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The Commercial for John Brennan’s Signature Strike Drone Shop TADS

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Between them, the NYT and the Daily Beast published over 10,000 words on Obama’s drone assassination program yesterday. Both stories rolled out the new acronym the Administration wants us to use: terrorist-attack-disruption strikes, or TADS. Neither of them, in those over 10,000 words, once mentioned Abdulrahman al-Awlaki, Anwar al-Awlaki’s 16 year old American citizen son also killed in a drone strike last year.

And while both stories break important new ground and challenge the Administration’s narrative in key ways, the prioritization of TADS over Abdulrahman in them is a pretty clear indication of the success with which the Administration pushed a certain agenda in these stories.

As I suggested at the end of this post, I think John Brennan hoped to use them to reframe recent changes to the drone program to make them more palatable.

Drone Strikes before They Got Worse

Before I lay out the new spin these stories offer on the signature strikes and vetting process rolled out last month, let’s recall what was included in the drone program before these recent changes, in addition to the killing of a 16-year old American citizen.

According to the NYT, the Administration assumed that, “people in an area of known terrorist activity, or found with a top Qaeda operative, are probably up to no good” and therefore all military age males in a strike zone could be targeted. A former senior counterterrorism official calls earlier drone targeting, “guilt by association.” Of signature strikes in Pakistan, a senior (apparently still-serving) official joked “that when the C.I.A. sees ‘three guys doing jumping jacks,’ the agency thinks it is a terrorist training camp.” And one of Obama’s top political advisors, David Axelrod, was attending targeting meetings, injecting a political taint on the program.

Even with all of that, these stories don’t explain how the intense vetting process they describe resulted in the al-Majala strike that made Jeh Johnson think about going to Catholic confession and “shook” John Brennan and President Obama. Or, of course, how we came to kill a 16 year old American citizen.

So all of that was in place before the recent changes to the drone assassination program made it worse. Don’t worry, though, it’s TADS now.

With all that in mind–Abdulrahman and the guilt by association and the three guys doing jumping jacks–let’s look at how these stories reframe signature strikes in Yemen and White House consolidation of the vetting.

Assassination Czar John Brennan’s Drone Shop

Consider the way the articles describe the targeting process. The NYT–relying on a single source, “an administration official who has watched [Obama] closely”–describes a very aggressive vetting process led by the DOD, then nods to a “parallel” process at CIA in countries where it leads the vetting.

The video conferences are run by the Pentagon, which oversees strikes in those countries, and participants do not hesitate to call out a challenge, pressing for the evidence behind accusations of ties to Al Qaeda.

“What’s a Qaeda facilitator?” asked one participant, illustrating the spirit of the exchanges. “If I open a gate and you drive through it, am I a facilitator?” Given the contentious discussions, it can take five or six sessions for a name to be approved, and names go off the list if a suspect no longer appears to pose an imminent threat, the official said. A parallel, more cloistered selection process at the C.I.A. focuses largely on Pakistan, where that agency conducts strikes.

The nominations go to the White House, where by his own insistence and guided by Mr. Brennan, Mr. Obama must approve any name. He signs off on every strike in Yemen and Somalia and also on the more complex and risky strikes in Pakistan — about a third of the total.

Since for the most part, DOD has managed the Yemen and Somalia strikes, while CIA managed the Pakistan ones, this conflates the vetting for personality strikes targeted at known people and the signature strikes the CIA has targeted against men doing jumping jacks in Pakistan. Somehow, al-Majala and Abdulrahman still got through that vetting process, but the exhaustive DOD one was, for the most part, far more rigorous than the CIA one.

Now compare that description of the DOD vetting process with the one the AP gave on May 21, which it says is “mostly defunct.”

The previous process for vetting them, now mostly defunct, was established by Mullen early in the Obama administration, with a major revamp in the spring of 2011, two officials said.

[snip]

Under the old Pentagon-run review, the first step was to gather evidence on a potential target. That person’s case would be discussed over an interagency secure video teleconference, involving the National Counterterrorism Center and the State Department, among other agencies. Among the data taken into consideration: Is the target a member of al-Qaida or its affiliates; is he engaged in activities aimed at the U.S. overseas or at home?

If a target isn’t captured or killed within 30 days after he is chosen, his case must be reviewed to see if he’s still a threat. [my emphasis]

That is, that free-ranging discussion, the process by which targets could come off the list as well as get put on it? At least according to the AP, it is now defunct–or at least “less relevant.” And there’s little chance the AP is wrong about the change, given that after it initially reported Brennan’s seizure of the process, a senior Administration official responded to it, acknowledging the change.

One senior administration official argues that Brennan’s move adds another layer of review that augments rather than detracts from the Pentagon’s role.

In other words, the description the NYT offers appears to be outdated, describing a process that recently became less deliberative.

Daniel Klaidman’s description, which focuses closely on the important role James Cartwright played in the deliberative process, must also be outdated, given that Cartwright  retired in August. Indeed, one (not entirely convincing) explanation the AP offers for the change in vetting is the retirement of Mike Mullen, who left in September, and the comparative disinterest of Mullen’s replacement, Martin Dempsey.

As detailed as these stories are, then, it appears they don’t portray the vetting process as it currently exists, in which Brennan’s staffers get recommendations from other agencies rather than letting this larger group debate targets.

So understand what appears to have happened. In April, Brennan became the Assassination Czar, taking over the targeting process. Several weeks later, someone (I’m assuming in JSOC) leaked that fact to the AP, and as the story evolved the White House tried to put a good spin on it. And yet neither the exhaustive, sanctioned profile in the NYT nor Daniel Klaidman’s book (which presumably was already substantially completed) included a description of the updated vetting process.

Which makes this line, from the AP, purportedly explaining the reason for the change in vetting process, all the more telling.

With Dempsey less involved, Brennan believed there was an even greater need to draw together different agencies’ viewpoints, showing the American public that al-Qaida targets are chosen only after painstaking and exhaustive debate, the senior administration official said. [my emphasis]

The sentence doesn’t make any sense (or didn’t, until these other two stories came out). It consists of three apparent non sequiturs. Moreover, by moving targeting deeper into the White House, Brennan made the process less transparent, not more. Yet even as he was grasping control of the process (and other entities, presumably, were leaking that fact), he was claiming this was all about “showing the American public that al-Qaida targets are chosen only after painstaking and exhaustive debate.” He hid the process even as he expressed an interest in telling the public a pretty tale about it.

And then two long profiles of the drone program came out.

The Assassination Czar’s Signature Strikes

With that in mind, consider how these two stories treat signature strikes in Yemen, the other change rolled out as Brennan moved targeting into the White House.

As I mentioned, the NYT actually conflates the CIA’s signature strikes in Pakistan with other strikes in Yemen and Somalia (even while showing some sources mocking the signature strikes). That is, not only does it apparently present an outdated version of the vetting story, but it also ignores the other big change in the drone program.

Not so Klaidman, who ends his piece with a discussion of the change (after having, earlier, shown Obama’s reluctant embrace of signature strikes in Pakistan, along with Obama’s–rather, Brennan’s, as portrayed–refusal to get involved in a Yemen “campaign”). Following a description showing how Obama’s obsession with Anwar al-Awlaki ended in his death (but of course with no mention of Awlaki’s son), Klaidman shows that that personality strike did not do a damn thing to bring stability to Yemen.

And the shadow wars continued. Throughout 2011, Obama’s basic strategy held: he approved missions that were surgical, often lethal, and narrowly tailored to fit clearly defined U.S. interests. But even as Awlaki and others were taken out, Yemen fell further into chaos, and AQAP gained more and more territory—even threatening the strategic port city of Aden. It looked like the military’s dire warnings were becoming a reality.

By 2012 Obama was getting regular updates on a Saudi double agent who’d managed to penetrate AQAP. He had volunteered to be a suicide operative for al-Asiri, AQAP’s master bomb maker, and instead delivered the latest underwear-style explosive device to his handlers. By then the military and CIA were pushing again for signature-style strikes, but they’d given them a new name: terrorist-attack-disruption strikes, or TADS. And this time, after resisting for the first three years of his presidency, Obama gave his approval.

The White House was worried that Yemeni forces were collapsing under the brutal AQAP assault. The more territory AQAP controlled, the more training camps they could set up, and the easier it would be to plot and plan attacks against the United States and its interests. Obama concluded that he had no choice but to defend the Yemeni Army against a common enemy. “They are decapitating Yemeni soldiers and crucifying them,” one senior administration official said in justifying the American escalation. “These are murderous thugs, and we are not going to stand idly by and allow these massacres to take place.”

In the spring of 2012, the United States carried out more drone attacks in Yemen than in the previous nine years combined—dating all the way back to when the CIA conducted its first such operation.

While Klaidman intersperses the UndieBomb sting in his discussion, the “more training camps they could set up, and the easier it would be to plot and plan attacks against the United States and” is secondary to the more immediate reason Brennan embraced signature strikes in Yemen: because the Yemeni military was getting badly beaten by AQAP.

These signature strikes, then, are not primarily about protecting the US. Rather, they’re about fighting a common enemy (and implicitly, then, also fighting insurgents who have allied with AQAP but are not part of it).

That detail is important not just because it reveals how deeply we might get sucked into this war. It also explains the conflicting reporting about whether just the CIA or both the CIA and DOD wanted these signature strikes, as well as why Brennan would have to de-empahsize the previously rigorous DOD vetting. The AP describes how the CIA dodges restrictions in international law on civilians doing the killing this way.

By law, the CIA can target only al-Qaida operatives or affiliates who directly threaten the U.S. JSOC has a little more leeway, allowed by statue to target members of the larger al-Qaida network.

In Yemen, the CIA doesn’t have the excuse it uses in Pakistan, that insurgents might cross the border into Afghanistan and target our troops there, and because of that constitute an imminent threat. As Klaidman almost lays out, hitting low-level AQAP fighters, much less insurgents with no formal tie to AQAP, is not about protecting America from an imminent threat, but fighting an enemy we share with the Yemeni government.

And so you need to find a way to get DOD to target three men doing jumping jacks, these insurgents fighting the Yemeni government. One part of that is embracing signature strikes in Yemen. The other part is making sure DOD doesn’t do the same kind of vetting of targets they used to do.

The Saudi Order-a-Plot

Which brings me to the element that Klaidman, alone among traditional journalists, put into the proper chronological context. The Saudis dial up a sting with an agent of theirs they’ve had embedded for months if not years. And only then–almost immediately thereafter–does Brennan fully adopt the Assassination Czar role so as to fight our common enemy, AQAP. The Saudi sting provides the cover–the “imminent threat” to the US–that we need legally to start targeting insurgents.

Which brings me to this acronym the NYT and Klaidman unquestioningly repeat. “Terrorist-attack-disruption strikes.”

The propagandist goal of the name is clear: to rename the process by which we target patterns of behavior–three men doing jumping jacks, a guy opening a gate, all the military-aged men in the vicinity of extremists–and with that name pretend not just that everyone we’re hitting is an actual terrorist rather than an insurgent or a military-aged baker in the vicinity or even a terrorist’s wife and kids, but also that everyone we’re hitting is actively involved in conducting terrorist plots.

Not even our personality strikes–strikes targeted at named individuals vetted by DOD’s mostly defunct process–consisted exclusively of disrupting active terrorist attacks. And the signature strikes in Yemen–pretty obviously targeted at insurgents whose animus against the US has everything to do with us propping up a dictator and little to do with an ambition to directly target the US–are even less about disrupting terrorist attacks.

Ah well, thanks to that conveniently timed Saudi-managed plot, the Administration seems to have gotten journalists to adopt an obviously propagandistic name with no question.

According to the AP, John Brennan set out to show–or rather claim to–the American public that al-Qaida–or rather Yemeni AQAP and insurgent and men in the vicinity–targets are chosen only after painstaking and exhaustive debate, even while he had just minimized this debate.

This new, patently false acronym, is part of that.


For All the Targeting “Transparency” We Still Don’t Know How al-Majala Was Targeted

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I realized something as I read this Gregory Johnsen post. For all the so-called transparency on targeting we’ve gotten since the AP first revealed John Brennan was seizing control of the targeting process, we still don’t know what went wrong with the al-Majala targeting.

