Is the Government Worried about Revealing Broader Targeted Killing Authority in the Drone FOIAs?

In addition to yesterday’s letter’s explanation that the government needed an extension in ACLU and NYT’s Anwar al-Awlaki drone FOIA because Obama and/or his closest aides–the highest level of the Executive Branch–were getting involved, there was one other interesting phrase I wanted to note: the way in which it portrays the FOIA.

We write respectfully on behalf of the Department of Justice and the Central Intelligence Agency (collectively, the “Government”) to seek a further extension until May 21, 2012, of the Government’s deadline to file its consolidated motion for summary judgment in these related Freedom of Information Act cases seeking records pertaining to alleged targeted lethal operations directed at U.S. citizens and others affiliated with al Qaeda or other terrorist groups. [my emphasis]

That description doesn’t precisely match the request in any of the three FOIAs, which ask for:

ACLU: the legal authority and factual basis of the targeted killing of [Anwar] al-Awlaki, Abdulrahman [al-Awlaki], and [Samir] Khan.

NYT Savage: all Office of Legal Counsel memorandums analyzing the circumstances under which it would be lawful for United States armed forces or intelligence community assets to target for killing a United States citizen who is deemed to be a terrorist.

NYT Shane: all Office of Legal Counsel opinions or memoranda since 2001 that address the legal status of targeted killings, assassination, or killing people suspected of ties to Al-Qaeda or other terrorist groups by employees or contractors of the United States government.

The government seems squeamish, first of all, about repeating the language used in all three of these requests–targeted killing–opting instead for the phrase “targeted lethal operations.” Note, significantly, that these requests, and especially Shane’s, would not be limited to drone strikes, but also would include hit squads.

The government understandably opts not to use the names specified by ACLU, opting instead to use the generic “US citizen” used by Savage.

Equally understandably, it uses Shane’s language to describe the target: “Al-Qaeda or other terrorist groups.” But I find the adoption of Shane’s formulation significant, because it is much broader than the language from the AUMF:

those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons

And somewhat broader than the language from the NDAA:

person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners

Now, it’s not just Shane’s language that broadens the scope here. None of the three requests mention AQAP, which would at least give the government the ability to focus on questions about how it decided that Awlaki was a legitimate target under the AUMF (on that topic, note this exchange between Robert Chesney and Bruce Ackerman). Both NYT requests ask for information about targeting terrorists generally. Which might get into some interesting targeting decisions both specific to Pakistan (for example, the original decision to target Beitullah Mehsud–and therefore the Pakistani Taliban–was based on a potentially erroneous information about a dirty bomb) and more generally in places like Gaza or Iran or Latin America.

In other words, if the government maintains it has the authority to assassinate terrorists, generally, perhaps tied to the Iraq AUMF or perhaps tied to the Gloves Come Off MON, then this language might make it hard for the government to provide a tidy response to this FOIA.

Not only that, there’s one more issue going on: the government is also working on its DC Circuit response to ACLU’s appeal of a more general FOIA suit filed in DC in early 2010 asking for:

All records created after September 11, 2011 pertaining to the legal basis in domestic, foreign and international law upon which unmanned aerial vehicles (“UAWs” or “drones”) can be used to execute targeted killings (“drone strikes”), including but not limited to records regarding [among other things] who may be targeted.

The judge in this suit, Rosemary Collyer, granted the government summary judgment last September. She judged that the CIA generally and Leon Panetta in particular had acknowledged neither the CIA’s role in the drone program nor the existence of records about the program, and therefore the Agency’s Glomar response was proper.

Plaintiffs submitted ten detailed requests for records, covering the gamut from the “legal basis” for drone strikes; the selection of human targets; civilian casualties; post-strike assessments; limits to the use of drones; the agency of government or branch of the military involved; the supervision, oversight, discipline, or training of drone operators and those involved in targeting decisions, and more. There is nothing in the various statements submitted by Plaintiffs which speaks to any records on these points; only by inference from former Director Panetta’s statements might one conclude that the CIA might have some kind(s) of documentation somewhere. Thus, even if former Director Panetta could be understood colloquially to have suggested some sort of CIA involvement in drone strikes, he neither referenced specific records nor referenced records that go to the exact requests posed by Plaintiffs.


