Charlie Savage

Someone named Michael Brenner has been circulating a lengthy critique of Power Wars, including distributing a version to his listserv [to which he unilaterally adds the e-mail addresses of people] on Thursday, uploading a version to Consortium News on Saturday, and uploading another version as a Huffington Post blog yesterday. It opens with a flattering thought – that my book is “much discussed” and is “destined to be a landmark in the writing of the period’s history.” But Brenner goes harshly critical from there, portraying the book as credulous and full of omissions, hinting that its alleged failings may have been bad faith on my part, and eventually abandoning the book to just express his negative views of the Obama administration as having institutionalized illegality in the war on terror.

I’ve been torn about whether to respond to Brenner for reasons – as will become clearer below – of compassion. On the one hand, his criticism is unnecessarily snide and personal, e.g. “Savage seems oblivious of this reality — or else, does a good job of pretending so.” On the other hand, his critique is so riddled with basic errors – like Gilda Ratner’s Saturday Night Live character Emily Latella, who would rant on the basis of a misunderstanding, then say “nevermind”  – that I felt vicariously embarrassed for him. He seems to be a retired professor and has a page on the University of Pittsburgh website that lists various “papers,” although the most recent is from 2008 and several are just  Microsoft Word files with little prose poems about political figures.

Unfortunately, Brenner keeps revising and circulating this essay to various places, and two people have now forwarded it to me. So I’m going to just point out a few of Brenner’s most egregious factual misunderstandings.

1. Brenner keeps referring to this law, “The Patriot Act.” I do not think it means what he thinks it means.

He goes on and on for paragraphs about the Patriot Act (e.g., “The place of the Patriot Act in these lawyerly discourses is of central importance”) when the context shows that he is actually talking about the Authorization for Use of Military Force. Since the repeated mistake has stayed in as he has edited and re-edited versions of this, it was not a stray oversight. No one with a competent grasp of post-9/11 issues would make this mistake.

2. Brenner somehow totally missed a lengthy discussion of the CIA-Senate Intelligence Committee fight in the book.

He spends three paragraphs about how “Savage’s lengthy account has another, more glaring omission. He makes no reference to the White House/CIA hacking of the Senate Intelligence Committee computers in Fall 2014 at the time of the standoff over release of the Committee’s report on rendition and torture. … Is this not arguably an impeachable offense? Why does Savage totally ignore it?”

Chapter 10, Section 13 is titled “The CIA versus the Intelligence Committee,” and it may be found on pages 512-515. The foundations for that fight are foreshadowed in Chapter 4, Section 6, “Seeds of the Senate Torture Report,” on pages 114-116, and in Chapter 8, Section 6, “Hair on Fire (Executive Privilege II)” on pages 432-435.

3. Brenner complains that the book has no index, so it is “likely that most reviewers, therefore, have only a faint knowledge of its contents.”

The book has a 48-page index. As a page says in the spot where indexes go, after the endnotes, the full index is available online at charliesavage.com/powerwarsindex. This is also cited in the table of contents.

4. Brenner misses many examples of the law mattering in the Obama era.

He maintains that “Savage can cite only two instances” of “where the White House did not do what it wanted to do – or where the President felt compelled to override a contrary interpretation by his lawyers in order to act as he was inclined.” One was the Libya War Powers Resolution episode and the other is the fight over whether Al Shabab in Somalia was targetable as a group.

Brenner seems not to have noticed the issue of failing to close Guantanamo due to Congressional transfer restrictions, a topic that consumes more pages of the book than any other. There’s also not bringing Dacduq out of Iraq. Not targeting al-Farekh. Starting to provide notice to criminal defendants when they faced evidence derived from FISA Amendments Act surveillance. Not granting deferred action to undocumented parents of DREAMers. That’s before you get to places where the law pushed them away from their initial inclinations prior to any final decision, like not bombing the bin Laden compound. Here’s a blog entry listing even more, derived from the book.

5. Brenner writes that the Obama lawyers were just trying to come up with a baseball-like “in the vicinity” rule, except it was all secret memos and FISA court opinions the public had no access to, and that I seem “oblivious” of this reality.

Reflecting on the legitimacy of invoking merely “legally available” theories, especially where the law may be indeterminate or non-justiciable, and more broadly on whether the difference in lawyering between the Bush and Obama administration makes any difference in the end, is a central theme of the book. (See, e.g., pages 66-67, 151, 264, 647-648, 677-681, 687-688, 690-695).

The issue of “secret law” found in secret FISA court precedents and secret memos gets an entire chapter. (Chapter 9: “Secrecy and Secret Law,” found on pages 415-473.)

6. “Context is the big missing ingredient in Savage’s 700 plus page opus. Fear and dread permeated the government as it did the country. President Obama’s one fixed reference point from the day he entered office was to avoid another traumatic act of terrorism that likely would make him a one-term President.”

The first and third chapter is all about this establishing this context, although I situate it as kicking in viscerally with the Christmas 2009 underwear bombing attack, rather than Inauguration Day.

I could go on, but I think the point is made.

Edit: Bottom line up front: Several widely cited numbers about the FISA Amendments Act warrantless surveillance program — that circa 2011 the NSA was collecting >250 million communications annually, of which 9 percent came from upstream and 91 percent came from Prism — may be inaccurate.

_________

On Medium, Beatrice Hanssen, a writer whom I have not encountered before, has published a lengthy and interesting essay taking a closer look at Judge John Bates’ October 2011 ruling about the FISA Amendments Act and upstream collection — the one about Multi-Communication Transactions (MCTs) which the government declassified in August 2013 after the Snowden leaks.

[Background: a MCT is when multiple messages are bundled together and transmitted over the Internet as a unit. If even one of them has a targeted selector, like the e-mail address of a foreign suspect, the NSA’s Upstream collection system will get a copy of all of them — even though the rest of the messages have nothing to do with the target.]

