The Timing of the White Paper

I’m going to do a longer timeline on targeted killing authorizations, but first I wanted to address a more narrow issue: When did DOJ give the (as received) undated white paper released by NBC to Congress?

Michael Isikoff says Congress got the memo in June, 2012.

It was provided to members of the Senate Intelligence and Judiciary committees in June by administration officials on the condition that it be kept confidential and  not discussed publicly.

That actually contradicts the implication made by Pat Leahy in August of last year, who said it was shared as part of his initial request for the DOJ memos.

Leahy: The five minutes is expired, but I would note that each of the Senators has been provided with a white paper we received back as an initial part of the request I made of this administration.

On November 8, 2011, Pat Leahy complained about the Administration’s previous refusal to turn over the memos. That would put his initial request some time in 2011. He renewed that request on March 8 and June 12, 2012. So if the memo dates to June 2012, it would date to one of Leahy’s subsequent attempts to pry it out of the Administration.

But I think Isikoff’s reporting is likely correct here (and not just because Leahy has wavered between covering for the Administration and trying to get the memos from the start).

If DOJ gave Congress the memo in June 2012, then Ron Wyden would have gotten it between the time he wrote his  February 2012 letter demanding the memos and the time he wrote his January 2013 letter. As I laid out in this post, the questions Wyden posed in those two letters are remarkably similar.

These are the three questions that appear in the second letter but in the first. Both ask some version of these questions (these are from the first letter):

  • How much evidence does the President need to decide that a particular American is part of a terrorist group?’
  • Does the President have to provide individual Americans with an opportunity to surrender before using lethal force against them?’
  • Is the President’s authority to kill Americans based on authorization from Congress or his own authority as Commander-in-Chief?
  • Can the President order intelligence agencies to kill an American who is inside the United States?
  • What other limitations or boundaries apply to this authority?’

Here are the questions that show up only in the page-long list attached to his second letter.

  • 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?

The capture question, in particular, seems like a likely response to reading the white paper. After all, in spite of the fact that feasibility of capture is one of three main tests in the white paper, here’s all it says about feasibility.

Second, regarding the feasibility of capture, capture would not be feasible if it could not be physically effectuated during the relevant window of opportunity or if the relevant country were to decline to consent to a capture operation. Other factors such as undue risk to U.S. personnel conducting a potential capture operation also could be relevant. Feasibility would be a highly fact-specific and potentially time-sensitive inquiry.

Note, too, Wyden uses the same word “feasible” as the white paper uses, when you’d think the true standard would be higher, whether capture was possible at all, not the much weaker “feasible.”

And while Wyden refers to Holder’s speech (he seems to have done so here and elsewhere to avoid relying on the white paper), his questions about case law seem to come directly from weaknesses in the white paper itself (the inapt use of Matthews v. Eldridge, for example, is one of the problems Jameel Jaffer points out).

Now, all that is speculative support for the timeline laid out by Isikoff.

But if it’s correct, consider what it means. After asking for the targeted killing justification starting in February 2011 (actually he says he had already made inquiries by that point), followed by a written request posing very specific questions –such as whether they were relying on Article II or AUMF authority — in February 2012, all DOJ gave Wyden was this crappy white paper (which, I increasingly suspect, may be an amalgam of the memos they wrote, not just a summary of the June 2010 memo).

To give the Intelligence Committees this white paper — which was presumably written for that purpose specifically — without even answering one of the most basic questions in there (the Article II/AUMF question) should only have served to raise more questions.

Which is what it appears to have done.

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.

20 replies
  1. scribe says:

    It seems fairly obvious that the plant to Isikoff was directly linked to the filibuster threat against Hagel’s nomination.

    Whether it was someone in the Senate that leaked it to him, or the WH/DoJ, is another and different question.

    A Senate leaker would have reason to do it either to show how the WH/DoJ is both being recalcitrant and jerking them around, and to pull the opportunity for the WH/DoJ to trumpet its release and say “we gave it to you, now let Hagel go forward.”

    A WH/DoJ leaker would have reason to do it for PR purposes – it’s clearly a PR document and not a legal one.

    I guess we’ll know shortly, when the investigation of the leak and Isikoff’s email accounts starts (Senate leaker) or doesn’t (WH/DoJ leaker).

