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Could the UndieBomber Have Destroyed the Plane?

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There are two new minor details in the UndieBomber, Umar Farouk Abdulmutallab’s, case. He was scheduled for a pre-trial hearing tomorrow, but his lawyer, Anthony Chambers, just submitted a waiver of Abdulmutallab’s presence at the hearing, and the judge rescheduled the hearing for two weeks later. This is significant only insofar as it’ll prevent him from firing Chambers, as he fired his public defenders in September.

In another filing submitted yesterday, Chambers asks for the file the public defender kept during the time they represented Abdulmutallab. Here’s the interesting bit about that request:

That counsel herein further believes that the file contains expert information which disputes the governments allegations and furthermore, that the alleged attempt to “destroy an aircraft” was impossible!

Now, I’ve seen reports to that effect on the Toobz. For example, a terrorism and explosives expert did a rough reenactment of the UndieBombing attempt, and found it would not have destroyed the plane.

Dr John Wyatt, an international terrorism and explosives adviser to the UN, replicated the conditions on board the Detroit flight on a decommissioned Boeing 747 at an aircraft graveyard in Gloucestershire, England .

Wyatt used the same amount of the explosive pentaerythritol that the bomber carried, about 80 grams, which packs about the punch of a hand grenade. They put it on the same seat and lit off a controlled explosion, which sent a shock wave through the aluminum exterior.

The metal was permanently bowed out, and a handful of rivets were punched out, but no gaping holes appeared. The pressurized air inside the cabin would have slowly leaked out .

Wyatt and his cohorts say that wouldn’t have been life-threatening, and it wouldn’t have brought down the plane. However, the blast would probably have killed the bomber and the person next to him

But this suggests some expert actually told the Public Defender’s office that the UndieBomber was never able to destroy the plane he was on.

The entire flying public is now subject to gate grope because of Abdulmutallab. Is it possible that, all this time, he was never a competent threat to the plane he was on?

Then again, given that the FBI now seems to be routinely entrapping people into trying to set off inert bombs the FBI made, I’m not sure it’ll make a difference in court.

White House: Only 170,000 People Have Had Genitalia Groped by Complete Stranger in Last Week

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The White House has started a pushback campaign on gate rape that is reminiscent of “Recovery Summer” or “Mission Accomplished” for its credibility.

It consists of a number of things, in addition to the inevitable army of talking-point-people using the word “enhanced” the same way Cheney did.

First, there are statistics. Such as their claim that only 1% of people undergo pat-downs.

In airports where body screening technology is available, about one in every 100 passengers are given pat-downs, according to another official, Sean Smith, the DHS spokesperson.

Which may or may not contradict their other claim, that less than half of one percent of all air passengers have undergone “enhanced pat-downs.”

For instance, the administration noted that fewer than one half of one percent of the 34 million passengers who traveled on airplanes in or to the U.S. last week were subjected to crotch-area pat-downs.

So the White House’s idea of effective pushback against objections to this invasive scrutiny? “Only 170,000 people have had their genitalia groped by a complete stranger employed by the federal government in the last week. Big. Fucking. Deal.”

That sort of seems like a lot of junk-touching in just one week.

They’re also citing the polls and the numbers of complaints from before the junk-touching started in earnest so as to claim that no one much cares about being groped.

But here’s the thing I find most offensive.

The president said this weekend that while he understands the “frustrations” that the policies seem to have caused, “at this point, TSA in consultation with counterterrorism experts have indicated to me that the procedures that they have been putting in place are the only ones right now that they consider to be effective against the kind of threat that we saw in the Christmas Day bombing.” [my emphasis]

Um, no. You see, after the underwear bombing, we had a whole bunch of studies that examined what went wrong and what might have been effective against the underwear bomber. And the answer–in the face of clear fuck-ups by the NCTC and CIA (and to a much lesser degree, the FBI for which John Pistole then served as second-in-command)–the answer was to stop fucking up and start sharing information. To claim that junk-touching is the only thing that would be effective at stopping the undie bomber, when we know that the intelligence community had already identified Umar Farouk Abdulmutallab but failed to stop him, is an out and out lie.

