Marco Rubio lied twice in one sentence but it’s 2016 so ¯\_(ツ)_/¯

I just noticed that when President Obama nominated someone yesterday to be the first United States ambassador to Cuba in more 50 years, Senator Marco Rubio (R-Fla.), who opposes Obama’s efforts to thaw relations with the Communist dictatorship, said this in making his argument that the Senate should not confirm that nominee:

Just like releasing all terrorists from Guantanamo and sending U.S. taxpayer dollars to the Iranian regime, rewarding the Castro government with a U.S. ambassador is another last-ditch legacy project for the President that needs to be stopped.

In the real world, Obama is not trying to release all terrorists from Guantanamo. What Obama wants to do is move the 41 remaining detainees who are not recommended for transfer to a different military-run prison on domestic soil, where the United States would continue imprisoning them indefinitely. (He does want to transfer the other 20 remaining detainees, although most are likely headed to custodial rehabilitation programs run by dictatorships in the gulf, if recent transfers are any guide.) There’s a legitimate good-faith debate to be had about whether it would be a good or a bad idea to open a replacement wartime prison on domestic soil, but either way it is simply false that Obama is trying to release them all. (Rubio also claimed during last Saturday’s weekly GOP radio address that “With just four months left in office, President Obama and his allies in Congress want to release every single terrorist from the military’s custody at Guantanamo Bay, Cuba.”)

Also in the real world, the money the United States controversially sent to Iran earlier this year was Iranian money from an aborted weapons deal with the Shah that the United States had frozen after the 1979 revolution. There’s a legitimate good-faith debate about whether finally returning those assets was a good idea or a bad idea — even a “ransom,” given its timing — but either way it wasn’t American taxpayers’ dollars.

The quality of public policy discourse in 2016 is really depressing.



Eternal Return, Enemy Combatant Edition: A call to place the Chelsea bombing suspect in military custody

Senator Lindsey Graham, Republican of South Carolina, today called for holding Ahmad Khan Rahami, the Afghan-American arrested as the sole suspect in the Chelsea bombing, as an enemy combatant: placing him in indefinite military custody and interrogating him without a defense lawyer or a Miranda warning that he has any right to remain silent. Graham argued that the priority now should be gathering intelligence that might prevent future attacks, not gathering evidence that would be admissible in a courtroom trial. But he also acknowledged, at the end of his statement, a certain weariness to this debate.

“Now, I hope the Obama Administration will consider holding Rahami as an enemy combatant for intelligence gathering purposes. The suspect, based upon his currently reported actions, clearly is a candidate for enemy combatant status.

“Right now, we should be focused on gathering intelligence from this suspect that can help our nation understand how these attacks were planned and carried out. Holding Rahami as an enemy combatant also allows us to question him about what attacks may follow in the future. That should be our focus, not a future domestic criminal trial that may take years to complete.

“Holding Rahami as an enemy combatant to determine whether he has ties to terrorist groups, whether he was working for or funded by them, and whether there are co-conspirators, and then trying him in our civilian system for his terrorist acts is the best way to protect our country first, and then achieve justice.

“As an American citizen, Rahami cannot be tried by a military commission. Any future trial at which he would be a defendant would take place in federal district court or state court.

I have little confidence the Obama Administration will take the course of action I am proposing. Instead, they will read him Miranda Rights as soon as possible and continue to criminalize the war. Their actions will leave our nation less safe in the years to come.”

Graham sounds a little bit like an actor phoning in his role in a movie sequel, and for good reason. This is specifically a repetition of an episode in 2013, when Graham made the same call regarding Dzhokhar Tsarnaev, the surviving Boston Marathon bomber, following his capture. Both Tsarnaev and Rahami are naturalized American citizens, arrested on American soil, for pressure cooker bombings. Fortunately, Rahami’s did not succeed in killing anyone, unlike the Tsarnaev brothers’. But legally we’re looking at the same thing.

One big problem, legally, with Graham’s idea is that there is as yet no publicly known evidence linking Rahami to Al Qaeda. The United States government does not have the power to hold just any terrorism suspect in wartime detention — rather, that legal authority exists only for captives who are members of the specific organization with which the United States is engaged in an armed conflict. In 2013, I interviewed Graham about his idea with regard to Tsarnaev, and he acknowledged this, but suggested that a judge would give the government leeway to hold a terrorism suspect in military custody for up to 30 days or so anyway, to figure out if there were any such links.

“You can’t hold every person who commits a terrorist attack as an enemy combatant, I agree with that,” Graham told me then. “But you have a right, with his radical Islamist ties and the fact that Chechens are all over the world fighting with Al Qaeda — I think you have a reasonable belief to go down that road, and it would be a big mistake not to go down that road. If we didn’t hold him for intelligence-gathering purposes, that would be unconscionable.”

Even if Rahami were linked to Al Qaeda, it remains murky whether the government may hold a citizen arrested on domestic soil as an enemy combatant. In 2004, the Supreme Court upheld the indefinite wartime detention of a citizen captured fighting against the United States in the Afghanistan combat zone to prevent his “return to the battlefield,” holding that “there is no bar to this Nation’s holding one of its own citizens as an enemy combatant.” But its ruling was confined to the “narrow question” presented by that fact pattern alone, and left unanswered whether a citizen terrorism suspect arrested on domestic soil could be held in military custody. Perhaps importantly, Justice O’Connor also observed in the plurality opinion that, “Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized” (my emphasis). In the Jose Padilla case, two appeals courts disagreed on the question of whether domestically arrested American citizen terrorism suspects could be held that way, and the Supreme Court never resolved the question. Congress punted when lawmakers had an opportunity to clarify what the law should be.

