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.

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The UndieBomber’s Interrogators Asked Him about Anwar al-Awlaki’s Death Just after He Was Put on Kill List

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At least by October 4, 2011, UndieBomber Umar Farouk Abdulmutallab had been told that Anwar al-Awlaki had been killed. During jury selection that day, he yelled out “Anwar is alive,” as he had previously yelled out “Osama’s alive” at a hearing in September.

A week later, Abdulmutallab tried to plead guilty, and the following day, on October 12, he somewhat surprisingly did so (though of course he had tried to plead guilty a year earlier when he fired his court appointed lawyers, so maybe it shouldn’t have been such a surprise after all).

I find it interesting that Abdulmutallab knew Awlaki was dead when he plead guilty because Abdulmutallab’s interrogators appear to have tried to goad him into revealing more by discussing the death of Awlaki … before it happened.

In his memo on why Abdulmutallab represents an ongoing danger, Dr. Simon Perry lists the Abdulmutallab interrogations he relied on. The dates track what we know about Abdulmutallab’s interrogation: he confessed on Christmas Day 2009 (apparently implicating an Abu Tarak, which may be an alias for Anwar al-Awlaki). Then he clammed up for several weeks, until the FBI got Abdulmutallab’s family members to fly to MI to convince him to cooperate, which he started doing on January 29, 2010. Perry describes interrogations happening almost every day for 11 days (taking a break on Monday, February 1 and the following weekend, February 6 and 7), followed by seven more interrogations in February. Perry’s list suggests there was a break until April–though he does cite a March 15 interrogation (see footnote 54) that doesn’t appear in his list. In April, there were three interrogations: on April 8, 16, and 30. Altogether, Perry says he referred to reports from 18 or 19 interrogations, depending on whether there was one on March 15.

Perry’s memo therefore provides a really general overview of the interrogations Abdulmutallab had (though we can’t be entirely sure that these include all his interrogations). We can’t really draw conclusions about what the government learned from him when, since Perry’s focus is limited to Abdulmutallab’s radicalization and desire for martyrdom rather than specific information about Awlaki. And, as I noted here, Perry rather bizarrely doesn’t date the interrogation when Abdulmutallab admitted that Awlaki was the person originally named as Abu Tarak who ordered him to attack the US, so we can’t learn from Perry’s memo when Abdulmutallab clearly implicated Awlaki as Awlaki in the plot.

But there are two fascinating details of Abdulmutallab’s interrogation revealed by the following passage of Perry’s memo (remember, Perry uses the acronym UFAM for Abdulmutallab).

Yet we can learn that the rewards of martyrdom play a significant part for UFAM since when he talks about Aulaqi’s martyrdom he stresses that he believes that if Aulaqi were to be killed, he would be entitled to a martyrs reward. UFAM explains (again not in the context of his own martyrdom) that there are different degrees of reward for martyrdom. [interrogation from April 16, 2010] For example UFAM believes that if the accusations against Aulaqi were true (allegations of solicitation of prostitution) Aulaqi could repent for these sins and his commitment to Jihad would outweigh such transgressions. He adds that people are not perfect and that they make mistakes. [interrogations from February 15, 19, 2010]

I’ll start with the second detail first. On February 15 and 19, 2010–Abdulmutallab’s 12th and 14th interrogations of 18 or 19 Perry reviewed, so fairly late in the interrogation process–his interrogators were challenging Awlaki’s sanctity based on his prior busts for soliciting prostitutes. Interrogators presumably told Abdulmutallab about the two times Awlaki had been busted in the 1990s while living in San Diego.

The probe of the 9/11 attacks soon led Washington FBI agents back to San Diego, where they found that al-Awlaki had twice been busted for soliciting prostitutes in 1996 and 1997 but had avoided jail time. Al-Awlaki has previously described these charges as “bogus.” But FBI agents hoped al-Awlaki might cooperate with the 9/11 probe if they could nab him on similar charges in Virginia. FBI sources say agents observed the imam allegedly taking Washington-area prostitutes into Virginia and contemplated using a federal statute usually reserved for nabbing pimps who transport prostitutes across state lines.

