Bob Goodlatte

The RNC and the Dead-Enders

If you’ve spent much time in political party conventions, you likely know that the resolution process largely serves as an opportunity for active members to vent. While party resolutions might represent where the ideological base of the party is, nothing prevents the elected leaders of the party to blow off resolutions (though at times resolutions are deemed toxic enough for leaders to undermine by parliamentary stunts).

Which is why I find the response to the RNC’s resolution renouncing the NSA’s “Surveillance Prorgam” (it mentions PRISM and, implicitly, the phone dragnet) so interesting.

There are responses like this, from Kevin Drum, who spins it as pure politics.

I get that politics is politics, and the grass always looks browner when the other party occupies the Oval Office. And there are plenty of liberals who are less outraged by this program today than they were back when George Bush and Dick Cheney were in charge of it.

But holy cow! The RNC! Officially condemning a national security program that was designedby Republicans to fight terrorism!

Benjy Sarlin, in the account Drum linked, got the politics more clear, reading this, in part, as the influence of libertarians who largely gained ascendance as part of a backlash against Bush policies or at least failures.

But the resolution also is a sign of the increasing influence of the libertarian wing of the party, especially supporters of Ron Paul and his son, Rand Paul, who have made government overreach in pursuit of terrorists a top issue. Both Orrock and fellow Nevada Committeeman James Smack, who presented the resolution on her behalf, supported the elder Paul’s presidential campaign.

But I also think there’s more to it.

There is certainly a great deal of opportunism here (note, Democrats’ utter disdain for tech companies’ concerns about the dragnet make this a monetary, as well as political opportunity for the GOP, one already bearing fruit). And while the GOP establishment is still cautiously trying to regain control over the Tea Party forces that it once encouraged, there has also been a slow change in traditional conservatives’ stance, too, which I measure through Amash-Conyers opponent Bob Goodlatte’s changing position.

Goodlatte has issued three statements in recent weeks (January 9, January 17, and January 23) calling for reform (including more civil liberties protections and attention to tech companies’ concerns) and more transparency. In the most interesting of the statements, Goodlatte suggested that if Obama wanted to keep the dragnet he’d have to explain what purpose it was really serving and then argue that that purpose

Over the course of the past several months, I have urged President Obama to bring more transparency to the National Security Agency’s intelligence-gathering programs in order to regain the trust of the American people. In particular, if the President believes we need a bulk collection program of telephone data, then he needs to break his silence and clearly explain to the American people why it is needed for our national security. The President has unique information about the merits of these programs and the extent of their usefulness. This information is critical to informing Congress on how far to go in reforming the programs. Americans’ civil liberties are at stake in this debate. [my emphasis]

As I’ve been pointing out for some time, no dragnet defenders have yet to explain what purpose it really serves, and I’m struck that Goodlatte seems to suggest the same. Note, too, that Goodlatte was among the 6 Representatives who attended Bruce Schneier’s briefing on what NSA was really doing, along with leading GOP dragnet opponents Jim Sensenbrenner and Justin Amash and 3 Democrats.

I would suggest to Democrats who see this resolution exclusively as an overly cynical attack on Obama there may, in fact, be things that could explain why Republicans specifically or reasonable Americans more generally might have good reason to oppose the dragnet.

Now back to the resolution. As Sarlin notes, “Not a single member rose to object or call for further debate, as occurred for other resolutions.” (I like to think that had Michigan’s retrograde Dave Agema been able to participate rather than fending off calls for his resignation, he might have spoken up for authoritarianism.)

Instead of opposition from the Republican Party then, came first this quote to Sarlin,

“I think it probably does reflect the views of many of the people who really want to turn out the vote and who are viewing the world through the prism of the next election,” Stewart Baker, a former Bush-era Homeland Security official, told msnbc in an email. “It’s a widespread view among Republicans, but I think the ones that know this institution best and for whom national security is a high priority don’t share this view.”

Then what Eli Lake reports as a letter (Lake doesn’t say to whom) from just one elected official — KS Representative and House Intelligence Committee member Mike Pompeo — and 7 Bush officials (including Baker) blasting the resolution. Part of the letter, apparently, serves to waggle National Security seniority, as Baker already had.

Their letter says: “The Republican National Committee plays a vital role in political campaigns, but it has relatively little expertise in national security.”