As readers of Power Wars know, one of Obama’s signature national security and civil liberties policies — one he never backed away from, even as he made many compromises in other areas — has been that terrorism cases arising on domestic soil should exclusively be handled with civilian law enforcement procedures and powers, not military force. He has been unwilling to hold American citizens and lawful residents arrested on domestic soil as enemy combatants. Meanwhile, those readers also know that ever since the fallout from the attempted bombing of a Detroit-bound plane on Christmas 2009, when Republican Scott Brown harnessed anger over the FBI’s handling of the underwear bomber into winning the special election for a vacant Senate seat in super-blue Massachusetts, it has been a core GOP strategy to attack Obama for refusing to put new terrorism captives into Gitmo-style military custody.

As a result, every time someone gets arrested for a suspected (Islamist) terrorism offense, both sides trot out the same talking points. What was new about the Tsarnaev episode — the twist that there was no evidence linking the suspect to Al Qaeda — is now becoming part of the déjà vu cycle of national security legal policy and politics, too.




Two new FOIA lawsuits about detainees and surveillance — explained

In the past few weeks, the New York Times and I have filed two new Freedom of Information Act lawsuits. This post will explain them. (The hard work, as always, is being done by the NYT’s lawyer, David McCraw, as well as our outgoing annual NYT First Amendment fellow, Tali Leinwald, who is off to clerk on the Third Circuit, and our incoming fellow, Ian MacDougall.)

We filed the first lawsuit against the Justice Department and the Office of the Director of National Intelligence on August 2. It seeks the approximately 240 reports assessing the threat posed by each of the detainees who remained at Guantanamo Bay when President Obama took office. They were produced by a six-agency task force which re-evaluated the evidence about what each man had done before his capture, as well as his behavior in prison, and recommended whether to transfer him, prosecute him, or continue to hold him indefinite wartime detention without trial. These reports replaced, and in many cases corrected errors in, the military’s Joint Task Force threat assessments produced during the Bush administration years; those are the dossiers Chelsea Manning leaked via WikiLeaks. I laid out the moral and policy case for making the 2009 set public, too, in this Sunday Review piece. Judge Richard Berman has the case.

We filed the second lawsuit yesterday against the Justice Department. Assigned to Judge Lewis Kaplan, it combines requests for several post-9/11 legal policy matters the department has handled:

  • The first document it seeks is a May 4, 2005, memo signed by Pat Rowan, a national security lawyer in the Bush Justice Department, about the department’s discovery obligations when using evidence obtained or derived from the Stellarwind warrantless surveillance and bulk data collection program in court against a criminal defendant.
    • Discussion: A big issue regarding the N.S.A.’s warrantless surveillance program, both before and after Congress legalized it, is whether and when criminal defendants who face evidence obtained or derived from it should get notice from prosecutors about where that evidence came from. This is important because they have legal standing to challenge the lawfulness of the surveillance that gathered the evidence. To date, the government has successfully prevented a definitive examination of the merits of Stellarwind; in 2006, a district court judge ruled that it was illegal, but an appeals court vacated that ruling on the technical grounds that the plaintiffs did not have standing. No criminal defendant was ever notified that some evidence came from the program, and the Obama administration, in a previous FOIA lawsuit we brought for a Justice Department inspector general report about Stellarwind, redacted much of a lengthy portion about possible Brady violations – that is, instances in which prosecutors may have unlawfully withheld evidence from the defense that could have helped it – regarding the program. But that report included an unredacted sentence referring to the existence of this memo.
  • The second document is the “Standard Minimization Procedures for FBI Electronic Surveillance and Physical Search Conducted Under the Foreign Intelligence Surveillance Act” that were approved by the Attorney General on October 22, 2008 and later submitted to the Foreign Intelligence Surveillance Court.
    • Discussion: The FBI’s minimization procedures for FISA information are its rules for sharing and disseminating information gathered under the Foreign Intelligence Surveillance Act — and, since 2007, the warrantless surveillance program governed by the Protect America and the FISA Amendments Act. The government has issued later versions of these procedures, but not this set, which should help show how the practice of “backdoor searching,” or government agents looking at private communications previously collected without a warrant for Americans who have become the subject of their suspicions, began. See this post for more discussion of what we already know about how this got going.
  • The third document is the August 2009 final report of the 2009 executive order task force on rendition/interrogation policy. The fourth document is the January 2010 final report of the 2009 executive order task forces on detention policy.
    • Discussion: In 2009, when Obama took office, he set up three captives-related executive order task forces – each interagency but led or co-led by the DOJ. One re-assessed the remaining Guantanamo detainees and recommended what to do with each; its final report is already public but we are suing in a separate case to get the individual assessments as noted above. The other two dealt with what to keep and what to change about rendition and interrogation policy, and future detainee policies, respectively. Their final reports are not public, although I wrote about their contents in Power Wars. See Chapter Four Section Fourteen (“The Interrogation and Rendition Task Force”) and Chapter Seven Section One (“The Straw Man Plan for Future Captures”).
  • The last request is for a set of documents filed by the department in 2011 before the Foreign Intelligence Surveillance Court in connection with a case that dealt with “upstream,” or network-switch-based, surveillance under the FISA Amendments Act.
    • Discussion: In August 2013, as part of the wave of declassifications of FISA Court materials after the Snowden leaks, the government made public redacted versions of an Oct. 3, 2011 ruling and a Nov. 3, 2011 ruling by Judge John Bates, then the presiding judge of the FISA Court, an a case that dealt with a technical problem raised by upstream Internet surveillance under the FISA Amendments Act. Judge Bates found that the NSA had been violating the Fourth Amendment in certain ways, and then he ruled that a fix proposed by the NSA would solve the problem. His rulings are the source of widely cited numbers about the program – that the NSA was collecting about 250 million communications annually from it, of which 9 percent came from upstream and 91 percent came from Prism. I suspect that Judge Bates misinterpreted something and that these numbers are inaccurate. (See this post.) We are seeking the remaining documents from the litigation, including the Justice Department’s submissions which he was working with when he wrote his opinion.

