The Administration’s Drafty Secrecy Claims

As I’ve noted a couple of times, both Jason Leopold and Scott Shane FOIAed the white paper someone strategically leaked to Mike Isikoff this week.

Leopold requested the white paper in August, shortly after Pat Leahy discussed it in a hearing. Just weeks later, DOJ granted him expedited processing. But then his request dropped off the face of the earth — I guess the Administration treated this “expedited” request with the same temporal measure as the Administration treats “imminence.”

Scott Shane requested the white paper in December. In January DOJ rejected his request, citing deliberative process (basically claiming the white paper was a draft).

The disparate treatment of the two requests — and the leaking of it to Isikoff after two different people had been denied it already — is troubling enough.

But I think there’s another problem with the claim they made to Shane, that it was a draft.

The letter that Ron Wyden and 10 other Senators sent to President Obama the other day suggests that the reason they’re being given for not receiving the OLC memos is because they are drafts.

Specifically, we ask that you direct the Justice Department to provide Congress, specifically the Judiciary and Intelligence Committees, with any and all legal opinions that lay out the executive branch’s official understanding of the President’s authority to deliberately kill American citizens. We are not asking for any pre-decisional legal advice and do not believe that providing this information would violate and Constitutional privilege. However, if there is any concern that providing this information to Congress might implicate some sort of privilege, we would encourage you to simply waive whatever privilege might apply, if you would like to make it clear that you are not setting a precedent that applies to other categories of documents.

At one level, this language suggests a consistency from the Administration. Every single document they have on drone strikes, it would seem, is a draft.

Except that the Senators’ helpful suggestion — that if these so-called drafts really are drafts, then Obama could just waive the privilege this time around without implicating other drafts it wants to keep secret — suggests (I’m going to see if I can confirm it) that what the Committees have (remember, 9 of the 11 Senators are on either the Intelligence or Judiciary Committee, and so have officially received the white paper) was not considered a draft when it was given to them. If they already received a draft, after all, it would not be novel for them to get more drafts.

It’s just that when a reporter who has an active FOIA on precisely this kind of document asks for it, it suddenly reverts to draft status, until such time as someone finds it convenient for Mike Isikoff to have it.

Ah well, John Brennan has made it clear the terrorists will win if the Administration doesn’t presumptively turn over documents under FOIA. So I’m sure the Administration will sort this all out in “expedited” fashion.

Update: Thanks to Charlie Savage for linking to the letter off of which Scott Shane FOIAed the document. It reads:

On June 22, 2012, the Department provided us with a copy of a Department of Justice White Paper titled “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is A Senior Operational Leader of Al-Qa’ida or An Associated Force.” That document, which is marked as “Draft November 8, 2011,” sets forth the legal framework for considering the circumstances in which a particular, identifiable United States Citizen may be targeted. In transmitting that document to us, the Department acknowledged that this white paper is not classified, but took the position that it is not intended for public dissemination.

So DOJ did represent to HJC, at least, that it was a draft.

Two more interesting details, though. The memo was finalized 5 days after the date — November 3, 2011 — when DOJ’s Office of Information Policy arbitrarily enacted as the end date for their FOIA.

And the memo was handed to HJC, at least, the day after DOJ responded to the NYT and ACLU FOIA.

Man, according to John Brennan’s own rules, the terrorists are winning.

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.

9 replies
  1. P J Evans says:

    They’re going to ‘expedite’ the responses to about 2017, or as close as they can get.

    Yes, I am getting cynical in my old age.

  2. phred says:

    Hmmm… so if the legal cover exists only in draft form, does that mean that the drone strikes themselves are drafts and that all the dead people that resulted get to come back for a revised death whenever the administration gets the legal framework finalized? That’s convenient.

    If the legal framework isn’t final, then how can it possibly be legal to launch drone strikes in the interim?

  3. What Constitution? says:

    Of course they’re “drafts”, that’s the way to preserve “plausible deniability” when floating the contents to see how much needs to be rewritten in the hope of eventually coming up with something credible.

  4. Snoopdido says:

    John Brennan’s answers to SSCI questions in regard to his nomination as CIA Director:

    http://www.intelligence.senate.gov/hearings.cfm?hearingid=9318ed50aab093c084477e4ac0e75c65&witnessId=9318ed50aab093c084477e4ac0e75c65-0-1

    In response to the first questionaire, on page 13 of the response document, Brennan says that he has been interviewed by the US Attorney office of Maryland regarding leaks to reporters about cyber-attacks against Iran, and by the US Attorney office of the District of Columbia regarding leaks to reporters about a foiled bomb plot by AQAP. He says he has been advised that he is only a witness in both investigations.

    His response to Question 48 on page 14 made me laugh.

  5. Snoopdido says:

    In John Brennan’s “Responses to Additional Prehearing Questions” on pages 24-25, he is asked about some of the same Targeted Killing/Use of Force areas that are topics in the leaked whitepaper that NBC’s Michael Isikoff obtained

    Included is the subject of “imminence”, and Brennan’s answer parrots DOJ Attorney General Holder’s strange definition of “imminence” that defines it as having something to do with the US’s “window of opportunity to act”, rather than a terrorist’s plan to act.

  6. JTMinIA says:

    Some outlets are now reporting that Obama has told the DOJ to release some more stuff to Congress. Whether it will be one or both memos is not clear. HuffPo, for example, doesn’t even seem to be aware that there are two memos.

  7. P J Evans says:

    @JTMinIA:
    Apparently someone told AP that they’re going to do that. The version at SFGate says that they’re going to let them see stuff, implying that it’s the memos, but I’m not betting on it.

  8. Stu Wilde says:

    the one thing I have not heard about the DOJ White Paper release is this: why did Isikoff and NBC get the scoop???

    *If someone looks @ Isikoff’s work, I wonder if they will see part of the quid pro quo.

    **Who says there are no perks for being such a good lap dog for the Administration, eh NBC?

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