Johnsen captures a significant chronological point about signature strikes in Yemen: the

Both tell basically the same story: portraying Obama as a president who is deeply involved in the details of drone strikes in Yemen and yet, despite his best efforts to limit the strikes, continues to be pulled deeper and deeper into a war he had no intention of fighting.

After the “sloppy strike” in December 2009, Obama “overrulued military and intelligence commanders who were pushing to use signature strikes (in Yemen) as well.”

According to the NYT, he said the US was “not going to war with Yemen.”

After the success of the bin Laden raid in 2011, the US military along with the CIA once again began pushing for “signature strikes” in Yemen.  Again, Obama pushed back, wary of getting sucked into a mess in Yemen from which there was no foreseeable exit.

As the NYT describes it, shortly after the al-Majala disaster and “within two years” of the time–understood to be April of this year–that Obama ultimately approved signature strikes in Yemen, “military and intelligence commanders” asked to use signature strikes in Yemen too.

The very first strike under his watch in Yemen, on Dec. 17, 2009, offered a stark example of the difficulties of operating in what General Jones described as an “embryonic theater that we weren’t really familiar with.”

It killed not only its intended target, but also two neighboring families, and left behind a trail of cluster bombs that subsequently killed more innocents. It was hardly the kind of precise operation that Mr. Obama favored. Videos of children’s bodies and angry tribesmen holding up American missile parts flooded You Tube, fueling a ferocious backlash that Yemeni officials said bolstered Al Qaeda.

The sloppy strike shook Mr. Obama and Mr. Brennan, officials said, and once again they tried to impose some discipline.

[snip]

Now, in the wake of the bad first strike in Yemen, Mr. Obama overruled military and intelligence commanders who were pushing to use signature strikes there as well.

“We are not going to war with Yemen,” he admonished in one meeting, according to participants.

His guidance was formalized in a memo by General Jones, who called it a “governor, if you will, on the throttle,” intended to remind everyone that “one should not assume that it’s just O.K. to do these things because we spot a bad guy somewhere in the world.”

Mr. Obama had drawn a line. But within two years, he stepped across it.

Daniel Klaidman doesn’t describe (at least in that excerpt) that memo. He describes Jeh Johnson watching the al-Majala strike in real time.

After approving his first targeted killings one evening, he watched the digital images of the strike in real time—“Kill TV,” the military calls the live battlefield feed. Johnson could see the shadowy images of militants running drills in a training camp in Yemen. Then suddenly there was a bright flash. The figures that had been moving across the screen were gone. Johnson returned to his Georgetown home around midnight that evening, drained and exhausted. Later there were reports from human-rights groups that dozens of women and children had been killed in the attacks, reports that a military source involved in the operation termed “persuasive.” Johnson would confide to others, “If I were Catholic, I’d have to go to confession.”

And then Klaidman describes John Brennan and Obama, in June 2011, pushing back against a “military advisor” discussing a campaign in Yemen.

But in May 2011, the military proposed killing 11 AQAP operatives at once, by far the largest request since it stepped up operations in Yemen. The Arab Spring’s turmoil had spread to the country, and al Qaeda was moving quickly to take advantage of the chaos. Gen. James Mattis, who heads U.S. Central Command, warned darkly of an emerging new terror hub in the Horn of Africa. Obama and a few of his senior advisers, however, were wary of getting dragged into an internal conflict—or fueling a backlash—by targeting people who were not focused on striking the United States. Obama and his aides reduced the target list to four people, all of whom were eliminated.

The pressure didn’t abate, however. Brennan came to believe that the commander in chief needed to make an unequivocal statement—to brush back the people calling for more and larger attacks. The chance came in mid-June, during a regularly scheduled “Terror Tuesday” briefing. At one point during the discussion, one of the president’s military advisers made a reference to the ongoing “campaign” in Yemen. Obama abruptly cut him off. There’s no “campaign” in Yemen, he said sharply: “We’re not in Yemen to get involved in some domestic conflict. We’re going to continue to stay focused on threats to the homeland—that’s where the real priority is.”

Now I raise all this to point out what these stories don’t address. While NYT claims that we got our unnamed target in al-Majala along with those Bedouin families, it doesn’t mention the purported imminent attack it targeted. Nor does it mention David Petraeus’ claim, to Ali Abdullah Saleh, that he was mistaken when he said women and kids were killed. That is, it doesn’t point to the bad intelligence that we clung to even after Saleh knew better. Al-Majala wasn’t a drone strike–it was a ship-launched strike–so we didn’t have drones to check (though we had satellite and the kill cam). Why did we persist in claiming that those killed in the al-Majala attack were legitimate targets.

Nor does the NYT situate it’s report of the clamor for signature strikes in the context of the May 2010 killing of Jabir Shabwani, a Saleh rival who was trying to forge a peace agreement. Later reporting suggested Saleh deliberately fed us bad information to eliminate Shabwani. If the first request to use signature strikes came “within two years” of the time Obama eventually approved signature strikes but not long after the al-Majala killing, it either happened around that same time, or Obama gave approval for signature strikes before April.

And it’s not like sources aren’t talking about it. Greg Miller, for example, quotes a former US official finally admitting Saleh was feeding us bad information.

“There were times when we were intentionally misled, presumably by Saleh, to get rid of people he wanted to get rid of,” said the former U.S. official involved in overseeing the campaign.

Now, it’s possible the timing is off, and Obama’s sole push-back on signature strikes in Yemen took place after May 2011–that is, after we started rethinking signature strikes in Pakistan.

But there’s something funky with the presentation of the targeting. It reportedly affected Obama, Brennan, and Johnson significantly. And yet none of this so-called transparency describes what that really meant.

That’s a really significant point given that–aside from the remorse over the civilian casualties in al-Majala–the problem appears to derive from deliberately bad intelligence, not significant squeamishness about signature strikes.

The NSC’s May 2011 “Draft” Legal Analysis and the Continued Stonewalling of Ron Wyden

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I’m ultimately going to get around to arguing that the reason the government response to the ACLU targeted killing FOIA is so funky is because (mind you, this is a wildarsed guess) the CIA didn’t rely on the OLC memo authorizing Anwar al-Awlaki’s killing.

But for the moment I want to point out a far tinier but nevertheless related point.

On March 30 of this year, just before the government started scrambling for extensions on this FOIA, AUSA Sarah Normand called ACLU Attorney Eric Ruzicka to ask if ACLU would “limit the first prong of its FOIA requests” to DOJ and DOD. The first prong asked for,

All records created after September 11, 2001, pertaining to the legal basis in domestic, foreign and international law upon which U.S. citizens can be subjected to targeted killings, whether using unmanned aerial vehicles (“UAVs” or “drones”) or by other means.

Normand asked Ruzicka to agree to exclude any draft legal analyses, emails, and internal communication. Ruzicka agreed to waive draft analyses, but not emails and internal communications.

Most of the internal communications from the DOD and DOJ that would have been excluded which are described in the Vaughn indices aren’t all that interesting–almost all pertain to discussions leading up to the Situation Room debate over how transparent to be on these killings or to Jeh Johnson and Eric Holder’s speeches on targeted killing.

But there is a series of three email chains I find particularly interesting.

On May 18-19, 2011 attorneys at OLC and the National Security Council deliberated discussing “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.” Then, on May 19, lawyers at OLC, DOJ’s Civil and National Security Divisions, and at the Offices of the Associate and Deputy Attorney General discussed the same thing. Finally, on May 20, the DOJ lawyers and the National Security Council lawyers continued the discussion, this time including DOJ’s Office of Legislative Affairs.

This says, at a minimum, two things. First, the White House and DOJ were discussing what they called “draft” legal analysis as late as May 2011, 11 months after OLC finalized an opinion supposedly authorizing Anwar al-Awlaki’s killing but 4 months before the US killed him. And, that the discussion of that “draft” legal analysis pertained, in part, to some issue raised by Congress.

That, by itself, is interesting. Why was this legal analysis still considered draft analysis in May 2011? (And for what it’s worth, they were having similar deliberations in November 2011, after they had already killed Awlaki.)

But then there’s the likelihood that this discussion relates to persistent requests from Ron Wyden to get basic questions about targeted killing answered.

In a letter to Eric Holder on February 8, 2012  (so before DOJ tried to get ACLU to waive precisely this information) complaining about continued stonewalling of his questions about targeted killing, Wyden made it clear he called Holder in April 2011 to get these questions answered. And DOJ answered in limited form in May 2011–the same month, at least, that DOJ and the White House were discussing “draft” legal analysis.

In February 2011, after making similar requests to other officials, I asked the Director of National Intelligence to provide the legal analysis that explains the intelligence community’s understanding of its authority to kill American citizens. The Director indicated that he would have liked to be responsive to my request, but he told me that he did not have the authority to provide formal written opinions of the Department of Justice’s Office of Legal Counsel to Congress.

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.

Wyden’s letter continued by describing some of the questions he had asked Holder in April 2011 but had not had answered as of February 2012 (and as far as I know, to this day).

And it is critically important for the public’s elected representatives to ensure that these questions are asked and answered in a manner consistent with American laws and American values.

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?’. [my emphasis]

I’m particularly interested in that question regarding whether the President relied on the AUMF (or some other Congressional grant of authority) or Article II power. Because it says whether or not these email discussions pertained to Wyden’s questions, the full Senate Intelligence Committee had still not been briefed on the basis of authority for the President’s authority to kill an American citizen. Hell, as far as we know, the Committee still hasn’t received that information.

According to Charlie Savage’s reporting, the OLC memo finalized 10 months before these discussions of “draft” legal analysis situated the authority to kill Awlaki in the AUMF.

Based on those premises, the Justice Department concluded that Mr. Awlaki was covered by the authorization to use military force against Al Qaeda that Congress enacted shortly after the terrorist attacks of Sept. 11, 2001 — meaning that he was a lawful target in the armed conflict unless some other legal prohibition trumped that authority.

But in his bizarrely unmentioned April 2012 speech discussing how the CIA decides whether its use of lethal force is legal, CIA General Counsel Stephen Preston emphasized Article II power, with an AUMF being secondary.

First, we would confirm that the contemplated activity is authorized by the President in the exercise of his powers under Article II of the U.S. Constitution, for example, the President’s responsibility as Chief Executive and Commander-in-Chief to protect the country from an imminent threat of violent attack. This would not be just a one-time check for legal authority at the outset. Our hypothetical program would be engineered so as to ensure that, through careful review and senior-level decision-making, each individual action is linked to the imminent threat justification.

A specific congressional authorization might also provide an independent basis for the use of force under U.S. law.

In addition, we would make sure that the contemplated activity is authorized by the President in accordance with the covert action procedures of the National Security Act of 1947, such that Congress is properly notified by means of a Presidential Finding. [my emphasis]

Now maybe the government still hasn’t figured out whether the President killed Awlaki based solely on his own authority or whether they nodded to Congress before they took out a US citizen with a drone.

Or maybe this issue is the precise question that they’re trying to obscure with their silence about Preston’s speech and their sustenance of the CIA Glomar.

Assume Obama Drone Rules Dead

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There’s been a series of moves and trial balloons among Obama’s national security lawyers that lead me to assume that any effort to apply some regularity and the patina of legality to the drone program is dead.

First, after some reporting that he might replace Eric Holder as Attorney General, DOD General Counsel Jeh Johnson instead announced his resignation, effective the moment the New Year’s ball drops.

Mr. Johnson, who was general counsel to the Air Force during the Clinton administration, was a key legal adviser and fund-raiser for then-Senator Obama during his run for the presidency in the 2008 campaign. On Thursday, he sent Mr. Obama a letter saying that he would resign effective midnight on Dec. 31.

“Thank you for the opportunity to be part of your campaign, your transition, and your Administration,” Mr. Johnson wrote. “Thank you also for the best clients I will ever have: Robert Gates, Leon Panetta, and the men and women of the U.S. military.”

Mr. Johnson, a former prosecutor, has been mentioned as a potential attorney general should Eric H. Holder Jr. step down in Mr. Obama’s second term. That speculation has been centered more among his colleagues in the Pentagon rather than among civilian law enforcement officials, however.