Stay tuned.





Pour one out for another fruitful FOIA case for surveillance documents

Another excellent Freedom of Information Act case for surveillance documents came to an end late last month while I was on vacation, so I’m only now getting to it. It was for inspector general reports at the National Security Agency about the three programs that grew out of Stellarwind.

The germ of the idea for this FOIA came from Marcy Wheeler of Emptywheel, who had spotted a passing reference to the existence of an NSA inspector general report about the FISA Amendments Act warrantless surveillance program deep in a 2013 memo to the Intelligence Oversight Board and pointed it out to me in early 2015. I made a FOIA request for it and threw in the other two Stellarwind successor activities — the bulk phone records and bulk e-mail records programs — without knowing if there were any inspector general reports about them. As is typically the case with FOIA, the NSA did not act on the request and so the New York Times filed a lawsuit. I thank our great FOIA lawyer, David McCraw, and two annual NYT First Amendment fellows, Jeremy Kutner (2014-15) and Tali Leinwald (2015-16) for their hard work on the case.

It turned out to be paydirt: there were hundreds of pages of documents that were responsive to the three-part request. The N.S.A. disclosed them in three tranches, and each was newsworthy. One document among the bulk phone metadata program group — turned over to us in unredacted form by mistake — disclosed the identities of the participants in the bulk phone records program (AT&T, Sprint and Verizon) and confirmed suspicions that it could be used to hunt for Hezbollah and Iranian operatives, not just Al Qaeda. The bulk e-mail metadata program group confirmed that even though the N.S.A. said it had turned off that program in late 2011, it did so only after it had figured out how to achieve similar results using data obtained in other ways. And the warrantless surveillance program group shed light on the role played by telecommunications providers in actively performing the sifting and filtering of data packets required for upstream Internet surveillance on behalf of the N.S.A. rather than passively turning over all the packets for the N.S.A. to hunt through itself. (Notably, Marcy had already surmised both that the N.S.A. collection and analysis of e-mail metadata had probably migrated more than ended, and that Iran was part of the phone metadata program, based on scattered clues in the prior public record.)

We challenged the N.S.A. over the legitimacy of several redactions, but Judge Katherine Forrest granted the Justice Department’s request for summary judgment and dismissed the case without any further disclosures. Nevertheless, it had already dragged a lot of useful material out into the public eye. As with the FOIA case for Department of Justice inspector general reports that also ended last month with a ruling against us in a dispute over whether any further redaction lines should be removed, the concluding loss masked a much larger overall victory for transparency and public understanding of government powers and actions.

As Gitmo’s Camp 5 closes, the backstory of my 2003 story disclosing its existence

Today, my friend Carol Rosenberg of The Miami Herald, who does God’s work by traveling to Guantanamo to cover every day of every pre-trial hearing in the dysfunctional military commissions system, reports that the military has closed Camp 5 and consolidated the remaining 46 regular detainees in Camp 6. (The 15 former CIA black-site high-value prisoners are housed in the secretive Camp 7).

Carol’s scoop is a bookend for my own first Gitmo scoop, 13 years ago: that the military was building Camp 5, its first permanent, concrete-walled wing of the previously ad hoc prison operation. At the time, I was working for The Miami Herald, too. Gitmo was Carol’s beat, but I had become fascinated by it during a fellowship year at Yale Law School during the 2002-03 academic year, and we often nerded out about it when I got back to Miami in June 2003. Soon after, Knight-Ridder sent her to Iraq to cover the new war there, and Carol lobbied to let me take the Gitmo beat in her absence. (In a parallel move, she let me house-sit her beachfront apartment, as I had given up my own South Beach apartment when I went up to New Haven and was not interested in signing a new lease for a reason I’ll explain below.)

Later that summer I went down for my first trip to Gitmo. On the plane, I chatted up my seatmate, who turned out to be an engineer for KBR, a subsidiary of Halliburton, who said he was coming down for work on Camp 5. I didn’t think much of it. But when the public affairs staff gave us our introductory briefing, they talked only of Camps 1-4, the four wings of a complex called Camp Delta.

“What about Camp 5?” I asked. They professed ignorance.

