Whistleblower Daniel Hale Sentenced To 45 Months In Prison For Exposing The Horrors Of US Drone Strike Programs

from the Espionage-Act-just-means-every-good-deed-gets-punished dept

A Tennessee man was sentenced today to 45 months in prison followed by three years of supervised release for illegally obtaining classified national defense information and disclosing it to a reporter.

So begins the very dry press release from the Department of Justice. What this is, though, is another successful prosecution of a whistleblower. The "Tennessee man" is Daniel Hale, the whistleblower who exposed the breadth and reach of the United States' extrajudicial killing programs.

Hale's leaks followed shortly after Snowden's string of NSA bombshells. The intel gathered by the NSA's many programs formed the backbone for the drone strike programs Hale exposed: the "metadata" our government uses to "kill people."

Hale's house was raided by the FBI back in 2014, shortly after he was interviewed for the drone warfare documentary "National Bird." During his interview, Hale remarked on the risk he was taking discussing the program. Documents leaked to The Intercept by Hale resulted in the multi-part "Drone Papers" feature. The documents exposed the lengthy intel gaps that occurred between target acquisition and drone strikes. It also showed the Defense Department and CIA referred to collateral damage (i.e., the killing of nearby civilians) as "combatants killed in action," with minimal attempt made to tally up the number of people killed simply for existing near the government's targets.

The prosecution didn't begin until 2019, leaving Hale in suspended animation for nearly a half-decade. This prosecution under Trump pushed him past Obama for most whistleblowers prosecuted -- just another lousy addition to a lousy president's legacy.

This is the sort of thing Hale exposed and is now being imprisoned for sharing with journalists and US citizens expected to support these activities with their tax dollars.

Daniel knew cell phones could have been passed from presumed terrorists to other people entirely, and innocent people and those around innocent people would then be killed instead.

[...]

There was further evidence that when military-age males were murdered in a strike, they were classified as militants, an accounting trick that lowers civilian-death counts, and there was an account of a five-month period in Afghanistan in which U.S. forces hit 19 people who were targets of strikes and 136 who were not the targets. There were admissions that the intelligence on which strikes were based was often bad and that strikes made it difficult to get good information because the people who might have provided that information had just been killed by the strike.

Hale pled guilty to "retention and transmission of national defense information." This is a charge under the Espionage Act. His plea followed the judge's declaration that the court would not allow Hale to offer any public interest defense for his actions -- something that's almost always the case in espionage prosecutions. But Hale didn't hand this information to our nation's enemies. He handed it to journalists who published reports based on the documents. This wasn't an attempt to harm our nation. It was an attempt to inform Americans about the atrocities carried out in the name of national security.

For this act of courage, Hale will serve nearly four years in prison. And the war machine will roll on, not even momentarily interrupted by the publication of this supposedly sensitive information.

Filed Under: daniel hale, doj, drone program, drone strikes, espionage act, extrajudicial killing, journalism, leaks, whistleblower

Iowa Air Guard Unit Involved In Overseas Drone Strikes Is Buying Location Data From Data Brokers

from the whatever-facilitates-forever-wars dept

Killing people using metadata is boring. These days, we're killing people using data brokers.

A division of the Iowa Air National Guard that carries out overseas intelligence missions, performs reconnaissance, and conducts strikes with Reaper drones recently bought access to location data harvested from ordinary apps installed on peoples' smartphones, Motherboard has found. The tool, called Locate X, lets users search by a specific area and see which devices were present in that location at a particular point in time.

Supposedly this data is anonymized but sources familiar with the data -- pulled from popular apps like Muslim Pro, which has been dowloaded nearly 100 million times -- said it doesn't take much effort to deanonymize it. Obviously, using anonymized data to locate targets for extrajudicial killings would be incredibly irresponsible, so this guard unit's use presumably involved sniffing out the users behind the data to prevent targeting innocent foreigners. (Presumably.)

The National Guard has declined to say what it used the data for. But given it's tasked with overseas surveillance and drone strikes, the best case scenario is that it conducted surveillance, rather than killings, using the data. This particular Air Guard used to fly actual airplanes, but gave that up for the more efficient practice of killing people overseas while never having to leave the comfort of the American Midwest.

