Osama bin Laden in Abbottabad: Pakistani Incompetence or Complicity?

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It’s probably just a coincidence that the US finally got Osama bin Laden at a time when its relationship with Pakistan is at a post-9/11 low. President Obama said the discovery of OBL came from a lead first generated last August.

Then, last August, after years of painstaking work by our intelligence community, I was briefed on a possible lead to bin Laden. It was far from certain, and it took many months to run this thread to ground. I met repeatedly with my national security team as we developed more information about the possibility that we had located bin Laden hiding within a compound deep inside of Pakistan. And finally, last week, I determined that we had enough intelligence to take action, and authorized an operation to get Osama bin Laden and bring him to justice.

Plans for the operation intensified over a series of Principals meetings in March and April.

The president chaired no fewer than five national security council meetings on this topic – on March 14th, March 29th, April 12th, April 19th and April 28th.

“When a case had been made that this was a critical target we began to prepare this mission in conjunction with the US military,” a senior administration official said.

At 8:20am on Friday, April 29th in the Diplomatic Room, President Obama met with National Security Adviser Tom Donilon, White House chief of staff William Daley, White House counterterrorism adviser John Brennan and deputy National Security Adviser Denis McDonough and gave the order for the operation.

But we did not give Pakistan a heads up.

Which is why the details Jane Perlez lays out–notably, that OBL’s hideout was nearly adjacent to the Pakistani equivalent of West Point, where General Ashfaq Parvez Kayani proclaimed victory over terrorism last month–raise so many questions about whether Pakistan knew OBL was hiding out in this compound.

[OBL] was killed in Abbottabad, a city of about 500,000, in a large and highly secured compound that, a resident of the city said, sits virtually adjacent to the grounds of a military academy. In an ironic twist, the academy was visited just last month by the Pakistani military chief, Gen. Ashfaq Parvez Kayani, where he proclaimed that Pakistan had “cracked” the forces of terrorism, an assessment that was greeted with skepticism in Washington.

Update: Here’s an ABC video from the mansion, also showing how close the military academy is.

And Perlez describes the curious silence from top Pakistani leaders about OBL’s death.

After the killing of Bin Laden became public in Pakistan, an ISI official confirmed his death but then insisted, contrary to President Obama’s statement, that he was killed in a joint United States-Pakistani operation, apparently an effort to show that Pakistan knew about the operation in advance.

On Monday, General Kayani, President Asif Ali Zardari of Pakistan, and the ISI chief, Lt. Gen. Ahmad Shuja Pasha, met in Islamabad but had not issued any statement more than six hours after President Obama’s announcement of Bin Laden’s death.

Finally, Perlez notes that we picked up a key al Qaeda operative in Abbottabad in February, just as the Raymond Davis was souring our relations with Pakistan significantly.

A Qaeda operative, Umar Patek, an Indonesian involved in the Bali bombings in 2002, was captured in a house in Abbottabad in February where he was protected by a Qaeda courier, who worked as a clerk at the city post office.

As relations with Pakistan have grown strained over the last several months, they have insisted we just need to trust them. Until we learn how it is that they missed this mansion specially built for OBL’s family, it seems further suspicion, not trust, is the appropriate stance.

BREAKING: Unusual Hasty Sunday Night Obama Statement

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This is, to say the least, highly unusual. From the White House:

POTUS to address the nation tonight at 10:30 PM Eastern Time

Now, I have no idea what this is about yet and, somewhat eerily, neither does Marc Ambinder, who almost always has scary good sources for this kind of stuff:

I assume the WH will give the wire services a heads up, so we’ll known by 10:25??

CNN has just announced that it is “national security related”.

Stay tuned and we will update here as it comes down.

UPDATES: It is reportedly NOT Libya. Rumor is Bin Laden.

BIN LADEN REPORTEDLY DEAD AND US HAS BODY

From CBS News:

House Intelligence committee aide confirms that Osama Bin Laden is dead. U.S. has the body.

Rumsfeld (of all people) has also said the same.

So, it is quite clear that Bin Laden is the deal and he is confirmed dead. Does that mean the was is over? Can we close Gitmo? Is the AUMF now completed and done? Well, of course not. The long war is NEVER over. This will only be an excuse to go to a higher and more scary DEFCON because of alleged feared reprisals.

