The early stages of the post-9/11 rendition program began what would be a multiyear battle between the FBI and the CIA over who would take the lead in investigating the terror attacks. It would also bring to the surface how little regard the Bush White House had for anything vaguely resembling a law enforcement approach to the perpetrators of 9/11. As the Taliban regime crumbled and US troops poured into Afghanistan, scores of al Qaeda operatives began retreating across the border into Pakistan. In November, Pakistani forces picked up al Qaeda trainer Ibn al Shaykh Libi, who allegedly ran the Khalden training camp in Afghanistan where the would-be “Shoe Bomber,” Richard Reid, and Zacarias Moussaoui, the so-called Twentieth Hijacker, were both trained. The Pakistanis handed Libi over to FBI agents stationed at Bagram Air Base for questioning. The FBI saw the prisoner as a potentially valuable source of intel on al Qaeda and a possible witness against Moussaoui. New York-based FBI agent Jack Cloonan told his agents in Afghanistan to “handle this like it was being done right here, in my office in New York.” He said, “I remember talking on a secure line to them. I told them, ‘Do yourself a favor, read the guy his rights. It may be old-fashioned, but this will come out if we don’t. It may take ten years, but it will hurt you, and the bureau’s reputation, if you don’t. Have it stand as a shining example of what we feel is right.’” Libi’s interrogators described him as cooperative and “genuinely friendly” and said that he had agreed to give them information on Reid in return for promises to protect his family.
The FBI treated the situation like a criminal procedure, where suspects had rights, and deals with informants were struck for access to bigger fish.
However, just as the FBI believed it was making headway with Libi, CIA operatives, on orders from [CIA Station Chief] Cofer Black, showed up at Bagram and demanded to take him into their custody. The FBI agents objected to the CIA taking him, but the White House overruled them. “You know where you are going,” one of the CIA operatives told Libi as he took him from the FBI. “Before you get there, I am going to find your mother and fuck her.”
Lovely.
The CIA flew Libi to the USS Bataan in the Arabian Sea, which was also housing the so-called American Taliban, John Walker Lindh, who had been picked up in Afghanistan, and other foreign fighters. From there, Libi was transferred to Egypt, where he was tortured by Egyptian agents. Libi’s interrogation focused on a goal that would become a centerpiece of the rendition and torture program: proving an Iraq connection to 9/11. Once he was in CIA custody, interrogators pummeled Libi with questions attempting to link the attacks and al Qaeda to Iraq. Even after the interrogators working Libi over had reported that they had broken him and that he was “compliant,” Cheney’s office directly intervened and ordered that he continue to be subjected to enhanced interrogation techniques. “After real macho interrogation -- this is enhanced interrogation techniques on steroids -- he admitted that al Qaeda and Saddam were working together. He admitted that al Qaeda and Saddam were working together on WMDs,” former senior FBI interrogator Ali Soufan told PBS’s Frontline. But the Defense Intelligence Agency (DIA) cast serious doubt on Libi’s claims at the time, observing in a classified intelligence report that he “lacks specific details” on alleged Iraqi involvement, asserting that it was “likely this individual is intentionally misleading” his interrogators. Noting that he had been “undergoing debriefs for several weeks,” the DIA analysis concluded the Libi may have been “describing scenarios to the debriefers that he knows will retain their interest.” Despite such doubts, Libi’s “confession” would later be given to Secretary of State Powell when he made the administration’s fraudulent case at the United Nations for the Iraq War. In that speech Powell would say, “I can trace the story of a senior terrorist operative telling how Iraq provided training in these weapons to al Qaeda.” Later, after these claims were proven false, Libi, according to Soufan, admitted he had lied. “I gave you what you want[ed] to hear,” he said. “I want[ed] the torture to stop. I gave you anything you want[ed] to hear.”
What’s remarkable to me is that, from the very beginning, this was more about cruelty and lies than it ever was about the truth. Some will argue that President Bush’s decision to treat things like war instead of police investigation gave him the legal right to treat his prisoners differently, and that perhaps may be true -- but treating them like garbage is never a good idea and, as New York-based FBI agent Jack Cloonan would have likely known at the time, is counterproductive.
Scahill’s book is filled with anecdotes like this, more or less chronologically detailing America’s slide into legal fictions that supported policies torture and targeted assassination. Another anecdote is about the targeted drone killing of an al Qaeda operative who happened to be in a car with an American citizen -- Ahmed Hijazi -- who was also killed in the attack.
The targeted assassination of US citizens away from the declared battlefield of Afghanistan sparked outrage from civil liberties and human rights groups. It was the first publicly confirmed targeted killing by the United States outside a battlefield since Gerald Ford implemented a ban on political assassinations in 1976. “If this was the deliberate killing of suspects in lieu of arrest in circumstances in which they did not pose an immediate threat, the killings would be extra-judicial executions in violation of international human rights law,” declared Amnesty International in a letter to President Bush. “The United States should issue a clear and unequivocal statement that it will not sanction extra-judicial executions in any circumstances, and that any US officials found to be involved in such actions will be brought to justice.”