According to public procurement records, the Iowa Air National Guard has purchased a "premium data feed" from Locate X, something that runs it $35,000 a year.

The facts seen in the public records are indeed factual. That's about the only thing the Air National Guard is willing to confirm.

"The Iowa National Guard did request the purchase of the software Locate X," Major Katherine Headley, director of public affairs at the Iowa National Guard, told Motherboard in an email. Headley declined to say exactly how the Iowa Air National Guard will use the data.

Joseph Cox's report for Vice notes the Air Guard helped man COVID-19 test sites and was involved in contact tracing efforts. If that's what the Air Guard used its Locate X contract to facilitate, you'd think it would have gladly admitted it was part of the local fight against the spread of the virus. Instead, it has effectively pleaded the government version of the Fifth, refusing to discuss details while confirming nothing more than what cannot possibly be denied.

Then there's this, which strongly suggests its use of Locate X had nothing to do with any non-warfighting efforts:

"This product will be used to support our federal mission requirements overseas."

And since part of its "federal mission requirements" involves operating armed Reaper drones, it's not irresponsible to assume the purchased data has been used to carry out drone strikes, which turns "harmless" app location data into targeting data for our apparently never-ending, extrajudicial killing programs.

Filed Under: air guard, data brokers, drone strikes, iowa, location data
Companies: locate x

Government Argues In Court That It Can Kill US Citizens At Will With Zero Judicial Oversight

from the your-tax-dollars-incoming dept

The federal government is back in court, arguing for its unilateral right to kill US citizens. Two journalists who had appeared to have been mistakenly targeted by drone strikes sued the government in 2017, seeking an injunction forbidding their own government from extrajudicially killing them.

The journalists, Ahmad Zaidan and Bilal Kareem, both experienced near misses by drone strikes. The suspicion they were mistakenly targeted was confirmed by an NSA document leaked by Ed Snowden that claimed Zaidan -- an Al Jazeera journalist -- was a member of Al Qaeda. His targeting was related to the government's bulk collection of metadata, which would have placed Zaidan close to several Al Qaeda members. His proximity to Al Qaeda members was to be expected, given his coverage of Al Qaeda activity and other events/incidents in the areas he covered.

All it takes is metadata to get someone killed -- even US citizens like Bilal Kareem who, like Zaidan, routinely covered Al Qaeda activity and spoke to Al Qaeda members. Kareem's solo lawsuit demanding confirmation that he had been placed on the government's kill list was terminated by the DC Circuit Court in 2019, which held that the information was too sensitive to share with US citizens possibly marked for death by their own government.

His joint lawsuit with Zaidan lives on, however. And it may finally provide the journalists with some answers. As Megan Mineiro reports for Courthouse News Service, the DC judges handling the case seemed rather shocked by the government's assertions.

Drawing alarm at the D.C. Circuit, a lawyer for the United States argued Monday that the government has the power to kill its citizens without judicial oversight when state secrets are involved.

“Do you appreciate how extraordinary that proposition is?” U.S. Circuit Judge Patricia Millett asked Justice Department attorney Bradley Hinshelwood, paraphrasing his claim as giving the government the ability to “unilaterally decide to kill U.S. citizens.”

The "state secrets" assertion was the same claim used to escape Kareem's solo lawsuit. But it doesn't appear to be working quite as well this time -- not when the government is saying it can engage in extrajudicial, extraterritorial killings of US citizens and other non-terrorists. "We kill people based on metadata," a former US government official gleefully exclaimed in response to Snowden leaks. That still holds true, and it appears the government loses no sleep when it kills the wrong people based on flawed assumptions about patterns in its metadata stash.

The government's alternate argument wasn't much better. It basically claimed Kareem couldn't prove the US targeted him because lots of people were throwing around bombs and missiles.

Shrugging off Kareem’s claims as baseless speculation, the government argued the alleged airstrikes occurred at a time when Syria was wracked by civil war.

“In all of these circumstances, he’s not even the only person present, much less is there anything to suggest that he’s actually the target of any of these specific attacks,” Hinshelwood said.

Of course, the government could easily prove it never targeted these journalists by handing over information about the contested drone strikes. But it won't. It would rather argue it can kill whoever it wants without oversight or judicial review. The government would rather make this bold statement in open court than submit classified info directly to judges and lawyers with security clearance that would confirm or refute the placement of the plaintiffs on kill lists. The government's priorities are incredibly screwed up. And we have a long and pointless "war on terror" to thank for its refusal to answer questions about its drone strike programs -- programs that may well be targeting innocent people (including US citizens).