From Laura Rozen:

Heard WTOP radio reports suggesting helicopter crash in pakistan and UBL (body or alive?) handed to US forces in Afghanistan

Two WMD Terrorists, the President’s Daily Briefing, and Lone Wolves

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This Time article is designed to be a swan song to Robert Mueller’s career; it builds over almost 6,500 words to the conclusion that, “Most people inside the bureau believe that the blown opportunities to head off 9/11 would not recur today.” Mueller, the article suggests, has fixed the problems that led the FBI to miss 9/11.

But a number of details make the article well worth a very close read. For example, it:

  • Provides an example of the kinds of things that make it into Mueller’s daily brief
  • Describes how Mueller almost quit when the White House ordered the FBI to return materials seized from William Jefferson’s congressional office
  • Describes one of Mueller’s futile attempts to get our supposed partner in the war on terror, President Ali Abdullah Saleh, to arrest Jamal al-Badawi, the USS Cole bomber

Of particular interest, though, is the article’s description of the FBI’s parallel tracking of two alleged WMD terrorists: the Saudi Khalid Ali-M Aldawsari and the white supremacist Kevin William Harpham.

Two men, 1,300 miles apart, had Mueller’s attention when he convened his operations brief on Feb. 17. Khalid Ali-M Aldawsari, a 20-year-old Saudi national, studied chemical engineering at Texas Tech University. Kevin William Harpham, 36, an unemployed Army veteran and avowed white supremacist, lived in a small town near Spokane. On this day the FBI’s interest was a closely guarded secret, but indictments to come would allege that the two men were behind separate plots to set off powerful homemade bombs. Until recently, the FBI had not heard of either man.

The Spokane attack struck without warning on Jan. 17. Shortly before the start of Spokane’s Martin Luther King Jr. Day parade, city workers found an abandoned backpack along the route. Inside was an explosive core laced with rat poison — an anticoagulant — and surrounded by lead fishing weights. A remote car starter and cell-phone parts were mated in a detonation circuit. The FBI lab in Quantico, Va., recovered DNA, but there was no suspect to test for a match.

Good luck and shoe leather led the FBI to Aldawsari, the Saudi student. One of the trip-wire programs rolled out after 9/11 invited vendors of hazardous goods to report unusual purchases to the feds. Aldawsari went undetected at first as he acquired the ingredients of TNP, an explosive used in World War I artillery shells. Amazon.com filled an order for 3 gal. of concentrated sulfuric acid, and the Georgia-based QualiChem Technologies shipped 10 boxes of nitric acid to a FedEx mail drop. Neither reported the buys. Aldawsari also dodged a student-visa review after flunking out of Texas Tech. Only on Feb. 1, when he ordered phenol, his last ingredient, did Aldawsari trip an alarm. Carolina Biological Supply tipped the FBI’s Charlotte, N.C., field office, and Con-Way Freight, where Aldawsari planned to take delivery, sent word to the Dallas field office by way of the Lubbock police.

By showing the parallel pursuit, Time reveals something disturbing about our country’s pursuit of terrorists. While the President gets briefed on suspected Islamic terrorists, he doesn’t get briefed on suspected right wing terrorists.

Harpham’s plot, if the allegations prove true, turned out to be the more advanced. He had built a powerful bomb and placed it, for maximum carnage, atop a metal bench with a brick wall behind it to focus the blast. The half-complete work of Aldawsari, an Arab whose jihadi aims fit the popular image of a terrorist, received far more public attention. More than a year ago, Mueller raised some eyebrows when he testified that “homegrown and lone-wolf extremists pose an equally serious threat.” But that message did not take root in the body politic or even in the national-security establishment. As the FBI chased the twin terrorist plots all through February, President Obama’s team heard daily reports about Aldawsari’s case but not Harpham’s. Some of Mueller’s lieutenants marveled at the contrast.

Domestic plots are not routinely included in the President’s daily briefing or the interagency threat matrix, an FBI official says, even though “the degree of harm is often greater” than in jihadi terrorist plots.

This is a troubling revelation, particularly in an article that concludes the FBI would have prevented 9/11. It suggests that the FBI–and the President–might still miss a similar attack launched by the next Timothy McVeigh. Billions of dollars and an entire shift of focus, and yet we’re still not watching white terrorists as closely as we watch brown ones.

