The CIA Glomared Their Own Public Speech

I’ve been reading the Colleen McMahon ruling on the ACLU Awlaki FOIA again in light of the release of the white paper. And I realized that the CIA must be treating the public targeted killing speech of CIA General Counsel Stephen Preston with a “No Number, No List” declaration — a modified Glomar invocation that admits the CIA has documents responsive to FOIA, but refuses to say how many or what they entail. That’s interesting, because it demonstrates that the CIA is refusing to admit that the analysis Preston laid out pertaining to lethal covert operations has a tie to Anwar al-Awlaki’s death.

Admittedly, this all should have been clear to me when I first went looking for mentions of Preston’s speech last June. After all, when CIA Clandestine Services Director John Bennett explained why CIA was shifting from a Glomar (not admitting they had any documents) to a No Number No List (admitting they had some, but refusing to list them) declaration last June, he specifically admitted the CIA had Eric Holder and John Brennan’s targeted killing speeches in their files, but did not admit they had the one made by CIA’s own General Counsel.

Several developments have occurred subsequent to the issuance of Plaintiffs’ FOIA requests and the filing of these lawsuits that have caused the CIA to reconsider its response, as described further below. Those events include several speeches by senior U.S. officials that address significant legal and policy issues pertaining to U.S. counterterrorism operations and the potential use of lethal force by the U.S. government against senior operational leaders of al-Qa’ida or associated forces who have U.S. citizenship. In light of these recent speeches and the official disclosures contained therein, the CIA decided to conduct a reasonable search for records responsive to the ACLU’s request. Based on that search, it has determined that it can now publicly acknowledge that it possesses records responsive to the ACLU’s FOIA request. As described below, however, the CIA cannot provide the number, nature, or a categorization of these responsive records without disclosing information that continues to be protected from disclosure by FOIA exemptions (b) (1) and (b) (3).

[snip]

These records include, for example, the speech that the Attorney General gave at Northwestern University Law School on 5 March 2012 in which he discussed a wide variety of issues pertaining to U.S. counterterrorism operations, including legal issues pertaining to the potential use of lethal force against senior operational leaders of al-Qa’ida or associated forces who have U.S. citizenship. The Attorney General explained that under certain circumstances, the use of lethal force against such persons in a foreign country would be lawful when, among other things, “the U.S. government . . determined, after a thorough and careful review, that the individual pose[d] an imminent threat of violent attack against the United States.” These records also include the speech that the Assistant to the President for Homeland Security and Counterterrorism gave on 30 April 2012, in which he addressed similar legal and policy issues related to the U.S. Government’s counterterrorism operations. Because the CIA is a critical component of the national security apparatus of the United States and because these speeches covered a wide variety of issues relating to U.S. counterterrorism efforts, it does not harm national security to reveal that copies of the speeches exist in the CIA’s files. And because these speeches refer to both the “legal basis” for the potential use of lethal force against U.S. citizens and a review “process” related thereto, the speeches are responsive to these two categories. [my emphasis]

By comparison, DOD (which also invoked No Number No List) did admit that Jeh Johnson’s speech was responsive to ACLU’s FOIA in their declaration.

Now, of all the reasons Bennett lists why CIA must use a No Number No List invocation –whether CIA was involved in Awlaki’s death and whether they can use drones — only one really seems to describe why could not acknowledge that Preston’s speech is responsive to ACLU’s FOIA. CIA doesn’t want you to know that CIA can kill US citizens.

Although it has been acknowledged in the Attorney General’s speech and elsewhere that, as a legal matter, a terrorist’s status as a citizen does not make him or her immune from being targeted by the U.S. military, there has been no acknowledgement with respect to whether or not the CIA (with its unique and distinct roles, capabilities, and authorities as compared to the U.S. military) has been granted similar authority to be directly involved in or carry out such operations.

[snip]

In this case, if it were revealed that responsive OLC opinions pertaining to CIA operations existed, it would tend to reveal that the CIA had the authority to directly participate in targeted lethal operations against terrorists generally, and that this authority may extend more specifically to terrorists who are U.S. citizens.

But I think it’s more than that. After all, Preston used a hypothetical that definitely admitted the possibility CIA would be asked to kill on covert operations, if not Americans specifically.

Suppose that the CIA is directed to engage in activities to influence conditions abroad, in which the hand of the U.S. Government is to remain hidden, – in other words covert action – and suppose that those activities may include the use of force, including lethal force.

I keep coming back to what makes Preston’s speech different from all the others given at the time (which were invoked in FOIA responses, even while they also didn’t mention Awlaki by name).

Preston makes it clear that this lethal authority can come exclusively from Article II power.

Let’s start with the first box: Authority to Act under U.S. Law.

First, we would confirm that the contemplated activity is authorized by the President in the exercise of his powers under Article II of the U.S. Constitution, for example, the President’s responsibility as Chief Executive and Commander-in-Chief to protect the country from an imminent threat of violent attack. This would not be just a one-time check for legal authority at the outset. Our hypothetical program would be engineered so as to ensure that, through careful review and senior-level decision-making, each individual action is linked to the imminent threat justification.

A specific congressional authorization might also provide an independent basis for the use of force under U.S. law.

In addition, we would make sure that the contemplated activity is authorized by the President in accordance with the covert action procedures of the National Security Act of 1947, such that Congress is properly notified by means of a Presidential Finding.

Sure, he mentions that a congressional authorization — like the AUMF — might also provide such authority. But it’s just gravy on top of a steaming pile of biscuits, a little extra flavor, but not the main course.