And part of it serves to correct a technical inaccuracy that may not be one.

In particular the letter takes issue with the resolution’s claim that the NSA’s PRISM program “monitors searching habits of virtually every American on the internet.”

“In fact, there is no program that monitors the searches of all Americans,” the letter says. “And what has become known as the PRISM program is not aimed at collecting the communications of Americans. It is targeted at the international communications of foreign persons located outside the United States and is precisely the type of foreign-targeted surveillance that Congress approved in 2008 and 2012 when it enacted and reauthorized amendments to the Foreign Intelligence Surveillance Act.”

At issue is the language of the resolution, which starts by discussing PRISM, but then talks about what is clearly the phone (though it would encompass the Internet) dragnet, but then explicitly returns to both, by name of the authority that govern them.

WHEREAS, the secret surveillance program called PRISM targets, among other things, the surveillance of U.S. citizens on a vast scale and monitors searching habits of virtually every American on the internet;

WHEREAS, this dragnet program is, as far as we know, the largest surveillance effort ever launched by a democratic government against its own citizens, consisting of the mass acquisition of Americans’ call details encompassing all wireless and landline subscribers of the country’s three largest phone companies.

[snip]

RESOLVED, the Republican National Committee encourages Republican lawmakers to enact legislation to amend Section 215 of the USA Patriot Act, the state secrets privilege, and the FISA Amendments Act to make it clear that blanket surveillance of the Internet activity, phone records and correspondence — electronic, physical, and otherwise — of any person residing in the U.S. is prohibited by law and that violations can be reviewed in adversarial proceedings before a public court;

RESOLVED, the Republican National Committee encourages Republican lawmakers to call for a special committee to investigate, report, and reveal to the public the extent of this domestic spying and the committee should create specific recommendations for legal and regulatory reform ot end unconstitutional surveillance as well as hold accountable those public officials who are found to be responsible for this unconstitutional surveillance; [my emphasis]

7 Bush officials and 1 HPSCI member (but not, oddly enough, the always boisterous Mike Rogers) have weighed in to say that the NSA doesn’t monitor the searches of some Americans and then trots out the tired “targeted at foreign persons” line, without addressing the question of blanket surveillance of communications more generally.

Sarlin, in his piece, similarly retreats to “targeting” claptrap, claiming only that “lawmakers have accused the agency of overreaching.”

Somehow both the Bush dead-enders and Sarlin neglect to mention backdoor searches, which allow the NSA to use metadata collected under a range of dragnets to obtain US content without even Reasonable Articulable Suspicion.

And while it’s not all that surprising that Sarlin chose not to discuss how NSA can get domestic content, as I will show in a follow-up post the collection of dead-enders (Lake fleshed out the list here) who weighed in to deny that the NSA dragnet gets US person content is particularly instructive, as I’ll show in a follow-up post.

The Schneier Briefing: Some Observations

6 Congresspersons and a security researcher walk into an unsecure room. … And that’s the best briefing they can get on some of the things NSA might be doing.

This morning I spent an hour in a closed room with six Members of Congress: Rep. Logfren, Rep. Sensenbrenner, Rep. [Bobby] Scott, Rep. Goodlate, Rep [Mike] Thompson, and Rep. Amash. No staffers, no public: just them. Lofgren asked me to brief her and a few Representatives on the NSA. She said that the NSA wasn’t forthcoming about their activities, and they wanted me — as someone with access to the Snowden documents — to explain to them what the NSA was doing. Of course I’m not going to give details on the meeting, except to say that it was candid and interesting. And that it’s extremely freaky that Congress has such a difficult time getting information out of the NSA that they have to ask me. I really want oversight to work better in this country.

I’m as intrigued by the make-up of the group as I am by the fact they needed to do this.

Schneier makes it clear that Lofgren — who is not only a strong supporter of civil liberties, but also happens to represent Silicon Valley — set up the briefing. In addition to her House Judiciary Committee colleagues Sensenbrenner, Scott, and Goodlatte, she invited Amash (who’s not on the Committee but a loud defender of civil liberties — thanks, my Rep!), and N and E Bay Area Republican Democratic colleague Mike Thompson, who’s not a member of the Committee either, but is a member of the Intelligence Committee.

