The NSC’s May 2011 “Draft” Legal Analysis and the Continued Stonewalling of Ron Wyden

I’m ultimately going to get around to arguing that the reason the government response to the ACLU targeted killing FOIA is so funky is because (mind you, this is a wildarsed guess) the CIA didn’t rely on the OLC memo authorizing Anwar al-Awlaki’s killing.

But for the moment I want to point out a far tinier but nevertheless related point.

On March 30 of this year, just before the government started scrambling for extensions on this FOIA, AUSA Sarah Normand called ACLU Attorney Eric Ruzicka to ask if ACLU would “limit the first prong of its FOIA requests” to DOJ and DOD. The first prong asked for,

All records created after September 11, 2001, pertaining to the legal basis in domestic, foreign and international law upon which U.S. citizens can be subjected to targeted killings, whether using unmanned aerial vehicles (“UAVs” or “drones”) or by other means.

Normand asked Ruzicka to agree to exclude any draft legal analyses, emails, and internal communication. Ruzicka agreed to waive draft analyses, but not emails and internal communications.

Most of the internal communications from the DOD and DOJ that would have been excluded which are described in the Vaughn indices aren’t all that interesting–almost all pertain to discussions leading up to the Situation Room debate over how transparent to be on these killings or to Jeh Johnson and Eric Holder’s speeches on targeted killing.

But there is a series of three email chains I find particularly interesting.

On May 18-19, 2011 attorneys at OLC and the National Security Council deliberated discussing “draft legal analysis regarding the application of domestic and international law to the use of lethal force in a foreign country against U.S. citizens.” Then, on May 19, lawyers at OLC, DOJ’s Civil and National Security Divisions, and at the Offices of the Associate and Deputy Attorney General discussed the same thing. Finally, on May 20, the DOJ lawyers and the National Security Council lawyers continued the discussion, this time including DOJ’s Office of Legislative Affairs.

This says, at a minimum, two things. First, the White House and DOJ were discussing what they called “draft” legal analysis as late as May 2011, 11 months after OLC finalized an opinion supposedly authorizing Anwar al-Awlaki’s killing but 4 months before the US killed him. And, that the discussion of that “draft” legal analysis pertained, in part, to some issue raised by Congress.

That, by itself, is interesting. Why was this legal analysis still considered draft analysis in May 2011? (And for what it’s worth, they were having similar deliberations in November 2011, after they had already killed Awlaki.)

But then there’s the likelihood that this discussion relates to persistent requests from Ron Wyden to get basic questions about targeted killing answered.

In a letter to Eric Holder on February 8, 2012  (so before DOJ tried to get ACLU to waive precisely this information) complaining about continued stonewalling of his questions about targeted killing, Wyden made it clear he called Holder in April 2011 to get these questions answered. And DOJ answered in limited form in May 2011–the same month, at least, that DOJ and the White House were discussing “draft” legal analysis.

In February 2011, after making similar requests to other officials, I asked the Director of National Intelligence to provide the legal analysis that explains the intelligence community’s understanding of its authority to kill American citizens. The Director indicated that he would have liked to be responsive to my request, but he told me that he did not have the authority to provide formal written opinions of the Department of Justice’s Office of Legal Counsel to Congress.

So, as you will remember, I called you in April 2011 and asked you to ensure that the secret Justice Department opinions that apparently outline the official interpretation of this lethal authority were provided to Congress. The Justice Department provided me with some relevant information in May 2011, and I mistakenly believed that this meant that you had agreed to my request. Nine months later, however, the Justice Department still has not fully complied with my original request, and it is increasingly clear that it has no intention of doing so.

Wyden’s letter continued by describing some of the questions he had asked Holder in April 2011 but had not had answered as of February 2012 (and as far as I know, to this day).

And it is critically important for the public’s elected representatives to ensure that these questions are asked and answered in a manner consistent with American laws and American values.

Some of these questions include: ‘how much evidence does the President need to decide that a particular American is part of a terrorist group?’, ‘does the President have to provide individual Americans with an opportunity to surrender before using lethal force against them?’, ‘is the President’s authority to kill Americans based on authorization from Congress or his own authority as Commander-in-Chief?’, ‘can the President order intelligence agencies to kill an American who is inside the United States?’, and ‘what other limitations or boundaries apply to this authority?’. [my emphasis]

I’m particularly interested in that question regarding whether the President relied on the AUMF (or some other Congressional grant of authority) or Article II power. Because it says whether or not these email discussions pertained to Wyden’s questions, the full Senate Intelligence Committee had still not been briefed on the basis of authority for the President’s authority to kill an American citizen. Hell, as far as we know, the Committee still hasn’t received that information.

