or Targeted Killing FISA Court!

/5 Comments/in /by

Last year, after the drone white paper demonstrated how shoddy were the Obama Administration’s claims to be able to kill Anwar al-Awlaki, a group of Senators decided the best way to avoid difficult questions but appear to address the issue would be to have the FISA Court review drone and/or targeted killings before they happened. I did a series of posts laying out what a horrible idea that was. I showed:

  • The FISA Court has a history of  unquestioningly accepting evidence from dubious sources, including torture
  • Certain factual issues a drone and/or targeted killing court would need to judge — including the scope of the AUMF — are not well defined and should not be defined by the Executive in secret
  • The Administration claims the authority to conduct targeted killings for pre-crime, which a court has no way of assessing (and which should not be sanctioned in law)
  • Decisions by the FISC — such as interpreting “relevance” to authorize vast suspicionless collections of data and permitting back door searches of content collected off of programatic orders — prove that the court no longer fulfills its originally intended purpose

As a reminder, I argued the claims in that last bullet in February 2013.

The Fourth Amendment holds that judges must decide whether wiretaps are reasonable or not.

Yet after the FISA Amendments Act, that’s not what happens. Rather, judges are deprived of the ability to do more than review the government’s certifications about targeting and minimization. Once a judge has done so, however, the government can not only bulk collect telecommunications involving someone overseas, but it can later search on those telecommunications to get to the US person’s side of the conversation, apparently without court review on the back side.

Effectively, discretion over this massive system has collapsed back inside the Executive Branch.

And all that’s before the government’s use of the secret law that Mark Udall and Ron Wyden keep complaining about, which probably involves — in part — the bulk collection of geolocation information from cell phones. It’s also before the government has interpreted the word “relevance” to justify other massive collection programs (at a minimum, of things like hydrogen peroxide and acetone purchases) involving US persons.

In short, the FISA Court has become a venue not for judges to exercise individualized discretion about probable cause. Rather, it has become the venue in which the government uses the secrecy offered to develop expansive legal interpretations to support vast new spying programs it won’t even tell Americans about. Not only the promise of individualized judicial discretion has been eliminated, so has the very premise that American should know what laws they are subject to.

In June and August of last year, Snowden disclosures led the rest of the world to recognize that the FISC had authorized back door searches without judicial review of programmatic collection, had authorized the bulk collection of data from cell phones (though more limited collection of location data), and had interpreted the word “relevance” to mean “all.”

That is, my argument that the FISC was broken and therefore couldn’t be trusted with matters of life and death came to be accepted by just about everyone, up to and including Administration officials who agreed to make cosmetic (though not functional) changes to the FISC.

Along the way, we have also learned that the government is not complying with Congressional intent with respect to defendants’ rights, meaning the efficacy of the FISC in protecting constitutional rights has avoided the tests it should have had.

Yet the changes we have made — effectively inviting the FISC to call their existing clerks “advocates” to provide the patina of adversarial review — really are no more than cosmetic, and USA Freedumber has aspects that would weaken the FISC even further.

I thought all this had led people to see the folly in using the FISC to judge drone and/or targeted killings.

Nope.

Read more →