The Administration Has Not Responded to Over 10 Congressional Requests for Targeted Killing Memo

Back in September 2010, when the Administration successfully argued that whether or not the government had the authority to kill Anwar al-Awlaki was a matter for the Executive and Congressional Branches to decide, it claimed Congress served as a check on that power.

The nonjusticiability of the plaintiff’s claims in this Court “does not leave the executive power unbounded.” Schneider, 412 F.3d at 200. “The political branches effectively exercise such checks and balances on each other in the area of political questions[,]” and “[i]f the executive in fact has exceeded his appropriate role in the constitutional scheme, Congress enjoys a broad range of authorities with which to exercise restraint and balance.” Id. Accordingly, “the allocation of political questions to the political branches is not inconsistent with our constitutional tradition of limited government and balance of powers.” Id.

The Administration’s behavior in the interim period has proven those assurances to be utterly false. Congress has asked the Administration on more than 10 separate occasions for the OLC memo authorizing the killing of Anwar al-Awlaki (many of these 10 documented requests refer to earlier requests, and Pat Leahy sent President Obama a letter that his office could not share).

And yet here we are, 22 months after the Administration assured Judge John Bates that Congress exercised some kind of check on the Executive, at least 17 months after members of Congress first started asking for the legal analysis, and the Administration has not responded to those requests.


Here are the requests.

February 2011: Ron Wyden asks the Director of National Intelligence for the legal analysis behind the targeted killing program. (1)

April 2011: Ron Wyden calls Eric Holder to ask for legal analysis on targeted killing. (2)

May 2011: DOJ responds to Wyden’s request, yet doesn’t answer key questions.

May 18-20, 2011: DOJ (including Office of Legislative Affairs) discusses “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” (this may be the DOJ response to Ron Wyden).

October 5, 2011: Chuck Grassley sends Eric Holder a letter requesting the OLC memo by October 27, 2011. (3)

November 8, 2011: Pat Leahy complains about past Administration refusal to share targeted killing OLC memo. (4)

February 8, 2012: Ron Wyden follows up on his earlier requests for information on the targeted killing memo with Eric Holder. (5)

March 7, 2012: Tom Graves (R-GA) asks Robert Mueller whether Eric Holder’s criteria for the targeted killing of Americans applies in the US; Mueller replies he’d have to ask DOJ. Per his office today, DOJ has not yet provided Graves with an answer. (6)

March 8, 2012: Pat Leahy renews his request for the OLC memo at DOJ appropriations hearing. (7)

June 7, 2012: After Jerry Nadler requests the memo, Eric Holder commits to providing the House Judiciary a briefing–but not the OLC memo–within a month. (8)

June 12, 2012: Pat Leahy renews his request for the OLC memo at DOJ oversight hearing. (9)

June 27, 2012: In Questions for the Record following a June 7 hearing, Jerry Nadler notes that DOJ has sought dismissal of court challenges to targeted killing by claiming “the appropriate check on executive branch conduct here is the Congress and that information is being shared with Congress to make that check a meaningful one,” but “we have yet to get any response” to “several requests” for the OLC memo authorizing targeted killing. He also renews his request for the briefing Holder had promised. (10)

July 19, 2012: Both Pat Leahy and Chuck Grassley complain about past unanswered requests for OLC memo. (Grassley prepared an amendment as well, but withdrew it in favor of Cornyn’s.) Leahy (but not Grassley) votes to table John Cornyn amendment to require Administration to release the memo.

July 24, 2012: SSCI passes Intelligence Authorization that requires DOJ to make all post-9/11 OLC memos available to the Senate Intelligence Committee, albeit with two big loopholes.

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.

21 replies
  1. MadDog says:

    Should the FY 2013 Intelligence Authorization become law as it is currently written, I’d bet the Obama Administration would cite at least both exceptions (Covert Action and Executive Privilege) in continuing to refuse to provide the OLC memo authorizing the killing of Anwar al-Awlaki to Congressional Intelligence or Judiciary committees.

    If we are to believe the news reports, it sounds like the CIA is adamantly opposed to the memo’s release even to the Intelligence committees, and certainly not to the NYT and the ACLU.

    If I’m remembering correctly, the purported CIA rationale with respect to the NYT and ACLU lawsuits hinges on the minuscule figleaf that to ever publicly acknowledge any covert CIA program or activity would essentially undermine and negate all covert programs and activities.

