Is There a Pre-2001 OLC Opinion Authorizing Targeted Killing of US Citizen Terrorists?

Update: I realize now this can’t be the explanation. I’ve just referred back to the original request and the ACLU actually did time-limit their general requests to records created after September 11, 2001. So maybe the issue relates to non-al Qaeda terrorists?

I’m still working through all the declarations submitted in the government’s response to the drone targeting FOIAs; I will have far, far more to say about what they suggest.

But for now I wanted to point to a detail in OLC Deputy Assistant Attorney General John Bies’ declaration that suggests OLC has a pre-2001 memo authorizing the targeted killing of US citizen terrorists.

As Bies’ declaration lays out, the three FOIAs at issue in this suit ask for OLC memos relating to the targeted killing of US citizens. To summarize:

  • Scott Shane asked for OLC memos since 2001 on the targeted killing of people suspected of ties to Al Qaeda or other terrorist groups
  • Charlie Savage asked for OLC memos on the targeted killing of a United States citizen who is deemed to be a terrorist
  • ACLU asked for all records on the legal basis under which US citizens can be subjected for targeted killings

That is, Shane put a start date on his FOIA–post 2001–and limited it to terrorist groups. Savage put no start date on it and didn’t specify which terrorist groups he was addressing. ACLU didn’t limit it with either a start date or ties to terrorist groups. Note, too, ACLU was looking for info on the killing of Abdulrahman al-Awlaki as well as his father and Samir Khan; Savage used language suggesting an interest in Anwar al-Awlaki, though he did not limit his request to the older Awlaki. Shane used no such limiting language.

As I’ve analyzed and will show at more length, the government gave inconsistent responses to these three FOIAs, even though on the surface they appeared to ask for the same information.

More interesting still is Bies’ claim in his declaration that the responses to Savage and the ACLU were limited to the recent spate of targeted killings of US citizens. Bies wrote,

By letter dated October 27, 2011, [OLC Special Counsel] Colburn responded to the Savage Request on behalf of the OLC. … Interpreting the request as seeking OLC opinions pertaining to al-Aulaqi, OLC neither confirmed nor denied the existence of such documents, pursuant to FOIA Exemptions One, Three, and Five.

[snip]

By letter dated November 14, 2011, Mr. Colburn responded to [ACLU lawyer Nate] Wessler on behalf of OLC, interpreting the request as seeking OLC opinions pertaining to those three individuals [Anwar al-Awlaki, Samir Khan, and Abdulrahman al-Awlaki] and informing him that, pursuant to FOIA Exemptions One, Three, and Five, OLC “neither confirms nor denies the existence of the documents in your request” because the very fact of the existence of nonexistence of such documents is itself classified, protected from disclosure by statute, and privileged.” [my emphasis]

Bies’ declaration had no language about Colburn “interpreting” Shane’s FOIA to pertain only to these killings in Yemen. In addition, as you can see from the letters Colburn sent (linked above), Colburn actually didn’t note his interpretation in his response letters to Savage and ACLU. I guess they were just supposed to guess.

And while this is just a wildarsed guess, the totality of these three requests and the caveats Bies made about the responses suggests that Colburn had to make such interpretations because of the open timeframe of the requests. That is, what is common to the Savage and ACLU requests but not the Shane one is the way they set no start point for their request.

Which suggests there may be OLC documents pertaining to the targeted killing of Americans (potentially as terrorists) dating back before the 2001 start point of Shane’s request. Who knows? Maybe there’s an OLC opinion authorizing the assassination of Black Panther Fred Hampton, for example (though the FBI would only fall under Savage’s request if considered “intelligence community assets”). If that’s correct, then is that OLC memo still on the books?

There are, I suspect, a number of other reasons why the government is so squirrely about this FOIA. But one of them may relate to documents lying around OLC’s archives from before the time 9/11 changed everything … or returned an earlier state of targeted killing.

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.

