Flaunting Shakeel Afridi’s CIA Ties Appears Not to Have Worked All that Well

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When Leon Panetta went on 60 Minutes and confirmed Pakistani doctor Dr. Shakeel Afridi was working for the US when he faked vaccinations in Abbottbad to collect information from Osama bin Laden’s compound, I noted the hypocrisy of his public confirmation of the CIA role, but assumed the Administration had approved the confirmation.

Meanwhile, tomorrow the above clip will be shown on 60 Minutes, showing Panetta confirming that the Pakistani doctor who conducted fake vaccinations in Abbottabad, Pakistan in order to get a glimpse into Osama bin Laden’s compound was, in fact, working for the CIA.

Panetta also acknowledged that Shikal Afridi, the Pakistani doctor conducting health tests in the village in an effort to collect DNA and verify bin Laden’s presence, was in fact working for the U.S. Afridi was arrested and charged with treason by the government of Pakistan. “I’m very concerned about what the Pakistanis did with this individual…who in fact helped provide intelligence that was very helpful with regards to this operation,” says Panetta. “He was not in any way treasonous towards Pakistan…Pakistan and the United States have a common cause here against terrorism…and for them to take this kind of action against somebody who was helping to go after terrorism, I just think is a real mistake on their part,” he tells Pelley.

Not only does this presumably put more pressure on Pakistan to convict Afridi of treason (he remains in custody), but it exacerbates the problem of having used a vaccination campaign as cover in the first place, confirming on the record that similar campaigns in poor countries might be no more than a CIA front.

I presume someone in the White House gave Panetta permission to go blab this on 60 Minutes; I assume he’s in no more legal jeopardy than Dick Cheney was when he insta-declassified Valerie Plame’s identity.

I suppose that last line–“I just think [arresting Afridi] is a real mistake on their part”–was intended as an implicit threat.

But Panetta’s move–going on TV to suggest that Pakistan was wrong to prosecute one of its citizens working as a spy for the US–risked making it harder for Pakistani authorities to release Afridi by publicizing the ties (in the analogous situation with Ray Davis, the Administration demanded the US press hold all stories confirming Davis’ ties).

Moreover, between the time the Pakistanis arrested Afridi and the time Panetta made these statements, the US arrested Syed Ghulam Nabi Fai for serving as an unregistered foreign agent, then convicted him in December on conspiracy and IRS charges. Yes, he was allowed to plead to lesser charges; yes, he was ultimately sentenced to only 2 years. But Fai’s prosecution made it clear we insist on sovereignty even in matters of political influence, much less spying a mile or so from a key military academy.

In any case, it didn’t work. As Jim has already noted, today Pakistan sentenced Afridi to a whopping 33 years in prison for treason.

Funny how other nations don’t like being told our covert operations should take precedence over their sovereignty.

Update: In a joint statement, Carl Levin and John McCain have suggested Pakistan may lose funding over this:

It is shocking and outrageous that Dr. Shakil Afridi, the Pakistani doctor who assisted the United States in the search for Osama bin Laden, has been sentenced to 33 years in prison for the crime of treason. What Dr. Afridi did is the furthest thing from treason. It was a courageous, heroic, and patriotic act, which helped to locate the most wanted terrorist in the world – a mass murderer who had the blood of many innocent Pakistanis on his hands.

Dr. Afridi’s actions were completely consistent with the multiple, legally-binding resolutions passed over many years by the United Nations Security Council, which required member-states to assist in bringing Osama bin Laden and his Al-Qaeda network to justice. Dr. Afridi set an example that we wish others in Pakistan had followed long ago. He should be praised and rewarded for his actions, not punished and slandered.

We call upon the Pakistani government to pardon and release Dr. Afridi immediately. At a time when the United States and Pakistan need more than ever to work constructively together, Dr. Afridi’s continuing imprisonment and treatment as a criminal will only do further harm to U.S.-Pakistani relations, including diminishing Congress’s willingness to provide financial assistance to Pakistan. [my emphasis]

 

SCOTUS Cert Grant In Clapper Takes Key 9th Circuit Cases Hostage

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Marcy noted briefly Monday morning, the Supreme Court granted certiorari in Clapper v. Amnesty International:

SCOTUS did, however, grant cert to Clapper v. Amnesty, which I wrote about here and here. On its face, Clapper is just about the FISA Amendments Act. But it also has implications for wiretap exceptions–and, I’ve argued–data mining exceptions to the Fourth Amendment. In any case, SCOTUS seems interested in reversing the 2nd Circuit opinion, which had granted standing to people whose work had been chilled by the passage of the FAA. Also, as I hope to note further today, SCOTUS’ Clapper decision may also impact the Hedges v. Obama ruling from last week.

