The Global War on Wayward Knuckleheads

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103 minutes into todays Global Threat Hearing in the Senate Intelligence Committee, National Counterterrorism Center Director Matt Olsen got asked his first question, about what his agency is seeing as rising threats. As part of the discussion that ensued, he noted that homegrown Islamic terrorists continued to be a threat though, he admitted, such attacks would be “unsophisticated.”

He then admitted that those who get inspired by Al Qaeda propaganda are “wayward knuckleheads.”

The comment sure seems to confirm a key premise of Trevor Aaronson’s book, The Terror Factory. Our domestic war on terror — complete with FBI-concocted plots — really consists of getting wayward knuckleheads to respond to FBI incitment. “FBI’s trawling in Muslim communities has resulted largely in sting operations that target easily susceptible men on the margins of society.”

Meanwhile, Robert Mueller had a curious comment in his discussion about the ongoing al Qaeda threat. He said that airplane plots remain a threat. The individuals responsible for previous airline attempts still out there, he said.

Um, I thought we had killed at least one individual responsible for previous airline attempts in September 2011. You mean Anwar al-Awlaki wasn’t the mastermind of the UndieBomb threat?

Of course not: Ibrahim al-Asiri was the operational mastermind of it (or maybe Abu Tarak!). Which is why we had another purported attempt last year, more than six months after Awlaki died.

In any case, Mueller’s comment seems to be an at least implicit admission that the Administration oversold Awlaki’s single centrality to the first UndieBomb plot.

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No SOFA? Then Transition Death Squad Control from Special Operations to CIA

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A little over a year ago, Greg Miller outlined what he said would be the CIA’s roles in Iraq and Afghanistan in the near future.  It appears now that he was only half right:

The CIA is expected to maintain a large clandestine presence in Iraq and Afghanistan long after the departure of conventional U.S. troops as part of a plan by the Obama administration to rely on a combination of spies and Special Operations forces to protect U.S. interests in the two longtime war zones, U.S. officials said.

/snip/

The withdrawal of U.S. forces from Iraq in December has moved the CIA’s emphasis there toward more traditional espionage — monitoring developments in the increasingly antagonistic government, seeking to suppress al-Qaeda’s affiliate in the country and countering the influence of Iran.

In Afghanistan, the CIA is expected to have a more aggressively operational role. U.S. officials said the agency’s paramilitary capabilities are seen as tools for keeping the Taliban off balance, protecting the government in Kabul and preserving access to Afghan airstrips that enable armed CIA drones to hunt al-Qaeda remnants in Pakistan.

Note that bit about the US withdrawing all of its troops from Iraq in December of 2011. The full withdrawal of course wasn’t what the US intended, but was a result of the botched negotiations for a Status of Forces Agreement that would confer immunity to US troops who remained behind in Iraq after the official “withdrawal”. A significant portion of those troops that would have been left behind would have been Special Operations Forces to train and control counterinsurgency militia groups. We were reminded just last week that these groups in Iraq were responsible for so many atrocities that they became known as death squads. As I pointed out, Petraeus’ counterinsurgency program in Afghanistan was built in the same way.

We have a report today in the Wall Street Journal that shows Miller’s prediction of “espionage only” for the CIA’s role in Iraq was wrong, as militias formerly trained and run by Special Operations Forces are now under CIA control (h/t to Joanne Leon for tweeting me a link to this article):

In a series of secret decisions from 2011 to late 2012, the White House directed the CIA to provide support to Iraq’s Counterterrorism Service, or CTS, a force that reports directly to Iraqi Prime Minister Nouri al-Maliki, officials said.

The CIA has since ramped up its work with the CTS—taking control of a mission long run by the U.S. military, according to administration and defense officials. For years, U.S. special-operations forces worked with CTS against al Qaeda in Iraq. But the military’s role has dwindled since U.S. troops pulled out of the country at the end of 2011.

In Afghanistan, it turns out that the CIA trained its own secret militia very soon after arriving there. Kimberly Dozier and Adam Goldman described the CIA’s Afghan militia back in 2010: Read more →

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Somehow DOD Kept Missing Anwar al-Awlaki

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I was going to leave well enough alone with this NYT article on Anwar al-Awlaki, having criticized both its legal editorializing and its selective presentation of evidence against Awlaki. But since I suspect it is intended to prepare the ground for an Obama speech on targeted killing, I want to look at how assiduously the article hides Yemeni former President Ali Abdullah Saleh’s questionable commitment to our war on terror.