Mind you, crotch groping might be effective if al Qaeda or another terrorist organization decided to launch the same type of attack, this time from within the United States. Or it might be effective against another sort of attack we haven’t yet thought up. Then again, it pointedly wouldn’t be effective against an attack by an organization that has proven itself capable of adjusting and exploiting new weaknesses–that is, the organization we’re fighting.

But to claim crotch-groping in the United States is the only procedure that would have been effective against an attack launched by an identified terrorist flying from another country, which is, after all “the kind of threat we saw in the Christmas Day bombing,” when we know the procedure that would have been effective is in fact simply sharing the information we had already collected?

That’s a pretty brutal pinch of the ‘nads.

The UndieBomber Hearing

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The UndieBomber, Umar Farouk Abdulmutallab, had his first day in court since he decided to represent himself today. The outcome of the day was to schedule another pre-trial hearing on January 12.

The only drama of the day pertained to whether Abdulmutallab would grant his standby counsel, Anthony Chambers, access to discovery. Abdulmutallab stated he thought it was unnecessary. But then Judge Nancy Edmunds overrode that judgment and ordered the government to hand over discovery. Abdulmutallab did waive his right to speedy trial, thus granting Chambers the 90 days he requested to review the discovery. (Prosecutor Jonathan Tukel suggested that Abdulmutallab should just hand over the discovery — which would have had the effect of depriving Chambers of discovery — but Chambers objected with Edmunds’ support.)

Abdulmutallab seems to have no objection to Chambers himself, and it seems likely Chambers will be doing more than just stand-by counsel, while still giving Abdulmutallab the ability to object.

Abdulmutallab, by the way, was brought into the court room in khaki pants and a short-sleeve khaki shirt over an untucked t-shirt and blue sneakers — which all looked like a boy scout uniform, particularly given that Abdulmutallab is so short (probably shorter than my 5’6″). He had only a thin set of red handcuffs, and those were removed for the hearing itself.

Another day, another uneventful civilian hearing for an accused terrorist, yet more proof that the civilian courts can handle terrorist cases.

Update: The big news of the day in the Detroit court house, I should say, was not that a scary terrorist had a hearing leading up to his civilian trial. Rather it was that 85 people (many of whom appeared to be, as would be normal in Detroit, Arabs) got sworn in as American citizens.

Rule of civilian law and a bunch of immigrants becoming citizens. It’s a good day in America!

The Secrets They’re Keeping Selectively Leaking about Anwar al-Awlaki

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As I noted yesterday (and Glenn has examined at more length), in addition to asserting that the government can target Anwar al-Awlaki … because they said so, the Obama Administration also invoked state secrets in its motion to dismiss the ACLU/CCR suit challenging targeted killings.

The Obama Administration has officially positioned itself to the right of hack lawyer David Rivkin.

But the state secrets invocation is interesting not just because it shows a Democratic Administration out-hacking a noted hack.

For example, I think the invocation shows just how weak they recognize their own argument to be. Consider what Robert Gates (who invoked something newfangled called the “military and state secrets privilege”) and James Clapper described as falling under their invocation of state secrets (Leon Panetta basically said only that CIA could neither confirm nor deny its involvement, which sort of makes me wonder whether CIA really has targeted al-Awlaki or not).

Robert Gates:

A. Intelligence information DoD possesses concerning AQAP and Anwar al-Aulaqi, including intelligence concerning the threat AQAP or Anwar al-Aulaqi pose to national security, and the sources, methods, and analytic processes on which any such intelligence information is based;

B. Information concerning possibly military operations in Yemen, if any, and including criteria or procedures DoD may utilize in connection with such military operations; and

C. Information concerning relations between the United States and the Government of Yemen, including with respect to security, military, or intelligence cooperation, and that government’s counterterrorism efforts.