Plaintiffs fail to demonstrate that the CIA has officially acknowledged either the CIA’s involvement in a drone strike program or the existence or nonexistence of pertinent agency records. Plaintiffs’ arguments to the contrary, the CIA has not waived its ability to issue a broad Glomar response.

While I haven’t reviewed the abundant blabbing Panetta and President Obama have been doing about the drone program since Collyer’s ruling, it’s clear that there has been far more official acknowledgment of the program since the time she judged the blabbing to fall below the level of official acknowledgment.

The government’s response in this suit–assuming they don’t say the dog ate their homework here, too–is due May 7.

Note this FOIA, too, might present the same broadening problems for the government. While it does limit its request to drone strikes, it doesn’t even limit the request to terrorists (in its treatment of who might be targeted, for example, it asks whether “individuals involved in the Afghan drug trade” could be included).

Central to the question of Anwar al-Awlaki’s targeting is the fairly narrow–but still contentious–question of whether and when AQAP qualified as legitimate targets under the AUMF (or the Gloves Come Off MON). But these FOIAs ask broader questions about targeting generally, which may be one of the reasons the government is not rushing to provide clarity to its targeting killing policy.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

16 replies
  1. lysias says:

    Wasn’t there some controversy during the Bush administration as to whether Bush had authorized killing people within the U.S.? My recollection is that some member of the press asked an administration spokesman about that, and couldn’t get a straight answer.

  2. ondelette says:

    Believe the government thinks that the AUMF authorizes military action against al Qaeda generally. That is backed up by a Court decision, Hamdan, I believe, where the Supreme Court interpreted the AUMF as meaning that a common Article 3 armed conflict existed with respect to al Qaeda. Specifically, the Court invoked common Article 3 as being relevant to the prisoners, and that law only applies during armed conflict. Your belief that a separate authorization needs to exist for each separate branch of al Qaeda (e.g. AQAP or AQIM) isn’t shared by the government.

    That being said, I’m not quite sure how the AUMF, which authorizes military force, or what the Supreme Court said, which pertained to international law, has anything to do with the CIA or contractors.

    This is very much like the speech by Stephen Preston, where he misstated the principles of the laws of war, and then lied about the CIA fulfilling them. The CIA is not the military, and therefore shouldn’t have access to this line of reasoning. So there is a huge question as to why they have it: Why is the CIA being deployed as a military force routinely and openly, and why is the CIA general counsel openly making speeches about implementing the laws of armed conflict? Which branch of the government authorizes armed conflicts fought by the CIA? Under which Constitution does the Intelligence Community defend the United States? From what? Where? Under whose command and accountable to whom? Whose competent expertise oversees it and whose consent does it govern by?

  3. emptywheel says:

    @ondelette: Two things:

    Your belief that a separate authorization needs to exist for each separate branch of al Qaeda (e.g. AQAP or AQIM) isn’t shared by the government.

    Both misstates my belief and the debate about what the AUMF means. No one considers AQAP and AQIM to be “branches” of AQ–that’s not a historically or organizationally accurate of how this affiliation works. They are better described as “associated forces” (indeed, that’s the language two branches of govt have settled on) or affiliates. A key part of that discussion is the system of bayat that doesn’t always work in a hierarchy (that is, the people in AQAP have not sworn bayat to AQ, but to AQAP, and the groups have different goals and have been treated as separate organizations on State’s FTO list).

    The debate, though, has always been about whether an AUMF limited in time–those who had a tie to 9/11–can apply to an organization that wasn’t even started until 7 years later.

    Also, I think Preston actually isn’t talking about AUMF. He’s talking about Findings. That shouldn’t change the international law calculus (or shouldn’t though I suspect it does). But the CIA gets authorization under Findings, not AUMFs. Which is precisely why Preston says their actions are CONSISTENT with, but doesn’t talk about complying with. That doesn’t excuse them, but that is, I think, the logic he is using.

  4. earlofhuntingdon says:

    Oughtn’t the court to find it odd that a simple FOIA request – concerning the disclosure of the asserted legal authority behind a public policy whose consequences the president has bragged about in speeches – should require unanticipated direct consultations with the president to such an extent that it prevents the government from giving the court a timely, routine, statutorily mandated response?

