After Month of False “Transparency,” Administration Invokes Secrets Again

During the entire past month of leaks on targeted killings, I suspected that when the government finally got around to responding to the NYT and ACLU FOIAs for the OLC memo authorizing Anwar al-Awlaki’s death, it would once again claim the topic it had been leaking profusely about was too secret to release.

Call me cynical, but I’m still waiting for the Administration to say all this non-specific disclosure means it can tell the ACLU to take a hike.

They’re getting pathetically predictable.

The Executive Branch has determined that, while the government can acknowledge the existence of some documents responsive to the FOIA requests that form the basis of this lawsuit, for the most part it cannot provide public details regarding the classified documents that are withheld; even to describe the numbers and details of most of these documents would reveal information that could damage the government’s counterterrorism efforts.

There are two things that are especially illegitimate about this response. The response points to two of the speeches given precisely to provide a false sense of transparency about its assassination program.

One result of that analysis has been a series of speeches by the State Department Legal Adviser, by the Department of Defense General Counsel, by the Attorney General, and by the Assistant to the President for Homeland Security and Counterterrorism that have set forth for the American people the legal analysis and process involved in the determination whether to use lethal force.


Since the filing of these cases, senior U.S. officials have publicly addressed significant legal and policy issues pertaining to U.S. counterterrorism operations and the potential use of lethal force against U.S. citizens who are senior operational leaders of al-Qaida or associated forces. Bennett Decl. ¶ 17. These include speeches by Attorney General Eric Holder on March 5, 2012, and by Assistant to the President for Homeland Security and Counterterrorism John Brennan on April 30, 2012, addressing the circumstances in which it would be lawful to use lethal force against such U.S. citizens, and the process employed by the government in making decisions to employ targeted lethal force, respectively.


Because the CIA is a critical component of the national security apparatus of the United States, and because the speeches covered a wide variety of issues relating to U.S. counterterrorism efforts, it does not harm national security to reveal that copies of the Attorney General’s and Mr. Brennan’s speeches exist in the CIA’s files.

Of course, within minutes of the completion of Brennan’s speech, I and others noted that it was obviously misleading since it focused only on targeted killings and not signature strikes. Then as the flood of information on the drone program continued, it became even more clear how much Brennan’s speech served as self-serving propaganda.

When Brennan gave his drone speech on April 30, I–and a few other people–noted that the speech was already outdated. Brennan did admit, unequivocally, that we use drones to kill people.

So let me say it as simply as I can.  Yes, in full accordance with the law, and in order to prevent terrorist attacks on the United States and to save American lives, the United States Government conducts targeted strikes against specific al-Qaida terrorists, sometimes using remotely piloted aircraft, often referred to publicly as drones.

Yet he spoke repeatedly of targeting specific individuals.

Without question, the ability to target a specific individual, from hundreds or thousands of miles away, raises profound questions.


In this armed conflict, individuals who are part of al-Qaida or its associated forces are legitimate military targets. [my emphasis]

Thus, he wasn’t talking about the program in Yemen that–perhaps 10 days earlier–had been expanded to target patterns rather than individuals. Rather, he was pretending that the program remained limited to personality strikes, strikes against known targets.

The speech always seemed like an attempt to put the best spin on the program. But the approach makes even more sense now that we know Brennan is the one who has legal liability for making these targeting decisions.

Moreover, the specific treatment of this torrent of leaks also makes this declaration so problematic.

As Mark Hosenball reported, the CIA did not submit a crime report on all the leaks about its drone program.

The CIA has not filed a “crime report” with the Justice Department over reports about Obama’s drone policy and a U.S. “kill list” of targeted militants, an action which often would trigger an official leak investigation, two sources familiar with the matter said. They requested anonymity to discuss sensitive information.

This, in spite of the high level of detail provided in the leaks in the last months. For example, here’s the level of detail on the Anwar al-Awlaki and Samir Khan killing offered in Daniel Klaidman’s book, the precise subject of the ACLU FOIA.

But as the Americans were closing in on Awlaki, Obama let it be known that he didn’t want his options preemptively foreclosed. If there was a clear shot at the terrorist leader, even one that risked civilian deaths, he wanted to be advised of it. “Bring it to me and let me decide in the reality of the moment rather than in the abstract,” he said, according to one Obama confidant. “In this instance,” recalled the source, “the president considered relaxing some of his collateral requirements.” But in the end Obama was never forced to confront that awful dilemma.

On the morning of September 30, after finishing breakfast, Awlaki and several of his companions left the safe house and walked about seven hundred yards to their parked cars. As they were getting into their vehicles, they were blown apart by two Hellfire missiles. (Also killed was Samir Khan, the Pakistani American propagandist for AQAP and editor of the terrorist organization’s Internet organ, Inspire. Justice Department lawyers had told the military that they could not approve Khan’s killing, but after officials learned he had died in the raid, Khan was deemed “acceptable collateral damage.”