James Clapper:

A. (U) Intelligence information concerning al-Qaeda and the sources and methods for acquiring that information.

B. (U) Intelligence information concerning AQAP and the sources and methods for acquiring that information.

C. (U) Intelligence information concerning Anwar al-Aulaqi and the sources and methods for acquiring that information.

The Administration is sort of kind of relying on the President’s authority under the AUMF (unless the judge doesn’t buy that argument, in which case the Administration promises to try something else), which states:

That 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 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.

In other words, the Administration is relying on some tie between AQAP and the al Qaeda organization that hit us on 9/11 for its authority to kill an American citizen with no due process. Mind you, it can’t say precisely what that tie is–whether AQAP is al Qaeda or whether it is just closely connected enough to be included under the AUMF. But that’s precisely what it has called a state secret: the evidence of ties between the group against which Congress declared war in 2001 and the group we’re targeting in Yemen.

Effectively, the Executive Branch–with no known support from Congress–is saying we’re at war against AQAP. But it’s also saying no one outside of select people within the Executive Branch (and, presumably, a group of four or maybe eight members of Congress who serve in leadership or on the Intelligence Committees) can see the evidence that proves we’re at war against AQAP.

The President has unilaterally declared war against a group but then said no one can see why he has done so.

And then both Gates and Clapper invoke state secrets over the evidence the government has against al-Awlaki.

Rather than prove to a judge that they even have reasonable suspicion to believe al-Awlaki is part of AQAP, much less enough evidence to execute him, the government has instead asserted that all of that is a state secret. They’ve declared everything al-Awlaki would need to challenge his execution a state secret. Even KSM will be able to see the evidence against him; and he has admitted to killing 3,000 Americans. But American citizen al-Awlaki, whom no one has accused of actually killing anyone, can’t see the same kind of information.

Finally, there’s the tired old sources and methods catch all. We can’t know how the government has collected the evidence it has against al-Awlaki.

Except we already do.

Thanks largely to the efforts of Crazy Pete Hoekstra, we know that the government had wiretaps on al-Awlaki going back at least since December 2008. Al-Awlaki himself has challenged the government to release the intercepts they have on him (which public reports say include correspondence with tens of thousands of people). Al-Awlaki has even made some of that correspondence available himself. But the government says all that is a state secret.

Furthermore, some of the evidence against al-Awlaki appears in court documents, from the public testimony of Umar Farouk Abdulmutallab. The alleged recruitment of Abdulmutallab is one of the key issues the government describes al-Awlaki to have been involved in. That information is public. Yet the government also says it is a state secret.

And if all this really is a state secret, then why isn’t Crazy Pete Hoekstra in jail? Read more →

Eight Months after Putting Anwar al-Awlaki on Kill List, DOJ Considers Charges

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Back in January, Dana Priest first revealed that Anwar al-Awlaki was on a JSOC kill list and was being considered for a CIA kill list. Now, eight months later, DOJ is considering charging him.

The Obama administration is considering filing the first criminal charges against radical cleric Anwar al-Awlaki in case the CIA fails to kill him and he’s is captured alive in Yemen.

[snip]

Such charges, however, would come with political and intelligence-gathering risks. Counterterrorism officials regard al-Awlaki as a terrorist operative, not just a preacher, but they have revealed few specifics. Charging al-Awlaki with having direct involvement in terrorism could require the U.S. to reveal evidence gleaned from foreign wiretaps or confidential informants.

Now, it appears DOJ sources are throwing some baloney in with this news. For example, the claim that criminal charges might require the US to reveal evidence collected using wiretaps doesn’t sound all that awful, given that the contents of some of the wiretaps of al-Awlaki’s communications with Nidal Hasan have already been published. The government didn’t seem to have a problem leaking these intercepts earlier this year…

And the claim that they’re charging al-Awlaki just in case they happen to capture him alive rather than dead (opps!)? I’d suggest it probably has a lot more to do with the suit CCR and ACLU have taken against the government. I’m guessing that following shortly on formal charges, DOJ will tell the courts they can’t litigate the al-Awlaki suit because it pertains to an ongoing criminal investigation. Voila! No discovery in the lawsuit!!