Yeah. So much for that.
Far from issuing such a statement, the Bush administration not only owned the operation but pushed back hard, asserting its right under US law to kill people it designated as terrorists in any country, even if they were US citizens. “I can assure you that no constitutional questions are raised here,” National Security Advisor Condoleezza Rice said on Fox News a week after the attack. “The president has given broad authority to U.S. officials in a variety of circumstances to do what they need to do to protect the country. We’re in a new kind of war, and we’ve made very clear that it is important that this new kind of war be fought on different battlefields.” She added, “It’s broad authority.”
The targeted killing didn’t just grab the attention of human rights groups. “To the extent you do more and more of this, it begins to look like it is policy,” said the CIA’s former general counsel, Jeffrey Smith. If used regularly, such attacks would “suggest that it’s acceptable behavior to assassinate people. … Assassianation as a norm of international conduct exposes American leaders and Americans overseas.
In addition to launching a new kind of war in Yemen and the surrounding region, the drone strike that killed Hijazi would prove to be a precedent for Bush’s successor, Barack Obama, who nearly a decade later asserted the right of the US government to kill another US citizen in Yemen.
That, of course, was Anwar al-Awlaki (and his teenage son), but the broader point is one we see time and time again in history. The power of the U.S. president is nebulously defined. What one president asserts, and is not stopped from doing, becomes precedent, and is used by future presidents. It becomes, de facto, the power of the president, almost regardless of what the Constitution does or does not say about it.
But here, the Bush administration at least tried to concoct a legal construct to justify these actions. Broadly speaking, that was treating terrorism as a war rather than the crime that it had traditionally been viewed as. That opened up tons of nebulous options under the legal war powers of the U.S. president.
I found this analysis and dissection fascinating.
Within the US laws governing military and intelligence operations, there are gray areas. Title 50 of the US code, of federal law, sets out the rules and structures for intelligence operations, while Title 10 covers military actions. The code under which a particular operation is performed has serious implications for oversight and accountability. The terms “covert” action and “clandestine” operations are often thrown around as though they mean the same thing. They do not. “Covert action” is a doctrinal and legal term that, broadly speaking, refers to an activity whose sponsorship is meant to be a secret. It is meant to provide the United States with “plausible deniability.” Such operations are extremely risky -- not just in terms of the operational danger, but because they often involve secret US agents conducting operations inside the borders of a sovereign country without alerting its government. If the operation is exposed or disrupted, the potential for scandal is very real. The legal definition of covert action, according to Title 50, is “An activity or activities of the United States Government to influence the political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly.”
Wait. Put a pin in that. That’s legal?
A covert action requires a presidential finding and for the White House to brief the House and Senate Intelligence Committees on its contents. This briefing must occur before the covert action unless there are “extraordinary circumstances.”
Evidently so. With a briefing to Congress.
The requirements for congressional involvement were established to prevent scandals such as the Bay of Pigs invasion of Cuba and Iran-Contra. Those operations were passionately supported by [Vice President Dick] Cheney and [Secretary of Defense Donald] Rumsfeld. Although they no doubt regretted the fact that Iran-Contra became public and stirred controversy, they did not regard the operation itself as a scandal but rather as a model for how the United States should conduct its dirty business.
Okay. So that’s covert action. Do it in secret, but let your overseers know before you do it. Because, you know, according to the Constitution, Congress has oversight authority over the Executive Branch.
Military doctrine defines another class of activities, “clandestine operations,” in which the point of secrecy is to protect the integrity of the mission, not conceal its sponsor, the US government. The military may conduct operations that are both covert and clandestine, but these are rare. Unlike covert actions, clandestine operations do not require a presidential finding if “future hostilities” are “anticipated” in the country where they are taking place. Nor is the administration required to report the operation to Congress. Such operations are defined as “Traditional Military Activities” and offer the intelligence committees no real-time oversight rights. Under US law, the military is not required to disclose the specific actions of an operation, but the US role in the “overall operation” should be “apparent” or eventually “acknowledged.”
You can probably see where this is going.
From where Rumsfeld and Cheney were sitting, the United States was at war, and the world was a battlefield. Therefore, hostilities were “anticipated” in every country on earth, necessitating dozens if not hundreds of potential “Traditional Military Activities” across the globe. Cheney and Rumsfeld realized that by using JSOC -- a black-ops force whose activities arguably straddled both Title 10 and Title 50 -- they could operate in the crevice separating US military and intelligence law. Much of JSOC’s operations could be classified under military doctrine as “Preparing the Battlespace,” which is defined by the US Special Operations Command as “the umbrella term for all activities conducted prior to D-Day, H-Hour to plan and prepare for potential follow-on military operations … in likely or potential areas of employment, to train and prepare for follow-on military operations.” Such activities could be conducted as Advance Force Operations (AFOs), which are “military operations conducted by forces which precede the main elements into the area of operations to prepare for follow-on operations.” Unlike CIA operations, AFOs can be carried out with minimal external oversight -- for a significant period of time -- prior to an “overt” hostility, or for a “contingency” that may or may not occur.