And on the subject of terrorism investigation, the Time article explains–but does not emphasize–an important detail about the investigation of Aldawsari. As I noted when he was arrested, he was the perfect candidate for a Lone Wolf warrant. He was a non-resident alien and when we got a lead on him he appeared to be (and in fact turned out to be) acting alone. He’s just the kind of self-radicalized non-US person whom the PATRIOT Act’s Lone Wolf provision is meant to target. But, as Acting head of DOJ’s National Security Division Todd Hinnen revealed to Congress in March, we didn’t use the Lone Wolf provision to investigate Aldawsari. Time provides some details about what we did use.

When Mueller convened his executive team on Feb. 17, Aldawsari had been under a microscope for two weeks. Four shifts of agents watched the Saudi engineering student 24 hours a day. Vehicles equipped with StingRay transceivers followed him around greater Dallas, recording his cell-phone calls. Agents had slipped secretly into Aldawsari’s apartment, armed with a warrant from the Foreign Intelligence Surveillance Court. They inventoried his chemicals, cloned his computer drive and copied a journal handwritten in Arabic.

Hours before that morning’s briefing, Aldawsari had published a blog post alluding to a special celebration of his upcoming 21st birthday. One of his handwritten journal entries, according to a hasty FBI translation, said, “And now, after mastering the English language, learning how to build explosives and continuous planning to target the infidel Americans, it is time for jihad.”

[snip]

In Lubbock, the team that searched Aldawsari’s apartment had been interrupted and did not have time to learn whether he had unpacked his chemicals or whether he had the makings for a high explosive that required no phenol. The hasty retreat also left a gap in electronic surveillance, which nowadays has to include not only phone taps and pinhole cameras but voice-over-Internet, social-network messaging and online-gaming consoles. The Texas plot was unfolding across three e-mail addresses, which sent one another lists of “targets” and “nice targets” and directions for handling TNP. Was it one man? Two? Three?

The search team had to get back in. Mueller had no patience for explanations that agents were doing “pattern-of-life analysis” to find an opening. “You’re not getting it done,” Mueller said. “What are you going to do about it?” Later that day, the sneak-and-peek squad got it done. Then the investigators solved the mystery of the three e-mail addresses: Aldawsari was using all of them, they concluded, to send notes to himself.

While this passage doesn’t explain all of the warrants (or lack thereof) the FBI used to investigate Aldawsari, it’s clear they were able to get a Sneak and Peek warrant (as well as, presumably, warrants to wiretap his communications) without having to resort to the Lone Wolf provision. That seems to support the argument of those like Julian Sanchez, that investigators have the tools they need to find someone like Aldawsari without continued approval of the Lone Wolf provision.

Besides, the Lone Wolf wouldn’t be available to investigate the far more dangerous bomb used in the MLK Day attempt. Maybe we should focus on guarding against terrorist attacks by American citizens rather than trying to extend powers we don’t need to investigate the non-citizens we’re already scrutinizing closely.

Gitmo Detainee Files Working Thread

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Hi folks, HUGE document dump tonight from the New York Times, NPR, Guardian, El Pais and even the Washington Post tagging in. Heck, just about everybody has them; probably the only people who won’t be able to read the files are …. the detainees themselves who, of course, are currently effectively precluded from discussing such things with their lawyers.

At any rate, I am plowing through Charlie Savage’s material at the NYT, and there have been numerous individual filings by the Times tonight. I am going to give the various links in the order they came across the wire tonight and open the floor for discussion:

Initial NYT Article

Second NYT Article

Third NYT Article

Fourth NYT Article

Fifth NYT Article

Official Response From Us Govt.

Overall updated joint NYT/NPR Database

Feel free to link and quote into comments anything from any other sources you feel appropriate. Happy hunting!

DC Circuit Reinstates Blackwater Nisour Shooting Prosecution

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On December 31, 2009 DC District Judge Ricardo Urbina dismissed the indictment against five Blackwater defendants involved in what is commonly referred to as the Nisour Square shootings occurring on September 16, 2007. Urbina’s decision was 90 pages in length and was further supported by a three week long Kastigar hearing in his court October of 2009. A Kastigar hearing is an evidentiary inquiry based upon Kastigar v. United States, 92 S. Ct. 1653 (1972), “where a party has been compelled to relinquish his Fifth Amendment right against self-incrimination in reliance on the government‘s promises of immunity, the government bears the―affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.”