As I’ve noted, Goodlatte is not a named sponsor of USA Freedom; neither is Thompson (though Schneier describes them as all people who want to “rein in the NSA”).

And yet these are the individuals whom Lofgren chose to bring to this briefing.

Schneier, of course, is not focused on the actual spying that NSA is doing, but on the corruption of encryption, a threat to the business model of Lofgren’s district. [See Saul's well-take correction here.]

Also note, while I’ve got real worries about some opponents to reining in the NSA in the Senate, I do think people are not considering the significance of the House Judiciary Chair, who voted against Amash-Conyers, increasingly complaining about the NSA.

I’m not sure what the best way to stop the NSA from making us all less safe (especially since NSA has apparently not even told HPSCI members what they’re doing). But I gather than Lofgren is trying to figure out a way to do so.

After Meeting with Obama, Bob Goodlatte Calls for Reform of Phone Dragnet

Bob Goodlatte, the Chair of the House Judiciary Committee, voted against the Amash-Conyers Amendment that would have defunded the phone dragnet. Nor is he a named cosponsor of the USA Freedom Act, the Leahy-Sensenbrenner bill that would reform the dragnet.

Which is why it is particularly notable that he’s the one member of Congress cited by name in a story reporting on skepticism that Obama will actually reform the NSA.

President Obama met with hand-picked lawmakers at the White House on Thursday to discuss the National Security Agency’s controversial spying programs, the main event of a week full of meetings at the White House focusing on potential reforms for the maligned federal agency.

[snip]

At least some of the lawmakers left the meeting unconvinced that the president is going to do enough to curtail the NSA’s activities. House Judiciary Committee Chairman Bob Goodlatte, R-Va., said “it’s increasingly clear that we need to take legislative action to reform” the NSA’s intelligence gathering.

“If the president believes we need a bulk collection program of telephone data, then he needs to break his silence and clearly explain to the American people why it is needed for our national security,” Goodlatte said in a statement. “Americans’ civil liberties are at stake in this debate.”

If the President has not yet been able to convince Goodlatte the phone dragnet is necessary, if Goodlatte walks out of meeting with the President calling to legislatively roll back the phone dragnet, it might just have a shot at passing.

Update: Here’s Goodlatte’s full statement.

Over the course of the past several months, I have urged President Obama to bring more transparency to the National Security Agency’s intelligence-gathering programs in order to regain the trust of the American people. In particular, if the President believes we need a bulk collection program of telephone data, then he needs to break his silence and clearly explain to the American people why it is needed for our national security. The President has unique information about the merits of these programs and the extent of their usefulness. This information is critical to informing Congress on how far to go in reforming the programs. Americans’ civil liberties are at stake in this debate.

With each new revelation of the scope of these programs, it’s increasingly clear that we need to take legislative action to reform some of our nation’s intelligence-gathering programs to ensure that they adequately protect Americans’ civil liberties and operate in a sensible manner. We also need to ensure the laws are clear so that the U.S. tech industry is not disadvantaged vis-à-vis their foreign competitors. The House Judiciary Committee, which has primary jurisdiction over the legal framework of these programs, has conducted aggressive oversight on this issue and will be instrumental to reforming the Foreign Intelligence Surveillance Act. I am committed to working with members of Congress and Senators from both political parties, House leaders, and President Obama to ensure our nation’s intelligence collection programs include real protections for Americans’ civil liberties, robust oversight, and additional transparency. [my emphasis]

 

Wyden: We Proved that “Unique” and “Vital” Information Wasn’t in 2011

I should have some analysis on the documents James Clapper released yesterday.

But it’s worth pointing to Ron Wyden’s analysis. He notes that the two documents on bulk collection programs — one from 2009 and one from 2011, both of which covered the Internet and phone metadata programs – both boasted of how unique and valuable the information was.

The briefing documents that were provided to Congress in December 2009 and February 2011 clearly stated that both the bulk email records and bulk phone records collection programs were “unique in that they can produce intelligence not otherwise available to NSA.” The 2009 briefing document went on to state that the two programs “provide a vital capability to the Intelligence Community,” and the 2011 briefing document stated that they provided “an important capability.”

The problem is, by the end of 2011, Wyden and Mark Udall had been able to prove that the Intelligence Community had oversold the value of the Internet metadata program, which led to its termination.