And it would make sense that interrogators would raise Awlaki’s past with prostitutes. It appears that Abdulmutallab’s interrogators were trying to get him to reveal more information–lose faith in Al Qaeda so he would reveal more–based on what a hypocrite his religious mentor was.

Not that it appears to have worked. Abdulmutallab just forgave Awlaki in the same way many religious conservatives dismiss their own leaders’ hypocrisy in this country.

The other reference is even more interesting. On April 16, 2010, the second-to-last interrogation of those Perry reviewed, Abdulmutallab’s interrogators asked him about Awlaki’s martyrdom. Or, to use the secular term, they talked about Awlaki’s death. Read more →

Why Has the Government Story about Who Ordered the UndieBomber to Attack the US Changed?

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The government has told two or three slightly different stories about who directed and inspired Umar Farouk Abdulmutallab’s UndieBomber plot. The stories are all reconcilable (I’m not suggesting nefarious intent). But the differences in the three stories are worth noting, not least because the government killed Anwar al-Awlaki based on a claim he was the director of external operations of Al Qaeda in the Arabian Peninsula, reportedly based in significant part on a claim that he directed Abdulmutallab’s plot.

In October, prosecutor Jonathan Tukel said that an Al Qaeda member with whom Abdulmutallab stayed in Sana, Yemen named Abu Tarak ordered the UndieBomber to attack a US airline over US airspace. Today, they say Awlaki gave that order. [See update below for what I think is an explanation.]

Update: There’s a totally different explanation. Abu Tarak is an alias for Awlaki. Thus, while Abdulmutallab seemed to be hiding Awlaki’s identity in that first interrogation, that initial story is consistent with his later story (which is presumably why the government was happy just using the initial interrogation).

Al-Awlaki had significant influence–but so did Abu-Tarak and others

The most balanced of the three stories submitted by the government came in a memo, released today, from an expert on martyrdom, Dr. Simon Perry, basically laying out why Abdulmutallab, who hoped for martyrdom, is so dangerous (I’ll leave to others to assess the validity of Perry’s science; it’s not relevant to this post).

In a section describing who inspired Abdulmutallab to extremism, Perry makes the central inspirational importance of Anwar al-Awlaki to Abdulmutallab clear–going back to 2005–but describes the following as other influences:

  • Fundamentalist Islamists
  • Abu Tarak and three other visitors who visited daily while Abdulmutallab stayed with Abu Tarak in Sana leading up to his attack
  • Uthmann (?)
  • A Jihadist who preached in England
  • Other fighters in Yemen
  • A man from Al Qaeda he met in Yemen

Here’s the passage. (Note, Perry uses the acronym UFAM for Abdulmutallab; I’ve taken out the footnotes here for ease of reading, but they’re all to interrogations between Christmas 2009 to February 5, 2010.)

Manipulated by fundamentalists, such as Aulaqi and his internet lectures, UFAM claims that the main motivation for conducting the martyrdom mission included his interpretation of Koranic verses and his regularly attendance at prayers, where he met and interacted with Fundamentalist Islamists. UFAM was familiar with all of Aulaqi’s lectures, and they were an important motivator which led UFAM to decide to participate in Jihad. He began listening to the lectures in 2005 and reading Aulaqi’s writings, which motivated him to accept martyrdom as a possibility. Aulaqi was not the only influential fundamentalist in UFAM’s life. While residing at Abu Tarak’s residence in Sana, Yemen he was mainly confined to his residence and discouraged from any communication with the outside world (phone, email). During this period, UFAM spoke regularly with Abu Tarak and three other individuals who visited him daily, speaking with them about Jihad and martyrdom. UFAM discussed the concept of Jihad also with Uthmann who supported Mujahidin worldwide already from 2005. He was deeply influenced by a Jihadist who preached in England and elsewhere and used to meet with him intensively (as often as 3 times a week). UFAM associated with Aulaqi who frequently spoke of Jihad and interacted with other fighters, and while in Yemen, he met with a man from Al Qaeda who further deepened his conviction. [my emphasis]

Now, it’s not Perry’s job to describe the operation itself, so I’ll take nothing from his silence on who directed it. He makes it very clear Awlaki counselled Abdulmutallab on the appropriateness of martyrdom.

