The Government is trying to quasi appeal the 2nd Circuit’s order to turn over information on the Awlaki killing (in part, it appears, to claim the CIA was not involved in the killing after all!). It appears to be hiding a number of references to other OLC memos (and one memorandum that may not be from OLC and another to OLC). Among the other things it lists that the 2nd Circuit said should be released but which the government would like censored are the following:
- the citation to and description of an OLC memorandum cited at page [redacted]
- the citation to and description of an OLC memorandum cited at pages [redacted]
- a citation to a memorandum to OLC at page [redacted]
- the citation and description of a memorandum at page [redacted]
- the citation to and description of an OLC memorandum at pages 16 nn. 14 & 16
Admittedly it’s possible the three references to the memos are to the same memo, but from the syntax it doesn’t sound like it. The thing is, the government gets to hide OLC memos by claiming they weren’t finalized. But if the government is citing them in a finalized memo, then it is relying on them. Then they’re finalized, aren’t they?
Congratulations to Rand Paul, who, having made request number 24, has finally gotten the Administration to agree to publicly release the OLC memo authorizing the drone killing of Anwar al-Awlaki.
Here, for posterity, is a record of the at least 24 requests from at least 31 members of Congress for this memo.
February 2011: Ron Wyden asks the Director of National Intelligence for the legal analysis behind the targeted killing program; the letter references “similar requests to other officials.” (1)
April 2011: Ron Wyden calls Eric Holder to ask for legal analysis on targeted killing. (2)
May 2011: DOJ responds to Wyden’s request, yet doesn’t answer key questions.
May 18-20, 2011: DOJ (including Office of Legislative Affairs) discusses “draft legal analysis regarding the application of domestic and international law to the use of lethal force in a foreign country against U.S. citizens” (this may be the DOJ response to Ron Wyden).
October 5, 2011: Chuck Grassley sends Eric Holder a letter requesting the OLC memo by October 27, 2011. (3)
November 8, 2011: Pat Leahy complains about past Administration refusal to share targeted killing OLC memo. Administration drafts white paper, but does not share with Congress yet. (4)
February 8, 2012: Ron Wyden follows up on his earlier requests for information on the targeted killing memo with Eric Holder. (5)
March 7, 2012: Tom Graves (R-GA) asks Robert Mueller whether Eric Holder’s criteria for the targeted killing of Americans applies in the US; Mueller replies he’d have to ask DOJ. Per his office today, DOJ has not yet provided Graves with an answer. (6)
March 8, 2012: Pat Leahy renews his request for the OLC memo at DOJ appropriations hearing.(7)
June 7, 2012: After Jerry Nadler requests the memo, Eric Holder commits to providing the House Judiciary a briefing–but not the OLC memo–within a month. (8)
June 12, 2012: Pat Leahy renews his request for the OLC memo at DOJ oversight hearing. (9)
June 22, 2012: DOJ provides Intelligence and Judiciary Committees with white paper dated November 8, 2011.
June 27, 2012: In Questions for the Record following a June 7 hearing, Jerry Nadler notes that DOJ has sought dismissal of court challenges to targeted killing by claiming “the appropriate check on executive branch conduct here is the Congress and that information is being shared with Congress to make that check a meaningful one,” but “we have yet to get any response” to “several requests” for the OLC memo authorizing targeted killing. He also renews his request for the briefing Holder had promised. (10)
July 19, 2012: Both Pat Leahy and Chuck Grassley complain about past unanswered requests for OLC memo. (Grassley prepared an amendment as well, but withdrew it in favor of Cornyn’s.) Leahy (but not Grassley) votes to table John Cornyn amendment to require Administration to release the memo.
July 24, 2012: SSCI passes Intelligence Authorization that requires DOJ to make all post-9/11 OLC memos available to the Senate Intelligence Committee, albeit with two big loopholes.
December 4, 2012: Jerry Nadler, John Conyers, and Bobby Scott ask for finalized white paper, all opinions on broader drone program (or at least a briefing), including signature strikes, an update on the drone rule book, and public release of the white paper.
December 19, 2012: Ted Poe and Tredy Gowdy send Eric Holder a letter asking specific questions about targeted killing (not limited to the killing of an American), including “Where is the legal authority for the President (or US intelligence agencies acting under his direction) to target and kill a US citizen abroad?”
January 14, 2013: Wyden writes John Brennan letter in anticipation of his confirmation hearing, renewing his request for targeted killing memos. (11)
January 25, 2013: Rand Paul asks John Brennan if he’ll release past and future OLC memos on targeting Americans. (12)
February 4, 2013: 11 Senators ask for any and all memos authorizing the killing of American citizens, hinting at filibuster of national security nominees. (13)
February 6, 2013: John McCain asks Brennan a number of questions about targeted killing, including whether he would make sure the memos are provided to Congress. (14)
February 7, 2013: Pat Leahy and Chuck Grassley ask that SJC be able to get the memos that SSCI had just gotten. (15)
February 7, 2013: In John Brennan’s confirmation hearing, Dianne Feinstein and Ron Wyden reveal there are still outstanding memos pertaining to killing Americans, and renew their demand for those memos. (16)
February 8, 2013: Poe and Gowdy follow up on their December 19 letter, adding several questions, particularly regarding what “informed, high level” officials make determinations on targeted killing criteria.
February 8, 2013: Bob Goodlatte, Trent Franks, and James Sensenbrenner join their Democratic colleagues to renew the December 4, 2012 request. (17)
February 12, 2013: Rand Paul sends second letter asking not just about white paper standards, but also about how National Security Act, Posse Commitatus, and Insurrection Acts would limit targeting Americans within the US.
February 13, 2013: In statement on targeted killings oversight, DiFi describes writing 3 previous letters to the Administration asking for targeted killing memos. (18, 19, 20)
February 20, 2013: Paul sends third letter, repeating his question about whether the President can have American killed inside the US.