The Bates opinion, and coverage of it, focused on the issue of wholly domestic messages that got sucked in via MCTs – there were several thousand of them. But Hanssen argues that an element of this has been underappreciated: various figures in footnote 32 of the Bates opinion suggest that the NSA is taking in about 2.65 million MCTs a year. While most of them do not have wholly domestic messages, this is nevertheless a potentially huge amount of collection – depending in part on what the average number communications bundled together into a single MCT is, which we don’t know. She argues that this means upstream surveillance conducted under the FISA Amendments Act is bulkier than generally portrayed. She also complains that the judges who dismissed the two big legal challenges to upstream, Jewel and Wikimedia, have conflated the distinction between transactions and communications when citing the Bates opinion, obscuring the volume of messages the NSA is ingesting.

That seems right to me. Still, once you get away from the special legal problems raised by the warrantless collection of wholly domestic messages on domestic soil, it strikes me as a probably less voluminous parallel to the issues raised by Executive Order 12333-authorized bulk collection. (Indeed it is possible that many or most of the MCTs would be redundantly captured by both systems.) Both raise the question of how we think about the privacy rights of “innocent foreigners,” as she puts it, as well, I would add, about incidental collection of one-end-domestic communications.

Beyond that, though, in thinking about her essay, it also occurred to me that some widely cited numbers derived from Bates’ opinion in common circulation  may be questionable. Specifically, Bates wrote that the NSA had told him that it collects “more than 250 million Internet communications” a year via the FISA Amendments Act, of which about 91 percent came from the Prism system and about 9 percent came from upstream. (Page 30-31)

Those figures have been echoed in a lot of places. Here they are in a Washington Post article, citing the opinion. The 250 million figure also shows up in the Privacy and Civil Liberties Oversight Board report about the FISA Amendments Act, also citing the opinion. And I cited them on page 217 of my book.

But is it possible that Bates was mixing apples and oranges? Or, rather, conflating “communications” – meaning discrete messages – with “transactions” – which, in MCT form, each contain many messages?

When we look closer at the total number of MCTs Hanssen draws our attention to, these figures start to look dubious. The footnote suggests that the NSA collects 26.5 million upstream transactions a year, of which 10 percent are MCTs, hence 2.65 million of those. If we assume that Bates was counting every transaction, singular or MCT, as one communication, the math kind of works: 26.5 million messages contributed by upstream is fairly close to 9 percent of >250 million total messages.

But once you think about the 2.65 million MCTs as each contributing multiple messages, the math starts to break down fast. When I asked ODNI a question about this during a briefing call with reporters when the ruling was released, the briefer used an example in which one MCT contained 15 discrete e-mails. That example, as Hanssen notes, would transform the 2.65 million MCTs into 39.75 million communications. Add in the other 23.85 million upstream transactions that were  single messages, and upstream has contributed 63.6 million messages to the annual haul — in this hypothetical.

We don’t know what the right average multiplier is — 15 could be too high, but it could also be too low. Still, it sure looks reasonable to conclude that either there were significantly more than 250 million total communications collected annually under the FISA Amendments Act circa 2011, or that upstream’s contribution to the whole was significantly more than 9 percent. Or both.

 

 

 

 

 

At Just Security, Jake Laperruque writes about the recently declassified Foreign Intelligence Surveillance Court opinion re-upping the FISA Amendments Act warrantless surveillance program for another year. That is the ruling in which Judge Hogan, after hearing constitutional concerns about backdoor searches by FBI agents working on ordinary criminal cases, reaffirmed that such searches are constitutional.

Jake is digging into other parts of the opinion and notes that Judge Hogan wrote that FBI agents may perform such a query even before opening an “assessment” — the bureau’s lowest level of criminal or national-security investigation. On Twitter, Jake and Marcy Wheeler were talking about this and I jumped in; Marcy says [update to emphasize: link is to a lengthy analysis she wrote about the same opinion on April 22; it also flagged the pre-assessment usage option] she is particularly concerned about language that says F.B.I. agents may do this not just to identify foreign intelligence or criminal information for their investigations or to decide whether to open an assessment, but for other, unspecified purposes (“are not limited to”).

I think something is knowable here that I want to explore in a greater than 140 characters. It doesn’t seem like “news,” but maybe will be interesting to specialists.

(Preliminary: Under the FISA Amendments Act, the government may collect, on domestic soil and without a warrant, messages of targeted non-citizens abroad – including when they communicate with Americans. A “backdoor search” is when government officials query the database of messages previously collected in that fashion using an American’s name or e-mail address as the search term. Some lawmakers want to require the government to get a warrant before using an American’s identifier as search term.)

Anyway, back in 2011, Valerie Caproni, then the FBI’s general counsel and now a Federal District Court judge in the Southern District of New York, revised the bureau’s Domestic Investigations and Operations Guide (basically, its manual of rules — agents call it the “DIOG”) in several ways that relaxed limits on agents’ powers. One was giving agents more leeway to search existing law enforcement databases without having to open an assessment first. From an article in June of that year about the forthcoming changes:

Some of the most notable changes apply to the lowest category of investigations, called an “assessment.” The category, created in December 2008, allows agents to look into people and organizations “proactively” and without firm evidence for suspecting criminal or terrorist activity.

Under current rules, agents must open such an inquiry before they can search for information about a person in a commercial or law enforcement database. Under the new rules, agents will be allowed to search such databases without making a record about their decision.

Mr. German said the change would make it harder to detect and deter inappropriate use of databases for personal purposes. But Ms. Caproni said it was too cumbersome to require agents to open formal inquiries before running quick checks. She also said agents could not put information uncovered from such searches into F.B.I. files unless they later opened an assessment.

I haven’t thought about that article for a long time, but this Twitter exchange reminded me of it. The FBI completed the new manual in October 2011 and later released a redacted version of it, so we can see what this change regarding searches of databases looked like. In post-Snowden hindsight, relaxing limits on queries of FISA Amendments Act data was clearly a part of it. Specifically, the manual had a new section for “Activities Authorized Prior to Opening An Assessment,” which indeed includes permitting searches of law enforcement “records or information.”

If we turn to Section 18.5.2, we see what “records or information” means in greater detail. It means performing a probably federated query across all law enforcement databases, explicitly including “raw FISA collections.”

