Why Is DOJ Deliberately Hiding Information Responsive to ACLU’s Anwar al-Awlaki FOIA?

As part of its strategy to not respond to the Anwar al-Awlaki FOIAs, the government seems to have decided to bury the NYT and ACLU under declarations. It submitted declarations and exhibits from 3 departments in DOJ, CIA, DOD, and DIA. Each attempts to appear helpful while (usually) blathering on at length but in no detail about why the President’s authority to kill an American citizen must remain hidden.

That said, the declarations can be distinguished by how convincing (or not) are their claims to have searched for relevant documents. In particular, DOJ Office of Information Policy was patently unresponsive, probably to hide the intelligence DOJ has on Anwar al-Awlaki (and possibly Samir Khan).

DOJ OLC presented by far the most convincing evidence of a real search. As described by Deputy Assistant Attorney General John Bies, the department conducted searches for the following terms: target! kill!, drones, assassinat!, extrajudicial killing, UAV, unmanned, awlaki, aulaqi, lethal force, lethal operation.

DOD primarily searched legal officers. While Lieutenant General Robert Neller didn’t provide a full list of search terms used, he claimed the search “included relevant key words,” including “Citizen,” “AG Speech,” “al-Awlaki,” and “Samir Khan.” While Neller says DOD used “multiple spellings” of al-Awlaki, it’s not clear whether they only searched hyphenated names. And there are some terms clearly missing–such as anything to do with targeted killing. And “citizen”? Really?!?!?

CIA, meanwhile, had this to say about their search:

In light of these recent speeches and the official disclosures contained therein, the CIA decided to conduct a reasonable search for records responsive to the ACLU’s request. Based on that search, it has determined that it can now publicly acknowledge that it possesses records responsive to the ACLU’s FOIA request.

The DOJ response provides this nonsensical excuse for why CIA can’t reveal how it searched for relevant documents.

Although the CIA acknowledges its possession of some records responsive to the FOIA 6 requests, information concerning the depth and breadth of that interest, including the number of documents, is classified. See infra Point II; Bennett Decl. ¶¶ 27-28. We therefore do not describe the CIA’s search on the public record; it is described in the Classified Declaration of John Bennett.

Given the CIA’s well-documented history of not searching where they know the most interesting documents are, I think it safe to assume the search was completely negligent. But I find it mighty interesting they didn’t even tell us what their search consisted of–the better to avoid contempt proceedings in the future, I guess.

Nevertheless, I think the least defensible search comes from Deputy Chief of the Initial Request Staff at Office of Information Policy Joseph Hibbard. OIP conducted the search in offices of top DOJ officials like the Attorney General, the Deputy Attorney General, and so on. Their search terms were: “targeted killings,” “kill lists,” “lethal operation,” “lethal force,” “al-Aulaqi” and “target,” “al-Awlaki” and “target,” “Samir Khan” and “target,” and “Abdulrahman” and “target.” The use of the hyphens in Awlaki might miss documents. The search for the plural rather than the singular of “targeted killing” and “kill list” almost surely would miss documents even assuming those terms are used at DOJ. The use of Samir Khan’s full name and the choice not to search on Anwar might likewise miss some documents.

Most problematic of all, however, is that searching on these men’s names only with “target” would miss a lot of responsive information.

Remember, in addition to general information about the legal authorization process, ACLU asked for:

Facts supporting a belief that al-Awlaki posed an imminent threat to the United States or United States interests;

[snip]

Facts supporting the assertion that al-Awlaki was operationally involved in al Qaeda, rather than being involved merely in propaganda activities;

[snip]

All documents and records pertaining to the factual basis for the killing of Samir Khan

DOJ probably has information pertaining to the assessment–for example–that Samir Khan could leave the US and travel to Yemen even though a long line of FBI terror investigation subjects have gotten arrested for doing the same. There’s also information submitted in the Mohamed Osman Mohamud prosecution pertaining to Khan which also probably would have received high level attention.