As Marcy indicated, there is nothing good afoot from SCOTUS taking cert in Clapper; if they wanted to leave the very nice decision of the 2nd Circuit intact, they simply leave it intact and don’t grant review. Oh, and, yes, Marcy is quite right, it’s a very safe bet that Clapper will “impact” the also very nice recent decision in Hedges, which is, itself, headed with a bullet to the 2nd Circuit.

There was, of course, much discussion of the significance of the Clapper cert grant yesterday on Twitter; one of the best of which was between Marcy, Lawfare’s Steve Vladeck and, to a lesser extent, me. To make a long story a little shorter, I said (here and here):

See, and I HATE saying this, I think Kennedy will do just that+then same 5 will kill al-Haramain once it gets to SCOTUS and then they will have capped the Bush wiretapping well completely and closed off standing significantly for the future.

Yikes, I did not contemplate just how true this statement was; the Clapper cert grant has already had a far deeper and more pernicious effect than even I suspected. This morning, in a move I do not believe anybody else has caught on to yet, the 9th Circuit quietly removed both al-Haramain and the CCR case encaptioned In Re: NSA Telecommunications Litigation/CCR v. Obama from the oral argument calendar that has long been set for June 1 in the old 9th Circuit Pasadena courthouse. The orders for both al-Haramain and CCR are identical, here is the language from the al-Haramain one:

Argument in this case scheduled for June 1, 2012 in Pasadena, California, is vacated pending the Supreme Court’s decision in Clapper v. Amnesty Int’l, No. 11- 1025. The court may order supplemental briefing following the Supreme Court’s decision. Oral argument will be rescheduled.

Whoa. This is extremely significant, and extremely unfortunate. Also fairly inexplicable. Entering the order for CCR makes some sense, since it involves the same “fear of surveillance” standing issue as is at issue in Clapper; but doing it for al-Haramain makes no sense whatsoever, because al-Haramain is an “actual” surveillance standing case.

There simply is no issue of the claimed, putative, standing concern that permeates Clapper and CCR. Well, not unless the 9th Circuit panel thinks the Supreme Court might speak more broadly, and expand the parameters wildly, in Clapper just as they did in Citizens United. That would be a pretty ugly path for the Supreme beings to follow; but, apparently, not just a cynical bet on my part, but also a bet the 9th Circuit immediately placed as well.

To be fair, even positive forward thinking players, like Steve Vladeck, thought the lower courts might be copacetic, or that the Supremes might comply. Maybe not so much. I know, shocking. Here is a glimpse, through Vladeck, of the situation:

But at a more fundamental level, there’s one more point worth making: Readers are likely familiar with Alex Bickel’s Passive Virtues, and his thesis that, especially on such sensitive questions where constitutional rights intersect with national security, courts might do best to rely on justiciability doctrines to duck the issue—and to thereby avoid passing upon the merits one way or the other. [Think Joshua at the end of WarGames: “The only winning move is not to play.”] And at first blush, this looks like the perfect case for Bickel’s thesis, given the implications in either direction on the merits: recognizing a foreign intelligence surveillance exception and thereby endorsing such sweeping, warrantless interceptions of previously protected communications vs. removing this particular club from the government’s bag…

And yet, the foreign intelligence surveillance exception only exists because it has already been recognized by a circuit-level federal court, to wit, the FISA Court of Review. Whether the passive virtues might otherwise justify judicial sidestepping in such a contentious case, the fact of the matter is that this is a problem largely (albeit not entirely, thanks to the FISA Amendments Act) of the courts‘ making. To duck at this stage would be to let the FISA Court of Review—the judges of which are selected by the Chief Justice—have the last word on such a momentous question of constitutional law. In my view, at least, that would be unfortunate, and it’s certainly not what Bickel meant…

Back to al-Haramain and the effects in the 9th Circuit. Here is the latest, taken from the Motion for Reconsideration filed late yesterday by al-Haramain, Wendell Belew and Asim Ghafoor:

The question presented in Clapper is thus wholly unrelated to the issues presented on the defendants’ appeal in the present case. The Supreme Court’s decision in Clapper will have no effect on the disposition of the present case. Thus, there is no reason to delay the adjudication of this appeal pending the decision in Clapper, which would only add another year or more to the six-plus years that this case has been in litigation.

It makes sense for the Court to have vacated the oral argument date for Center for Constitutional Rights v. Obama, No. 11-15956, which involves theories of Article III standing similar to those in Clapper. It does not, however, make sense in the present case, where Article III standing is based on proof of actual past surveillance rather than the fear of future surveillance and expenditures to protect communications asserted in Clapper.