February 27, 2013: At hearing on targeted killing of Americans, HJC Chair Bob Goodlatte — and several other members of the Committee — renews request for OLC memos. (21)
March 11, 2013: Barbara Lee and 7 other progressives ask Obama to release “in an unclassified form, the full legal basis of executive branch claims” about targeted killing, as well as the “architecture” of the drone program generally. (22)
April 10, 2013: Bob Goodlatte and John Conyers send Obama a letter threatening a subpoena if they don’t get to see the drone killing memos. (23)
March 27, 2014: Alan Grayson holds hearing with drone victim, calls for more transparency over decision making.
April 21, 2014: 2nd Circuit orders Administration to release redacted version of OLC memo to ACLU and NYT.
May 5, 2014: Rand Paul issues veto threat for David Barron’s confirmation unless Administration releases OLC memo (already ordered for release by 2nd Circuit). (24)
May 20, 2014: The Most Transparent Administration Evah™ announces it will release (what is certain to be a highly redacted version of) the OLC memo.
Members of Congress who requested the memo:
Rand Paul has gone and united drone apologists and opponents with an op-ed explaining his opposition to David Barron’s confirmation without full transparency on the drone memos Barron wrote. It’s a good op-ed, though the only new addition from what he has said before is that any other drone memos Barron has written ought to be on the table as well.
In addition to a lot of “trust me I know the man” defenses from Cole that I find utterly inappropriate for a lifetime appointment, both Cole and Wittes argue we’ve already seen the “Administration’s” logic on drone killing, so we have no need to see the memo itself. Cole cautiously doesn’t characterize what that standard is in his defense.
Second, the administration has in fact made available to all Senators any and all memos Barron wrote concerning the targeting of al-Awlaki – the core of the issue Sen. Paul is concerned about. So if Sen. Paul and any other Senator want to review Barron’s reasoning in full, they are free to do so. Moreover, the administration also made available to the Senate, and ultimately to the public, a “White Paper” said to be drawn from the Barron memo (though written long after he left office). Thus, no Senator need be in the dark about the Administration’s reasoning, and the public also has a pretty good idea as well.
Wittes, less wisely, does.
This idea of a trial in absentia followed by drone strike as a means of effectuating a death sentence is novel—and very eccentric. Paul never seeks to explain why wartime authorities are inappropriate for dealing with a senior operational leader of an enemy force who is actively plotting attacks on the United States.
The legal standard for targeting a U.S. citizen the administration has embraced is limited to U.S. citizens (1) who are operational leaders of AUMF-covered groups, (2) who pose an imminent threat, (3) whose capture is not feasible, and (4) whose targeting is consistent with the law of armed conflict. Suspects in Germany or Canada or any other governed space would almost surely be feasible to capture and if not, because in a hostage-like situation, would be dealt with by law enforcement, including using law enforcement’s powers at times to use lethal force. The definition of the group of citizens covered is so narrow, in reality, that it has so far described a universe of exactly one person—Al Awlaki—whom the administration has claimed the authority to target.
Wittes, you see, is certain that not only did the Administration have evidence Anwar al-Awlaki was a “senior operational leader” of AQAP by the time they executed him, but they had that evidence by July 2010 when Barron signed a memo saying that the specific circumstances at hand justified killing Awlaki. But even if he’s seen it via some magic leak, the public has not.
As I’ve noted repeatedly — and as Lawfare has been sloppy about in the past — at the time Barron signed off on Awlaki’s execution, one of the chief pieces of evidence against Awlaki — a confession Umar Farouk Abdulmutallab had given as a proffer in a plea deal that never got consummated – was undermined by Abdulmutallab’s previous confession and other evidence (and would be undermined further, just days after Awlaki’s execution, when Abdulmutallab pled guilty without endorsing the claims about Awlaki included in that confession).
Now, I suspect the government didn’t present that nuance to Barron when he wrote his memo (just as the government lied to John Yoo and a series of other OLC lawyers as they wrote torture memos). I imagine the memo starts with a caveat that says, “Assuming the facts are as you present them and no other facts exist,” absolving Barron in case the government presented only partial evidence or worse, as it appears to often do in the case of OLC memos.
But it is possible that the government gave Barron really nuanced information, and he nevertheless rubber stamped this execution, in spite of the possibility that the case Awlaki was a senior operational official of AQAP by that point was overstated. It’s possible too that there’s a great deal of evidence to counterweigh the very contradictory information on the chief claim in the public record and absent any contrary evidence Barron thought it was a conservative legal decision.
One way or another, Barron participated in a tautological exercise in which the government presented unchallenged evidence showing that Awlaki was a senior operational leader that then served as justification for setting aside due process and instead having OLC — Barron – weigh whether or not Awlaki was a senior operational leader who could be executed with no due process.
This is why (egads) Paul is right and Wittes is wrong. Because the idea of a trial before you execute an American citizen is in fact the rule, and the idea of having an OLC lawyer judge all this in secret is in fact the novelty. It doesn’t matter whether the case laid out against Awlaki applies to him and him alone (though I doubt it does; I doubt it applies as well as supporters say, and complaints about the lack of specificity of it makes it clear it could too easily be applied for others).
But the big underlying point — and the reason why Cole and Wittes’ claim that Barron can’t be held to account here, only the Administration whose policy he reviewed can be, is wrong — is that tautology. What the memo shows and the white paper does not is that Barron was provided evidence against Awlaki and he willingly played the role of both saying that the underlying legal logic (what we see in the white paper) was sound but that the evidence in this case (what we haven’t seen in the memo) made this departure from due process sound. Barron signed off on both the logic and the evidence justifying that logic itself.
And for me, that’s enough. That’s enough to disqualify him — no matter how liberal or brilliant he is, both qualities I’d like to see on a bench — as a judge.
That’s enough for me. But those who want to push Barron through anyway ought to consider what they would need to show to prove that Barron’s decision was reasonable: the evidence Barron saw that he believed sufficient (and unquestionable, given the absence of rebuttal) to authorize a due-process free execution. It’s unlikely we’ll ever get that evidence, because the government won’t declassify it.