And Perry does say that Awlaki told Abdulmutallab he should prepare a martyrdom video in anticipation of a plane operation; Abdulmutallab made the video on December 2 or 3 (this passage is sourced to Interrogations on January 29 and February 9, 2010).

UFAM himself participated in this practice of preparing a martyrs’ video after he was told by Aulaqi that he would bring down a plane and that he should prepare a video. UFAM spent time thinking about his martyr’s video. Approximately on the 2nd or 3rd of Dec. 2009, UFAM made a martyr’s video with the help of two video technicians who brought the equipment. They brought a black flag with Islamic writing for the background as well as clothing and other props. It took them approximately 2 or 3 days to complete the video.

And the target was chosen, according to Perry, by Awlaki. But oddly, he did not source that assertion to any of Abdulmutallab’s interrogations.

He was prepared to fulfill his mission of Jihad against whatever enemy was identified by Aulaqi. UFAM did not choose the target or the mission, it was chosen for him. [Perry did not source this statement. Instead, in a footnote he points out his unsourced statement contradicted a comment Abdulmutallab made at his sentencing, in which the defendant said he was motivated by hate for the US.]

Awlaki chose the target

In the narrative released today (based, according to the government filing, on conversations of unknown date during which Abdulmutallab’s original court-appointed lawyers were trying to negotiate a plea bargain that never happened), Awlaki instructed Abdulmutallab to make a martyrdom video.

Awlaki told defendant that he would create a martyrdom video that would be used after the defendant’s attack. Awlaki arranged for a professional film crew to film the video. Awlaki assisted defendant in writing his martyrdom statement, and it was filmed over a period of two to three days.

Thus far, the government’s narrative matches Perry’s. But the government narrative provides more details about how Awlaki gave Abdulmutallab the final instructions about how to carry out the attack.

Although Awlaki gave defendant operational flexibility, Awlaki instructed defendant that the only requirements were that the attack be on a U.S. airliner, and that the attack take place over U.S. soil. Beyond that, Awlaki gave defendant discretion to choose the flight and date. Awlaki instructed defendant not to fly directly from Yemen to Europe, as that could attract suspicion. [my emphasis]

Abu Tarak chose the target

That’s funny, because back when prosecutors gave their opening argument on October 11, just 12 days after the government killed Awlaki in a drone strike, they told a different story. In that version, Awlaki provided the inspiration for Abdulmutallab.

So [Abdulmutallab] had the opportunity to do anything he wanted with his life. But instead he began listening to tapes of someone named Anwar al-Awlaki, a radical preacher, and he became committed to jihad, and he left graduate school and he went to Yemen. He wanted jihad and he sought it out and he found it.

That’s it–the sole mention of Awlaki in the case the government was willing to defend in court.

But a guy named Abu Tarak–the guy, according to Perry, with whom Abdulmutallab stayed in Sana, Yemen–gave Abdulmutallab the instructions.

So what else did the defendant say to the FBI? He said that he sought out and found al-Qaeda. He said that he was introduced at a mosque to someone he called Abu-Tarak, an al-Qaeda member. He told the FBI that he and Abu-Tarak spoke daily about jihad and martyrdom and supported al-Qaeda and Osama bin Laden. And martyrdom is, of course, a suicide operation where the person is engaged in jihad, and they carry out an operation, sometimes called suicide bombing, sometimes called martyrdom bombing, where the person intends to kill and to himself die in the act of doing it, and they usually think that they will end up in heaven as a result of doing that.

And the defendant said that he and Abu-Tarak spoke daily about ways to attack the United States. Daily.

And then in late November of 2009, remember, this interview is taking place on December 25th so he’s talking about a month or so earlier, Abu-Tarak suggested to the defendant that he become involved in a plane attack against the United States aircraft. And the defendant agreed to do that. And the plan was that the bomb would be concealed in the defendant’s underwear, and Abu-Tarak gave him training in detonating the bomb. And the way the bomb would work is that the defendant would inject liquid into a powder with a syringe and that would cause the explosion.