Senator Mark Udall and I have long been concerned about the impact of bulk collection on Americans’ privacy and civil liberties, and we spent a significant portion of 2011 pressing the Intelligence Community to provide evidence to support the claims that they had made about the bulk email records program. They were unable to do so, and the program was shut down due to a lack of operational value, as senior intelligence officials have now publicly confirmed.

This experience demonstrated that intelligence agencies’ assessments of the usefulness of particular collection programs – even significant ones – are not always accurate.

So while the government thought these documents would prove how controlled these programs are (aspects of them don’t), Wyden demonstrates that they show the IC lies about the usefulness of programs when they talk to Congress about them.

Which is, Patrick Leahy suggested in yesterday’s hearing, what the IC appears to be doing when invoking 54 plots to justify the 215 phone dragnet, which has only been tied to 12 plots.

Which is an interesting dynamic to proceed today’s meeting between Obama, Wyden, Udall, Dianne Feinstein, Saxby Chambliss, Bob Goodlatte, James Sensenbrenner, Dutch Ruppersberger, and Mike Rogers.

The presence of Sensenbrenner is key: to the extent they still exist, he’s a mainstream Republican. And he’s furious about the 215 program that he himself shepherded through Congress in 2006. So I would assume today’s meeting is an effort to develop the White House’s plan to phase out the dragnet.

All that said, Obama has clearly gamed the results, by inviting more of the surveillance champions than he did critics (and apparently House Democrats don’t count anymore).

Obama probably won’t see this through his bubble, but the day before this meeting Wyden demonstrated that the basis for the rosy tales DiFi and the other Gang of Four members are telling are claims from the IC that have since been discredited.

Journalists: Eric Holder Believes You’re Probably a Criminal But Won’t Charge You

As I noted the other day, Eric Holder seems intent on calling journalists whom he believes are co-conspirators in a criminal leak something else.

Which is why I think this detail, from Politico’s leaks-about-a-meeting-about-leaks story, is the most telling I’ve seen on the Holder meeting.

“The guidelines require a balance between law enforcement and freedom of the press, and we all argued that the balance was out of kilter, with the national security and law enforcement interests basically overwhelming the public’s right to get information,” one journalist at the meeting said. “The language concerning ‘aiding and abetting’ comes out of the Privacy [Protection] Act, and they discussed trying to revise that language so that reporters don’t need to be defined as co-conspirators in order to execute search warrants.”

This is a reference to part of the Privacy Act that prohibits the government from seizing media work product unless it is connected to a crime (see pages 5 ff for how it affected the James Rosen warrant application). After claiming Rosen was aiding and abetting a violation of the Espionage Act and therefore his emails could be seized, the FBI then said that since he was potentially criminally liable, he should not get notice. In other words, the aiding abetting was an investigative tactic DOJ used to get around protections put into place just for someone like Rosen.

And DOJ’s solution for abusing a protection meant to protect someone like Rosen is apparently to simply redefine the law, so it can overcome those protections without having to accuse Rosen of being a criminal.

The outcome would remain the same; DOJ would just avoid saying mean things about people associated with powerful media outlets.

But the letter Principal Assistant Deputy Attorney General Peter Kadzik sent to answer Bob Goodlatte and Jim Sensenbrenner’s questions about Eric Holder’s testimony about whether he ever prosecuted a journalist makes it clear he thinks James Rosen probably is a criminal, regardless of what he calls it.

When the Department has initiated a criminal investigation into the unauthorized disclosure of classified information, the Department must, as it does in all criminal investigations, conduct a thorough investigation and follow the facts where they lead. Seeking a search warrant is part of an investigation of potential criminal activity, which typically comes before any final decision about prosecution. Probable cause sufficient to justify a search warrant is different from a decision to bring charges for that crime; probable cause is a significantly lower burden of proof than beyond a reasonable doubt, which is required to obtain a conviction on criminal charges.

Note the slippage here: Kadzik says the standard for a probable cause warrant is different than the standard for charging, then says a probable cause warrant is different from the standard for convicting.

What Kadzik is implicitly suggesting is that while DOJ might think Rosen was a criminal co-conspirator, they’d never win their case against him. So they never considered charging him.