Yes, that is exactly correct.

And, therein, resides the problem with Vladeck’s interpretation of what is going on with the Clapper case. Steve undersold, severely, just how problematic Clapper is. Both the discussion herein, and the knee jerk action of the 9th Circuit, the alleged liberal scourge of Democratic Federal Appellate Courts, demonstrate how critical this all is and why Clapper is so important.

Clapper has not only consumed its own oxygen, it has consumed that of independent, and important, nee critical, elements of the only reductive cases there are left in the United States judicial system in regards to these ends. That would be, at an irreducible minimum, al-Haramain in the 9th Circuit.

If you have forgotten about al-Haramain, and the proceedings that took place in the inestimable Vaughn Walker’s, court, here it is. Of all the attempts to attack the Bush/Cheney wiretapping crimes, al-Haramain is the only court case that, due to its unique circumstances, has been successful. It alone stands for the proposition that mass crimes were, in fact, committed. al-Haramain had a tough enough road ahead of it on its own, the road has become all the more treacherous now because of Clapper.

The 9th Circuit should grant the motion for reconsideration and reinstate al-Haramain on the oral argument calendar, but that is quite likely a longshot at this point. Expect the DOJ to file a very aggressive response, they are undoubtedly jumping for joy at this stroke of good fortune and will strive to protect it.

What the White House “Official Announcement” of UndieBomb 2.0 Would Have Looked Like

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As I’ve been tracing, there’s a pissing contest going on between the AP and John Brennan over the roll-out of the UndieBomb 2.0 “plot” earlier this month.

When the AP first broke the story on UndieBomb 2.0, it explained that it had held the story but decided to publish before the Administration made an official announcement on what would have been Tuesday, May 8.

The AP learned about the thwarted plot last week but agreed to White House and CIA requests not to publish it immediately because the sensitive intelligence operation was still under way.

Once those concerns were allayed, the AP decided to disclose the plot Monday despite requests from the Obama administration to wait for an official announcement Tuesday. [my emphasis]

Since that time, the Administration has tried to claim they never intended to make an official announcement about the “plot.” They did so for a May 9 LAT story.

U.S. intelligence officials had planned to keep the bomb sting secret, a senior official said, but the Associated Press learned of the operation last week. The AP delayed posting the story at the request of the Obama administration, but then broke the news Monday.

“When the AP got it and started talking about it, it caused all kinds of problems with the operation,” said a U.S. official who would not be quoted by name discussing the classified operation. “The investigation never went to its full conclusion.”

AP spokesman Paul Colford said the news agency held off publishing until U.S. officials told the AP that security concerns were allayed.

“We were told on Monday that the operation was complete and that the White House was planning to announce it Tuesday,” he said.

Then the White House tried misdirection for a Mark Hosenball story last week–both blaming AP for information about the Saudi infiltrator the AP didn’t break, and attributing Brennan’s comments implying the plot involved an infiltrator to hasty White House efforts to feed the news cycle spin respond to the story.

According to National Security Council spokesman Tommy Vietor, due to its sensitivity, the AP initially agreed to a White House request to delay publication of the story for several days.

But according to three government officials, a final deal on timing of publication fell apart over the AP’s insistence that no U.S. official would respond to the story for one clear hour after its release.

When the administration rejected that demand as “untenable,” two officials said, the AP said it was going public with the story. At that point, Brennan was immediately called out of a meeting to take charge of damage control.

[snip]

The AP denies any quid pro quo was requested by them or rejected by the White House. “At no point did AP offer or propose a deal with regard to this story,” said AP spokesman Paul Colford.

[snip]

The White House places the blame squarely on AP, calling the claim that Brennan contributed to a leak “ridiculous.”

“It is well known that we use a range of intelligence capabilities to penetrate and monitor terrorist groups,” according to an official statement from the White House national security staff.

“None of these sources or methods was disclosed by this statement. The egregious leak here was to the Associated Press. The White House fought to prevent this information from being reported and ultimately worked to delay its publication for operational security reasons. No one is more upset than us about this disclosure, and we support efforts to prevent leaks like this which harm our national security,” the statement said.

The original AP story, however, made no mention of an undercover informant or allied “control” over the operation, indicating only that the fate of the would-be suicide bomber was unknown. [my emphasis]

Now, there are several problems with this latest White House story. The allegation of a quid pro quo rests on the premise that the Administration was also about to release the information; it’s just a different version of the request to hold the story until an official White House announcement. Furthermore, if the White House didn’t want this information out there, then why brief Richard Clarke and Fran Fragos Townsend, who went from there to prime time news shows and magnified the story?