Filed Under: ahmad zaidan, al qaeda, bilal kareem, doj, drone strikes, extrajudicial assassination, judicial oversight, kill list, metadata, national security, nsa, state secrets, terrorism, us citizens

Trump Administration Rolls Back Obama's Last-Minute Drone Strike Reporting Requirements

from the public-is-purchasing-civilian-deaths-and-the-gov't-won't-even-give-it-a dept

After years of increasing overseas drone strikes, the Obama administration briefly attempted to salvage its reputation. Having turned countries like Syria and Yemen into the Killingest Places on Earth, Obama drafted a few rules to rein in the use of drones. A charitable take was that he recognized the blowback caused by these strikes, which tended to result in the unintended killing of civilians. A less charitable take is he recognized he might be turning these powers over to the Republicans and wanted to tie them up with restrictions he would have never placed on his own administration.

One of the few positive steps Obama took was mandating periodic reporting on drone strikes to assess the amount of collateral damage caused by these attacks, presumably in hopes of further reducing civilian casualties. Obama's executive order instituted yearly reporting that would (eventually) be passed on to the public.

Report on Strikes Undertaken by the U.S. Government Against Terrorist Targets Outside Areas of Active Hostilities. (a) The Director of National Intelligence (DNI), or such other official as the President may designate, shall obtain from relevant agencies information about the number of strikes undertaken by the U.S. Government against terrorist targets outside areas of active hostilities from January 1, 2016, through December 31, 2016, as well as assessments of combatant and non-combatant deaths resulting from those strikes, and publicly release an unclassified summary of such information no later than May 1, 2017. By May 1 of each subsequent year, as consistent with the need to protect sources and methods, the DNI shall publicly release a report with the same information for the preceding calendar year.

The problem with instituting policies via executive orders is they can be undone using the same process. It appears the Trump Administration isn't willing to abide by the rules the previous administration left for it to deal. Trump's executive order rescinds Obama's directive, allowing this administration to operate with the same opacity the previous administration enjoyed for its duration.

And we can't even say Obama's reporting requirement was great while it lasted. It went into force July 1, 2016. By the time the first reporting period rolled around in 2018, a different president was in office. As Charlie Savage points out for the New York Times, the new order simply codifies this administration's failure to publish the first required report.

Mr. Trump’s revocation of the disclosure rule amounted to a belated acknowledgment that his administration had already changed the Obama policy in practice: The director of national intelligence never put out a report about bystander casualties in 2017, even though the Obama-era order requiring one remained on the books last year, when the report was due out.

Trump's order claims the reporting is redundant as there are other drone strike reports already mandated by law. But this revocation gives the CIA -- an agency that has "acquired a taste" for deadly drone strikes -- complete opacity. The reporting requirements left untouched by Trump's order only affects Defense Department drone operations. The CIA's operations -- often carried out away from areas declared war zones by the US government -- will continue to operate under the radar, safely shielded from the eyes of the public.

We don't know if the CIA's use of drone strikes has kept pace with the DoD's escalation. And we may never find out. But one thing's for certain: the Trump Administration will be deploying far more drone strikes than the drone-happy Obama Administration. This can be gleaned by the few strike numbers that have been made public by the Defense Department, as collated here by Steve Niva, the editor of the Middle East Report.

Trump promised during the campaign to “bomb the shit” out of ISIS and it appears to be one of the few promises he has kept. Trump inherited from Obama an escalating war against ISIS in Iraq and Syria, but both conventional bombing and drone strikes have significantly increased under Trump as a result of his new ISIS battle plan, whose strategy Defense Secretary James Mattis defines as “annihilation tactics.”

[...]

[I]n the past three years, the number of military drone strikes there has also climbed, from 304 in 2015, to 376 last year, to 362 through the first eight months of Trump’s presidency. At this pace, 2017 will exceed previous yearly tallies.

