THE DISTURBING PARADOX OF THE DAVID BARRON NOMINATION
Barack Obama has a preternatural preference for ivory tower elites from Harvard when it comes to judicial and executive branch appointees, and David Barron is the latest example. The White House is in the final stages of an all out push to insure David Barron gets confirmed to a lifetime Article III seat on the First Circuit.
In this regard, Mr. Barron has gotten exactly the kind of fervent support and back channel whipping the Obama White House denied Goodwin Liu, and refused to give to the nominee at OLC that David Barron stood as the designated and approved Obama acting placeholder for, Dawn Johnsen.
It turns out Mr. Obama and his White House shop really can give appropriate support to nominees if they care, which seemed to be a trait entirely lacking earlier in the Obama Presidency. And by giving the ill taken legal cover to Mr. Obama for the extrajudicial execution of American citizens, that Obama had already attempted once without, Mr. Barron certainly earned the support of the Obama White House.
It would be wonderful if Mr. Obama were to give support to candidates for judicial seats and key legal agencies who protect the Constitution instead of shredding it for convenience, but it appears to not be in the offing all that consistently. Obama has never been the same since blowback from the release of the Torture Memos when he first took office. Even Federal judges like Mary Schroeder and Bill Canby who, less than a month after Obama took office, were stunned by the about face, and wholesale adoption, by Obama of the Bush/Cheney security state protocols. From a New York Times article at the moment:
During the campaign, Mr. Obama harshly criticized the Bush administration’s treatment of detainees, and he has broken with that administration on questions like whether to keep open the prison camp at Guantánamo Bay, Cuba. But a government lawyer, Douglas N. Letter, made the same state-secrets argument on Monday, startling several judges on the United States Court of Appeals for the Ninth Circuit.
“Is there anything material that has happened” that might have caused the Justice Department to shift its views, asked Judge Mary M. Schroeder, an appointee of President Jimmy Carter, coyly referring to the recent election.
“No, your honor,” Mr. Letter replied.
Judge Schroeder asked, “The change in administration has no bearing?”
Once more, he said, “No, Your Honor.” The position he was taking in court on behalf of the government had been “thoroughly vetted with the appropriate officials within the new administration,” and “these are the authorized positions,” he said.
Make no mistake, from my somewhat substantial knowledge of Mary Schroeder, that was the voice of shock and dismay. But it was an early tell of who and what Barack Obama, and his administration, would be on national security issues from there forward. And so, indeed, it has been.
What was unconscionable and traitorous to the rule of law and Constitution for Obama, and the Democratic majority in the Senate, under George Bush is now just jim dandy under Barack Obama. It is intellectual weakness and cowardice of the highest order.
So we come back to the case of David Barron. Frankly, it is not hard to make the argument that what Barron has done is actually worse than the travesties of John Yoo and Jay Bybee. As unthinkable, heinous and immoral as torture is, and it is certainly all that, it is a discrete violation of domestic and international law. It is definable crime.
But what David Barron did in, at a minimum, the Awlaki Targeted Kill Memo (there are at least six other memos impinging on and controlling this issue, at a minimum of which at least one more is known to be authored by Barron, and we don’t even deign to discuss those apparently), was to attack and debase the the very foundational concept of Due Process as portrayed in the Bill of Rights. Along with Habeas Corpus, Due Process is literally the foundation of American criminal justice fairness and freedom under our Constitution.
David Barron attacked that core foundation. Sure, it is in the so called name of terrorism today, tomorrow it will justify something less in grade. And something less the day after. Such is how Constitutional degradation happens. And there is absolutely nothing so far known in Mr. Barron’s handiwork to indicate it could not be adapted for use domestically if the President deems it so needed. Once untethered from the forbidden, once unthinkable Executive Branch powers always find new and easier uses. What were once vices all too easily become habits. This is exactly how the once proud Fourth Amendment has disappeared into a rabbit hole of “exceptions”.
This damage to Due Process occasioned by David Barron can be quite easily argued to be more fundamental and critical to the Constitution, the Constitution every political and military officer in the United States is sworn to protect, than a temporally limited violation of criminal statutes and international norms on torture as sanctioned by Yoo and Bybee. But it is not treated that way by cheering Dems and liberals eager to confirm one of their own, a nice clean-cut Harvard man like the President, to a lifetime post to decide Constitutional law. What was detested for Jay Bybee, and would certainly be were John Yoo ever nominated for a federal judgeship, is now no big deal when it comes to David Barron. Constitutional bygones baybee; hey Barron is cool on same sex marriage, what a guy! Screw Due Process, it is just a quaint and archaic concept in a piece of parchment paper, right?
If the above were not distressing enough, the Barron nomination was supposed to, at a minimum, be used as leverage to get public release of the Barron handiwork legally sanctioning Mr. Obama to extrajudicially execute American citizens without a whiff of Due Process or judicial determination. Did we get that? Hell no, of course not. A scam was run by the Obama White House, and the Senate and oh so attentive DC press fell for it hook, line and sinker. We got squat and Barron is on the rocket path to confirmation with nothing to show for it, and no meaningful and intelligent review of his facially deficient record of Constitutional interpretation.
Barron cleared cloture late Wednesday and is scheduled for a floor vote for confirmation today, yet release of the “redacted memo” is nowhere remotely in sight. This framing on Barron’s nomination, irrespective of your ultimate position on his fitness, is a complete and utter fraud on the American citizenry in whose name it is being played. And that is just on the one Awlaki Memo that we already know the legal reasoning on from the self serving previous release of the “white paper” by the Administration. Discussion of the other six identified pertinent memos has dropped off the face of the earth. Booyah US Senate, way to do your job for the citizens you represent! Or not.
Personally, there is more than sufficient information about David Barron’s situational legal, and moral, ethics in the white paper alone to deem him unfit for a lifetime Article III confirmed seat on a Circuit Court of Appeal.
But, even if you disagree and consider Barron fit, you should admit the American citizenry has been ripped off in this process by the Democratically led Senate, and an Obama Administration who has picked a dubious spot to finally get aggressive in support of one of their nominees.