In short, the White House attempt to blame the release of this story on the AP makes less and less sense every time they change their story.

But there’s another piece of counter-evidence to claims the White House didn’t intend to do a dog-and-pony show boasting of their success at “foiling” an AQAP bomb “plot.”

The dog-and-pony show they rolled out the last time they foiled an AQAP bomb plot targeting the US, four days before the midterm elections in 2010.

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More Failed Targeting Based on Travel Patterns

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The other day I noted what happened when the US or its allies applied the standard it is using in the Latif case: targeting people based on claims the route they traveled makes them a terrorist. In Turkey, 34 Kurds were killed because they were using the same path PKK guerrillas use.

In Honduras, our travel-based targeting appears to have killed civilians as well, sparking anti-US outrage in response. On May 11, four Hondurans were killed in a joint DEA-Honduran attack against suspected drug traffickers. It turns out the law enforcement officials (the US claims DEA agents didn’t shoot) shot at an unlit boat carrying 4 civilians nearby, not the lit traffickers’ boat; the traffickers escaped.

In US denials of fault, they said the unlit boat could not have been civilians, since it was the middle of the night. But it turns out there is a reasonable explanation for their presence.

In fact, Ms. Lezama and her husband say, they were not fishing, as the mayor initially suggested — they were returning from a daily trip in which they dropped off lobster fishermen at the Caribbean coast, coming back with passengers picked up at several spots along the river.

“We’ve been doing this for 25 years, day and night,” Ms. Lezama said. Her husband and other relatives, surrounding her as she lay in bed, nodded. They and other town residents confirmed that the family business had been making the trip for years.

And the spot in the river where the shooting occurred is not as isolated as Honduran and American officials have suggested.

“The Patuca River is like a highway; it’s always full of traffic from the village,” said Mayor Lucio Baquedano. Indeed, on Friday afternoon the landing where witnesses said the shooting occurred looked like a taxi stand: about 20 long, skinny boats bobbed in the brown water. A gray Yamaha motor hung from the back of one carrying families east to Brus Laguna, a larger town where Ms. Lezama’s boat usually stops. In another sat a red bike, while in a third, a man carried a hunk of freshly cut wood as long and wide as his leg.

Near the end was Ms. Lezama’s blue boat. A half dozen gunshot holes could clearly be seen.

“What worries me is that if there are more drugs moving along that river,” Mayor Baquedano said, “more of our people are going to be attacked.” [my emphasis]

Another common highway Americans didn’t recognize as such, seeing instead a route conveying only traffickers.

How many times do you suppose we’re going to do this before we learn that common travel routes are not, themselves, evidence of terrorism or trafficking?

GOP Targets John Brennan and Leon Panetta with Leak Witchhunts

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Meanwhile, speaking of leak investigations, the GOP has gone leak investigation happy.

First, Peter King wrote Robert Mueller formally requesting an investigation into the leak about the UndieBomber. He appears to have cleaned up his single-minded focus on reporters who were mean to Ray Kelly, focusing now on the “penetration of Al Qaeda in the Arabian Peninsula” rather than the initial reporting on the “plot” itself.

I am writing to formally request (a) that the Federal Bureau of Investigation conduct a full inquiry of the widely reported leaks earlier this month of highly classified information regarding penetration of Al Qaeda in the Arabian Peninsula (AQAP) and (b) that this investigation include the Intelligence Community, the Department of Defense, the Department of Homeland Security, federal law enforcement and the White House, including the National Security staff.

Among the severely disturbing implications of these leaks are that (a) the lives of a unique intelligence source and others may have been jeopardized, (b) the operation had to be aborted before its potential was maximized and (c) critical intelligence relationships have been damaged.

The information regarding this intelligence matter was handled in the most restricted manner possible by the Intelligence Community and the White House which means the leak would have to have emanated from a small universe. That makes this leak all the more distressing and is why I so strongly believe that an investigation of a security breach of this magnitude must encompass everyone who had access to this vital information. [my empahsis]

But he seems to ignore the likelihood that foreign sources were the people–in addition to John Brennan—who revealed the plot involved a Saudi-managed infiltrator.

Nevertheless, it appears clear that Brennan might be included among the targets here.

Meanwhile, Representative Tom Price included an amendment in the 2013 NDAA that mandates an investigation into leaks preventing Israel’s efforts to drag us into an attack on Iran.

A stream of highly sensitive information continues to be leaked to the press–information that includes U.S. and Israeli military and intelligence operational capabilities, as well as classified negotiations between Israel and other countries.

