Senate Intelligence Committee Member Ron Wyden STILL Hasn’t Seen Targeted Killing Memo

Every time I get into debates about the targeted killing program–especially the killing of Anwar al-Awlai–drone boosters insist that the oversight provided by the Intelligence Committees is adequate to the task.

That’s a quaint thought.

Ron Wyden, in a letter preparing John Brennan for his confirmation hearing, reveals that he still hasn’t seen the “secret legal opinions” (plural) authorizing the targeted killing program.

First, as you may be aware, I have asked repeatedly over the past two years to see the secret legal opinions that contain the executive branch’s understanding of the President’s authority to kill American citizens in the course of counterterroism operations. Senior intelligence officials have said publicly that they have authority to knowingly use lethal force against Americans in the course of counterterrorism operations, and have indicated that there are secret legal opinions issued by the Justice Department’s Office of Legal Counsel that explain the basis for this authority. I have asked repeatedly to see these opinions, and I have been provided with some relevant information on the topic, but I have yet to see the opinions themselves.

[snip]

As I have said before, this situation is unacceptable. For the executive branch to claim that intelligence agencies have the authority to knowingly kill American citizens but refuse to provide Congress with any and all legal opinions hat explain the executive branch’s understanding of this authority represents an alarming and indefensible assertion of executive prerogative.

Remember, Wyden is a member of the Senate Intelligence Committee, that group of select men and women with whom the Executive must share even the findings authorizing the most covert operations.

And yet for two years, they have rebuffed Wyden’s questions about their claim to be authorized to kill Americans.

There’s more in the letter demonstrating how arrogant the Obama Administration has been with the purported overseers of its covert operations.

But it doesn’t get much scarier than the fact that the President won’t tell Congress the bases and limits to his authority to unilaterally kill Americans.

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.

11 replies
  1. Ben Franklin says:

    “refuse to provide Congress with any and all legal opinions hat explain the executive branch’s understanding of this authority represents an alarming and indefensible assertion of executive prerogative.”

    Is it fair to speculate that Yoo figures in, and such inflammatory facts don’t assist the agenda?

  2. phred says:

    So… What happens next? Will Congress refuse to confirm Brennan? Will they refuse to continue to fund all counter-terrorism operations until the executive branch cooperates?

    I’m guessing that although Wyden is doing his best, he will be unable to convince his fellow Senators (much less House members) to act in concert to assert their own authority. If that’s the case, then there is nothing at all to restrain an out-of-control executive.

  3. pdaly says:

    The same Senator Wyden who saved the internet. Good job Sen. Wyden.

    From Aaron Swartz’s “How We Stopped SOPA” speech, as transcribed by thatvisionthing on a prior thread:
    http://www.emptywheel.net/2013/01/13/two-days-before-cambridge-cops-arrested-aaron-swartz-secret-service-took-over-the-investigation/#comment-500618

    “And then suddenly the process stopped. Senator Ron Wyden, a Democrat from Oregon, put a hold on the bill. Giving a speech in which he called it a nuclear bunker buster bomb armed at the Internet, he announced he would not allow it to pass without changes.

    Now, as you may know, a single senator can’t actually stop a bill by themselves, but they can delay it. By objecting to a bill, they can demand Congress spend a bunch of time debating it before getting it passed, and Senator Wyden did. He bought us time. A lot of time, as it turned out. His delay held all the way through the end of that session of Congress, so that when the bill came back it had to start all over again, and since they were starting all over again they figured why not give it a new name, and that’s when it began being called PIPA, and eventually SOPA.”

  4. joanneleon says:

    @phred: Good point. Time to hold something back. Put a hold on something. Refuse to vote for confirmation at least.

    But just wow. Two years and they still won’t cough up the legal justification. Should have brought it up a lot during the 2012 campaign. That’s the only time Obama was listening to anyone. Forget about it now.

  5. phred says:

    @pdaly: Ummm, I respectfully disagree and I think Aaron would disagree as well. Read the entire transcipt from that speech. His point was that the people rose up in every way they knew how and killed that bill (for now). Wyden absolutely deserves all the credit for placing the hold that bought activists and the public the time needed to change votes, but it was the public outcry that “saved the internet”.