    Interesting, this comes after Harry Reid (and Leahy) helped kill filibuster reform. One is compelled to wonder which side Reid is on – continuing to do the WH bidding, or actually standing up for the Senate and oversight.

  2. PeasantParty says:

    WHOOP! Go, Marcy!

    Yes, it does lead to many more questions. One in particular comes to mind for me from reading certain finance publications. It makes me wonder if these new Private Prison industries are part of this capture clause. Now, mind you I know that many people think I over-reach at times. However, I am not that often wrong when all is said and done.

    The Private Prison industries are currently working with the IRS to come up with specific tax structures for them. These tax structures according to what I have read are to help them increase “INVESTOR” incentive. Why would any person wish to invest in a prison? Well, evidently they are expecting a big return. How do prisons make money?
    Normally, they don’t unless OUR GOVERNMENT IS FOOTING THE BILL.

    Okay, I keep going back to when Wyden had his big falling out discussion with Feinstein. She said everything she could think of without answering a single question regarding rendition of US citizens. She also cloaked everything possible about tracking via cell or other means along with drone surveillance in the US without reason or cause to believe a person is in fact a middle eastern terrorist or a home grown lone wolf–their terms not mine.

  3. PeasantParty says:

    @PeasantParty: I forgot to add the insider trading that our members of Congress partake in. I bet Eric Cantor is all over these prison investments and Drone productions taking place in Niger.

  4. PeasantParty says:

    @scribe: “A WH/DoJ leaker would have reason to do it for PR purposes – it’s clearly a PR document and not a legal one”

    Clearly, with anonymous authors and dateless.

  5. Peterr says:

    Hmmmm . . . Capture of the drug cartel folks in Mexico seems pretty infeasible, and from all the rhetoric, they pose a significant danger to our national security. Are we ready to launch the 2nd Drone Wing across the southern border, regardless of Mexican sovereignty concerns? Are we ready to take out the Americans who might be working with the Mexicans? Do we care who else might be around when we do so?

  6. Peterr says:

    @scribe: My money is on the White House.

    It’s their attempt to say “Here’s the logic” without saying “Here’s the memo” as they continue to want to preserve executive branch prerogatives. Wyden et al. didn’t buy that when they sent the white paper to them, so they’ve continued asking for the memo(s).

    With this leak, the WH is hoping that the media will buy what Wyden et al. did not, and that Congress will end up looking recalcitrant rather than the DOJ.

    Good luck with that. As flimsy and non-specific as this White Paper is, I think it will actually strengthen, not weaken, the demands from the Senators in the eyes of outsiders.

  7. Arbusto says:

    Hindsight sure shows why Dawn Johnson was left to twist in the wind in favor of a John Yoo clone at OLC.

    Looks as though the right to murder anyone can be delegated by the Administration. How long until Blackwater and its brethren move from maintaining unmanned aircraft to operating to ops?

  8. What Constitution? says:

    The guy who should be worried is Mitt Romney, isn’t it? He sat right next to Obama in the third debate and said “we can’t kill our way out of this [War on Terra]”. That’s perilously close to material support for terraism, it seems to me, and if there’s some high level government person who becomes satisfied that Mitt Romney presents a threat to US interests by such advocacy, he could well be toast. And Mitt Romney has a son, too, who I understand may be mulling his own political run — how’s that for “operational”? Toast. Unless, of course, there’s somebody of great moral rectitude in place to leaven these kinds of internal assessments out of sheer, quasi-mystical goodness. But where could we find such a man? Oh, that’s right — we already got one, it’s [drum roll] John Brennan, Mr. Klaidman just assured us of that.

    Congress just can’t roll over on this one. Can it?

  9. Snoopdido says:

    Regarding the original timing of the white paper’s delivery to Congress, Reuters has this (http://www.reuters.com/article/2013/02/05/us-usa-drones-idUSBRE9140X120130205):

    “Senator Dianne Feinstein, the Democrat who chairs the Senate Intelligence Committee, in a statement on Tuesday said she had been calling on the administration to release legal analyses related to the use of drones for more than a year.

    Feinstein said the document published by NBC had been provided to congressional committees last June on a confidential basis, and that her committee is seeking additional documents, which are believed to remain classified.”