Later on that trip, in an interview with the prison operation commander, Major General Geoffrey Miller (who soon after left Gitmo for a fateful trip to consult at Abu Ghraib about getting better intelligence from interrogating detainees there), I asked again. Miller wanted to know how I knew about Camp 5, and I was straightforward about it, so then he told me all about it.

Here’s the opening of the August 23, 2003, story I wrote. (Please forgive the misuse of “literally.”)

GUANTANAMO BAY NAVAL BASE, Cuba — Twenty months after it opened as a short-term solution early in America’s war on terrorism, this much-criticized military detention and interrogation camp is evolving from wire mesh to concrete.
The hastily erected Camp Delta for “enemy combatants” will make a significant leap toward permanence with a previously undisclosed fifth phase that will be hard-sided and take a year to build, The Herald has learned.
Workers are also retrofitting a makeshift courtroom in case some of the 660 detainees from 42 countries, most of them suspected al Qaeda members or Taliban soldiers captured in Afghanistan, are tried before a military commission.
The developments suggest that the Bush administration is literally pouring concrete around its controversial policy of indefinitely holding alleged terrorists and supporters in legal limbo, without prisoner-of-war rights.
“[This] should exist as long as the global war on terrorism is ongoing if it helps our nation and our allies win,” said camp commander Maj. Gen. Geoffrey Miller. “We are exceptionally good at developing intelligence that will help defeat the scourge of terrorism.”
Many legal scholars and human rights groups continue to argue that the policy unnecessarily bends U.S. law and undermines the stability of the Geneva Conventions when instead the existing legal system could be modified to meet intelligence security needs.
But calls to change the approach seem increasingly moot as workers throw up ever more durable structures, also including dormitory housing for 2,000 soldiers here.
The new “Camp Five” will take three times longer to build than the four existing camps, which are made from wire mesh and metal atop concrete slabs, with chain-link fences and wood towers.
“It is a hard-sided concrete building,” Miller said. “Unfortunately, we have to ship everything into Guantanamo Bay by sea, and it takes time to get the materials down here.” …

The Herald ran the story on the front page with big splashy play, and the wire services picked it up and it got attention all over the world. That was pretty cool: my previous reporting experiences were mostly limited to parochial issues like corruption in the Miami-Dade school system.

Meanwhile, I had become engaged to Luiza Chwialkowska, a Canadian reporter who had been in the same Knight Foundation fellowship program at Yale. I didn’t want to move to Canada and she didn’t want to move to Miami, so we agreed to converge on Washington, D.C., as a place where there were a lot of journalism jobs and we wouldn’t necessarily have to work for the same employer.  For awhile I thought the Miami Herald was going to send me to D.C. as its Washington correspondent, but that arrangement fell through. Luiza had already landed a job there and moved to a one-bedroom in Cleveland Park. So I had come back to Miami that summer while actively looking for a job in D.C.

Peter Canellos, then the Washington bureau chief of the Boston Globe, was interested in hiring me, and I was scheduled to fly to Boston to interview with Marty Baron, then its executive editor. Fortunately for me, this story came out just before I got on the plane to Boston, so I brought the hard copy and showed it to Marty in the interview as a demonstration of what sorts of stories I’d like to write for the Globe. In September, Luiza and I were married in New Haven, expecting that we’d have to live apart for an indefinite period. But during our honeymoon in Banff, I got a call from Peter saying the Globe was hiring me for its Washington bureau.

So, Camp 5.

ISIS war powers lawsuit update and backstory

Today, David Remes and Bruce Ackerman, the lawyers representing an army captain who is suing President Obama over the legality of the armed conflict against the Islamic State, filed a lengthy brief – the plaintiff’s opposition to the government’s motion to dismiss the case. In it, they seek to advance their arguments both that the captain, Nathan Michael Smith, has legal standing to bring the case, and that they are right on the merits that the ISIS war lacks proper and necessary Congressional authorization. They also filed an affidavit by several scholars of Islamic law and jihadi movements making the case that the split between core Al Qaeda and its former Iraq affiliate, which grew into ISIS, was older and deeper than the Obama administration acknowledges. I am embedding their brief below.

In Power Wars, Chapter 12 (“The Tug of War”), section 15 (“Extending the 9/11 War”), I reported out the backstory to how Obama came to embrace this controversial legal position. In the summer of 2014, before the U.S. started bombing ISIS, Obama’s White House Counsel, Neil Eggleston, and the then top-lawyer for the National Security Council, Brian Egan, and the rest of the interagency lawyers group developed two theories. They considered each to be viable but also to have its own downside. One was to treat the intervention as a new phase in the existing war Congress had authorized against the 9/11 perpetrators, which would solve the domestic legal problem but would likely be criticized as a stretch because ISIS and Al Qaeda were now at odds. (The argument was that the post-Osama bin Laden split between core Al Qaeda and ISIS into successor factions that were both still fighting the US, even if they were also at odds with each other, did not abrogate the US’s existing authority to keep fighting each.) The other was to treat it as a brand-new conflict, but then if Congress did not vote to authorize it within 60 days, it could set up a  repetition of the War Powers Resolution fiasco with Libya three years earlier.