That’s the problem with this nomination, one way or another. No matter how sound the underlying logic, Barron played another role in Awlaki’s execution, certifying that the evidence merited getting to the underlying logic of denying a US citizen due process. Barron both approved an entirely parallel system to replace due process, and played the judge in that system.
The white paper addresses the legality of killing a US citizen “who is a senior operational leader of al-Qaeda or an associated force.” Such a person may be killed, the document concludes, if an “informed, high-level official” finds (1) that he poses “an imminent threat of violent attack against the United States;” (2) that his capture is not feasible; and (3) the operation is conducted consistent with law-of-war principles, such as the need to minimize collateral damage. However, the paper offers no guidance as to what level of proof is necessary: does the official have to be satisfied beyond a reasonable doubt, by a preponderance of the evidence, or is reasonable suspicion sufficient? We are not told.
Nor does the paper describe what procedural safeguards are to be employed. It only tells us what is not required: having a court determine whether the criteria are in fact met.
What determines whether that standard has been met is the same OLC lawyer who determined that such a standard would be appropriate.
In the days after the Boston Marathon attack last year, NSA made some noise about expanding its domestic surveillance so as to prevent a similar attack.
But in recent days, we’ve gotten a lot of hints that NSA may have just missed Tamerlan Tsarnaev.
Consider the following data points.
First, in a hearing on Wednesday, Intelligence Community Inspector General Charles McCullough suggested that the forensic evidence found after the bombing might have alerted authorities to Tamerlan Tsarnaev’s radicalization.
Senator Tom Carper: If the Russians had not shared their initial tip, would we have had any way to detect Tamerlan’s radicalization?
[McCullough looks lost.]
Carper: If they had not shared their original tip to us, would we have had any way to have detected Tamerlan’s radicalization? What I’m getting at here is just homegrown terrorists and our ability to ferret them out, to understand what’s going on if someone’s being radicalized and what its implications might be for us.
McCullough: Well, the Bureau’s actions stemmed from the memo from the FSB, so that led to everything else in this chain of events here. You’re saying if that memo didn’t exist, would he have turned up some other way? I don’t know. I think, in the classified session, we can talk about some of the post-bombing forensics. What was found, and that sort of thing. And you can see when that radicalization was happening. So I would think that this would have come up, yes, at some point, it would have presented itself to law enforcement and the intelligence community. Possibly not as early as the FSB memo. It didn’t. But I think it would have come up at some point noting what we found post-bombing.
Earlier in the hearing (around 11:50), McCullough described reviewing evidence “that was within the US government’s reach before the bombing, but had not been obtained, accessed, or reviewed until after the bombing” as part of the IG Report on the attack. So some of this evidence was already in government hands (or accessible to it as, for example, GCHQ data might be).
We know some of this evidence not accessed until after the bombing was at NSA, because the IG Report says so. (See page 20)
That may or may not be the same as the jihadist material Tamerlan posted to YouTube in 2012, which some agency claims could have been identified as Tamerlan even though he used a pseudonym for some of the time he had the account.
The FBI’s analysis was based in part on other government agency information showing that Tsarnaev created a YouTube account on August 17, 2012, and began posting the first of several jihadi-themed videos in approximately October 2012. The FBI’s analysis was based in part on open source research and analysis conducted by other U.S. government agencies shortly after the bombings showing that Tsarnaev’s YouTube account was created with the profile name “Tamerlan Tsarnaev.” After reviewing a draft of this report, the FBI commented that Tsarnaev’s YouTube display name changed from “muazseyfullah” to “Tamerlan Tsarnaev” on or about February 12, 2013, and suggested that therefore Tsarnaev’s YouTube account could not be located using the search term “Tamerlan Tsarnaaev” before that date.20 The DOJ OIG concluded that because another government agency was able to locate Tsarnaev’s YouTube account through open source research shortly after the bombings, the FBI likely would have been able to locate this information through open source research between February 12 and April 15, 2013. The DOJ OIG could not determine whether open source queries prior to that date would have revealed Tsarnaev to be the individual who posted this material.
20 In response to a DOJ OIG request for information supporting this statement, the FBI produced a heavily redacted 3-page excerpt from an unclassified March 19, 2014, EC analyzing information that included information about Tsarnaev’s YouTube account. The unredacted portion of the EC stated that YouTube e-mail messages sent to Tsarnaev’s Google e-mail account were addressed to “muazseyfullah” prior to February 12, 2013, and to “Tamerlan Tsarnaev” beginning on February 14, 2013. The FBI redacted other information in the EC about Tsarnaev’s YouTube and Google e-mail accounts.
The FBI may not have been able to connect “muazseyfullah” with Tamerlan, but that’s precisely what the NSA does with its correlations process; it has a database that does just that (though it’s unclear whether it would have collected this information, especially given that it postdated the domestic Internet dragnet being shut down).
Finally, there’s the matter of the Anwar al-Awlaki propaganda.
An FBI analysis of electronic media showed that the computers used by Tsarnaev contained a substantial amount of jihadist articles and videos, including material written by or associated with U.S.-born radical Islamic cleric Anwar al-Aulaqi. On one such computer, the FBI found at least seven issues of Inspire, an on-line English language magazine created by al-Aulaqi. One issue of this magazine contained an article entitled, “Make a Bomb in the Kitchen of your Mom,” which included instructions for building the explosive devices used in the Boston Marathon bombings.
Information learned through the exploitation of the Tsarnaev’s computers was obtained through a method that may only be used in the course of a full investigation, which the FBI did not open until after the bombings.
The FBI claims they could only find the stuff on Tamerlan’s computer using methods available in full investigations (this makes me wonder whether the FBI uses FISA physical search warrants to remotely search computer hard drives).
But that says nothing about what NSA (or even FBI, back in the day when they had the full time tap on Awlaki, though it’s unclear what kind of monitoring of his content they’ve done since the government killed him) might have gotten via a range of means, including, potentially, upstream searches on the encryption code for Inspire.