Let’s start by comparing this description of the May 25, 2010 drone strike that killed Saleh rival Jabir Shabwani from the WSJ:

On May 25, 2010, a U.S. missile attack killed at least six people including Jabir Shabwani, the 31-year-old deputy governor of Yemen’s central Mareb province. The Yemeni government provided intelligence used in the strike but didn’t say Mr. Shabwani would be among those there, say several current and former U.S. military officials.

These people say they believe the information from the Yemenis may have been intended to result in Mr. Shabwani’s death. “We think we got played,” said one participant in high-level administration discussions.

The government of President Ali Abdullah Saleh denies it used the U.S. campaign to eliminate a political rival or provided misleading intelligence. They say the president and other officials were furious when they learned of Mr. Shabwani’s death. Not all U.S. officials believe the U.S. was set up.

With the version the NYT gave us:

A disastrous American missile strike in May 2010 accidentally killed a deputy provincial governor in Yemen and infuriated President Saleh, effectively suspending the clandestine war.

While even the WSJ pays lip service to Saleh’s claim to be “furious,” the NYT not only completely ignores the widely held understanding that Saleh was not furious at all because he set up the attack, but claims Shabwani was only accidentally targeted.

The event is one of the signature examples of how our reliance on unreliable partners has contributed to counterproductive drone deaths. And yet the NYT doesn’t explain that part of the tragedy.

Read more →

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18 USC 1119 Foreign Murder and Obama Targeted Kill White Paper

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Back in February, when the “White Paper” was first “leaked”, Marcy wrote a fantastic article entitled Article II or AUMF? “A High Level Official” (AKA John Brennan) Says CIA Can Murder You on the issues of Article II authority versus AUMF authority in relation to the Obama targeted killing program. First off, let me say that the the lack of recognition of the presence of both these these respective authorities in the targeted killing program, even among legal commentators I respect greatly, is one of, if not the, most discouraging aspects of the discussion being had. Sadly, the big filibuster by Sen. Rand Paul did not necessarily improve the understanding, and even the New York Times continues to propagate the misdirection and misinformation peddled by the Obama Administration.

I wish to discuss the interaction of the statutory law contained in 18 USC 1119, the “Foreign Murder statute”, with the greater Obama Administration Targeted Killing Program, and the White Paper foundation for it. Specifically I want to point out the circular and disingenuous way in which the White Paper tries to bootstrap itself, and the Administration, around criminal liability for murder in the case of a targeted US citizen such as Anwar Awlaki. Frankly, Marcy let fly with another must read post on 18 USC 1119 and the White Paper yesterday in the wake of the New York Times sop to the Administration, and it filets both the White Paper, and the NYT, open at the seams.

The most important principle to understand about the White Paper’s discussion of 18 USC 1119 is, as Marcy noted, that it is impertinent if the the law of war (formally the “Law of Armed Conflict” or “LOAC”) is truly in play. In short, if the Administration is using the AUMF – military force – in an active battle situation, there is no need for further discussion, whether Mr. Awlaki is a US citizen or not. That, of course is diametrically opposed to what the facts were at the action point with Awlaki, and that we now know.

The truth is the Administration used a civilian agency, the CIA, to kill a US citizen without judicial due process, far from the “hot battlefield” and that is why such a deliberate attempt was made in the White Paper to obfuscate the legal basis for their targeting and killing, and why such a seemingly inordinate time was spent in the White Paper on a traditional criminal law statute, 18 USC 1119.

The statutory language of 18 USC 1119 states:
Read more →

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Prison Handover Agreement Blows Up, Again, During Hagel’s First Visit to Afghanistan Quagmire

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Exactly one year ago today, I posted on the agreement in principle that would hand over the Detention Facility in Parwan, located near Bagram Air Base, to full Afghan control. I noted at the time however, that the “agreement” depended heavily on semantics and that the US was in fact doing its best retain as much control as possible:

The agreement appears to use semantics to say that the prisons are being handed over today, but with the reality being that there will be a gradual process taking six months. From the New York Times:

The memorandum of understanding would officially hand over control of detainees to an Afghan official as of Friday, but would also allow for a six-month period of transition to full Afghan control of the American-held detainees, American officials said.