On March 20, The New York Times, citing senior administration officials, reported the conclusions of a classified war simulation conducted by the United States that analyzed an Israeli attack on Iranian nuclear facilities.

On March 28, Foreign Policy magazine, quoting four senior diplomats and military intelligence officers, referred to a report that Israel would be granted access to air bases in Azerbaijan as part of an attack on Iran’s nuclear facilities, a move clearly designed to undercut cooperation between Azerbaijan and Israel.

Further degrading Israel’s ability to defend itself, The Washington Post’s David Ignatius on February 3 reported that Secretary of Defense Leon Panetta believes there’s a strong likelihood that Israel will strike Iran in April, May, or June, which reportedly sent Iran’s air defenses on high alert.

The release of this classified information not only puts at risk fragile negotiations between countries but also the very lives of the men and women called upon to carry out this mission. I recently traveled to the Middle East, where we met with senior Israeli officials. Their number one concern was that for the first time in our long relationship, United States was releasing classified operational information and capabilities, willfully putting at risk the lives of Israeli people. [links added to the stories named by Price]

Now, I’d say this amendment wouldn’t make it through the Senate given that it attempts to criminalize leaks supporting US interests, except that it passed by an overwhelming margin in the House and AIPAC has as much sway among the Democrats who set the schedule in the Senate as it does in the House.

But it’s worth noting that it names Panetta explicitly for his blabbing to David Ignatius.

I’ve noted that both Brennan and Panetta might catch some heat for these leaks. But it almost certainly won’t be legal trouble. The latter, at least, certainly served Administration efforts to stave off an Israeli attack. And Obama seems to have protected all the other leaking Brennan as done.

Still, these leak investigations, if they happen, do offer the GOP a way to pressure the Administration during the election season.

I’m frankly opposed to anything that helps Mitt and his wingnut advisors get closer to the White House. Still, I admit a bit of schadenfreude that the Administration will soon be the focus of the kind of witchhunts it has launched against others.

How Does John Brennan Still Have Clearance?

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Remember when I gave John Brennan credit for rather uncharacteristically keeping secrets about the UndieBomber case?

While the ABC story cites US officials, among others, it also cites an “international intelligence official” as well as “officials” and “authorities” named generically (as well as John Brennan on the record, rather uncharacteristically trying to protect “the equities that are involved with it”).

It turns out betting that John Brennan can’t keep a secret is about as reliable as always betting on the shit square (as bmaz so artfully describes expecting the worst). In an effort to brief former counterterrorism officials on the plot (AKA, feed the news cycle), Brennan revealed we had “inside control” over the plot.

At about 5:45 p.m. EDT on Monday, May 7, just before the evening newscasts, John Brennan, President Barack Obama’s top White House adviser on counter-terrorism, held a small, private teleconference to brief former counter-terrorism advisers who have become frequent commentators on TV news shows.

According to five people familiar with the call, Brennan stressed that the plot was never a threat to the U.S. public or air safety because Washington had “inside control” over it.

And from there, the fact that this was another example of Saudi AQAP infiltration was revealed.

This admission, by the way, appears to be White House damage control, because they provide Mark Hosenball yet another story on their discussions with the AP.

According to National Security Council spokesman Tommy Vietor, due to its sensitivity, the AP initially agreed to a White House request to delay publication of the story for several days.

But according to three government officials, a final deal on timing of publication fell apart over the AP’s insistence that no U.S. official would respond to the story for one clear hour after its release.

When the administration rejected that demand as “untenable,” two officials said, the AP said it was going public with the story. At that point, Brennan was immediately called out of a meeting to take charge of damage control.

What they’re trying to refute–an attempt undermined by the fact their story keeps changing–is the AP claim that the Administration planned to formally announce “they” had “foiled” a “plot” the following morning.

The AP learned about the thwarted plot last week but agreed to White House and CIA requests not to publish it immediately because the sensitive intelligence operation was still under way. Once officials said those concerns were allayed, the AP decided to disclose the plot Monday despite requests from the Obama administration to wait for an official announcement Tuesday.

They’re laying it on pretty thick now, too, blaming the AP for everything.

The White House places the blame squarely on AP, calling the claim that Brennan contributed to a leak “ridiculous.”

“It is well known that we use a range of intelligence capabilities to penetrate and monitor terrorist groups,” according to an official statement from the White House national security staff.

“None of these sources or methods was disclosed by this statement. The egregious leak here was to the Associated Press. The White House fought to prevent this information from being reported and ultimately worked to delay its publication for operational security reasons. No one is more upset than us about this disclosure, and we support efforts to prevent leaks like this which harm our national security,” the statement said.