In his current job, Mr. Johnson worked closely on internal debates about the scope and limits of the government’s power to hold terrorism suspects in indefinite detention and to target them with drone strikes in places like Yemen and Somalia. In those debates he generally sought broader latitude for the government than some others, notably State Department officials.

But Mr. Johnson took a more restrained position than some colleagues during the NATO-led air war in Libya. As American participation in the effort neared an apparent 60-day limit imposed by the War Powers Resolution for hostilities that had not been authorized by Congress, he urged pulling back on direct combat activities – like missile strikes – but was overruled by the White House.

Now, as Charlie Savage notes, the reports that Johnson might be named Attorney General seemed to come from Johnson’s backers, not the White House. And as Savage reports, Johnson’s role has been mixed. While he pushed for more flexibility–particularly with drones themselves–he did try to hew to rule of law in other areas. And he recently suggested that the AUMF the government has operated under will one day (I would argue, already has) effectively been vacated because core al Qaeda has been disrupted so thoroughly.

I do believe that on the present course, there will come a tipping point – a tipping point at which so many of the leaders and operatives of al Qaeda and its affiliates have been killed or captured, and the group is no longer able to attempt or launch a strategic attack against the United States, such that al Qaeda as we know it, the organization that our Congress authorized the military to pursue in 2001, has been effectively destroyed.

At that point, we must be able to say to ourselves that our efforts should no longer be considered an “armed conflict” against al Qaeda and its associated forces; rather, a counterterrorism effort against individuals who are the scattered remnants of al Qaeda, or are parts of groups unaffiliated with al Qaeda, for which the law enforcement and intelligence resources of our government are principally responsible, in cooperation with the international community – with our military assets available in reserve to address continuing and imminent terrorist threats.

Once core al Qaeda has been decimated (which they have been), Johnson said, the military must become solely a reserve force, with intelligence and law enforcement leading the fight.

In many ways, the speech reads, in hindsight, like a valedictory, listing Johnson’s personal accomplishments at DOD (notably, the repeal of Don’t Ask Don’t Tell). But it also calls for conventional legal limits to the war on terror.

And then, days after delivering that speech, Johnson was not only not named to replace Holder, but was himself on the way out the door.

Then the day after Johnson’s departure announcement, came State Department Counselor Harold Koh’s.

That one I find more troubling. While it might just be tied to Yale’s desire to have Koh do his job again (though those transitions usually happen in August, not December), and while Hillary’s departure may explain Koh’s departure (though Hillary isn’t leaving for some time yet), Koh’s departure comes just weeks after Scott Shane’s report that the attempt to put order to the drone program–which had first been reported before the election–had stalled after the election. I suggested then that the Shane report might be an effort from those trying to put more legal regularity to the drone program–an effort undoubtedly led by Koh–to force John Brennan to carry through on his earlier plans. Matthew Aid confirmed that the drone rules, at least, if not the leak to Shane, came from those in State (again, this must be Koh) and DOJ who recognized the drone program didn’t really fly under international law.

A State Department official who recently left his post for a better paying job in the private sector admitted that there is deep concern at State and Justice that sooner or later, a court in the U.S. or in The Hague will issue a ruling on the question of the legality of these missions, which many in Washington fear will go against the U.S. government position that these strikes are legal.

So whether Koh left because he lost this fight with Brennan or because of academic schedules and Hillary’s upcoming departure, in his absence, the drone rules Koh pushed for are far less likely to happen.

Then there’s the news–this one, unlike reports of Johnson as Attorney General, sourced to the Administration itself–that Stephen Preston, currently CIA’s General Counsel, may replace Johnson at DOD.

Along with Johnson and John Brennan and Eric Holder and Harold Koh, Preston also gave a speech on drone killing, though unlike the others, the Administration appears to pretend that Preston’s speech is not public. Also unlike the others, Preston gave different emphasis on the legal basis for drone strikes. Preston situates the authority for drone assassination in Article II and Presidential Findings, with the AUMF all the others used as legal justification serving only as legal gravy on top of a pile of hard legal biscuits.

Curiously, Preston checks off the first box–authorization under US law before the op–by looking to Article II, not the AUMF Congress passed.

First, we would confirm that the contemplated activity is authorized by the President in the exercise of his powers under Article II of the U.S. Constitution, for example, the President’s responsibility as Chief Executive and Commander-in-Chief to protect the country from an imminent threat of violent attack. This would not be just a one-time check for legal authority at the outset. Our hypothetical program would be engineered so as to ensure that, through careful review and senior-level decision-making, each individual action is linked to the imminent threat justification.

A specific congressional authorization might also provide an independent basis for the use of force under U.S. law. [my emphasis]

That’s interesting for several reasons. First, it situates the authority to use lethal force not in the stated basis OLC is using–the one SCOTUS has affirmed (sort of), but in Article II. Just where John Yoo would look to situate it.

This also means that CIA maintains it has this authority–presuming a Presidential Finding–outside the context of a declared war.

Finally, note Preston’s emphasis on imminent threat. I’ve already noted that Holder’s own speech was weakest precisely when suggesting Awlaki was an imminent threat because he was a top leader of AQAP.

In checking off compliance with the National Security Act, Preston emphasizes the Presidential Finding.

In addition, we would make sure that the contemplated activity is authorized by the President in accordance with the covert action procedures of the National Security Act of 1947, such that Congress is properly notified by means of a Presidential Finding.

To be fair, Preston was representing just how the CIA engaged in assassinations (a label he of course decries), not the Administration generally. And it is true that CIA operates under Findings, not AUMFs (though on a number of assassinations and signature strikes, the Administration has seemingly opted to have CIA play the legal lead role–even where using DOD resources–precisely for the more flexible legal cover offered by the Gloves Come Off Memorandum of Notification).

So perhaps if Preston did move to DOD he’d resort to authorizing killing under the AUMF–the AUMF that Johnson suggested may be getting close to expiring.

Except that such a move would take place–as the FP piece that announced Preston’s potential move notes–against the background of the Administration’s efforts to blur all these lines.  It comes against the background of the CIA becoming DOD and DOD becoming CIA, complete with thoroughly unconvincing assurances that DOD’s spooks won’t–as CIA does–engage in both spying and killing.

All of this is Kremlinology, mind you: I don’t know for certain that Preston’s potential move heralds a further blurring of the legal authorities that govern CIA and DOD generally, nor can I be sure that it means the drone program will continue to operate on the ad hoc basis it has been.

One thing we can be sure of though: with the start of the new year, the guy trying to put some legal structure to the drone program will be gone, along with a guy who recently floated an end to the AUMF

And given the way things work without institutional champions. I suspect that means Obama’s so-called drone rules are dead.

The Lawyers that Stayed, the Lawyers that Left

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Charlie Savage covers a very troubling development in the case of Ali al-Bahlul, a Yemeni who is serving a life sentence for serving as Al Qaeda’s videographer.

After Hamdan had his conviction vacated by the DC Circuit last year because material support was not a war crime at the time of his support for al Qaeda, Bahlul’s conviction was put in jeopardy too. As Savage earlier reported, there was a debate among the national security lawyers. And in spite of the fact that almost everyone disagreed with Eric Holder on this count, Holder made them press forward anyway.

The Obama administration, after a high-level debate among its legal team, told a federal appeals court on Wednesday that the conviction of a Guantánamo Bay prisoner by a military commission in 2008 was valid even though the charges against him — including “conspiracy” and “material support for terrorism” — were not recognized as war crimes in international law.

Attorney General Eric H. Holder Jr. decided to press forward with the case, fighting the appeal of a guilty verdict against the prisoner, a Yemeni man named Ali al-Bahlul. In an unusual move, Mr. Holder overruled the recommendation of the solicitor general, Donald B. Verrilli Jr., who had wanted to drop the case because the appeals court had rejected the same legal arguments in another case several months ago, according to officials familiar with the deliberations.

The chief prosecutor of the military commissions system, Brig. Gen. Mark Martins, had also urged the Justice Department to drop the case and pointedly did not sign the 22-page brief to the court on Wednesday. It concedes that the judges must side with Mr. Bahlul at this stage because of the earlier ruling in the other case, but argues that the earlier ruling was wrong.

It sure appears that Eric Holder is just counting on getting the same kind of batshit crazy ruling he got in Latif, so as to sustain his legally unjustified detention.

What’s especially interesting about this, however, is the Kremlinology. Back in early December over the course of two days time, both Jeh Johnson and Harold Koh resigned. It felt very much like a protest, or a refusal to be part of something that struck them as legally unsound (I thought then–as still suspect–it was partly a response to John Brennan’s halt of the effort to put drones on a sound legal footing).

And now we know that around that time, the Attorney General was overriding not just their advice, but that of most of the others involved in this, including the Solicitor General and the Military Commission Chief Prosecutor.

Yesterday’s brief, incidentally, was signed by the Acting Deputy General Counsel at DOD, not Johnson (of course).

So Johnson and Koh are gone. And Eric Holder? The Administration just announced he will stay into the second term. (And, not incidentally, yesterday I floated the suggestion that Lisa Monaco, who sided with Holder on this fight, would be named to replace FBI Director Mueller later this year; a number of smart people suggested that was a smart prediction.)

Update: In the WaPo version of this story, Steve Vladeck suggests that if the government really planned to push forward with an appeal of this to SCOTUS (that is, to reverse the ruling in Hamdan II), the language in the brief would have been stronger.

Incidentally, I wonder yet again about the case of the three Somalis in this context. Is this why they added a conspiracy charge to their indictment, to establish that as a precedent in this situation?

Crowd of Unilateral Lawyers Applaud Unilateral Operator

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Sarah Cleveland? Not a judge. Greg Craig? Not a judge. William Dodge? Not a judge. Jeh Johnson? Not a judge. David Kris? Not a judge. David Martin? Not a judge. Daniel Meltzer? Not a judge. And Trevor Morrison?

Also not a judge.

Nevertheless, these eight lawyers–all of whom served the function of interpreting the law for the Executive Branch within the Executive Branch for Obama (and, in Kris’ case, for Bush)–assure you that John Brennan will uphold our laws.

Throughout his tenure as Assistant to the President for Homeland Security and Counterterrorism in the Obama Administration, John Brennan has been a persistent and determined leader in support of adherence to the rule of law, a principled commitment to civil liberties and humanitarian protection, and transparency. On a broad range of issues, he has endeavored to ensure that the national security practices of the United States Government are based on sound long-term policy goals and are consistent with our domestic and international legal obligations, as well as with broader principles of democratic accountability. John Brennan has been a steadfast champion of the President’s commitment to closing the detention facility at Guantánamo, and has urged that our Article III courts remain a vital tool in our counterterrorism toolbox. He has stood firmly with the President’s efforts to ensure that interrogations are conducted in accord with the law and our values. And he has worked to ensure that the responsible and effective pursuit of our counterterrorism objectives will not depend simply on the good instincts of officials, but will instead be institutionalized in durable frameworks with a sound legal basis and broad interagency oversight.

[snip]

John Brennan understands that adherence to the Constitution and the rule of law serve, rather than undermine, our national security interests. Time and again, he has demonstrated seasoned wisdom and judgment in responding to our nation’s greatest national security threats, and he has consistently reaffirmed his core commitment to conducting our national security and counterterrorism policy in a fashion that comports with our deepest values. [my emphasis]

Sure, there are a few tells–such as the boast that his pursuit of counterterrorism objectives will be institutionalized in a broad interagency–not interbranch–oversight. Or, on the reverse, the claim that John Brennan–whose solution to the National Counterterrorism Center’s failure to fulfill minimization requirements was just to open up all Federal databses to NCTC without that minimization–has a “principled commitment to civil liberties.”

But mostly, it’s the structural problem here. Regardless of what John Brennan himself believes–and all the public evidence suggests these lawyers are too close to judge and perhaps just a little seduced by the old spook–this Administration doesn’t stand for any of these things.