Increasing deployments while decreasing transparency: that's the Presidential way. It worked for Obama for all eight years he was in office. On the way out the door, he made a futile gesture in response to an escalation in civilian deaths -- one ignored by the CIA and now granted an executive erasure by the new boss. We, as a nation, kill people based on metadata. And no one at the top feels obligated to hand over any data at all on these killings to the public that's funding these deaths.

Filed Under: barack obama, donald trump, drone strikes, drones, executive orders, transparency

ACLU Asks Court To Force Government To Fight Fairly In FOIA Lawsuit Over Drone Strike Docs

from the this-is-some-[redacted]-right-here dept

The ACLU is headed to the Second Circuit Appeals Court, hoping to force the DOJ to be more... realistic about the government's drone strike operations in Pakistan. It's an FOIA lawsuit, with the ACLU seeking drone documents and being told -- in so many black bars -- that this publicly-acknowledged program is too secret to disclose.

The ACLU goes into this battle fighting blind:

In August 2016, the government blacked out a court ruling against government secrecy (yes, really), hiding from the public its reasons for why the ruling should remain secret. Then, it also hid its reasons for appealing that ruling to a higher court.

The DOJ argues the Pakistan drone strike program has never been officially acknowledged or disclosed. Going from there, it argues it shouldn't have to turn over the information the ACLU is requesting. But, as the ACLU points out, there's plenty of public knowledge about the program's existence. From the ACLU's filing [PDF]:

In this case, the government has not made public the subject of its appeal, and it has redacted any reference to the ruling it challenges from the district court’s opinion. But as best as the ACLU can tell, the appeal asks this Court a simple question: Is it a secret that the United States conducts drone strikes in Pakistan? To answer that question, the Court need only read the plain words, spoken in public while in Pakistan, by the United States’ former Secretary of State. Reading those words, the only logical and plausible answer to that question is “no.”

Here's John Kerry's statement on the program the DOJ says no one is talking about because it arguably may not officially exist:

This evidence included a statement straight from former Secretary of State John Kerry, made in an August 2013 interview on Pakistani television. When Secretary Kerry was asked by the Pakistani journalist if he envisaged a timeline for ending U.S. drone strikes in Pakistan, Secretary Kerry responded that he did and that “the president has a very real timeline and we hope it’s going to be very, very soon.”

Journalists, activists, human rights advocates, and Pakistani citizens have gathered plenty of data on drone strikes the US may or may not be performing. More than 400 strikes have been reported since 2004. And yet, the government claims nothing can be disclosed -- much less discussed openly in court -- because it's a "secret" operation.

In the last courtroom round, the ACLU handed this info to the judge and then watched the government take its paperwork and arguments somewhere the ACLU couldn't participate.

Nevertheless, in the district court, the government argued that former Secretary of State Kerry’s words did not amount to an official disclosure, and it did so in open court. Once the district court apparently agreed with the ACLU, however, the government took its arguments—and the court’s ruling—behind closed doors. The ruling at issue is hidden behind redactions, as are the government’s arguments on appeal. What’s more, the government now asks this Court to erase the district court’s ruling from the books—perhaps even without deciding whether the information at issue is actually a secret.

The ACLU is now asking the Appeals Court to make this a fairer fight.

The ACLU has endeavored to respond to the government’s arguments as comprehensively as possible. However, almost 60% of the publicly filed version of the government’s opening brief is redacted, and the government has eliminated every reference to the district court ruling that it challenges from its brief and the opinion itself. It is therefore possible that the ACLU misconstrued or failed to identify some of the government’s arguments.

You can't fight what you can't see. The government wants the district court's ruling (in favor of the ACLU) overturned and has left the ACLU with the least-useful 40% of its briefing to work with. Before everything gets considered by the court, the ACLU would at least like a second stab at a brief, possibly with the assistance of some less-redacted documents.

The ACLU seeks to litigate this case fairly, and to be as helpful as possible to the Court in adjudicating it. To that end, the ACLU asked the government to review again the redactions in the district court’s opinion before the government filed its appellate brief so that the parties could meaningfully address the relevant issues on appeal. In response, the government asserted that no further information could be provided. Therefore, if the ACLU did not address a particular issue the Court deems important to the resolution of this case, the ACLU would welcome the opportunity to submit supplemental briefing, with the benefit of the Court’s (rather than solely the government’s) views about what can and cannot be said in open court.