If Goodwin Liu and Dawn Johnsen, two individuals who had proven their desire to protect the Constitution, had received this kind of support, this country, and the world, would be a better place. Instead, Mr. Obama has reserved his all out push for a man who, instead, opted to apply situational ethics to gut the most basic Constitutional concept of Due Process. That’s unacceptable, but at a minimum we should have the benefit of proper analysis of Barron’s work before it happens.
OBAMA TO RELEASE OLC MEMO AFTER ONLY 24 CONGRESSIONAL REQUESTS FROM 31 MEMBERS OF CONGRESS
Congratulations to Rand Paul, who, having made request number 24, has finally gotten the Administration to agree to publicly release the OLC memo authorizing the drone killing of Anwar al-Awlaki.
Here, for posterity, is a record of the at least 24 requests from at least 31 members of Congress for this memo.
February 2011: Ron Wyden asks the Director of National Intelligence for the legal analysis behind the targeted killing program; the letter references “similar requests to other officials.” (1)
April 2011: Ron Wyden calls Eric Holder to ask for legal analysis on targeted killing. (2)
May 2011: DOJ responds to Wyden’s request, yet doesn’t answer key questions.
May 18-20, 2011: DOJ (including Office of Legislative Affairs) discusses “draft legal analysis regarding the application of domestic and international law to the use of lethal force in a foreign country against U.S. citizens” (this may be the DOJ response to Ron Wyden).
October 5, 2011: Chuck Grassley sends Eric Holder a letter requesting the OLC memo by October 27, 2011. (3)
November 8, 2011: Pat Leahy complains about past Administration refusal to share targeted killing OLC memo. Administration drafts white paper, but does not share with Congress yet. (4)
February 8, 2012: Ron Wyden follows up on his earlier requests for information on the targeted killing memo with Eric Holder. (5)
March 7, 2012: Tom Graves (R-GA) asks Robert Mueller whether Eric Holder’s criteria for the targeted killing of Americans applies in the US; Mueller replies he’d have to ask DOJ. Per his office today, DOJ has not yet provided Graves with an answer. (6)
March 8, 2012: Pat Leahy renews his request for the OLC memo at DOJ appropriations hearing.(7)
June 7, 2012: After Jerry Nadler requests the memo, Eric Holder commits to providing the House Judiciary a briefing–but not the OLC memo–within a month. (8)
June 12, 2012: Pat Leahy renews his request for the OLC memo at DOJ oversight hearing. (9)
June 22, 2012: DOJ provides Intelligence and Judiciary Committees with white paper dated November 8, 2011.
June 27, 2012: In Questions for the Record following a June 7 hearing, Jerry Nadler notes that DOJ has sought dismissal of court challenges to targeted killing by claiming “the appropriate check on executive branch conduct here is the Congress and that information is being shared with Congress to make that check a meaningful one,” but “we have yet to get any response” to “several requests” for the OLC memo authorizing targeted killing. He also renews his request for the briefing Holder had promised. (10)
July 19, 2012: Both Pat Leahy and Chuck Grassley complain about past unanswered requests for OLC memo. (Grassley prepared an amendment as well, but withdrew it in favor of Cornyn’s.) Leahy (but not Grassley) votes to table John Cornyn amendment to require Administration to release the memo.
July 24, 2012: SSCI passes Intelligence Authorization that requires DOJ to make all post-9/11 OLC memos available to the Senate Intelligence Committee, albeit with two big loopholes.
December 4, 2012: Jerry Nadler, John Conyers, and Bobby Scott ask for finalized white paper, all opinions on broader drone program (or at least a briefing), including signature strikes, an update on the drone rule book, and public release of the white paper.
December 19, 2012: Ted Poe and Tredy Gowdy send Eric Holder a letter asking specific questions about targeted killing (not limited to the killing of an American), including “Where is the legal authority for the President (or US intelligence agencies acting under his direction) to target and kill a US citizen abroad?”
January 14, 2013: Wyden writes John Brennan letter in anticipation of his confirmation hearing, renewing his request for targeted killing memos. (11)
January 25, 2013: Rand Paul asks John Brennan if he’ll release past and future OLC memos on targeting Americans. (12)
February 4, 2013: 11 Senators ask for any and all memos authorizing the killing of American citizens, hinting at filibuster of national security nominees. (13)
February 6, 2013: John McCain asks Brennan a number of questions about targeted killing, including whether he would make sure the memos are provided to Congress. (14)
February 7, 2013: Pat Leahy and Chuck Grassley ask that SJC be able to get the memos that SSCI had just gotten. (15)
February 7, 2013: In John Brennan’s confirmation hearing, Dianne Feinstein and Ron Wyden reveal there are still outstanding memos pertaining to killing Americans, and renew their demand for those memos. (16)
February 8, 2013: Poe and Gowdy follow up on their December 19 letter, adding several questions, particularly regarding what “informed, high level” officials make determinations on targeted killing criteria.
February 8, 2013: Bob Goodlatte, Trent Franks, and James Sensenbrenner join their Democratic colleagues to renew the December 4, 2012 request. (17)
February 12, 2013: Rand Paul sends second letter asking not just about white paper standards, but also about how National Security Act, Posse Commitatus, and Insurrection Acts would limit targeting Americans within the US.
February 13, 2013: In statement on targeted killings oversight, DiFi describes writing 3 previous letters to the Administration asking for targeted killing memos. (18, 19, 20)
February 20, 2013: Paul sends third letter, repeating his question about whether the President can have American killed inside the US.
February 27, 2013: At hearing on targeted killing of Americans, HJC Chair Bob Goodlatte — and several other members of the Committee — renews request for OLC memos. (21)
March 11, 2013: Barbara Lee and 7 other progressives ask Obama to release “in an unclassified form, the full legal basis of executive branch claims” about targeted killing, as well as the “architecture” of the drone program generally. (22)
April 10, 2013: Bob Goodlatte and John Conyers send Obama a letter threatening a subpoena if they don’t get to see the drone killing memos. (23)
March 27, 2014: Alan Grayson holds hearing with drone victim, calls for more transparency over decision making.
April 21, 2014: 2nd Circuit orders Administration to release redacted version of OLC memo to ACLU and NYT.