More importantly, this Administration has refused just about every opportunity to have someone else–lawyers and judges who hadn’t counseled these policies from the start–weigh these issues. The Administration has shown great disdain for both democratic accountability and Article III courts. It has ensured that interrogations–both those conducted under Bush and those conducted in dark prisons under Obama–never be tested for whether they accord with the law. Indeed, Obama’s Administration has gone to great lengths to hide our torture from international oversight and even from litigants in our own courts.

So even assuming John Brennan is the nice guy these lawyers say he is–an assumption that defies the evidence–they’re still damning Brennan with the same illegitimate argument the Obama Administration has always relied on:

Trust us.

They are emphasizing precisely why John Brennan’s success in an Administration that has refused even basic oversight should not be sufficient for confirmation to lead a secretive agency.

And while in any other week I might be inclined to grant David Kris’ word great weight, not this week. After all, Kris warned we might get into trouble with Hamdan’s material support for terrorism conviction years ago. Nevertheless, the Obama Administration is treating Gitmo with the same Kangaroo arrogance that Bush did, refusing to take the DC Circuit’s ruling on Hamdan as law, overriding their own prosecutor at Gitmo. This Administration–Brennan’s Administration–is defiant of even the warnings Kris offered years ago. So when Kris and other lawyers boast that Brennan will be a great leader consistent with Obama’s policies…

He is also exceptionally qualified to provide leadership and direction to the Agency, consistent with President Obama’s national security objectives.

… It’s shouldn’t exactly count as a glowing endorsement.

Sure, this letter to Dianne Feinstein in support of Brennan’s nomination will work. It’ll provide cover for all the evidence that Brennan is none of these things. At the very least, it’ll force a few Democrats on the Senate Intelligence Committee to consider whether they’re prepared to admit that Obama’s policies exhibit none of this respect for rule of law. Which they aren’t, yet. So it’ll serve its purpose.

The last actual judge who got a glimpse at the Obama Administration’s claim to abide by the rule of law had this to say:

I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping reasons for their conclusion a secret.

John Brennan is the knave of this Alice in Wonderland system of legal justice.

I take that as a far better read of Brennan’s fitness to be CIA Director than the word of the Queen of Hearts’ other cards up her sleeve.

Update: Conor Friedersdorf does more fact-checking of the claims in the letter.

Targeted Killing Timeline

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A timeline!

I’ve been working on this timeline for almost nine months, trying to pull together the known dates about strikes against Americans, the evidence supporting the strike against Anwar al-Awlaki, the legal cases surrounding both targeted killing and torture, to which targeted killing is linked via the Memorandum of Notification, and Congressional efforts to exercise oversight.

September 17, 2001: George Bush signs Memorandum of Notification (henceforth, Gloves Come Off MON) authorizing a range of counterterrorism techniques, including torture and targeted killing.

September 18, 2001: Congress passes the Authorization to Use Military Force.

November 3, 2002: US citizen Kamal Derwish killed in drone purportedly targeting Abu Ali al-Harithi.

Late 2008: Ruben Shumpert reported killed in Somalia.

June 24, 2009: Leon Panetta gets briefed on assassination squad program.

June 26, 2009: HPSCI passes a funding authorization report expanding the Gang of Eight briefings.

July 8, 2009: The Administration responds with an insulting appeal to a “fundamental compact” between Congress and the President on intelligence matters.

July 8, 2009: Silvestre Reyes announces CIA lied to Congress.

October 26, 2009: British High Court first orders British government to release language on Binyam Mohamed’s treatment.

October 28, 2009: FBI kills Imam Luqman Asmeen Abdullah during Dearborn, MI arrest raid.

October 29, 2009: Hearing on declassifying mention of Gloves Come Off MON before Judge Alvin Hellerstein; in it, Hellerstein reveals NSA James Jones has submitted declaration to keep mention of MON secret.

November 5, 2009: Nidal Hasan attacks Fort Hood, killing 13.

December 24, 2009: JSOC tries but fails to hit Anwar al-Awlaki. On that day, the IC did not yet believe him to be operational.

December 25, 2009: With Umar Farouk Abdulmutallab attack, FBI develops full understanding of Awlaki’s operational goals.

January 2, 2010: In conversation with David Petraeus, Yemeni President Ali Abdullah Saleh speaks as if Awlaki, whom he refers to as a cleric, not an AQAP member, was a designated target of December 24 attack.

January 13, 2010: ACLU FOIAs for information on drone killing.

January 18, 2010: DOJ prepares talking points for Eric Holder to brief Obama on targeted killing.

January 19, 2010: Eric Holder meeting with Obama.

January 19, 2010: State adds AQAP and Nasir al-Wuhayshi and Said al-Shihri — but not Anwar al-Awlaki — to FTO.

January 25, February 15, 2010: According to much later decrypted emails British Airways Engineer Rajib Karim and Awlaki discuss attacks on British Airways.

January 26, 2010: Dana Priest reports Awlaki was already on JSOC targeted killing list, CIA considering adding him.

January 28, 2010: AUSA Sean Lane asks Hellerstein for two more weeks (until February 12) to comply with order in torture FOIA case.

January 29, 2010: DOD denies ACLU’s request for expedited processing/waiver. Abdulmutallab starts cooperating with FBI.

February 2010: Date on one of two OLC memos shared with Intelligence Committees in February 2013.

February 1, 2010: FBI informs Senate Intelligence Committee Abdulmutallab now cooperating.

February 3, 2010: Dennis Blair acknowledges drone program in Congress, explaining in part “We target them for taking action that threatens Americans or has resulted in it.”

February 5, 2010: Umar Farouk Abdulmutallab confession still consistent with “Abu Tarak” ordering plot, not Awlaki.

February 9, 2010: Potential Adbulmutallab confirmation Awlaki picked the target.

February 9, 2010: ODAG sends OLC two emails regarding language in January 18 talking points for Holder.

February 10, 2010: British Government releases language revealing they warned that Binyam Mohamed’s pre-OLC memo treatment might constitute torture.

February 17, 2010: Lane asks Hellerstein to stay his order regarding the Gloves Come Off MON language until he decides the ACLU’s motion to reconsider.

February 23, 2010: Abdulmutallab says he was not motivated by hatred of the US. This contradicts with his statement at sentencing.

March 1-3, 2010: Hilton submits a new declaration regarding the Gloves Come Off MON language, claiming new factual developments in the case; US Attorney Preet Bharara also submitted a letter urging Hellerstein to reconsider his ruling in light of the new facts.

March 9, 2010: CIA issues Glomar in Drone FOIA.

March 25, 2010: Harold Koh discusses targeted killing, implicitly discussing Awlaki.

March 29-30, 2010: Emails between OLC and attorneys from various agencies on potential statement on legal basis against US citizens in certain circumstances.

April 2010: Anwar al-Awlaki put on CIA kill list.

April 9, 2010: Govt gets extension in Drone FOIA to May 6.

April 16, 2010: Abdulmutallab’s interrogators ask about Awlaki’s martyrdom.

April 29, 2010: End date of earlier March 29 email chain on targeted killing.

Around June 2010: OLC completes Awlaki memo.

June 1, 2010: ACLU files amended complaint in Drone FOIA adding CIA.

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

June 24, 2010: David Barron announces his departure.

July 2010: According to recent reports, the date on the Barron/Lederman OLC memo.

July 20, 2010: Marty Lederman announces his departure.

July 16, 2010: Treasury puts Awlaki on Specially Designated Terrorist list.

August 2010: Stuart Delery becomes Senior Counselor to Holder.

August 27, 2010: Osama bin Laden questions whether Awlaki should take on greater leadership role without first being tested in battle.

August 30, 2010: Nasser al-Awlaki sues to prevent government from killing Anwar unless he presented imminent threat.

September 13, 2010: Abdulmutallab fires his lawyers, tries to plead guilty.

September 14, 2010: DOJ considers, then decides against, charging Anwar al-Awlaki

October 2, 2010: Hellerstein orders DOJ to release Gloves Come Off MON language.

October 10-11, 2010: Emails between OLC, Attorney General’s Office, and other National Security Lawyers on targeting US citizens.

October 16, 2010: Jabir al-Fayfi returns to Saudi Arabia and provides details of toner cartridge plot, naming others as more central leaders in plot.

October 21, 2010: Govt requests delay on FOIA discussion about MON itself pending decision on MON language.

November 8, 2010: Hearing in Nasser al-Awlaki suit on targeted killing.

December 7, 2010: Judge John Bates dismisses Awlaki suit.

February 2011: Ron Wyden asks DNI Clapper for information on Awlaki targeting.

March 24, 29, 2011: Department of State tries to get Awlaki to come to Embassy in Sanaa with ploy involving passport.

April 2011: Wyden calls Eric Holder and asks that OLC memos be provided to Congress.

May 5, 2011: US drone strike barely misses Awlaki

May 18-20, 2011: Emails between NSC, DOJ, and Legislative Affairs on draft legal analysis pertaining to lethal force against US citizen; one version includes Civil division; most include National Security Council.

May 2011: DOJ provides some information to Wyden, but doesn’t answer his questions.

June 23, 2011: Memo from Mike Mullen to National Security Legal Advisor on effect of US citizenship on targeting enemy belligerents.

September 9, 2011: Judge Rosemary Collyer grants CIA summary judgment in Drone FOIA.

September 16, 2011: John Brennan speech lays out new standard for imminence.

September 23, 2011: Government moves to protect something in Abdulmutallab case apparently tied to Awlaki.

September 30, 2011: Anwar al-Awlaki and Samir Khan killed in drone strike.

October 4, 2011: During jury selection, Abdulmutallab yells out, “Anwar is alive,” suggesting he had been told Awlaki had been killed.

October 5, 2011: Chuck Grassley requests targeted killing memo.

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

October 8, 2011: Savage publishes detailed description of June 2010 OLC memo.

October 8, October 18, October 20-25, October 30-November 4, November 6-10, 2011: OLC email discussions about lethal force against US citizen, also including other agencies.

October 11, 2011: In opening argument of Abdulmutallab trial, DOJ claims “Abu Tarak” as the director of Abdulmutallab’s attack.

October 12, 2011: Abdulmutallab pleads guilty.

October 14, 2011: Abdulrahman al-Awlaki killed in JSOC drone strike.

October 19, 2011: ACLU FOIAs Anwar al-Awlaki OLC memo, underlying evidence supporting it, and information relating to Samir Khan and Abdullah al-Awalaki; group of OLC personnel meet in Viginia Seitz’ office on response, ostensibly to just NYT.

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 2, 2011: State sends two emails to AG, OLC, and various NatSec agencies on draft language on targeted killing.

November 3, 2011: Arbitrary end date DOJ’s Office of Information Policy placed on FOIA request for targeted killing documents.

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 8, 2011: Stuart Delery drafts white paper.

November 8, 2011: In his opening statement for a DOJ Oversight hearing, Pat Leahy complains the Senate Judiciary Committee had not been given “the legal justification underlying drone strikes against an American citizen overseas.”

November 9, 2011: ACLU appeals summary judgment in Drone FOIA.

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.”

December 27, 2011: DOD informs ACLU it could not process the request within statutory timeframe.

January 18, 2012: CIA informs ACLU it would be unable to respond to ACLU’s administrative appeal within statutory timeframe.

February 1, 2012: ACLU sues on Anwar al-Awlaki et al FOIA.

February 8, 2012: Ron Wyden follows up on his earlier requests for information on the targeted killing memo with Eric Holder.

February 10, 2012: In sentencing memo for Abdulmutallab, government releases narrative of Abdulmutallab’s confession.

February 11, 21, 2012: Email discussions about Jeh Johnson’s February 22, 2012 speech.

February 22, 2012: Jeh Johnson speech on targeted killing.

February 27, March 1, 2012: DOD emails discussing content of Eric Holder’s March 5, 2012 speech.

March 2012: Stuart Delery becomes PDAAG and Acting AAG at Civil Division.

March 5, 2012: Eric Holder speech lays out claimed basis for Awlaki killing.

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.

March 8, 2012: Pat Leahy renews his request for the OLC memo at DOJ appropriations hearing.

March 9, 2012: 2nd Circuit hearing on Gloves Come Off MON

March 30, 2012: AUSA Sarah Normand asks ACLU to exclude draft legal analyses, email, and other correspondence from TK FOIA

April 3, 2012: ACLU accepts limit on draft legal analyses, but not email and internal communication.

