Dianne Feinstein’s Limited Hang-Out

Shorter Dianne Feinstein: “Well, the magical release of that white paper sure eliminates any need to release the Office of Legal Council memos that depict far worse legal theories, even to the grunt members of my committee who have are legally entitled to read it.”

I have been calling for the public release of the administration’s legal analysis on the use of lethal force—particularly against U.S. citizens—for more than a year. That analysis is now public and the American people can review and judge the legality of these operations. The administration has also described its legal analysis in speeches by the Attorney General and several senior officials during the past two years.

The white paper itself was provided to the Senate Intelligence and Judiciary Committees in June 2012 as a confidential document. The white paper (along with other documents and briefings) has allowed the Intelligence Committee to conduct appropriate and probing oversight into the use of lethal force. That oversight is ongoing, and the committee continues to seek the actual legal opinions by the Department of Justice that provide details not outlined in this particular white paper.

While the analysis in the white paper is not specific to any one individual, there has been significant question over the death of a U.S. citizen and operational leader of al-Qa’ida in the Arabian Peninsula named Anwar al-Aulaqi. As President Obama said at the time of his death, Aulaqi was the external operations leader for AQAP. He directed the failed attempt to blow up an airplane on Christmas Day in 2009 and was responsible for additional attempts to blow up U.S. cargo planes in 2010. He was actively plotting and recruiting others to kill Americans until the time of his death in Yemen.

The analysis is completely disingenuous for a number of reasons. As I have shown, DiFi utterly rolled John Cornyn when he tried to get the legal analysis released last year. She has done — and appears to be doing — far more to obstruct the release of the actual legal analysis than to facilitate it. And as at least 12 Senators strongly suggest, the white paper probably doesn’t reflect the memos (note that DiFi, like Wyden, uses the plural) — or at least one memo — that claims the authority to kill Americans solely on the President’s Article II power. At best, the intelligence (not evidence) to support the claims she advances about Anwar al-Awlaki is not a slamdunk; perhaps the  CIA is lying to her again, perhaps DiFi is lying herself to prevent Americans from assessing how badly she is fulfilling her role as a member of the Gang of Four who has presumably read the Administration’s legal justification and not objected to the President killing another American without due process.

Perhaps unsurprisingly, DiFi’s statement accords nicely with what Jay Carney said at the White House.

Like DiFi, the President’s flack pointed to all the disingenuous speeches that Judge Colleen McMahon called “a far cry from a legal research memorandum” as proof that the Administration had offered transparency.

As you know, in spite of these stories — or prior to these stories, this administration, through numerous senior administration officials, including Deputy National Security and Counterterrorism Advisor John Brennan, State Department Legal Advisor Harold Koh, and former Department of Defense General Counsel Jeh Johnson — have spoken publicly and at length about the U.S. commitment to conducting counterterrorism operations in accordance with all applicable domestic and international law, including the laws of war.

In March 2012, the Attorney General gave a speech at Northwestern University Law School in which he outlined the legal framework that would apply if it was necessary to take a strike against one of the “small number of U.S. citizens who have decided to commit violent acts against their own country from abroad.” The Attorney General made clear that in taking such a strike, the government must take into account all relevant constitutional considerations, but that under generations-old legal principles and Supreme Court decisions, U.S. citizenship alone does not make a leader of an enemy force immune from being targeted.

[snip]

I would point you to a speech by John Brennan where he talked about this issue. And again, I want to say from the outset, these are important questions and the President takes them very seriously, just as he takes his responsibility to defend the United States and its citizens very seriously.

Mr. Brennan gave a speech in which he talked about this issue of imminent threat. I think I just talked in general terms about the nature of the conflict we have with the terrorists who have set as their goal the killing of Americans and attacks on the United States. And this President and those who work for him are very mindful of the need to fulfill our responsibility to protect the United States and its citizens, and to do so in a way that is consistent with the Constitution and consistent with the laws that apply. And that is certainly something of great importance to the President. [my emphasis]

That last reference, by the way, appears to be to the John Brennan speech in which he also said the terrorists win if the Administration doesn’t release documents under FOIA and make OLC memos public.