May 5, 2014: Rand Paul issues veto threat for David Barron’s confirmation unless Administration releases OLC memo (already ordered for release by 2nd Circuit). (24)
May 20, 2014: The Most Transparent Administration Evah™ announces it will release (what is certain to be a highly redacted version of) the OLC memo. Members of Congress who requested the memo:
1. Ron Wyden 2. Dianne Feinstein 3. Saxby Chambliss 4. Chuck Grassley 5. Pat Leahy 6. Tom Graves 7. Jerry Nadler 8. John Conyers 9. Bobby Scott 10. Ted Poe 11. Trey Gowdy 12. Rand Paul 13. Mark Udall 14. Dick Durbin 15. Tom Udall 16. Jeff Merkley 17. Mike Lee 18. Al Franken 19. Mark Begich 20. Susan Collins 21. John McCain 22. Bob Goodlatte 23. Trent Franks 24. James Sensenbrenner 25. Barbara Lee 26. Keith Ellison 27. Raul Grijalva 28. Donna Edwards 29. Mike Honda 30. Rush Holt 31. James McGovern HOW DAVID BARRON PLAYED JUDGE AND JURY FOR ANWAR AL-AWLAKI
Rand Paul has gone and united drone apologists and opponents with an op-ed explaining his opposition to David Barron’s confirmation without full transparency on the drone memos Barron wrote. It’s a good op-ed, though the only new addition from what he has said before is that any other drone memos Barron has written ought to be on the table as well.
It’s Ben Wittes’ and David Cole’s responses that I’m reluctantly interested in.
In addition to a lot of “trust me I know the man” defenses from Cole that I find utterly inappropriate for a lifetime appointment, both Cole and Wittes argue we’ve already seen the “Administration’s” logic on drone killing, so we have no need to see the memo itself. Cole cautiously doesn’t characterize what that standard is in his defense.
Second, the administration has in fact made available to all Senators any and all memos Barron wrote concerning the targeting of al-Awlaki – the core of the issue Sen. Paul is concerned about. So if Sen. Paul and any other Senator want to review Barron’s reasoning in full, they are free to do so. Moreover, the administration also made available to the Senate, and ultimately to the public, a “White Paper” said to be drawn from the Barron memo (though written long after he left office). Thus, no Senator need be in the dark about the Administration’s reasoning, and the public also has a pretty good idea as well. Wittes, less wisely, does.
This idea of a trial in absentia followed by drone strike as a means of effectuating a death sentence is novel—and very eccentric. Paul never seeks to explain why wartime authorities are inappropriate for dealing with a senior operational leader of an enemy force who is actively plotting attacks on the United States.
[snip]
The legal standard for targeting a U.S. citizen the administration has embraced is limited to U.S. citizens (1) who are operational leaders of AUMF-covered groups, (2) who pose an imminent threat, (3) whose capture is not feasible, and (4) whose targeting is consistent with the law of armed conflict. Suspects in Germany or Canada or any other governed space would almost surely be feasible to capture and if not, because in a hostage-like situation, would be dealt with by law enforcement, including using law enforcement’s powers at times to use lethal force. The definition of the group of citizens covered is so narrow, in reality, that it has so far described a universe of exactly one person—Al Awlaki—whom the administration has claimed the authority to target.
Wittes, you see, is certain that not only did the Administration have evidence Anwar al-Awlaki was a “senior operational leader” of AQAP by the time they executed him, but they had that evidence by July 2010 when Barron signed a memo saying that the specific circumstances at hand justified killing Awlaki. But even if he’s seen it via some magic leak, the public has not.
As I’ve noted repeatedly — and as Lawfare has been sloppy about in the past — at the time Barron signed off on Awlaki’s execution, one of the chief pieces of evidence against Awlaki — a confession Umar Farouk Abdulmutallab had given as a proffer in a plea deal that never got consummated — was undermined by Abdulmutallab’s previous confession and other evidence (and would be undermined further, just days after Awlaki’s execution, when Abdulmutallab pled guilty without endorsing the claims about Awlaki included in that confession).
Now, I suspect the government didn’t present that nuance to Barron when he wrote his memo (just as the government lied to John Yoo and a series of other OLC lawyers as they wrote torture memos). I imagine the memo starts with a caveat that says, “Assuming the facts are as you present them and no other facts exist,” absolving Barron in case the government presented only partial evidence or worse, as it appears to often do in the case of OLC memos.
But it is possible that the government gave Barron really nuanced information, and he nevertheless rubber stamped this execution, in spite of the possibility that the case Awlaki was a senior operational official of AQAP by that point was overstated. It’s possible too that there’s a great deal of evidence to counterweigh the very contradictory information on the chief claim in the public record and absent any contrary evidence Barron thought it was a conservative legal decision.
One way or another, Barron participated in a tautological exercise in which the government presented unchallenged evidence showing that Awlaki was a senior operational leader that then served as justification for setting aside due process and instead having OLC — Barron — weigh whether or not Awlaki was a senior operational leader who could be executed with no due process.
This is why (egads) Paul is right and Wittes is wrong. Because the idea of a trial before you execute an American citizen is in fact the rule, and the idea of having an OLC lawyer judge all this in secret is in fact the novelty. It doesn’t matter whether the case laid out against Awlaki applies to him and him alone (though I doubt it does; I doubt it applies as well as supporters say, and complaints about the lack of specificity of it makes it clear it could too easily be applied for others).
But the big underlying point — and the reason why Cole and Wittes’ claim that Barron can’t be held to account here, only the Administration whose policy he reviewed can be, is wrong — is that tautology. What the memo shows and the white paper does not is that Barron was provided evidence against Awlaki and he willingly played the role of both saying that the underlying legal logic (what we see in the white paper) was sound but that the evidence in this case (what we haven’t seen in the memo) made this departure from due process sound. Barron signed off on both the logic and the evidence justifying that logic itself.
And for me, that’s enough. That’s enough to disqualify him — no matter how liberal or brilliant he is, both qualities I’d like to see on a bench — as a judge.
That’s enough for me. But those who want to push Barron through anyway ought to consider what they would need to show to prove that Barron’s decision was reasonable: the evidence Barron saw that he believed sufficient (and unquestionable, given the absence of rebuttal) to authorize a due-process free execution. It’s unlikely we’ll ever get that evidence, because the government won’t declassify it.
That’s the problem with this nomination, one way or another. No matter how sound the underlying logic, Barron played another role in Awlaki’s execution, certifying that the evidence merited getting to the underlying logic of denying a US citizen due process. Barron both approved an entirely parallel system to replace due process, and played the judge in that system.
