Power Wars Blog by Charlie Savage

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

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

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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.

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And also:

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