According to Charlie Savage’s reporting, the OLC memo finalized 10 months before these discussions of “draft” legal analysis situated the authority to kill Awlaki in the AUMF.

Based on those premises, the Justice Department concluded that Mr. Awlaki was covered by the authorization to use military force against Al Qaeda that Congress enacted shortly after the terrorist attacks of Sept. 11, 2001 — meaning that he was a lawful target in the armed conflict unless some other legal prohibition trumped that authority.

But in his bizarrely unmentioned April 2012 speech discussing how the CIA decides whether its use of lethal force is legal, CIA General Counsel Stephen Preston emphasized Article II power, with an AUMF being secondary.

First, we would confirm that the contemplated activity is authorized by the President in the exercise of his powers under Article II of the U.S. Constitution, for example, the President’s responsibility as Chief Executive and Commander-in-Chief to protect the country from an imminent threat of violent attack. This would not be just a one-time check for legal authority at the outset. Our hypothetical program would be engineered so as to ensure that, through careful review and senior-level decision-making, each individual action is linked to the imminent threat justification.

A specific congressional authorization might also provide an independent basis for the use of force under U.S. law.

In addition, we would make sure that the contemplated activity is authorized by the President in accordance with the covert action procedures of the National Security Act of 1947, such that Congress is properly notified by means of a Presidential Finding. [my emphasis]

Now maybe the government still hasn’t figured out whether the President killed Awlaki based solely on his own authority or whether they nodded to Congress before they took out a US citizen with a drone.

Or maybe this issue is the precise question that they’re trying to obscure with their silence about Preston’s speech and their sustenance of the CIA Glomar.

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.

28 replies
  1. MadDog says:

    “…Now maybe the government still hasn’t figured out whether the President killed Awlaki based solely on his own authority or whether they nodded to Congress before they took out a US citizen with a drone.

    Or maybe this issue is the precise one that they’re trying to obscure with their silence about Preston’s speech and their sustenance of the CIA Glomar…”

    This may not be an “either or” proposition. It may be both.

    In re-reading Attorney General Holder’s March 5, 2010 speech at the Northwestern University School of Law, he too dances with both the 9/11 AUMF and Article II authority.

  2. emptywheel says:

    @MadDog: Nowhere near as much. He clearly situates it in war powers here:

    The Constitution’s guarantee of due process is ironclad, and it is essential – but, as a recent court decision makes clear, it does not require judicial approval before the President may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war – even if that individual happens to be a U.S. citizen.

    This is Hamdi, clearly tied to AUMF.

  3. MadDog says:

    It occurred to me that perhaps another reason that CIA General Counsel Stephen Preston’s speech was not included in the latest US government FOIA response is that the CIA, in the opinion of its top lawyer, still believes for various reasons that the President’s Article II authority should have primacy over that of the 9/11 AUMF, and that the White House (as well as the DOJ and its OLC) chose instead to present its case with emphasis on that 9/11 AUMF because it provides them the desired political cover of Congressional assent.

    But what do I know? *g*

  4. emptywheel says:

    @MadDog: Right, that’s partly my point. They’ve pointed to the speeches that emphasize AUMF and away from the one that emphasizes Article II. But we know that CIA–the agency that offed Awlaki and the one still refusing to provide any real response to ACLU–emphasizes Article II.

    It seems to work the same way the Kill List stuff did–emphasizing the tolerable even as the intolerable was actually happening.

  5. MadDog says:

    @emptywheel: This is the part of Holder’s speech I was referring to:

    “…It is preferable to capture suspected terrorists where feasible – among other reasons, so that we can gather valuable intelligence from them – but we must also recognize that there are instances where our government has the clear authority – and, I would argue, the responsibility – to defend the United States through the appropriate and lawful use of lethal force.

    This principle has long been established under both U.S. and international law. In response to the attacks perpetrated – and the continuing threat posed – by al Qaeda, the Taliban, and associated forces, Congress has authorized the President to use all necessary and appropriate force against those groups. Because the United States is in an armed conflict, we are authorized to take action against enemy belligerents under international law. The Constitution empowers the President to protect the nation from any imminent threat of violent attack. And international law recognizes the inherent right of national self-defense. None of this is changed by the fact that we are not in a conventional war…”

    (My Bold)

    The first bolded part reference’s the 9/11 AUMF while the second bolded part seems to refer to the President’s inherent Article II authority to defend the country.

