What WAS Our Sentinel Drone Surveilling in Iran?

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Kevin Drum captures where the state of the reporting on the story that the MEK, backed by Israel, is responsible for the assassinations of Iranian scientists and the implication that that makes Israel a state that sponsors terrorism. Drum writes,

Are the attacks on Iran terrorism? Of course they are. If they’re not, we might as well give up on even trying to define the word. But is it acceptable just because the other side is using it? Of course it’s —

But wait a second. Is it? For all practical purposes, Iran and Israel are at war; they’ve been at war for a long time; and both sides have tacitly agreed that it will primarily be a war carried out nonconventionally. The alternative is what we did in Afghanistan and Iraq: a full-scale conventional attack.

Is that a superior alternative? To say the least, I’m a little hard pressed to say it is. But the alternative is not to fight back at all. Given the current state of the art in human nature, that’s really not in the cards.

Still: is it terrorism? Yes. Do both sides use it? Yes. Is this, in many cases, the future of warfare? Probably yes.

The only question I’d raise is a chicken and an egg thing. Who attacked whom first? And if Hezbollah is your proxy to say that Iran did, then what was the 2006 invasion of Lebanon about?

Speaking of chickens and eggs, though, there’s something left out of this formulation. The US.

As I noted back in December, the reporting of David Sanger (whose beat seems to be precisely the intersection of US and Israeli covert ops) seems to suggest that our drones have been surveilling now-dead Iranian scientists.

So David Sanger, the (American and Israeli) intelligence community’s chief mouthpiece to boast about their latest victories against Iran, by-lined this story from Boston (rather than his home base of DC) to tell us the Sentinel drone was surveilling Iran’s suspected nuclear sites, using its isotope-sniffing powers.

In addition to video cameras, independent experts say the drone almost certainly carries communications intercept equipment and sensors that can detect tiny amounts of radioactive isotopes and other chemicals that can give away nuclear research.

But the real advantage of the Sentinel drone, Sanger and Shane tell us, is the ability to see who’s onsite when.

While an orbiting surveillance satellite can observe a location for only a few minutes at a time, a drone can loiter for hours, sending a video feed as people move about the site. Such a “pattern of life,” as it is called, can give crucial clues to the nature of the work being done, the equipment used and the size of the work force.

Actually, we knew that. Here’s the kind of information the Sentinel presumably gave us about Osama bin Laden’s compound.

Agents, determining that Kuwaiti was living there, used aerial surveillance to keep watch on the compound, which consisted of a three-story main house, a guesthouse, and a few outbuildings. They observed that residents of the compound burned their trash, instead of putting it out for collection, and concluded that the compound lacked a phone or an Internet connection. Kuwaiti and his brother came and went, but another man, living on the third floor, never left. When this third individual did venture outside, he stayed behind the compound’s walls. Some analysts speculated that the third man was bin Laden, and the agency dubbed him the Pacer.

In our assassination of Osama bin Laden, it seems, we used the Sentinel to learn the daily routine of everyone in the compound. Just the kind of information we’ve used to assassinate key Iranian scientists.

Read more →

Exploitation: How a “Recidivist” became a Double Agent

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The Republicans are at it again: collecting lists of former Gitmo detainees they deem to have “returned to combat” and using those lists to fear-monger against transferring prisoners out of Gitmo.

Here’s the report the Republicans on the House Armed Service Investigations Subcommittee put out; here’s an excellent rebuttal from the Democrats, here’s Adam Serwer, and here’s Charlie Savage.

Subcommittee Ranking Member Jim Cooper summarizes,

The report was supposed to be a comprehensive and bipartisan look at former GTMO detainees, but fails at both objectives. Much of the failure is due to the majority’s insistence on releasing a public report during an election year. The majority is well aware that most of the relevant material is classified and politically sensitive. To their credit, committee staff did do a workmanlike job on the classified annex, which we recommend to all members. But the public report uses a highly problematic “methodology” in order to write ghost stories designed to scare voters. Americans deserve better.

Reports on terrorism should not further the terrorists’ goal of spreading fear. After all, terrorism is a double-barreled attack on civilization: violence is one weapon and publicity of that violence is another. Without publicity, the terrorist can never succeed. Regrettably, this report gives former GTMO detainees publicity by making them seem more numerous and dangerous than they are. Reengagers will like their image in the report.

