Anwar al-Awlaki FOIA: The CIA Speech the CIA Did Not Mention

John Brennan and Eric Holder gave speeches–the government says–and therefore the CIA admits it has documents pertaining to targeted killing, but cannot say any more about those documents.

As I noted yesterday, the government explained its changed stance toward the NYT and ACLU FOIAs for the Anwar al-Awlaki OLC memo and related documents by pointing to a bunch of speeches. The motion mentioned speeches by four Administration officials officially–those of Harold Koh, Jeh Johnson, Eric Holder, and John Brennan.

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.

It focuses on two in particular: those by Eric Holder and John Brennan.

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.

As noted by the citation to the Bennett declaration above, this focus comes from the declaration the Director of Clandestine Services, John Bennett, submitted in this suit.

However, the CIA has since determined that it can acknowledge the existence of responsive records reflecting a general interest in these broad topics without harming national security. These records include, for example, the speech that the Attorney General gave at Northwestern University Law School on 5 March 2012 in which he discussed a wide variety of issues pertaining to U.S. counterterrorism operations, including legal issues pertaining to the potential use of lethal force against senior operational leaders of al-Qa’ida or associated forces who have U.S. citizenship. The Attorney General explained that under certain circumstances, the use of lethal force against such persons in a foreign country would be lawful when, among other things, “the U.S. government . . determined, after a thorough and careful review, that the individual pose[d] an imminent threat of violent attack against the United States.” These records also include the speech that the Assistant to the President for Homeland Security and Counterterrorism gave on 30 April 2012, in which he addressed similar legal and policy issues related to the U.S. Government’s counterterrorism operations.

There’s one speech that never gets mentioned in all of this discussion, however: the one CIA General Counsel Stephen Preston made on April 10. While Preston engaged in a liberal use of hypothetical, his speech clearly addressed targeted killing.

Suppose that the CIA is directed to engage in activities to influence conditions abroad, in which the hand of the U.S. Government is to remain hidden, – in other words covert action – and suppose that those activities may include the use of force, including lethal force.

As I noted, Preston blathered on at length about the Osama bin Laden “triumph,” but the underlying context seemed to relate to Anwar al-Awlaki, as well.

And yet, neither the CIA nor DOJ wants to mention it now.

I’m not sure what to make of that, mind you. Perhaps the CIA speech is irrelevant because this FOIA response really is kabuki intended to distract from a DOD document search conducted before the government had acknowledged its targeted killing programs. Perhaps the CIA speech goes unmentioned because doing so would constitute further acknowledgment of CIA’s involvement, meaning it would have to turn over more. Perhaps the CIA speech goes unmentioned because it appeals to inherent Presidential authority rather than the AUMF usually used to justify the Awlaki killing.

In short, I don’t know what to make of the CIA’s silence about the CIA’s own speech on targeting killings. But the silence sure seems notable.

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.

12 replies
  1. PeasantParty says:

    Hmmm. So all it takes is for an “administration official” to make a speech at a Law School or to a group of supporters?

    That makes it a Law, moral, and in the best interest of American citizens, right?

    Why isn’t it plastered over every print news source in the nation and looped constantly on television interrupting all programming?

    Where, When, and how do we have US Citizens that are “senior operational leaders of al-Qaida or associated forces.” Who is determining this and why is the FBI and others not pinpointing these people? Instead, we have to use militarized drones to “target” them?

    Do any of these decision makers/deciders know what Treason is?

  2. bmaz says:

    @JThomason: And we have a winner in today’s sweepstakes!!

    Seriously, it is all such pandering bullshit. Here is another classic “Hey, we all sat around the table and discussed who we are gonna kill with a flying robot” = Due Process. Right; sure it does. Jeebus.

  3. ondelette says:

    I was at a talk by an IHL lawyer who is not with the administration who gave the administration’s criterion for the strikes like the al Awlaki strike as follows:

    1) the target must pose an imminent threat
    2) the target must be beyond the reach of law enforcement
    3) the target must be a legal target with respect to the law of armed conflict

    As the lawyer noted, the criterion makes no distinction based on the citizenship of the target, and arguably should not. The cited reference was AG Holder.

  4. SpanishInquisition says:

    @bmaz: I’ve been thinking about this some more with the Decider trying to look all macho, doesn’t that mean that the Decider gives the order to kill First Responders?

  5. SpanishInquisition says:

    @ondelette: Then the Obama administration isn’t even upholding their own standards. Few – if any – strikes have been on “imminent threats” as defined by international law. By the Obama administration’s own leaked descriptions of all the different committees and PowerPoint presentations involved, they don’t pass the Caroline Test of “instant, overwhelming, and leaving no choice of means, and no moment for deliberation.”:
    http://en.wikipedia.org/wiki/Caroline_test

  6. Jeff Kaye says:

    I’ve just read Preston’s piece.