Today, in a surprising unanimous decision, the DC Circuit Court of Appeals overturned Urbina, reinstated the case against four of the five original defendants (the prosecution had voluntarily dismissed Defendant Slatten previously) and remanded the case back to District Court for further proceedings. Here is how Reuters described the ruling:

The five guards were charged with 14 counts of manslaughter, 20 counts of attempt to commit manslaughter and one weapons violation count over a Baghdad shooting that outraged Iraqis and strained ties between the two countries.

The shooting occurred as the private security firm’s guards escorted a heavily armed four-truck convoy of U.S. diplomats through the Iraqi capital on September 16, 2007. The guards, U.S. military veterans, were responding to a car bombing when gunfire erupted at a crowded intersection.

U.S. District Judge Ricardo Urbina ruled in December 2009 that prosecutors violated the defendants’ constitutional rights and the case was tainted by use of statement the guards made to State Department investigators under a threat of job loss.

The appeals court reversed that ruling that the indictment of the guards had been improperly obtained through the use of their compelled statements. It ruled Urbina wrongly interpreted the law.

The appeals court sent the case back to Urbina to determine what evidence, if any, the government presented had been tainted and whether it was harmless.

The public version of the decision is here however, there is also a sealed classified version containing additional material.

The first thing to consider here is the standard of review the Circuit Court used in analyzing the appeal, because there were intermixing of factual and legal findings inherent in the Kastigar process, the court reviewed for clear error:

We review the district court’s findings that the government used a defendant’s immunized statement for clear error, United States v. North, 910 F.2d 843, 855 (D.C. Cir. 1990) (“North I”), a standard that is met for any finding that was “induced by an erroneous view of the law,”

In a nutshell, what that means is that the appellate court had to give strong deference to the findings by the trial court. In spite of this deference still unanimously blew Judge Urbina’s findings straight out Read more →

US-Based Drones for the Sake of Drones

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(graphic: darkblack for Firedoglake)

Apparently, a bunch of people claiming to be interested in jobs inserted an amendment into the FAA bill requiring the FAA to allow for drones in US airspace. (h/t NC)

I became aware of the pro-drone legislation from a February 10, 2011, Syracuse Post Standard report that Sen. Charles Schumer (D-New York) was supporting an amendment to the pending Federal Aviation Administration (FAA) reauthorization bill (S. 223) that would create test zones for the introduction of drones into general airspace.

Senator Schumer was interested in the pro-drone amendment because MQ-9 Reaper drones, killer drones that are flying over Afghanistan, Pakistan and Iraq, are stationed at Hancock Air Base near Syracuse. However, FAA safety restrictions have limited drone flights out of Hancock.

“If Schumer’s legislative move succeeds this week,” said the Post Standard, “it would help ensure the future of 1,215 jobs at the (air) base in Mattydale (New York) and potentially lead to millions of dollars in radar research contracts for local defense companies.”

Aside from jobs, what’s remarkable about the push for drones is how amorphous the purpose of the drones are. Here’s Candice Miller, one of the sponsors of the amendment, describing the need:

My amendment is designed to help expedite and to improve the process by which FAA works with government agencies to incorporate unmanned aerial vehicles, or UAVs as they’re commonly called, into the National Airspace System. Currently, Mr. Chairman, law enforcement agencies across the country, from Customs and Border Protection to local police departments, et cetera, are ready to embrace the new technology and to start utilizing UAVs in the pursuit of enforcing the law and protecting our border as well.

However, the FAA has been very hesitant to give authorization to these UAVs due to limited air space and restrictions that they have. I certainly can appreciate those concerns; but when we’re talking about Customs and Border Protection or the FBI, what have you, we are talking about missions of national security. And certainly there’s nothing more important than that. It was a very, very lengthy exercise to get the FAA to authorize the use of UAVs on the southern border. While they’re finally being utilized down there, we are certainly a long way from fully utilizing these technologies. [my emphasis]

That is, we’re talking about CPB (which has used the drones for some years), but also the FBI, local police departments, and “et cetera” using the drones.

Did I miss the open, public debate about whether we want the FBI–much less local police departments or “et cetera” using drones to spy on Americans’ activities?