Did you follow all that? If we operate under the laws of clandestine operations, we don’t have to tell Congress anything, and if we call everything we do “preparing the battlespace,” we can do anything we want for as long as we want.
The congressional intelligence committees viewed this logic as a workaround to oversight and reporting laws, charging that the Defense Department wanted to liberally deploy its increasingly formidable intelligence capabilities abroad under the pretense of operational planning for future military hostilities, without granting the intelligence committees their due oversight.
I don’t doubt it. One of the things that is amazing to me is all the legal shenanigans that the Bush administration went through in order to accomplish their goals. They spent a lot of time looking for “legal” justifications for their actions. In some ways, that makes it seem like the years after September 11 were much simpler times. One wonders if current administrations would even try to crawl through as many hoops.
Which brings us back to Anwar al-Awlaki.
In early 2013, a US Department of Justice “white paper” surfaced that laid out the “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen.” The government lawyers who wrote the sixteen-page document asserted that the government need not possess specific intelligence indicating that an American citizen is actively engaged in a particular or active terror plot in order to be cleared for targeted killing. Instead, the paper argued that a determination from a “well-informed high level administration official” that a target represents an “imminent threat” to the United States is a sufficient basis to order the killing of an American citizen. But, the Justice Department’s lawyers sought to alter the definition of “imminent,” advocating what they called a “broader concept of imminence.” They wrote, “The condition that an operational leaders present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons will take place in the immediate future.” The government lawyers argued that waiting for a targeted killing of a suspect “until preparations for an attack are concluded, would not allow the United States sufficient time to defend itself.” They asserted that such an operation constitutes “a lawful killing in self-defense” and is “not an assassination.”
Again, the need for legal justification -- this time in the Obama administration -- is laudable. But it is also laughable. Don’t like that pesky word ‘imminent’? Then let’s just redefine it to mean exactly its opposite. Big Brother would be so proud! And yes, let’s talk of the United States “defending itself.” Killing that American who hasn’t done anything yet is necessary to keep the United States safe -- so long as a “well-informed high level administration official” says so. Right?
But it goes even farther than that.
In late 2012, the ACLU and the New York Times sought information on the legal rationale for the kill program [of the Obama administration], specifically the strikes that had killed three US citizens -- among them sixteen-year-old Abdulrahman Awlaki. In January 2013, a federal judge ruled on the request. In her decision, Judge Colleen McMahon appeared frustrated with the White House’s lack of transparency, writing that the Freedom of Information Act requests raised “serious issues about the limits on the power of the Executive Branch under the Constitution and laws of the United States, and about whether we are indeed a nation of laws, not men.” She charged that the Obama administration “has engaged in public discussion of the legality of targeted killing, even of citizens, but in cryptic and imprecise ways, generally without citing to any statute or court decision that justifies its conclusions.” She added, “More fulsome disclosure of the legal reasoning on which the Administration relies to justify the targeted killing of individuals, including United States citizens, far from any recognizable ‘hot’ field of battle, would allow for intelligent discussion and assessment of a tactic that (like torture before it) remains hotly debated. It might also help the public understand the scope of the ill-defined yet vast and seemingly ever-growing exercise.”
These are all great points. But unfortunately, it seems, the judge’s hands were tied.
Ultimately, Judge McMahon blocked the release of the documents. Citing her legal concerns about the state of transparency with regard to the kill program, she wrote:
“This Court is constrained by law, and under the law, I can only conclude that the Government has not violated FOIA by refusing to turn over the documents sought in the FOIA requests, and so cannot be compelled by this court of law to explain in detail the reasons why its actions do not violate the Constitution and laws of the United States. The Alice-in-Wonderland nature of this pronouncement is not lost on me; but after careful and extensive consideration, I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules -- a veritable Catch-22. I can find no way around the thicket of laws and precedents that effectively allows the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret.”
Not Big Brother, evidently, but Captain Yossarian, or more precisely, General Dreedle or whoever is at the top of that chain of command who can put such powers of paradox into motion. Many of us now live in a country where, evidently, it is legal for the government to murder its citizens without any form of due process, and it is legal for the government to refuse to defend and describe why and how it has the power to do that. Talk about the imperial presidency!
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This post first appeared on Eric Lanke's blog, an association executive and author. You can contact him at eric.lanke@gmail.com.
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