[snip]

The report concludes that, despite the admitted improvements in the Obama Administration’s handling of detainee issues, the number of former detainees who return to terrorism will be as high or higher. This is purely speculative, and seems politically motivated. Time will tell, but the current rate of confirmed reengagement of transferees under the Obama Administration is closer to 3%, not the report’s cover graphic of 27%. The lower figure does not, however, make headlines.

I will have more on the report later. But I wanted to point out one detail about how the propaganda list of who is a “recidivist” and who isn’t changes.

In the April 2009 list leaked to ruin Obama’s efforts to close Gitmo, the Saudi former detainee Mazin Salih Musaid al-Awfi was listed second on the list of those “confirmed” to have “reengaged” in terrorism along with Said al-Shihri.

Abu Sufyam al-Asdi al-Shihri–repatriated to Saudi Arabia in November 2007, and Mazin Salih Musaid al-Alawi al-Awfi–repatriated to Saudi Arabia in July 2007. On 24 January, a 19-minute video was released wherein al-Shihri and al-Awfi announced their leadership within the newly established al-Qaida in Arabian Peninsula.

But in this week’s list, al-Shihri appears all by himself (though still second on the list).

Said al-Shihri 17 (ISN 372) was transferred in November 2007 to the Prince Mohammed bin Nayef Centre for Care and Counseling (also known as Care) in Saudi Arabia.18 This is an initiative, operated by the Saudi government, meant to rehabilitate those believed to be terrorists.19 However, after completing the portion of the program requiring him to reside at the Care facility, al-Shihri left Saudi Arabia for Yemen despite putatively being barred from foreign travel. In addition to raising questions about the Saudi government’s ability to enforce travel restrictions on former detainees, al-Shihri’s arrival in Yemen allowed him and another former GTMO detainee to assume leadership of the newly established al-Qa’ida in the Arabian Peninsula (AQAP).20  They released a video announcing their roles.21 [my emphasis]

The report invokes al-Awfi, but don’t name him or explain why they don’t consider him among those “confirmed” to have returned to extremism.

Maybe this is why:

Mohammed al-Awfi’s is an extraordinary story. He went through the rehabilitation programme like the others from Batch 10, but then fled to Yemen where he starred in the al-Qaeda launch video.

Astonishingly al-Awfi later re-crossed the border into Saudi Arabia and gave himself up.

I have never understood why he did so.

The Saudis told me it was because he had received a phone call from his wife telling him to return to look after her and the children.

The explanation caused me to raise a quizzical eyebrow. I was told it is not unknown for the Saudis to use families as bait.

Al-Awfi is now living in luxury accommodation in Riyadh’s top security prison where he is being drained of every scrap of intelligence.

He has all the comforts of home, a well furnished flat and regular visits by a grateful and relieved family.

I can’t guarantee al-Awfi was working as a double agent–presumably like that other “rehabilitated” Saudi detainee who joined AQAP only to return to Saudi Arabia to dump key intelligence, Jabir al-Fayfi–the whole time. But it sure does look like it.

Which means among the former detainees whose story fearmongers used in 2009 to argue against closing Gitmo was, probably, a double agent collecting intelligence on what became AQAP.

For all we know, the Subcommittee may be doing the same again now–claiming people have “returned to action” when they haven’t, exactly. In fact, it’s not even clear they know for sure that their “returned fighters” are what they claim. The folks who might know best–the CIA–refused to cooperate with this report.

The committee believes the Central Intelligence Agency may have been able to provide additional insight on reengagement issues and resolve factual discrepancies identified during meetings with U.S. officials abroad. Headquarters representatives from the CIA declined requests, made at the behest of the subcommittee chairman and ranking member, to meet with staff. This impaired the committee’s efforts to evaluate fully this topic.

Which highlights how brilliant it was to recruit double agents at Gitmo (if you want to sustain the fear of terrorism). If successful, recruits might serve double duty, both infiltrating al Qaeda and providing intelligence, and serving as (apparently false) examples of how dangerous this foe really is.

91% Fewer Terrorist Sympathizers with Twice the Cash and 48% More Surveillance

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A number of people have pointed to this report showing that the terrorist threat is grossly overblown. Not only does it show that Robert Mueller was overselling the risk of Muslim-American radicalization in the early days of of the War on Terror, and he and Janet Napolitano and Peter King and others continue to do so.