Then again, I guess this is why the government needs to trump up claims about self-radicalized Americans: to provide some justification, no matter how thing, for our latest jobs program.

The Fog of Obamawar In Hi-Def 1080p

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David S. Cloud has what can only be described as an amazing piece in today’s Los Angeles Times on the sobering reality and cold hearted bloodlust of remote drone warfare. Cloud’s story tells, in gripping, fully fleshed from all angles, detail the story of an United States killer drone operation gone awry.

The Americans were using some of the most sophisticated tools in the history of war, technological marvels of surveillance and intelligence gathering that allowed them to see into once-inaccessible corners of the battlefield. But the high-tech wizardry would fail in its most elemental purpose: to tell the difference between friend and foe.

This is the story of that episode. It is based on hundreds of pages of previously unreleased military documents, including transcripts of cockpit and radio conversations obtained through the Freedom of Information Act, the results of two Pentagon investigations and interviews with the officers involved as well as Afghans who were on the ground that day.

Before you go any further, go read Cloud’s full article. Seriously, do it now, because the details of the story – of just this one singular drone strike – are too many and Cloud lays them out to well for me to pick, choose and substitute.

Suffice it to say, by the most conservative casualty report, by the US military naturally, there were at least 16 dead and 12 critically wounded. For which General Stanley McChrystal gave a verbal apology and the oh so benevolent United States government paid blood money stipends of $2,900 for the dismembered and disfigured survivors and $4,800 for the dead. At $76,800, the combined lives of 16 innocent dead citizens, blown to bits in their own country, is about the cost of one of the Hellfire missiles fired by a Predator drone. The cold and celebratory technician soldiers at the drone pilot center in Nevada, and video review center in Florida, played their war games on video monitors that are worth more than the United States assigns as the value of a developed human life in Afghanistan.

So much of the angst (though certainly not all) from the legal liberal left, whether here at Emptywheel, from our friend Glenn Greenwald, or others, centers on promises and inferences that Barack Obama Read more →

Terror Trials, Ray Kelly and the FBI Director Job

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A couple of weeks ago quite a stir was created when the rumor was let leak that President Obama was considering three different high level Bush/Cheney Administration officials to replace FBI Director Robert Mueller, whose ten year term will expire will expire on September 4, 2011. The two names most prominently featured were former Bush Deputy AG James Comey and former Bush National Security AAG Ken Wainstein but also mentioned was former Bush Homeland Security Advisor Fran Townsend. The story creating the hubbub, almost as an afterthought, also mentioned that Sen. Chuck Schumer had been lobbying for current NYPD Commissioner Ray Kelly for the job.

Today, however, comes a news report from local New York investigative reporter Murray Weiss that the FBI Director chair is Ray Kelly’s “for the taking”:

And when sources with solid connections in the White House tell you Kelly has been told by Attorney General Eric Holder that the FBI director’s job is his for the taking, it is impossible to ignore them. All the signals, including the aside from Kelly, are in sync.

Here is the news, according to my sources.

Kelly, who served in two federal posts during the Clinton administration, is this close to heading out of Manhattan and back to Washington to cap his long career of public service by running the FBI.

There are several things interesting about the report. One is Kelly’s age – he is 69 years old. The article addresses that issue:

The FBI Director’s term is 10 years. My sources say the White House has told the 69-year-old Kelly to view the position as a five year commitment, which would coincide nicely with the end of a second Obama term.

If so, and Kelly is indeed nominated, this is a contemptible plan. The intent behind having a ten year service period for the FBI top spot is to give it some space from hard partisan politics. In this case, seeing as how rare it is that a party who has had the presidency for two terms gets it for a third, setting up the FBI job to be open in the face of what would historically be and expected GOP president in 2016 seems short-sighted and extremely ill considered. I guess that presupposes Obama is reelected, but you have to assume the White House believes that will be the case and is acting under Read more →

In July 2001, Khalid Sheikh Mohammed Tried to Come to the US

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One of the most intriguing details of the Khalid Sheikh Mohammed indictment is this entry:

126. On or about July 23, 2001, in Jeddah, Saudi Arabia, KHALID SHEIKH MOHAMMED applied for a U.S.-entry visa, using the name “Abdulrahman A.A. Al-Ghamdi,” which application was denied.