Predictably, Carney was prepared with precisely the spin the memo supported, that the President is conducting assassinations of US persons with the authorization of the Congress they won’t even tell where they’re conducting those assassinations.

As you know, Congress authorized in an authorization of the use of military force all necessary military force to be used in our fight against al Qaeda. And certainly under that authority, the President acts in the United States’ interest to protect the United States and its citizens from al Qaeda.

It’s the AUMF, not a claim to unbound Article II power, Carney deceitfully suggests.

Perhaps most tellingly, the guy whose Administration tried to fire people for reading and linking to certain other leaked documents, is encouraging journalists to go read this one.

I would point you to the now-released — it was not meant for public release, but it’s not classified — the now-released white paper, which goes into some detail on that very issue.

It actually looks like this moment — this limited hang-out of a partial representation of the Administration’s troubling views — was planned long ago.

After all, the white paper itself dates to almost precisely the moment the Administration responded to the ACLU FOIAs of precisely this kind of information; I presume it was released just late enough so as to not in any conceivable fashion be subject to their FOIA. (I think Josh Gerstein made this observation last night, though I missed the significance of it at the time.)

And in spite of the fact that Carney repeated that the white paper is unclassified seven times in the briefing, for some reason over the last six months DOJ has not managed to respond to either Jason Leopold or Scott Shane’s FOIA for this document, in spite of the fact that Leopold, at least, was granted expedited processing (Leopold will have more on what happened with this FOIA in the near future, as I understand it).

Indeed, Carney even resisted committing to releasing this unclassified document that is already available!

Q But we request that you put it out, Jay.

MR. CARNEY: Put what out?

Q The white paper you’ve referred to dozens of times.

MR. CARNEY: Well, again, I’ll take the question. I’m sure the Justice Department can also take this question. It is out there online.

So here you have it: DiFi now claiming, falsely, that Americans can review the legality of these observations (based on her assertion of facts that are nowhere near as certain as she claims). And the uber-secretive White House, now claiming everyone should read a purportedly illicitly released document, even while it reaffirms its intention to withhold the actual analysis and potentially the unclassified document itselfd. All in time to confuse the issue and pretend the Administration has provided anywhere near the transparency on a key aspect of John Brennan’s work required to confirm him.

According to John Brennan’s own standards, the terrorists are winning.

Update: And one of DiFi’s aides says the leak of the white paper was “helpful.”

 “If anything, I would argue it’s a helpful thing, in that it removes some mystery and conspiracy theories,” a senior Democratic aide on the Senate Intelligence Committee, which is handling Brennan’s nomination, said of the policy paper.

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.

18 replies
  1. Peterr says:

    This white paper isn’t analysis. At best, it’s a statement of conclusions about what the analysis shows.

    The fact that DiFi says this — the committee continues to seek the actual legal opinions by the Department of Justice that provide details not outlined in this particular white paper — only demonstrates how alone she is in saying (a) this is sufficient, and (b) it is correct. Her own damn committee doesn’t agree with her.

    I agree that this looks long planned, and reinforced my suspicion that the leak came from the WH, rather than the Hill or the DOJ. And since it was unclassified, there wasn’t even a need for pixie dust.

    But why oh why can’t we have a better press corps? (h/t Brad DeLong) Where was the obvious followup question for Jay Carney yesterday: “If this white paper is unclassified, and so good for the public to see, why wasn’t this simply released to everyone last June, rather than simply given to the Intelligence Committee in secret?”

  2. Peterr says:

    Things may not be a smooth for Brennan’s nomination as they first looked.

    The top story being promoted right now on the Washington Post’s website has the headline: “Brennan nomination exposes criticism on targeted killings and secret Saudi base“. A taste from Greg Miller and Karen DeYoung:

    President Obama’s plan to install his counterterrorism adviser as director of the CIA has opened the administration to new scrutiny over the targeted-killing policies it has fought to keep hidden from the public, as well as the existence of a previously secret drone base in Saudi Arabia.