Everything's so secret no one can look at it (at least no one who doesn't work for the government) and no one can talk about it (except those who work for the government). The government is using claims of national security to stack the deck in this litigation. Hopefully, the appeals court will realize it can't hold a fair hearing if one side remains blindfolded.

Filed Under: 2nd circuit, appeal, doj, drone strikes, foia, pakistan, redactions
Companies: aclu

Leaked Documents Show US Drone Killings Racking Up Collateral Damage, Damaging Future Intelligence Efforts

from the death-from-above dept

The Intercept has just published an incredible article (in five parts) on the United States' drone-strike programs. Based on documents handed over by yet another leaker, the article contains some very disturbing information about the CIA's targeted killing activities -- including the fact that targeted killings are rarely well-targeted.

To begin with, there's the problem of distance. The drone strikes in Yemen and Somalia attack targets much further away than those targeted in the Iraq and Afghanistan. Because strikes routinely occur on the outer limits of the Predator drones' range (up to ~1000km), surveillance is abandoned in favor of attacks. When a drone strike does occur, it usually utilizes multiple drones to ensure the target has been killed (the "Find, Fix and Finish" or "F3" cited in the documents). Because of this, lots of "blinking" occurs (gaps in surveillance coverage) that snowballs into future intel gaps that make other "targeted" strikes even less targeted.

Added to this is the fact that blowing someone up doesn't leave much for analysts to sort through.

Deadly strikes thus truncate the find, fix, finish cycle without exploitation and analysis — precisely the components that were lacking in the drone campaign waged in East Africa and Yemen. That shortfall points to one of the contradictions at the heart of the drone program in general: Assassinations are intelligence dead ends.

The ISR study shows that after a “kill operation” there is typically nobody on the ground to collect written material or laptops in the target’s house, or the phone on his body, or capture suspects and ask questions. Yet collection of on-the-ground intelligence of that sort — referred to as DOMEX, for “document and media exploitation,” and TIR, for “tactical interrogation report” — is invaluable for identifying future targets.

Stating that 75 percent of operations in the region were strikes, and noting that “kill operations significantly reduce the intelligence available from detainees and captured material,” the study recommended an expansion of “capture finishes via host-nation partners for more ‘finish-derived’ intelligence.”

The "host-nation partners" are also part of the problem. They have their own needs and desires and aren't above having the CIA do their dirty work for them.

In 2011, for example, U.S. officials told the Wall Street Journal that they had killed a local governor because Yemeni officials didn’t tell them he was present at a gathering of al Qaeda figures. “We think we got played,” one official said.

Even in Afghanistan, where surveillance coverage was better and signals intelligence stronger, drone strikes still resulted in the deaths of several non-targets.

[D]ocuments detailing a special operations campaign in northeastern Afghanistan, Operation Haymaker, show that between January 2012 and February 2013, U.S. special operations airstrikes killed more than 200 people. Of those, only 35 were the intended targets. During one five-month period of the operation, according to the documents, nearly 90 percent of the people killed in airstrikes were not the intended targets.

The US government marginalizes this collateral damage by referring to nearly everyone it kills -- targeted or not -- as "combatants," "military-aged males," or simply "enemies killed in action." Very rarely has it been forced to confront the reality of its inaccurate attacks.

But the CIA is sold on the program and it has been for years. Drone strikes may cause a lot of collateral damage and are prone to manipulation by local governments, but the US considers this program to be the most "efficient" way to "eliminate" terrorist threats. It has almost completely eradicated an essential component of its counterterrorism efforts, though. Dead men provide no HUMINT. At one time, capturing suspected terrorists used to be part of the equation. That's no longer the case.

“The drone campaign right now really is only about killing. When you hear the phrase ‘capture/kill,’ capture is actually a misnomer. In the drone strategy that we have, ‘capture’ is a lower case ‘c.’ We don’t capture people anymore,” Lt. Gen. Michael Flynn, former head of the Defense Intelligence Agency, told The Intercept. “Our entire Middle East policy seems to be based on firing drones. That’s what this administration decided to do in its counterterrorism campaign. They’re enamored by the ability of special operations and the CIA to find a guy in the middle of the desert in some shitty little village and drop a bomb on his head and kill him.”

