This Isn’t the Memo You’re Looking For

As important as it is to see the white paper DOJ gave Congress to explain its purported legal rationale, it is just as important to make clear what this white paper is not.

First, is it not the actual legal memos used to authorize the killing of Anwar al-Awlaki and who knows who else. As Michael Isikoff notes in his story, the Senators whose job it is to oversee the Executive Branch — even the ones on the Senate Intelligence Committee that are supposed to be read into covert operations — are still demanding the memos, for at least the 12th time. The release of this white paper must not serve to take pressure off of the White House to release the actual memos.

Which brings me to an equally important point: memos. Plural.

NBC suggests and the close tracking appears to support that this white paper is a version of the OLC memo written in June 2010 and reported on — the last time there was clamor to release the targeting killing authorization publicly — by Charlie Savage.

But as Colleen McMahon strongly hinted last month, that doesn’t mean that this white paper — and the OLC memo which it summarizes — describe the legal basis actually used to kill Anwar al-Awlaki.

Indeed, Ron Wyden has been referring to memos, in the plural, for a full year (even before, if Isikoff’s report is correct, this white paper was first provided to the Committees in June 2012).

And there is abundant reason to believe that the members of the Senate committees who got this white paper aren’t convinced it describes the rationale the Administration actually used. Just minutes after Pat Leahy reminded the Senate Judiciary Committee they got the white paper at a hearing last August, John Cornyn said this,

Cornyn: As Senator Durbin and others have said that they agree that this is a legitimate question that needs to be answered. But we’re not mere supplicants of the Executive Branch. We are a coequal branch of government with the Constitutional responsibility to conduct oversight and to legislate where we deem appropriate on behalf of our constituents. So it is insufficient to say, “pretty please, Mr. President. pretty please, Mr. Attorney General, will you please tell us the legal authority by which you claim the authority to kill American citizens abroad?” It may be that I would agree with their legal argument, but I simply don’t know what it is, and it hasn’t been provided. [my emphasis]

More importantly, one question that Wyden keeps asking would be nonsensical if he believed the content of this white paper reflected the actual authorization used to kill Awlaki. [Update: I take this part back — go read this post for why Wyden keeps asking this question.]

This white paper, after all, speaks repeatedly of the AUMF and invoked Congressional approval (this is just a limited sampling).

The United States is in an armed conflict with al-Qa’ida and its associated forces and Congress has authorized the President to use all necessary and appropriate force against those entities. See Authorization for Use of Military Force.


Accordingly, the Department does not believe that U.S. citizenship would immunize a senior operational leader of al-Qa’ida or its associated from a use of force abroad authorized by the AUMF or in national self-defense.


None of the three branches of the U.S. Government has identified a strict geographical limit on the permissible scope of the AUMF’s authorization.


In such circumstances, targeting a U.S. citizen of the kind described in this paper would be authorized under the AUMF and the inherent right to national self-defense.


And judicial enforcement of such orders would require the Court to supervise inherently predictive judgments by the President and his national security advisors as to when and how to use force against a member of an enemy force against which Congress has authorized the use of force. [my emphasis]

But Ron Wyden, who has gotten this white paper, still keeps asking this question.

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?

Now, to be fair, those bolded sections do hint at something else, the reliance on inherent authority. And in an early passage laying out the authorities, the white paper lists that Article II authority first, well before it lists the AUMF.

The President has authority to respond to the imminent threat posed by al-Qa’ida and its associated forces, arising from his constitutional responsibility to protect the country, the inherent right of the United States to national self defense under international law, Congress’s authorization of the use of all necessary and appropriate force against the enemy, and the existence of an armed conflict with al-Qa’ida under international law. [my emphasis]

But everything about this white paper uses the AUMF — that Congressional authorization — as the key authorization.

This white paper admits the President claims he could kill an American solely on his inherent Article II powers. But that’s not the argument laid out in the white paper.

Now, there are other reasons to believe this is not the authority relied on — at least not for all the attempts to kill Awlaki. After all, when they first tried to kill him on December 24, 2009, the Intelligence Community didn’t believe him to be operational; at that point, according to the knowledge the government had at that time, Awlaki would not meet the three criteria laid out in this memo.