I joked some weeks ago that journalists should take solace in all this: Obviously, Eric Holder holds them in precisely the same category as banksters, those who are guilty of a crime but that DOJ chooses not to charge with one.

This letter seems to support this.

Obama’s Headlong Rush to Counterterrorism Transparency

By my count, Thursday will be the 100th day since Obama promised, in his State of the Union Adress delivered February 12, “to engage Congress to ensure not only that our targeting, detention and prosecution of terrorists remains consistent with our laws and system of checks and balances, but that our efforts are even more transparent to the American people and to the world.”

Back then there were, officially at least, just a handful of Gitmo detainees on hunger strike. And it’s possible — if DOJ used the two 45-day gags on subpoenas they permit themselves — a subpoena seizing the phone records for 21 AP phone lines had already been issued.

After Obama promised more transparency on drones and other counterterrorism programs, Members of Congress continued to have to demand minimal transparency. On February 20, Rand Paul sent his third request for that information. On February 27, House Judiciary Chairman Bob Goodlatte repeated that Committee’s request to see OLC’s drone targeting memos; he also expressed anger that the Administration had refused to send a witness to the hearing.

On March 7, Eric Holder hinted that we would “will hear from the President in a relatively short period of time” on drones and transparency and counterterrorism.  On March 8, guards at Gitmo shot non-lethal bullets at detainees. The following day US conducted a drone strike in Pakistan, one of two strikes that month.

On March 11, Progressive Members of Congress sent a letter asking for information on drone targeting.

On April 9, McClatchy reported that most drone strikes had hit low level militants, contrary to public claims; it also revealed the intelligence reports themselves were false.

On April 10, the House Judiciary Committee finally threatened to subpoena the OLC memos authorizing the killing of an American citizen; that was at least the 23rd request for such information from Congress. A week later the Committee would finally get a promise to see just those memos, memos squarely within the Committee’s oversight jurisdiction.

On April 13, the military locked down Gitmo, effectively depriving most detainees of the human company they had enjoyed for years. On that day, 43 men were hunger striking.

On April 14, Samir Haji al Hasan Moqbel described, in a NYT op-ed, “I’ve been on a hunger strike since Feb. 10 and have lost well over 30 pounds. I will not eat until they restore my dignity.” That same day, the US launched one of two drone strikes in Pakistan that month.

On April 15, the Tsarnaev brothers attacked the Boston Marathon, reportedly in retaliation for treatment of Muslims in Afghanistan and Iraq.

April 17, a US drone struck the Yemeni village of a Yemeni, Farea al-Muslimi, already scheduled to testify before the Senate Judiciary Committee about how drones turn Yemenis against the US.

On April 21, the number of hunger strikes at Gitmo reached 84 — over half the men there. Six days later, on April 27, that number reached 100. Three more men have since joined the hunger strike.

As those numbers were growing, on April 25, Dianne Feinstein called on Obama to transfer those detainees who have been cleared. On April 30, Obama renewed his promise to close Gitmo. The next day, the White House made clear that the moratorium preventing almost half the detainees, men who have been cleared for transfer, to return home to Yemen, remained in place.

On May 10, the AP learned that DOJ had seized phone records from 21 phone lines with no notice, potentially exposing the sources of up to 100 journalists.

On May 16, in a hearing querying whether Congress should eliminate or expand the September 18, 2001 Authorization to Use Military Force, Assistant Defense Secretary Michael Sheehan testified the war on terror would last at least 10-20 more years. He also said DOD won’t be taking over CIA’s side of the drone war anytime soon.

Saturday, a drone strike killed at least 4 thus far unidentified men in Yemen.

Which brings us to Thursday when, the WaPo details, Obama will give a speech telling us once again the drone strikes are legal, his desire to close Gitmo is real, and leaks his new CIA Director exacerbated are serious. He will, apparently, also tell us how he plans to make his counterterrorism plan look more like what he promised it would look like 4 years ago.

President Obama will deliver a speech Thursday at the National Defense University in which he will address how he intends to bring his counterterrorism policies, including the drone program and the military prison at Guantanamo Bay, Cuba, in line with the legal framework he promised after taking office.

In the interim between when he promised this transparency and when he’ll start to sort of deliver it (but not, apparently, any actions to close Gitmo), about 7% of his second term will have passed.