April 4, 2012: Stephen Preston speech lays out CIA’s legal authorization to engage in targeted killing.

April 9, 2012: Govt requests 10-day extension on TK FOIA.

April 23, 2012: Govt requests 28-day extension on TK FOIA.

April 30, 2012: John Brennan speech admits we use drones to kill terrorists.

May 21, 2012: 2nd Circuit permits govt to keep mention of Gloves Come Off MON secret; In phone conference, Judge Colleen McMahon extends deadline to June 20, 2012.

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.

June 12, 2012: Pat Leahy renews his request for the OLC memo at DOJ oversight hearing.

June 20, 2012: The government responds to NYT and ACLU lawsuits for memo and other documents related to targeted killing (though several of the declarations supporting that motion, including the one from DOJ OIP, were not submitted until June 21).

June 22, 2012: According to House Judiciary Committee letter, the date the 7-month old white paper provided to Committee (Dianne Feinstein says both Senate Judiciary and Intelligence Committees received the memo in June 2012 too).

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.

July 18, 2012: ACLU, CCR, and Khan and Awlaki families file wrongful death suit.

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.

August 10, 2012: Pat Leahy claims SJC received the white paper in response to his (and Grassley’s) initial requests from the previous year: “the Senators has been provided with a white paper we received back as an initial part of the request I made of this administration.”

October 18, 2012: Abdulmutallab prosecution team wins AG recognition for balancing intelligence collection and prosecution.

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.

January 14, 2013: Wyden writes John Brennan letter in anticipation of his confirmation hearing, renewing his request for targeted killing memos.

January 25, 2012: Rand Paul asks John Brennan if he’ll release past and future OLC memos on targeting Americans. 

February 4, 2013: 11 Senators ask for any and all memos authorizing the killing of American citizens, hinting at filibuster of national security nominees.

February 7, 2013: On morning of Brennan confirmation hearing, Administration provides two OLC memos, withholding 7-8 more.

February 7, 2013Pat Leahy and Chuck Grassley ask that SJC be able to get the memos that SSCI had just gotten. 

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. 

February 8, 2013: Bob Goodlatte, Trent Franks, and James Sensenbrenner join their Democratic colleagues to renew the December 4, 2012 request.

February 13, 2013: In statement on targeted killings oversight, DiFi describes writing 3 previous letters to the Administration asking for targeted killing memos.

Harold Koh and the First Office of Legal Counsel Memo

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When I compared what appeared in Eric Holder’s March 2012 targeted killing speech and the targeted killing white paper, I discovered two sections that appear in Holder but not the white paper: a section on leaders as targets.

Furthermore, it is entirely lawful – under both United States law and applicable law of war principles – to target specific senior operational leaders of al Qaeda and associated forces. This is not a novel concept. In fact, during World War II, the United States tracked the plane flying Admiral Isoroku Yamamoto – the commander of Japanese forces in the attack on Pearl Harbor and the Battle of Midway – and shot it down specifically because he was on board. As I explained to the Senate Judiciary Committee following the operation that killed Osama bin Laden, the same rules apply today.

And a section asserting that the technology of drones doesn’t change the legal principles behind the use of lethal force.

These principles do not forbid the use of stealth or technologically advanced weapons.   In fact, the use of advanced weapons may help to ensure that the best intelligence is available for planning and carrying out operations, and that the risk of civilian casualties can be minimized or avoided altogether.

But that language was not new to the Holder speech; it appears as two of the main bullet points in Harold Koh’s March 2010 speech addressing, in part, our use of drones.

First, some have suggested that the very act of targeting a particular leader of an enemy force in an armed conflict must violate the laws of war. But individuals who are part of such an armed group are belligerents and, therefore, lawful targets under international law. During World War II, for example, American aviators tracked and shot down the airplane carrying the architect of the Japanese attack on Pearl Harbor, who was also the leader of enemy forces in the Battle of Midway. This was a lawful operation then, and would be if conducted today. Indeed, targeting particular individuals serves to narrow the focus when force is employed and to avoid broader harm to civilians and civilian objects.

Second, some have challenged the very use of advanced weapons systems, such as unmanned aerial vehicles, for lethal operations. But the rules that govern targeting do not turn on the type of weapon system used, and there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict– such as pilotless aircraft or so-called smart bombs– so long as they are employed in conformity with applicable laws of war. Indeed, using such advanced technologies can ensure both that the best intelligence is available for planning operations, and that civilian casualties are minimized in carrying out such operations.

In addition to situating drone strikes within law of war principles, Koh also addressed two other issues that show up in the white paper (and Holder’s speech): due process and assassinations.

Third, some have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in an armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force. Our procedures and practices for identifying lawful targets are extremely robust, and advanced technologies have helped to make our targeting even more precise. In my experience, the principles of distinction and proportionality that the United States applies are not just recited at meetings. They are implemented rigorously throughout the planning and execution of lethal operations to ensure that such operations are conducted in accordance with all applicable law.

Fourth and finally, some have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.”

I raise all this because Koh’s speech comes between the reported date of the first targeted killing memo — February 2010 — and the date of the second one. (h/t to Snoopdido for pointing this out)

Mind you, Koh’s speech is not the only statement of drone authority that may fall in that period. There are also Dennis Blair’s comments from February 3, 2010 (so probably, but not definitely, before the first memo).

“We take direct actions against terrorists in the intelligence community,” he said. “If we think that direct action will involve killing an American, we get specific permission to do that.”

[snip]

“We don’t target people for free speech. We target them for taking action that threatens Americans or has resulted in it.”

He added, “The reason I went this far in open session is I just don’t want other Americans who are watching to think that we are careless about endangering … lives at all. But we especially are not careless about endangering American lives, as we try to carry out the policies to protect most of the country and I think we ought to go into details in closed session.”

But Blair’s comments — especially the “we target them for taking actions that have resulted in threats to America whether the actions themselves were a threat” one, as well as the specific Presidential approval one — don’t appear in the white paper or Holder’s speech (except as incorporated into the very broad imminence standard). Koh’s do (they also appear in Jeh Johnson’s speech, and the technology part appears in John Brennan’s speech).

Now, it could be that Blair’s comments reflect the content of that first memo, in which case the June-July memo may be an effort to shore up pretty startling claims (which ultimately would permit the killing of someone for incitement). Or it could be that Koh’s comments reflect the first memo, in which case the memos may be additive, with the general principles introduced by Koh fleshed out in the June-July memo.

But it seems worth noting that Holder’s speech incorporates Koh’s plus the white paper.


The Author of the White Paper, Stuart Delery, Argues Selective, Misleading Disclosures Should Not Be Checked by FOIA

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As I noted in this post, Daniel Klaidman has identified the author of the targeted killing white paper as Stuart Delery.

At the time he wrote the white paper, Delery was Senior Counselor to Attorney General Eric Holder. Last March, he became Principal Deputy Assistant Attorney General in the Civil Division of DOJ and, in the absence of an Assistant AG (or, as far as I can tell, even a nominee, in which case this feels a lot like what George Bush did with Steven Bradbury when he left the Acting head in charge for years on end), the Acting head of the Civil Division.

As I also noted, Delery actually argued the government’s case in the ACLU’s Drone FOIA on September 20, 2012. Now, that’s the ACLU’s other drone FOIA, not the one specifically requesting information that should have included the unclassified white paper Delery wrote if DOJ had answered the FOIA in good faith.

Nevertheless, it asked for closely related information:

The Request seeks a variety of records relating to the use of unmanned aerial vehicles to conduct targeted killings, including the legal basis for the strikes and any legal limits on who may be targeted; where targeted drone strikes can occur; civilian casualties; which agencies or other non-governmental entities may be involved in conducting targeted killings; how the results of individual drone strikes are assessed after the fact; who may operate and direct targeted killing strikes; and how those involved in operating the program are supervised, overseen or disciplined.

At the time ACLU submitted the request on January 13, 2010, Delery was in the Deputy Attorney General’s Office. DOJ responded to its part of the FOIA on February 3, 2010 — 16 days after DOJ worked on a briefing on targeted killing Eric Holder would make to President Obama and 15 days after he delivered that briefing — by claiming only FBI would have responsive records. When FBI searched its records it found none. DOJ made that initial response 6 days before someone in DAG — Delery’s office — wrote an email to OLC about the Holder briefing.

So while DOJ’s non-responsiveness in the drone FOIA is not as egregious as it was in the Awlaki FOIA, it’s still clear that the department Delery worked in, if not (as in the Awlaki FOIA) Delery’s work itself, was shielded from FOIA by a disingenuous FOIA response.

Yet Delery, the Acting head of the Civil Division, nevertheless decided he should argue the government’s case. Technically, Delery was arguing for CIA’s right to pretend it hadn’t confirmed its role in drone strikes in spite of repeated public statements doing just that, so he wasn’t defending the non-disclosure of his Department’s work, per se. Still, it’s not generally considered good form for a lawyer to argue a matter in which he has been so closely involved. He did so, however, at a time before we knew just how centrally involved he was in this matter.

With all that in mind, I thought I’d look at what Delery said to the DC Circuit.

MR. DELERY: May it please the Court, Stuart Delery for the Appellee, CIA.

This Court in several cases has identified two important interests that the strict test for official confirmation serves. It protects the Government’s vital interest in information related to national security and foreign affairs, and it advances FOIA’s interest in disclosure by not punishing officials for attempting to educate the public on matters of public concern because otherwise officials would be reluctant to speak on important national security matters.

Here, the Government has acknowledged that the United States makes efforts to target specific terrorists as part of its counter-terrorism operations, that as part of those operations or, in some cases, those operations involve the use of remotely piloted aircraft or drones, and it’s also described the legal framework and standards that apply in this context in a series of speeches and interviews including by the President’s counter-terrorism advisor, John Brennan, but also the Attorney General, the legal advisor to the State Department, the General Council of DOD, and as has been  referenced in yesterday’s or the recent exchange of 28J letters including a recent interview by the President. But, there’s been no official acknowledgment one way or the other about whether the CIA is involved in these particular operations. [my emphasis]

Delery suggests that a series of Leon Panetta comments (both before and after he moved from CIA to DOD) making the CIA’s role in drone killing clear should not amount to confirmation that the CIA is involved in drone killing because, he says, FOIA’s interest in disclosure should not punish public officials for attempting to educate the public.

Or, to put it another way, the Administration giving a bunch of self-serving speeches should not then make the topic of those speeches subject to FOIA because, in Delery’s mind, that would work contrary to FOIA’s support for disclosure because it would punish officials for giving self-serving speeches.

He then proceeds to name the speeches in question. Or most of them. While he mentions the speeches John Brennan, Eric Holder, Harold Koh, and Jeh Johnson gave, he neglects to mention the speech Stephen Preston — the General Counsel of the Agency Delery technically represented in this hearing — gave.

That’s utterly consistent with the CIA’s apparent Glomaring of the speech in the Awlaki FOIA. Except in this case, it is even more egregious because Preston’s speech clearly spoke about both hypothetical lethal force covert ops (the Awlaki killing) and the non-hypothetical Osama bin Laden targeted killing. In this suit, the CIA should not be able to Glomar this speech. Effectively, the government maintains the CIA can make a public speech about a topic, but not acknowledge it in FOIA because then we could connect the speech up with the topic it was about. Or something like that.

All that said, remember how misleading the speeches Delery did name were. None of them mention signature strikes; John Brennan’s in particular suggests the strikes are limited to targeted strikes.

Yes, in full accordance with the law—and in order to prevent terrorist attacks on the United States and to save American lives—the United States Government conducts targeted strikes against specific al-Qa’ida terrorists, sometimes using remotely piloted aircraft, often referred to publicly as drones.  And I’m here today because President Obama has instructed us to be more open with the American people about these efforts.