The discussion about restricted access to certain records may at first glance seem like agents do not get to query raw FISA collections, but “access” is is instead about needing permission to read any “hits” returned from a query. An endnote in Power Wars explains how this works ** :

So. We know the FBI first gained access to its own repository of the raw fruits of FISA Amendments Act surveillance in October 2009, when the intelligence court permitted it to begin keeping its own copy of certain Prism system data to process for its own ends, rather than just serving as a conduit for it to flow from webmail companies to the NSA.* (The NSA doesn’t share with the bureau raw access to the other two types of FISA Amendments Act data – upstream Internet and international phone calls.) At that point, agents could perform “backdoor” queries for open assessments and preliminary and full investigations.

Now we can see more clearly that in October 2011, the FBI granted agents greater leeway to search through that information — even when they were not actively investigating anything, but rather whenever they are “initially processing a complaint, observation, or information.” Whatever that means.

On the other hand, Judge Hogan’s opinion also highlighted this section of the PCLOB report on the FISA Amendments Act (from two GOP members of the Privacy and Civil Liberties Oversight Board’s separate statement). It suggests that in practice, this may all be much ado about nothing when it comes to backdoor searches for criminal-case purposes, as opposed to national-security investigations:

Judge Hogan ordered the Justice Department to begin reporting to the Foreign Intelligence Surveillance Court every time agents working on non-security investigations read Americans’ private messages following a backdoor search. Perhaps the Office of the Director of National Intelligence will be kind enough to declassify redacted versions of any such filings or a future court opinion summarizing them, so the rest of us can know, too.

—

* As Judge Hogan pointed out, the FBI doesn’t get all raw Prism data, just collection from tasked selectors that are deemed relevant to one of its open investigations. That would presumably include anything related to terrorism, since it has open-ended “enterprise” investigations into groups like Al Qaeda, but perhaps not intelligence collection related to more run-of-the-mill diplomatic espionage.

** [EDIT TO ADD THIS]

It’s worth including that Judge Hogan discusses this process in his ruling. The context is that the FBI included new language in the minimization rules this round saying that queries that do not return direct access to FISA Amendments Act intercepts will not count as a “query,” even if they do return a notification of a “hit.” Judge Hogan was fine with that, and styled this description as a clarification rather than a change:

The government has added language to the querying provisions of the FBI Minimization Procedures to clarify that a search of an FBI storage system containing acquired information does not constitute a “query” within the meaning of the procedures if the user conducting the search does not receive access to unminimized Section 702-acquired information in response to the search. In such cases, the query results include a notification that the queried dataset contains Section 702-acquired information responsive to the query.

The new language also clarifies what actions an agent or analyst without appropriate training and access to Section 702 information may take upon receiving a positive “hit” indicating the existence of (but not access to) responsive information. Such a user may request that FBI personnel with Section 702 access rerun the query if it otherwise would be authorized by the FBI Minimization Procedures and if the request is approved by both the user’s supervisor and by a national security supervisor. Generally speaking, the user without access to FISA-acquired information can be provided with access to information contained in the query results only if such information reasonably appears (based on the review of FBI personnel with authorized access to Section 702-acquired information) to be foreign intelligence information, to be necessary to understand foreign intelligence information, or to be evidence of a crime. If it is “unclear,” however, whether one of these standards is met, “the user, who does not otherwise have authorized access may review the query result solely in order to assist in the determination of whether information contained within the results meets those standards.” According to the government, such situations are “very rare.”

(From pages 28-29; citations and footnotes omitted.)

After the Snowden leaks, government surveillance defenders’ best and most often-cited example about the value of post-9/11 electronic spying programs was the discovery of Najibullah Zazi in 2009, just days before an intended bombing of the New York City subway.  Zazi, who had trained with Al Qaeda in Pakistan, had made the mistake of sending an email to a Qaeda-associated e-mail account that the government had targeted for warrantless surveillance under the FISA Amendments Act, and the plot was foiled.

Another thing that happened after the Snowden leaks was that it came to wider light that national security prosecutors had been concealing from defendants the fact that they faced evidence derived from FISA Amendments Act surveillance. As a result, no one knew he had standing to challenge the constitutionality of that law. Solicitor General Donald Verrilli, who had told the Supreme Court that the Justice Department had a legal obligation to notify defendants when they faced such surveillance, forced through a change in that practice, and the Justice Department began notifying a handful of defendants. See Power Wars chapter 11 (Institutionalized: Surveillance 2009-2015), section 8 (Evidence Derived from Warrantless Surveillance).

But it never notified Zazi, which was puzzling. When the Privacy and Civil Liberties Oversight Board issued its big report on the program in July 2014, Marcy Wheeler observed on Emptywheel that it had seemingly overlooked some examples of defendants who looked like maybe they should  have received notice but had not. Zazi was the clearest cut example of these, given how much the government was openly saying that FISA Amendments Act surveillance had specifically prompted the investigation into him.

In writing an article published tonight about several recent notices to defendants, I learned that the government, when no one was paying attention, had super-belatedly notified Zazi in July 2015. It was no secret that his email had been incidentally intercepted under that program, so this isn’t exactly news – especially since he’s not challenging it. But there it is.

Bonus: Another little-noticed notice, if you will, was in a case arising in the Northern District of Ohio – notices went out last December. When I reconstructed the meeting at which Deputy Attorney General Jim Cole decided to start notifying defendants for that section of Power Wars, I learned that the U.S. Attorney for the Northern District of Ohio, Steven Dettelbach, was one of the federal prosecutors who called into the meeting. That was mysterious at the time; there was an obvious reason why every other U.S. attorney participating in the meeting had a reason to be there. Knowing this case was in the works makes it make sense that Dettelbach was invited to weigh in, too.

Here’s the Zazi notice:

I end the second chapter on the once-hidden history of surveillance 1978-2015 in Power Wars with a behind-the-scenes reconstruction of the fight to enact the USA Freedom Act and then a forward-looking focus on the “backdoor search” loophole, whereby government agents search private communications by Americans that the NSA gathered “incidentally” and without a warrant:

[T]he Freedom Act fight had demonstrated that a bipartisan House majority, combined with a “sunset” deadline that risked letting the entire law expire if no bill at all passed, could overcome resistance. The FISA Amendments Act was set to expire on December 17, 2017. …

Congress may yet impose further checks and balances on when government agents may search surveillance databases for incidentally collected private communications of Americans — regardless of which legal authority the government used to collect them. But as Obama’s time in power neared its end, there was little sign that he would be the president who ushered in that change.