And Abu-Tarak told the defendant that the bomb would not be detected by airport security anywhere in the world. And he said that the bomb maker was a Saudi Arabian individual, and in fact, the defendant told the FBI that he met the bomb maker, he met the Saudi Arabian bomb maker while he was in Yemen. And Abu-Tarak told him that the plane would crash and it would kill everybody on board.

And Abu-Tarak gave him the direction.

Remember, I said there were only three parts to the plan, he had to blow up a plane, it had to be a U.S. airliner and it had to take place over U.S. soil. Abu-Tarak reported that way, make sure it’s a U.S. aircraft, make sure it takes place over the United States.

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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.

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 Administration’s Many Excuses for Hiding Its Targeted Killing Memo

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Remember this article? It describes the debate within the Administration over how readily and extensively to acknowledge the US killing of Anwar al-Awlaki. As it describes, the debate was at least preliminarily resolved at a Situation Room meeting in November.

The issue came to a head at a Situation Room meeting in November. At lower-level interagency meetings, Obama officials had already begun moving toward a compromise. David Petraeus, the new CIA director whose agency had been wary of too much disclosure, came out in support of revealing the legal reasoning behind the Awlaki killing so long as the case was not explicitly discussed. Petraeus, according to administration officials, was backed up by James Clapper, the director of national intelligence. (The CIA declined to comment.) The State Department, meanwhile, continued to push for fuller disclosure. One senior Obama official who continued to raise questions about the wisdom of coming out publicly at all was Janet Napolitano, the Homeland Security director. She argued that the calls for transparency had quieted down, as one participant characterized her view, so why poke the hornet’s nest? Another senior official expressing caution about the plan was Kathryn Ruemmler, the White House counsel. She cautioned that the disclosures could weaken the government’s stance in pending litigation. The New York Times has filed a lawsuit against the Obama administration under the Freedom of Information Act seeking the release of the Justice Department legal opinion in the Awlaki case. (The department has declined to provide the documents requested.)

It came down to what Denis McDonough, the deputy national-security adviser, cheekily called the “half Monty” versus the “full Monty,” after the British movie about a male striptease act. In the end, the principals settled on the half Monty. As the State Department’s Koh continued to push for the maximum amount of disclosure, McDonough began referring to that position as “the full Harold.”

Note especially the stance of Kathryn Ruemmler, the White House Counsel, who argued that any disclosures on the Awlaki killing “could weaken the government’s stance in pending litigation.”

That is, Ruemmler argued the Administration couldn’t voluntarily provide information about Awlaki’s killing, because it might mean it would have to involuntarily give that information up pursuant to a lawsuit over that information. Huh?

Since November, both the NYT (on December 20, 2011) and the ACLU (yesterday) have sued to get the Awlaki memo under FOIA (the ACLU is also suing to get the underlying evidence, including that relating to Samir Khan and Awlaki’s son Abdulrahman).

So I wanted to compare the different responses different agencies gave the NYT and ACLU around the same time that many top Administration officials were advocating for some kind of transparency even while the White House Counsel was arguing that doing so might lead to transparency. Here’s how the government responded to these FOIAs when (I’ve not noted the ACLU appeals, but all were appealed before the subequent follow-up):

Around June 2010: OLC completes Awlaki memo

June 11, 2010: NYT’s Scott Shane FOIAs DOJ OLC for memos on targeted killings

October 7, 2011: NYT’s Charlie Savage FOIAs OLC for memos on targeting killings

October 19, 2011: ACLU FOIAs Anwar al-Awlaki OLC memo, underlying evidence supporting it, and information relating to Samir Khan and Abdullah al-Awalaki

October 27, 2011: OLC denies both NYT requests under FOIA exemptions (b)(1), (b)(3), and (b)(5), and, in response to Shane’s request, also notes that with regards to other agencies, “neither confirms nor denies the existence of the documents” in the request

October 27, 2011: DOJ Office of Information Policy grants ACLU’s request for expedited processing but determines the request fell within “unusual circumstances” so it could not meet the statutory deadline