As a practical matter, American officials are expected to maintain day-to-day control over the 3,200 detainees, most of them suspected Taliban insurgents.

During the six months, custody of the American-held prisoners would gradually transfer to Afghan authority, with the first 500 prisoners to be transferred within 45 days, according to American military and diplomatic officials who spoke on condition of anonymity as a matter of policy.

The move is a major concession to the Afghans, but the Americans will retain ultimate veto authority over releases of any insurgent detainees as long as American troops are in Afghanistan, and will continue to monitor humane treatment of the prisoners, the American officials said.

With the US maintaining veto power over release of any prisoners, perhaps Senator Graham will have to hold off on throwing his next tantrum, as his major objection to the handover had been that the Afghans would release prisoners who would immediately attack US troops. It’s not clear how the US will be monitoring humane treatment of the prisoners, since it is US training that put the torture methods in place to begin with.

The six month gradual handover phase has now been a full year, during which we have seen many rough patches. At the six month mark, I noted that the US balked on finalizing the handover because the Afghans refused to put into place a system for indefinite detention without trial. But throughout this process, the key really has been that the agreement itself has been a sham (just as with most of our agreements with Afghanistan) primarily because the US continues to maintain that it has final veto power on Afghan decisions to release prisoners.

On Wednesday of this week, the dispute over prisoner release came to a head, as Afghan President Hamid Karzai announced to the Afghan parliament that the final handover of Parwan would take place today and that he would immediately release a number of prisoners he said are innocent. Unsurprisingly, the US today unilaterally cancelled the final handover ceremony, throwing the whole agreement into disarray. From the New York Times: Read more →

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How Long Was Abu Ghaith Detained in Jordan? Was He Tortured There?

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Barack Obama and Eric Holder, in my opinion, have violated the Constitution and international laws on a large number of fronts in carrying out the Great War on Terror, but they are to be commended for their move to try Osama bin Laden’s son-in-law, Suleiman Abu Ghaith, in federal court rather than in a military commission at the US prison in Guantanamo Bay, Cuba. However, in reading reports in this rapidly developing story, a couple of key questions stand out. We only learned yesterday, when New York Republican (or Democrat?) Peter King first broke the news that Abu Ghaith had been captured, that he was to appear today at an arraignment in New York. The exact date on which he was detained is not known and it appears that he spent at least some time in custody in Jordan. The involvement of Jordan in this case is highly problematic, because the Bush administration relied heavily on Jordan for torture of suspects who eventually were sent to Gitmo.

Lara Jakes of AP broke what seems to be the first report on Abu Ghaith’s capture:

Rep. Peter King, the former chairman of the House Homeland Security Committee, credited the CIA and FBI with catching al-Qaida propagandist Sulaiman Abu Ghaith in Jordan within the last week. He said the capture was confirmed to him by U.S. law enforcement officials.

A Jordanian security official confirmed that al-Ghaith was handed over last week to U.S. law enforcement officials under both nations’ extradition treaty. He declined to disclose other details and spoke on condition of anonymity because of the sensitivity of the matter.

But just how long was Abu Ghaith in Jordan? Here is NPR:

Sources familiar with the case tell NPR that bin Laden’s son-in-law left Iran last month to travel to Turkey. He entered the country under a false passport and Turkish authorities subsequently found him and arrested him in a luxury hotel in Ankara, the Turkish capital. They held him briefly but then decided that they couldn’t detain him because hadn’t committed a crime on Turkish soil.

Abu Ghaith is originally from Kuwait. He was stripped of his passport soon after 9-11, so he is essentially stateless. Nevertheless, the Turkish authorities decided to deport him back to Kuwait via Jordan.

It was during that transfer that U.S. officials picked him up, officials said. Some media outlets are reporting that the CIA was involved. Others say it was the Special Forces.

The U.S. government has not said how Abu Gaith came into its custody. But he was flown to New York after a big internal discussion within the U.S. government on the best venue in which to try him. And it appears the decision was to bring charges in a federal court.