  5. ondelette says:


    Do you actually believe that? That the USG doesn’t think they are all “Al Qaeda” and that when it got authorization to fight al Qaeda, it didn’t get authorization to fight all of them, just one of them? Do you think the government believes that? Have you ever talked to any of them? I think you’re picking nits. They believe they have the wherewithal to go after any of these “affiliates” because they believe that the organizations freely exchange members and plans. They believe that because especially the people in Yemen and the people in Afghanistan have been doing so since before 2001, as have a few of the people in Somalia and the Sudan. That has been documented in the press.

    I highly doubt you are going to find many war correspondents who have been covering the topic since the 1990s who disagree with them, either. They may disagree with them that they have the right to start wars wherever they please or use the CIA wherever they please, or create prisons and torture people, or a host of other things, but please don’t insult peoples intelligence by trying to assert that the people in AQAP never ever had anything to do with the AQ in Afghanistan/Pakistan but a post card with a smiley face on it. Or that the AQIM currently trying to dominate in towns in Mali is a wholly independent creation that never had a single radical in common with the others and never would have existed if NATO had never bombed Qaddafi. It just sounds like people chanting to the moon goddess in Pyongyang or something.

    al Qaeda is a very real, very nasty organization. Does that justify everything everybody that doesn’t like it is doing? Certainly not. But creating a series of little boxes and an arcane list of suborganizations and little categories to try to make it look like they aren’t a very nasty, and pretty much semi-global organization is stupid. It’s like having a debate on the different crime families and claiming they aren’t all the Mafia because some of them are the Gambinos and some are the Cosa Nostra and blah blah blah.

    Secondly, Preston specifically cited armed conflict, customary and statutory international law as a justification for the use of force. He used the word ‘consistent’ when he then cited the four principles of the law of armed conflict as, “Necessity, Distinction, Proportionality, and Humanity.” Actually, they are distinction, proportionality, undue suffering, and military advantage. Perhaps he was paraphrasing but it doesn’t sound like it, he intended to talk about compliance. He then went on to show how the CIA actions showed compliance with them by citing a mission that was not carried out by the CIA. It was that to which I was referring.

    But it isn’t for the CIA to refer to such at all, it is not this country’s military. And that was my point. It’s quite obvious from the way it does, and from the way it carries out military missions, that something is quite wrong and that it views itself as being justified on the basis of military use of force, whatever you say about findings.

    I am not misrepresenting anything. A general counsel who gives a speech misrepresenting his agency as the military and availing himself of a bastardized version of the law of armed conflict is showing the face of a very scary organization. You can cite all the documents you like. Stephen Preston did exactly what I said he did.

    Findings don’t cut it. Preston has zero mandate for talking about Article 51 or any of the other things he was talking about. And the National Security Act never provided for creating an alternative to the military.

  6. emptywheel says:

    @ondelette: Well, as the experts I talk to regularly who think treating AQ as a hierarchical monolith is stupid explain it to me, treating the many groups who support AQ’s ideology as if they are AQ effectively gives insurgents a reason to join up with AQ. That’s one of the reasons why in Yemen our CT efforts have actually resulted in a big growth of actual AQ members, bc so many insurgents w/sympathies to AQ have had their lives fucked over and families killed, which they blame on the US, which in turn gives them a reason to want to target the US rather than Yemen’s govt.

    So you’re telling me I shouldn’t listen to the experts?

    Also if you believe the USG treats them all the same, you probably better tell the press that the LIFG, who are key part of the coalition that is governing Libya and were picked up as AQ affiliates in the early days of the Afghan war before we knew better, are part of teh AQ monolith and therefore should be killed not assisted.

  7. ondelette says:


    Whatever. I never said they were a monolith, I said they exchange members and plans, and that the USG treats their permission to attack al Qaeda under the AUMF as permission to attack any of the groups. I’ve obviously spoken to different experts than you have, so we aren’t likely to agree, and you can listen to whomever you please, but you won’t be winning your argument with me any time soon. You aren’t convincing me you know what you’re talking about by treating me as if I’m ignorant of affiliations in Libya or anywhere else. Those aren’t the affiliations that make or break expertise.

    And I didn’t recommend a course of action. Go back and look at what I said and see if you can find one. You won’t. You applied a course of action to what I said, after deciding that my assessment of the legal treatment of al Qaeda as an enemy with respect to a common Article 3 conflict necessarily meant treating them as a hierarchical monolith and bombing families. That’s totally not a logical leap at all, even the ICRC can make the former logical treatment without making the latter one at all, you are confusing legal status with policy and war decisions.