When they presented this choice to Obama in a Situation Room meeting, portraying both theories as legally available or defensible options, Obama opted for the first theory, knowing he would be criticized for it. The decision to take that aggressive stance turned, as it often did in executive power deliberations in the Obama era, on the White House’s belief that Congress, in the Tea Party Republican era, was unable to function as a competent governing partner. Even though there was an emergency and Republicans were mostly all for getting more aggressive against Islamist terrorists in the Middle East, nobody thought that it was realistic to expect Congress — especially the GOP-controlled House — to move and vote on a new authorization to use military force before the War Powers Resolution’s 60-day clock would expire in October. So Obama went with the “ISIS war=Al Qaeda war” theory.

That was indeed controversial. Yale Law School’s Bruce Ackerman penned a column in The Atlantic last summer, a year into the conflict, saying its biggest casualty had been the Constitution because Obama, by waging the conflict with legitimate authorization, and Congress, by not bothering to assert its role, “threaten to destroy all serious restraints against open-ended war-making by the commander-in-chief.” He said a soldier deployed to wage the conflict could have legal standing to put the question before the Supreme Court; that led to the lawsuit by Captain Smith, an intelligence officer then stationed in Kuwait and engaged in the counter-ISIS campaign. Still, Congress has appropriated funds to fight ISIS in two annual cycles since then; DOJ argues that amounts to legislative ratification of Obama’s theory.

[Other stuff: Here is an amicus brief that Michael Glennon and the Constitution Project are seeking the court’s permission to file. It focuses on the War Powers Resolution’s “clear statement” rule. Here are previous NYT articles about the Obama administration’s legal theory that the White House needed no new grant of authority from Congress to go to war against ISIS because, they argued, the Islamic State was already covered by the 2001 AUMF against Al Qaeda (and by the 2002 AUMF against Saddam Hussein’s Iraq). And here is a NYT article about the filing of Captain Smith’s lawsuit, and about the government’s reply laying out its legal theory – enhanced by the notion that Congress, by appropriating funds for the conflict, has ratified it.]

Here’s the new brief:

Smith v Obama Plaintiff s Opposition to Motion to Dismiss (Text)

A FOIA lawsuit that brought to light large amounts of information about post-9/11 surveillance may be ending

Today, Judge Analisa Torres of the Southern District of New York issued a ruling in a Freedom of Information Act case brought by The New York Times and me. The case centered on various Justice Department inspector general reports about post-9/11 surveillance. The government had already made public a sizable amount of information due to this case, but we were fighting over whether some of the material it redacted should be uncovered. Judge Torres ruled against us. This could be the end of the case, or we might appeal. Either way, it seems like a good moment to hail the significant amounts of information this lawsuit brought into public light. Below I discuss in some detail what the documents were and link to them as well as some stories that they generated.

But first, I want to thank the NYT’s lawyer, David McCraw, and two NYT First Amendment Fellows — Victoria Baranetsky (2014) and Jeremy Kutner (2015) — for their hard work on the litigation. And I thank the government officials who chose to put out the significant portions of these documents that the executive branch decided to acquiesce to making public rather than fighting us over, even though we disagree that they were justified in redacting certain things.

Background: After Edward Snowden’s leaks, the government declassified many facts about surveillance and communications metadata collection/analysis — like, for instance, the existence of the Patriot Act bulk phone records collection program that was the subject of the first of his leaks that Glenn Greenwald and The Guardian chose to publish. The government did this because Snowden had disclosed a number of its capabilities, and it wanted to explain and defend itself, including discussing internal rules and oversight over those capabilities.

Seeking to leverage that wave of declassification, I filed a FOIA request — and later, with the NYT, this lawsuit — seeking inspector general reports on those topics. We sought disclosure of some reports that were entirely classified, as well as reprocessing and more fulsome release of reports that had previously been made public but in heavily redacted form.

The most important of these reports was a massive investigation by six agencies’ inspectors general into the post-9/11 Stellarwind warrantless wiretapping and bulk metadata collection program. The creation of this report had been mandated by Congress as part of the FISA Amendments Act of 2008, and it was kept entirely secret when completed in 2009. The famous “NSA IG report” leaked by Snowden and originally published by The Guardian (though the Washington Post had previously written about bits of it without publishing it) was an early draft of the NSA’s contribution to this much larger Stellarwind report, which DOJ oversaw. (Here’s a story about a partial revelation from that leak that I had the honor of co-writing with Jim Risen, who along with Eric Lichtblau broke the original warrantless wiretapping story.) But the Justice Department’s chapter turned out to contain many, many additional revelations about the history of that program.

Other reports covered the FBI’s involvement with the FISA Amendments Act warrantless wiretapping programs that grew out of Stellarwind, and its collection of phone data and other types of records using National Security Letters, “exigent” letters, and Section 215 of the Patriot Act.

The government produced these documents in large tranches over time, and in several cases went back and re-issued them with fewer redactions. Here are some news articles based on these documents:

In addition, significant details in my book Power Wars — especially “Chapter 4: Stellarwind (Surveillance 1928-2009)” and, to a lesser extent, “Chapter 11: Institutionalized (Surveillance 2009-2015)” — drew on the information these documents brought to light.

Here’s the documents:

Not bad for one lawsuit.

Q&A with the Pentagon about Battle Damage Assessments, the Law of War Manual, and Non-Combatants who Support the Enemy

Below, I publish a written Q&A between myself and the Pentagon about rules for targeting and battle damage assessments, including how civilians who provide support to a military force, and are killed in strikes aimed at that force, are counted.