In other words, there’s good reason to believe — and the IC IG seems to claim – that the government had the evidence to know that Tamerlan was engaging in a bunch of reprehensible speech before he attacked the Boston Marathon, but they may not have reviewed it.
Let me be clear: it’s one thing to know a young man is engaging in reprehensible but purportedly protected speech, and another to know he’s going to attack a sporting event.
Except that this purportedly protected speech is precisely — almost exactly — the kind of behavior that has led FBI to sic multiple informants and/or undercover officers on other young men, including Adel Daoud and Mohamed Osman Mohamud, even in the absence of a warning from a foreign government.
And they didn’t here.
Part of the issue likely stems from communication failures between FBI and NSA. The IG report notes that “the relationship between the FBI and the NSA” was one of the most relevant relationships for this investigation. Did FBI (and CIA) never tell the NSA of the Russian warning? And clearly they never told NSA of his travel to Russia.
But part of the problem likely stems from the way NSA identifies leads — precisely the triaging process I examined here. That is, NSA is going to do more analysis on someone who communicates with people who are already targeted. Obviously, the ghost of Anwar al-Awlaki is one of the people targeted (though the numbers of young men who have Awlaki’s propaganda is likely huge, making that a rather weak identifier). The more interesting potential target would be William Plotnikov, the Canadian-Russian boxer turned extremist whom Tamerlan allegedly contacted in 2012 (and it may be this communication attempt is what NSA had in its possession but did not access until after the attacks). But I do wonder whether the NSA didn’t prioritize similar targets in countries of greater focus, like Yemen and Somalia.
It’d be nice to know the answer to these questions. It ought to be a central part of the debate over the NSA and its efficacy or lack thereof. But remember, in this case, the NSA was specifically scoped out of the heightened review (as happened after 9/11, which ended up hiding the good deal of warning the NSA had before the attack).
We’ve got a system that triggers on precisely the same kind of speech that Tamerlan Tsarnaev engaged in before he attacked the Marathon. But it didn’t trigger here.
The 2nd Circuit has just ruled that the government must release a redacted version of the targeted killing memo to the NYT and ACLU, as well as Vaughn documents listing the documents pertaining to the Anwar al-Awlaki killing.
The central jist of the argument, written by Jon Newman, is that the White Paper first leaked selectively to Michael Isikoff and then released, under FOIA, to Jason Leopold (Leopold FOIAed after reading about it in this post I wrote), amounts to official disclosure of the information in the OLC memo which, in conjunction with all the other public statements, amounts to a waiver of the government’s claim that the OLC memo amounted to pre-decisional deliberations.
This argument starts on page 23, in footnote 10, where the opinion notes that the White Paper leaked to Mike Isikoff was not marked draft, while the one officially released to Leopold was.
The document disclosed to [Leopold] is marked “draft”; the document leaked to Isikoff is not marked “draft” and is dated November 8, 2011. The texts of the two documents are identical, except that the document leaked to Isikoff is not dated and not marked “draft.”
The opinion strongly suggests the government should have released the Mike Isikoff — that is, the one not pretending to be a draft — version to ACLU.
The Government offers no explanation as to why the identical text of the DOJ White Paper, not marked “draft,” obtained by Isikoff, was not disclosed to ACLU, nor explain the discrepancy between the description of document number 60 and the title of the DOJ White Paper.
Then, having established that the document leaked to Isikoff is the same as the document released to Leopold, which was officially released, the opinion describes the DOD opinion at issue, a 41 page classified document dated July 16, 2010 signed by David Barron.
An almost entirely redacted paragraph describes the content of the memo.
The OLC-DOD Memorandum has several parts. After two introductory paragraphs, Part I(A) reports [redacted]. Parts I(B) and I(C) describe [redacted]. Part II(A) considers [redacted]. Part II(B) explains [redacted]. Part III(A) explains [redacted], and Part III(B) explains [redacted]. Part IV explains [redacted]. Part V explains [redacted]. Part VI explains [redacted].
A subsequent passage explains that parts II through VI provide the legal reasoning.
FOIA provides that “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.” 5 U.S.C. § 552b. The Government’s waiver applies only to the portions of the OLC-DOD Memorandum that explain legal reasoning. These are Parts II, III, IV, V, and VI of the document, and only these portions will be disclosed.
And a still later passage reveals that the remaining section — part I — discusses intelligence gathering activities, presumably as part of a discussion of the evidence against Anwar al-Awlaki.
Aware of that possibility, we have redacted, as explained above, the entire section of the OLC-DOD Memorandum that includes any mention of intelligence gathering activities.
So while the paragraph describing the content of the Memo is redacted, we know the first section lays out the evidence against Awlaki, followed by 5 sections of legal reasoning.
The redacted paragraph I included above, describing the content of the Memo, is followed immediately by a paragraph addressing the content of the White Paper.
The 16-page, single-spaced DOJ White Paper [redacted] in its analysis of the lawfulness of targeted killings. [redacted]
The first redaction here probably states that the White Paper parallels the OLC memo. The second probably describes the key differences (besides length and the absence of the underlying evidence against Awlaki in the White Paper). And that second redaction is followed by a discussion describing the White Paper’s extensive passage on 18 US 1119, and lack of any discussion of 18 USC 956, a law prohibiting conspiracies to kill, maim, or kidnap outside the US.
The DOJ White Paper explains why targeted killings do not violate 18 U.S.C. §§ 1119 or 2441, or the Fourth and Fifth Amendments to the Constitution, and includes an analysis of why section 1119 encompasses the public authority justification. Even though the DOJ White Paper does not discuss 18 U.S.C. § 956(a)[redacted].
In other words, the big difference in the legal reasoning is that the still-secret Memo argues that the US plot against Awlaki was not an illegal conspiracy to kill him, in addition to not being a murder of an American overseas.
Conspiracies to conduct extralegal killings of terrorists are not the same as conspiracies by terrorists to kill, apparently.