Now, why would you blame the AP–rather than whatever source leaked to them–unless the most damning detail the AP reported is that the Administration planned on revealing this “plot” themselves (presumably without asking the Saudis or Brits or Congress first)?

In other words, while on its face this is an attempt by John Brennan to pretend he didn’t expose the most sensitive part of the plot–the Saudi infiltration of AQAP–it is also a pissing contest that started when the Administration tried to be the first to reveal the plot, and then blame the AP when the exposure of it pissed off our allies.

The Problem with Equating Travel Routes and Terrorism: 34 Dead Civilians

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A few weeks back, Seton Hall published a report showing that since the DC Circuit reversed the habeas petition of Mohammed al-Adahi, “the practice of careful judicial fact-finding was replaced by judicial deference to the government’s allegations. Now the government wins every petition.” The report traced a number of factors that, before al-Adahi, judges examined with some skepticism, but after, fairly regularly accepted as evidence that a detainee was a member of al Qaeda.

Among those factors were staying in certain guest houses and traveling a particular route that–the government effectively claimed–meant you were a terrorist. Thus, it no longer mattered whether you had fought for al Qaeda. In the absence of more direct evidence, the government argued that where you traveled was one piece of evidence that you should be detained as a terrorist.

Tellingly, while the government has a declaration they routinely submit in Gitmo cases on the significance of guest houses to al Qaeda, they have not (as far as I know) ever submitted a similar declaration providing evidence for a tie between travel routes and al Qaeda membership (the closest they have is a report on Tora Bora which seems to argue “if you were in this vicinity you must have been in Tora Bora and, Osama bin Laden!”). In fact, that’s part of what infuriated David Tatel in the Latif case–the way the majority opinion simply accepted the government’s evidence about Latif’s travel back to Pakistan–where hundreds of innocent of Arabs were picked up at the time–as corroboration for the error-ridden report the government submitted as its main proof that Latif could be detained.

Latif left Kabul in November 2001 and then traveled through Jalalabad before eventually arriving at the Pakistani border where Pakistani authorities detained him. According to the government, this path mirrors that of Taliban soldiers retreating from Kabul. Although not contending that this evidence is dispositive, the government argues that because Latif’s admitted route is consistent with that of Taliban soldiers and with information in the Report, it is a helpful piece in the puzzle, bolstering its claim that the Report’s inculpatory statements are accurate.

Fair enough, but how helpful? If this route is commonly used by innocent civilians, then the evidence is not that helpful at all. To understand why, consider a simple hypothetical. Suppose the government were to argue in a drug case that the defendant drove north from Miami along I-95, “a known drug route.” Familiar with I-95, we would surely respond that many thousands of non-drug traffickers take that route as well. Given what we know about our own society, the I-95 inference would be too weak even to mention. Cf Almerfedi, 2011 WL 2277607, at *4 n.7 (noting that some conduct such as possessing an AK-47 is so “commonplace in Afghanistan [that it] does not meaningfully distinguish an al Qaeda associate from an innocent civilian”). On the other hand, if the alleged drug trafficker had driven along an infrequently traveled country road, then a contention that that road was “a known drug route” would carry more weight. The burden of proof is on the government to demonstrate whether travel on a particular route to the Pakistani border, when considered in context, is mqre like the lonely country road and thus worthy of consideration when it comes to distinguishing between enemy combatants and innocent civilians.

I raise all this not just to point you to the Seton Hall report, which is well worth your time. But because today, SCOTUS will decide whether or not to accept two cases–Latif and Uthman–in which these issues are central (we won’t find out whether they’ll take the cases until Monday).

And because of this WSJ report, showing the tragic result of assuming that travel patterns must be indicative of terror ties: 34 dead civilians, targeted by Turkish warplanes after a US drone spotted a caravan of Kurdish smugglers using a route frequented by PKK guerrillas.

Above and out of sight, a U.S. Predator drone loitered. It was on a routine patrol when U.S. personnel monitoring its video feeds spotted the caravan just inside Iraq and moving toward the Turkish border, according to U.S. officials and the Pentagon’s assessment of the fatal strike.

U.S. military officers at the Fusion Cell in Ankara couldn’t tell whether the men, bundled in heavy jackets, were civilians or guerrilla fighters. But their location in an area frequented by guerrilla fighters raised suspicions. The Americans alerted their Turkish counterparts.

[snip]

Then Turkish warplanes appeared. “It was like a lightning bolt,” Mr. Encu said. “I saw a bright light and the force of the explosion threw me to the ground…When I turned my head I could see bodies on fire and some were missing their heads.”