9 replies
  1. ondelette says:

    Given the 3 point justification I had cited before (imminent threat, beyond the reach of law enforcement, legal military objective under IHL) I strongly doubt that such would have been used for domestic law enforcement, as it’s a justification that is used within the confines of an armed conflict, and that doesn’t fit with the FBI and the Black Panthers. Unless you were being sarcastic. Once again, the ACLU has a habit of using domestic or Constitutional law to interpret these situations, always, as that is its mandate. The executive branch often does not.

    This has been pointed out frequently by IHL lawyers, but gets ignored just as frequently both by the ACLU and here. The question often should be whether or not the IHL interpretation is expansive, whether it is open to question, whether it is correct, whether it has problems on each target, etc., but those questions never get asked and there is an impasse because those asking the questions persist in always asking questions of domestic law instead. From an IHL perspective, it’s extremely strange to keep making the distinction of whether someone is a US citizen or not. It strongly implies that other human lives are of lesser value.

    The same criticism came up for civil liberties lawyers during the al Maqaleh case when it didn’t bother the ACLU lawyers and their adherents that the cases of the non-Afghans were separated off and treated to more rights — potentially embued with habeas and due process rights — than those of the Afghans.

    It’s an open secret that the reason we have many of these battles is the sorry state of IHL education at the elite law schools in the U.S., the very source of the lawyers that feed the civil liberties watchdog groups as well. It’s no joke that when Bush went to the Justice Department the day after September 11th and asked who knew international law, it was John Yoo who said, “I do”, and that’s why we ended up in some of the mess we’re in — anti-sovereigntist law, that doesn’t believe in customary international law — and therefore didn’t have a clue how important customary IHL was and how little IHL resembled international contract law.

    The ACLU is little different some times.

  2. earlofhuntingdon says:

    Colburn is certainly attempting to limit an inquiry that is not itself limited. The implied justification could be topicality, or to limit the government’s need to inquire of its agencies for information. Both would pass muster, at least initially, in internal reviews, in administrative or judicial appeals, or in response to an unlikely congressional inquiry. Both seem bogus, routine litigator’s inventions to protect a client and give him time and distance for maneuver. Two of these three inquiries were, for example, explicitly not limited as to time or to a specific recent sequence of killings.

    Colburn or his patrons had to invent his limitations to avoid disclosure. The question is protect Mr. Obama from what problems and to promote what aims. A couple of possibilities readily pop up.

    Mr. Obama and his patrons hate government disclosure rules more than a Chicago mayor would hate to disclose his real estate development and tax incentive giveaways. That relates to avoiding criticism and political and legal liability. Mr. Obama hates limitations on his personal authority at least as much as Dick Cheney. Then there’s not wanting to tell suspected but unproven enemies of the state that they are targets or to disclose what tools could be used to find and eliminate them. (It should be obvious for a decade that “the gloves are off” and all tools are available against anyone.)

    In or out of an election year, Mr. Obama would want to preserve his brand. It would be severely tarnished if his administration admitted rather than hid what he does and how he does it.

  3. Jeff Kaye says:

    Yes, you have read Colburn correctly. The US practice of assassination of enemies goes back some way now. I think this 2009 article by Scahill had an interesting point (though I wish to be clear, Pres. Clinton was only following the policies of his predecessors — not that it makes that right):

    Throughout the 1990s, the question of covert assassinations was a source of major discussion within the Clinton White House and it is clear assassinations were attempted with presidential approval. Newsweek magazine reported on how, in 1995, U.S. Special Forces facilitated the assassination of a Libyan “terrorist” in Bosnia, saying, “American authorities justified the assassination under a little-known 1993 ‘lethal finding’ signed by President Bill Clinton that gave permission to target terrorists.” A former senior Clinton official speaking shortly after 9/11 called on the Bush administration not to escalate the U.S. assassination program, saying “We have a war on drugs, too, but we don’t kill drug lords.” But then, with no apparent sense of contradiction, the official added, “we have proxies who do.”