Furthermore, we now know what Delery, better than almost anyone else, has known for some time: Eric Holder’s public speech resembles the white paper (and therefore presumably the underlying OLC memo authorizing targeted killing of Awlaki) in most respects. Except that Holder,

  • Hid one of the biggest concerns about targeted killing, the possibility it would constitute murder
  • Hid concerns that targeted killing would constitute a war crime
  • Hid a claim that a broadly defined interpretation of imminent threat would limit the application of the Fourth Amendment in a targeted killing of an American
  • Claimed the program was subject to a great deal of oversight that it appears not to have been

In other words, Delery argued to the DC Circuit that the government should be able to make deceptive speeches to the public — in the name of educating the public! — without having those speeches trigger FOIA requirements that might allow citizens to fact check those speeches.

And the treatment of the unclassified white paper — it was provided to four committees in Congress only after the government’s response to the other ACLU FOIA was complete, so the government hid how Holder’s speech differed from the underlying memo even from Congress for months (in the case of Committees with oversight) and years (in the case of the rest of Congress). Then, when it became convenient, it was leaked, after two FOIAs requesting it had been stalled or denied. The White House Press Secretary then told reporters to go read the white paper that had been withheld in FOIA but then conveniently leaked. Thus, the white paper serves as Exhibit A in the government’s self-serving dribbling out of information, in violation of the spirit of FOIA.

Which is interesting, because here’s how Delery responded to questions about the Administration’s rampant leaking.

JUDGE GRIFFITH: I’m interested in the leaks question. Could you address that? What are we to make of these allegations of a serious pattern in strategy of leaks at the highest levels of the CIA and the Government as being a selective disclosure and it, in fact, works as an sources in media reports.

JUDGE GRIFFITH: Are you aware of any case in which we have been confronted with allegations of such widespread –

MR. DELERY: Right.

JUDGE GRIFFITH: — and strategic leaking at such a high level? Are you aware of any case that’s like this? I’m not.

MR. DELERY: I think there certainly are other cases.

JUDGE GRIFFITH: Like this.

MR. DELERY: Other cases involve widespread alleged leaking. I don’t think that this particular allegation necessarily is the same. I also emphasize that it’s an allegation. The Court when discussing the part of the official confirmation test that suggests that some evidence of bad faith might lead to a different result has never looked at this question. It was also made clear that that inquiry goes to whether there’s a basis to believe the national security judgment reflected in the declarations has not been met, and has emphasized that speculation isn’t enough, that the plaintiff seeking the information in FOIA needs to come forward with some evidence.

JUDGE GRIFFITH: These are allegations. But, the allegations are that senior CIA officials leaked information about a CIA drone program to the New York Times, the Wall Street Journal, a number of other major media sources. So, the common sense of this is we’d have to be left to believe that all of those outlets are, in fact, misinformed or lying.

MR. DELERY: Right. Well, I think a few additional points. One is these, well, as a factual matter, for example, when asked about this allegation directly, the President made a statement back in June saying that that was not the case. And so, you’re confronted here with unsupported allegations in connection with litigation. You have a record and declaration from the CIA saying that the information being sought here, whether these documents exist, remains a classified fact, and I don’t think there’s any support in the Court’s cases to find that fact pattern sufficient to justify a further inquiry. In effect, it turned FOIA litigation into a leak investigation, and the question I would have is what’s the rule that would be articulated about what threshold would trigger that kind of inquiry, and beyond that, how would it proceed? It doesn’t seem like a workable result. The Court has never conceived –

JUDGE GRIFFITH: But, on the other hand, aren’t we, if we’re to apply FOIA, aren’t we to work to resolve, to work to prevent efforts to get around FOIA through strategic leaks. Right?

MR. DELERY: I think what the Court has said is that the purpose of FOIA litigation is to determine whether a particular document should or shouldn’t be released not to identify whether a certain fact is or isn’t true. [my emphasis]

Delery totally ignores Thomas Griffith’s point, that FOIA was enacted to avoid precisely what has happened in this case, the self-interested dribbling out of information that serves as much to confuse as to “educate” the public. He invokes Obama’s comment — exactly parallel to some Bush made during the Valerie Plame leak case — assuring that no sanctioned leaks had happened; it turns out they had. And then Delery again asserts that the sole role of Courts in FOIAs is to determine whether documents can be withheld, not to allow citizens to use FOIAs to test the Executive Branch’s truth claims. (In a case argued in February, a lawyer reporting to Delery went even further, arguing that Courts should only rubber-stamp every Executive claim that a document can’t be released.)

Stuart Delery, a man whose own work product on this issue was shielded by DOJ’s egregious non-response to an ACLU FOIA, says citizens shouldn’t be able to use FOIA to check the veracity of public claims the Executive Branch makes.

Happy Transparency Week: This guy is one of the most senior officials in the Department of Justice.

 

Why Would Jeh Johnson Suggest the Drone and/or Targeted Killing Court Would Be Bipartisan?

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I’ll have more to say about Jeh Johnson’s skeptical speech on a drone and/or targeted killing court later.

But I wanted to point to this detail:

Our government finds itself in a lose-lose proposition: it fails to officially confirm many of its counterterrorism successes, and fails to officially confirm, deny or clarify unsubstantiated reports of civilian casualties.

Our government’s good efforts for the safety of the people risks an erosion of support by the people.

It is in this atmosphere that the idea of a national security court as a solution to the problem — an idea that for a long time existed only on the margins of the debate about U.S. counterterrorism policy but is now entertained by more mainstream thinkers such as Senator Diane Feinstein and a man I respect greatly, my former client Robert Gates – has gained momentum.

To be sure, a national security court composed of a bipartisan group of federal judges with life tenure, to approve targeted lethal force, would bring some added levels of credibility, independence and rigor to the process, and those are worthy goals.

In the eyes of the American public, judges are for the most part respected for their independence.

In the eyes of the international community, a practice that is becoming increasingly controversial would be placed on a more credible footing. [my emphasis]

As I understand it, the model under discussion is simply to give the existing FISA Court the additional task of reviewing kill decisions, not creating a new court.Yet the FISA Court — whose judges are appointed by the Chief Justice of the Supreme Court (and therefore, for the entire life of the FISA Court, by a Republican appointee) — is in no way bipartisan.

Indeed, according to Secrecy News’ Steven Aftergood, there is not only no mandate that FISC be peopled by judges appointed by Presidents of both parties, but it is not bipartisan in fact.

No, there is no such mandate in FISA law or policy.  (And I couldn’t immediately identify any current FISC court members who were appointed to the bench by Dems.)  In fact, in my layman’s opinion, the notion of partisan or bipartisan judges is incoherent.  Judges are not supposed to be partisan operatives, though they may have identifiably liberal or conservative tendencies.

Moreover, I’m not even sure why Johnson would suggest the Obama Administration would want a drone and/or targeted killing court to be bipartisan. It has done far, far better arguing its expansive understanding of the war on terror in front of mostly GOP nominees on the DC Circuit. The judges who have endorsed the Obama Administration view of its own power include quite a few — like Janice Rogers Brown or Laurence Silberman — who are not exactly “respected for their independence.”

I mean, it might be nice to have people like Katherine Forrest or Susan Illston reviewing both targeted killing and wiretapping decisions. But that’s not going to happen anytime soon.

So why suggest the existing FISA Court has partisan balance when it doesn’t?

Update: bmaz notes that Clinton appointed Mary McGlauthlin, who is currently serving on the FISC.

Trent Franks and the EMP Threat to the Electrical Grid

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At a House Judiciary Committee oversight hearing for Department of Homeland Security today, Trent Franks implored DHS Secretary Jeh Johnson to consider the threat of electromagnetic pulse or geomagnetic disturbance to the electrical grid because “we have additional information that seems to indicate the threat is more significant than we have been aware of.”

Franks also submitted an amendment to the Intelligence Authorization requiring the Director of National Intelligence to report on the threat EMPs pose to the US through 2025.

I have no idea whether this is credible or not. Franks is not one of the Members of Congress I consider to be the most reliable (and our resident desert rat has even less complimentary things to say).

But golly. Franks sure seems worried about the EMP threat of late.

 

Obama Should Only Nominate Jeh Johnson If He Plans on Breaking Up DHS

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There are multiple reports that President Obama is considering nominating Jeh Johnson to head DOD.

I get the attraction. Obama and Johnson get along well. Johnson only recently left DOD, so he knows it — and the legal loopholes it exploits — well. And in Johnson, Obama would have someone who would gloss his warmaking as something noble.

I even think Obama might welcome the way such a nomination would heighten the confrontation with the GOP on immigration.

Still, Johnson has served as head of DHS for less than a year. His tenure is only now marking a transition from a period during which DHS had such a wildly spinning revolving door that it could begin to serve its alleged mission.

An exodus of top-level officials from the Department of Homeland Security is undercutting the agency’s ability to stay ahead of a range of emerging threats, including potential terrorist strikes and cyberattacks, according to interviews with current and former officials.

Over the past four years, employees have left DHS at a rate nearly twice as fast as in the federal government overall, and the trend is accelerating, according to a review of a federal database.

The departures are a result of what employees widely describe as a dysfunctional work environment, abysmal morale, and the lure of private security companies paying top dollar that have proliferated in Washington since the Sept. 11, 2001, attacks.

And all that’s on top of DHS’s almost impossible mandate, both because it is either too big or poorly defined.

Look, I’m sure Johnson’s a nice guy and maybe a great manager (he hasn’t been in place long enough for us to know).

But if DHS is a necessary agency, if its domestic spying and immigration and cybersecurity and disaster recovery missions are vital to this nation, if it is going to survive as a many-headed monster, then it should have the person Obama thinks is his best Agency head leading it. If that person is Johnson — as Obama’s consideration of him to lead DOD suggests — then moving him would seem to be a concession that DHS, and its obvious failures, really isn’t all that important after all.

If Obama moves Johnson from DHS to DOD, he should, at the same time, break DHS back up into more manageable agencies, declare the whole experiment an expensive failure, eliminate the word “Homeland” from our vocabularies. Because it is not working, and if there’s no urgency to make it work, then we should break it up into parts that can function competently again.

 

A Tale of Celebrity Bon Vivant Civil Servants and Access Journalism

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Screen Shot 2015-07-02 at 12.27.12 PMThere is a distinct problem in this country with excessive inbreeding of politicians, lobbyists and journalists. In a country where so many are now ruled by so few in power, it is becoming, if not already become, the biggest threat to American democracy. I would add in corporations, but, heck, who do you think the politicians, lobbyists and journalists represent at this point?

Now, corporations and their money through their mouthpiece lobbyists have long had a stranglehold on politics, whether through the corps themselves or their wealthy owners. But the one saving mechanism has historically been claimed to be the “Fourth Estate” of the American press who were there on behalf of the people as a check on power. But what if the Fourth Estate becomes, in fact, part of the power? What then?

What if the crucial check on federal and state power is by journalists who are little more than stenographers clamoring for access and/or co-opted social friends and elites with the powers that be? What if the sacrosanct civil servants of this country are nothing but Kardashian like shills out for a free gilded ride before they leave office to cash in with private sector riches befitting their holiness?

Golly, if only there was an example of this incestuous degradation. Oh, wait, get a load of this just put up by Kate Bennett’s KGB File at Politico:

In a generally stay-at-home administration, one member of the Obama Cabinet is proving to be the toast of the town. Jeh Johnson, the oh-so-serious-on-the-outside secretary of Homeland Security, is fast becoming Washington’s No. 1 social butterfly, dining out at posh restaurants like CityCenter’s DBGB, as he did last week with a small group that included Amy Klobuchar, Steny Hoyer, CNN’s Jim Sciutto, the New York Times’ Ashley Parker, author Aaron Cooley, and lobbyist Jack Quinn and his wife Susanna.

For a guy who’s been running a 24/7 war against terror since 2013, Johnson seems to have a lot of time to trip the light fantastic. He can often be seen enjoying regular catch-up sessions with BFF Wolf Blitzer at Café Milano (back table, naturally); and mingling at black-tie soirées, such as the Kennedy Center Spring Gala, the Opera Ball, or a champagne-fueled VIP garden party at Mount Vernon to toast French-American relations, all of which Johnson attended—and stayed at beyond the requisite cocktail-hour schmooze.
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“There’s rarely an invitation he’ll turn down,” says an aide to Johnson, who prefers to remain anonymous, of his boss’s penchant for spending three-to-four evenings a week at social functions — and actually enjoying them.