That fight began to take shape today when 13 members of the House Judiciary Committee from both parties sent a bipartisan letter to James Clapper, the director of national intelligence, asking him to answer what has been one of the most significant open questions about the National Security Agency’s warrantless surveillance program: how many private messages of Americans it sweeps up under the FISA Amendments Act.

The government has been reluctant to provide that information, saying it is too difficult to come up with a reliable estimate. But with the FISA Amendments Act — also known as Section 702 — expiration coming, the lawmakers made clear that they think they have leverage to force the executive branch to be more forthcoming.

In the House of Representatives, it will fall first to our Committee to determine whether Congress should extend Section 702 beyond its scheduled sunset on December 31, 2017. You have willingly shared information with us about the important and actionable intelligence obtained under these surveillance programs. Now we require your assistance in making a determination that the privacy protections in place are functioning as designed.

Eight Democrats signed the letter, including Rep. John Conyers of Michigan, the ranking member of the Judiciary Committee. Six Republicans did, including Rep. James Sensenbrenner of Wisconsin, a former chairman of the committee who played a major role in the enactment last June of the USA Freedom Act, ending the NSA’s bulk collection of domestic calling records under a secret interpretation of the Patriot Act.

The Bush administration started both the warrantless surveillance and bulk data collection programs as part of its then-secret Stellarwind program after the terrorist attacks of Sept. 11, 2001. In 2008, Congress legalized a form of the warrantless surveillance program by enacting the FISA Amendments Act. It permits the government, on domestic soil, to collect international e-mails and phone calls of non-citizens abroad – even when its targets communicate with Americans.

Some people don’t want this program to keep going at all; the A.C.L.U. has been a big critic, in court and in debate. But it doesn’t seem particularly realistic that majorities exist in Congress who will want to roll it back. However, there is also dispute over what rules should apply to private messages of Americans when the program has “incidentally” collected them. Earlier this week, the government declassified a ruling by the Foreign Intelligence Surveillance Court concluding that it is constitutional for F.B.I. agents, working on criminal cases, to search for Americans’ names and e-mail addresses in the program’s repository.

Some lawmakers want to require the F.B.I. to get a warrant before conducting such a search, and the House has twice voted for amendments to do that, only to have leadership drop the amendment in conference with the Senate. But the public debate over that proposal has been impaired by a lack of information about how many American messages the government is collecting without a warrant. (The N.S.A. also incidentally collects Americans’ communications when the agency is operating abroad under Executive Order 12333 and is permitted to vacuum up content in bulk without targeting anyone; the volume of that collection is also unknown. Members of Congress so far don’t seem particularly aware of this wrinkle.)

The letter is not the first time the Obama administration has been asked to shed light on the scale of incidental collection. For years, Senator Ron Wyden, Democrat of Oregon, has asked for data on the question. And in 2014, the Privacy and Civil Liberties Oversight Board, an independent watchdog agency, recommended in a report about the warrantless surveillance program that the government annually say how many phone calls and e-mails involving Americans it has intercepted.

But the government has declined, arguing that it would be too difficult and resource-intensive to come up with an exact count.  In a February 2016 follow-up report, the privacy board said that the N.S.A. had “considered various approaches” to carrying out its recommendation, it had also “confronted a variety of challenges” to doing so.

Still, the letter sent by the lawmakers on Friday pointed out that the N.S.A. has already shown that it can study a sampling of raw intercepts to get a “rough estimate” of what is in them because it did so in 2011 in response to a problem that arose before the Foreign Intelligence Surveillance Court.

“We acknowledge that this estimate will be an imperfect substitute for a more precise accounting—but surely the American public is entitled to some idea of how many of our communications are swept up by these programs,” they wrote.

 

 

Yesterday, Brian Egan, the Obama administration’s recently confirmed State Department legal adviser (and former National Security Council legal adviser), gave a speech at the annual American Society of International Law conference about “International Law, Legal Diplomacy, and the Counter-ISIL Campaign.” Egan’s speech was an excellent distillation of the Obama administration’s argument for why it thinks everything it has been doing in counterterrorism strikes, against the Islamic State and otherwise, has complied with international law – something that some scholars dispute when it comes to certain novel questions about imminence, sovereignty, and other issues. (Marty Lederman has a good write-up summarizing its key points at Just Security.) I happened to be sitting near the microphone, so asked him two quick questions during Q&A — one seeking clarity about the status of tribal Pakistan for battlefield targeting rules, and one seeking clarity about how the government makes collateral damage assessments. This post explains the issues, and why one of his answers was clear but the other was not. I can’t find video of the speech posted anywhere, but I’ve embedded some Tweets.

Update: Here is the video; our exchange starts just after the 43 minute mark.

State Legal Advisor Brian Egan addressing #ASILAnnual pic.twitter.com/1z0irH01xo

— Heather Brandon (@HeatherEBrandon) April 1, 2016

Brian Egan just said he’s going to take questions!! #ASILAnnual

— Heather Brandon (@HeatherEBrandon) April 1, 2016

First up: @charlie_savage #ASILAnnual pic.twitter.com/EjFsO8pPhQ

— Heather Brandon (@HeatherEBrandon) April 1, 2016

Thanks to @charlie_savage for his question at #ASILAnnual to @StateDept Legal Adviser Brian Egan.

— ASIL (@asilorg) April 1, 2016

QUESTION ONE: IS TRIBAL PAKISTAN A HOT BATTLEFIELD WHERE THE PPG DOES NOT APPLY?

In one part of his speech, Egan talked about the May 2013 Presidential Policy Guidance (PPG), which imposed tighter standards on counterterrorism strikes away from hot battlefields, like like requiring near certainty that there will be no civilian casualties – a higher limit than international law requires under the law of armed conflict or self defense. Egan noted that this does not apply in places where there is a zone of active armed conflict:

The phrase “areas of active hostilities” is not a legal term of art—it is a term specific to the PPG. For the purpose of the PPG, the determination that a region is an “area of active hostilities” takes into account, among other things, the scope and intensity of the fighting. The Administration currently considers Afghanistan, Iraq, and Syria to be “areas of active hostilities,” which means that the PPG does not apply to operations in those States.

