The Targeted Killing Memos Shared with NYT, But Not Senate Intelligence Committee

According to the National Journal, one of the memos the Administration refuses to share with the intelligence committees authorizes the use of force in Algeria and, perhaps also in the same memo, with Mali.

Despite President Obama’s pledge in his State of the Union address to make the drone program “even more transparent to the American people and to the world,” his administration continues to resist efforts by Congress, even from fellow Democrats, to obtain the full range of classified legal memos justifying “targeted killing.”

A key reason for that reticence, according to two sources who have read the memos or are aware of their contents, is that the documents contain secret protocols with foreign governments,

[snip]

Others may have been signed with the leaders of Algeria and Mali, the legal expert said. Given the widespread unpopularity of the drone program, the disclosure of these agreements could prove extremely embarrassing both for the United States and partner governments.

The Senate Intelligence Committee can’t learn the details of what the government is up to, the Administration says, because even sharing information (much less publicizing details) about our agreements with governments like Algeria would be embarrassing for all parties involved.

So who are the former and current government officials and senior administration officials leaking information to the NYT about new efforts — including the use of unarmed drones — to target the Algerian militant Mokhtar Belmokhtar in Algeria and Mali?

The NYT reports that earlier concerns about conducting operations not covered by the 2001 AUMF have recently been allayed.

The idea of taking stronger action in the region has been supported in recent months by Michael Sheehan, the senior counterterrorism official at the Pentagon, and Daniel Benjamin, who until December was the senior State Department counterterrorism official. In the past, State Department lawyers have questioned whether the military action approved by Congress against Al Qaeda after the Sept. 11, 2001, attacks authorized efforts to target extremists who were not clearly linked to the group. But according to some officials, those legal arguments  have recently been overcome.

“Those legal arguments have recently been overcome.” By the adoption of new OLC advice the Administration won’t share with Congress?

The article suggests that part of this calculation comes from increased Algerian willingness to partner on counterterrorism, which in turn may be tied to our preparations to offer concrete plans to them.

Some proponents of the plan thought that gaining Algerian cooperation on counterterrorism might be problematic but figured the Algerians might come around if the United States was prepared to present a detailed proposal to share information.

“They need to take responsibility for their guys running amok in the areas,” one senior administration official said of the Algerians.

Then, the NYT proceeds to describe the outlines of possible proposals — including having the Algerians conduct counterterrorism operations outside its border (presumably in Mali).

In a cable to the State Department last week, according to administration officials, Henry S. Ensher, the United States envoy in Algiers, urged that the pursuit of the Algerian militant Mokhtar Belmokhtar, the mastermind of the gas field attack, be made a priority. Toward that end, he recommended that the Obama administration tell the Algerians that if they allowed the United States to fly unarmed drones over the border area of Algeria as well as over Mali, the Americans would share the information with the Algerian government.

[snip]

American officials also sense a possible change of heart by Algerian officials to move away from their longstanding policy not to conduct military operations outside the nation’s borders. Algerian officials recently told the United States that they were prepared to conduct operations in border areas, one American official said.

There are hints that this change of heart came from the arrival of US personnel in Niger, where we’ll operate unarmed-but-heck-maybe-they’ll-be-armed drones out of a new base on Algeria’s southern border.

I guess the message was either the Algerians conduct operations on their southern border with drone assistance or we’ll operate potentially armed drones there ourselves? You know, “They need to take responsibility for their guys running amok in the areas.”

Or, as the statement always goes, the Administration maintains we’re allowed to operate drones “where the country involved consents or is unable or unwilling to take action against the threat.” It sounds like we gave the Algerians that choice, and given the presence of drones on their border, they decided they might consent after all.

I’m sure the authorization to conduct targeted killing is all neatly mapped out somewhere, either publicly in the pages of the NYT, or in some OLC memo that the Administration refuses to share with Congress.

Update: As part of its still unsuccessful attempt to get the Senate Intelligence Committee to advance John Brennan’s nomination, the Administration apparently shared details of some of the missing memos yesterday afternoon.

On Wednesday, administration officials met with intelligence committee members to discuss the contents of the disputed documents. Copies of the material were not turned over to the committee, however, said a source familiar with the matter.

So maybe they gave SSCI the information they had already leaked to the NYT?

Still, their claim that they can’t share these memos because the details — some of which appear in the NYT — would be embarrassing really doesn’t hold water at this point.

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.

12 replies
  1. allan says:

    “Those legal arguments have recently been overcome”

    should replace E Pluribus Unum as the national motto.

  2. P J Evans says:

    ‘Nice little country you have here. Be a shame if anything happened to it.’

    I wish the WH (in whatever administration) would grow up and stop thinking that might makes right. More,I wish the ‘intelligence community’ would grow past their evident desire to be the center of the universe.