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Judge Forrest’s Invitation to Congress: Pass the Smith-Amash Amendment

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As I noted yesterday, Judge Katherine Forrest stopped the government from enforcing Section 1021 of last year’s NDAA, because it is having a chilling effect on the First Amendment protected activities of plaintiff’s including Chris Hedges.

There’s an aspect of her ruling that was rather auspiciously timed. Because in addition to enjoining 1021, she invited Congress to fix it.

Accordingly, this Court preliminarily enjoins enforcement of §1021 pending further proceedings in this Court or remedial action by Congress mooting the need for such further proceedings.

As luck would have it, the House is poised to vote today on the Smith-Amash amendment to next year’s NDAA. Their amendment would largely–though perhaps not entirely–“moot the need” for any further proceedings in the Hedges case, because it would eliminate indefinite military detention for those captured in the US.

Reps. Adam Smith (D-Wash.) and Justin Amash [my Rep] are planning to offer an amendment to this year’s defense authorization bill that would guarantee that no one—citizen or otherwise—could be denied a fair trial if captured in the United States. Smith, who is the ranking member of the House Armed Services Committee, will introduce the bill during a hearing Wednesday. Amash has agreed to support it once the defense bill comes to the floor next week, possibly bringing along enough Republican support to ensure its passage in the House.

“The amendment is drafted to prevent the president from indefinitely detaining persons captured on US soil without charge or trial,” said Will Adams, a spokesperson for Amash.

I spoke to Adams last night, and the Amendment is within striking distance of having enough votes to pass–though the House leadership is trying a bunch of stunts to avoid that outcome.

I said passing this Amendment would mostly moot further proceedings. That’s because Forrest issued her injunction covering all the plaintiffs, including people like Brigitta Jonsdottir, who is an Icelandic citizen and has sworn off from traveling to the US because of the NDAA and other Wikileaks related prosecution. Whereas the Smith-Amash amendment would apply to Jonsdottir only if she were in the US; it doesn’t offer any protection to non-citizens outside of the US.

Which means, with her ruling, Forrest has made the Smith-Amash amendment the sensible middle ground (really, it ought to be considered the bare minimum, but even still, before last night it didn’t stand a chance in hell of passing the Senate). That is, it does what most Americans seem to want done to the NDAA, to limit it so it doesn’t apply to them.

In her ruling, Forrest made it clear she tried to offer the government an easy way to help her avoid enjoining this section.

The Court’s attempt to avoid having to deal with the Constitutional aspects of the challenge was by providing the Government with prompt notice in the form of declarations and depositions of the precise conduct in which plaintiffs are involved and which they claim places them in fear of military detention. To put it bluntly, eliminating these plaintiffs’ standing simply by representing that their conduct does not fall within the scope of § 1021 would have been simple. The Government chose not to do so–thereby ensuring standing and requiring this Court to reach the merits of the instant motion.

She also made it clear she’d welcome Congress fixing the problem. Let’s see if they do so today.

Judge Enjoins NDAA Section 1021 because Government Implies Speech May Equal Terrorism

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The Court then asked: Give me an example. Tell me what it means to substantially support associated forces.

Government: I’m not in a position to give specific examples.

Court: Give me one.

Government: I’m not in a position to give one specific example.

When Judge Katherine Forrest asked the government, repeatedly, for both generalized clarification and descriptions specific to plaintiffs like Chris Hedges and Brigitta Jonsdottir explaining the scope of Section 1021 of the NDAA, the government refused to give it. Not only was the government unwilling to reassure that even a Pulitzer Prize winning journalist like Hedges would not be indefinitely detained as “a person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces” if he reported on any number of terrorist groups, but it also refused to explain the meaning of the section generally.

Which is the core reason why Forrest not only ruled that the plaintiffs have standing and the case should go forward, but also enjoined any enforcement of Section 1021. In explaining this, she noted that she was forced by the government’s refusal to give clarification to assume that the government believes First Amendment speech is included in the orbit of “substantially supported” that might be indefinitely held under 1021.

It must be said that it would have been a rather simple matter for the Government to have stated that as to these plaintiffs and the conduct as to which they would testify, that § 1021 did not and would not apply, if indeed it did or would not. That could have eliminated the standing of these plaintiffs and their claims of irreparable harm. Failure to be able to make such a representation given the prior notice of the activities at issue requires this Court to assume that, in fact, the Government takes the position that a wide swath of expressive and associational conduct is in fact encompassed by § 1021.