    All I said was that the USG had a confirmed status via the Supreme Court for its conflict with al Qaeda, and that it believes that it is all of al Qaeda, and that really that is the case on the ground too, that the organization is completely a nasty organization, not one thing here another thing there and a dance in the flowers in a third place. The whole set of affiliates exchanges personnel, tactics, and plans, and shares ideology. This country believes itself to be at war with the whole thing, and has confirmation on the level of international law from the Supreme Court.

    If you would like to get into arguments about where it is legally allowed to fight with it, that gets into other matters of law, and there the USG starts to get tons of push back from organizations like the ICRC and from foreign governments and rights groups and everyone else. But most of those groups think there is sound footing for the simple statement that there is an armed conflict between the U.S. and al Qaeda. What that entitles or entails, there they all begin to tell you your mileage may differ.

    You, however, talk to different experts who apparently tell you otherwise.

    On the other statements, like that the affiliates have been sharing and aligned with each other since the 1990s, there’s a lot backing that one up, too. Did you forget bin Laden in the Sudan?

    I don’t make this stuff up. I also didn’t state, defend, or recommend any course of action, and you are trying to pin me to defending one. Because I believe that al Qaeda actually exists doesn’t make me some kind of neocon, it just makes me someone who believes it exists.

    Because I state that the U.S. believes that there is an armed conflict with that group doesn’t make me some strange being, either. The ICRC counts ~70 armed groups right now and 40 armed conflicts in which one or more parties to the conflict is an armed group instead of a high party (state). If whatever high parties to that conflict have not ratified AP2 (e.g. the U.S. for instance) then it is a common Article 3 conflict. So absolutely nothing I’m saying indicates my political leanings on the subject whatsoever within that set of comments.

    It’s just rattling off textbook international law and shouldn’t be rejoined by telling me about killing families. Do you want me to start talking about dead families, too? 1 million people died from April to December in the Horn of Africa last year. One Million. It’s pretty damned hard to picture any other way than to say that most were very young. Sleep tight.

  8. emptywheel says:

    @ondelette: You believe AQ exists. But you believe AQ looks, structurally, like George Bush understood it to look like in 2002. Or would have if the groups you’re claiming are part of AQ existed at that point. That misunderstanding of AQ is one of the things that led us to fail in Afghanistan and pursue stupid policies in Yemen and Somalia.

    I believe AQ exists, and I believe it works with affiliates which–if we misunderstand or misrepresent the relations between them and the tensions within those relationships–puts us at war with millions more people than we’re at war with, and does so in places (Egypt, Libya) where we’ve specifically set up those governments. Not to mentions means we don’t exploit the periods shortly after a leader swears bayat (OBL to Omar, Wuhayshi to AQ, Al Shabaab to AQAP) that creates a lot of dissension within an organization and the possibility to encourage ruptures (as some of our better CT people have been able to do).

    I also KNOW that there’s a FINDING that precedes and is broader than the AUMF, which includes groups that no one considers even remotely tied to AQ. Which seems to be one persistent cause of your distraction.

  9. emptywheel says:

    @ondelette: And yes. I’m aware that OBL was in Sudan. Know what? He was also getting a lot of support from top Saudis. Did you forget that? According to your logic, that means we’re at war against the Saudis.

    But … we’re obviously not.

    I also know that Ali Abdullah Saleh shielded AQ (not AQAP, but AQ) in his country for years, which the govt knew well and OBL used to boast about. Does that mean we’re at war with his (now al-Hadi’s) GOVERNMENT? Nope.

    Want to talk about Pakistan, too, the people who created many of the groups that are considered affiliates but not part of AQ? Cause if AQ is full of these branches where any partnership makes them one and part of the same war then we are obviously at war with Pakistan. Though maybe we are on that front, finally.

    Golly this is difficult when you don’t make overbroad historically inaccurate generalizations.

  10. lysias says:

    @ondelette: O’Connor’s opinion for the court in Hamdi seems to me to say that, once hostilities in Afghanistan end, the 2001 AUMF expires (and to hint that, if hostilities in Afghanistan go on too long, the court will re-examine whether detainees can be held for the duration of hostilities).

  11. ondelette says:


    No, according to my logic, we are not. We are at war with al Qaeda, as noted in the Hamdan decision. I’ve said it how many times now? Being “aided by the Saudis” does not make us at war with the Saudis.