And we know that DOJ claims to have evidence that proves that Awlaki was operational, much of it pertaining to Umar Farouk Abdulmutallab’s attempted attack and subsequent interrogation (indeed, two of the few documents OIP says were responsive date to January and February 2010 and almost certainly pertain to the aftermath of Abdulmutallab’s attempted attack). But there are other documents that almost surely should be there–such as discussions after the CIA added Awlaki to their kill list after April 6, 2010 and DOJ attempted to use that to get more intelligence out of Abdulmutallab. Or deliberations in September 2010 about whether to charge Awlaki or not. And I highly doubt that no one in top DOJ offices reviewed the opening argument in the Abdulmutallab case and/or discussed the strategy of keeping Awlaki’s name silent, even while presenting information that–DOJ later claimed–was really about Awlaki in the first place.

All of this would be responsive to ACLU’s request. Some of it is obviously unclassified.

Note, too, that while the other offices that described their search searched right through the present, OIP decided,

The cut-off day for documents responsive to plaintiffs’ request was November 3, 2011, the day the search for records commenced.

[snip]

The speech of Attorney General Eric Holder at Northwestern University School of Law on March 5, 2012 was delivered after the searches had been initiated, and the speech is therefore not included in the responsive material. A true and exact copy of those prepared remarks is nonetheless attached here as Exhibit E.

Of course, Holder’s speech was not the only unclassified material from the period after November 3, 2011. By far the most relevant materials–more so probably than even the Holder speech–were released with Abdulmutallab’s sentencing, when DOJ all of a sudden released information they had previously suppressed, in part to explicitly make claims about Abdulmutallab’s ties to Awlaki.

The Supplemental Factual Appendix is included in order to provide the Court with additional information regarding “the nature and circumstances of the offenses,” particularly Count One. It provides the Court with relevant details regarding other terrorists with whom defendant interacted overseas as part of this plot, including Anwar Awlaki.

Even beyond what DOJ claimed to the judge in the case, DOJ presented the appendix as proof that Awlaki’s killing was legally justified. If it’s proof, then why wasn’t it turned over under FOIA?

Yet in the face of a legal request to turn these documents (or the underlying interrogations) over under FOIA, DOJ has contorted its response to ignore them.

DOJ twice before–in the ACLU/CCR suit to establish the basis for Awlaki’s presence on the kill list and with the Abdulmutallab opening arguments–decided not to present the evidence that purportedly justified Awlaki’s killing in a legally antagonistic setting. They appear to have done so again.

Not only should the ACLU be demanding a more honest response to their FOIA. But Americans ought to be asking why DOJ has repeatedly backed off of presenting the evidence they say justifies killing an American citizen.

Update: I just counted. There are 48 email chains involving OAG and/or ODAG that OLC was able to find but OIP (the people supposedly good at finding things) failed to find. Of those, 18 are after OIP’s self-imposed cut-off for search (in effect, it cut off its search just as Holder’s aides were in the middle of a big debate about how to explain the killing of Awlaki). But that still means OIP failed to find 30 responsive email chains. Also note that OLC found two of the documents that appear in OIP’s Vaughn index, and the implication is that OIP did not find the second one–a February 9, 2010 email from ODAG to OLC, at all.

On April 18, 2012, the Office of Legal Counsel referred two responsive documents to OIP that are subject to the FOIA. One of these documents was duplicative of material previously located by OIP and identified in OIP’s Vaughn Index as document one. The responsive portions of the second document, totally three pages, have been withheld in full and the document is listed in the attached Vaughn Index as document four.

I wonder whether OIP would have admitted to either of these if OLC hadn’t formally referred them for declassification.

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.

25 replies
  1. MadDog says:

    As to the CIA’s search, someone correct me if I’m wrong here, but I seem to remember that the CIA always takes the position that any material from the National Clandestine Services (NCS) directorate (and that includes their own Counterterrorism Center which falls under NCS), is legally immune from any FOIA request since it concerns CIA operational matters.

    If I’m remembering correctly, that particular CIA immunity is provided by a specific statute with no exceptions allowed.