Although I was addressing my questions to military lawyers, the exchange took place through Lt. Col. Valerie Henderson, a spokeswoman for the department, and she asked that its answers be attributed to her.

I was pursuing a theory about non-combatant deaths from airstrikes outside of conventional war zones that appears to be incorrect, so I do not see a general-readership news article here. But the exchange may nevertheless be of interest to scholars and specialists. In particular, note that the department is signaling that it may revise certain disputed sections of the Law of War Manual involving “assumption of risk” by civilians and proportionality analysis.

I am sincerely grateful to the Defense Department for taking the time to engage with me in such a detailed and serious way.


When the Obama administration revealed the government’s official understanding of the scope of non-combatant deaths from airstrikes outside of conventional war zones — that is, drone strikes and other missile attacks in places like tribal Pakistan, Yemen, Somalia, and Libya — there was a broad reaction of puzzlement. The administration asserted that between 64 and 116 civilian bystanders had been killed in 473 such strikes between January 2009 and December 2015. But that seemed too low, based on what we think we know about such strikes. In particular, the entire low end of the range would seem to be eaten up by our understanding of civilian deaths caused by just two strikes: a December 2009 JSOC missile strike at an AQAP camp in Yemen that is believed to have killed 41 Bedouins from a tribe that turned out to be camped next door and was selling food to the terrorists, and a March 2011 CIA drone strike in Pakistan that killed between 26 and 48 people, most of whom are thought to have been villagers meeting to discuss a chromite mining dispute. [See Power Wars, Chapter Six (“Targeted Killings”), parts one (“Two Airstrikes in Yemen”) and ten (“Signature Strikes”).]

At the same time, I had been tracking a dispute over some of the targeting rules in the Pentagon’s new Law of War Manual, including complaints from various legal scholars that it appeared to improperly exclude various categories of civilians from being weighed in proportionality analysis by commanders considering a strike at a military target where civilians could be killed too, like civilians supporting a military force by working in a munitions plant. See this article about a recent revision to the manual addressing a controversial section about journalists in combat zones, and how it did not address the proportionality issues scholars were most concerned about.

These two storylines raised in my mind a possible explanation for the low end of the range of non-combatant deaths: perhaps, I speculated, Central Command had excluded the adult members of that Bedouin tribe killed in December 2009 from its count of non-combatant deaths outside war zones because the tribespeople had been providing support services to the enemy force and thus were being treated more like military contractors than innocent civilians? That approach would be controversial but at least it would make the low-end of the range understandable. That prompted me to ask some questions to the Defense Department, which the Office of the General Counsel preferred to answer in writing. I asked a follow-up round, and they replied again. Here is the exchange:


I have some questions about how DOD defines civilian casualties during battle damage assessments in Centcom’s area of responsibility, which obviously may include JSOC in certain contexts. Would it be all right if I spoke to your top JAGs about them?

Context: The public discussion of such things tends to oversimplify to a binary — there are combatants and civilian bystanders. But there is a third category: non-combatants who provide support services to a military force, e.g. cooks, chaplains, mechanics. In a IAC, this category could be uniformed or it could be military contractors. In a NIAC, you wouldn’t have uniforms or formal contracts, but rather you would be confronted with, for example, a Bedouin clan that camps out next to a terrorist camp and sells food to the militants, washes their clothes, or provides other such forms of support services.
The DOD Law of War Manual talks about civilians authorized to accompany a force or civilian workers who place themselves in or on a military objective, knowing that it is susceptible to attack, in sections 4.15.2 and It says they may not be made the object of the attack, but they accept the risk of incidental harm from enemy attacks.
Here are my questions:
1.  In terms of ex ante targeting decisions, does this mean that my example above (the food services providers) would not count for proportionality analysis?
2.  In terms of post facto battle damage assessments, would DOD classify my example as “combatants” or “non-combatants?”
3.  Does anything change in the answers if a strike is inside an area of active hostilities versus outside such an area?


Q: In terms of ex ante targeting decisions, does this mean that my example above (the food services providers) would not count for proportionality analysis?

A: No, the food service providers in your example would be considered in a proportionality analysis and other analyses related to collateral damage.  As an initial matter, in  your example, the Bedouin camp is “next to” a terrorist camp as opposed to “in or on” the terrorist camp, and it is not clear that the Bedouins know that the terrorist camp is susceptible to military attack as part of an armed conflict.  More importantly, however, part of the principle of “proportionality” under the law of war is the obligation by the attacking force to take feasible precautions to reduce the risk of harm to civilians in conducting attacks (e.g., warnings, adjusting the timing of the attack), and section 5.11, which describes this requirement, would apply to the Bedouins, even if their camp was located in or on the terrorist camp.  Further, as a matter of policy and practice, DoD applies procedures and standards (often much more restrictive than what would be legally required under the law of war) for reducing the risk of non-combatant casualties and other collateral damage, and individuals like the ones in your example generally would be “counted” in such analysis.


Q: In terms of post facto battle damage assessments, would DOD classify my example as “combatants” or “non-combatants?”

A: Non-combatants.  Persons who are not part of an armed group and who do not take a direct part in hostilities, but who are providing support services to a non-State armed group, would be deemed to be non-combatants.


Q: Does anything change in the answers if a strike is inside an area of active hostilities versus outside such an area?