Never fear though! This white paper makes clear that the government may not even need to fulfill those requirements before it offs a US citizen.

As stated earlier, this paper does not attempt to determine the minimum requirements necessary to render such an operation against a U.S. citizen lawful in other circumstances.

Even as shoddy as this argument is — as forced its interpretation of the word “imminent” and the court precedents — this white paper holds out the possibility that there may be other circumstances, other lesser requirements fulfilled, that would still allow the President to kill an American citizen.

And that, I fear, is what is in the real memos.

Update: Note, too, that 9 of the 11 Senators who demanded the memo have seen this white paper (all but Tom Udall and Jeff Merkley are on either the Senate Intelligence of Judiciary Committee). Yet they’re still demanding to know the “executive branch’s official understanding of the President’s authority to deliberately kill American citizens.”

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.

17 replies
  1. P J Evans says:

    It’s important for us to know what the reasoning is that allows them to even think that they have the authority to order citizens killed without any legal process where said citizens can actually defend themselves. It’s guaranteed by the constitution they’ve sworn to uphold, and why they haven’t been struck by lightning or something for their oathbreaking and lies I don’t know.

  2. Bitter Angry Drunk says:

    @Jeff Kaye: And to think there are legions of delusional libs out on the Internet who get all offended by comparisons of Obama to Bush…

  3. GKJames says:

    The “imminent threat” canard has to be seen in conjunction with the near-limitless “threat to United States interests” standard. An armed insurrection by Yemenis against the Yemeni government qualifies for drone strikes under Article II because Washington, having decided that it’s in our interest to keep that regime in place, deems the insurrection the equivalent of an attack on the US. (Maybe Yemen joined NATO and didn’t tell us….) Bundled with “al-Qa’ida and its associated forces,” the stream of logic’s impeccable … to people who don’t get out much. Small wonder that the inside of an Article III courtroom is the last place Obama and his merry gang want to see the issue addressed. The greater wonder is the failure of the Article I folks to press the case more emphatically.

  4. tofubo says:

    glad i voted fer obama as senator in illinois, but after his fisa vote, never voted for him again

    alas, one day we may have a progressive dem in the WH, until then….

  5. Peterr says:

    I really wish NBC had gotten and published the cover page of this white paper — the one with the authorship and the date.

    Perhaps this is why the source never provided it.

  6. Ken Hardy says:

    @ Bitter Angry Drunk

    Please. The other day I found myself dreamily pining for the relative restraint and transperancy of ole Bushie, bless his hat-size IQ heart–and I’m so “lib” my skivvies are pink..

  7. Snarki, child of Loki says:

    So, it’s time to mail out sorta-official “al-Qa’ida affiliate membership cards” to everyone on our list of folks that need a drone-strike?

    Probably more official than al-Qa’ida uses, in fact.

  8. Phoenix Woman says:

    @rosalind: The Saudis must be laughing their heads off on a permanent basis over how they’ve got both the US and Israel to do their dirty work. Right up there with how Ahmad Chalabi used PNAC to convince the leaders of two of Iran’s three major enemies that invading and destroying the third was a good idea.

  9. earlofhuntingdon says:

    Hunting the Snark? Or is it Schroedinger’s cat? Whatever the analogy, it seems clear that Mr. Obama has put his best “constitutional lawyers” to work to devise a strategy-of-the-day. Their rationale for killing at will people of any nationality will depend on who needs to see it, or use it, or critique it. It will change with the audience, then disappear like a taped assignment for the IMF.

    Mr. Obama implies he has a strategy and a solid foundation for it. In reality, it’s whatever rationale he needs for the moment, based on the killing of the day that becomes exposes. It’s not a rationale. It’s Obama channeling Nixon: he can do whatever he wants, and because he does it or orders it done, it’s not illegal, but it’s too sensitive for any of his fellow citizens to know about. I suppose Kissinger would be envious, that is, if he didn’t help devise such a travesty.

  10. John Beam says:

    @Snarki, child of Loki:

    This might be the appropriate space to recall that the only person in the Florida “terrorist” plot by the clearly fruitcake rastaman rads who knew (and administered) the pledge of allegiance to Al Qaeda was the FBI agent faciliating the plot.

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