Yet now, the government–and the CIA especially–is claiming all this is too secret to reveal.

For example, whether or not the United States government conducted the particular operations that led to the deaths of Anwar al-Aulaki and the other individuals named in the FOIA requests remains classified. Likewise, whether or not the CIA has the authority to be, or is in fact, directly involved in targeted lethal operations remains classified.

Now, I’ve suggested one explanation may be that this information all pertains to DOD, not CIA (indeed, Klaidman’s mention of a military request to target Khan would support this possibility). So it’s possible this entire FOIA response is more kabuki, a focus on CIA to avoid re-reviewing the DOD response for related files. (When I get a chance, I will review the declarations to see whether this seems to be the case, but bad English Toobz prevent that review right now.)

Still, either this information is really classified, in which case it should be among the leak investigations. Or it’s not, and this submission is a outright deception.

Or some of both.

But if the court accepts this submission, it will be party to the Administration’s outright deceit in hiding aspects of its assassination program.

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.

30 replies
  1. MadDog says:

    @MadDog: And it sometimes pays to be in an overseas timezone like you EW are because there ain’t no way I was staying up all night here looking for the US government’s response in this case.

    No sign anywhere yet including at the ACLU of those additional declarations.

  2. MadDog says:

    And I would note that the US government has come up with a new phrase for justifying some of the targets of its drone strikes: “U.S. citizens who are senior operational leaders of al-Qaida”.

    The new phrasing gives the US government the best of both worlds. It conjoins “operatives” and “senior leaders” which seems to partially answer a question you posed in an earlier post.

  3. JThomason says:

    Help please. What is the operational relationship between the drones and Hell Fire Missles? Is it thought that missles were used? Are these fired from drones? Is the suggestion of missles misdirection?

    Thank you for this overview.

  4. MadDog says:

    @emptywheel: I’m guessing you got them off Pacer because I still haven’t been able to find them. Even the ACLU hasn’t posted them yet though they finally did get their own post and link up on the US government’s basic response.

  5. MadDog says:

    @JThomason: Almost all of the US drone strikes are done with Hellfire missiles. Some other munitions are carried by US drones, but I don’t remember any news reports about usage of these other munitions to date.

  6. tjallen says:

    How to fight back against this? These non-secret secrets should be considered improperly sourced and possibly fictional narratives or even delusional statements by Brennan.

  7. JThomason says:

    @MadDog: Thanks. I am not sure why the targeting with these would be any more precise than if they launched from a nautical platform like the Hell Fires sent against Bin Laden by Clinton. I suppose the surveillance is more advanced but I am not sure why the tracking would be considered advanced. Its sounds to me like we are talking about an evolution in the delivery platform and the emergence of concepts like “acceptable collateral damage” indicates that the precision of these strikes is not particularly evolved. Seems like we are dealing in a narrower band of the evolution of this kind of weaponry than the smoke around the targeting processes suggests. Its not like the reasonable expectation of unintended harm is significantly diminished.

  8. prostratedragon says:


    The description of the Awlaki party being hit while getting into vehicles makes it seem to me as if they had just been locked in immediately before, so that the drone might have been much closer than the nearest missle cruiser. (I don’t know what town they were in/near or how close to the sea.)

  9. MadDog says:

    @JThomason: Actually, those were 2 different critters.

    Clinton’s strike used Tomahawk cruise missiles which were fired from either ships or subs. Tomahawks use a 1,000 lb warhead and weigh almost 3,000 lbs.

    When Clinton made the strike against OBL’s camp, the Tomahawk cruise missile technology didn’t yet have GPS. It used ground-mapping imagery to follow a path to a target.

    The US Predator and Reaper drones use the Hellfire missiles. Hellfires use a 20 lb warhead and weigh about 100 lbs.

    Hellfires use laser designation guidance to strike their target. Laser guidance is much more precise than either GPS or the older ground-mapping imagery.

    There’s a big blast/damage difference between the Tomahawk’s 1,000 lb warhead and the Hellfire’s 20 lb warhead.

    Regardless of missile used though, being the target of one means you’re going to have a really bad day.

  10. JThomason says:

    @MadDog: Thanks. I did a gloss of a bit of research but got it wrong. I appreciate your fleshing out this comparison. I am trying to understand what distinguishes drone strikes with Hellfires as being more “humane.”

  11. MadDog says:

    @prostratedragon: The news reports I remember said that there were both CIA and JSOC drones firing their Hellfires at Awalaki and that they didn’t know which actually killed him.

    As to the point about distance from the sea, Tomahawks have a range between 700-1000 miles, so that’s not really an issue.

    The real issues with using Tomahawks are the destructive blast damage (10 times as large as the Hellfire), and the immediacy of the “shoot”.