Here is how the Justice Department described which US agencies were involved in the capture:

The charges and arrest of Abu Ghayth are the result of the close cooperative efforts of the U.S. Attorney’s Office for the Southern District of New York, the Joint Terrorism Task Force – which principally consists of agents and detectives of the FBI and the New York City Police Department – the United States Marshals Service and the National Security Division of the U.S. Department of Justice.  The Justice Department’s Office of International Affairs and the U.S. Department of State also provided assistance.

The question of whether Abu Ghaith was held by Jordan and for how long is important because of the torture Jordan carried out on behalf of the US during the Bush administration. From a Washington Post story in 2007: Read more →

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Eric Holder Invokes Article II in Suggesting Congress Can’t Legislate Lethal Force

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As I lay out in this Salon post, Eric Holder told Chuck Grassley that Article II of the Constitution would make probably any attempt to limit the use of lethal force in the US unconstitutional.

 Chuck Grassley, R-Iowa, asked Holder whether Congress could prohibit the targeted killing of Americans in America. “Do you believe Congress can pass a law prohibiting POTUS to use lethal force on U.S. soil?” he bluntly asked, explaining he meant the prohibition would apply only where a person did not present an imminent threat.

“I’m not sure that such a bill would be constitutional,” the attorney general responded. “It might run contrary to the Article II powers that the president has.” Article II is the section of the Constitution that lays out the president’s authority as commander in chief of the military.

Holder went on to embrace a view of the AUMF (as he has before) that ignores Congress’ refusal in 2001 to authorize the use of military force in the US.

Holder embraced a view of the 2001 Authorization to Use Military Force that completely ignores the legislative history of the law that authorized the war against al-Qaida. “We didn’t exempt the homeland in the AUMF did we?” Lindsey Graham, R-S.C., asked the attorney general, in a question setting up his support for presidential use of lethal force in the U.S. “No,” Holder replied, “I don’t think we did.”

The attorney general may believe Congress authorized the use of lethal force in the U.S. with the AUMF, but former Senate Majority Leader Tom Daschle has made it clear that Congress refused to authorize military force in the U.S. “Literally minutes before the Senate cast its vote,” Daschle revealed in a 2005 Op-Ed that described the legislative process behind the AUMF, “the [George Bush] administration sought to add the words ‘in the United States’” into the authorization. Such a change, Daschle continued, “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.”

Back in 2001, Congress very specifically refused to authorize lethal force against Americans.

It has long been clear that the Administration believed — as John Yoo did — that nothing can limit their authority in the war against terror. But these were rather more blunt admission than normal.

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Karzai Claims Final Handover of Parwan Prison Coming, Will Release “Innocents”

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In a move that is guaranteed to provoke another tantrum from Lindsey Graham, Afghan President Hamid Karzai announced to the Afghan parliament today that final handover of the Detention Facility in Parwan to full Afghan control will take place on Saturday and that he plans to release prisoners that he says are innocent. Both AFP and Radio Free Europe have reported Karzai’s claims. From AFP:

“Our efforts for the transfer of the US-run prison, years-long efforts, have eventually paid off and next week the transfer will at last take place,” Karzai told the opening of a new parliamentary session in Kabul.

“This transfer of prison will take place on Saturday,” he added.

“We understand that there are some innocent people in these jails, I will order their release, no matter if there is criticism.”

Radio Free Europe also carried Karzai’s call for abuse to end in Afghan prisons:

Karzai on March 6 also called on his security forces to end incidents of torture and abuse of their countrymen.

“Today, I want to promise the people of Afghanistan that they are safe inside their houses,” Karzai said. “The law should take its course only in relations to the criminals. I call on their parliament to raise their voice and react strongly to cases of abuse, if they hear about it. As long as we do not end abuse and torture in our own institutions, we cannot stop others.”

An investigation by the government last month unveiled widespread abuse in prisons run by Afghan forces. The findings backed a recent United Nations investigation that Kabul initially rejected.

These words from Karzai on ending abuse in Afghan prisons are an encouraging development. Let’s hope the words are followed with action against those who have been involved in torture.