  3. SpanishInquisition says:

    Richard Milhouse Obama is in the White House – it’s not illegal if the President does it. The White House will make the laws say whatever they want the laws to say.

  4. beowulf says:

    Isn’t it the administration’s position that CIA drone ops are “covert actions”?

    In which case, wouldn’t the President have to disclose (to the Intel Committees at least) the Algeria and Mali deals when he issued Findings for those projects, or did he issue some kind of full spectrum drone war Finding 4 years ago to cover the entire planet?
    http://www.law.cornell.edu/uscode/text/50/413b

  5. emptywheel says:

    @beowulf: C: None of the above

    The Finding (or rather Memorandum of Notification they’re using is the grab bag counterterrorism MON signed on September 17, 2001.

    It not only includes targeted killings, but also torture, partnering with people like Qaddafi and Assad, but also a great deal of other spooky stuff.

  6. General Stonewall says:

    White House stonewalling drone investigation say congressmen from both sides of the aisle

    US lawmakers have accused the White House of rebuffing their inquiries into CIA drone bombing raids abroad and vowed to assert more congressional oversight over the secretive drone war.

    Both Republicans and Democrats on the House Judiciary Committee on Wednesday denounced President Barack Obama’s administration for refusing to share key documents or details of the killings by armed, robotic aircraft.

    “The need for oversight is clear,” said Representative John Conyers, a Democrat and normally a staunch ally of the Obama administration.

    Conyers and other members of the committee said it was unacceptable that the Attorney General, Eric Holder, or other officials from the Justice Department declined an invitation to appear at the hearing devoted to the drone campaign.

    “I don’t think the attorney general of the United States can decline to come before this committee on a subject that is so clearly within our jurisdiction,” Conyers said.

    http://www.rawstory.com/rs/2013/02/28/white-house-stonewalling-drone-investigation-say-congressman-from-both-sides-of-the-aisle/

  7. beowulf says:

    @emptywheel:
    In other words, they just sort of pissed all over the law (the Notification part of Memorandum of Notification is about notifying Congress). That’s good to know, I won’t waste any time figuring out how that’s even legal. :o)

    “The President shall ensure that the congressional intelligence committees, or, if applicable, the Members of Congress specified in subsection (c)(2) of this section, are notified in writing of any significant change in a previously approved covert action, or any significant undertaking pursuant to a previously approved finding, in the same manner as findings are reported” /50 USC 413b(d).

  8. Gizmo says:

    Well, if the USA enjoys the right to engage in targeted killings at various locations around the world, then presumably other nations enjoy that same right. I wonder if Obama and his gang are OK with North Korea and Iran engaging in drone attacks on their victims of choice?

  9. El Cid says:

    I highly recommend that this discussion is generalized such that the language being used to discuss actions and policy justifications by the United States is abstracted as to apply to any nation.

    I.e., if Congress authorizes an activity and this is justification within the USA, then by extension another nation-state’s legislature may authorize the same activity.

    If the Executive Branch of the USA may select and carry out an assassination following procedures of its own making which may or may not be publicly discussed, based upon its interpretations of legislation passed by Congress, then by extension any national executive may select and carry out assassinations following procedures of their own making which may or may not be publicly discussed, based upon their interpretations of laws passed by their respective legislatures.

    Not all nation-states are going to possess the ability to control the activities of the United Nations given their lack of Permanent Member vetoes, but many nation-states currently disregard the views and actions of UNSC as well as UNGA, so this should be no absolute barrier.

  10. Mehdi says:

    It really surprises me how little the west knows about Algeria. Understandable since the Algerians keep all foreign nations at arms length. I doubt the Algerians acquiesced to pressure and I’m not sure that much pressure was placed or needed to be placed.

    The major controversy in Algeria right now is not whether U.S. drones will fly from Algeria to bomb militants in Mali. Algeria has asked for U.S. intelligence and counter terrorism assistance since 1991. The controversy within Algeria is that Bouteflika allowed the French air force to use our southern airspace.

    Algerian’s don’t care much for foreign threats and considering their history they would certainly refuse the U.S.or any country if any agreement was proposed by threats. And drones surveilling the Sahara (which is ungovernable by its nature)actually helps the Algerians. I’m sure they don’t mind that since they don’t really fear Western imperialism but do fear violent jihadism (which has become a nuisance to the economic and social progress of the country) It’s a rich debt free nation undergoing an now ten year economic boom. It receives no foreign aid or humanitarian assistance. Algerians are fiercely nationalistic and hot headed. Threats don’t work well with them.

    It’s France that they mind and they will not allow French flyovers indefinitely. But they will allow it temporarily because they do hate jihadist more than the French…..for now at least.

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