    Tomahawks typically are used for large fixed location structures such as the Iraqi radar sites and reinforced bunkers during Gulf War One, or if equipped with cluster bomblets, used as “area denial munitions” to literally blanket a large surface area (think multiple football fields in size) with razor-sharp explosively blasted fragments.

    Tomahawks with cluster bomblet submunitions have been used against large formations of cars/trucks/lightly armored vehicles and large formations of people.

    Tomahawks with cluster bomblet submunitions were used against a gathering of “militants” in Yemen that later turned out to include women and children.

    I still am shocked to think that some crazy US commander actually used Tomahawks in Yemen as a some kind of “precision weapon”. What was that idiot thinking?

    Hellfires are far smaller with a target profile of a car/truck or a small gathering of individuals.

  12. MadDog says:

    @JThomason: The only folks I know who would describe any Hellfire strike as more “humane” would be the trigger-pullers.

    A bizarre view, isn’t it?

  13. prostratedragon says:

    @MadDog: Thanks. I was thinking time to target rather than range. If your target is on the move getting into cars, even if in a routine sort of way, there’s not much time for a solid hit.

  14. tjallen says:

    Does use of a laser-guided Hellfire imply that there is an agent on the ground pointing the laser at the target, or is the laser-pointing done from the drone by the remote drone pilot? Thanks.

  15. newz4all says:

    Yemen: Red Cross worker dies in air strike in Abyan

    An air strike in Yemen has killed a man working for the international Red Cross

    Hussein Saleh, a 35-year-old Yemeni, was killed on Tuesday morning while undertaking humanitarian work in the north of Abyan province, it said.

    In a statement, the International Committee of the Red Cross (ICRC) said it was “deeply shocked and dismayed” by the death of Mr Saleh, who was expecting his fifth child with his wife.

  16. JThomason says:

    @MadDog: Well in fairness, I kinda pulled “humane” out of thin air. Still I don’t much understand the calculus of politics, assassinations and collateral casualties. Doesn’t seem like much of a basis for a long term influence to be killing innocents.

  17. MadDog says:

    @tjallen: From what I understand, both targeting methods can be used though typically the laser-targeting is from the drone by the drone’s remote pilot.

  18. MadDog says:

    @JThomason: I have the very same lack of understanding. And I do understand the “humane” out of thin air as well.

    In re-reading EW’s typically excellent post about the US cruise missile strike in Yemen, I wanted to highlight what those US cruise missiles carrying cluster bomblet submunitions in “area denial” mode actually do:

    “…The effect of a cluster bomb-filled cruise missile had been particularly brutal:

    When members of the Commission visited the cemetery where the victims were buried, they noticed that some members of the two families were buried in communal graves because their remnants could not be identified. Their bodies had been completely torn into pieces during the attack…

    What is basically being said is that over a large area the size of several football fields, any human being standing above ground was turned into human confetti.

  19. GKJames says:

    Does anyone know how the decision-making process works on how to respond to the FOIA requests? Is this something that, like the killings themselves, Obama decides? Is it left to Holder? The CIA?

  20. MadDog says:

    @GKJames: In the case of these ACLU and NYT FOIA suits, based on the text in the US government’s earlier requests to the court for extra time to respond, they had stated that the deliberations regarding their response to the suits was being done at the highest levels of the US government.

    At the very least, I took that to mean the Principals of the National Security Council; the heads of the DOJ, CIA and the DOD. It also may be the case that Obama as the head of the Principals of the National Security Council, personally weighed in on this latest US government response.

  21. nudge says:

    Saw this headline today:
    “Obama White House Rejects Request for Targeted Killing Docs”

    Damned if I did not think that the White House had rejected a FOIA request for info regarding a program where “doctors” were actually deployed for “targeted killings”!

    When you consider it, it is not far removed from the possibility of targeted killings by US-controlled drones under orders from the White House.

  22. KWillow says:

    The repugs seem fine with the drone program, while fishing/witch-hunting the Administration on petty, stupid things, and of course refusing to pass any bills that might actually help Americans.

    What’ll happen when a drone blows up Isa’s house and fires on the rescuers (if there are any)?

  23. KWillow says:

    @MadDog: What’s interesting is that the moment they kill a “senior” Al Qaida person, another takes his place. So there will always be plenty of “Senior Al Qaida officials” to kill.

  24. MadDog says:

    @KWillow: Yup! I think the US government is stuck in a thoughtless mental treadmill loop. Rather than actually thinking about what is taking place, they’re avoiding thought altogether and are simply repetitively firing at anything they think is a target that presents itself.

    Groups of MAMs (military aged males), three people doing jumping jacks, first responders to a previous strike, people attending funerals, etc.

  25. MadDog says:

    @nudge: LOL!

    But as a serious aside, they do indeed target first responders to a previous strike, so they may in fact be targeting Docs and other medical personnel. That is a war crime!

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