If it does occur, this handover will be an important next step in the US transferring authority to the Afghan government. However, handover of the prison has been a very long process in which the US has bargained in bad faith. Back in November, Karzai lashed out at US deception in this process.

Note also Karzai’s reference today to Afghans being “safe inside their houses”. That is clearly a reference to the hated US practice of night raids, which Karzai has also been looking to end. Of course, US night raids are the primary source of innocent Afghans being in US-run prisons, so it should be no coincidence that Karzai would speak of innocents being detained and night raids in the same speech.

It should also be noted that the US has a long history of secret prisons in Afghanistan and, as Marcy has noted, Obama still claims the right of indefinite detention without charges in Afghanistan, so don’t look for Saturday’s handover, if it occurs, to include those prisoners that Obama and Holder believe to be their most important, even if they can’t come up with a way to charge these prisoners with any actual crimes.

Karzai’s move to release prisoners he says are innocent could well provoke a showdown. As I reported last April, the prison agreement (and the night raid agreement, for that matter, too) although described as giving the Afghans full authority, in reality was a sham that left the US with full veto power over the release of prisoners. Will the US try to prevent Karzai releasing these prisoners? Or will the US simply re-arrest them and take them to a facility still under US control?

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Does This Explain Why Minh Quang Pham Is Languishing Away?

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TBIJ has a troubling report (see also this Independent story) on a number of British citizens who have been stripped of their citizenship so they can be targeted by drones or rendered here to the US. I described the fate of one of them — Mahdi Hashi — here. Another was the Russian spy Anna Chapman, though that happened after her arrest here.

I’m particularly interested, however, in this entry in TBIJ’s report.

B2
Deprived December 2011. Successfully challenged. Government now appealing.

This is one of three known cases where notice has been served on an individual while they were still in the UK. B2 came to the UK as a child with his refugee Vietnamese parents. He became a UK citizen in 1995, and later converted to Islam. In 2010 he reportedly traveled to Yemen, where MI5 alleges he trained with al Qaeda in the Arabian Peninsula (AQAP). He apparently returned to the UK in July 2011 and the Home Secretary informed him he would lose his British citizenship that December. B2 appealed, saying the decision would make him stateless. The Vietnamese government agreed that he was not its citizen, and the order was overturned. However the Home Office told the Bureau it is appealing. B2 is thought still to be in the UK.

These details make B2 sound like Minh Quang Pham, whom I wrote about here and here. Though here’s the timeline DOJ offered when they conspicuously announced Pham’s arrest last May, with a few additional details from Pham’s docket included.

December 2010: Pham travels from the UK to Yemen.

March 2011: Pham’s military training in Yemen begins.

March and April 2011: Pham carries a Kalashnikov.

April 2011: Pham works with Samir Khan and meets Anwar al-Awlaki.

July 2011: End date for military training in Yemen.

September 27, 2011: AQAP releases Inspire, Issue 7.

September 30, 2011: Khan and Awlaki killed in drone strike.

December 2011: End date of material support charges.

May 24, 2012: Pham indicted in NY.

June 29, 2012: Pham “arrested,” while still being held by British authorities in immigration custody. Indictment publicly released by DOJ.

August 23, 2012: Pham’s indictment officially unsealed.

Compare that to these dates regarding the UK’s efforts to strip B2’s citizenship.

February 9, 1983: B2 born in Vietnam.

August 1989: B2 travels with parents to UK, where they are granted asylum.

1995: B2 and his family get British citizenship.

December 2010: B2 travels to Yemen.

July 25, 2011: B2 leaves Yemen.

December 20, 2011: British Secretary of State decides to strip B2 of his citizenship.

December 22, 2011: British SoS provides notice and strips B2 of citizenship.

January 13, 2012: B2 appeals decision based on claim he would be stateless if he lost British citizenship.

June 13-14, 2012: B2’s citizenship hearing.

June 29, 2012: B2’s appeal succeeds.

Much of this lines up perfectly: The December 2010 departure for Yemen, the July 2011 end to military training, and the December 2011 immigration detention.

More important still, note that the British court released its decision about B2 on the same day — June 29, 2012 — that DOJ hastily announced Pham’s arrest, though without formally unsealing his indictment (note, DOJ’s original press release, though not FBI’s version, got disappeared, though can still be accessed via Internet Archive; see also this screen cap showing the press release missing).

