Ron Wyden: There Is More than One Targeted Killing Memo

I’ve been comparing Ron Wyden’s February 2012 letter demanding the authorization the Administration uses to kill American citizens with the one he sent John Brennan last week.

It’s striking how similar the letters are, particularly given the Administration’s drone publicity tour last year, between the time Wyden wrote the two letters. Wyden dismisses the value of the publicity tour in his latest letter.

Both you and the Attorney General gave public speeches on this topic early last year, and these speeches were a welcome step in the direction of more transparency and openness, but as I noted at the time, these speeches left a larger number of important questions unanswered. A federal judge recently noted in a Freedom of Information Act case that “no lawyer worth his salt would equate Mr. Holder’s statements with the sort of robust analysis that one finds in a properly constructed legal opinion,” and I assume that Attorney General Holder would agree that this was not his intent.

And in fact, what’s most striking is how similar some key features of the letters are.

For example, the list of questions Wyden appends to his later letter largely repeats and expands on questions Wyden poses in his earlier letter; the only new questions are (these are my summaries):

  • What standard is used to determine whether it is feasible to capture a particular American.
  • What is the rationale for applying Ex Parte Quirin, Hamdi v. Rumsfeld, and Mathews v. Eldridge to the question of when the President may legally kill an American?
  • What impact does Holder’s reference to the use of lethal force “outside the hot battlefield in Afghanistan” have on the applicable legal principles of due process laid out in Hamdi?

And given my contention that Judge Colleen McMahon, in her opinion denying ACLU and NYT’s request for the drone killing opinion, suggested there were multiple opinions, some of them pertaining solely to CIA, and potentially invoked the Gloves Come Off Memorandum of Notification, I’m especially interested in these two details that remained consistent over the two Wyden letters.

First, in both letters Wyden refers to legal opinions–in the plural. Here’s the first letter.

Senior intelligence officials have said publicly that they have the authority to knowingly use lethal force against Americans in the course of counterterrorism operations, and have indicated that there are secret legal opinions that explain the basis for this authority.

[snip]

The Director indicated that he would have liked to be responsive to my request, but he told me that he did not have the authority to provide formal written opinions of the Department of Justice’s Office of Legal Counsel to Congress.

 

So, as you will remember, I called you in April 2011 and asked you to ensure that the secret Justice Department opinions that apparently outline the official interpretation of this lethal authority were provided to Congress.

[snip]

For the executive branch to claim that intelligence agencies have the authority to knowingly kill American citizens (subject to publicly unspecified limitations) while at the same time refusing to provide Congress with any and all legal opinions that delineate the executive branch’s understanding of this authority represents an indefensible assertion of executive prerogative, and I expected better from the Obama Administration.

[snip]

So I request, again, that you provide me with any and all legal opinions regarding the authority of the President, or individual intelligence agencies, to kill Americans in the course of counterterrorism operations. [my emphasis]

And here’s the Brennan letter.

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 counterterrorism 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 that explain the executive branch’s understanding of this authority represents an alarming and indefensible assertion of executive prerogative. [my emphasis]

I’m especially intrigued by Wyden’s repetition of “any and all,” as if he suspects the Administration might hide the existence of one by revealing the existence of only one more respectable one–a suggestion I myself have made.

And given that Wyden seems certain there are more than one opinions authorizing the President to kill American citizens, I find this question–raised in both letters–very provocative.

Is the legal basis for the intelligence community’s lethal counterterrorism operations the 2001 Congressional Authorization for the Use of Military Force, or the President’s Commander-in-Chief authority?

I assume “President’s Commander-in-Chief authority”–which is the formulation Stephen Preston used in his speech on targeted killing, in contradistinction to the formulation Holder and everyone else used–is shorthand for “authorized under the National Security Act.” That is, I assume “President’s Commander-in-Chief authority” is a polite way to invoke covert operations.

Here you have a member of the Senate Intelligence Committee–the members of which according to the same law that permits the President to unilaterally authorize covert operations must be briefed on those covert operations–revealing complete ignorance as to whether the President’s execution of US citizens was done as a covert op or a legally military one.

Along with a bunch of other troubling things, these details from Wyden’s letters reveal something else. The Obama Administration is playing the same shell game with the authorization to kill American citizens that the Bush Administration played with the illegal wiretap program: waving the AUMF around as purported Congressional sanction all the while insisting that the President could–and appears to have, in this case, given the strong hints in McMahon’s opinion–unilaterally approve such actions without Congressional sanction.

The evidence is building that the Administration believes it can–and did, in the case of Anwar al-Awlaki–simply kill an American based solely on the President’s say-so, under the National Security Act.

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.

5 replies
  1. 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).

  2. thatvisionthing says:

    Unrelated (I think) and I’m just dropping this here for ew to see if it hasn’t been picked up here already. Per a story from today’s links at Naked Capitalism about a guy described as “an American grey hat hacker and self-described Internet troll” who went to a journalist with an iPad security breach he saw and ended up being prosecuted:

    http://techcrunch.com/2013/01/21/ipad-hack-statement-of-responsibility/

    I was convicted of two consecutive five-year felonies, and am now awaiting sentencing.

    I left the Aaron Swartz memorial tonight emotionally exhausted. Here is a guy who was beloved by many of my close friends, whose suffering and miseries I have shared in kind. I’ll never forget when the Secret Service started following me. My lover at the time and I treated it like a game, spending our days ditching surveillance in the best ways possible: speedboats, helicopters, club bouncers.

    Over time, this has become less and less of a game. It soon became clear that I could not be both an activist and a capitalist. I quit my six figure job at the time because the former was more important to me. Then one day, everything changed. FBI agents tried to frame me for terrorism in 2008. Twice. They ruined my career, my relationship, my life. Nobody believed that I could be a terrorist so now they try to libel me as an identity thief.

    I haven’t even read the rest, I just went ding ding ding and came here.

  3. greengiant says:

    I thought the drone war was being fought by contractors, from the drone bomb loadings to the virus infested remote pilot workstations. Whether they report to the CIA, the JSOC, or another cutout, the killings the contractors perform, just like the torture at Gitmo, Iraq or Kabul, is outside the US in theory if not in fact. If it’s not part of the CIA or “intelligence” then what do US laws have to do with executive orders have to do with it?

    Sure a whole lot of people are committing war crimes, but there are hundreds of secret executive orders, signing statements, etc. that will never see the light of day.

    What does anyone wanna bet that when they take out an American they use an overseas based remote pilot, so the only US crime is conspiracy?

    Michael Cimino had it all down in his movie Heaven’s Gate. Drummed the message out at least three times. The perps kept saying by the power invested in me by the President, ( or the fourth branch Vice President), I can within the law kill, rape, rob etc….

Comments are closed.