That’s interesting for a number of reasons. Such a reference doesn’t show up in the 9/11 Report, though by that time, a CIA source had already warned that someone named “Khaled” was sending people to the US to carry out terrorist activities for Osama bin Laden; on July 12, 2001, that source IDed a picture of KSM.

It also raises questions about sourcing. Why didn’t the 9/11 Commission know this by spring 2004, when they were finishing their report? Is it possible KSM told us about this attempt to fly to the US after that point? It’s worth noting that at least one piece of intelligence that appears in the indictment–a description of how the muscle hijackers were taught to use short blades by killing sheep and camel–is sourced to the February 23, 2004 interrogation of KSM. Or has the government developed a granular enough understanding of KSM’s movements that it was able to pin this attempted visa application to him via other–perhaps SIGINT–means?

But then the big question is, what was KSM planning to do if he had actually received a visa to travel to the US?

Given the timing and the context–KSM attempted to get the visa just a week after Ramzi bin al-Shibh and Mohammed Atta met in Spain for their last planning meeting before the attack, and therefore presumably right after bin al-Shibh reported back to KSM on what happened at the meeting–it seems that KSM was worried about whether Ziad Jarrah would carry through with the attack. The 9/11 Report describes:

The most significant part of the mid-July conversation [between KSM and bin al-Shibh] concerned Jarrah’s troubled relationship with Atta. KSM and Binalshibh both acknowledge that Jarrah chafed under Atta’s authority over him. Binalshibh believes the disagreement arose in part from Jarrah’s family visits. Moreover, Jarrah had been on his own for most of his time in the United States because Binalshibh’s visa difficulty had prevented the two from training together. Jarrah thus felt excluded from the decisionmaking. Binalshibh had to act as a broker between Jarrh and Atta.

Concerned that Jarrah might withdraw from the operation at this late stage, KSM emphasized the importance of Atta and Jarrah’s resolving their differences. Binalshibh claims that such concern was unwarranted, and in their mid-July discussion reassured KSM that Atta and Jarrah would reconcile and be ready to move forward in about a month, after Jarrah visited his family. Noting his concern and the potential for delay, KSM at one point instructed Binalshibh to send “the skirts” to “Sally”–a coded instruction to Binalshibh to send funds to Zacarias Moussaoui.

On July 20, Jarrah’s girlfriend bought him a one-way ticket to Dusseldorf. On July 23, KSM attempted to get his visa to the US. On July 25, Jarrah flew to Dusseldorf; while bin al-Shibh talked to him right away, they did not have their more substantive conversation until later. And between July 30 and August 3, 2001, Mustafa al-Hawsawi and bin al-Shibh sent money to Moussaoui he used to enroll in flight school (and buy a Leatherman knife).

It’s also worth noting that Atta, Hani Hanjour, and Nawaf al-Hazmi met in Las Vegas on August 13. The 9/11 Report reported it had gotten no explanation as to why they chose Las Vegas. The indictment explains that “in summer 2001, KHALID SHEIKH MOHAMMED instructed some of the hijackers to meet in Las Vegas to make final preparations.”

Had KSM received his visa, would he have attended the meeting?

In any case, it appears that KSM’s concerns about the plot falling to pieces (or at least losing Jarrah as a pilot) were sufficiently serious that he tried to come to the US himself to deal with the problem.

The Abu Zubaydah Standard in Obama’s Miranda Memo

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Here are the claims the Bybee Two memo premised its authorization to torture Abu Zubaydah on:

As we understand it, Zubaydah is one of the highest ranking members of the al Qaeda terrorist organization,

[snip]

Our advice is based upon the following facts, which you have provided to us. We also understand that you do not have any facts in your possession contrary to the facts outlined here, and this opinion is limited to these facts. If these facts were to change, this advice would not necessarily apply. Zubaydah is currently being held by the United States. The interrogation team is certain that he has additional information that he refuses to divulge. Specifically, he is withholding information regarding terrorist networks in the United States or in Saudi Arabia and information regarding plans to conduct attacks within the United States or against our interests overseas.

Compare that with the description of an “operational terrorist” whose Miranda rights may be delayed under a memo issued by DOJ last October.

For these purposes, an operational terrorist is an arrestee who is reasonably believed to be either a high-level member of an international terrorist group; or an operative who has personally conducted or attempted to conduct a terrorist operation that involved risk to life; or an individual knowledgeable about operational details of a pending terrorist operation.