Twenty Muslim-Americans were indicted for violent terrorist plots in 2011, down from 26 the year before, bringing the total since 9/11 to 193, or just under 20 per year (see Figure 1). This number is not negligible — small numbers of Muslim-Americans continue to radicalize each year and plot violence. However, the rate of radicalization is far less than many feared in the aftermath of 9/11. In early 2003, for example, Robert Mueller, director of the Federal Bureau of Investigation, told Congress that “FBI investigations have revealed militant Islamics [sic] in the US. We strongly suspect that several hundred of these extremists are linked to al-Qaeda.”1 Fortunately, we have not seen violence on this scale.

[snip]

These and similar warnings have braced Americans for a possible upsurge in Muslim-American terrorism, which has not occurred. Instead, terrorist plots have decreased in each of the past two years, since the spike of cases in 2009. Threats remain: violent plots have not dwindled to zero, and revolutionary Islamist organizations overseas continue to call for Muslim-Americans to engage in violence. However, the number of Muslim-Americans who have responded to these calls continues to be tiny, when compared with the population of more than 2 million Muslims in the United States5 and when compared with the total level of violence in the United States, which was on track to register 14,000 murders in 2011.6

But, as Kevin Drum emphasized, the number of Muslim-Americans indicted for supporting terrorism–rather than engaging in a plot–has declined steadily over the last decade.

But while discussing how overblown the threat from Muslim-Americans in this country is, we ought to look at another report, too–perhaps this one, bragging about how much the FBI has changed in the last decade. Because along with visualizing how much more the FBI is spending–more than twice as much–it also notes the FBI has increased surveillance 48% over the decade (and that’s separate from the surveillance the NSA and Homeland Security and local law enforcement have put into place).

In other words, it’s not just that Muslim-American support for terrorism has declined. But it has declined even while we’re spending far more resources looking for it, and we’re just not finding it, much.

If Ron Wyden Hasn’t Seen Awlaki Memo, There Has Been Inadequate Oversight

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As MadDog noted and Ellen Nakashima reported, Ron Wyden is getting cranky that DOJ won’t even show him–a member of the Senate Intelligence Committee–the OLC memo authorizing the killing of Anwar al-Awlaki.

There’s one basic thing the letter makes clear (that Nakashima doesn’t emphasize). Ron Wyden, a member of the Senate Intelligence Committee, has still not seen the legal justification for killing Anwar al-Awlaki, four months after Awlaki was killed.

So, as you will remember, I called you in April 2011 and asked you to ensure that the secret Justice Department opinions that apparently outline the official interpretation of this lethal authority were provided to Congress.  The Justice Department provided me with some relevant information in May 2011, and I mistakenly believed that this meant that you had agreed to my request.  Nine months later, however, the Justice Department still has not fully complied with my original request, and it is increasingly clear that it has no intention of doing so.

Simply put, this situation is unacceptable.  For the executive branch to claim that intelligence agencies have the authority to knowingly kill American citizens (subject to publicly unspecified limitations) while at the same time refusing to provide Congress with any and all legal opinions that delineate the executive branch’s understanding of this authority represents an indefensible assertion of executive prerogative, and I expected better from the Obama Administration.

So Wyden asked for the legal justification before Awlaki was killed, at a time when he could have exercised oversight over the killing, and got “some relevant information” but not the legal justification he asked for. And DOJ has not given him the legal justification since.

We know the Gang of Four had some kind of review over the killing, because all four made comments after his death in support. But there should be no justification for keeping such information at the Gang of Four level at this point–Awlaki is good and dead, the covert operation to kill him achieved its objective and is not all that covert now that the guy who oversaw the operation has talked about it on TV.

And yet these are the questions that Wyden still has about the killing:

Some of these questions include: ‘how much evidence does the President need to decide that a particular American is part of a terrorist group?’, ‘does the President have to provide individual Americans with an opportunity to surrender before using lethal force against them?’, ‘is the President’s authority to kill Americans based on authorization from Congress or his own authority as Commander-in-Chief?’, ‘can the President order intelligence agencies to kill an American who is inside the United States?’, and ‘what other limitations or boundaries apply to this authority?’.

If even the members of the Senate Intelligence Committee have not been permitted to review the Administration’s legal justification for the targeted killing of an American citizen, then the oversight over the op is even more inadequate than we knew. The Administration has really been operating on the principle that it can go off and kill American citizens without even having the elected representatives designated to oversee their actions fully review such killings.