    Of relevance, historically, is what US Navy psychologist, Dr. Thomas Narut at the US Naval Hospital in Naples, told a London Sunday Times reporter at a 1976 NATO conference in Oslo:

    [Narut’s] naval work involved establishing how to induce servicemen who ma[y] not be naturally inclined to kill, to do so under certain conditions. When pressed afterwards as to what was meant by “combat readiness units,” he explained this included men for commando-type operations and – so he said – for insertion into U.S. embassies under cover, ready to kill in those countries should the need arise. Dr. Narut used the word “hitmen” and “assassin” of these men.

    I’d note that the quote is from a book published by mainstream publisher Basic Books, and that its original provenance was from the London Times, also not a conspiracy sheet. I wrote about the entire affair here.

  4. William Ockham says:

    I’ve been way too busy with other things to follow this closely, but I’m wondering whether the “American citizen” part was explicit or implicit in earlier OLC rulings. Think about the possibilities. Perhaps there was a case where the President authorized the assassination of a terrorist whose actual identity was unknown. The OLC might have felt the need to speak to the issue in that context.

  5. emptywheel says:

    @Jeff Kaye: Right. But the only reason to bracket off discussion of pre-2001 on US citizens is to hide the legal authorizations for targeting US citizens, not the foreign assassinations we engage in and pretend not to. That’s why I came up with Hampton. It was clearly an assassination, and many have long thought it was pre-meditated. The question is on what grounds they ignored prohibitions on murder. Well, they clearly claimed Black Panthers were terrorists, and some later OLC memos tried hard to distinguish earlier counterterror abuses from counter Muslim terror abuse as having a foreign nexus.

    That said, I strongly believe they killed Awlaki under the MON, not any OLC guidelines. And since the MON dates to Reagan, I wonder whether there isn’t an OLC memo from REagan’s years on targeting US citizens that they then assumed applied here.

  6. Jeff Kaye says:

    @emptywheel: Yes, you’re right. The issue of killing US citizens is what sets this apart from earlier revelations. Hence the Hampton killing presents an apt analogy — or even more than an analogy, an actual case of such approval.

  7. JThomason says:

    Its intriguing to me that the above comments imply the WH seems to maintain its own precedental record of cases where judicial standards are tested or exceeded in executive action without ramification in the judicial sphere.

    The fundamental notion of checks and balances is that executive power or any fundamental governmental power is not necesarily self-governing.

    So for instance in response to the public hue and cry around the policies that the Viet Nam war arose from the executive branch does not question its foreign exercise of military power but instead works on tactics to remove information from the public sphere and restrict media access in foreign deployments moving forward. The moral dimension and sentiments of public decency in this calculus seem nothing more than impediments to the exercise of power and the self-realized justifications of operating in ways beyond the pale of activity generally subject to moral scrutiny, international justice or domestic check.

    The great irony is that this duplicitous pragmatism is self perpetuating and alienating almost in a direct proportion to the degree that it envokes a mysterious superior self-informed standard to a legal standard. Historically the deprecation of a liberal ethos is natural in the intinct of statehood finding is foundational economy diminished in the inflation of cultural stasis. The emptying of the substantive basis of cultural norms in reactionary politics is an expected manifestation of change. The greater dishonesty though is for the WH to pretend that is is something that it is not in light of the global historical record. This institutional impetus toward a mode of operations informed by a “what can we get away with today” approach is a distinguishing feature in understanding the emergent liberal solecism.

    Well I feel better but the appeal to reason alone has rarely checked any such excess of power seized in governance. The consciousness of the ways that government does not work seems to be alive in public discourse and it is interesting to see how little traction in change this awareness affords.

  8. BSbafflesbrains says:

    I am wondering if a “suspected” terrorist was assassinated and then clear and convincing evidence was revealed that proved the innocence of that person would the Governemnt be subject to any Civil action like wrongful death or Criminal like violation of civil rights?

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