Particularly given this detail:

If the Justice Department decides to charge al-Awlaki, it’s likely he would not be indicted. Rather, charges are more likely to take the form of an FBI complaint. That’s because an indicted suspect automatically gets the right to an attorney if he is captured, making it harder for authorities to question him.

In other words, this doesn’t appear to be an effort to finally use due process before targeting an American citizen with assassination. Rather, it seems to be more about closing off legal options to that American citizen.

Update: Here’s the joint ACLU/CCR statement on this:

Our organizations have long stated that if the government has evidence that Anwar Al-Aulaqi is involved in terrorist activity, it should present that evidence to a court – not authorize his execution without charge or trial. Now, months after the government announced its intent to kill Al-Aulaqi, it may finally bring charges against him. This would be a step in the right direction. The constitutional guarantee of due process relies on the critical distinction between allegations and evidence. If the reports that charges may be brought against Al-Aulaqi are true, the fact that it has taken the government this long – months after having announced his death sentence – suggests that, in this case, the government’s allegations were far ahead of its evidence.

While bringing charges against Al-Aulaqi based on credible evidence would be a step in the right direction, it would not mean that he could now be targeted for killing without trial. It is well established that the government cannot use extrajudicial killing to punish people for past acts, but only to prevent grave and imminent threats. A criminal charge for past crimes does not provide a license to kill.

We continue to believe that the courts must play a role in establishing legal standards for when the government can take the life of one of its own citizens without charge or trial. For that reason, we will continue with our litigation.”

In First Act as DNI, James Clapper Adds to Redundancy Competitive Analysis

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When James Clapper testified before the Senate Intelligence Committee, he rejected one of the central criticisms in the WaPo’s Top Secret America series–that the redundancy in the Intelligence Community contributed to waste and intelligence failures.

Clapper disputed criticism of redundancy in intelligence programs, saying that duplication is sometimes a conscious decision. “One man’s duplication is another man’s competitive analysis,” he said.

Perhaps it should come as no surprise, then, that his first act as DNI is to add to the redundancy.

After my second week on the job, I wanted to let you know what an honor it is to be leading this Community of such skilled and dedicated professionals.

When President Obama asked me to lead the Intelligence Community he said he wanted someone who would continue to build our enterprise into an integrated team.  I have begun to embark on that process and wanted to share with you a few of my initial thoughts and plans.

I have asked DIA Deputy Director Robert Cardillo to join ODNI in the newly-created role of Deputy Director for Intelligence Integration.  While the specifics of this position are still being developed, it unites the roles of Analysis and Collection to elevate information sharing and collaboration between these two essential functions.

Admittedly, Clapper doesn’t explain what he just hired a top DOD intell guy to do, but it sure seems like it overlaps with the mandate of the National Counterterrorism Center.

NCTC serves as the primary organization in the United States Government for integrating and analyzing all intelligence pertaining to terrorism possessed or acquired by the United States Government (except purely domestic terrorism); serves as the central and shared knowledge bank on terrorism information; provides all-source intelligence support to government-wide counterterrorism activities; establishes the information technology (IT) systems and architectures within the NCTC and between the NCTC and other agencies that enable access to, as well as integration, dissemination, and use of, terrorism information.

NCTC serves as the principal advisor to the DNI on intelligence operations and analysis relating to counterterrorism, advising the DNI on how well US intelligence activities, programs, and budget proposals for counterterrorism conform to priorities established by the President.

And the move is all the more bizarre given that Clapper only has this job because the Administration chose to fire Dennis Blair rather than hold Michael Leiter, the Director of the NCTC, responsible for failing to connect the dots on the UndieBomber attack, even though it appears that Leiter deserves more of the blame. So if I’m right that this new position is duplicative of the NCTC position, then the Administration has chosen not to fire the guy most responsible for missing the UndieBomber clues, and instead fire the DNI and replace him with a guy that–rather than firing the guy most responsible for missing the UndieBomber clues–will instead just create a second version of that guy’s position.