    A fairy tale about an organization bound by law.

    His account does not jibe with the historical record.

  7. MadDog says:

    I don’t know if you’ll be returning to this post topic or not EW (I hope you do of course), but I couldn’t let this tidbit that I found in John Bennett’s declaration (46 page PDF) pass.

    The tidbit is from page 41:

    “…As the Court is well aware, on 1 May 2011, the United States conducted an operation that resulted in the death of Usama Bin Laden (“UBL”), the leader of al-Qa’ida. It has been officially acknowledged that the CIA participated in and oversaw this historic operation. Thus, whether or not there are any OLC opinions that specifically address the CIA’s involvement in the operation that resulted in UBL’s death is not classified, and the existence of such opinions is not covered by DOJ’s Glomar response (in fact, I understand that there are no such opinions)…”

    (My Bold)

    Let me explain why I think this is interesting.

    We’ve had some excellent discussions here at Rancho Emptywheel about what you described as the “The Gloves Come Off” Memorandum of Notification.

    In the almost 11 years since Bush signed that MON on September 17, 2001, the CIA’s Director of the National Clandestine Services John Bennett now has officially revealed that no OLC opinion was ever created to provide the Administration with a legal underpinning for the MON’s authorization allowing the CIA to use deadly force.

    And that doesn’t compute based on what we’ve read about the Awlaki OLC opinion via the NYT’s Charlie Savage.

  8. ondelette says:

    @SpanishInquisition: The Caroline test is for nation-states going to war, not whether an individual is an imminent threat. What that latter definition should be may or may not be a matter of debate, but pulling a definition used to determine whether a nation-state committing aggression out of the woodwork is just as dumb as any assertion that the White House might make about a propagandist being a combatant.

    Sorry.

  9. MadDog says:

    Tangentially related, and something I must have missed earlier in the week – via the Los Angeles Times:

    U.S. weighs plan to send military aircraft to aid Yemen

    “Senior U.S. commanders say deploying cargo aircraft could be key to a U.S.-backed offensive in Yemen against Al Qaeda militants. Critics warn of a backlash.

    Spurred by recent battlefield gains, the Pentagon is making plans to send U.S. military aircraft to Yemen for the first time to help move government troops and supplies more quickly into battle against Islamic militants, U.S. officials said.

    Senior U.S. commanders responsible for the Middle East argue that deploying American cargo aircraft could be crucial to carrying on a U.S.-backed offensive that has driven members of Al Qaeda in the Arabian Peninsula and allied groups out of several cities and towns.

    “This wasn’t an American idea. It was a Yemeni idea and one worth considering given our common fight against Al Qaeda in the Arabian Peninsula,” said a U.S. official, who, like others, spoke on condition of anonymity because the plan is not public. “Nothing’s been decided, and it may take some time before the Yemenis themselves sort out whether they need this kind of support or not.”

    The proposal does not have final White House approval yet and has prompted concern among officials in the White House, the State Department and even within the Pentagon. Militants who have targeted the U.S. are based in Yemen, which also is riven by regional and tribal differences, and skeptics fear the conflict is looking increasingly like a civil war…”

    Remember when I came up with the term “MACY” to describe our growing military involvement in the US covert war in Yemen? Military Assistance Command Yemen?

    Yeah, I thought you did.

  10. mlnw says:

    For all the claimed disclosures about the Administration’s legal basis for its targeted assassinations program, it refuses to release its legal memoranda opinions which cites actual legal “authority”. It is that purported authority which would be held up to scrutiny and challenged in court rather than some public relations summary, and it is ludicrous that the Administration has raised a States Secrets argument to keep its legal memoranda confidential.

    Frankly, that Harold Koh, Samantha Power and the Administration’s other legal experts with supposed “human rights” credentials would let themselves be compromised as they have is appalling. On the Congressional side, Senator Feinstein as Chair of the Senate Select Intelligence Committee has turned out to be a cheerleader and advocate of the program rather than a true Congressional leader exercising her oversight responsibilities, including scrutinizing and challenging the underlying policies and their predicate narrative.

    These people have become the latest shills for a failed foreign policy whereby the U.S. has, for over ten years, been a blatant lawbreaker, exercising raw military power to seize resources and gain geopolitical advantage in the Middle East, Central Asia and Africa, while causing carnage there and bankrupting and impoverishing our citizens at home. Even faced with a wretched Republican alternative, can one honestly support this Administration with a mandate to continue to do the same for another four years?

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