I am not going to bother to dissect that, it speaks all too clearly for itself. And it is hard to figure which is more pukeworthy, the bon vivant civil servant or the elitism displayed by the supposed watcher last bastion journalists. It is all of the same cloth.

What’s wrong in Washington DC? Here you go. When the pathology on the boneyard of American democracy is run, this vignette will appear.

Maybe this is why Tom Vilsack could find a spare couple of hours out of one of his days to explain in a deposition why he and the Obama Administration knee jerkily demanded Shirley Sherrod’s resignation based upon a crank fraudulent video by a schlock like Andrew Breitbart.

Because “Executive Privilege” now means “Privileged Executives” who can party all night with their elitist journalistic pals and screw the rest of the government, and people it serves, during the day. Just like the Founders envisioned obviously.

Cyber-Unicorn Journalists Shocked the Unicorn Didn’t Appear, Again

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When last we checked in on claims the US was going to cyber-deter China, I suggested people should understand the underlying dynamics at work.

Before people start investing belief in unicorn cyber deterrence, they’d do well to understand why it presents us such a tough problem.

That was 11 days ago. Since then, James Clapper has claimed (I’m not necessarily endorsing this claim as true, especially given the timing) the US isn’t even 100% sure China is behind the OPM hack — in part because we’ve lost some monitoring capabilities in recent years — all while making it clear we don’t consider it an attack because we do precisely the same thing to China. At the same time, top level US and Chinese officials met in anticipation of Xi Jinping’s visit. Here’s the White House readout of that meeting.

From September 9-12, senior Administration officials held a series of meetings with Secretary of the Central Political and Legal Affairs Commission of the Communist Party of China Meng Jianzhu in Washington, D.C.  Mr. Meng traveled to Washington as President Xi Jinping’s Special Envoy to discuss cybersecurity and other issues in advance of President Xi’s State Visit. Secretary of Homeland Security Jeh Johnson hosted Mr. Meng during his visit. In this capacity, Secretary Johnson convened a meeting between members of the Chinese delegation and representatives from the Departments of State, Treasury, Justice, Federal Bureau of Investigation, and the Intelligence Community.  In addition, FBI Director Comey also met with Mr. Meng at FBI headquarters for discussions. National Security Advisor Susan E. Rice received Mr. Meng for a meeting at the White House, where she had a frank and open exchange about cyber issues.

Remember: China is believed to have all of Jim Comey and Jeh Johnson’s security clearance files (probably Susan Rice’s as well). Comey in particular keeps raising that point. That surely adds something to such negotiations, knowing that your interlocutor has read a ready-made intelligence portfolio that your own government compiled on you.

Now the journalists who keep reporting that the US is about to, honest to god, this time they mean it, sanction China for its hacking report that sanctions are off the table for now, in part because those negotiations resulted in some kind of cyber agreement.

The United States will not impose economic sanctions on Chinese businesses and individuals before the visit of China President Xi Jinping next week, a senior administration official said Monday.

The decision followed an all-night meeting on Friday in which senior U.S. and Chinese officials reached “substantial agreement” on several cybersecurity issues, said the administration official, who spoke on the condition of anonymity because of the topic’s sensitivity.

The potential for sanctions in response to Chinese economic cyberespionage is not off the table and China’s behavior in cyberspace is still an issue, the official said. “But there is an agreement, and there are not going to be any sanctions” before Xi arrives on Sept. 24, the official said.

The breakthrough averted what would have raised a new point of tension with the Chinese that could have overshadowed the meeting — and Xi’s first state visit.

“They came up with enough of a framework that the visit will proceed and this issue should not disrupt the visit,” the official said. “That was clearly [the Chinese] goal.”

The reporting on this appears to be problematic, in part, because sources for these stories themselves misunderstand the issue.

Yet what that agreement is remains unclear. Two U.S. officials told The Daily Beast that substantial disagreement remains between the U.S. and China. China insists that it’s the victim of cyber spying, not a perpetrator. But the U.S. has filed criminal charges against Chinese officials for their role in stealing trade secrets and intellectual property from American companies.

[snip]

[CSIS Deputy Director Scott] Kennedy noted that given the length of time Meng was in Washington, his visit almost certainly covered other issues, including China’s efforts to hunt down Chinese nationals accused of crimes who are living abroad. U.S. law enforcement officials have complained that Chinese state security operatives are working in this country illegally and trying to intimidate Chinese people living here legally.

Remember, “US official” is journalistic code often used for members of Congress or contractors. And if these (possible) members of Congress don’t understand that the US sensors embedded in China’s networks are incredibly invasive cyber spying, if whoever claimed that our indictment for stealing information on trade disputes (something we spy on too) believes that we indicted for stealing IP, if those sources can’t imagine we might respond to the OPM hack by cracking down on extraordinary Chinese agents in the US, then those sources aren’t appreciating the real power dynamics at stake. And we’re going to continue to have journalism on this topic that serves more to provide a convenient narrative than to inform.

Thank you for playing, thank you for providing the appearance of a threat to placate Congress and drive a narrative of a tough negotiation, all while not laying out how the OPM hack changes things.

Several things seem to have been missed in this recent round of cyber-deterrence unicorn reporting. While China’s crashing stock market (renewed again today) provides a bit more leverage for the US against China — among other things, it raises the value Chinese elites would place on their US property and holdings, though China itself wants to pressure some of the same elites — it is still not in our best interest to antagonize this relationship. Moreover, whatever additional leverage we’ve got economically is more than offset by the OPM and related hacks, which China could use in any number of ways to really damage the US, especially given so many of our other critical systems — public and private, and I suspect that’s part of what some of the related hacks have been designed to demonstrate — remain insecure.

Most importantly, even before the Snowden leaks, the US had a real interest in finding some kind of norms that would make the cyber realm less volatile. That’s probably even more true now, because (as Clapper said, and this part I believe) our adversaries have been hardening their own defenses while stealing information that turns out to be more valuable to the US, meaning we don’t have such asymmetric advantage in the cyber realm anymore.

This comes at a time when Congress has become adamantly opposed to anything that resembles negotiations, because to them it looks like weakness. And most seem not to understand the stakes behind the reasons why the OPM hack cannot be considered an attack.

So if some credulous reporting created the space for such an agreement, great!

The Financial Services Roundtable Wants to Terrify You into Giving Them More Immunity

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The policy discussion about the many ways that the Cyber Information Sharing Act not only doesn’t do much to prevent the hacking of public and private networks, but in key ways will make it worse, must be making its mark. Because the Financial Services Roundtable, one of the key corporatist groups backing the bill, released this YouTube full of scary warnings but absolutely zero explanation about what CISA might do to increase cybersecurity.

Indeed, the YouTube is so context free, it doesn’t note that Susan Collins, the first person who appears in the video, has called for mandatory reporting from some sectors (notably, aviation), which is not covered in the bill and might be thwarted by the bill. Nor does it mention that the agency of the second person that appears in the video, Department of Homeland Security Secretary Jeh Johnson, has raised concerns about the complexity of the scheme set up in CISA, not to mention privacy concerns. It doesn’t note that the third person shown, House Homeland Security Chair Michael McCaul, favored an approach that more narrowly targeted the information being shared and reinforced the existing DHS structure with his committee’s bill.

Instead of that discussion … “Death, destruction, and devastation!” “Another organization being hacked!” “Costing jobs!” “One half of America affected!” “What is it going to take to do something?!?!?!”

All that fearmongering and only one mention of the phrase “information sharing,” much less a discussion of what the bill in question really does.

In August, the head of the FSR, Tim Pawlenty, was more honest about what this bill does and why his banks like it so much: because it would help to hide corporate negligence.

“If I think you’ve attacked me and I turn that information over to the government, is that going to be subject to the Freedom of Information Act?” he said, highlighting a major issue for senators concerned about privacy.

“If so, are the trial lawyers going to get it and sue my company for negligent maintenance of data or cyber defenses?” Pawlenty continued. “Are my regulators going to get it and come back and throw me in jail, or fine me or sanction me? Is the public going to have access to it? Are my competitors going to have access to it? Are they going to be able to see my proprietary cyber systems in a way that will give up competitive advantage?”

That is, the banks want to share information with the government so it can help those private corporations protect themselves (without paying for it, really, since banks do so well at dodging taxes), without any responsibility or consequences in return. “Are my regulators going to get [information about how banks got attacked] and come back and throw me in jail, or fine me, or sanction me?” the banks’ paid lobbyist worries. As the author of this bill confirmed last week, this bill will undercut regulators’ authority in case of corporate neglect.

The example of banks dodging responsibility in the past — possibly aided by a similar (albeit more rigorous) information sharing regime under the Bank Secrecy Act — provides all the evidence for how stupid this bill would be. We need corporations to start bearing liability for outright negligence. And this bill provides several ways for them to avoid such liability.

Don’t succumb to bankster inciting fear. America will be less safe if you do.


The Pro-Scrub Language Added to CISA Is Designed to Eliminate DHS’ Scrub

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I’ve been comparing the Manager’s Amendment (MA) Richard Burr and Dianne Feinstein introduced Wednesday with the old bill.

A key change — one Burr and Feinstein have highlighted in their comments on the floor — is the integration of DHS even more centrally in the process of the data intake process. Just as one example, the MA adds the Secretary of Homeland Security to the process of setting up the procedures about information sharing.

Not later than 60 days after the date of the enactment of this Act, the Attorney General and the Secretary of Homeland Security shall, in coordination with the heads of the appropriate Federal entities, develop and submit to Congress interim policies and procedures relating to the receipt of cyber threat indicators and defensive measures by the Federal Government. [my emphasis]

That change is applied throughout.

But there’s one area where adding more DHS involvement appears to be just a show: where it permits DHS conduct a scrub of the data on intake (as Feinstein described, this was an attempt to integrate Tom Carper’s and Chris Coons’ amendments doing just that).

This is also an issue DHS raised in response to Al Franken’s concerns about how CISA would affect their current intake procedure.

To require sharing in “real time” and “not subject to any delay [or] modification” raises concerns relating to operational analysis and privacy.

First, it is important for the NCCIC to be able to apply a privacy scrub to incoming data, to ensure that personally identifiable information unrelated to a cyber threat has not been included. If DHS distributes information that is not scrubbed for privacy concerns, DHS would fail to mitigate and in fact would contribute to the compromise of personally identifiable information by spreading it further. While DHS aims to conduct a privacy scrub quickly so that data can be shared in close to real time, the language as currently written would complicate efforts to do so. DHS needs to apply business rules, workflows and data labeling (potentially masking data depending on the receiver) to avoid this problem.

Second, customers may receive more information than they are capable of handling, and are likely to receive large amounts of unnecessary information. If there is no layer of screening for accuracy, DHS’ customers may receive large amounts of information with dubious value, and may not have the capability to meaningfully digest that information.

While the current Cybersecurity Information Sharing Act recognizes the need for policies and procedures governing automatic information sharing, those policies and procedures would not effectively mitigate these issues if the requirement to share “not subject to any delay [or] modification” remains.

To ensure automated information sharing works in practice, DHS recommends requiring cyber threat information received by DHS to be provided to other federal agencies in “as close to real time as practicable” and “in accordance with applicable policies and procedures.”

Effectively, DHS explained that if it was required to share data in real time, it would be unable to scrub out unnecessary and potentially burdensome data, and suggested that the “real time” requirement be changed to “as close to real time as practicable.”

But compare DHS’s concerns with the actual language added to the description of the information-sharing portal (the new language is in italics).