One-Third of Americans Known to Have Been Killed in Drone Strikes Were US Servicemen

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I agree with Greg Sargent. It is depressing (though I find it unsurprising) that a majority of Democrats support drone strikes on American terrorist suspects overseas.

The Post has just released some new polling that demonstrates very strong support for Obama’s counterterrorism policies, including 83 percent of Americans approving of his use of drone strikes against terror suspects overseas.

This finding, however, is particularly startling:

What if those suspected terrorists are American citizens living in other countries? In that case do you approve or disapprove of the use of drones?

Approve: 65
Disapprove: 26

[snip]

And get this: Depressingly, Democrats approve of the drone strikes on American citizens by 58-33, and even liberals approve of them, 55-35.

The Democratic Party has, under Obama, significantly abandoned a commitment to civil liberties and rule of law, so I’m unsurprised by these results.

But I wonder how Americans would vote if they learned that one-third of Americans known to have died in US drone strikes were servicemen? Here’s the list:

Kamal Derwish, killed November 5, 2002, purportedly as collateral damage on a strike against Abu Ali al-Harithi; Derwish is alleged to have recruited the Lackawanna Six

Marine Staff Sgt. Jeremy Smith, killed in friendly fire incident on April 6, 2011

Navy Medic Benjamin Rast, killed in same friendly fire incident on April 6, 2011

Anwar al-Awlaki, killed September 30, 2011; Awlaki had ties to AQAP, though the Administration has never released evidence to support their claim he was “operational”

Samir Khan, killed in same September 30 drone strike, purportedly as collateral damage; Khan was a propagandist for AQAP

Abdulrahman al-Awlaki, aged 16, killed in drone strike on October 14, 2011, purportedly collateral damage in a strike aimed at Fahd al-Quso, who was indicted in the Cole bombing

Civil libertarians have long noted that the government’s lack of transparency undermines their (possibly entirely legitimate) claims that Awlaki was an imminent threat and the others really were just in the wrong place at the wrong time.

But the case of Smith and Rast points to the other real problem with Obama’s drone program: targeting is prone to analytical errors and Americans may shoot before they’ve confirmed that targets are enemy forces.

A Marine and a Navy medic killed by a U.S. drone airstrike were targeted when Marine commanders in Afghanistan mistook them for Taliban fighters, even though analysts watching the Predator’s video feed were uncertain whether the men were part of an enemy force.

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Scary Car Broker Plot and the Fifth Amendment

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I’ve always been skeptical of the Scary Car Broker Plot–the suit against a bunch of used car brokers and others based on the claim that the entire thing is a money laundering operation for Hezbollah. At the core of the complaint is the allegation that entities that weren’t listed on Treasury’s sanctions list until early last year transferred money between 2007 and early last year (that is, until they were listed) to purchase used cars in the US.

Between approximately January 2007 and early 2011, at least $329 million was transferred by wire from accounts held in Lebanon at LCB, Federal Bank of Lebanon (“Federal Bank”), Middle East and Africa Bank (“MEAB”), and BLOM Bank (“BLOM”) to the United States through their correspondent bank accounts with U.S. financial institutions located in the Southern District of New York and elsewhere for the purchase of used cars.

But one of the main targets of the complaint–one they don’t actually get to until page 46 of a 65-page complaint–are thirty seemingly Lebanese-American owned car brokers in the US.

In describing these brokers, the complaint seems to offer little perspective on how this business–a perfectly legitimate business designed to get clunkers into countries where they still have market value–normally operates.

The businesses of these Car Buyers typically have little or no property or assets other than bank accounts that are used to receive wires from overseas to buy cars, and to purchase used cars at auction. These cars are then transported to shipping ports, where they are shipped to West Africa. The Car Buyers typically do not have offices, car lots, or an inventory of used cars other than cars that are in transit to the ports. Some of the Car Buyers purchase cars for their own account, but others simply retain a fee of a few hundred dollars for each car that they buy.

That is, the complaint suggests that the marginal nature of these businesses, by itself, makes these businesses sketchy. But it offers no proof for that fact (and I believe that a lot of these businesses are sketchy by design–they’re the automotive equivalent of recyclers who pick through trash to try to find things with ongoing value).

In the section laying out the individual descriptions of the middle men who dealt with the car brokers, there are a lot of assertions of direct and more attenuated ties to Hezbollah with little or no proof.