Now in an ideal world, the next time someone misses an attack, we’ll be justified in firing Clapper, since he’s the guy who opted for redundancy rather than holding one person responsible. But I’m guessing by then Clapper will be capitalizing on his inevitably short tenure as DNI, getting rich heading six or eight intelligence contractors.

WaPo Top Secret Story: Why Not Nominate God to Be Director of National Intelligence?

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I trust you will all read Dana Priest and William Arkin’s story on the unwieldiness of our Intelligence Industrial Complex. It is good, insofar as it focuses needed attention on a huge problem.

But boy is it itself unwieldy. Today’s overview appears to want to be two stories: one on the problem with out-of-control contracting, and one on how that led to the failure to identify the Nidal Hasan and UndieBomber threats.

Moreover, what I find utterly shocking is that today’s 5315-word installment includes only this reference to the simmering battle over intelligence reform and the Director of National Intelligence position and tomorrow’s confirmation hearing for James Clapper!

“There’s only one entity in the entire universe that has visibility on all SAPs – that’s God,” said James R. Clapper, undersecretary of defense for intelligence and the Obama administration’s nominee to be the next director of national intelligence. [my emphasis]

Remember, this hearing is tomorrow. The debate that has led up to it has covered whether or not we need a stronger DNI, whether or not GAO can audit intelligence programs, and whether more than 4 people should be briefed on major new intelligence programs.

Every single one of the issues that has led to tomorrow’s confirmation hearing is an issue that goes to the heart of the problems identified in the WaPo piece: the ongoing lack of real value-added analysis to make sense of all the intelligence collected, the opacity and potential waste and fraud of the entire IIC, and the turf battles that contribute to that waste.

So while I’m grateful that this story (and more importantly, the issues behind the story, since the content of today’s installment has largely already been reported by Tim Shorrock) is getting as much attention as it is, I’m aghast that the WaPo didn’t try to contextualize it by framing the issues in it in terms of Clapper’s nomination to be DNI.

The guy the Obama Administration nominated to be Director of National Intelligence seems glib about the utter lack of transparency and oversight in our intelligence world (his predecessor, Dennis Blair, claims in the story he was able to see it all). One after another high level security official are quoted in the story complaining about the lack of central focus on intelligence–precisely the issue that Clapper’s nomination won’t solve.

If Clapper’s nomination is approved tomorrow–and it sounds like DiFi has resigned herself to approving Clapper not because she thinks he’s adequate to the job but because the interim DNI is retiring shortly–it will represent success on Obama’s part at forestalling efforts to deal in substantive way with the problems identified in the story.

That’s the news in this WaPo story.

The Inexplicable Timing of Dennis Blair’s Ouster

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I’m thoroughly unsurprised by the news of Dennis Blair’s ouster. After all, it’s an impossible job that appears to serve one purpose: to provide a deck chair you can rearrange every two years as a scapegoat for our continuing inability to detect terrorists even with all the surveillance toys we’ve got.

(Actually, if you’re Michael McConnell, it serves a second, more personal, purpose: giving you means to privatize intelligence for the benefit of your once and future employers.)

But I’ve got a few questions after I read the following on Twitter:

Chuck Todd: MT @SavannahGuthrie POTUS asked for Blair’s resignation; Blair appealed to Chief of Staff to make a rebuttal — an offer that went nowhere.

Major Garrett: + Feinstein: “I look forward to working with the President as he identifies his nominee.” Feinstein Cmte rpt final straw for Blair

That is, if you believe the tweets of the White House Press Corps, Blair was ousted by Obama (thoroughly unsurprising news) in response to the SSCI report on the Undie Bomber.

Now, that someone would be canned in response to the SSCI report is also thoroughly unsurprising. It’s a damning report, showing we’ve made little progress since 9/11. Now, several people–like Marc Ambinder and Jeff Stein–seem to think National Counterterrorism Center Director Michael Leiter should be the one canned over this report (and that’s even before you consider that Leiter went on vacation right after Umar Farouk Abdulmutallab’s attempted attack). Whoever gets canned, though, I’m actually a bit pleased that someone will be held responsible for some pretty big failures.