    Plainly this same “rationale” is not usable with Congressional Intelligence committees, so it leaves us all with the question as to just what is the Executive branch’s “rationale” in keeping Congress in the dark.

    Is it because of the continuing legacy of the one from the Dark Side and his extreme Unitary Executive theories?

    Or is it merely the never-ending swinging of the political pendulum where the Executive branch now currently holds sway over a too-deferential (Hah! More like cowering!) Congress?

  2. Carla Williams says:

    Could you use “nonjusticiable” in a sentence, please? Or think of a shorter word–

  3. emptywheel says:

    @MadDog: I’m moving back to my theory that they didn’t rely on the 6/8/10 memo to kill Awlaki. That’s the one pertaining to DOD. I think CIA killed him (or officially ran the op). And I suspect that either there was something wrong with the authorization Lederman and Barron wrote–such as they got info from Jabir al-Fayfi that rebutted earlier evidence Awlaki was operational, meaning he was not an imminent threat–or that they didn’t want to rely on it so as to make it easier to hide.

    But remember, if it’s CIA, then it’s authorized by the Memorandum of Notification, not the AUMF. Which means only the Intel Committees get oversight (hey! That’s what happened!). But also that they don’t NEED an OLC memo, but they need to assert that it was legal. But they can do it because in a like set of facts, it would be legal.

    Get it?

  4. emptywheel says:

    @Carla Williams: Sorry, it’s not my word.

    What DOJ was trying to do was convince the judge that the ACLU suit (to get the govt to agree it would only kill Awlaki if he represented an imminent threat, basically) was not something the judge could rule over–thus not “justiciable.” They did that on a bunch of grounds, but the two main things the judge said was that Awlaki’s father didn’t have standing and that this was a topic rightly limited to the political branches (the President and Congress).

  5. MadDog says:

    @emptywheel: Interesting theory! And it does play to the notion that they’ve got something to hide in not letting the Congressional Intelligence committees see the OLC memo.

    It also comports with the actual strike that killed Awlaki. Where both JSOC and the CIA drones fired Hellfire missiles at Awlaki, and that the US government anonymously claims they don’t know which made the actual kill.

    That still allows the US government to legally hide the ball as to whether the Awlaki assassination was under cover of the Laws of Warfare by JSOC or a CIA covert assassination of an American citizen.

  6. MadDog says:

    @lysias: According to this Craig Whitlock WaPo article, the strike that killed Abdul-Rahman al-Awlaki was done by JSOC:

    “…One administration official described the younger Awlaki as a bystander, in the wrong place at the wrong time. “The U.S. government did not know that Mr. Awlaki’s son was there” before the order to launch the missile was given, the official said.

    Another U.S. official said the airstrike was launched by the military’s secretive Joint Special Operations Command, or JSOC. It remains unclear whether the missile was fired by a remotely piloted drone or a fighter jet…”

  7. MadDog says:

    @MadDog: I would also note this part of Craig Whitlock’s article also on Page 2:

    “…All individuals targeted by the JSOC must be approved in advance by the National Security Council, said a senior U.S. official. Afterward, the JSOC files detailed reports through the Special Operations Command and then to the Joint Staff in the Pentagon.

    By comparison, the CIA’s covert armed drone program has come to be treated as an open secret in Washington — not formally acknowledged, but defended and described in abundant detail by U.S. officials in unofficial conversations.

    Congressional officials said that if the Oct. 14 strike had been executed by the CIA, the Senate and House intelligence committees would likely have been notified right away. On Thursday, military officials presented a closed briefing on the JSOC airstrike to members of the Senate Armed Services committee. Members of the panel declined to discuss details…”

  8. MadDog says:

    @emptywheel: In re-reading the NYT’s Charlie Savage October 8, 2011 article about the Awlaki OLC memo, I was struck by this passage from page 2:

    “…The memorandum did assert that other limitations on the use of force under the laws of war — like avoiding the use of disproportionate force that would increase the possibility of civilian deaths — would constrain any operation against Mr. Awlaki…”

    Would these supposed limitations that Lederman and Barron placed in the Awlaki OLC memo and the death another American citizen, Samir Khan in the same Awlaki strike mean that American officials were now at legal risk of murder charges, and that these purported impediments in the Awlaki OLC memo would be material evidence in such a case? Is this another reason why the Awlaki OLC memo cannot even be shown to Congressional Intelligence committee members?