Update: Katherine Hawkins reminds me that when David Cole wrote about the white paper shortly after it got released, he had trouble with precisely the thing he has no trouble now.
The white paper addresses the legality of killing a US citizen “who is a senior operational leader of al-Qaeda or an associated force.” Such a person may be killed, the document concludes, if an “informed, high-level official” finds (1) that he poses “an imminent threat of violent attack against the United States;” (2) that his capture is not feasible; and (3) the operation is conducted consistent with law-of-war principles, such as the need to minimize collateral damage. However, the paper offers no guidance as to what level of proof is necessary: does the official have to be satisfied beyond a reasonable doubt, by a preponderance of the evidence, or is reasonable suspicion sufficient? We are not told.
Nor does the paper describe what procedural safeguards are to be employed. It only tells us what is not required: having a court determine whether the criteria are in fact met.
What determines whether that standard has been met is the same OLC lawyer who determined that such a standard would be appropriate.
WHY SHOULD SOMEONE WHO AUTHORIZED DUE PROCESS FREE EXECUTIONS BE A JUDGE ANYWAY?
Yesterday, Rand Paul announced he would filibuster the nomination of First Circuit nominee David Baron until the Administration released the OLC memo authorizing the killing of Anwar al-Awlaki, as ordered by the Second Circuit last month.
As I wrote in a piece at The Week, I think this move is far more serious a political move than Paul’s earlier filibuster of John Brennan (and since you all know how I fell about Brennan, that’s saying something).
Four years ago, David Barron opened a Pandora’s box, giving presidents an inadequately limited authority to kill Americans outside all normal judicial process. As Paul notes in his letter, it would simply be “irresponsible” for the Senate to confirm his nomination without discovering what the memo could reveal about his views on due process, civil liberties, and international law. In a letter to all 100 senators, the ACLU echoed this language, recalling the precedent of Jay Bybee. “No senator can meaningfully carry out his or her constitutional obligation to provide ‘advice and consent’ on this nomination to a lifetime position as a federal appellate judge without being able to read Mr. Barron’s most important and consequential legal writing.”
The Senate took such an irresponsible step in 2003 with Jay Bybee. It can avoid that mistake here.
Apparently, I’m not alone. Senators Udall and Wyden have both said they would not vote to advance Barron’s nomination without more transparency on that memo (and remember — they’ve seen it). Given that makes almost enough people (the GOP plus potentially 6 Democrats under the new filibuster rules) to hold up Barron’s nomination, Obama is making yet another limited hangout, permitting Senators to go read the drone-killing memo in a SCIF.
On Tuesday, the White House offered the senators a concession. It offered all senators to a chance to look at the legal opinion. However, Obama has still not acceded to the Paul and Udall’s call for public disclosure of the memo.
“I can confirm that the administration is working to ensure that any remaining questions member of the Senate have about Mr. Barron’s legal work at the Department of Justice are addressed, including making available in a classified setting a copy of the Al- Awlaki opinion to any senator who wishes to review it, prior to Mr. Barron’s confirmation,” White House Press Seceretary Jay Carney said at a daily briefing for reporters.
“It should be noted that last year members of the Senate Judiciary Committee had access to the memo and in his committee vote Mr. Barron received unanimous Democratic support,” Carney said, referring to a January panel vote in which all Republicans opposed the nominee. “We are confident that David Barron wil be confirmed to the 1st Circuit Court of Appeals and that he will serve with distinction.”
So Senators will get to see it. But not the public (even though a court has ordered its release!).
The President of the United States, of the purported most Transparent Administration Evah™, thinks it appropriate to have the Senate vote on a lifetime appointed Circuit Court judge without the public seeing one of that nominees’ most momentous legal arguments ever.
The President thinks it appropriate to control access to information about a nominee who vastly expanded Executive Power.
And ultimately, it’s time this discussion moved to whether the opinion is itself disqualifying.
In a comment to NYT, Wyden put it this way.
Mr. Wyden added that he was also not committed to voting yes.
“Certainly the opinion would not be something I would have written. The question is: Is it disqualifying,” he said, adding that the administration should start the process of releasing the memos. “It needs to be addressed before a vote.”
Frankly, I don’t care how nice or how liberal Barron is. I feel about him like I feel about Jay Bybee. Someone who gets nominated after having rubber stamped such awful executive authorities should not be rewarded with a lifetime seat interpreting the law, because he has already been compromised.
THE NEVERENDING CIA DRONE STORY ACTUALLY ABOUT OUTSOURCED INTELLIGENCE
On March 20, 2013, I wrote one of several stories calling bullshit on reports that CIA would get out of the drone business. Not only did John Brennan’s actions up to that point (as opposed to what had been leaked to journalists anonymously) make it clear he intended for CIA to keep that portfolio. But his confirmation testimony made it clear he intended to retain and use CIA’s paramilitary — as distinct from traditional military — capabilities (and no, I’m not sure where the line between the two lies).
Today, the NYT has another of those stories reporting that — shock!! — I was right after all. It has a new twist though. It selectively quotes from Brennan’s confirmation materials to suggest he testified he would get CIA out of paramilitary operations.
During his confirmation hearings, Mr. Brennan obliquely criticized the performance of American spy agencies in providing intelligence and analysis of the Arab revolutions that began in 2009, and said the C.I.A. needed to cede some of its paramilitary role to the Pentagon.
“The C.I.A. should not be doing traditional military activities and operations,” he said.
This is what the quote actually looked like in context.
MIKULSKI: So, let me get to my questions. I have been concerned for some time that there is a changing nature of the CIA, and that instead of it being America’s top spy agency, top human spy agency to make sure that we have no strategic surprises, that it has become more and more executing paramilitary operations.
And I discussed this with you in our conversation. How do you see this? I see this as mission-creep. I see this as overriding the original mission of the CIA, for which you’re so well versed, and more a function of the Special Operations Command. Could you share with me how you see the CIA and what you think about this militarization of the CIA that’s going on?
BRENNAN: Senator, the principal mission of the agency is to collect intelligence, uncover those secrets, as you say, to prevent those strategic surprises and to be the best analytic component within the U.S. government, to do the allsource analysis that CIA has done so well for many, many years. At times, the president asks and directs the CIA to do covert action. That covert action can take any number of forms, to include paramilitary.