The only discrepancy — and it may not be one — is B2’s claim he left Yemen on July 25, 2011. While DOJ’s military training charges end in July 2011, its material support charges continue until December 2011. Though note this Telegraph article says Pham was arrested when he arrived in Heathrow on July 27, 2011.

In short, unless there are a whole lot more Vietnamese refugees to Britain wandering back and forth from Yemen on the very same days, B2 is Pham.

Not only that, but it’s clear his “arrest” appears to be nothing more than an attempt to establish a fall-back position if and when holding him in immigration detention becomes impossible because he gets his citizenship restored. Barring that, they may well leave Pham in immigration custody in the UK indefinitely.

The most curious aspect of all this, though, is that material support charge that continues while, at least according to the Telegraph, Pham was in custody. Maybe the Telegraph is wrong, but if not, it means — according to the US — Pham continued to materially support AQAP while in British custody.

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Insider Attack Kills Seventeen at Afghan Local Police Post Staffed Under New Screening Program

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Detail from CIA map of Afghanistan.

Detail from CIA map of Afghanistan. Click on map for a larger view.

The Afghan Local Police program was a centerpiece of David Petraeus’ counterinsurgency (COIN) program in Afghanistan when he took over command after Stanley McChyrstal was fired. The program came under extreme scrutiny this week when Afghan President Hamid Karzai called for the expulsion of US Special Operations forces from the province of Maidan Wardak after repeated reports of atrocities carried out by forces claiming to be allied with ALP forces trained by SOF. Today, there is further bad news for the ALP program, as seventeen people have been killed at an ALP post in what appears to be an insider attack. Since the attack occurred early this morning, it should be kept in mind that information is still coming in regarding the details of what took place. Today’s attack was in Ghazni province, which is adjacent to Wardak, as seen in the map here.

Back in September, training of ALP was the first program suspended due to insider attacks. The (delayed by the elections from October) December 2012 “Report on Progress Toward Security and Stability in Afghanistan” (pdf) informed us that the re-screening of ALP was already moving quickly by then:

To mitigate the risk of insider threats, SOJTF-A has taken active measures to re-validate all 16,474 ALP personnel. This revalidation process is currently 52 percent complete, with less than one percent removed due to nefarious activities or counter-intelligence concerns. This process, which is currently ongoing, is very similar in design to our initial screening/validation methodology. It begins at the local level by conducting shuras and intimately involving local elders, who must vouch for each ALP member, ensuring he remains in good standing. Each member’s application paperwork is re-reviewed by various personnel from the Coalition, MoI, NDS, and the DCOPs. If any ALP member “flags” as suspicious, additional counter-intelligence (both Afghan and Coalition) measures are taken. If it is determined that an ALP member is unfit, he is removed from the program. These processes are non-negotiable. In addition, NDS plans to embed three agents per 100 ALP to identify possible infiltration by the enemy. The prevention/elimination of Insider Threats will remain COMISAF’s top force protection priorities.

So Special Operations Joint Task Force-Afghanistan claimed in December that they had already revalidated just over half the ALP force and that less than one percent of the force had been removed due to potential nefarious connections. And yet, almost two months later, we now have a major attack on ALP that has the hallmarks of an insider attack. From the New York Times:

A group of 17 Afghan policemen were drugged by their comrades while on duty and then shot to death in their sleep in what appears to be the single worst incident in a string of similar attacks, according to Afghan officials.

The attack took place at a remote Afghan Local Police post in Ghazni Province, south of the capital, early Wednesday morning, according to General Zrawar Zahid, the Ghazni police chief.

Other Afghan officials said authorities had already arrested two policemen who they said were Taliban infiltrators who had carried out the attack.

The AP report carried by the Washington Post suggests that not all the dead were ALP:

The dead included 10 members of the government-backed Afghan local police, and seven of their civilian friends, said Provincial Gov. Musa Khan Akbarzada. He says there was a conspiracy of some sort but declined to confirm if poison was involved.

The previously mentioned December report from DoD has a remarkable level of detail on the status of the ALP, with a snapshot as of September 26, 2012: Read more →

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