Nevertheless, the goal of this complaint is to seize money from the auto brokers, about whom the complaint makes no claims of knowledge of ties to Hezbollah.

Since the complaint, I’ve just been assuming that maybe the government has better evidence to tie the American businesses they’re effectively shutting down to Hezbollah (nevermind that the ties have always been closer to Colombian drug cartels).

But yesterday, Al-Jazeera had a long article poking a bunch more holes in the case. Read more →

In Memoriam: Mary Beth Perdue

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The internet is a strange and wonderful thing. Just about everyone and everything in the world is on it, even though it is nothing but data in the form of binary computer code traversing by random electrons. Yet thought is crystalized, and friendships born and nurtured, through commonality of interest and purpose. And so it is here at Emptywheel, where many of us have been together since the days at The Next Hurrah, through years at Firedoglake, and now at our new home. Just because it germinates via the net does nothing to detract from the sense of community, friendship and admiration for each other gained over time.

With profound sadness, I report we have lost a true friend, and one of our longest tenured contributors, Mary. Mary Beth Perdue left us on Christmas Eve, December 24, 2011.

Mary Beth Perdue, 52, of Robards, KY, formally of Newburgh, passed away at her home.

She graduated Order of Coif from University of Kentucky Law School and from University of Evansville with an accounting degree. She was a member of the Indiana Bar Association. She was in house counsel at Mid-Central Land Services, Inc. and served as an attorney for firms in Indiana and Kentucky. She owned and operated the Horse and Hound (a pet supply store) in Newburgh. Mary was a lover of all animals with a special place in her heart for horses, dogs and cats. She was involved in numerous equestrian sports and organizations.

Here at Emptywheel, she was just Mary; and she was so much more than a simple obituary can convey. She was funny, kind, and, most of all, razor sharp in analysis of extremely complex issues surrounding torture, indefinite detention, international human rights, illegal wiretapping and executive branch overreach. Mary had a steel trap index in her mind for even obscure torture and rendition cases and facts. To the day she died, Mary was one of the very few people commenting in America that remembered, and would never miss a chance to point out, how the children and extended families of Khalid Sheikh Mohammed and Aafia Siddiqui were used and/or disappeared by the US as pawns in our immoral torture in the name of the so called “war on terror”. Mary’s dissection of Jack Goldsmith terrorist detention policy, complete with with a comparison to the Ox Bow Incident, was a thing of passion and beauty.

One of Mary’s favorite, and most important, hobby horses was the seminal case of Ex Parte Milligan, on which she beat the drum loudly long before the critical 2008 decision in Boumediene v. Bush and the 2009 release of the torture memos. She was, as usual, right. Here she is taking John Yoo apart at the seams over his intellectual duplicity regarding Ex Parte Milligan. And then there was Mary’s three part opus on the history and meaning of Ex Parte Milligan (Parts One, Two and Three), which is one of the best primers anywhere on the case that has finally come back into renewed significance in the critical issues of the war on terror. Mary played a part in keeping that significance alive, and in the discussion mix, until it took hold again.

Mary did not talk much about her real life family and work, and as another still practicing attorney, I can fully understand the maintenance of that separation. It is quite likely, like me, that her friends and family had little idea of the true depth and importance of her knowledge and dedication to the interests she expressed here, both in front page posts authored, and in her consistent critical contribution in the discussion comments. But, make no mistake, Mary was not just an invaluable contributor, and affected not just me and Marcy, but key players in the larger discussion. I know for a fact, because I talk to the different people and discussed it with them; Mary’s posts and comments were seen and known by actors from the ACLU, to EFF, to other think tanks and attorneys in the field. She left a mark.

As I said at the start of this post, the internet is a curious, if compelling and wonderful place; in all the furiously teeming milieu of people and issues, it is easy for one voice to not be missed for a brief time. All of us take time away every now and then, and Mary was no exception; often being scarce for a period due to pressing duties with work and her beloved horses and land.

I had not talked to Mary since a few days before Christmas. With the rush of the holidays, and a busy work schedule for me in January I have been a tad scarce myself and I had not particularly noticed Mary’s absence. A little over a week ago, I emailed her some irresistibly cute pictures of the one of a kind racehorse Rachel Alexandra and her new foal. Mary loved Rachel Alexandra. Realizing she had not responded to that catnip, I checked yesterday and found the terrible news. There are a lot of things Mary might be too busy with real life to respond to, but not that. And so life became a little less full and enjoyable. Mary’s family has indicated:

In lieu of flowers, memorial contributions may be made to a local humane society or other animal rescue.