October 31, 2011: DOD denies ACLU’s request for expedited processing and also claimed “unusual circumstances”

November 2011, unknown date: Situation Room meeting at which Principals decide to pursue a “half monty” strategy of limited release of information on Awlaki

November 4, 2011: NYT appeals its denial

November 7, 2011: USSOCOM denies ACLU’s request for expedited processing and determined the request fell within “unusual circumstances”

November 14, 2011: OLC denies ACLU’s request under FOIA exemptions (b)(1), (b)(3), and (b)(5)

November 17, 2011: CIA denies ACLU’s FOIA “pursuant to FOIA exemptions (b)(1) and (b)(3)” and claims that the “fact of the existence or nonexistence of requested records is currently and properly classified”

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Who Will Redact Our Next Big Constitutional Debate?

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In her Gitmo anniversary piece, Dahlia Lithwick, piggybacking on Adam Liptak’s earlier report, used the extensive redactions in the DC Circuit Opinion overturning Adnan Latif’s habeas petition to illustrate how little the courts are telling us about his fate, our detention program, and its impact on the most basic right in this country, habeas corpus.

But in the spirit of the day, I urge you to stop for a moment and look at the decision itself, so heavily redacted that page after page is blacked out completely. The court, in evaluating a secret report on Latif, can tell us very little about the report and thus the whole opinion becomes an exercise in advanced Kafka: The dissent, for instance notes that “As this court acknowledges, “the [district] court cited problems with the report itself including [REDACTED]. … And according to the report there is too high a [REDACTED] in the report for it to have resulted from [REDACTED].” Liptak describes all this as an exercise in “Mad Libs, Gitmo Edition.” But in the end, it’s also an exercise in turning the legal process of assessing the claims of these prisoners at Guantanamo Bay into something that replaces one legal black hole with another: pages and pages of black lines that obscure in words what has been obscured in fact. Americans will never know or care what was done at the camp and why if the legal process that might have transparently corrected errors happens behind blacked-out pages.

Latif’s classified petition for cert has just been filed.

We won’t get to see that petition, though, until after the court redacts it, at which point it will presumably look just like the Circuit Opinion–page after page of black lines.

It’s worth asking who will get to redact that petition, which is after all an important effort not only to free a man cleared for release years ago, but also to restore separation of powers and prevent detainees and Americans alike from being held solely on the basis of an inaccurate intelligence report.

That’s important because, thus far, the existing court documents in this case have been redacted inconsistently.

We know that because the dissent in the Circuit Opinion quotes language from Judge Henry Kennedy’s ruling, yet that language doesn’t appear anywhere in the unredacted sections of his ruling itself. For example, David Tatel refers to the “factual errors” Kennedy described (21; PDF 88) and cites Kennedy’s repetition of Latif’s explanation for having lost his passport–he “gave it to Ibrahim [Alawi] to use in arranging his stay at a hospital.” (37; PDF 104)  Yet the appearances of these phrases have been entirely redacted from Kennedy’s opinion (there are many more fragments for which the same is true, supporting general claims about the inaccuracy of the report, but they are less specific).

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The OLC Opinion on Obama’s Recess Appointments

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Out of the blue this morning, the Obama Administration has released the OLC opinion it relied on in making last weeks recess appointments of Richard Cordray to the CFPB and others to the NLRB. Several legal analysts and pundits have lobbied publicly and privately for the memo, which almost certainly existed, to be released, maybe the most cogent of the public pleas being made by Jack Goldsmith at Lawfare. Honestly, I agreed fully with Jack, but since the White House was reticent to admit it even existed, and since (as Josh Gerstein pointed out) a 2nd Circuit opinion from 2005 likely meant it was not subject to FOIA, I was not sure how soon it would meet public eyes.

Well, here it is in all its glory.

While some had suggested the reason the White House would not discuss whether there even was an opinion, much less release it, was that the OLC did not support the President’s ability to so recess appoint. I never particularly gave this much credit, even though Obama clearly is not above acting contrary to OLC advice, he did exactly that regarding the Libya war action. And, indeed, here the OLC did support his action in their 23 page opinion.