Having laid out that the non-draft Isikoff memo is the same as the officially-released Leopold memo, and the officially-released Leopold memo lays out the same legal reasoning as the OLC Memo, the opinion basically says the government’s claims it hasn’t already released the memo are implausible.
As the District of Columbia Circuit has noted, “Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Wolf v. CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007) (quoting Gardels v. CIA, 689 F.2d 1100, 1105 (D.C. Cir. 1982)). But Gardels made it clear that the justification must be “logical” and “plausible” “in protecting our intelligence sources and methods from foreign discovery.”
With the redactions and public disclosures discussed above, it is no longer either “logical” or “plausible” to maintain that disclosure of the legal analysis in the OLC-DOD Memorandum risks disclosing any aspect of “military plans, intelligence activities, sources and methods, and foreign relations.” The release of the DOJ White Paper, discussing why the targeted killing of al-Awlaki would not violate several statutes, makes this clear. [redacted] in the OLC-DOD Memorandum adds nothing to the risk. Whatever protection the legal analysis might once have had has been lost by virtue of public statements of public officials at the highest levels and official disclosure of the DOJ White Paper.
Clearly, throughout its treatment of the Awlaki killing, the Obama Administration has attempted to be able to justify its killing of an American citizen publicly without bearing the risk of defending that justification legally.
And they almost got away with it. Until they got a little too loosey goosey with the selective leaks when they (someone) leaked the White Paper to Isikoff.
Ultimately, though, their selective leaking was the undoing of their selective leaking plan.
As I noted on Friday, Judge Rosemary Collyer threw out the Bivens challenge to the drone killings of Anwar and Abdulrahman al-Awlaki and Samir Khan.
The decision was really odd: in an effort to preserve some hope that US citizens might have redress against being executed with no due process, she rejects the government’s claims that she has no authority to decide the propriety of the case. But then, by citing precedents rejecting Bivens suits, including one on torture in the DC Circuit and Padilla’s challenge in the Fourth, she creates special factors specifically tied to the fact that Awlaki was a horrible person, rather than that national security writ large gives the Executive unfettered power to execute at will, and then uses these special factors she invents on her own to reject the possibility an American could obtain any redress for unconstitutional executions. (See Steve Vladeck for an assessment of this ruling in the context of prior Bivens precedent.)
The whole thing lies atop something else: the government’s refusal to provide Collyer even as much information as they had provided John Bates in 2010 when Anwar al-Awlaki’s father had tried to pre-emptively sue before his son was drone-killed.
On December 26, Collyer ordered the government to provide classified information on how it decides to kill American citizens.
MINUTE ORDER requiring the United States, an interested party 19 , to lodge no later than January 24, 2014, classified declaration(s) with court security officers, in camera and ex parte, in order to provide to the Court information implicated by the allegations in this case and why its disclosure reasonably could be expected to harm national security…, include[ing] information needed to address whether or not, or under what circumstances, the United States may target a particular foreign terrorist organization and its senior leadership, the specific threat posed by… Anwar-al Aulaqi, and other matters that plaintiff[s have] put at issue, including any criteria governing the use of lethal force, updated to address the facts of this record.
Two weeks later, the government moved to reconsider, both on jurisdictional grounds and because, it said, Collyer didn’t need the information to dismiss the case.
Beyond the jurisdictional issue, the Court should vacate its Order because Defendants’ motion to dismiss, which raises the threshold defenses of the political question doctrine, special factors, and qualified immunity, remains pending. The information requested, besides being classified, is not germane to Defendants’ pending motion, which accepts Plaintiffs’ well-pled facts as true.
As part of their motion, however, the government admitted to supplementing the plaintiffs’ facts.
Defendants’ argument that decedents’ constitutional rights were not violated assumed the truth of Plaintiffs’ factual allegations, and supplemented those allegations only with judicially noticeable public information, the content of which Plaintiffs did not and do not dispute.
The plaintiffs even disputed that they didn’t dispute these claims, pointing out that they had introduced claims about:
Ultimately, even Collyer scolds the government for misstating the claims alleged in the complaint.
The United States argued that the factual information that the Court requested was not relevant to the Defendants’ special factors argument because special factors precluded Plaintiffs’ cause of action, given the context in which the claims, “as pled,” arose––that is, “the alleged firing of missiles by military and intelligence officers at enemies in a foreign country in the course of an armed conflict.” Mot. for Recons. & to Stay Order at ECF 10. The United States, however, mischaracterizes the Complaint. Continue reading
While the government immediately informed Daoud they would use evidence derived from FISA against him, subsequent information — both comments Dianne Feinstein made during the debate about renewing the FISA Amendments Act and in further details we’ve gotten about back door searches — have suggested there might be something exotic about his targeting. (I have speculated he got identified via a back door search off a traditional FISA tap on someone — or something — else.)
On Monday, the government submitted its appeal of Judge Sharon Coleman’s decision.
DOJ complains that Judge Sharon Coleman did not reveal the classified things she finds so problematic about this case
Hilariously, key to their appeal is that Coleman didn’t lay out what it was she saw in the FISA materials she reviewed that led her to grant Daoud’s lawyer review of the underlying application materials.
Rather than address the specific facts of this case, the district court ordered disclosure because it believed that resolving the legality of the FISA collection is “best made in this case as part of an adversarial proceeding.” Id. at 5; SA 5. The court noted that “the adversarial process is integral to safeguarding the rights of all citizens” and quoted the Supreme Court’s language that the Sixth Amendment “right to the effective assistance of counsel is thus the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing.” Id.
For FISA and its procedures to have meaning, the need for disclosure must stem from unique, case-specific facts, and not a general preference that would apply to all FISA litigation. After all, the statute mandates that courts review the FISA applications and orders in camera and ex parte before even contemplating disclosure. Thus, a court cannot order disclosure of FISA materials unless it concludes, based on facts specific to the FISA applications in that case, that it cannot accurately resolve the legality of the collection without such disclosure.