[snip]

This Court is left then, with the following conundrum: plaintiffs have put forward evidence that § 1021 has in fact chilled their expressive and associational activities; the Government will not represent that such activities are not covered by § 1021; plaintiffs’ activities are constitutionally protected. Given that record and the protections afforded by the First Amendment, this Court finds that plaintiffs have shown a likelihood of succeeding on the merits of a facial challenge to § 1021.

I spent much of the day explaining to people why Obama’s Yemen EO is so troubling. I’ve had to describe all the things that have transpired that have criminalized speech since Obama issued a similar EO in 2010–the decision in Holder v. Humanitarian Law Project, the conviction of Tarek Mehanna, and the charging of Bradley Manning with aiding the enemy.

Now I can point to Forrest’s opinion to show that the proposition that journalists might be prosecuted for material support of terrorism for their First Amendment speech–to the extent it’s an extreme proposition–it is the government’s extreme proposition.

Forrest used the government’s stubbornness against it in one other way, too–to get past the rather high bar on whether to issue a preliminary injunction or not. The decision on whether to issue an injunction or not depends on a lot of things. But ultimately, it requires a balancing test between the hardships imposed on the plaintiff and the defense. And since–Forrest explained–the government repeatedly insisted that Section 1021 does no more or less than what the AUMF already does, then enjoining the enforcement of 1021 would not harm the government at all.

In considering whether to issue a preliminary injunction, the Court must consider, as noted above, “the balance of the hardships between the plaintiff and defendant and issue the injunction only if the balance of the hardships tips in the plaintiff’s favor.” Salinger, 607 F.3d at 80.

The Government’s primary argument in opposition to this motion is that § 1021 is simply an affirmation of the AUMF; that it goes no further, it does nothing more. As is clear from this Opinion, this Court disagrees that that is the effect of § 1021 as currently drafted. However, if the Government’s argument is to be credited in terms of its belief as to the impact of the legislation–which is nil–then the issuance of an injunction should have absolutely no impact on any Governmental activities at all. The AUMF does not have a “sunset” provision: it is still in force and effect. Thus, to the extent the Government believes that the two provisions are co-extensive, enjoining any action under § 1021 should not have any impact on the Government.

While most of Forrest’s ruling involved hoisting the government on its own obstinate petard, she also left a goodie in her ruling for the higher courts that will surely review her decision after the government surely appeals (unless Congress passes a fix to the NDAA tomorrow, as they might). Forrest established the importance of speech by pointing to … Anthony Kennedy’s opinion in Citizens United.

In Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010), Justice Kennedy wrote that “[s]peech is an essential mechanism of democracy, for it is the means that hold officials accountable to the people . . . . The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a pre-condition to enlightened self-government.” Id. at 899. Laws that burden political speech are therefore subject to strict scrutiny. Id. at 898. “The First Amendment protects speech and speaker, and the ideas that flow from each.” Id. at 899.

If corporations can avail themselves of unlimited campaign speech, then mere journalists and activists ought to be able to engage in political speech without being indefinitely detained.

And yet, it took a judge to make that argument to the government.

Obama’s Yemen EO Still Lets Our Spooks Pay the Targets of the EO

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As I noted earlier, Obama just signed an Executive Order ostensibly targeting the US assets of those who undermine Yemen’s stability, potentially including US citizens who do so. I’ve been comparing this EO to one of the analogous ones pointed out in Karen DeYoung’s article on the EO: one issued against Somalia in 2010 (h/t to Daveed Gartenstein-Ross for the link).

The EOs are very similar, including the language potentially targeting US citizens. But there are some interesting differences.

As DeYoung pointed out, the Yemeni EO, unlike the Somlia one, does not include an annex with named targets, even though the EO itself speaks of “certain members of the Government of Yemen.” As such, this EO seems to be a threat with consequences, not an immediate sanction.

The Yemen EO also uses slightly different language in the clause targeting those who materially support those destabilizing the country. Whereas the Somalia EO includes those who provide “logistical” or “technical” support, the Yemen EO includes those who provide “technological” support. So make sure you don’t serve as webmaster for someone Hillary Clinton thinks is destabilizing Yemen.

The most interesting difference, IMO, is this clause, which appears in the Yemen EO but does not in the Somalia one.

Sec. 5. Nothing in section 1 of this order shall prohibit transactions for the conduct of the official business of the United States Government by employees, grantees, or contractors thereof.

In other words, while Obama doesn’t want you, or Ali Abdullah Saleh’s leave-behinds, or the AP to destabilize Yemen, he reserves the right for US government employees, grantees, or contractors to do so. Which presumably means, as happened in Afghanistan, we are and plan to continue paying some of the people who are in violation of this EO.

I wonder. Among all the adjectives we might use to describe the Saudis, do we use “grantee” among them?