Although the Senate will have held pro forma sessions regularly from January 3 through January 23, in our judgment, those sessions do not interrupt the intrasession recess in a manner that would preclude the President from determining that the Senate remains unavailable throughout to “‘receive communications from the President or participate as a body in making appointments.’” Intrasession Recess Appointments, 13 Op. O.L.C. 271, 272 (1989) (quoting Executive Power—Recess Appointments, 33 Op. Att’y Gen. 20, 24 (1921) (“Daugherty Opinion”)). Thus, the President has the authority under the Recess Appointments Clause to make appointments during this period. The Senate could remove the basis for the President’s exercise of his recess appointment authority by remaining continuously in session and being available to receive and act on nominations, but it cannot do so by providing for pro forma sessions at which no business is to be conducted.

As I previously have noted, the entire “block” of the President’s recess appointment power is predicated upon the Article I, Section 5 provision in the Constitution that “[n]either House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days”. And, so upon what exactly does the OLC hang their hat on that the three day periods do not prevent a “recess” within the meaning of a President’s Article II, Section 2, Clause 3 recess appointment power? Mostly some reasonably thin quotes from GOP Senators that were not Read more →

Update On The Signing Of The NDAA

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Many people have been wondering what happened regarding the signing of the 2012 NDAA containing the critical, and much criticized, detention provisions. The House of Representatives passed the conference report of the bill on December 14th, with the Senate approving it by a 86 to 13 margin the following day, December 15th. Interest then turned to whether the President would veto it (he won’t) and when he will sign the legislation.

Most seemed to think that meant the bill must be signed by yesterday, which would have been the tenth day, excluding Sundays, after passage pursuant to Article I, Section 7 of the Constitution, which provides:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

But Obama has not yet signed the NDAA, so what gives? Presentment. A bill coming out of Congress must be formally presented to the President for signature. Sometimes, if the subject matter is deemed urgent, the presentment process is accelerated remarkably and happens on an emergency basis quite quickly. But, normally, it is a time honored deliberate process also governed by statute. 1 USC 106 and 107 require an enrolled bill passed by both chambers of Congress be printed on parchment or paper “of suitable quality” and “sent” to the President; this is the “presentment” process. 1 USC 106 does allow for alternate accelerated means for a bill emanating during the last six days of a session, and the OLC, in a little known opinion from May 2011, has decreed that electronic transmission is even acceptable (basically, the thing can be emailed).

In the case of the critical 2012 NDAA, however, Congress (one would assume with the blessing of the White House) apparently made no attempt to accelerate the schedule as often occurs for end of session matters, and the NDAA was not formally presented to President Obama until December 21st. So, excluding intervening Sundays, the tenth day is, in fact, Monday January 2, 2012.

Why, then, is the White House and President stringing out the signing of the NDAA? Well, we know AG Eric Holder has indicated Obama would be attaching a signing statement to the executed NDAA. Although unconfirmed officially, the word I am hearing from DOJ, who was working with the White House on the signing statement, was that they were done late last week.

So, it is not clear why Obama has still not yet signed the NDAA. Maybe he and the White House optics shop realized what a sour pill it would be to sign such a perceived toxic hit on civil liberties right before Christmas? The better question might be whether they are planning on slipping this little gem in the end of the week pre New Years trash dump.

Obama Apologists Ignoring the Rotting Corpse of Anwar al-Awlaki

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It’s been amusing to see how Obama apologists have taken Lawfare’s very helpful explainer on the NDAA’s detainee provisions to pretend that their president isn’t signing a bill that he believes authorizes the indefinite detention of American citizens.

Take this example from Karoli.

Here’s how she claims that Lawfare proves that the bill doesn’t authorize indefinite detention of American citizens.