    At the end of his speech Swartz cautions people not to let history be rewritten, giving credit to Google or some other company (or in my opinion as in your comment giving credit to Wyden). It is really important for people to understand their own power if they will use it.

  6. pdaly says:

    @phred:

    True, Swartz credits the people for stopping SOPA, but it was Wyden who Swartz credits for putting a stop to the PIPA/SOPA precursor bill right as Congress was ready to pass it without debate.

    I should have written Wyden was part of the People led process that saved (at least for now) the internet.

  7. Brendan says:

    Interesting how we Americans can be massively mobilized to protect our right to cat memes and such but when it comes to the government brazenly killing US citizens and others abroad … crickets.

  8. DWBartoo says:

    @Brendan:

    Perhaps, Brendan, it is simply a question of Public Relations and who the PR corporations work for … the legacy political parties and the government (as well as “bu$ine$$)? How is “opinion” now “shaped”?

    How many Americans, now, fully or even largely, understand what is being done in their names?

    Informed “consent”, in the USA, is nonsense. It does not exist. Nor does the political class, which includes the media, wish such understanding to exist …

    What makes the crickets chirp?

    DW

  9. Bill Michtom says:

    @DWBartoo “How many Americans, now, fully or even largely, understand what is being done in their names?”

    As has been pointed out in many places, the US public knows and heavily approves of drone killings, including self-identified liberals.

  10. mlnw says:

    The President’s and Mr. Brennan’s failure to provide this information is not merely a matter of “being uncooperative”, as Se. Wyden noted, it is an intentional obstruction of Congress’ ability to oversee the drones targeted assassination program, After all, when the program was first unveiled, it was Attorney General Holder who claimed that judicial due process was not required to ensure due process, but that Congressional oversight, which the program allegedly would provide in lieu of judicial due process, would be sufficient. So, now, having denied Congress the primary information it needs to oversee the program, it follows that the Administration has in fact been violating its obligation to Congress and denying due process to those whom the program has been targeting.

    So, while this is a good first step, Sen. Wyden and his allies should not just make the demand, they should be prepared to sue in Court to force a judicial determination that validates their right to receive this information and compels the President to provide it. Due process is not a matter of convenience that can be compromised away in the interests of Congressional “comity” with the Executive branch. It is, if the Attorney General is right, both an obligation of Congress, irrespective of the wishes of the President, and a fundamental right to any and all who are potential targets under the program that neither the Executive nor Congress can deny. As the right of due process, it informs the very rule of law that applies to all of us, even if the law in its present state may be on life support.

    Furthermore, what is doubly troubling is that the President, a former teacher of Constitutional law at the University of Chicago, one of our country’s elite law schools, and, Harold Koh, the former dean of the Yale Law School, perhaps the most prestigious law school in our nation, have taken such active steps to thwart the operation of the law. It is wrong, and Congress needs to show some integrity and guts, and take a real stand to right the wrong.

    As for Senator Leahy and the Judiciary Committee, they should hold up the confirmation process and fight to deny John Brennan any chance to become the next DCIA, if for no other reason- and there are many – that he has failed to fulfill his obligation to provide this essential information to Congress.

  11. mspbwatch says:

    There’s nothing stopping concerned employees with access to the memos from going through a protected channel – the Office of Special Counsel, under 5 USC 1213(j) – and giving the memos (or at least the violations therein) directly to Congress.

    “The Referral Process under 5 U.S.C. § 1213(j)
    For disclosures of information involving counterintelligence and foreign intelligence information the statute sets forth a different procedure under 5 U.S.C. § 1213(j). If the Special Counsel determines that a disclosure involves counterintelligence or foreign intelligence information, which is prohibited from disclosure by law or Executive order, the disclosure will be transmitted to the National Security Advisor, the Permanent Select Committee on Intelligence in the House and Select Committee on Intelligence in the Senate. 5 U.S.C. § 1213(j). The referral ends the Special Counsel’s involvement with the disclosure and the National Security Advisor and the Congressional intelligence committees decide how to proceed with the information. The disclosure will not be referred to the head of the agency involved for an investigation.”

    http://www.osc.gov/5USC1213process.htm#

    Confidentiality is guaranteed under 5 USC 1213(h). The disclosure is protected under 5 USC 1213(a)(2).

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