Some of the delay, apparently, comes from the need to address the issues that have been festering during the delay.

Obama was prepared to deliver the speech earlier this month, but it was put off amid mounting concerns over a prisoner hunger strike at Guantanamo Bay and more recently the Justice Department leaks investigation — both of which the revised speech may address.

But otherwise, it appears it has taken 100 days to be able to craft a speech good enough to make his paranoia about secrecy and lip service to human rights in counterterrorism look like something else.

Ah well, at least they’ve sharply curtailed drone strikes while they’ve been writing a speech.

House Judiciary Makes (Partial) Progress on Drones, But Not the Senate

Just as the House Judiciary Committee was about to vote to subpoena OLC’s targeted killing memos, DOJ finally agreed to share them with the committee tasked with overseeing OLC.

Just before the hearing, however, DOJ agreed to provide the documents. Goodlatte, the chairman, announced he would postpone the meeting to authorize the subpoena and cancel it once arrangements are made for viewing the documents.

“It’s unfortunate that it took a subpoena notice for the Department to cooperate with the House Judiciary Committee,” Goodlatte said. “The House Judiciary Committee is charged with oversight over the Justice Department and U.S. Constitution and it is imperative that we explore the issues raised by the Administration’s policy.”

Though, from the context, it sounds like DOJ agreed to hand over only the memos authorizing Anwar al-Awlaki’s killing. I’m checking on this, but if this is the case, it’s the partial cave I’ve been expecting from DOJ for some time.

The Administration really doesn’t want to share its signature strike memos.

But that’s just memos. The Administration still refuses — as it did earlier when the House Judiciary Committee held a hearing on drone killing — to send a live body to talk about its killing program.

“We do not currently plan to send a witness to this hearing and have remained in close contact with the committee about how we can best provide them the information they require,” Caitlin Hayden, a National Security Council spokeswoman, wrote in an email to McClatchy.

She added that the White House would continue working with lawmakers “to ensure not only that our targeting, detention and prosecution of terrorists remains consistent with our laws and system of checks and balances, but that our efforts are even more transparent to the American people and the world.”

Hayden declined to say why the administration doesn’t plan to provide a witness for the hearing.

Add this to John Brennan’s refusal to answer Jan Schakowsky’s questions about drones last week, and the Administration really just refuses any oversight on this issue.

But really, they promise they’re being transparent.

Update: I was correct. House Judiciary Committee will only get what the Senate Judiciary Committee got, which is understood to be the Awlaki memos.

After Over 23 Requests, Congress Draws Closer to Issuing Subpoenas

As I’ve been tracking, members of Congress have made over 23 requests for the OLC memos authorizing drone and/or targeted killing. Thus far, only the Intelligence Committees and the Senate — but not the House — Judiciary Committees have been able to see the memos, and they’ve not seen much more than the memo authorizing Anwar al-Awlaki’s killing.

Tomorrow, the House Judiciary Committee may finally get around to demanding the memos — not just the Awlaki memos, but also any memos authorizing signature strikes.

On Monday, Chairman Bob Goodlatte (R-Va.) announced the meeting to authorize the subpoena after the administration failed to meet a deadline he and the panel’s ranking member John Conyers (D-Mich.) issued last week asking for a plan to share the confidential documents.
[snip]

“There is no good reason that the committee’s bipartisan request should go unanswered. The administration’s policy raises serious questions about the role of due process during wartime when the enemy may be a U.S. citizen and the committee must explore these issues and ensure Americans’ constitutional rights are protected at all times,” he added

I’m actually somewhat surprised by this. I had thought the Administration would make a deal to show HJC only the Awlaki memos, as a way to continue to hide the signature strike memos (and Goodlatte’s language suggests that’s what he is primarily interested in; the Democrats are the ones demanding the signature strike memos).

But then, the Administration has pretty consistently surprised me with its stubbornness on these memos.

Just as a reminder, on Friday National Security Council spokesperson Caitlin Hayden claimed the Administration had,

A commitment to congressional oversight. We regularly provide the appropriate members of Congress and the committees who have oversight of our counterterrorism programs with briefings about our drone operations. We have also provided certain Members unprecedented access to highly classified and deliberative legal opinions explaining the legal rationale for certain strikes, including drone strikes that might target U.S. persons.