So I understand all that.

It’s the timing I don’t understand. As Ambinder reported earlier this week, this report is not new. It’s just new to us. The White House has had this report for two months.

The SSCI gave its report to the White House and the intelligence agencies two months ago, and an official told me last night that the the IC had made progress implementing many of its regulations. The new budget contains more authority for the DNI to make technical decisions more quickly, which should help with the database issues. A DNI official said that Blair “accepted” blame and is making necessary changes.

If the White House were going to fire Blair in response to the report, why didn’t he get fired two months ago? Why let him start fixing thing (you know, shifting his deck chair), and then fire him?

Or did Rahm and Obama hold off on firing him until this report was declassified so he could serve as a very public scapegoat shortly after its release?

Nine Years after 9/11, Intelligence Community Still Missing Threats to US

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The Senate Intelligence Committee has just released the Executive Summary of its report on the intelligence failures leading up to the Underwear Bomber’s attempted bombing on a plane landing in Detroit. I’ll have a bit more to say in a bit. But I wanted to focus on point 14, which feels an awful lot like that famous August 6, 2001 memo.

Intelligence Analysts Were Primarily Focused on Al-Qaeda in the Arabian Peninsula (AQAP) Threats to U.S. Interests in Yemen, Rather than on Potential AQAP Threats to the U.S. Homeland.

Analysts’ competing priorities contributed to the failure of the Intelligence Community to identify Abdulmutallab as a potential threat. Prior to the 12/25 plot, counterterrorism analysts at NCTC, CIA, and NSA were focused on the threat of terrorist attacks in Yemen, but were not focused on the possibility of AQAP attacks against the U.S. homeland. These other priorities contributed to the failure of analysts to recognize and collate the several pieces of intelligence reporting that mentioned Abdulmutallab.

Nine years and how many billions later, and we still haven’t figured out that terrorists might want to hit us in the United States?

Faisal Shahzad’s “Waiver” of His Rights

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Faisal Shahzad was arrested just before midnight on May 3.

On May 5, the Pakistani newspaper Dawn reported that one of Shahzad’s friends and his father-in-law, Iftikhar Mian (elsewhere named as Mohammad Asif Mian), had been detained by Pakistani intelligence. The same report describes a meeting that took place on May 4, at which Pakistani authorities promised US Ambassador Anne Patterson full cooperation with the investigation. Also on May 5, the AP took a photograph (published in a May 6 Time article) showing a policeman apparently standing guard in front of Shahzad’s father’s house. Later the same day, less than 48 hours after Shahzad’s arrest CBS reported (apparently for a second time, given the title and the picture referring to an arraignment expected but postponed the day before) that Shahzad’s arraignment had been delayed. On May 6, a blog reported that Faisal’s father, retired air force officer Baharul Haq, was taken into “protective custody” by Pakistani officials.

On May 9, Dawn reported that the FBI was seeking access to Shahzad’s father.

On May 11, Dianne Feinstein confirmed that Shahzad had waived his right to speedy arraignment.

On May 14, Pakistan’s Interior Minister stated that there had been no formal arrests in Pakistan related to the Shahzad case.

In all of this reporting, there has been no solid reporting as to the status or location of Shahzad’s wife, American citizen Huma Mian, or his kids, at least one of whom is also US-born (though some reports had her staying at Shahzad’s father’s house).

I raise all this to point out that at a time when it still wasn’t clear whether or not Shahzad would “waive” his rights to appear in court and–apparently–have a lawyer, Pakistani authorities had already detained at least Shahzad’s friend and father-in-law, potentially his father, and might well have police guard on the house at which his wife remained (though, as I pointed out, we have no real clarity as to Huma Mian’s location). All of this presumably occurred in response to the US request for help on May 4, just hours after Shahzad was arrested. And, in that same period of time, Shahzad rather curiously waived not just his right to an arraignment, but possibly also his right to an attorney.

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