It has long been my understanding that the PPG did not apply to tribal Pakistan – the FATA region along the border with Afghanistan, which the Pakistani government does not really control. That’s important because the overwhelming majority of CIA drone strikes have taken place there, including its campaign, since 2008, of “signature” strikes aimed at groups of men who look like militants but whose identities are not known, raising the risk of civilian deaths. The purpose for that campaign is not just to take out high level Al Qaeda leaders, but also run-of-the-mill insurgents who stage attacks on U.S. troops across the border in Afghanistan.

So I asked Egan whether he could clarify if tribal Pakistan counted as an extension of Afghanistan, where the PPG does not apply, or as a separate place that is not an area of active hostilities, where the PPG does apply?

Egan clearly indicated that the border region, on the Pakistani side, was still part of the battlefield, so PPG limits did not apply there.

Egan: Pakistan border region part of zone of active hostilities. #ASILAnnual

— Heather Brandon (@HeatherEBrandon) April 1, 2016Update:

Update: Now that the video is available, here is the exact exchange:

Q) One, on your clarification of the ‘zone of active hostilities’ and where the PPG does and does not apply, does tribal Pakistan count as an extension of Afghanistan for the purpose of the PPG not applying, or does it count as a ‘not hot battlefield’ where the PPG does apply?

A) With respect to the first, the question of ‘area of active hostilities,’ when I mentioned Afghanistan, I think sometimes others have referred to the Afghanistan-Pakistan border region as being part of what we talk about with respect to ‘Afghanistan.’

QUESTION TWO: WHAT CRITERIA DOES THE U.S. USE WHEN ASSESSING WHETHER THERE WAS ANY COLLATERAL DAMAGE AFTER A STRIKE?

In another part of his speech, Egan talked in some detail about the various factors the government uses to decide whether a potential target would be a lawful object of attack, as opposed to a civilian who is not taking part in hostilities. Along the way, he made the comment I’ve bolded here so you can see it in context:

In many cases we are dealing with an enemy who does not wear uniforms or otherwise seek to distinguish itself from the civilian population. In these circumstances, we look to all available real-time and historical information to determine whether a potential target would be a lawful object of attack. To emphasize a point that we have made previously, it is not the case that all adult males in the vicinity of a target are deemed combatants. Among other things, the United States may consider certain operational activities, characteristics, and identifiers when determining whether an individual is taking a direct part in hostilities or whether the individual may formally or functionally be considered a member of an organized armed group with which we are engaged in an armed conflict. For example, with respect to membership in an organized armed group, we may examine the extent to which the individual performs functions for the benefit of the group that are analogous to those traditionally performed by members of State militaries that are liable to attack; is carrying out or giving orders to others within the group to perform such functions; or has undertaken certain acts that reliably indicate meaningful integration into the group.

This is a reference to controversy over an assertion first reported by my colleagues Scott Shane and Jo Becker in a deeply reported 2012 article they wrote in the New York Times about Obama and drone strikes:

…Mr. Obama embraced a disputed method for counting civilian casualties that did little to box him in. It in effect counts all military-age males in a strike zone as combatants, according to several administration officials, unless there is explicit intelligence posthumously proving them innocent. …

This counting method may partly explain the official claims of extraordinarily low collateral deaths. … The C.I.A. accounting has so troubled some administration officials outside the agency that they have brought their concerns to the White House. One called it “guilt by association” that has led to “deceptive” estimates of civilian casualties.

“It bothers me when they say there were seven guys, so they must all be militants,” the official said. “They count the corpses and they’re not really sure who they are.”

After that article came out, various administration officials pushed back, saying that this part was simply wrong. But last October, when The Intercept published some leaked documents about JSOC drone strikes (so they involved the military, not the C.I.A.), one of the most important details  seemed to dovetail with it. The document was a presentation about a 13-month campaign in northeastern Afghanistan from 2012 to 2013 called Operation Haymaker. There had been 56 kinetic strikes, killing 35 targets (“JP,” in the slidedeck, short for”jackpots,” lingo for a specifically intended target) and 219 other people. All 219 other people killed because they were in the strike zone were deemed to have been combatants (“EKIA,” meaning enemies killed in action). None of the 219 were deemed civilian casualties/collateral damage or deemed to be status unknown.

While Egan’s speech seemed to frame the issue as being about ex ante decisionmaking — if we can target X, may we also target that other guy Y because he is an adult male nearby? — I had understood the issue to be more about after-the-fact assessments. I pointed that out as well as the leaked drone strike data, and asked Egan if it were not the case that all dead adult males in the vicinity of a target are presumed to have been combatants in the absence of additional information about who they were, then how do collateral damage assessments work instead?

@charlie_savage from @nytimes asks Egan @StateDept clarification on how state defines combatents & collateral damage https://t.co/zf5xLOTpDq

— Patricia G. Ferreira (@Pat_Galvao) April 1, 2016

A lot of people would really like to know the answer to that.

Wow. Great q for Brian Egan at #ASILAnnual came from Charlie Savage @nytimes about calculations of “collateral damage”

— bechamilton (@bechamilton) April 1, 2016

Egan reiterated that the government did not simply presume that any adult male near a target in a strike zone to be a combatant, instead taking many factors into play.

Egan: Military age males NOT automatically considered combatants. #ASILAnnual

— Heather Brandon (@HeatherEBrandon) April 1, 2016

But he didn’t specify what those factors are.  We can guess at some obvious ones – for example, did the drone, looking down at the site, see the mystery guy holding a weapon? did he seem to be following the target’s orders? But the core of issue, which remains unknown, is what the default presumption is when there is no information other than that there is an extra dead man down there, identity unknown. So his answer to that one — probably through no fault of his own, since a lot of this stuff is classified and it was a public setting — was not really satisfying.