    Basically it sounds like the White House has chosen the “belt and suspenders” approach with their preference being the Congressionally-authorized 9/11 AUMF “belt” perhaps because it seems to provide the most political cover.

  6. MadDog says:

    @emptywheel: Hah! Then we are in complete agreement. *g*

    And yes, Blabbermouth Brennan’s emphasis on the targeted aspect of our Kill List drone strikes serves to disguise via sleight of hand (keep your eye on pea) our rather more insidious, frequent, and more death-dealing signature drone strikes.

  7. MadDog says:

    Oh, and while I’ve been dithering away with my commentary that arrives at where you’ve already been standing, let me belatedly acknowledge something I meant to say at first, namely this is another fine “EW’s connected dots nobody else has” post!

    There is probably nobody else out there who is even aware of the strange timing issues you’ve just highlighted regarding your Vaughn Index discoveries much less written about them.

    A round of kudos on me!

  8. MadDog says:

    @MadDog: I needed to correct a typo in my comment on AG Holder’s speech so that other readers wouldn’t be lead astray. The year he gave the speech was this year, 2012, not 2010.

  9. MadDog says:

    Still reading through the Vaughn Index EW has provided, and though some of it may be about documents that are relatively unimportant, there seems to be an episodic story-line there and I’m unsure of some of the timeline associations.

    For example:

    1) The first 2 documents listed in the Vaughn index concern “drafts of a potential statement” and their creation/discussion occurs from March 29, 2010 through April 29, 2010. Anyone care to venture a thought about that particular timing and what it might have been connected to?

    2) The next 6 documents (items 3-8) concern a “draft question and answer talking point” about targeting a US citizen with lethal force in a foreign country. The timeline of these 6 withheld documents are all either October 10 or October 11, 2010. Again, what was going on at that time that drove the perceived need for a “draft question and answer talking point”?

    According to the NYT’s Charlie Savage article about the OLC Kill Awlaki opinion:

    “…the document that laid out the administration’s justification — a roughly 50-page memorandum by the Justice Department’s Office of Legal Counsel, [was] completed around June 2010…”

    So the June 2010 completion date of the OLC opinion doesn’t seem to directly sync up with either the late March through April 2010 “drafts of a potential statement” nor the October 2010 “draft question and answer talking point”.

  10. MadDog says:

    @MadDog: Something that might, just might, have led to the March through April 2010 “drafts of a potential statement” was potentially that there were some in the Obama Administration who desired to “announce” that Awlaki was on the Kill List.

    I would hazard a guess that both the CIA and JSOC were adamantly opposed to publicly acknowledging that Awlaki was on the Kill List, and would have insisted that keeping such information secret was an operational necessity to prevent Awlaki from burrowing even deeper into hiding.

    And note that JSOC had Awlaki on its own Kill List on or around December 25, 2009 as a result of the UndieBomber 1.0 attempt to blow up the Detroit-bound airline before the June 2010 OLC opinion had been completed.

    The “draft question and answer talking point” timeline of October 2010 still doesn’t hook-up with anything I’m aware of. I thought of the AQAP laser-printer bomb plot, but that was discovered on October 29, 2010, after the “draft question and answer talking point” timeline of October 10-11, 2010.

  11. MadDog says:

    @MadDog: And just doing some more due diligence on dates. I thought of the speech by Harold Koh, the top State Department lawyer, but his speech was delivered March 25, 2010, before the March 29 through April 28 “drafts of a potential statement”.

    Perhaps the “drafts of a potential statement” were as a result of Koh’s speech, and the resulting unsatisfied responses from his listeners.

  12. MadDog says:

    “…And for what it’s worth, they were having similar deliberations in November 2011, after they had already killed Awlaki…”

    I found that particularly interesting too. And as detailed in Vaughn Index document number 23, why was the FBI brought into the mix:

    “…10/30/2011- 10/32/2011

    Email chain reflecting internal Department of Justice and interagency deliberations regarding discussing draft legal analysis regarding the application of domestic and international law to the use of force in a foreign country against U.S. citizens in certain circumstances. Email chain among attorneys and officials at OLC; NSD; OAQ; the Federal Bureau of Investigation (“FBI”); and other agencies with national security responsibilites…”

    What equity has the FBI got in order to join the discussion about the US government killing a US citizen abroad in a foreign country? A criminal murder investigation equity?

  13. MadDog says:

    And just a note for other questioning inhabitants of Rancho Emptywheel regarding the continued US government reference to “the application of domestic and international law to the use of force in a foreign country against U.S. citizens in certain circumstances.” (My Bold)

    By domestic law, they are referring to the Congressionally-passed 9/11 AUMF.