The two claimed preconditions for torturing AZ–that he was a high ranking member of an international terrorist group and knowledgeable about operational details of pending terrorist operations–are exactly the same as two possible premises (of three) for delaying an American detainee’s Miranda warning.

Only, with AZ, the CIA had to send John Yoo a bunch of information purportedly proving their claims before they got to torture AZ.

Here’s how such claims will be checked under the Miranda exception.

There may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government’s interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation. [4] In these instances, agents should seek SAC approval to proceed with unwarned interrogation after the public safety questioning is concluded. Whenever feasible, the SAC will consult with FBI-HQ (including OGC) and Department of Justice attorneys before granting approval.

[snip]

As noted above, if there is time to consult with FBI-HQ (including OGC) and Department of Justice attorneys regarding the interrogation strategy to be followed prior to reading the defendant his Miranda rights, the field office should endeavor to do so. Nevertheless, the agents on the scene who are interacting with the arrestee are in the best position to assess what questions are necessary to secure their safety and the safety of the public, and how long the post-arrest interview can practically be delayed while interrogation strategy is being discussed. [my emphasis]

In other words, while FBI says it’d be nice if the folks holding the detainee consult with the lawyers in DC before delaying a suspect’s Miranda warning, they provide a great big invitation–“the agents on the scene who are interacting with the arrestee are in the best position to assess what questions are necessary to secure their safety and the safety of the public”–for them not to do so. And far be it for FBI Agents to refuse such a kind invitation!

So an FBI Agent in the field can decide on his own (for reasons of urgency, you understand) not to Mirandize a guy that he has decided, with no review, is a top ranking terrorist or knows about an upcoming terrorist attack. And a plain reading of the text doesn’t even require that the terrorist attack be related to international terrorism; it could be an environmental attack, for example. If an FBI Agent believes some vegan wants to free a bunch of pigs used in experimentation, he can declare it a planned terrorist attack and hold the vegan without Miranda warning. Since Main DOJ does not require that it oversee this process, it will be able to claim it has no responsibility for any abuses that result.

It will look like this in the eventual DOJ IG Report: “No one could have predicted that FBI Agents would abuse a policy written so broadly.”

Now, as it happens, when the government started making claims in court about AZ, in a venue in which both an independent judge and AZ’s lawyer could challenge what evidence the government actually turned over, the government chose not to claim that he was either a top-ranking al Qaeda member or aware of upcoming terrorist plots.

There’s good reason they didn’t make such claims. That’s because he wasn’t. As the government eventually admitted to AZ, after they waterboarded him 83 times. And after spending the better part of a summer chasing down the terrorist plots he invented to try to get the torture to stop.

The CIA IG Report explained how it was that the government came to have such a mistaken understanding of AZ and others.

The Agency lacked adequate knowledge of what particular Al-Qa’ida leaders–who later became detainees–knew. This lack of knowledge led analysts to speculate about what a detainee “should know,” vice information the analyst could objectively demonstrate the detainee did know.

But don’t worry–I’m sure a couple of FBI Agents from, say, Iowa, working alone their first terrorism case with no required review from Main DOJ won’t make the same kind of assumptions about what a detainee should know. Really.

Now, don’t get me wrong. I’m not saying FBI Agents would use a Miranda delay to waterboard a detainee (waterboarding is CIA turf, after all). The CIA system clearly provided the opportunity for much more abuse.

But consider the one detainee known to be treated in such a fashion: Faisal Shahzad. The government claimed a central reason why they had to hold him without charge is that they needed unfettered access to him, 24/7, so they could immediately verify any new intelligence they picked up. Call me crazy, but interrupting a detainee repeatedly, 24/7, to ask a question sounds like a great way–even better than the Frequent Flier program used at Gitmo–to sleep deprive someone under the guise of doing something else. Since Shahzad eventually plead guilty (remember that Pakistan basically detained his family members, perhaps including his wife and kids, while he was being questioned), the judge never really challenged whether his confession was coerced.

So we only have to look at the one prior case where such a delay was used to understand what kind of abuse can be done during the time before a detainee gets a lawyer.

So perhaps I am justified to be horrified by the parallel structure used in this memo and that used in John Yoo’s notoriously problematic Bybee Memo.