A: With regard to the issues presented in your first two questions, the answers we have provided apply as a matter of law whether a strike is conducted inside an area of active hostilities or outside such an area.  However, as a matter of policy, outside areas of active hostilities the United States applies a standard in its counterterrorism operations that goes far beyond the requirements of proportionality; it applies a standard of “near certainty” that non-combatants will not be injured or killed.  Therefore, outside an area of active hostilities, the attack would not be authorized unless there was near certainty that none of the Bedouins in your example would be killed or injured, whether they were next to or in the terrorist camp.


(Since my questions this round were longer, I interwove the answers directly)


Q: The answer to question one says the hypothetical Bedouin tribe would be weighed for pre-targeting proportionality analysis in part because the tribe is not camped out “in or on” the terrorist camp, but rather next to it. But I had read’s carve-out from proportionality analysis includes civilian support-providers who are merely in close proximity to a military target without actually being in or on it. The section says: “Moreover,the law of war accepts that the defender may employ these persons to support military operations near or within military objectives. If these persons could have the effect of prohibiting attacks by the attacking force, then the defending force that used such persons in proximity to its forces or military objectives would be unlawfully using the presence of such persons to shield its operations or its military objectives from attack.” What am I missing?

A: Section addresses only harm to certain persons employed “in or on” military objectives; it does not address harm to persons “merely in close proximity to a military target without actually being in or on it.”

By its terms, section applies only to “[h]arm to certain persons who may be employed in or on military objectives.”  (See, for example, the title of section, the first sentence of, and the third bullet of  We used the words “in or on” in order to keep the scope of this provision narrow.  Being “merely in close proximity to a military target” therefore would not suffice to make this provision applicable.  For example, this provision could apply to a civilian worker in a munitions factory, but this provision would not apply when that worker was at home or merely near the factory. When section mentions defenders placing certain persons “near” or “in proximity to its forces or military objectives,” section refers to the obligations applicable to a defending force.  But the rule set out in section 5.12 applies to an attacking force.  The reference to the defender’s obligations was intended to help the reader understand the rationale for the rule in section, not to define the scope of that rule.

In addition, section does not state that these persons are in a “carve-out from proportionality analysis.”  (By contrast, section provides that harm to persons who are military objectives (e.g., enemy combatants) “would not need to be taken into account.”)  The persons covered by section would be assessed to be civilians or non-combatants.  As noted in our prior response, the proportionality analysis and procedures that are applied before strikes would include taking feasible precautions with regard to such persons (e.g., the factory might be struck at night when workers were not present).  Moreover, these persons would be considered by a commander in determining whether he or she should refrain from a strike because it was expected to result in excessive harm in relation to the military advantage expected to be achieved.  We acknowledge that the statement that such persons “assume the risk” could be understood to mean that harm to such persons is not taken into account.  This is not what we meant.  This, and other language concerning proportionality, is being reviewed and will be adjusted as appropriate to avoid any such confusion.  There is significance to “assumption of the risk,” but that significance does not extend to any sort of “carve-out” from being subject to a proportionality analysis.  We note that, in practice, DoD generally applies standards that are far more restrictive and protective of civilians and noncombatants than the legal requirements.


Q: The answer to question one also suggests that if the Bedouin tribe did not know that the terrorist camp was susceptible to military attack as part of an armed conflict, that would also require counting them in pre-targeting proportionality analysis–even if they were actually in or on the target itself. (Am I interpreting you correctly?) Here I am confused about two different categories in that seem like they create a loophole: there are “civilian workers who place themselves in or on a military objective, knowing that it is susceptible to attack, such as workers in munitions factories” but there are also “persons authorized to accompany an armed force,” who do not get such a knowledge requirement. Under 4.15, authorized accompanyers include non-military persons who are serving that armed force, such as contractors and civilian provisioners for an army. Could the Bedouin tribe be counted as persons authorized to accompany an enemy force,and therefore exempted from any knowledge requirement?

A: No.  In your example, members of the Bedouin tribe are not “persons authorized to accompany the armed forces.”  As explained in section 4.15 of the manual, the phrase “persons authorized to accompany the armed forces” is a term of art under the law of war that specifically refers to a category of persons entitled to prisoner of war status under the 1949 Geneva Conventions.  In your hypothetical, the Bedouin tribe has not received authorization from a State’s armed forces, but instead is supporting a non-State armed group.


Q: The answer to question two does not include the two conditions mentioned in the answer to question one. To clarify, are you saying that for purposes of post-strike battle damage assessments, non-members of an armed force who were providing support services to that force and killed during a strike at that force are unequivocally counted as non-combatants, even if they were “in or on” the military target and even if they knew the target was susceptible to military attack as part of an armed conflict?

A: Yes, for the purposes of post-strike battle damage assessments and more generally, persons who are not part of an armed group who were providing support services to that force that did not amount to direct participation in hostilities would be counted as non-combatants, even if they were “in or on” the military target and even if they knew the target was susceptible to military attack as part of an armed conflict. (In your example, it does not seem as though the Bedouin tribe is functionally part of the armed group, see section, nor does it seem as though the Bedouin tribe was taking a direct part in hostilities, see section 5.9.)

It’s worth noting that the rule in section 5.12 requires refraining from certain attacks that are “expected” to cause excessive harm.  Thus, a person applying 5.12 would rely on information available before the strike, rather than information after the strike, such as a battle damage assessment of that strike.