The legislative history of FISA reinforces the conclusion that disclosure cannot be “necessary” absent a case-specific reason that would justify a departure from the default ex parte process.
Think about this. The government is arguing Coleman was wrong to grant Daoud’s lawyers review — which would effectively allow a lawyer to conduct a secret review of the FISA application — without explaining in a court opinion what is so unique about this case that it merits such a review.
To do so, she’d either have to reveal the secrets the government says Daoud’s lawyers can’t review, even in secret. Or she’d have to issue a partially classified opinion that would deprive Daoud’s lawyers of an opportunity to support her decision on appeal.
DOJ complains that Coleman did not think their secret declarations they insist are persuasive are persuasive
DOJ is also angry that Coleman was not sufficiently impressed by their plea of national security, insisting that their sworn declarations were “persuasive” even though she obviously was not persuaded.
The “need-to-know” prerequisite matters all the more here because, as persuasively articulated in the sworn declarations from the Attorney General of the United States and the FBI’s Acting Assistant Director for Counterterrorism, these FISA applications deal with exceptionally sensitive issues with profound national security implications.
[CLASSIFIED MATERIAL REDACTED]
The district court’s order ignored these declarations and brushed aside the considered judgment of two senior executive branch officials who carefully concluded—based on the particular facts of this case—that disclosure may lead to an unacceptable risk of compromising the intelligence gathering process and undercut the FBI’s ongoing ability to pursue national security investigations. If permitted to stand, the district court’s order would impose upon the government a lose-lose dilemma: disclose sensitive classified information to defense counsel—an option unlikely to be sanctioned by the owners of that information—or forfeit all FISA-derived evidence against the defendant, which in many cases may be critical evidence for the government.
In other words, in spite of FISA’s clear provision allowing for review in certain circumstances, DOJ maintains that judges must accept whatever classified declarations they submit even if — as Coleman said — they’re not at all persuasive.
And while the government’s complaints are, in significant part, about ensuring that allowing defendants to review these applications doesn’t begin to happen more frequently, this is also a bid to ensure that any Title III review of FISA warrants remains narrowly limited to whether,
The last bullet, which I suspect is the most important one in this case, will measure not whether minimization meets the standards required under the Fourth Amendment, but whether DOJ (or rather NSA and/or FBI) followed the rules approved by FISA. And limiting the review to whether the government met the minimization procedures approved by FISA brackets off the question of whether this use of FISA abided the Fourth Amendment.
Elsewhere, DOJ describes the case they need to make differently.
A court reviewing the applications would have no difficulty determining that they established probable cause to believe that the target was an agent of a foreign power and that a significant purpose of the collection was to obtain foreign intelligence information.
That’s significant because if this does involve a back door search, it raises questions about the degree to which the government collects this data, at this point, just to find young Muslim men to catch in stings.
More bread-crumbs pointing to targeting off Inspire
Which is particularly important given the bread-crumbs in the opinion pointing to the targeting of Daoud off some kind of collection targeted at Inspire, AQAP’s magazine.
In a piece at MoJo, David Corn argues the Senate Intelligence Committee – CIA fight has grown into a Constitutional crisis.
What Feinstein didn’t say—but it’s surely implied—is that without effective monitoring, secret government cannot be justified in a democracy. This is indeed a defining moment. It’s a big deal for President Barack Obama, who, as is often noted in these situations, once upon a time taught constitutional law. Feinstein has ripped open a scab to reveal a deep wound that has been festering for decades. The president needs to respond in a way that demonstrates he is serious about making the system work and restoring faith in the oversight of the intelligence establishment. This is more than a spies-versus-pols DC turf battle. It is a constitutional crisis.
I absolutely agree those are the stakes. But I’m not sure the crisis stems from Feinstein “going nuclear” on the floor of the Senate today. Rather, I think whether Feinstein recognized it or not, we had already reached that crisis point, and John Brennan simply figured he had prepared adequately to face and win that crisis.
Which is why I disagree with the assessment of Feinstein’s available options as laid out by Shane Harris and John Hudson in FP.
If she chooses to play hardball, Feinstein can make the tenure of CIA Director John Brennan a living nightmare. From her perch on the intelligence committee, she could drag top spies before the panel for months on end. She could place holds on White House nominees to key agency positions. She could launch a broader investigation into the CIA’s relations with Congress and she could hit the agency where it really hurts: its pocketbook. One of the senator’s other committee assignments is the Senate Appropriations Committee, which allocates funds to Langley.
Take these suggestions one by one: Feinstein can only “drag top spies” before Congress if she is able to wield subpoena power. Not only won’t her counterpart, Saxby Chambliss (who generally sides with the CIA in this dispute) go along with that, but recent legal battles have largely gutted Congress’ subpoena power.
Feinstein can place a hold on CIA-related nominees. There’s even one before the Senate right now, CIA General Counsel nominee Caroline Krass, though Feinstein’s own committee just voted Krass out of Committee, where Feinstein could have wielded her power as Chair to bottle Krass up. In the Senate, given the new filibuster rules, Feinstein would have to get a lot of cooperation from her Democratic colleagues to impose any hold if ever she lost Senate Majority Leader Harry Reid’s support (though she seems to have that so far).
But with Krass, what’s the point? So long as Krass remains unconfirmed, Robert Eatinger — the guy who ratcheted up this fight in the first place by referring Feinstein’s staffers for criminal investigation — will remain Acting General Counsel. So in fact, Feinstein has real reason to rush the one active CIA nomination through, if only to diminish Eatinger’s relative power.
Feinstein could launch a broader investigation into the CIA’s relations with Congress. But that would again require either subpoenas (and the willingness of DOJ to enforce them, which is not at all clear she’d have) or cooperation.
Or Feinstein could cut CIA’s funding. But on Appropriations, she’ll need Barb Mikulski’s cooperation, and Mikulski has been one of the more lukewarm Democrats on this issue. (And all that’s assuming you’re only targeting CIA; as soon as you target Mikulski’s constituent agency, NSA, Maryland’s Senator would likely ditch Feinstein in a second.)