[snip]
And the CIA should not be doing traditional military activities and operations. [my emphasis]
That is, Brennan was not suggesting CIA should get out of paramilitary ops. On the contrary, he said CIA should retain that ability but not do traditional military activities.
His responses to questions for the record were even more clear.
What role do you see for the CIA in paramilitary-style intelligence activities or covert action?
The CIA, a successor to the Office of Strategic Services, has a long history of carrying out paramilitary-style intelligence activities and must continue to be able to provide the President with this option should he want to employ it to accomplish critical national security objectives.
How do you distinguish between the appropriate roles of the CIA and elements of the Department of Defense in paramilitary-style covert action? As stated in my response to Question 6 above, the CIA and DOD must be ready to carry out missions at the direction of the President. The President must be able to select which element is best suited. Factors that should be considered include the capabilities sought, the experience and skills needed, the material required, and whether the activity must be conducted covertly.
The NYT quotes one more Brennan claim with much more fidelity, however, and in a way that is far more illuminating to the story it tells.
“Despite rampant rumors that the C.I.A. is getting out of the counterterrorism business, nothing could be further from the truth,” the C.I.A. director said during a speech last month at the Council on Foreign Relations.
The agency’s covert action authorities and relationships with foreign spy services, Mr. Brennan said, “will keep the C.I.A. on the front lines of our counterterrorism efforts for many years to come.”
Those lines come from this speech, which was most closely watched as Brennan’s rebuttal to Dianne Feinstein on the torture report, but which in fact declared the war on terror would continue along the same lines as it had since 9/11.
And despite rampant rumors that the CIA is getting out of the counterterrorism business, nothing could be further from the truth. CIA’s global mission, our intelligence collection, analysis, and covert action authorities and capabilities, as well as our extensive liaison relationships with intelligence and security services worldwide, will keep CIA on the frontlines of our counterterrorism efforts for many years to come.
Which is interesting, because the items reported in NYT’s story all say more about the US remaining hostage to the way we outsourced certain intelligence activities after 9/11 than anything else.
As a reminder, the Gloves Come Off Memorandum crafted by Cofer Black and signed on September 17, 2001 included a number of different activities. In addition to capturing and detaining top al Qaeda leaders (which became the torture program) and killing top al Qaeda figures using Predator drones (which remains in CIA hands), it authorized heavily subsidizing (“buying” was the word Bob Woodward used) Arab liaison services, originally including Jordan and Egypt but presumably adding Saudi Arabia once we got over the fact that the Saudis had ties to the attack. In a 2006 interview, John Brennan echoed and endorsed Cofer Black’s plan when discussing the war on terror.
With that in mind, consider the real scope of the details described in the NYT story:
After another catastrophically badly targeted strike — this time on a wedding — Yemen has banned JSOC’s drones but continues to permit CIA to fly them; CIA’s flights operate out of Saudi territory, presumably with significant Saudi involvement Pakistan continues to permit only drone strikes run by CIA Jordan required that CIA be in charge of training Syrian rebels and other fighters there CIA missed the Arab Spring because it relied so heavily on Egypt’s Omar Suleiman, to whom we had outsourced our earliest torture
That is, the NYT is really reporting that, in spite of nominal efforts to change things, we remain captive to those relationships with liaison services, almost 13 years after 9/11. And that happens to also translate into operating drone strikes in such a way that two countries which were implicated in the 9/11 attacks — Pakistan and especially Saudi Arabia — have managed to stay relevant and above criticism by sustaining (perhaps artificially) our dependence on them.
And, almost certainly, the President’s implicit role in all these actions gives the CIA the institutional clout to make sure it retains whatever parts of this portfolio it cares to.
This, at least, should be the story.
In all of these countries, it’s not clear whether our reliance on these long-term partners helps or exacerbates the war on terror. But no one should maintain any illusions that it will change.
RUPPROGE FAKE DRAGNET FIX REQUIRES INTEL COMMUNITY TO UPDATE 30 YEAR OLD EO 12333 PROCEDURES
One good aspect of the RuppRoge Fake Dragnet Fix is its measure requiring all elements of the Intelligence Community to comply with the EO that governs them.
At issue is this clause in EO 12333 requiring that any element of the Intelligence Community collecting data on US persons have Attorney General approved procedures for handling that data.
2.3 Collection of information. Elements of the Intelligence Community are authorized to collect, retain, or disseminate information concerning United States persons only in accordance with procedures established by the head of the Intelligence Community element concerned or by the head of a department containing such element and approved by the Attorney General, consistent with the authorities provided by Part 1 of this Order, after consultation with the Director.
This is something PCLOB asked Eric Holder and James Clapper to make sure got done back in August. In their letter, they disclosed some agencies in the IC have been stalling on these updates almost 3 decades.
The Privacy and Civil Liberties Oversight Board just sent a letter to Eric Holder and James Clapper requesting that they have all the Intelligence Committee agencies update what are minimization procedures (though the letter doesn’t call them that), “to take into account new developments including technological developments.” As you know, Executive Order 12333 establishes the overall framework for the conduct of intelligence activities by U.S. intelligence agencies. Under section 2.3 of the Executive Order, intelligence agencies can only collect, retain, and disseminate information about U.S. persons if the information fits within one of the enumerated categories under the Order and if it is permitted under that agency’s implementing guidelines approved by the Attorney General after consultation with the Director of National Intelligence.
The Privacy and Civil Liberties Oversight Board has learned that key procedures that form the guidelines to protect “information concerning United States person” have not comprehensively been updated, in some cases in almost three decades, despite dramatic changes in information use and technology. [my update]
In other words, these procedures haven’t been updated, in some cases, since not long after Ronald Reagan issued this EO in 1981.
RuppRoge aims to require the IC elements to comply.
(1) REQUIREMENT FOR IMMEDIATE REVIEW.–Each head of an element of the intelligence community that has not obtained the approval of the Attorney General for the procedures, in their entirety, required by section 2.3 of Executive Order 12333 (50 U.S.C. 3001 note) within 5 years prior to the data of the enactment of the End Bulk Collection Act of 2014, shall initiate, not later than 180 days after such enactment, a review of the procedures for such element.