  10. JTMinIA says:

    These “white paper” thingies are the best of both worlds for the Admin, right? On one hand, they can claim that they are being open by letting them out. On the other hand, they can still prosecute someone who leaks the real memos because these white papers aren’t the same. In other words, they’re the whole story when people ask for more, but they are not the whole story when someone actually posts more on Wikileaks. Right?

  11. emptywheel says:

    @scribe: We’ll know sooner than that. If DiFi permits questions about this memo, in open session (the white paper is not classified), then it’ll suggest she leaked it.

    If DiFi insists such questions have to happen in closed session, we can assume someone from Wyden’s camp leaked it.

  12. emptywheel says:

    @JTMinIA: Also, they can put the legal arguments COngress will like–that they’ve based this on AUMF–and hide the part where they say they’re really using inherent authority.

  13. What Constitution? says:

    @emptywheel: I’ll defer to EW with gratitude, but my bet would be it’s the Obama administration leaking this, and for no purpose other than to get Brennan through confirmation. Leak the same document previously provided, which now will be invoked to argue that there’s “enough information” available to allow Brennan to be “assessed” for confirmation purposes — but then continue to argue that releasing anything more would be “state secrets”, continue to argue that the sum total of the “releases” continue not to constitute enough of an articulated, reasoned and public analysis to constitute a basis for a judicial ruling that there has been a “waiver”, and try to slide Brennan into a four year stint running this sham of a global execution squad while keeping it malevolently unknowable and unreviewable. Certainly we will be hearing the “drones work” crowd crowing that they’ve now seen “evidence” that the program has been “thought through”, regardless of the absence of persuasive legal reasoning in the white paper. If that crowd prevails at the confirmation hearing, you won’t hear about justifying drones again and you will see expanded — indeed, even domestic — drone assassinations “as a matter of course.”

    Neither Wyden nor Feinstein should be interested in, or bullied into, accepting an unattributed “leak” of a bullshit whitewash paper in lieu of a competent and full disclosure of what is going on and why.

  14. scribe says:

    @What Constitution?: Has nothing to do with Brennan – he’s going to be confirmed easily. It does have to do with Hagel – his nomination is not nearly as assured as is Brennan’s and there were 11 senators on that letter threatening a filibuster, among them Leahy (i.e., the #2 most senior Dem senator behind only Reid). That’s some serious opposition for a president of the same party to come up against. And that threat was, if you look again, bipartisan. Saint Collins of Maine, paradigm of moderation, was on that letter.

    This is a serious knock-down drag-out going on, though cloaked in the most genteel of manners.

  15. Roman Berry says:

    … undue risk to U.S. personnel conducting a potential capture operation…

    Undue risk is what the US Army Special Forces and the US Navy SEALS and the US Air Force’s Combat Controllers sign up for. Undue risk is what we expose US personnel to every time we start….er…enter a war out of choice rather than necessity. If “undue risk” is the standard for killing suspects rather than apprehending them, how long is it before that standard starts getting used domestically? (“Yeah, arresting them and having a trial would have been nice, but there was undue risk…“)

  16. What Constitution? says:

    @scribe: Hope you’re wrong. I consider Hagel both a lock and easily replaceable, but that the Brennan nomination/diversion of attention from the drone fiasco is far more important to Obama and the strategy here is that the more they can create a shiny object to detract from Brennan the happier they are. Of course, I’m certainly willing to admit I’m outside the Beltway and couldn’t possibly presume to understand what’s going on.

  17. pdaly says:

    So the Executive has its OLC to expound on and expand the scope of its proscribed, enumerated powers, but devoid of any public discussion, and lately, devoid of any reasonable reading of the Constitution. The Executive thereby cynically states it is upholding the Constitution.

    Then the Judiciary hangs back mute until someone gains standing to challenge in a court of law the Executive’s power grab. Lately a near impossible feat to reach the courts, given the deference the judiciary gives to the Exceutive state secrets claims.

    The Legislature is mostly absent in checking the power of the Executive.

    So what about the People?
    What are some of the unenumerated rights that a free people possess– the unenumerated rights referred to by the 9th Amendment to the Bill of Rights?
    Who shall list them? and how can those lists of unenumerated rights then be placed in opposition to the OLC’s attempts at Executive power expansion?

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