Surveillance now appears to be used mainly for targeting, rather than intelligence. Data and communications acquired by the NSA feeds into drone strike operations -- not to provide information on potential attacks -- but to locate targets. Money and man-hours are poured into surveillance, only to have a possible source of future intel killed off, rather than made use of.

Take the case of Bilal er-Berjawi, known to the US government as "Objective Peckham." British and US intelligence surveilled Berjawi for six years, without ever making a serious move to "capture" him. Once it was decided he was supplying terrorists with weapons and money, the UK government stripped him of his citizenship and a CIA drone strike in Somalia took his life.

The entire Intercept piece is more than "worth reading." It's an essential, damning look at a program the US government has long touted as a success. The leaked documents suggest otherwise. Instead, they point towards an "extrajudicial killing" regime that sanitizes the carnage and deprives collateral damage of its humanity. While the program may have eliminated a few terrorism suspects, the program is predicated on the notion that only those who present an "immediate threat" will be killed. As we can see from the case of Berjawi, this "immediate" threat lasted more than six years and included multiple, unchallenged reentries to the UK.

This is part of who we are as a country: judge, jury and executioner, divorced from the humanity at the other end of the drone strikes by lines of code and thousands of miles.

Filed Under: drone strikes, drones, extrajudicial killing, intelligence, killing, leak, targeted assassination

Judge Says Government Can Continue To Refuse To Acknowledge Certain Drone Strike Documents

from the no-hard-truth-left-unhidden dept

Documents pertaining to the accidental killing of two men by US drone strikes in Yemen can continue to remain unacknowledged by the agencies guiding the strikes.

A federal judge has ruled the CIA and Defense Department (DOD) do not have to confirm or deny whether they have records on the “factual basis for the killing” of either Samir Khan or Abdulrahman al-Awlaki, who were killed in two separate drone strikes in September and October of 2011.

The heavily-redacted order does contain some good news, however. The presiding judge ordered the Dept. of Defense and the CIA to turn over FOIAed documents to the ACLU that contain "previously acknowledged facts," thus preventing the Dept. of Justice from turning real life into a bizarre fantasy world where previously disclosed information can be treated as though it was still locked up in the agency's "TOP SECRET" digital filing cabinet.

But the obvious downside is this: because the government has been given permission to avoid confirming or denying the existence of the documents the ACLU is seeking, the search for more information on accidental deaths and collateral damage will still consist of issuing speculative FOIA requests, which will then result in more lengthy, expensive litigation.

I'm pretty sure the involved agencies believe they can outlast FOIA requesters, especially if they continue to receive mostly-favorable decisions from judges who place more faith in the government and its assertions about national security than in those who view government secrecy with considerably more skepticism. The problem is that the government has the resources to fight long legal battles. Most FOIA requesters do not.

This decision also further insulates the government from the repercussions of its own actions. By allowing the agencies to neither confirm nor deny the existence of these documents, it gives the government permission to deflect further inquiries into the oversight governing drone strikes -- and what it does when it suspects a strike has killed the wrong people.

If one accepts the government’s claims that Khan and Abdulrahman’s deaths were “accidental,” one at least has to believe the government did some kind of review after the strikes once they recognized two US citizens had been killed. This is what the ACLU suspects.

The ACLU and Center for Constitutional Rights have pursued a lawsuit challenging the constitutionality of the strikes, which killed the three US citizens. And, in this lawsuit, the ACLU has challenged the right of the government to keep information related to their deaths secret.

This sort of information is definitely of the "public interest" variety and should be given more heft when weighed against national security concerns. The American public isn't necessarily supportive of this highly-secret program and considering its complete lack of say in the matter, the least it should be given is the opportunity to more closely examine the accountability process.

Instead, the opinion allows the government to redact much of what it can't Glomar into nonexistence with the most abused FOIA exemption: b(5). Nominally for "deliberative process" documents only, the exemption has expanded to cover almost anything the government doesn't want to (immediately) reveal. About the only way to remove a b(5) exemption is through the courts -- an expensive process with low odds of success.