Mind you, asking agencies to initiate a review 6 months after passage of a bill to update procedures that are 30 years old isn’t exactly lighting a fire under IC arse. But then, the delay probably stems from some agencies hoarding agency records on US persons that are even older than the EO.
US STRIKE KILLS FIVE AFGHAN SOLDIERS IN CHARKH DISTRICT
In what is virtually certain to be a new example of why he continues not to sign the Bilateral Security Agreement, Afghan President Hamid Karzai is expected to react with anger toward the US strike this morning that killed five Afghan soldiers in an outpost in the Charkh District of Logar Province. Already, it is being pointed out that the US had to know about the location of the outpost. From the Washington Post:
“The coalition knows the location of every Afghan outpost,” said Abdul Wali, the head of the Logar Provincial Council. “How can such incidents happen?”
But BBC points out that it is even worse than that:
District governor Khalilullah Kamal, who has visited the scene, said the strike was carried out by a US drone.
“The post is totally destroyed,” he told the AFP news agency. “The Americans used to be in that post, but since they left the ANA [Afghan National Army] took over.”
Recall that in the incident where the US killed 24 Pakistani soldiers at a border checkpoint in 2011, at least parts of the facility that was attacked appeared to be makeshift structures that easily could have been mistaken for insurgent encampments. That clearly is not the case in the current situation, since the facility was built by and previously manned by the US. It seems to me that there is a good chance that the mistake in this case may have been that the US believed the post to have been taken over by the Taliban when it in fact was still manned by the ANA. Given the multiple reports that drones are often spotted in the area, we are left to wonder if the drones spotted a pattern of activity that prompted the airstrike. Otherwise, since the Afghans claim they did not call in a strike, we are left to wonder just why the strike was carried out and what the mission was believed to be.
Details are still coming out on the incident, with some stories claiming the attack came from a drone and others saying it was an airstrike by manned aircraft. The New York Times contributes this on the question:
A spokesman for the American military said that the incident did not involve a drone, but rather manned aircraft. He did not provide further details.
Even though he says in his statement that the strike was carried out by a drone, the information quoted above from the district governor about the post being “totally destroyed” sounds to me more like the damage that would come from multiple manned aircraft equipped with multiple rockets and bombs, especially if the post consisted of multiple buildings.
I have seen no statements on the incident attributed to Karzai yet. ISAF already issued this embarrassed acknowledgement:
We can confirm that at least five Afghan National Army personnel were accidentally killed this morning during an operation in eastern Afghanistan.
An investigation is being conducted at this time to determine the circumstances that led to this unfortunate incident.
Our condolences go out to the families of the ANA soldiers who lost their lives and were wounded.
We value the strong relationship with our Afghan partners, and we will determine what actions will be taken to ensure incidents like this do not happen again.
Karzai spokesman Aimal Faizi is quoted by Reuters:
“We condemn the attack on the Afghan National Army in Logar,” said Aimal Faizi, a spokesman for Karzai. “The president has ordered an investigation.”
But in that Reuters article, Kamal, the district governor, seems to contradict some of the information he gave to BBC:
“Right now a discussion in the province is going on between Afghan officials and foreign forces to find out the reason for this attack,” he said, describing the attack as having targeted a new outpost of the Afghan army.
Is Kamal claiming the outpost is new to the ANA since they just took it over from ISAF, or is he saying it is a new one they established and not one previously manned by the US, as he said to BBC? If it is the latter, then it will be necessary to review whether and how the ANA informed the US of the location of the facility.
It is very interesting that the US would move so quickly to claim an airstrike instead of a drone in the statement to the Times. Given Karzai’s previous reactions to US airstrikes that have killed civilians, it is virtually guaranteed that he will reach a new high of outrage over this incident. There was a surge of nationalism over the incident where 21 troops were killed by the Taliban recently in Kunar (see the state funeral footage in this post), so look for Karzai to play off those sentiments in turning that anger now toward the US rather than the Taliban.
HOW WILL PAKISTAN IMPLEMENT NEW SECURITY POLICY?
Earlier in the week, I wondered whether John Brennan had helped to shape the new counterterrorism policy that Pakistan is rolling out and whether it might be a ploy by Pakistan to capture some of the US counterterrorism dollars that would suddenly become available after a full withdrawal of US troops from Afghanistan. Under such a scenario, the key event to watch for would be any action taken by Afghanistan against the Haqqani network or other groups that find haven in Pakistan but carry out their attacks only in Afghanistan. More details of the policy are now being revealed, and with them come some suggestions that the Haqqanis might not be targeted, but other major developments suggest that tighter cooperation with the US is occurring. Tom Hussain of McClatchy seems to have been first to break the news (on Wednesday) that Pakistan may still choose not to go after the Haqqani network:
Pakistan announced Wednesday that it was ending its 7-month-old policy of trying to reconcile with its Taliban insurgents and vowing to answer each terrorist attack with military strikes on the militants’ strongholds in northwest tribal areas bordering Afghanistan.
But the government stopped short of abandoning its attempts to engage willing Taliban factions in a peace dialogue, underlining that Pakistan’s national security policy remains focused on restricting attacks within its borders, rather obliterating the militants altogether.
That means that militants who use Pakistan for a staging base to attack U.S. and Afghan forces in neighboring Afghanistan will still be allowed to operate, as long as they observe a cease-fire in Pakistan.
He continues:
Political analysts said the national security policy unveiled Wednesday offered an easy way out for militant factions that wanted to disassociate themselves from the TTP, however: They simply have to stop attacking Pakistani government forces.
That makes it likely that Pakistan won’t take any military action against the Haqqani network, an ally of the Afghan Taliban that controls significant territory in the North Waziristan and South Waziristan tribal agencies.
The network is a major source of friction between Pakistan and the United States, which previously has accused Pakistan’s security services of complicity in several of the network’s high-profile attacks on Afghan government and U.S. targets in Kabul and elsewhere in Afghanistan.
Widely viewed as a projector of Pakistan’s influence into Afghanistan, the Haqqani network has distanced itself from the TTP during the Taliban group’s six-year insurgency by signing peace agreements, fronted by the local Wazir tribe, that predate the 2009 launch of counterterrorism operations.
Accordingly, it won’t be targeted by the Pakistani military as long as it doesn’t side with the TTP.