  2. MadDog says:

    And one thought came to my mind while typing the previous comment. Where is the Office of the Director of National Intelligence and its National Counterterrorism Center (NCTC) in all of this?

    Why for example why did the ACLU not include the ODNI and the NCTC in their original FOIA request?

    The NCTC is the primary locus for Kill List nominations and US drone strikes, and I don’t doubt that the DNI would be in the loop for discussions on US drone strikes.

  3. MadDog says:

    Ok, where’s Appendix H from the John Bies declaration with those DOJ search terms? Are you holding out on us EW? LOL!

  4. MadDog says:

    “…Most problematic of all, however, is that searching on these men’s names only with “target” would miss a lot of responsive information…”

    You aren’t kidding! I also noticed that the search by DOJ’s Joseph Hibbard did not search by “Awlaki” which is quite commonly instead of the more formalized “al-Awlaki”.

  5. MadDog says:

    @MadDog: And note as well that the OIP’s Hibbard states that even far more limited search terms were used in some of the OAG office searches.

    For example, from page 5 of Hibbard’s declaration, he says this:

    “…14) One OAG official indicated that she may have responsive unclassified computer files. OIP searched those files using the terms: “target killings,” “kill lists,” “lethal operation,” and “lethal force.”

    What happend to “al-Awlaki” and the other search terms?

  6. ondelette says:

    All of this supposes you know how the search engines stem the terms, right? Because thst’s what you’re talking about, you’re saying or alleging they don’t stem at all. It looks as if the ACLU is requesting based on the AG’s 3 point decision criterion, for al Awlaki at least. That would mean that many of the terms are irrelevant, unless perhaps the CIA is using them for some strange reason.

  7. emptywheel says:

    @MadDog: Correct, operational files are exempt. I assume that explains why JSOC doesn’t show here, as well, though I’m not sure how formal their exemption is. Also many of DNI’s files are now exempt.

    Your point about NCTC is an important one.

  8. emptywheel says:

    @MadDog: Right, which would come up without a hyphen, probably, not not with.

    Incidentally, they probably referred to Awlaki by a code name (something like “Geronimo”), so I expect most of the DOD stuff wouldn’t show anyway.

  9. MadDog says:

    @emptywheel: I hadn’t thought about JSOC having a similar FOIA exemption, and while probably not exactly like the CIA’s, I’m sure you’re right that they can fly under the FOIA radar as well.

    And now that you mention it, I do now seem to remember that the DNI got its own FOIA exemption recently, and I suppose it applies downstream to the NCTC too.

    An update: Having now looked at that DOD declaration, I noticed that at least SOCOM was listed as having participated in the FOIA search.

    While SOCOM isn’t exactly JSOC, neither is it unrelated.

  10. MadDog says:

    @emptywheel: Good point about their probable usage of a code name like they did with OBL!

    And relatedly, I did notice in Hibbard’s declaration that he never describes the search terms used in any of the classified file searches. Going with the Geronimo code word approach, perhaps a different set of classified search terms were used.

    I also noticed that the only “classified files” that Hibbard references are “paper files”. There’s no mention of any DOJ classified electronic communications, and we know full well that one is used by some of the DOJ employees like Yoo did in the OLC, and likely the NSD does for a good deal of its classified work.

  11. MadDog says:

    One other thing that jumped out at me from the Neller DOD declaration was an admission of existence and a rather more descriptive picture of what exactly is in the OLC opinion that Charlie Savage wrote about in the NYT.

    This is the part I mean from page 6:

    “…17. In addition to the unclassified documents described above, the searches located the Department of Justice Office of Legal Counsel (OLC) opinion identified by OLC as responsive to requests by both the ACLU and the New York Times. This OLC opinion must be withheld in full because the content of the document contains information about military operations, intelligence sources and methods, foreign government information, foreign relations, and foreign activities. Its disclosure would damage national security, and the classified information is not segregable…”

    And I note that I just saw your update on what the OLC found that the OIP didn’t. Hibbard & Co. don’t seem to be making the cut, are they?