Filed Under: abdulrahman al-awlaki, cia, dod, doj, drone strikes, foia, samir khan
Companies: aclu

Feinstein And Chambliss Let James Clapper Talk Them Out Of Requiring Transparency On The Administration's Drone Strikes

from the editing-the-pre-edited-version dept

It looks like the American public won't be getting any answers on the government's extrajudicial killings any time soon. An intelligence bill that passed the Senate late last year contained a stipulation requiring the administration to provide statistics on drone strikes, including number of combatants and noncombatants killed or injured in these strikes. That requirement has now been excised, thanks to the efforts of Sens. Feinstein and Chambliss and their buddy at the Office of the Director of National Intelligence, James Clapper, as Spencer Ackerman reports.

[T]he Guardian has confirmed that Senate leaders have removed the language as they prepare to bring the bill to the floor for a vote, after the director of national intelligence, James Clapper, assured them in a recent letter that the Obama administration was looking for its own ways to disclose more about its highly controversial drone strikes.

“The executive branch is currently exploring ways in which it can provide the American people more information about the United States’ use of force outside areas of active hostilities,” Clapper wrote to the leaders of the Senate committee, Democrat Dianne Feinstein of California and Republican Saxby Chambliss of Georgia, on 18 April.

CC'ed on the letter are the heads of the House Intelligence Committee, Mike Rogers and Dutch Ruppersberger. This decision wasn't in their hands, but even if it was, it wouldn't have played out any differently. Rogers, in particular, is a huge fan of the administration's drone work and has publicly lamented the fact that the slowly-turning wheels of bureaucracy are keeping the US from killing even more people.

Feinstein's relationship with drones is, of course, somewhat hypocritical. She feels there should be stricter regulations on commercial drone usage (partially prompted by a non-commercial drone appearing outside her house during a Code Pink anti-NSA protest) and seems generally opposed to drone surveillance. However, she does stand strongly behind the nation's counterterrorism efforts and believes killing people with drones (rather than just watching them) is more acceptable.

Even more oddly, despite her very public battle against the CIA over control of the so-called "Torture Report" (a battle also marked by a bouts of Feinstein hypocrisy), she's been very supportive of the agency's weaponized aircraft.

Feinstein has long been a defender of the CIA’s drone strikes. During a February 2013 confirmation hearing for CIA Director John Brennan, Feinstein stated that the CIA’s targeting procedures kills only “single digits” of civilians annually, an assertion that cannot be independently confirmed because of the official secrecy surrounding the strikes.

Even some intelligence officials have grudgingly agreed some transparency on this issue would be a positive step for the administration to take. But that number doesn't include James Clapper, whose unintentionally humorous letter asserts that the self-proclaimed "most transparent administration" is actively seeking ways to publicize drone strike numbers. Only in recent months has the administration even acknowledged there might be a downside to its drone strike program. There's been a rollback in the number of strikes and the administration did express its hesitance to kill American citizens with drones, even if they clearly were associating with known terrorists. But this hand-wringing was mostly about public relations and less about the reality of the situation -- that the US would have to piss off yet another country by blowing past its agreement with them to not engage in military strikes on its soil.

So, there's that. And all of that is indeed very little. For years, it's been even less, as Ackerman points out.

The sharing of even basic information about drone strikes has run into a wall of official secrecy. Several independent groups attempt to track the numbers of people killed in the strikes, but no official US confirmation has been possible.

For one obfuscation artists (Clapper) to claim another (the administration) will be taking the lead when it comes to transparency borders on farcical. Now that Senate intelligence heads have complied with Clapper's request, the intelligence community's accountability has been removed. This puts the whole thing in the administration's hands, which isn't really an improvement. I'm sure the current president has no desire to publicly announce his regime has been more deadly than his predecessor's, especially given Bush's proclivity for pushing military/surveillance solutions to the world's problems.

Filed Under: dianne feinstein, drone strikes, james clapper, saxby chambliss, transparency

DOJ: Some Constitutional Rights Can't Be Tested In Courts, Like Our Ability To Kill You With A Drone

from the say-what-now? dept

Another day, another crazy claim from the DOJ. The latest concerns a legal challenge to the administration's ability to use drone strikes against US citizens abroad. The US has been arguing that this issue cannot be tried in court because it's outside the court's jurisdiction and because of national security reasons. Most ridiculously of all, the DOJ has argued that there are Constitutional rights that cannot be challenged in court:

Deputy Assistant Attorney General Brian Hauck argued there was a difference between having a constitutional right—which he said could be protected by the executive and legislative branches—and being able to make constitutional claims in court.