A very similar interpretation was offered by AFP on Thursday:
“We will talk to those groups who are not against Pakistan,” he [Interior Minister Chaudhry Nisar Ali Khan] told journalists in Peshawar, the main city of the northwest.
“We are in contact with groups that have never attacked Pakistan’s interests, we have dialogue for them.”
He gave no details of which groups he meant.
His comments could revive fears that Pakistan is maintaining a policy of distinguishing between “good” militants who can be used to further strategic goals abroad, and “bad” militants who attack domestic targets.
Pakistan has come in for strong criticism from the United States and Afghanistan in recent years for sheltering and patronising militants such as the Haqqani network, who attack NATO and Afghan forces across the border.
But recall that the rolling out of this new policy came after a series of high level meetings between US and Pakistani figures, so there is reason to believe that the US finds the plan worth supporting. It seems impossible to me that the US would support a plan that doesn’t eventually get around to attacking the Haqqani network. For further support of this point, consider that there have been no US drone strikes in Pakistan since Christmas. Also, Imran Khan’s PTI party yesterday ended its blockade of NATO convoy routes that was instituted after the drone strike that killed Hakimullah Mehsud (and the impending peace talks). These moves suggest to me that the US feels Pakistan is somehow taking on the targets the US would be going after with drones and that Khan will find a way to endorse the action. Will the US citizen target in Pakistan that the US is agonizing over suddenly die a non-drone death?
In contrast to the huge public response of outrage in Pakistan over many drone strikes when there are civilian deaths, I’ve seen nothing so far about complaints of civilian deaths in the air strikes that have been carried out in response to recent TTP attacks. And it seems likely to me that there have been civilian deaths:
The military started air strikes in tribal areas a week ago after suspension of peace talks with Taliban in the wake of TTP Mohmand claim of killing 23 kidnapped Frontier Corps soldiers.
PAF jets and army helicopter gunships hit militant hideouts in Mirali, Datta Khel, Shawal, Bobarh, Ghariom, Bara, Teerah and Thall.
According to military’s claims, over 100 terrorists have been killed in the strikes, but there are no reports of any major militant figure having been killed in the attacks.
The army has claimed that strikes were very effective, precise and successful.
With over a hundred dead, it seems very likely that at least some innocent bystanders have also died. The question remains, however, whether details of who has been killed have been suppressed to hide a kill list that extends beyond the TTP and includes targets that the US would otherwise attack with drones.
Meanwhile, other details coming out about the security policy are very interesting (this is labeled as a news story at Dawn but certainly reads more like an analysis or op-ed):
The government has set some tough targets for itself in the new security policy.
It intends to integrate mosques and madressahs to the national education system in one year, undertake legal reforms, construct a national narrative against extremist mindset in six months, improve intelligence-sharing and strengthen coordination between the Inter-Services Intelligence and civilian agencies.
/snip/
The new policy has traced non- traditional threats of violent extremism, sectarianism, terrorism and militancy in part to madressah-based education.
The document also refers to madressahs’ foreign funding and inculcation of intolerant and violent religious attitudes.
As of September last year, there are over 22,000 registered madressahs in the country, excluding thousands of those which decided against going for registration initiated by previous governments. This will be another gigantic undertaking in which predecessors of Chaudhry Nisar have miserably failed.
Construction of a national narrative against extremism and militancy, according to the policy, should be the cornerstone of an ideological response to the non-traditional threats with the help of religious scholars, intelligentsia, media and educational institutions. In a society as fractured as Pakistan’s, notably on religious lines, Chaudhry Nisar will have to pull off some miracle to develop the required national narrative. For an educationist, such an initiative needs decades not months to deradicalise people vulnerable to extremism.
That is certainly an ambitious set of goals. It is also worth noting in closing that theHaqqani network has madrassas in North Waziristan, so perhaps combating extremism there could be the basis on which the government would oppose them.
HOW TO AVOID RUBBER- STAMPING ANOTHER DRONE EXECUTION: LEAVE
NPR’s Carrie Johnson reports that OLC head Virginia Seitz quietly left OLC before Christmas.
Virginia Seitz, who won Senate confirmation after an earlier candidate under president Obama foundered, resigned from federal service after two- and-a-half years on the job. The timing is unusual because her unit plays a critical role in drawing the legal boundaries of executive branch action —at a time when President Obama says he will do more to bypass a divided Congress and do more governing by way of executive order.
And while DOJ’s official line is that Seitz left entirely for personal reasons, two sources told Johnson the ongoing discussions about whether to drone kill another American were another factor.
Two other sources suggested that aside from the tough work, another issue weighed heavily on her mind over the last several months: the question of whether and when the US can target its own citizens overseas with a weaponized drone or missile attack. American officials are considering such a strike against at least one citizen linked to al Qaeda, the sources said.
While a “law enforcement” source (but wait! the entire point of drone assassinations is they replace law enforcement with intelligence entirely!) suggests the decision has not yet been made.
A law enforcement source told NPR the controversy over the use of drones against Americans in foreign lands did not play a major role in Seitz’s decision to leave government, since the OLC is continuing to do legal analysis on the issue and there was no firm conclusion to which she may have objected or disagreed.
Which is sort of funny, because Kimberly Dozier’s report on the American in question says DOD, at least, has made its decision. But one U.S. official said the Defense Department was divided over whether the man is dangerous enough to merit the potential domestic fallout of killing an American without charging him with a crime or trying him, and the potential international fallout of such an operation in a country that has been resistant to U.S. action.
Another of the U.S. officials said the Pentagon did ultimately decide to recommend lethal action.
And remember, as I’ve pointed out, this potential drone execution target is differently situated from Anwar al-Awlaki, in that there appears to be no claim this one is targeting civilians in the US.
But let’s take a step back and consider some other interesting details of timing.
First, on November 29 of last year, Ron Wyden, Mark Udall, and Martin Heinrich released a letter they sent to Eric Holder asking for more clarity on when the President could kill an American.
[W]e have concluded that the limits and boundaries of the President’s power to authorize the deliberate killing of Americans need to be laid out with much greater specificity. It is extremely important for both Congress and the public to have a fully understanding of what the executive branch thinks the President’s authorities are, so that lawmakers and the American people can decide whether these authorities are subject to adequate limits and safeguards.