    By international law, they are referring to a nation’s right to self-defense, and tangentially, to the President’s Article II responsibilities and power as Commander-in-Chief to defend the country.

  14. emptywheel says:

    @MadDog: The early 2010 stuff probably pertains to the aftermath of the Abdulmutallab attack and the hot-and-cold statements about whether Awalaki was on the kill lists. There would have been key briefings in this period too.

    The October 2010 is interesting. If it were a few days later, it might relate to Jabir al-Fayfi’s interrogation–he reportedly said others in AQAP were more important than Awlaki. Remember, too, that this is the period after Abdulmutallab fired his defense attorneys, I think bc they were pushing him to rat out Awlaki.

  15. emptywheel says:

    @MadDog: Abdulmutallab.

    One of the things these statements had to correlate with was the ACLU suit on Awlaki (which is probably what the October 2010 stuff relates to) and the FBI interrogations and EDMI’s prosecution of Abdulmutallab. As a post I’m about to post shows, that stuff all shoudl have been released but wasn’t.

  16. emptywheel says:

    @MadDog: Not just. Remember the precedent Charlie Savage cited, which pertains to cops chasing down people in car chases.

  17. MadDog says:

    @emptywheel: Ok, the March and April 2010 stuff is related to the UndieBomber 1.0 plot as well as his linkage then to Awlaki and his placement on the JSOC Kill List. That makes sense.

  18. MadDog says:

    @emptywheel: Good point! Mostly I was referring to this part of Harold Koh’s speech from the section on Use of Force:

    “…The United States agrees that it must conform its actions to all applicable law. As I have explained, as a matter of international law, the United States is in an armed conflict with al-Qaeda, as well as the Taliban and associated forces, in response to the horrific 9/11 attacks, and may use force consistent with its inherent right to self-defense under international law. As a matter of domestic law, Congress authorized the use of all necessary and appropriate force through the 2001 Authorization for Use of Military Force (AUMF). These domestic and international legal authorities continue to this day…”

  19. MadDog says:

    @emptywheel: Ok, that also makes sense now. The Vaughn Index 3-8 documents are right before that November 2010 hearing.

    See what you can accomplish with an Emptywheel at hand? Better than Google! LOL!

  20. emptywheel says:

    @MadDog: My rant about all the Abdulmutallab related stuff they didn’t admit to is up now. As a geek you’ll love the games they played with search terms.

  21. greengiant says:

    So Wyden should follow up with a FOIA of his own just to see what emails they send about his previous requests? Wait until Issa issues his own FOIA on fast and furious DOJ – White House emails.

  22. ondelette says:

    @MadDog: Bull. The President’s Article II powers, referenced tangentially or not, are still domestic law. International law would be the reference to the Article 51 right of self-defense.

  23. ondelette says:

    Now maybe the government still hasn’t figured out whether the President killed Awlaki based solely on his own authority or whether they nodded to Congress before they took out a US citizen with a drone.

    The “government” sounds like it actually has, and reported such to Ron Wyden. The CIA on the other hand, seems to want to reserve more and better stuff and other rights. They should never have been given this role and should have it taken away.

    The other part is out and on the table and we can debate as to whether or not it’s being faithfully executed and whether or not it’s what we, as a country, really want, and is in our best interests or should be changed or whatever. The CIA can never be, and there isn’t an alternative to just stopping their program. It’s abusive, it obviously can’t stay within even the most flexible of boundaries, and it isn’t possible to have it be in our best interests.

  24. MadDog says:

    @ondelette: Not bull, but you make a good point, and a more accurate one with respect to Article 51.

    I still think there is in fact a tangential connection to what various Administration speakers have repeatedly identified as authority under the Article II powers and responsibilities, as opposed to just the Congressional authorization they claim from 9/11 AUMF.

  25. earlofhuntingdon says:

    “Draft” analyses are often issued by professionals to cover existing practices, without having the effect of putting the drafter or his boss or patrons officially on the hook. They provide cover for current conduct, while leaving officialdom wriggle room to gauge reactions or weaknesses in arguments that need to be addressed in “final” opinions.

    Sometimes “final” opinions are never issued. If the draft remains outstanding, it can allow current practice to morph into customary, therefore approved, practice. Since “drafts” are formally not binding, they can be ignored by researchers. I would regard that as a mistake, since customary, informal rules are at least as important in large bureaucracies as formal rules.

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