    The administration’s refusal to provide details about one of the most controversial aspects of its drone campaign — strikes on U.S. citizens abroad — has emerged as a potential source of opposition to CIA nominee John O. Brennan, who faces a Senate confirmation hearing scheduled for Thursday.

    Later it gets more specific:

    Nevertheless, the leak and signals from senior lawmakers that they may seek to delay, if not derail, Brennan’s confirmation made it clear that Obama’s decision to nominate him has drawn the White House into a fight it had sought to avoid.

    Sen. Ron Wyden (D-Ore.), a member of the intelligence committee, said Brennan’s level of influence and the timing of his nomination have given lawmakers leverage that they lacked in previous efforts to seek details from the White House.

    Brennan “is the architect of [the administration’s] counterterrorism policy,” Wyden said. “If the Congress doesn’t get answers to these questions now, it’s going to be extremely difficult, if not impossible, to get them in the future.”

    Indeed.

  3. Peterr says:

    @emptywheel: I don’t see any of the others putting out a “What DiFi said!” press release. I suspect that while they didn’t sign the letter, their sympathies lie more with the 11 than DiFi.

    DiFi’s statement of “the committee continues to seek the actual legal opinions” strikes me as her attempt to keep these others from joining the 11. If she actually had the support of these others, I think she would have had them join her in praising the release of the white paper.

  4. Mark Erickson says:

    @Peterr: That’s not how Senate Chairpersons operate. When she says “the committee”, she is using the royal “we”, even if here it is just a fig leaf. In general, it’s assumed Dems on the committee will follow her lead. If they buck her at all, it is news.

  5. phred says:

    I suspect DiFi is deeply complicit in the illegal behavior not just of this administration, but the previous one as well. She is not the person to look to for leadership in bringing the activities of the last decade to light. I’m not the least bit surprised that she is whistling a happy tune and hoping no one notices she has a reason to be afraid.

  6. klynn says:

    “The analysis is completely disingenuous for a number of reasons. As I have shown, DiFi utterly rolled John Cornyn when he tried to get the legal analysis released last year. She has done — and appears to be doing — far more to obstruct the release of the actual legal analysis than to facilitate it.”

    Which has these going through my head…

    Why? For what result? For whose benefit?

  7. What Constitution? says:

    Well, Klaidman has another article this morning, “assessing the impact” of the release of the white paper charade yesterday. Obviously mostly in the can even before the first story ran. These two articles make one wonder how many WH people vetted the text of these articles — yesterday, I was envisioning a whiteboard in a West Wing conference room with the heading “Required Adjectives” to be injected into the draft to make sure it was fawning enough (really — go through it and circle the adjectives, it’s nauseating); with this morning’s piece, it’s more likely that Brennan just wrote it himself. Either that or Klaidman didn’t realize Stephen Colbert was making a joke.

    It’s really great, however, to have the White House now step up and insist that the Federal Judge was plainly wrong to accept the DOJ arguments that Holder and Brennan’s public statements did not constitute “official” explanations placing the government’s justifications for drone assassinations in the realm of being “publicly” discussed. I trust there will be a request to reopen the court proceedings and get the actual documents released now, right? And I assume that no member of any Senate panel would actually accept an argument that they don’t need to see the real materials because this “summary” has been leaked and Holder and Brennan made speeches that the DOJ and White House openly and officially insist are meaningless. I mean, that would be incredibly silly and juvenile, right?

    I would nominate Klaidman for a seat in the pantheon of pathetic suck-up journalism — right next to Brian Ross, who breathlessly told us about the “bentonite in the anthrax” story fed to him by “government officials” but wouldn’t identify the officials who planted the story when it became apparent the story was false.