Think about that statement for a second. It's not just legally wrong, it's horrifying. Thankfully, Judge Rosemary Collyer found this claim equally bizarre.

"I'm really troubled…that you cannot explain to me where the end of it is," Collyer said. "That, yes, they have constitutional rights but there is no remedy for those constitutional rights."

In case you're wondering, Hauck apparently is relying on the Political Question Doctrine, which tends to be applied very narrowly and is only supposed to mean that courts should not take on cases that present a "political" question rather than a "legal" question. But, a Constitutional issue over whether or not the US government has the right to kill a US citizen like that certainly seems like a legal question, not a political one.

Hauck further argued the executive and legislative branches could be trusted to protect the rights of citizens. In other words: "Hey, courts, don't worry about US drone strikes killing US citizens, Congress and the administration have this one covered." But, um, that's not how it works. We have three branches of government for a reason, and the checks and balances they provide is the key reason. Having an administration that is in charge of using the drone strikes, along with a very compliant Congress, as the only ones capable of determining if the use is appropriate seems to completely ignore the basic premise of the checks and balances of government, especially when it comes to the Constitutional rights of US citizens.

"The problem is, how far does your argument take you?" Collyer said, adding that she found it "a little disconcerting" that the government was arguing that there could be no court review of a decision by the executive and Congress to target American citizens abroad.

It's good to see the judge is concerned, but this case has a long, long way to go, and the administration is going to try as hard as possible to keep this issue out of court entirely.

Filed Under: administration, brian hauck, constitution, courts, doj, drone strikes, drones, political questions doctrine, rosemary collyer

Eric Holder On Domestic Drone Strikes: Eh, Could Happen

from the i-just-pooped-myself dept

The questions about drones keep coming. Much of the focus has been on the legality of their use overseas, or else the manner in which domestic law enforcement uses them here at home. Glyn Moody even recently wrote about how the World Wildlife Fund wants to use them to tackle those who would poach endangered species throughout the world. Some folks in government have a problem with all this, in particular the coupling of the President's power to kill Americans if the government deems them as terrorists with the use of flying metal death machines raining carnage from the sky.

Like Rand Paul, for instance, who recently sent a letter to John Brennan, nominated as director of the CIA, asking him to clarify how the administration would view their power to authorize lethal force. Eric Holder, Attorney General, took the time to respond to Paul, and included this gem.

Holder said it was possible, "I suppose," to imagine an "extraordinary circumstance in which it would be necessary and appropriate" under U.S. law for the president to authorize the military to "use lethal force" within the United States. However, Holder said the question was "entirely hypothetical" and "unlikely to occur."

You know, I'm typically one of those people who hates placing issues into absolute stances. For any situation, there are almost always outliers that need to be considered, so using words like "never", "impossible", and so on are usually the wrong approach...except when it comes to fire-bombing domestic targets from the sky in a country filled with law enforcement. This is one of those easy situations where we need to be able to get together as Americans and say, no, we don't think it's a great idea for our own military drones to be used domestically. The potential for collateral damage has previously been documented and should make this question easy on its face.

The study by Stanford Law School and New York University's School of Law calls for a re-evaluation of the practice, saying the number of "high-level" targets killed as a percentage of total casualties is extremely low -- about 2%.

And that doesn't even begin to broach the subject of the constitutionality question. The rules for using lethal force in American domestic law enforcement are extremely specific and they're designed to protect LEOs and civilians in immediate harm that cannot otherwise be contained. To suggest that drones could strike domestically is to suggest that due process can be thrown completely out the window. As Senator Paul noted in his response to Holder:

"The U.S. attorney general's refusal to rule out the possibility of drone strikes on American citizens and on American soil is more than frightening. It is an affront to the constitutional due process rights of all Americans," Paul said.

Brennan, for his part, managed to, himself, say that the administration has "no intention" of using drone strikes on Americans in the United States...when there's a full moon or on weekends or something. Okay, so I added that last part, but why are we qualifying this at all? While Brennan also said that the CIA wouldn't have the authority to use drones domestically, it's not like there aren't those clamoring for more and more use of drones by the domestic alphabet agencies. Are we really okay with this?

Filed Under: domestic killings, drone strikes, eric holder, presidential assassination, presidential authority