Preston also doesn’t mention a key part of the National Security Act — the purported prohibition on covert ops violating US law. On the contrary, Preston’s “box” suggests the only analysis needed to decide whether a lethal covert mission is legal under US law is that Presidential order.

So it’s not just that CIA doesn’t want Americans to know the CIA can kill you. It also doesn’t want to know that CIA believes it can kill you solely on the say-so of the President.

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.

15 replies
  1. GKJames says:

    (1) What’s with the quotation marks in Bennett’s “legal basis” reference?

    (2) The wordplay is both silly and revealing. Remove the conditionals and you have a roadmap to their thinking. And, yes, the conclusion is that the President, pursuant to Art. II, can have you killed — anywhere, any time. Weird (to humans) is the refusal to acknowledge as much, given that the equation is simple: senior status in al-Quaeda + imminence = threat to US that the President is obligated by the Constitution to counter. (Never mind that the equation itself is redundant given that status alone qualifies you for the Tuesday list.) Seems to me that the crux — in terms of Brennan et al’s wanting to continue their assassination campaign without interference from the rest of the meddling Republic — remains the fact question that they want to avoid at all cost.

  2. TarheelDem says:

    Solely on the President’s say-so or solely on the determination of a “senior government official”? And what if the “senior government official” determines that the threat is the sitting President of the United States?

    State secrecy provides an incredibly slippery slope. Without transparency about the process, who exactly sorts out the constitutionality of the process?

    What is the chain of authority down to the drone pilot or other assassin that makes the killing a matter of authentic delegation from the President? We are having the same sorts of questions that existed about nuclear war and the use of the “football” and launch codes and ….The answers are likely to be different but the institutional issues are the same. And the crazy colonel scenario cannot be excluded from this chain of authority either. To get a bit farfetched, as far as we know the intelligence could be rigged around the policy in such a way that a “senior government official” could rid himself of a pesky neighbor or that awful brother-in-law.

  3. peasantparty says:

    I have to step back here and ask when/where did our laws change to say that the CIA and Military can fully operate on US soil, against US citizens?

    Okay, I get all the dual citizenship mumbo jumbo, but do we not have to have some solid proof that the FBI or local law enforcement could deal with?

  4. Ben Franklin says:

    @peasantparty:

    “Let’s frame the issue properly. The present administration does not claim that the president has “inherent authority” to attack anyone anywhere. Instead, from the documents and speeches we’ve seen, the administration says it can order drone attacks only as provided by the Authorization for the Use of Military Force passed by Congress after the September 11 attacks—that is, against “those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” ”

    This is the core issue. Until Americans, who like drones because of the nature of Remote Warfare, force Congress to reappraise the sagacity of the AUMF, nothing will change. Obama is not the sole purveyor of this policy, but the exclusionary rule and redactions for FOIA make him culpable. The lack of transparency reduces even the minimal Public interest in the subject. Americans do oppose killing citizens, and that info would change the perspective of Americans who might want to review that outdated and oppressive Congressional Fiat.

  5. peasantparty says:

    Ben,

    I agree with most of what you said, especially about framing the issues.

    I don’t care whether he does or does not have authority under the AUMF. What I want to know is how the CIA and Military get all intertwined with this and able to do hits on US soil.

    I’d also like for someone, ANYONE in the White House or on Capitol Hill to explain how 12 years of war footing, into many nations is caused by a small group of terrorists. I’m just not buying it and surely there are others that can think about this beyond the tip of their noses.

  6. peasantparty says:

    @Ben Franklin: There are reports coming out just today that SAUDI backed groups are bombing/killing in Pakistan. I have a huge problem with American military fighting wars for corporations and other countries like Isreal, and Saudi Arabia. While our congress sits there like dunces screaming about a killer deficit that has to take away social insurances or other items for the public that pays them!

    Okay, then. (Sigh) Ranting turned off.

  7. peasantparty says:

    @Ben Franklin: One more: Our stupendously outrageous AUMF may be law in this land because, as you stated we have a bunch of crazies in Congress. It is not a law of the WORLD and should not be placed upon other nations. I don’t think anyone in the US would adopt the Saudi rule of beheadings or cutting off hands of hungry people. We are supposed to have progressed above barbarianism.

  8. peasantparty says:

    @Ben Franklin: So we need to go all the way back to Truman days then.

    BTW, I am thinking of posting a little about LaFayette over at FDL. Just thought you’d like to know.

  9. Ben Franklin says:

    @peasantparty:

    “BTW, I am thinking of posting a little about LaFayette over at FDL. Just thought you’d like to know.”

    I wasn’t being counter-intuitive; just making sure the foundation of our current troubles is seen for what it is, because nibbling off a chunk here-and-there won’t make the grade. We need an iron-clad defense against the indefensible.

  10. phred says:

    @peasantparty: Thanks for the link. It was an interesting read, but the author clearly needs to read EW to really understand the scope of the problem. The President is not believed to be limited to AUMF by his own advisors. That’s where all this Article II business comes in. One would think those advisors never read beyond Article II and therefore remain ignorant of Article III and the Bill or Rights, but I digress.

    But, this is what really took me by surprise, from the article you linked:
    “David Ignatius of the Washington Post, an old friend and my go-to guy for national-security thinking”

    Oh dear. The author clearly needs to find some new friends to “go-to”.

    There are other problems with his article as well, but the biggest seemed to me to be his assumption of the AUMF limitation. We are already in uncharted territory with a President who does not seem to consider himself limited in any way. And why should he? There is no one within our political system who will stop him.

Comments are closed.