  8. Peterr says:

    @Mark Erickson: Given the letter signed by Wyden et al, I’d say she’s got Dems who are bucking her. The signers of that letter certainly aren’t satisfied that this white paper “has allowed the Intelligence Committee to conduct appropriate and probing oversight into the use of lethal force,” regardless of what DiFi says.

    Note, also, that DiFi begins with the personal “I”, not the royal “we”. She’s trying to set herself alongside those pushing for accountability, even as she tries to give the WH cover.

  9. GKJames says:

    So what, exactly, is Feinstein’s agenda? Is it about protecting the President? Is she simply on-board with the “counter-terrorism tools?”
    Is there evidence of her getting heat from constituents in CA? Is she oblivious to any insitutional obligation she has to ensure a healthy separation of powers? I don’t get it.

  10. DonS says:

    @GKJames: “So what, exactly, is Feinstein’s agenda? Is it about protecting the President? Is she simply on-board with the “counter-terrorism tools?””

    I suspect both. But, like the white paper itself, she is a mere distraction from what is hopefully an actual serious move to buck the WH sham, and ultimately to deny confirmation to Brennan. Few so richly deserve to be viewed as gatekeeper for the secrecy/surveillance state at the expense of open democracy. And being right in the middle of issues related to domestic abuse of authority and constitutional principle is not the even close to the CIA mandate.

  11. rosalind says:

    @GKJames: Lady Di does not give a f*&K about constituent views. As the longtime CA incumbent with a D next to her name, she’s automatically anointed every six years without having to get one hair on her carefully coiffed head out of place answering but one substantive question on her record.

    she dictates to we plebes what shall be good for us with a dismissive wave from her perch on high in the Senate chambers. no will of the people for she.

    and yes, she is my senator.

  12. janice says:

    the josh Gerstein artticle also stated “However, the Americans killed in those strikes are believed to have been collateral casualties and not the intended targets.” That is not a true statement. This administration has never said they were collateral. Obama campaign manager said his son was the target because he had the wrong father. I am so sick of the propaganda, but I would guess to be a white house journalist as josh is, he has to spew it.

  13. GKJames says:

    @DonS: You’re probably right, though what surprises me is her tone and approach, which are more in line with the traditional authoritarian Republican way of doing things and reflecting the crass we-owe-the-public-nothing idea I’m surprised probably because I’d not paid much attention to her before. The sense I get is that she’s just another egomaniac in the Senate, albeit one that walks, talks, sounds, and (even) looks like a GOPper. As for derailing Brennan, I wonder what its usefulness would be. The national security apparatus that captured the republic decades ago has a never-ending supply of like-minded people who would replace him. Keep in mind that Brennan would be able to do none of things he’s fond of doing were it not for the deep and broad consensus that governs US foreign policy. Granted, we wouldn’t be subject to journalists’ fellating him and extolling his virtues as a devout religious person suffering under the strain of the moral dilemmas that his public service compels him to confront.

  14. P J Evans says:

    @rosalind:
    I voted against her in last year’s primary, mostly because I think she should have retired already.
    ‘Non-responsive to constituents’ is about all she gives us. (Not that Boxer is much better.)

  15. DonS says:

    @GKJames: And you’re probably right as well. I surprise myself sometimes that I’m still interested in fighting against the ever encroaching ‘national security apparatus’. I find DiFi an enigma in that I have never sensed actual principle to her though she apparently doesn’t mind play acting. As for Brennan, actually I see it less about him than sending, another probably futile, message to Obama that his hypocrisy is noticed.

    One might ask all of the principals involved, in exec branch and Congress, what is so different now about denying the morally tainted and unacceptable Brennan of 2009 confirmation, and voting on him today. Seriously. Those questions should be asked by the 4th estate.

  16. Mark Erickson says:

    @Peterr: Only Wyden and Mark Udall are on the Intelligence committee. That is something, especially from Wyden. He deserves credit. However, most D signers are from signer Pat Leahy’s Judiciary Committee. The royal we is singular.

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