Update: Here is the verbatim exchange from the video:

Q) And secondly, on the military-aged males thing. Now I haven’t written about that but my colleagues at the Times first wrote about that in 2012, and I immediately began hearing push-back from people in positions not unlike you’ve held in recent years that that wasn’t correct. But then it seemed to have been confirmed in the leaked drone papers published by the Intercept. And my understanding is it’s less about well if someone if someone is a military-aged male near a target then they are themselves a valid target, an ex ante calculation, but it’s more about after the fact, how do we calculate collateral damage? If it’s the case that some military-age males are dead near the strike zone and that is all that is know about them, are they counted as ‘collateral damage’ by virtue of that, or are they counted as ‘enemies killed in action’ by virtue of that? And I would note that the drone papers showed that in 13 month period of JSOC targeting, there were 35 targets killed and 219 bystanders killed as part of those targeting and all 219 were categorized as enemies killed in action.

A) Secondly on the issue of military-age males. It is not the case that a military-age male is considered a combatant solely by virtue of his being a military-age male. And I think that would apply both to assessments prior to a strike and assessments taken, after-action reports after a strike. So there are a variety of factors that are looked at in both cases. But it’s not that one’s military-age male status on its own would suffice.

 

Thanks @charlie_savage for asking Brian Egan about US collateral damage assessments. Unfortunately we still don’t know what the answer is…

— Shiri Krebs (@ShiriKrebs) April 2, 2016

I wrote a half-reported, half-analysis article in the New York Times today that brings to public light a novel interpretation of the 2001 Congressional Authorization for Use of Military Force (AUMF) against the 9/11 perpetrators. The Obama administration believes it authorized the massive American airstrike in Somalia that killed 150 alleged low-level Shabab fighters — even though the government still does not consider the Shabab, as a group, to be covered by the 9/11 war authorization.

Readers who are interested in the ways in which the nearly 15-year-old 9/11 war authorization keeps getting stretched to erode limits on presidential war-making powers — a push that is fueled, in a vicious cycle, by Congressional fecklessness and paralysis — can look to two parts of Power Wars for insider backstories that help explain what is going on.

Chapter Six (“Targeted Killing”), Section Sixteen (“Is the United States at War with al-Shabaab?”)

The story of the argument as it erupted early in the Obama administration’s first term. The primary poles were Harold Koh, then the State Department legal adviser, and Jeh Johnson, then the Pentagon general counsel. Some of this material first came to public light in a Times story I wrote in September 2011 and in Daniel Klaidman’s 2012 book, Kill or Capture, but I had figured it out even more by the time of writing Power Wars and so  was able to fill in blanks, add a previously unknown twist about a specific targeted killing dispute between Koh and Johnson, and make the whole thing more coherent and understandable. (pages 274-279 in the hardcover edition)

Chapter Twelve (“The Tug of War”) Section Fifteen (“Extending the 9/11 War”)

The story of Obama’s decision to start bombing the Islamic State in the late summer of 2014 and how and why he came to say that he already had all the legal authority from Congress he needed to wage that fight from the 2001 9/11 war authorization, even though the Islamic State was Al Qaeda’s enemy. The description of the internal deliberations and the choice put to Obama — by Neil Eggleston, his White House counsel, and Brian Egan , then the National Security Counsel legal adviser and now the State Department legal adviser — about whether to make the controversial claim that the Islamic State war was part of the Al Qaeda war or whether to say it was a new and different war that would eventually need Congressional authorization, has not appeared elsewhere. (pages 685-690)

 

 

Today the NYT published a news analysis article I co-wrote with my colleague Scott Shane, our first team-up since he went on book leave for Objective Troy and then I went on book leave for Power Wars. It makes the case that much of the political rhetoric about Obama’s Guantanamo prison closure plan is garbage. Most of the article is devoted to explaining how numerous claims put forth by Obama’s Republican critics are demonstrably false. But the article also dings Obama for putting forth an argument that collapses under scrutiny as well. Over at Just Security, Marty Lederman (who helped craft the Obama administration’s national security legal policy at the Office of Legal Counsel in 2009-10) has put up a post that praises most of the article but disputes the part about Obama’s argument, suggesting that we have engaged in false equivalence. This post is a rebuttal to Lederman .

Specifically, the article knocks Obama for arguing that the United States should carry out his closure plan because the continued operation of the prison at Guantanamo is “contrary to our values.” We observed:

Yet a key argument Mr. Obama makes for shuttering the prison in Cuba — that its continued operation is contrary to “our values” — crumbles upon examination, too. His plan for closing it would not eliminate the main human rights complaints, because the United States would still be holding several dozen prisoners in perpetual detention without trial and force-feeding those who go on a hunger strike. It would just do that in a prison on American soil. …

Bowing to pragmatism, Mr. Obama decided those detainees [who were untriable but deemed too dangerous to release] would have to remain locked up without trial for the time being. He also accepted the principle that some detainees would be tried by military commission, not in civilian court, in part because the looser military rules of evidence would allow trials for more of those held.

From that moment, his plan could no longer be a clarion call to restore a pre-Sept. 11, 2001, understanding of the rule of law and to vindicate human rights. Instead, the administration has offered a hodgepodge of practical considerations, like saving money and rebranding detention to leave behind the toxic image of shackled prisoners in orange jumpsuits from Guantánamo’s early years.

In his post, Lederman acknowledges that under Obama’s closure plan, the United States would still be holding the some of the same men in indefinite detention without trial (and forcefeeding those who protest via hunger strike), just in a different location. He says Obama does not deny that, but he maintains that the president doesn’t think using law-of-war detention is a good thing either, that Obama has prevented this practice from growing, and that Obama would like to end it if he saw any responsible way to do so.

To this point we agree. But Lederman goes on to argue that Shane and I missed the mark in criticizing Obama for nevertheless insisting, as one of the core arguments that he musters in support of carrying out his Gitmo prison closure plan, that the continued operation of the Gitmo prison is “contrary to our values.”

What about the President’s claim that continuing the GTMO operation is “contrary to our values”? Savage and Shane’s account does not call that claim into question at all, let alone make it “crumble.” In a recent veto statement, the President also asserted that “the continued operation of this facility weakens our national security by [i] draining resources, [ii] damaging our relationships with key allies and partners, and [iii] emboldening violent extremists.” Savage and Shane do not suggest that these claims are mistaken, let alone show that they crumble upon examination; nor do they try to show that moving the final few dozen detainees to the United States would not diminish each of these three harmful costs of keeping GTMO open.