    Saleh having shielded al Qaeda has some implications in the paragraph I wrote starting with, “If you would like to get into arguments about…” but otherwise doesn’t change what I said one iota. Likewise identically with Pakistan. No, we are not at war with Pakistan, not even remotely. Check out the situations when Pakistan does say they are at war — e.g. with India, and vice versa, for instance.

    Want a hint?

    If an armed group launches attacks of an international nature from within a state (high party), that state has two choices: 1) it can claim sovereignty over its territory, in which case it must take responsibility for the attacks and put an end to them and pay for them or possibly be attacked for its responsibility; or, 2) it can claim it can’t control what happens within its territory, in which case other parties are free to respond directly to the armed group disregarding its claims to sovereignty over its territory. There is a dispute on how far-reaching that doctrine is, with some opinions (e.g. ICRC) saying that it traditionally applies to borders of states in armed conflict and elsewhere is a matter of discussion, and others (e.g. the U.S.) saying it applies universally. But that’s the doctrine which applies, and which is disputed, not whether or not the U.S. is in conflict with the armed groups in question or whether or not the U.S.
    by firing on them is at war with the countries in question.

    This is textbook stuff, I’m neither making it up nor citing something very advanced and arcane.

    I didn’t make any historically broad over-generalizations. You are currently making some, trying to create a frame in which I’m some kind of neocon. I’m not. I told you, my bailiwick is more about the million people who died last summer because of climate change and al Shabab and failure to arouse interest in the proper kind of aid. I’m just pointing out some of the way this particular kind of law works and you don’t particularly like it.

    But keep in mind that what I originally wanted to point out is that all this stuff should be confined to the military, and only the military, where it can be put under rules and people who are elected can tell them when to start and stop, and the ICRC can demand visits, and the international human rights organizations can monitor — even if that still seems difficult, it’s a whole lot better than a chaos of contractors and three letter acronyms and secrecy. That isn’t the stupid first step it seems to be, it’s the key to ending this nightmare and the only way to get the genie back in the bottle.

  12. ondelette says:


    Under international law governing the holding of civilians, the amount of time they may be held is six months between reviews. Duration of hostilities is for combatants. Nobody may be held beyond the end of hostilities unless for a crime, but civilians are not held for the “duration of hostilities”. They are held with periodic reviews only as long as they are a risk to national security, and the period between reviews is six months.

    Since the U.S. does not admit those prisoners are Prisoners of War under GC3, that is the relevant law. They are merely getting summary reviews forever — until Justice O’Connor’s re-examination changes domestic law. It would have made all the difference in the world to move them to the U.S. but you could barely say that through all the shouting. When they got their habeas reviews, they’d have been right there in the courtroom and on American soil to be freed.

    But that isn’t relevant to that to which I was referring. I was referring to their assertion that the Geneva Conventions common Article 3 applied to al Qaeda, which I believe is in the Hamdan decision. Asserting that IHL applies is an assertion that armed conflict exists unless it’s an assertion about an occupation — but if it’s common Article 3 then it’s not an assertion about occupation.

    IHL doesn’t apply in times of peace.

  13. emptywheel says:

    @ondelette: Some of it SHOULD be confined to the military. But given that 1) Congress not only has no problem with CIA conducting drone strikes, but is pushing them to do more 2) CIA has memos from DOJ saying what they’re doing does not violate US or international law and therefore is a legal covert op under the NSA and 3) outside of the UN no one is prepared to take us on on this yet, then the fact that the CIA had prior authorization to attack all these groups means CIA will continue to do them, regardless of what international law says.

    I actually suspect people will only start paying attention to this issue is when a CIA officer gets the same treatment we’ve extended to unlawful combatants (though there’s a reason we keep those details secret).

    Look, I know Hamdan. I also know that Hamdan did not confirm that the US was at war with groups that did not exist yet. The law doesn’t usually work that way. I also know that your portrayal of groups that are very simply not AQ as AQ is the same stance the neocons take, which led them to implement very stupid policies that exacerbate the threat of Islamic extremism that is not AQ. Policies that are pushing more countries to go the way of Somalia. You may not want the same outcome as the neocons have brought out. If so, you might want to speak about Islamic extremist groups, both terrorists and not, with more subtlety.

    Or not. It’s your choice. But I, for one, don’t like you gasping that I believe that AQ is more nuanced than you make out, in spite of all the evidence to the contrary.

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