Then FP turns to DOJ’s potential role in this dispute.
The Justice Department is reportedly looking into whether the CIA inappropriately monitored congressional staff, as well as whether those staff inappropriately accessed documents that lay behind a firewall that segregated classified information that the CIA hadn’t yet cleared for release. And according to reports, the FBI has opened an investigation into committee staff who removed classified documents from the CIA facility and brought them back to the committee’s offices on Capitol Hill.
Even ignoring all the petty cover-ups DOJ engages in for intelligence agencies on a routine basis (DEA at least as much as CIA), DOJ has twice done CIA’s bidding on major scale on the torture issue in recent years. First when John Durham declined to prosecute both the torturers and Jose Rodriguez for destroying evidence of torture. And then when Pat Fitzgerald delivered John Kiriakou’s head on a platter for CIA because Kiriakou and the Gitmo detainee lawyers attempted to learn the identities of those who tortured.
There’s no reason to believe this DOJ will depart from its recent solicitous ways in covering up torture. Jim Comey admittedly might conduct an honest investigation, but he’s no longer a US Attorney and he needs someone at DOJ to actually prosecute anyone, especially if that person is a public official.
Implicitly, Feinstein and her colleagues could channel Mike Gravel and read the 6,000 page report into the Senate record. But one of CIA’s goals is to ensure that if the Report ever does come out, it has no claim to objectivity. Especially if the Democrats release the Report without the consent of Susan Collins, it will be child’s play for Brennan to spin the Report as one more version of what happened, no more valid than Jose Rodriguez’ version.
And all this assumes Democrats retain control of the Senate. That’s an uphill battle in any case. But CIA has many ways to influence events. Even assuming CIA would never encourage false flags attacks or leak compromising information about Democrats, the Agency can ratchet up the fear mongering and call Democrats weak on security. That always works and it ought to be worth a Senate seat or three.
If Democrats lose the Senate, you can be sure that newly ascendant Senate Intelligence Chair Richard Burr would be all too happy to bury the Torture Report, just for starters. Earlier today, after all, he scolded Feinstein for airing this fight.
“I personally don’t believe that anything that goes on in the intelligence committee should ever be discussed publicly,”
Burr’s a guy who has joked about waterboarding in the past. Burying the Torture Report would be just the start of things, I fear.
And then, finally, there’s the President, whose spokesperson affirmed the President’s support for his CIA Director and who doesn’t need any Democrats help to win another election. As Brennan said earlier today, Obama “is the one who can ask me to stay or to go.” And I suspect Brennan has confidence that Obama won’t do that.
Which brings me to my comment above, on AJE, that Brennan knows where the literal bodies are buried.
I meant that very, very literally.
Not only does Brennan know firsthand that JSOC attempted to kill Anwar al-Awlaki on December 24, 2009, solely on the President’s authority, before the FBI considered him to be operational. But he also knows that the evidence against Awlaki was far dodgier than it should have been before the President authorized the unilateral execution of an American citizen.
Worse still, Feinstein not only okayed that killing, either before or just as it happened. But even the SSCI dissidents Ron Wyden, Mark Udall, and Martin Heinrich declared the Awlaki killing “a legitimate use of the authority granted the President” in November.
I do think there are ways the (Legislative) Democrats might win this fight. But they’re not well situated in the least, even assuming they’re willing and able to match Brennan’s bureaucratic maneuvering.
Again, I don’t blame Feinstein for precipitating this fight. We were all already in it, and she has only now come around to it.
I just hope she and her colleagues realize how well prepared Brennan is to fight it in time to wage an adequate battle.
In accepting the Sam Adams prize, Chelsea Manning raised the ACLU/NYT lawsuits for the OLC memo authorizing the killing of Anwar al-Awlaki. (h/t Kevin Gosztola)
In doing so, she borrows an argument about separation of power and secrecy Judge Colleen McMahon made in her opinion on the FOIA.
As they gathered to draft a Constitution for their newly liberated country, the Founders – fresh from a war of independence from the rule of a King they styled a tyrant- were fearful of concentrating power in the hands of any single person or institution, and most particularly in the executive. That concern was described by James Madison in Federalist No. 47 (1788):
The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny ….
The magistrate in whom the whole executive power resides cannot of himself … administer justice in person, though he has the appointment of those who do administer it.
The Framers — who were themselves susceptible to being hanged as traitors by the King of England during the Revolutionary War — were as leery of accusations of treason as they were of concentrating power in the hands of a single person or institution. As a result, the Constitution accords special protections to those accused of the most heinous of capital crimes; Article 3, Sec. 3 sets the procedural safeguard that, “No Person shall be convicted of treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”
Interestingly, the Treason Clause appears in the Article of the Constitution concerning the Judiciary — not in Article 2, which defines the powers of the Executive Branch. This suggests that the Founders contemplated that traitors would be dealt with by the courts of law, not by unilateral action of the Executive. As no less a constitutional authority than Justice Antonin Scalia noted, in his dissenting opinion in Hamdi, 542 U.S. at 554, “Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime.”
The founders of America – fresh from a war of independence from King George lll – were particularly fearful of concentrating power. James Madison wrote that “the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”(1)
When drafting Article III of the American Constitution, the founders were rather leery of accusations of treason, and accorded special protections for those accused of such a capital offense, providing that “[n]o person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”
For those of you familiar with the American Constitution, you may notice that this provision is under the Article concerning the Judiciary, Article III, and not the Legislative or Executive Articles, I and II respectively. And, historically, when the American government accuses an American of such crimes, it has prosecuted them in a federal criminal court.
After having repeated McMahon’s lesson on the checks our Founders gave Article III courts over the President, Manning described how frustrated McMahon was in not being able to release the OLC memo to ACLU and NYT.