  12. emptywheel says:

    @MadDog: Actually, that’s a good point. Bies’ declaration would have been great to have after Yoo’s emails disappeared, bc it explains where they were.

    But Bies refers to the classified email servers, whereas the Office of Information Policy seems to be unaware of them.

  13. MadDog says:

    @emptywheel: I hadn’t remembered a reference in the Bies declaration to classified email servers. Now you’ve got me with 3 PDFs open at once and bouncing back and forth between them. *g*

    It does seem strange to me about Hibbard’s declaration, where he is looking for this stuff in the Office of the Attorney General, that there wouldn’t be some reference to the AG having access to a classified electronic system. Does AG Holder only see classified stuff on paper? That seems too state of the art stone age!

  14. MadDog says:

    @MadDog: Hmmm…does the fact that the Neller DOD declaration admits the existence of an OLC opinion, and the fact that the Bennett CIA declaration does not by going Glomar, mean that EW’s hypothesis is correct that it’s the DOD’s opinion rather than the CIA’s?

    And that the CIA is operating under something other than an OLC opinion?

    The peanut gallery wants to know! *g*

  15. emptywheel says:

    @MadDog: Bennett’s declaration is hopeless. I’m fairly sure he wasn’t hired for his command of the English language.

  16. emptywheel says:

    @MadDog: Not necessarily. I’m less confident of that theory than I was before.

    Remember, though, as you read, that at one point DOD was told Samir Khan could not be targeted. That was when they were in charge of the get-Awlaki op. That was switched to CIA in summer 2011 (which is when a few of these documents date to).

  17. MadDog says:

    @emptywheel: Why the less confidence? Clearly the DOD does admit to the existence of an OLC opinion.

    Given that JSOC was running the get-Awlaki op as you mentioned, and that the CIA was late to the party in the summer of 2011, it would seem fairly logical that any OLC Ok for a get-Awlaki op would have the DOD as its first customer.

    Yemen, where Awlaki was living/hiding, was owned by JSOC drones. The CIA’s drones didn’t exist in Yemen until very late in the game.

    And I do remember MSM reports that stated both JSOC and CIA drones fired at Awlaki, and that the analysts/targeteers didn’t know whose Hellfire actually did the deed.

  18. emptywheel says:

    @MadDog: Yeah, quite honestly, I don’t know anyone who knows whether JSOC or CIA for sure killed Awlaki, likewise Abdulrahman.

    I think there are several interesting questions as they moved to CIA. First, a desire to protect the partner where their base is, which I still suspect is Saudi Arabia (and remember Awlaki was in the north of Yemen). Then there’s the ruling that CIA officers could be charged for murder under the OLC authorization; Saleh was still nominally in power when they killed Awlaki and he was protecting Awlaki, so it was not unconceivable that he would charge the CIA. Then there’s the fact that DOD had been told Khan couldn’t be targeted and OLC’s exhortation that they minimize collateral damage, both of which might have given JSOC pause to strike at Awlaki in those circumstances. And note, if, as I somewhat suspect, Khan was either let go or ostensibly an asset for us, the politics of killing him or not would get dicey.

    All of them reasons to use a different authorization.

    But most of all, if you keep every authorization “draft” and then use only the MON, it counts as covert and therefore is not discoverable.

    That said, I still haev some doubte.

  19. MadDog says:

    @emptywheel: Ok. At least you’re not throwing away the “it’s the DOD’s OLC opinion”.

    I’m off to my morning workout ritual at the Y before it gets too hot (supposed to be 96 and mucho humid today), so all you lurkers out there: get busy commenting!

    As Ahnold would say, I’ll be back.

  20. earlofhuntingdon says:

    It is understandable why a chief political executive, arrogating to his sole discretion authority to kill his own citizens, would want to hide the rationale for his claims and to hide the alleged process and circumstances under which he exercises his claimed right to keep a “kill list” and to kill those on it.

    Why would anyone who did not want to end up on such a list accede to the executive’s arrogation of such power?

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