This is a non-sequitur. Lederman asserts that we do not show how Obama’s “our values” claim is empty, and then he goes on to list three pragmatic claims Obama makes that we did not quarrel with. But Lederman’s critique makes sense only if Obama’s invocation of “our values” is redundant. It has to be surplusage, a mere reiteration of Obama’s claim that Gitmo’s problematic past during the Bush years — when interrogators used torture and other abusive tactics there, when the U.S. government proclaimed it a law-free zone where courts had no jurisdiction and the Geneva Conventions did not apply — has left a negative lingering impression that, as long as that particular facility remains open, causes frictions with our allies and aids our enemies. Lederman is denying that Obama’s invocation of “our values” has anything to do with the human rights and rule-of-law concerns raised by critics of the ongoing detention practices at Gitmo — those who oppose the continued use of indefinite law-of-war detention without trial in the essentially endless war on terror, even if detainees today are not tortured and may bring habeas corpus lawsuits.

The problem is that Obama’s rhetoric sweeps more broadly than Lederman’s limited account. In 2013, for example, when Obama vowed to reinvigorate his moribund closure plan amid a widespread hunger strike and mass forcefeeding operations, he said this:

The idea that we would still maintain forever a group of individuals who have not been tried, that is contrary to who we are, it is contrary to our interests, and it needs to stop.  … I think all of us should reflect on why exactly are we doing this? Why are we doing this? We’ve got a whole bunch of individuals who have been tried who are currently in maximum security prisons around the country. Nothing has happened to them. Justice has been served. It’s been done in a way that’s consistent with our Constitution, consistent with due process, consistent with rule of law, consistent with our traditions.

That’s not about getting further away from the toxic image of past misdeeds that have long been corrected. That’s expressing opposition, on grounds of American values, to continuing to hold people in indefinite detention without trial going forward. This sentiment just cannot be coherently reconciled with the fact that his plan to close Gitmo was and is to imprison some of the same men indefinitely and without trial, just in a different prison.

Similarly, in Obama’s remarks when he unveiled the “plan” last month, he made clear that his closure plan would achieve those three pragmatic advantages Lederman cites — which include the two ways that rebranding would better capture benefits from the already-completed correction of past misdeeds. But Obama then went on to add a “values” argument that is clearly a fourth claim, something on top of that:

[The Gitmo prison is] counterproductive to our fight against terrorists, because they use it as propaganda in their efforts to recruit. It drains military resources, with nearly $450 million spent last year alone to keep it running, and more than $200 million in additional costs needed to keep it open going forward for less than 100 detainees. Guantanamo harms our partnerships with allies and other countries whose cooperation we need against terrorism. When I talk to other world leaders, they bring up the fact that Guantanamo is not resolved.

Moreover, keeping this facility open is contrary to our values. It undermines our standing in the world. It is viewed as a stain on our broader record of upholding the highest standards of rule of law. As Americans, we pride ourselves on being a beacon to other nations, a model of the rule of law.

Look. Obviously Obama doesn’t like long-term law-of-war detention without trial and in a perfect world, he would prefer to end it. That’s why he’s refused to use it as a disposition option for newly captured terrorism suspects and has set up a process whereby it may eventually wither away under a successor presidency, in contrast to the Republican view that it should be used routinely for new captures. But having accepted it as a legitimate tool to be used when national security officials deem it necessary to keep holding a legacy Gitmo detainee who cannot be tried, Obama cannot coherently suggest that his closure plan would bring an end to detention practices that are “contrary to our values.” He’s got three other rationales to support his plan that more or less make sense, but for some reason he insists on gilding the lily with this argument, which doesn’t.

Last fall, I attempted to get Donald Trump to answer some questions about his understanding of executive power. Like most candidates this cycle, he declined to answer my questions. That was particularly notable given his vow to bring back torture:

DONALD J. TRUMP has declared that as president, he would bring back waterboarding “and more” as options for interrogating terrorism suspects. But anti-torture laws forbid that. Does he believe the Constitution would empower him, as commander in chief, to override those limits? …

As the Iowa caucuses and New Hampshire primary approach, voters appear unlikely to know the answers to such questions. Both Mr. Trump and Mrs. Clinton — the leading candidates for the Republican and Democratic nominations — declined to answer questions submitted by The New York Times about their understanding of the scope and limits of the powers they would wield if elected.

Trump has continued to raise eyebrows in this area, including with his vow to commit another war crime: ordering the military to kill the children and other family members of terrorists in reprisal strikes. General Michael Hayden, the former NSA and CIA director* has said that the armed forces would refuse to obey such an order. At the Fox News debate last night, Bret Baier asked about the idea that the military would refuse to obey his “illegal” orders, but Trump insisted they would do as he said.

They won’t refuse. They’re not going to refuse me. Believe me. … I’m a leader. I’m a leader. I’ve always been a leader. I’ve never had any problem leading people. If I say do it, they’re going to do it. That’s what leadership is all about.

Today, the Trump campaign released a statement in which he seemed to back off:

I feel very, very strongly about the need to attack and kill those terrorists who attack and kill our people. I know people who died on 9/11. I will never forget those events. I will use every legal power that I have to stop these terrorist enemies. I do, however, understand that the United States is bound by laws and treaties and I will not order our military or other officials to violate those laws and will seek their advice on such matters. I will not order a military officer to disobey the law. It is clear that as president I will be bound by laws just like all Americans and I will meet those responsibilities.

I think it’s important to note that, for reasons unrelated to Trump, there may still be some wiggle room lurking here. During the Bush-Cheney administration, government lawyers repeatedly made the argument that the president, when acting as commander-in-chief, has constitutional power to lawfully disregard laws and treaties — including a torture ban and the international laws of war. If you take that view, then the president has a “legal power” to fight terrorist enemies in a way that contradicts a statute or a treaty without it meaning that they are disobeying it or violating it exactly — that is to say, those are binding rules under normal circumstances, but can be, er, trumped, in which case they are no longer binding. By acting on those theories, the Bush administration converted them into historical precedents that will be available to all future presidents to cite, no matter who they may turn out to be and what they may choose to do with those powers.