Lastly, we are aware of comments that have been made on section 5.12 of the manual.  We are continuing to consider these comments, as well as all other comments on the manual, with a view toward updating and improving the manual.


Update from Venezuela on the Lost & Found Ex-Gitmo Detainee

Latest statement from Jon Eisenberg, lawyer for Jihad Diyab/Dhiab:

Andres Conteris, who is a member of the U.S. human rights group Witness Against Torture and is part of an informal group of Uruguayans who have offered support to Mr. Dhiab since his arrival in Uruguay, met this morning with a member of the Venezuelan foreign ministry with regard to Mr. Dhiab. Mr. Conteris was told that the ministry is working to arrange a special visit tomorrow (Tuesday) between him and Mr. Dhiab, that the ministry is also working on finding a solution for where Mr. Dhiab will be sent, and that no decision has yet been made about where Mr. Dhiab will be sent

Mr. Conteris learned over the weekend that Mr. Dhiab’s health is seriously deteriorating. We remain concerned that he may have resumed hunger striking, but we cannot be certain of that because nobody has been allowed to visit or otherwise communicate with him. I have not spoken with Mr. Dhiab since June 5. My understanding, however, is that the Venezuelan foreign ministry will now be requesting that I be allowed to speak with Mr. Dhiab by telephone.

Mr. Conteris will address these matters at press conference to be held on Wednesday at 10:00 a.m. near the U.S. embassy in Caracas.

Who are the two mystery agencies Obama says must help review capture operations, but not targeted killings?

The May 2013 Presidential Policy Guidance (PPG), also known as the “playbook” for drone strikes outside of conventional war zones, is now mostly public, thanks to a Freedom of Information Act lawsuit by the American Civil Liberties Union. In Chapter 6 of Power Wars, I outlined the second-term interagency process for signing off on proposed targeted killing operations based on anonymous sourcing; that outline dovetails with the far more detailed description of the bureaucratic procedures this document prescribes. But there was something curious in its section about who signs off on plans to capture high-value terrorism suspects, a component of the PPG that has received far less attention.

Both capture and kill operations undergo a similar review, including a deputies committee meeting and then a principals committee meeting chaired by the president’s counterterrorism adviser, currently Lisa Monaco. And for kill operations, the agency and departments whose leaders participate in those meetings are all unredacted. They are the State Department, the Defense Department, the Joint Chiefs of Staff, the Justice Department, the Homeland Security Department, the office of the Director of National Intelligence, the Central Intelligence Agency, and the National Counterterrorism Center

ppg-kill dc

But here’s that list in the equivalent section about who participates in meetings about proposed capture operations:

ppg-capture dc

Three more agencies help decide about capture ops: the Treasury Department and two three-letter agencies who have been redacted. Why would Treasury be there for one but not the other, and who are the other two with that status, and why keep them secret even though they’re letting it all hang out about the CIA’s participation? I have a theory about who the mystery members are and why that trio gets invited to help make decisions about one type but not the other, though not about the reason for the secrecy.

My guess is that this is about additional headaches that arise only if the suspect is still alive, and that the two mystery agencies are the Federal Bureau of Investigation and the National Security Agency.

The first thing that would happen, if they captured someone alive, is that a High-value Interrogation Group (“HIG”) would interrogate the prisoner for intelligence purposes; the FBI runs the HIG. Then, typically, the FBI would bring in a “clean team” of criminal interrogators who would Mirandize the prisoner and start over with questioning for the purpose of gathering admissions that are admissible as courtroom evidence. So the FBI needs to be part of the planning process for a capture operation, because it will need to be ready to swing into action. Indeed, the deputies are supposed to talk about “the proposed plan for the detention and interrogation of the suspect,” which they could hardly do without the bureau.

The deputies are also supposed to talk about “long-term disposition options for the individual” when the intelligence interrogation is over. The preference is clearly for the U.S. to transfer the captive to some other country if that is workable, but if not, the U.S. will retain custody and try to prosecute him. That could lead to a dilemma over the need to disclose to the defense, for a fair trial, classified evidence that might reveal sources and methods–like, say, data about financial transfers gathered by the Treasury Department’s intelligence programs, or intercepted communications gathered by NSA’s surveillance programs. Indeed, another thing the deputies are supposed to talk about is whether the proposed capture operation “would interfere with any intelligence collection or compromise any intelligence sources or methods.” You could see a scenario in which a suspect is of only middling importance and it is unlikely that any other country could take custody of him, and Treasury or the NSA would prefer not to capture him in the first place if it meant risking revealing something.

But none of that would be an issue in a kill operation–there’s no one to interrogate and prosecute, so no need for the FBI, Treasury, or NSA to weigh in with any unique equities in the decision. Even if I’m right, however, I have no idea why the Obama administration would redact the FBI and NSA. (So far I’ve not gotten any answers, but I will update the post if I do.)

UPDATE 8/8/2016: The “Federal Bureau of Investigation (FBI)” was spelled out in a first reference earlier in the doc, on page 5, but the NSA does not appear in unredacted portions so would need a first reference somewhere in which it is identified as the “National Security Agency (NSA)” for this theory to be correct. On Twitter, Josh Leitzel points out that a redaction line on page 8, a page before the list of participants in capture operation meetings, seems to line up.


And also: