White Paper Cites John Brennan Speech Defending Import of Transparency, FOIA, Declassified OLC Memos

I’ve been out addressing an imminent toner cartridge emergency and taping Al Jazeera English (it’ll be on tonight at 7:30). So I haven’t yet done my timeline of the varying authorizations to kill Anwar al-Awlaki.

But I wanted to look at one citation in the white paper which I find particularly amusing.

In addition, the United States retains its authority to use force against al-Qa’ida and associated forces outside the area of active hostilities when it targets a senior operational leader of the enemy forces who is actively engaged in planning operations to kill Americans. The United States is currently in a non-international armed conflict with al-Qa’ida and its associated forces. See Hamdan v. Rumsfeld, 548 US 557 628-31 (2006) (holding that a conflict between a nation and a transnational non-state actor, occurring outside the nation’s territory, is an armed conflict “not of an international character” (quoting Common Article 3 of the Geneva Conventions) because it is not a “clash between nations”). Any US operation would be part of this non-international armed conflict, even if it were to take place away from the zone of active hostilities. See John O. Brennan, Assistant to the President for Homeland Security and Counterterrorism, Remarks at the Program on Law and Security, Harvard Law School: Strengthening Our Security by Adhering to Our Values and Laws (Sept . 16, 2011) (“The United States does not view our authority to use military force against al-Qa’ida as being restricted solely to ‘hot’ battlefields like Afghanistan.”

There are a number of things that noted legal scholar John Brennan said in this speech DOJ claims authorizes John Brennan (who presumably is the “informed, high-level official” described as judge and jury in this white paper) to kill Americans.

There’s this:

Now, I am not a lawyer, despite Dan’s best efforts.  

There’s his argument that only by adhering to the rule of law will we beat the terrorists, because it provides an alternative to the twisted world view of Al Qaeda.

Fourth—and the principle that guides all our actions, foreign and domestic—we will uphold the core values that define us as Americans, and that includes adhering to the rule of law. And when I say “all our actions,” that includes covert actions, which we undertake under the authorities provided to us by Congress. President Obama has directed that all our actions—even when conducted out of public view—remain consistent with our laws and values.

For when we uphold the rule of law, governments around the globe are more likely to provide us with intelligence we need to disrupt ongoing plots, they’re more likely to join us in taking swift and decisive action against terrorists, and they’re more likely to turn over suspected terrorists who are plotting to attack us, along with the evidence needed to prosecute them.

When we uphold the rule of law, our counterterrorism tools are more likely to withstand the scrutiny of our courts, our allies, and the American people. And when we uphold the rule of law it provides a powerful alternative to the twisted worldview offered by al-Qa’ida. Where terrorists offer injustice, disorder and destruction, the United States and its allies stand for freedom, fairness, equality, hope, and opportunity.

In short, we must not cut corners by setting aside our values and flouting our laws, treating them like luxuries we cannot afford. Indeed, President Obama has made it clear—we must reject the false choice between our values and our security.

There’s his suggestion that rule of law depends on transparency.

Our democratic values also include—and our national security demands—open and transparent government. Some information obviously needs to be protected. And since his first days in office, President Obama has worked to strike the proper balance between the security the American people deserve and the openness our democratic society expects.

In one of his first acts, the President issued a new Executive Order on classified information that, among other things, reestablished the principle that all classified information will ultimately be declassified. The President also issued a Freedom of Information Act Directive mandating that agencies adopt a presumption of disclosure when processing requests for information.

The President signed into law the first intelligence authorization act in over five years to ensure better oversight of intelligence activities. Among other things, the legislation revised the process for reporting sensitive intelligence activities to Congress and created an Inspector General for the Intelligence Community.

For the first time, President Obama released the combined budget of the intelligence community, and reconstituted the Intelligence Oversight Board, an important check on the government’s intelligence activities. The President declassified and released legal memos that authorized the use, in early times, of enhanced interrogation techniques. Understanding that the reasons to keep those memos secret had evaporated, the President felt it was important for the American people to understand how those methods came to be authorized and used. [my emphasis]

So to beat the terrorists, we have to uphold rule of law by briefing Congress, releasing classified information, including the legal memos that authorize our most secret counterterrorism, and presume that unclassified information — like this white paper!!! — should be presumptively released via FOIA.

This memo, of course, breaks every single one of those principles. It is designed to serve as substitute for properly briefing Congress. It is not even classified, yet has been withheld even from the ACLU FOIA that should have returned it. And when Jason Leopold and Scott Shane FOIAed this white paper specifically last August, by name, DOJ didn’t turn it over (in spite of granting Leopold, at least, expedited processing).

Nevertheless, the fact that Brennan’s speech suggests the very treatment of this white paper means we will lose the war on terror didn’t prevent them from using it to support the argument that any armed conflict — any! it doesn’t even say an armed conflict with al Qaeda! — would still be part of the war on terror.

While the AUMF unwisely allowed the President — and therefore this particular “informed, high-level official” — to define who are and who are not part of al Qaeda (and so therefore relying on John Brennan to make this case isn’t as dodgy as it should be), the white paper still goes beyond what appeared in the Brennan speech.

But my favorite part of it is the date. September 16, 2011. Just two weeks before the Administration killed Awlaki with a drone.

The following citation comes from this letter from June 15, 2010, which doesn’t mention Yemen, though does say we’re engaging al Qaeda pretty much everywhere but Northcom

Since October 7, 2001, the United States has conducted combat operations in Afghanistan against al Qa’ida terrorists and their Taliban supporters. It has also deployed combat equipped forces to a number of locations in the U.S. Central, Pacific, European, Southern, and Africa Command areas of operation in support of those and other overseas operations.

I guess Awlaki should have followed the White House website more closely, because that’s where the “informed, high-level official” who serve as judge and jury publish their two week notice they’re going to kill us.

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.

16 replies
  1. P J Evans says:

    What I find scary is that there are a lot of people who think it’s perfectly fine to kill people with drones if we merely think they might be terrorists, even when they’re US citizens.

  2. GKJames says:

    This gem — “our counterterrorism tools are more likely to withstand the scrutiny of our courts” — confirms yet again how removed from reality the current fashion of policy-by-speechifying really is. Presumably, no one in his audience had the balls to tell Brennan that his is an assertion easily made, omitting as he does all reference to the obvious fact that he and the administration he serves, with the support of Congress and the courts, spend their entire effort (when not killing people), making sure that the courts will never ever get to scrutinize the gang’s “counterterrorism tools.” For extra credit, someone also might have asked him what it’s like to mock the law and the people it serves and to know that he’s guaranteed never to suffer a single downside consequence to the execrable and counter-productive policies he espouses.

  3. Snoopdido says:

    Regarding where SSCI Chair Senator Diane Feinstein stands on the release of this whitepaper, her official statement today: http://www.feinstein.senate.gov/public/index.cfm/2013/2/feinstein-statement-on-justice-department-lawfulness-of-lethal-operation-memo

    There is more than a whiff of the “dog that didn’t bark”.

    Senator Feinstein does not decry the deliberate leak of this whitepaper. Nor does she call for any leak investigation. Instead she seems to praise and spin its release as keeping Americans informed.

  4. orionATL says:

    i just read the first three pages of the pdf.

    this document is not a balanced evaluation of the question of the legality of non-judiciary authorized execution of an american citizen.

    this document is a post-hoc justification for extra-judiciary execution of an american citizen.

    the document would have been premised on: “we need to anticipate the kinds.of legal arguments that our domestic political opponents from either party will make, tovether with international “war crimes” agitation.

    i view this white paper as just another in our military and paramilitary forces’ information operations to control public opinion so that it does not hinder or prevent whatever military operations military leaders believe necessary. as such the white paper does not merely defend awlaki’s execution, it sets a.pre ede t for a set of legal arguments which can and will be used over and over again in similar military operations whether they involve exeution or some similarly severe penalty.

    i would guess that the heart of this argument is going to lie with the concept invented by the bush bad-boy lawyers of “enemy combatant”.

    being LABELED an “enemy combatant” trumps BEING a legal citizen of the u.s., even though the labeling is done by the same as are the executioners and is not inherent in person, as is legal citizenship.

    there is no independent (outside the presidential palace) review, e.g., judicial input into or review of the presidental labeling process.

    this is fundamentally unconsitutional.

    i only skimmed the first three pages. i don’t know if aulaki’s son s execution is mentioned or that of samir khan, riding with awlaki.

    the 16 year-old boy’s death should be the one that is so impossible to credibly explain that it takes this whole house of legal cards down.

    what obama has allowed to happen under his lack-a-daisical, lessez-faire leadership of our paramilitary forces is as close to a legitimate impeachable offense as any american president other than george bush (lying us into an unnecessary war) has ever committed.

    funny we would have back-to-back legitimately impeachable offenses from the last two of our presidents.

    no wonder we have this highly legalistic whitewash paper.

  5. PeasantParty says:

    IANAL either, but it sure looks like Brennan is another Great Pretender.

    EW, many are writing on this topic. You, as usual get into the weeds and bring much more to life and light. Thank you for your dedication. I so wish we did not have propaganda news each morning and night.

  6. montag says:

    Y’know, I might be marginally more inclined to accept the administration’s definition of armed conflict under Common Article 3 were it not for the fact that this administration, as with the previous one, has assiduously avoided any and all Article III interpretations of or challenges to their legal formulations through protestations of state secrets.

    Tied intimately to that is the administration’s belief in the prophylaxis of preemptive assassination. To my mind, that’s just as specious under international law as preemptive war.

  7. PeasantParty says:

    @orionATL: It is unconstitutional. However, we the people are the only ones that still adhere to the confines of a charter to society and government.

    Supreme Court Justice Scalia doesn’t even believe the Constitution is valid and therefore decides on his personal bias.

  8. orionATL says:


    the labelling of american citizen jose padilla as an enemy combatant allowed him to be held off-shore in a u.s. naval ship for three years.

    during this time he was subject to severe sensory and social deprivation. there is speculation that he was permanently mentally damaged by this imprisonment.

    if president bush can imprison and mentally torture an american citizen without political or legal consequence, why would his successor not feel free to execute an american citizen?

    both bush and obama, thru those they deputized as their agents, arrogated to the presidency the power not only to arrest, but also to judge and to imprison or execute as well.

  9. orionATL says:


    one very big puzzle here for me:

    president obama presents the public image of calm, steady, cautious, conservative in his decisions.

    so how did he allow himself to get caught up in a potentially politically catastrophic decision like assassinating awlaki and, two weeks later, his 16 yr old son?

    there was NO security/military urgency about killing awlaki; doing so was simply intended to send a message about limits on speech by aq partisans.

    i regard this as another expedient but ultimately harmful (for the nation) presidential act based on domestic political pressure and domestic political gain.

  10. CTuttle says:

    Tis a shame that we’re no longer signatories to the ICC, eh…?

    The United Nations is to set up a dedicated investigations unit in Geneva early next year to examine the legality of drone attacks in cases where civilians are killed in so-called “targeted” counter-terrorism operations.

    Lady Justice sure takes her sweet-ass time, eh…? ;-)

  11. orionATL says:


    thanks. i haven’t seen that argument before, but i would love to read/see a paper on a similar argument defeating the evasive “state’s secrets” argument which doj routinely employs and which federal judges just as routinely fail to question.

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