Key point rebutting the contention that the indefinite detention provisions apply to United States citizens:

Section 1022 purports not merely to authorize but to require military custody for a subset of those who are subject to detention under Section 1021. In particular, it requires that the military hold “a covered person” pending disposition under the law of war if that person is “a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda” and is participating in an attack against the United States or its coalition partners. The president is allowed to waive this requirement for national security reasons. The provision exempts U.S. citizens entirely, and it applies to lawful permanent resident aliens for conduct within the United States to whatever extent the Constitution permits. It requires the administration to promulgate procedures to make sure its requirements do not interfere with basic law enforcement functions in counterterrorism cases. And it insists that “Nothing in this section shall be construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency with regard to a covered person, regardless whether such covered person is held in military custody.” [emhasis original]

Of course, Karoli can only make this claim by pretending that section 1022–the section that makes military detention presumptive for non-citizens but doesn’t foreclose military detention of US citizens–is section 1021–the section that affirms the President’s authority to indefinitely detain people generally. And she can also make this claim only by ignoring the section where Lawfare answers her question directly.

Does the NDAA authorize the indefinite detention of citizens?

No, though it does not foreclose the possibility either.

The NDAA doesn’t do anything to exempt Americans from indefinite detention. And the reason it doesn’t–at least according to the unrebutted claims of Carl Levin that I reported on over a month ago–is because the Administration asked the Senate Armed Services Committee to take out language that would have specifically exempted Americans from indefinite detention.

The initial bill reported by the committee included language expressly precluding “the detention of citizens or lawful resident aliens of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.”  The Administration asked that this language be removed from the bill. [my emphasis]

So the effect is that (as Lawfare describes in detail) the bill remains unclear about whether Americans can be detained indefinitely and so we’re left arguing about what the law is until such time as a plaintiff gets beyond the Executive Branch’s state secrets invocations to actually decide the issue in court.

But what’s not unclear is what Obama believes about the bill he’s signing. That’s true not just because (again, according to the unrebutted statement of Carl Levin) the Administration specifically made sure that the detention provisions could include Americans, but because the Administration used a bunch of laws about detention to justify the killing of American citizen Anwar al-Awlaki.

And, as Charlie Savage has reported, the legal justification the Administration invented for killing an American citizen in a premeditated drone strike consists of largely the same legal justification at issue in the NDAA detainee provisions.

  • The 2001 AUMF, which purportedly defined who our enemies are (though the NDAA more logically includes AQAP in its scope than the 2001 AUMF)
  • Hamdi, which held the President could hold an American citizen in military detention under the 2001 AUMF
  • Ex Parte Quirin, which held that an American citizen who had joined the enemy’s forces could be tried in a military commission
  • Scott v. Harris (and Tennesee v. Garner), which held that authorities could use deadly force in the course of attempting to detain American citizens if that person posed an imminent threat of injury or death to others

In other words, Obama relied on substantially the same legal argument supporters of the NDAA detainee provisions made to argue that indefinite detention of American citizens was legal, with the addition of Scott v. Harris to turn the use of deadly force into an unfortunate side-effect of attempted detention. [original typos corrected]

We don’t have to guess about what the Administration believes the law says about detention and its unfortunate premeditated side effect of death because we have the dead body of Anwar al-Awlaki to make it clear that the Administration thinks Hamdi gives the Executive expansive war powers that apply even to American citizens.

You don’t get to the targeted killing of American citizens (which, after all, doesn’t offer the possibility of a habeas corpus review) without first believing you’ve got the power to indefinitely detain Americans (with habeas review).

Now, to Obama’s, um, credit, I don’t think he actually wants to indefinitely detain Americans. He seems to have figured out that the civilian legal system is far more effective–and plenty flexible–for detaining terrorists for long (and usually life, in the case of actual terrorist attackers) sentences. He doesn’t necessarily want to use the power of indefinite detention he believes he has, but (as the unrebutted claims of Carl Levin make clear) he wants to be able to continue to claim he has it, probably because a bunch of other claimed authorities–demonstrably, targeted killing, and probably some kinds of domestic surveillance–depend on it.

But that doesn’t excuse what he will do by signing the bill into law. He’s signing a bill that grants the executive broad powers of detention that he believes to include American citizens. And while he may not want to detain Americans, that’s no guarantee that President Newt won’t want to.