Dianne Feinstein Undermines John Cornyn’s Effort to Get Transparency on Targeted Killing

As I noted a few weeks ago, the Democrats on the Senate Judiciary Committee voted to prevent John Cornyn from adding an amendment to the FISA Amendments Act Extension. I will have to hunt down the language of his amendment tomorrow, but it would basically have required the Administration to share the memos authorizing the killing of Anwar al-Awlaki–with targeted killing addressed specifically–with the Intelligence and Judiciary Committees. [Update: The Amendment is below.]

The Senate Intelligence Committee just passed the language that–DiFi promised–would address the issue. And it still leaves the Administration leeway to do what it has been doing for two years–withholding the actual memo from the committees that oversee it.

That’s because the legislation passed as part of the Intelligence Authorization allows the government to withhold opinions from people not read into covert programs.

(a) REQUIREMENT TO PROVIDE.—Except as provided in subsections (c) and (d), not later than 180 days after the date of the enactment of this Act, the Attorney General, in coordination with the Director of National Intelligence, shall provide to the congressional intelligence committees a copy of every classified opinion of the Office of Legal Counsel of the Department of Justice that was provided to an element of the intelligence community on or after September 11, 2001.


(c) EXCEPTION FOR COVERT ACTION.—If the President determines that it is essential to limit access to a covert action finding under section 503(c)(2) of the National Security Act (50 U.S.C. 413b(c)(2)), the President may limit access to information concerning such finding that is subject to disclosure under subsection (a) or (b) to those members of Congress who have been granted access to the relevant finding under such section 503(c)(2).

(d) EXCEPTION FOR INFORMATION SUBJECT TO EXECUTIVE PRIVILEGE.—If the President determines that a particular opinion subject to disclosure under subsection  (a) or listing subject to disclosure under subsection (b) is subject to an executive privilege that protects against such disclosure, the Attorney General shall not be required to disclose such opinion or listing, if the Attorney General notifies the congressional intelligence committees, in writing, of the legal justification for such assertion of executive privilege prior to the date by which the opinion or listing is required to be disclosed.

This is, frankly, an outrage both specifically and generally.

First, nothing in this language guarantees the committees will get the memos in question. That’s because the Administration has long been withholding the information even from members of the Senate Intelligence Committee based on claims that it is too secret to share with those who oversee intelligence and the Constitution.

Furthermore, both the Bush and Obama Administrations have fairly routinely withheld OLC memos–particularly drafts–on the basis they’re deliberative and have nothing to do with the basis on which the Administration makes the final decision. The language on Executive Privilege here codifies that practice. Further, in the case of targeted killing, the government went out of its way to get ACLU to agree not to ask for the drafts of their opinions on targeted killing. And remember, before they finalized the memo we think was ostensibly used to authorize the killing of Anwar al-Awlaki, they had already tried to kill him, at a time when FBI, at least, didn’t have evidence showing he was operational. The authorization they used for the earlier kill attempt–if it exists–almost certainly looks nothing like the authorization described in the government’s recent transparency theater.

And then there’s this: the 6 months it allows the government to sit on this. That gets the Administration beyond the election, but also beyond the time when, if Obama loses, he’ll leave office. So if there’s anything really embarrassing, he can use late Administration game playing to clean it up.

This is disgusting. Really, really pathetic, even for the serially pathetic Senate Intelligence Committee.

Update: Here’s Cornyn’s amendment. His amendment would have gotten just the targeted killing opinions, shared with just the oversight committees (I had forgotten it included the Armed Services committees, too). But it also would have gotten the opinions within a month (and therefore before the election).

Not later than 30 days after the date of the enactment of this Act, the President shall submit, in classified or unclassified form, all legal analysis in effect on the date of the enactment of this Act related to the President’s authority to target and kill United States citizens overseas to—

(1) the Select Committee on Intelligence of the Senate;

(2) the Committee on Armed Services of the Senate;

(3) the Committee on the Judiciary of the Senate;

(4) the Permanent Select Committee on Intelligence of the House of Representatives

(5) the Committee on Armed Services of the House of Representatives; and

(6) the Committee on the Judiciary of the House of Representatives.

14 replies
  1. Arbusto says:

    It’d be a tossup for slimiest member of the Intel Committee (too many choices), but I’m pretty sure Cornyn and Feinstein would tie for first place.