And that would indeed be Mary, and fit her, to a tee. Here is a secure link to do so for the national Humane Society; but by all means, if so inclined, give to your local chapter and let them know it is for Mary.

Emptywheel will not be the same without Mary Beth Perdue, but her work and memory will live in our hearts, minds and archives as a testament to who and what she was and stood for. We shall close with the picture Mary never got the opportunity to see, but would have been the epitome of the horses, animals and children which she truly loved, Rachel Alexandra and foal.

Vaya con dios Mary, you will be missed.

The Non-Counterterrorist Drone Loophole: Did Clapper Admit We Targeted Iranian Scientists?

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One of the most interesting exchanges in yesterday’s Threat Assessment hearing occurred between Ron Wyden and James Clapper–with David Petraeus, whom Wyden calls out, observing silently (the exchange starts at 1:01).

Wyden: Let me wrap up with you Director Clapper on an issue that I’ve asked about before at this open hearing. General Petraeus knows about this, this is a question about the use of force and a speech that was given by Mr. Koh, Harold Koh of the State Department, a lawyer. Let me note at the beginning it’s a matter of public record that the intelligence community sometimes takes direct action against terrorists and this direct action sometimes involves the use of lethal force. And as you know Director [sic] Koh gave a speech outlining our policy with respect to various terrorist groups, talked about detention, talked about the use of unmanned drones and noted that under US law, the use of force against terrorist groups is permitted by Congressional authorization, while under international law it is permitted by America’s right to self defense. But in spite of having asked about this on a number of occasions, and General Petraeus, you know that I, too, share the Chair’s view with respect to your working with us here on this committee and your being forthright, I’ve not been able to get an answer to this specific question. And I would like to know whether that speech that Mr. Koh gave contained unstated exceptions for intelligence agencies?

Clapper: With respect to counterterrorism, it does not. So it applies to all components of the government involved in counterterrorism be it military or non-military.

Wyden: Are there other exceptions other than counterterrorist activities?

Clapper: I believe his speech dealt with counterterrorism.

Wyden: So you believe that his speech, the text of the speech–cause this would be important–applies to all agencies. It applies to the intelligence community, his entire speech, the overall thrust of the speech applies to all of the intelligence community.

Clapper: With respect to counterterrorism, yes.

Now, it seems clear that Wyden is referring to the portion of Koh’s speech that deals with drone strikes, which is reproduced in full below the line.

And my impression is that Wyden–who emphasizes targeting terrorists when he asks the question–was asking whether there was an exception to the principles of distinction and proportionality for the CIA when they used drones. Or, to put it more plainly, Wyden seemed to be asking whether the CIA could use drones to target civilians.

My guess is that Petraeus has refused to answer that question not to hide a CIA exception for the use of drones with civilian terrorists (say, with Anwar al-Awlaki) but rather to hide the CIA involvement in targeting of civilians in other contexts.

That’s the implication of Clapper’s response: “with the respect to counterterrorism, yes.” And Wyden’s expression as he delivers the question, “Are there other exceptions other than counterterrorist activities?” is worth watching.

There may be further confusion stemming from the language of Koh’s speech. While he was, in this section, specifically addressing “the Law of 9/11,” he does claim that his comments apply to “all of our operations involving the use of force.” Clapper’s caveat seems to belie that claim.

Koh’s language also addressed the use of force generally, not just those dealing with drones. We do use drones for missions outside of counterterrorism–including in drug operations, so Clapper’s caveat might suggest the CIA can target civilians in such context.

But if I had to guess, I’d say this had to deal with non-drone use of lethal force, possibly the assassinations of Iranian nuclear scientists. Was Clapper suggesting CIA targeted civilian nuclear scientists?

And while we may not have attached the bombs to Iranian civilian scientists’ cars (though our surrogates did), remember the suggestions that our drone surveillance of Iran was involved in those assassinations.

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Latif: Presumption of Regularity for Thee, But Not for Me

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In her opinion holding that government documents submitted in habeas corpus petitions must be treated with a presumption of regularity, Judge Janice Rogers Brown, herself, did not follow her own order. And in spite of demanding that judges treat their documents with the presumption of regularity, the government didn’t do so consistently in this case either. The government and the judge did not credit what Judges Henry Kennedy and David Tatel found to be one of the most important pieces of evidence in the case: the government’s own intake form showing that Adnan Farhan Abd Al Latif was captured in Pakistan with medical records.