    I’m just wondering now if the Obama Administration believes it cannot ever release or show the Awlaki OLC memo to anyone because it would provide material evidence that they bypassed even the weasel-worded legal strictures authored by Lederman and Barron.

  9. emptywheel says:

    @MadDog: I don’t think they’ll release the memo AND the evidence–that’s when you get in trouble. If, as I sort of suspect, Jabir al-Fayfi is the problem, then you can be sure we’ll never see him.

  10. MadDog says:

    @emptywheel: Agreed. If the memo were ever to be viewed, either by Congressional Intelligence committee members, or more unlikely, by some magical judicial ruling with wholesale redactions for the NYT and ACLU, we can be darn sure they’d never let anyone see the associated intelligence purportedly part of the memo that claimed Awlaki was operational.

    Folks might put two and two together, and the killer drone crews can’t have that.

  11. Bob Schacht says:

    Is it premature to declare that there is no accountability whatsoever in the CIA, and that no war criminal, no matter how perverted, will ever be held publicly accountable and jailed? Looks like we have a whole agency full of 007 types.

    Bob in AZ

  12. MadDog says:

    Mildly OT – Just in case folks might miss it, Walter Pincus over at the WaPo had this tidbit in his piece about leaks that I hadn’t seen before:

    “…There was the May leak about an intelligence agent who infiltrated the branch of al- Qaeda in Yemen and posed as a suicide bomber in a clever operation that uncovered a new type of underwear bomb. Though U.S. officials talked about it after its initial disclosure, the original leak came from Saudi intelligence, according to CBS News…”

    (My Bold)

    I’m still scratching my head to understand why the Saudis would blow the cover off their own double agent, but the scratching doesn’t seem to provide any reasonable answer.

  13. mlnw says:

    So, while the Administration refuses to provide the legal memoranda which set forth the legal basis for their position on targeted assassinations and it refuses to cooperate fully and provide all of the demanded information, (notwithstanding what Sen. Dianne Feinstein, the more less sandbagged and discredited Intelligence Committee Chair has stated) the result is that Congress cannot adequately perform, indeed is being prevented from performing, its oversight- i.e., satisfy what the Administration’s says is the new predicate for “due process” – given that the judiciary has become constitutionally irrelevant in the Administration’s scheme of “government of the people, by the people and for the people”.

    (It seems to me that Obama is the Congressional Democrats’ and his own worst enemy because he is either forcing them to sue the Administration or setting them up to be called to task if they don’t; and who on the Supreme Court is just itching to shove a pitchfork up the Administration’s collective a….s, but Mr. Cheney’s duck shooting partner, Mr. Antonin.)

  14. Bob Schacht says:

    @MadDog: Well, for some reason, the Saudis must have decided that he was no longer an asset. Maybe he “turned.” Or maybe the double agent was just a pawn on someone else’s chessboard that got caught in, and was sacrificed in some gambit. Or maybe it was just some petty local tribal thing leaked by a low level official who had different interests than the Saudi ruling family.

    Qui bono?

    Bob in AZ

  15. emptywheel says:

    @MadDog: That’s what I said from the beginning.

    The Saudis and Yemenis, between them, were responsible for the Jabir al-Fayfi leak, which resembles this one exactly. They’re doing it to boast, I think.

  16. emptywheel says:

    @Bob Schacht: Or maybe the Saudis were delivering us an “attack” to justify ramped up operations in Yemen. Which of course serves Saudi interests, but not ours.

  17. MadDog says:

    @emptywheel: If that’s the case, then the DOJ investigation ought to peter out fairly quickly, and all those Repug “special counsel” demands should get blasted as nothing more than partisan political nonsense by the AP who broke the story.

    There’s no gored American ox if the Saudis are spilling their own beans.

  18. MadDog says:

    @Bob Schacht: I could understand the Saudis doing this if they thought that there couldn’t be any further use for their double agent and his handler, that both were blown anyways, and as EW says, it was time for the Saudis to crow.

    @emptywheel: Regardless of the Saudi “leak”, the Op itself certainly plays out as pushing the US further into deepening involvement in Yemen, and yes, the Saudis have a vested interest in making that happen.

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