This was the thesis of my first book, Takeover, which concluded:

The expansive presidential powers claimed and exercised by the Bush-Cheney White House are now an immutable part of American history — not controversies, but facts. The importance of such precedents is difficult to overstate. As Supreme Court justice Robert Jackson once warned, any new claim of executive power, once validated into precedent, “lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.”
Sooner or later, there will always be another urgent need.

By the way, I think Trump’s overt argument that torture a) works and b) is justified in the war on terrorism, without hiding behind euphemisms, is perversely salutary. It’s yet another example of him saying what a certain group of people clearly think but won’t say out loud or directly. He’s lifting a veil and enabling us to get more directly at what the real issues are.

_________________

* I’m reading Hayden’s new book, Playing to the Edge: American Intelligence in the Age of Terror, which is interesting so far. Perhaps because he had to submit the manuscript to the pre-publication review board to avoid discussing classified information, there are places where I think its readers would not understand what he is dancing around without also having read the first surveillance chapter in Power Wars. Of course, I would say that, wouldn’t I!

Last week, The Weekly Standard published a lengthy review of Power Wars: Inside Obama’s Post-9/11 Presidency by Gabriel Schoenfeld. I was grateful for the engagement with the book, though of course as with any review, I agreed with and liked some parts of it more than others. He and I had a private exchange about one part of what he wrote, and I decided I wanted to say publicly what I had explained to him. It centers on a comparison of Power Wars to my book about the Bush administration, Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy.

Schoenfeld observed:

From the wealth of material assembled here, one could readily construct a withering indictment of Barack Obama’s handling of national security matters. But constructing such an indictment is hardly Savage’s purpose. Quite the contrary: If Savage hangs out a great deal of team Obama’s dirty laundry, he does so not to disparage the administration but as part of a cleansing process. Time and again, Savage presents a bill of particulars, and time and again he proceeds to defend the president and his men from the charge sheet. To be sure, he is unsparing in acknowledging abundant shortcomings of Obama and his aides, but by offering arguments and counterarguments, and often tracing failings to spurious Republican attacks and reflexive congressional resistance, he constructs the best possible case for them nonetheless.

Savage’s effort to be scrupulously fair to the Obama administration is both impressive and admirable. It also stands in sharp contrast to his consistently uncharitable assessment of the Bush administration in his previous book, Takeover (2007), which warned of “an emerging threat to the checks and balances devised by our Founding Fathers” and decried the “subversion of American democracy.” Whatever political predispositions explain the discrepancy between the prosecutorial tone of Savage’s first book and the excusatory stance of the second, Power Wars definitely deserves commendation for its candor, even if it is not consistently convincing.

So, even as Schoenfeld acknowledges that Power Wars is unsparing in surfacing Obama’s dirty laundry, he also suggests that I let political bias color my presentation of this material in comparison to my attitude eight years ago about the Bush administration’s shortcomings. Two things about this, and then a story about what someone in government told me about the difference between the two books:

First, neither of the two quotes that Schoenfeld cites as representing Takeover – that it warned of “an emerging threat to the checks and balances devised by our Founding Fathers” and decried the “subversion of American democracy” – are inside that book. The first is from the dust jacket and the second is from the subtitle – in other words, they are the marketing, not the content. I have long disliked both, finding them to be more strident than the tone of the book I wrote. As a second-time author this time around, I was more aggressive with Little Brown in keeping the tone of such things for Power Wars more neutral, in line with the tone of the content. Perhaps too much so – maybe its more aggressive subtitle and jacket is a factor in why Takeover reached the bestseller list and Power Wars has not, even though the latter is, I think, a better book.

That said, however, I do think it is accurate that the tone of Takeover (the actual book) is somewhat more prosecutorial than Power Wars in the following sense: a lot of Takeover’s material is framed as proving a case: that the Bush administration, especially during its Cheney-dominated years, was driven by an ideological desire to expand executive power as an end to itself – an agenda stemming from Cheney’s experiences in the Ford administration after Watergate and Vietnam and during the Church Committee investigation, when Congress was curbing the “imperial presidency” that had grown up during the early Cold War. That is the thesis of the book, and it recurs over and over: I describe this or that or the other episode, and I show how it, too, fit within that master narrative. Here’s what they wanted to do, here’s why, and here’s how that explains both what they did and how they went about doing it.

Power Wars is different because the Obama administration has been more of a muddle, both as a government and as the subject of a book. Obama and his team did not come into office with an overarching agenda to expand executive power, or to do anything else in the national security policy realm that so easily boils down to snappy thesis. They had a lofty, but vague, agenda that they wanted to fight terrorism pragmatically, while obeying a mainstream understanding of the rule of law — unlike Bush. But because the law in this area is often indeterminate, even without invoking exotic constitutional theories of preclusive commander-in-chief powers like Bush’s team, there turned out to be a lot of room for them to disagree with each other or for critics to disagree with their approach – even before you get to episodes where arguably they fell short of their own standards. As a result, while  the stories in the book are inherently interesting and important in and of themselves, they don’t all push in the same direction. So there is less of that recurring thesis-proving, prosecutorial-style master narrative framing – less see, they were doing X yet again!

A story: a few months ago I had a conversation with a career government official who works on national security legal policy issues and who had read both books. This official told me that Takeover was a valuable history of what happened and why in the immediate years following 9/11. But, the official said, because a big part of that explanation turned on Cheney’s idiosyncratic personal/intellectual history and outsized role for a VP, and how the combination of those two things had bestowed the Bush-Cheney administration with its peculiar fixations, the story of that moment was a little weird – and therefore the book’s insights were often limited to that particular moment, when those particular officials were in power.  By contrast, this official said, Power Wars captures the decision-making environment and what it is like to grapple with national security legal policy dilemmas inside a “normal” administration, in a way no book has done before. For that reason, lessons and insights of general applicability can be drawn from it; the official, flatteringly, said people coming into the government to work on such issues, including in future “normal” GOP administrations, should be required to read Power Wars in order to understand what their professional lives are going to be like.