As you recall, Latif is a Yemeni who was captured by Pakistanis close to the Afghan border, then turned over to the Americans on December 30 or 31, 2001 (this was the period when the US was paying Pakistanis bounties for Arab “fighters”). In July 2010, Kennedy granted his habeas petition. But the government (which had cleared Latif for release on multiple occasions between 2006 and 2010) appealed, arguing that Kennedy erred because he did not find their single piece of evidence explicitly tying Latif to the Taliban accurate.

I believe that evidence–a report which appears to be the summary of a “debriefing” conducted around December 27 or 28 while Latif was in Pakistani custody (see PDF 25)–is an intelligence report with the serial number TD-314/00684-02 summarizing the stories of at least nine different detainees, all the non-Yemenis of whom have since been transferred out of Gitmo.

The government apparently admitted that its case “turn[s] on the accuracy” of this report (that admission–cited to page 5 at PDF 53–appears to be redacted in the original). And Rogers Brown acknowledged that the report had an obvious mistake on its very first page. But the government argued and Rogers Brown upheld that Kennedy should have taken the report at its word, should have presumed that the government accurately identified the sources of information named in the report and accurately recorded what those sources said. “It is well established that there is a strong ‘presumption of regularity’ for actions of government officials taken in the course of their official duties,” the government argued. Unless Latif provided really good evidence to the contrary (and the fog of war and the Pakistani involvement and the translation and transcription problems were not sufficient, apparently), Rogers Brown’s opinion held that Kennedy should have accepted that the report accurately recorded Latif confessing that he had undergone military training with the Taliban.

The government also argued–critically for their case, given that their case relies on just that one report–that Latif, who explains he did not say what the report claims he said, is not credible. The government argued that, in spite of the fact that he has provided the same general explanation for his trip to Afghanistan since he came into US custody a decade ago (that he was hoping to get affordable medical care for ongoing problems from a head injury he sustained in 1994) the courts must credit the government’s one report with all its acknowledged factual errors rather than Latif’s story.

To attack Latif’s credibility, the government claimed he provided no corroboration for his story.

He submitted no evidence from a family member, from Ibrahim, or from anyone to corroborate his claim that he was traveling to Pakistan in 2001 to seek medical treatment.

But that’s not true. In addition to Latif’s medical records from being treated in Jordan, a statement from Yemen’s Ministry of Public Health recommending he get more care, and a statement from a Gitmo doctor finding Latif’s medical claims to be credible, Latif’s intake report from December 31, 2001 (PDF 33; shown above) shows he had medical records with him when he was captured.

In his opinion, Kennedy cited the intake report. Latif’s lawyers cited the report in their response to the government’s appeal. And Tatel cited it in his dissent, noting that, “the most plausible reason for why Latif would have had medical papers in his possession when first seized is that his trip in fact had a medical purpose.” Yet in spite of Rogers Brown’s claim that,

If a detainee introduces a government record to support his side of the story … he can benefit from the presumption as well.

She did not give him that benefit.

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We Are All Pirates Now

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I recommend you start reading this story, on how the Navy wants a floating base, a “mothership,” to float around the Middle East from which to launch paramilitary operations, at paragraph 18 out of 20:

Ironically, the term “mothership” is also commonly used to describe a vessel used by Somali pirates. After hijacking a large container or cargo vessel, pirate crews often turn it into a floating base to extend the range of their skiffs or speedboats far into the Indian Ocean, Gulf of Aden and Arabian Gulf.

While the story reminds that our “mothership” will actually return the Navy SEALs to maritime missions, it’s also worth noting that the two threats the article cites to justify the urgent retrofitting of an old ship to serve as our “mothership”–Somali pirates and potential Iranian responses in the Straits of Hormuz–are both asymmetric threats. We plan to use this “mothership” to match their “mothership.”

Now, aside from the many answers to the question, “what could go wrong?” I had while reading this story, I couldn’t help but thinking how we’re increasingly fighting terrorism with non-uniformed enemy combatants, fighting piracy with tactics borrowed from the pirates.

The three big things that distinguish us from them is our money, our ability to control of the financial transfer systems, and our drones.

But other than that, I think we are become pirates.