In a recent Freedom of Information Act case(2) – a seemingly Orwellian “newspeak” name for a statute that actually exempts categories of documents from release to the public – a federal district court judge ruled against the New York Times and the American Civil Liberties Union. The Times and the ACLU argued that documents regarding the practice of “targeted killing” of American citizens, such as the radical Sunni cleric Anwar Nasser al-Aulaqi were in the public’s interest and were being withheld improperly.
The government first refused to acknowledge the existence of the documents, but later argued that their release could harm national security and were therefore exempt from disclosure. The court, however, felt constrained by the law and “conclud[ed] that the Government [had] not violated the FOIA by refusing to turn over the documents sought in the FOIA requests, and [could not] be compelled . . . to explain in detail the reasons why [the Government's] actions do not violate the Constitution and laws of the United States.”
However, the judge also wrote candidly about her frustration with her sense that the request “implicate[d] serious issues about the limits on the power of the Executive Branch under the Constitution and laws of the United States,” and that the Presidential “Administration ha[d] engaged in public discussion of the legality of targeted killing, even of [American] citizens, but in cryptic and imprecise ways.” In other words, it wasn’t that she didn’t think that the public didn’t have a right to know – it was that she didn’t feel that she had the “legal” authority to compel disclosure.
Against that background, Manning notes that she was charged with treasonable offense, and wonders whether under the Awlaki precedent she could have been drone killed, just like Awlaki.
I was accused by the Executive branch, and particularly the Department of Defense, of aiding the enemy – a treasonable offense covered under Article III of the Constitution.
Granted, I received due process. I received charges, was arraigned before a military judge for trial, and eventually acquitted. But, the al-Aulaqi case raises a fundamental question: did the American government, and particularly the same President and Department, have the power to unilaterally determine my guilt of such an offense, and execute me at the will of the pilot of an Unmanned Aerial Vehicle?
She then compares (I think, though the timing on this is perhaps understandably murky) the release of both the OLC memo and follow-up speeches — and its revelation of the powers claimed by the President — with her own releases.
Until documents held by the U.S. Department of Justice’s Office of Legal Counsel were released after significant political pressure in mid-2013, I could not tell you. And, very likely, I do not believe I could speak intelligently of the Administration’s policy on “targeted killing” today either.
There is a problem with this level of secrecy, obfuscation, and classification or protective marking, in that they supposedly protect citizens of their nation; yet, it also breeds a unilateralism that the founders feared, and deliberately tried to prevent when drafting the American Constitution. Now, we have a “disposition matrix,” classified military commissions, and foreign intelligence and surveillance courts – modern Star Chamber equivalents.
I am now accepting this award, through my friend, former school peer, and former small business partner, Aaron, for the release of a video and documents that “sparked a worldwide dialogue about the importance of government accountability for human rights abuses,” it is becoming increasingly clear to me that the dangers of withholding documents, legal interpretations, and court jurisprudence from the public that pertain to the right to “life, liberty, and property” of a state’s citizens is as fundamental and important to protecting against such human rights abuses.
Of course, we still don’t know what happened to Anwar al-Awlaki; the White Paper leaves many of the key details obscure. Even as the government prepares to execute another of its citizens.
But in comparing her own releases with the government’s refusal to reveal precisely how they decided to execute an American with no due process, Manning points to where this has already gone.
And she makes a compelling case that the government’s claims of secrecy cannot be trusted.
Kimberly Dozier reports — based primarily on 4 US Officials (AKA members of Congress or their staffers) and one Senior Administration Official probably located near DOJ — that the Obama Administration is trying to decide whether to drone kill another American citizen with no due process again.
She obviously got the story because Mike Rogers wants to suggest Obama’s increased caution of late, including his decision to shift drones from CIA to DOD control — has impeded this opportunity to off an American with no due process.
And many people discussing the story suggest this case follows the example of Anwar al-Awlaki.
But it appears not to, in at least one very important respect.
According to Dozier’s description, this person is not targeting Americans in the US; he is targeting Americans overseas (given her descriptions, I’m guessing he’s targeting Americans in Afghanistan from Pakistan, though it’s possible he’s in North Africa).
An American citizen who is a member of al-Qaida is actively planning attacks against Americans overseas, U.S. officials say, and the Obama administration is wrestling with whether to kill him with a drone strike and how to do so legally under its new stricter targeting policy issued last year.
Four U.S. officials said the American suspected terrorist is in a country that refuses U.S. military action on its soil and that has proved unable to go after him. And President Barack Obama’s new policy says American suspected terrorists overseas can only be killed by the military, not the CIA, creating a policy conundrum for the White House.
Two of the officials described the man as an al-Qaida facilitator who has been directly responsible for deadly attacks against U.S. citizens overseas and who continues to plan attacks against them that would use improvised explosive devices.
But one U.S. official said the Defense Department was divided over whether the man is dangerous enough to merit the potential domestic fallout of killing an American without charging him with a crime or trying him, and the potential international fallout of such an operation in a country that has been resistant to U.S. action.
Another of the U.S. officials said the Pentagon did ultimately decide to recommend lethal action.
The officials said the suspected terrorist is well-guarded and in a fairly remote location, so any unilateral attempt by U.S. troops to capture him would be risky and even more politically explosive than a U.S. missile strike.
Say what you will about the quality of the evidence against Awlaki, they government at least claimed he was behind the UndieBomb and Toner Cartridge attacks, both targeted at American civilians in the US.
Even in the case of Kamal Derwish (whom we killed in 2002 under our prior “sitting next to a baddie” standard), we believed he was training people domestically.
By all appearances, this person is targeting US service members. And if they’re anywhere but Afghanistan (though I suspect they are in Afghanistan, especially given the reference to IEDs), they’re operating with a somewhat dubious claim to legally approved military actions.
No US citizen has the right to join the other side in a war, which (if this is Afghanistan/Pakistan) seems to be what has happened. But using a drone to target an American operating in a sovereign country we pretend not to be at war with because he is targeting military targets is a different legal case than the one against Awlaki.
Sure, Awlaki started us down a slippery slope. But we appear to have slid further down that slope.