  2. emptywheel says:

    @Arbusto: Cornyn’s not intel. That’s why this is so shitty. He’s Judiciary. So DiFi promised him she’d pass language that accomplished what his amendment would have, and then proceeded to fuck him over.

  3. MadDog says:

    Coincidentally, I was going to make an OT comment in your previous post that I’m right in the middle of reading “Report to Accompany S. 3454, the Intelligence Authorization Act for Fiscal Year 2013 (July 30, 2012)” (28 page PDF) from over at the SSCI website when you made this post.

    While less detailed that the Intelligence Authorization legislation document, it does provide summaries of the legislation.

    In the SSCI document, I noticed this bit from page 12:

    “…Section 604(a) requires the Attorney General, in coordination with the DNI, to provide the congressional intelligence committees with a copy of every classified OLC opinion that was provided to an element of the Intelligence Community on or after September 11, 2001…”

    (My Bold)

    I infer from the bolded date that there are OLC opinions relating to 9/11 that the SSCI members have yet to see but are aware of.

  4. MadDog says:

    FWIW, I don’t understand the inclusion of Section 301:

    “…Section 301. Restriction on conduct of intelligence activities

    Section 301 provides that the authorization of appropriations by the Act shall not be deemed to constitute authority for the conduct of any intelligence activity that is not otherwise authorized by the Constitution or laws of the United States…”

    Why is this included in the legislation?

    Is this merely boilerplate, or is this referring subtly to some particular Intelligence Community-desired or underway activity?

  5. MadDog says:

    @MadDog: This from page 13 seems to confirm that the SSCI hasn’t seen or received all of the post-9/11 OLC opinions:

    “…While the Committee in general is kept apprised of the legal basis for U.S. intelligence activities, neither the Department nor the Intelligence Community routinely accommodates the Committee’s requests for full OLC opinions. Furthermore, oral or written summaries of the legal basis for U.S. intelligence activities often do not provide the level of detail necessary for the Committee to fully carry out its oversight functions, as such summaries often omit relevant information, including the application of law to the specific facts present in a particular intelligence activity.

    Finally, neither the Department nor the Intelligence Community regularly advises the Committee of the existence of OLC opinions that are relevant to the Committee’s oversight functions. This presents a particular impediment to the Committee’s oversight function, as the Committee cannot request access to legal analysis when it is not made aware that such analysis exists…”

  6. emptywheel says:

    @MadDog: They got a summary of the Awlaki OLC opinion. Wyden specifically asked whether it permitted the killing in the US.

  7. MadDog says:

    @emptywheel: Either the SSCI has already seen it (doubtful), it doesn’t exist, or the SSCI doesn’t appear to care about stuff pre-9/11.

    I’m thinking the answer is behind door number 3.

    I would also note that in reading further into the SSCI’s summary of the legislation (page 17), the SSCI vote to strip federal pension monies from any government employee’s unauthorized disclosure of classified information only passed the committee on a 8 to 7 vote with Democrat Bill Nelson of Florida giving the committee Repugs a victory. All the other Democrats voted against the measure.

    In addition (page 18), it looks like only Democratic Senator Wyden voted against moving the bill out of SSCI in a 14 to 1 vote.

  8. emptywheel says:

    @MadDog Thanks. I haven’t started reading the rest. I suspected Wyden was the one.

    I’m betting DiFi and Reid kick him off the committee next year, particularly if we lose the majority.

  9. MadDog says:

    @emptywheel: In reading his minority views (starting on page 24), he raises excellent points about the pension-stripping component, and I think he’s right on the mark.

    Giving IC agency heads the authority to strip pensions under conditions where they could not do so by proving guilt in a court of law, no definitions on standards for doing so in the legislation, and apparently no means for a stripped individual to appeal, all of these things are downright stupid, hastily contrived, and a disaster just waiting to happen.

    I’m guessing that Florida Democrat Senator Bill Nelson voted for this stupidity because he believes his 2012 re-election campaign requires him to pander to voters who support this kind of stupidity.

  10. What Constitution says:

    Years ago, they tried making a push for more concise, streamlined legislative drafting. The provisions (a), (c) and (d) from the Intelligence Authorization Act, quoted, could easily have been shortened to “The President shall provide information about stuff to Congress unless it’s, you know, inconvenient.”

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