(3) REQUIREMENTS CONCERNING POLICIES AND PROCEDURES.—Consistent with the guidelines required by subsection (b), the policies and procedures developed and promulgated under this subsection shall—

(A) ensure that cyber threat indicators shared with the Federal Government by any entity pursuant to section 104(c) through the real-time process described in subsection (c) of this section—

(i) are shared in an automated manner with all of the appropriate Federal entities;

(ii) are only subject to a delay, modification, or other action due to controls established for such real-time process that could impede real-time receipt by all of the appropriate Federal entities when the delay, modification, or other action is due to controls—

(I) agreed upon unanimously by all of the heads of the appropriate Federal entities;

(II) carried out before any of the appropriate Federal entities retains or uses the cyber threat indicators or defensive measures; and

(III) uniformly applied such that each of the appropriate Federal entities is subject to the same delay, modification, or other action; and

This section permits one of the “appropriate Federal agencies” to veto such a scrub. Presumably, the language only exists in the bill because one of the “appropriate Federal agencies” has already vetoed the scrub. NSA (in the guise of “appropriate Federal agency” DOD) would be the one that would scare people, but such a veto would equally as likely to come from FBI (in the guise of “appropriate Federal agency” DOJ), and given Tom Cotton’s efforts to send this data even more quickly to FBI, that’s probably who vetoed it.

If you had any doubts the Intelligence Community is ordering up what it wants in this bill, the language permitting them a veto on privacy protections should alleviate you of those doubts.

On top of NSA and FBI’s veto authority, there’s an intentional logical problem here. DHS is one of the “appropriate Federal agencies,” but DHS is the entity that would presumably do the scrub. Yet if it can’t retain data before any other agency, it’s not clear how it could do a scrub.

In short, this seems designed to lead people to believe there might be a scrub (or rather, that under CISA, DHS would continue to do the privacy scrub they are currently doing, though they are just beginning to do it automatically) when, for several reasons, that also seems to be ruled out by the bill. And ruled out because one “appropriate Federal agency” (like I said, I suspect FBI) plans to veto such a plan.

So it has taken this Manager’s Amendment to explain why we need CISA: to make sure that DHS doesn’t do the privacy scrubs it is currently doing.

I’ll explain in a follow-up post why it would be so important to eliminate DHS’ current scrub on incoming data.

Obama Bypassed OLC on Bin Laden Killing

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Obama_and_Biden_await_updates_on_bin_LadenThere’s a name missing from Charlie Savage’s latest — a description of the legal analysis behind Osama bin Laden’s killing: Caroline Krass, who served as Acting Head of DOJ’s Office of Legal Counsel from January to September 2011. She’s not mentioned, apparently, because she was not among the four lawyers who collaborated on five memos deeming the raid to be legal.

Weeks before President Obama ordered the raid on Osama bin Laden’s compound in May 2011, four administration lawyers hammered out rationales intended to overcome any legal obstacles — and made it all but inevitable that Navy SEALs would kill the fugitive Qaeda leader, not capture him.

[snip]

Just days before the raid, the lawyers drafted five secret memos so that if pressed later, they could prove they were not inventing after-the-fact reasons for having blessed it. “We should memorialize our rationales because we may be called upon to explain our legal conclusions, particularly if the operation goes terribly badly,” said Stephen W. Preston, the C.I.A.’s general counsel, according to officials familiar with the internal deliberations.

[snip]

This account of the role of the four lawyers — Mr. Preston; Mary B. DeRosa, the National Security Council’s legal adviser; Jeh C. Johnson, the Pentagon general counsel; and then-Rear Adm. James W. Crawford III, the Joint Chiefs of Staff legal adviser — is based on interviews with more than a half-dozen current and former administration officials who had direct knowledge of the planning for the raid.

The account makes it quite clear that Eric Holder was excluded from discussions.

On April 28, 2011, a week before the raid, Michael E. Leiter, the director of the National Counterterrorism Center, proposed at least telling Mr. Holder. “I think the A.G. should be here, just to make sure,” Mr. Leiter told Ms. DeRosa.

This means that on the OBL raid, Donilon excluded the Attorney General in the same way Dick Cheney excluded John Ashcroft from key information about torture and wiretapping. I find that interesting enough, given hints that Holder raised concerns about the legal authority to kill Anwar al-Awlaki in the weeks after we missed him on December 24, 2009, which led to OLC writing two crappy memos authorizing that killing in ways that have never been all that convincing.

But Savage provides no explanation for why Krass was excluded, which is particularly interesting given that the month after OBL’s killing, Savage revealed that President Obama had blown off Krass’ advice on Libya (as I read it, the decision to blow off her advice would have happened after the OBL killing, though I am not certain on that point). The silence about Krass is also remarkable given that she was looped in on the initial Libya decision — and asked to write a really bizarre memo memorializing advice purportedly given after the fact.

On Libya, Krass was looped in on questions addressing precisely the same issues addressed in the OBL killing (indeed, we were assassinating Qaddafi’s family members in Libya, which should have presented many of the same legal questions) both before and (as I understand it) after the OBL killing, but she was apparently not read in at all on the OBL killing itself.

There’s one more reason I think the question of OBL’s killing was more uncertain than laid out here. Savage reveals that even though lawyers had authorized not telling Congress about the raid, Leon Panetta did so on his own anyway.

Mr. Preston wrote a memo addressing when the administration had to alert congressional leaders under a statute governing covert actions. Given the circumstances, the lawyers decided that the administration would be legally justified in delaying notification until after the raid. But then they learned that the C.I.A. director, Leon E. Panetta, had already briefed several top lawmakers about Abbottabad without White House permission.

This is the action of someone — rightly — covering his ass, doing what the law actually requires rather than what his lawyer says it permits.

By the way, any bets on whether SSCI got a copy of that Preston memo, stating that they didn’t need to be informed on covert operations, contrary to the clear language of the National Security Act, before they approved his promotion from CIA General Counsel to DOD General Counsel (where he remains)? I bet no.

Ultimately, Savage depicts an Administration going even further than Cheney had on inventing legal authorizations for secret actions. Obama (and Donilon) will never catch heat for it like Cheney did, because everyone likes dancing on OBL’s watery grave. But make no mistake, this exhibits some of the same behaviors as we criticize Cheney for.

Update: I find this, from Savage’s June 2011 story on Krass, of particular interest given Savage’s description of the decision process on OBL.

The administration followed an unusual process in developing its position. Traditionally, the Office of Legal Counsel solicits views from different agencies and then decides what the best interpretation of the law is. The attorney general or the president can overrule its views, but rarely do.

In this case, however, Ms. Krass was asked to submit the Office of Legal Counsel’s thoughts in a less formal way to the White House, along with the views of lawyers at other agencies. After several meetings and phone calls, the rival legal analyses were submitted to Mr. Obama, who is a constitutional lawyer, and he made the decision.

A senior administration official, who spoke on the condition of anonymity to talk about the internal deliberations, said the process was “legitimate” because “everyone knew at the end of the day this was a decision the president had to make” and the competing views were given a full airing before Mr. Obama.

The Sources for Some Russian Voting Hack Stories Will Not Be Prosecuted

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Yesterday, former Homeland Security Secretary Jeh Johnson spent 90 minutes meeting with the Senate Intelligence Committee’s Russian investigators.

Today, Bloomberg reports that Russian probes of election-related targets was far more extensive than previously reported, reaching into 39 states. It relies on three unnamed sources for the story, either including, or in addition to, at least one former senior US official.

In Illinois, investigators found evidence that cyber intruders tried to delete or alter voter data. The hackers accessed software designed to be used by poll workers on Election Day, and in at least one state accessed a campaign finance database. Details of the wave of attacks, in the summer and fall of 2016, were provided by three people with direct knowledge of the U.S. investigation into the matter. In all, the Russian hackers hit systems in a total of 39 states, one of them said.

[snip]

Another former senior U.S. official, who asked for anonymity to discuss the classified U.S. probe into pre-election hacking, said a more likely explanation is that several months of hacking failed to give the attackers the access they needed to master America’s disparate voting systems spread across more than 7,000 local jurisdictions.

[snip]

One former senior U.S. official expressed concern that the Russians now have three years to build on their knowledge of U.S. voting systems before the next presidential election, and there is every reason to believe they will use what they have learned in future attacks. [my emphasis]

The report also uses the document allegedly leaked by Reality Winner as corroboration and confirmation of one of the companies targeted, rather curiously included as a parenthetical comment.

(An NSA document reportedly leaked by Reality Winner, the 25-year-old government contract worker arrested last week, identifies the Florida contractor as VR Systems, which makes an electronic voter identification system used by poll workers.)

The Bloomberg story is critically important, as it should provide pressure on the Republicans for real protections for voting systems, even if they’ll probably ignore that pressure. It provides far more details than the Winner document did. That said, much of this information might come out formally in Jeh Johnson testimony before the House Intelligence Committee.

I raise all this to note that the treatment of Bloomberg’s sources will be dramatically different than that of Winner. I’d bet there won’t even be a referral for this story, especially if it relies on (as is likely) information shared by people protected by the speech and debate clause and/or people who might have been original classification authorities (OCAs — the people who get to decide whether something is classified or not) for this information in the past.

Perhaps that is as it should be. Perhaps our democracy has unofficially agreed that OCAs and congressional staffers should serve as kind of a relief valve, the place where classified information may be leaked without criminal penalty. Perhaps we believe those kinds of people have a better read on whether the interests of leaking outweigh the sensitivity of an issue. Though obviously, when OCAs like David Petraeus become impossible to punish (or former SSCI staff director Bill Duhnke, who was the FBI’s primary suspect for the Merlin leak, but who was protected by the Senate’s refusal to cooperate), that creates a profoundly unequal system of justice. Reality Winner can be prosecuted even while people leaking similar — perhaps even more sensitive — information within weeks might not even be investigated.

To be clear, I don’t want Bloomberg’s sources to be investigated. But we need to acknowledge the double standards for leakers in this country.

Penetrated: Today’s Senate Intelligence Committee Hearing on Russian Interference in the 2016 U.S. Elections

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If you didn’t catch the Senate Intelligence Committee hearing on Russian influence on 2016 U.S. election on live stream, you should try to catch a replay online. I missed the first panel but caught the second when University of Michigan Prof. J. Alex Halderman began his testimony with his opening statement.

The same Halderman who questioned the 2016 election could have been hacked based on his expertise.

The same Halderman who hacked a voting machine to play Pac Man.

When asked if it was possible Russia could change votes, Halderman told the SIC that he and a team of students demonstrated they were able to hack DC’s voting system, change votes, and do so undetected in under 48 hours. Conveniently, Fox News interviewed Halderman last September; Halderman explained the DC hack demonstration at that time (see embedded video); the interview fit well with Trump’s months-long narrative that the election was ‘rigged’.

If you aren’t at least mildly panicked after watching the second panel’s testimony and reading Halderman’s statement, you’re asleep or dead, or you just plain don’t care about the U.S.’ democratic system.

Contrast and compare this Senate hearing to the House Intelligence Committee’s hearing with former DHS Secretary Jeh Johnson as a witness. Johnson sent out numerous messages last year expressing his concerns about election integrity, but after listening to the second Senate panel, Johnson should have been hair-on-fire (it’s figure of speech, go with it). But the Obama administration erred out of some twisted sense of heightened sensibility about appropriateness (which would have been better suited to its policies on drone use and domestic surveillance). The excess of caution feels more like foot dragging when viewed through the lens of time and Johnson’s testimony.

Early in the hearing, Johnson as well as DHS witnesses Jeanette Manfra and Samuel Liles said there was no evidence votes were changed. It’s important to note, though, that Johnson later clarifies in a round about way there was no way to be certain of hacking at that time (about 1:36:00-1:41:00 in hearing). I find it incredibly annoying Johnson didn’t simply defer to information security experts about the possibility there may never be evidence even if there were hacks; it’s simply not within in his skill set or experience then or now to say with absolute certainty based on forensic audit there was no evidence of votes changed. Gathering that evidence never happened because federal and state laws do not provide adequately for standardized full forensic audits before, during, or after an election.

Halderman’s SIC testimony today, in contrast, makes it clear our election system was highly vulnerable in many different ways last November.

Based on the additional testimony of a representative of National Association of State Election Directors, the President-Elect of National Association of Secretaries of State (NASS) & Secretary of State, Executive Director of Illinois State Board of Elections Illinois — whose combined testimony revealed lapses in communication between federal, state, and local government combined with gaps in information security education — the election system remains as vulnerable today as it was last autumn.

Nothing in either of these two hearings changed the fact we’ve been penetrated somewhere between 21 and 39 times. Was it good for you?

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