It’s hard to draw any conclusion except that the Administration believes that oversight of constitutional issues — such as HJC (and SJC) exercise — has nothing to do with oversight of counterterrorism issues.

After Continued Blow-Off, House Judiciary Requests Awlaki AND Signature Strike Memos

The other day, when I reported that the Senate Judiciary Committee would get to glimpse the Office of Legal Counsel memos authorizing the killing of Anwar al-Awlaki, I noted that the House Judiciary Committee was not included in that reporting.

Also no word on whether the House Judiciary Committee will laso get to glimpse these memos.

I guess they noted the same.

Dear President Obama,

We write to renew our request from February 8th that members of the House Judiciary Committee be granted the opportunity to review all Justice Department legal opinions related to the use of lethal force in both targeted and so-called “signature strikes” against unidentified terrorist suspects.

Members of the House and Senate Intelligence Committees have been provided an opportunity to review at least some of these opinions. Today, members of the Senate Judiciary Committee were also given access to some, but not all, of the documents that we have requested. There is no reason why a similar bipartisan request from the House Judiciary Committee continues to go unanswered. If arrangements for our review of these materials are not finalized by COB tomorrow (Thursday, April 11, 2013), the Committee will have no choice but to move forward with issuance of subpoenas for the documents.

What’s particularly amusing about this response to the White House’s continued refusal to permit HJC to oversee DOJ is the scope of HJC’s request: Since last December, they’ve been asking for the broader backup, including the memos authorizing signature strikes explicitly. As a result, the Administration’s refusal to share even what they’ve shared with the other oversight committees puts that signature strike request on the subpoena table where it otherwise might not be.

Given Jonathan Landay’s reporting showing the extent not just of strikes where we don’t know the target’s identity, but also the number of side payment strikes we’re conducting, seeing such memos are even more urgent.

I’m guessing the timing gives the White House new-found interest in negotiating sharing those other memos.  Continue reading

That Makes Over 21 Requests by 31 Members of Congress, Mr. President

Adding the letter that Barbara Lee, as well as a list of all Members of Congress who have, at one time or another, requested the targeted killing memos.

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, 2013Pat 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)

All Members of Congress who have asked about Targeted Killing Memos and/or policies

  1. Ron Wyden
  2. Dianne Feinstein
  3. Saxby Chambliss
  4. Chuck Grassley
  5. Pat Leahy
  6. Tom Graves
  7. Jerry Nadler
  8. John Conyers
  9. Bobby Scott
  10. Ted Poe
  11. Trey Gowdy
  12. Rand Paul
  13. Mark Udall
  14. Dick Durbin
  15. Tom Udall
  16. Jeff Merkley
  17. Mike Lee
  18. Al Franken
  19. Mark Begich
  20. Susan Collins
  21. John McCain
  22. Bob Goodlatte
  23. Trent Franks
  24. James Sensenbrenner
  25. Barbara Lee
  26. Keith Ellison
  27. Raul Grijalva
  28. Donna Edwards
  29. Mike Honda
  30. Rush Holt
  31. James McGovern

Emptywheel Twitterverse
bmaz @TheBradBlog @JasonLeopold This is almost laughable. Completely feckless w/o backing of Spanish govt.
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bmaz @rortybomb @chrislhayes We have him for two hours live at FDL Book Salon on May 11.
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bmaz @Aelkus Man, yer just spoiling my night!
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bmaz @Aelkus Noooooooooooooooo!
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bmaz @GlennF @meliss_hughes @VanityFair Some places just ought not be gone to; this was one of them
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bmaz @PhilPerspective Ya think??
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bmaz RT @Cogitoergorum: @BenjaminDooley makes front page @japantimes. @hillhulse I've been telling you this guy is @nytimes material. http://t.c…
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bmaz .@VanityFair should be disbanded for caomparing Kim Kardashian to Audrey Just stop with this inanity. http://t.co/a6TsIG7Rvb
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bmaz @ZaidJilani Slime finds its own common lowest level, and so it has here.
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bmaz RT @GitmoWatch: BREAKING: Newly detailed #DOJ Special Trial Counsel asks to stop #Guantanamo proceedings on #FBI spying inquiry; live-tweet…
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April 2014
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