Retrospectively, it seems this letter may have pertained to this new execution target, particularly given the different circumstances regarding his alleged attacks against the US. I might even imagine this serving as a public demand that DOJ not simply rely on the existing Awlaki drone assassination memo, creating the need to do a new one.
Now consider how (currently acting OLC head) Caroline Krass’ confirmation hearing plays in. On December 17, Wyden asked her who had the authority to withdraw an OLC opinion (the opinion in question pertains to common commercial services in some way related to cybersecurity, but I find it interesting in retrospect).
Wyden: But I want to make sure nobody else ever relies on that particular opinion and I’m concerned that a different attorney could take a different view and argue that the opinion is still legally valid because it’s not been withdrawn. Now, we have tried to get Attorney General Holder to withdraw it, and I’m trying to figure out — he has not answered our letters — who at the Justice Department has the authority to withdraw the opinion. Do you currently have the authority to withdraw the opinion?
Krass: No I do not currently have that authority.
Wyden: Okay. Who does, at the Justice Department?
Krass: Well, for an OLC opinion to be withdrawn, on OLC’s own initiative or on the initiative of the Attorney General would be extremely unusual.
She said she did not “currently have that authority.” Was she about to get that authority in days or hours?
Then finally there are the implications for Krass’ confirmation. The leaks about this current drone execution target almost certainly came from Mike Rogers’ immediate vicinity. He’s torqued because Obama’s efforts to impose some limits on the drone war have allegedly made it more difficult to execute this American with no due process.
And while Rogers doesn’t get a vote over Krass’ confirmation to be CIA General Counsel, Dianne Feinstein and Saxby Chambliss do. And their efforts to keep CIA in the drone business may well have an impact on — and may have been motivated by — our ability to assassinate Americans.
I don’t recall Krass getting questions that directly addressed drone killing, though she did get some that hinted at the edges of such questions, such as this one:
Are there circumstances in which a use of force, or other action, by the U.S. government that would be unlawful if carried out overtly is lawful when carried out covertly? Please explain.
ANSWER: As a matter of domestic law, I cannot think of any circumstances in which a use of force or other action by the U.S. government that would be unlawful if carried out overtly would be lawful when carried out covertly, but I have not studied this question.
This seems to be a question she would have had to consider if she had any involvement in OLC’s consideration of a new drone execution memo.
All that said, she hasn’t yet gotten her vote (though any delay may arise from holds relating to the Senate Torture Report).
It just seems likely that — as we did in May 2005 when Steven Bradbury reapproved torture in anticipation of a promotion to head OLC — we’re faced yet again with a lawyer waiting for a promotion being asked to give legal sanction to legally suspect activity. My impression is that Krass has far more integrity than Bradbury (remember, she’s the one who originally imposed limits on the Libya campaign), so I’m only raising this because of the circumstances, not any reason to doubt her character.
It just seems like if you need lawyers to rubber stamp legally suspect activities, there ought to be more transparency about what promotions and resignations are going on.
WHITE HOUSE, CONGRESS ARGUING OVER WHICH SENATE COMMITTEE SHOULD FAIL IN DRONE OVERSIGHT
Ken Dilanian has a very interesting article in the Los Angeles Times outlining the latest failure in Congress’ attempts to exert oversight over drones. Senator Carl Levin had the reasonable idea of calling a joint closed session of the Senate Armed Services and Intelligence Committees so that the details of consolidating drone functions under the Pentagon (and helping the CIA to lose at least one of its paramilitary functions) could be smoothed out. In the end, “smooth” didn’t happen:
An effort by a powerful U.S. senator to broaden congressional oversight of lethal drone strikes overseas fell apart last week after the White House refused to expand the number of lawmakers briefed on covert CIA operations, according to senior U.S. officials.
Sen. Carl Levin (D-Mich.), who chairs the Armed Services Committee, held a joint classified hearing Thursday with the Senate Intelligence Committee on CIA and military drone strikes against suspected terrorists.
But the White House did not allow CIA officials to attend, so military counter-terrorism commanders testified on their own.
But perhaps the White House was merely retaliating for an earlier slight from Congress:
In May, the White House said it would seek to gradually move armed drone operations to the Pentagon. But lawmakers added a provision to the defense spending bill in December that cut off funds for that purpose, although it allows planning to continue.
Dilanian parrots the usual framing of CIA vs JSOC on drone targeting:
Levin thought it made sense for both committees to share a briefing from generals and CIA officials, officials said. He was eager to dispel the notion, they said, that CIA drone operators were more precise and less prone to error than those in the military.
The reality is that targeting in both the CIA and JSOC drone programs is deeply flawed, and the flaws lead directly to civilian deaths. I have noted many times (for example see here and here and here) when John Brennan-directed drone strikes (either when he had control of strike targeting as Obama’s assassination czar at the White House or after taking over the CIA and taking drone responsibility with him) reeked of political retaliation rather than being logically aimed at high value targets. But those examples pale in comparison to Brennan’s “not a bake sale” strike that killed 40 civilians immediately after Raymond Davis’ release or his personal intervention in the peace talks between Pakistan and the TTP. JSOC, on the other hand, has input from the Defense Intelligence Agency, which, as Marcy has noted, has its own style when it comes to “facts”. On top of that, we have the disclosure from Jeremy Scahill and Glenn Greenwald earlier this week that JSOC will target individual mobile phone SIM cards rather than people for strikes, without confirming that the phone is in possession of the target at the time of the strike. The flaws inherent in both of these approaches lead to civilian deaths that fuel creation of even more terrorists among the survivors.
Dilanian doesn’t note that the current move by the White House to consolidate drones at the Pentagon is the opposite of what took place about a year before Brennan took over the CIA, when his group at the White House took over some control of JSOC targeting decisions, at least with regard to signature strikes in Yemen.
In the end, though, it’s hard to see how getting all drone functions within the Pentagon and under Senate Armed Services Committee oversight will improve anything. Admittedly, the Senate Intelligence Committee is responsible for the spectacular failure of NSA oversight and has lacked the courage to release its thorough torture investigation report, but Armed Services oversees a bloated Pentagon that can’t even pass an audit (pdf). In the end, it seems to me that this entire pissing match between Congress and the White House is over which committee(s) will ultimately be blamed for failing oversight of drones.