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Targeted Killing Timeline

A timeline!

I’ve been working on this timeline for almost nine months, trying to pull together the known dates about strikes against Americans, the evidence supporting the strike against Anwar al-Awlaki, the legal cases surrounding both targeted killing and torture, to which targeted killing is linked via the Memorandum of Notification, and Congressional efforts to exercise oversight.

September 17, 2001: George Bush signs Memorandum of Notification (henceforth, Gloves Come Off MON) authorizing a range of counterterrorism techniques, including torture and targeted killing.

September 18, 2001: Congress passes the Authorization to Use Military Force.

November 3, 2002: US citizen Kamal Derwish killed in drone purportedly targeting Abu Ali al-Harithi.

Late 2008: Ruben Shumpert reported killed in Somalia.

June 24, 2009: Leon Panetta gets briefed on assassination squad program.

June 26, 2009: HPSCI passes a funding authorization report expanding the Gang of Eight briefings.

July 8, 2009: The Administration responds with an insulting appeal to a “fundamental compact” between Congress and the President on intelligence matters.

July 8, 2009: Silvestre Reyes announces CIA lied to Congress.

October 26, 2009: British High Court first orders British government to release language on Binyam Mohamed’s treatment.

October 28, 2009: FBI kills Imam Luqman Asmeen Abdullah during Dearborn, MI arrest raid.

October 29, 2009: Hearing on declassifying mention of Gloves Come Off MON before Judge Alvin Hellerstein; in it, Hellerstein reveals NSA James Jones has submitted declaration to keep mention of MON secret.

November 5, 2009: Nidal Hasan attacks Fort Hood, killing 13.

December 24, 2009: JSOC tries but fails to hit Anwar al-Awlaki. On that day, the IC did not yet believe him to be operational.

December 25, 2009: With Umar Farouk Abdulmutallab attack, FBI develops full understanding of Awlaki’s operational goals.

January 2, 2010: In conversation with David Petraeus, Yemeni President Ali Abdullah Saleh http://www.cablegatesearch.net/cable.php?id=10SANAA4“>speaks as if Awlaki, whom he refers to as a cleric, not an AQAP member, was a designated target of December 24 attack.

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The AUMF Fallacy

There’s a whole strand of commentary on the targeted killing that lets the Obama Administration off easy for what it maintained in the white paper on the targeted killing of Americans.

There’s the argument made by David Cole and Jane Mayer that Obama’s targeted killing isn’t as bad as Bush’s torture because torture is always illegal, whereas killing is legal during war. This is Cole:

Thus, where Bush sought to rationalize a universally proscribed war crime, Obama is seeking to chart an appropriate legal course in a new setting of a well-established and generally lawful military tactic: killing the enemy.

There’s Armando Llorens’ argument that because the AUMF didn’t expressly authorize the military to operate in the US, the President therefore couldn’t target Americans in the US.

Serwer writes:

The question is whether the Authorization for Use of Military Force, which Congress passed in the aftermath of the 9/11 attacks, counts as “express authorization” to carry out a targeted killing on US soil.

Well, let’s read the empowering provisions:

Section 2 – Authorization For Use of United States Armed Forces(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

The argument that Serwer appears to adopt is that this empower the president to “use all necessary and appropriate force against those […] organizations or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001 […]in order to prevent any future acts of international terrorism against the United States” including such persons and organizations located in the United States.

The problem is  the 2001 AUMF does not include the language “in the United Sates.” To wit, the Posse Comitatus Act’s requirement of “express authorization” is not met. There is no express authorization for military targetting in the United States.

And there’s Garrett Epps’ in some ways strong argument that a Drone and/or Targeted Killing Court wouldn’t work that nevertheless problematically includes the claim that Obama has claimed no inherent authority in his use of drone strikes.

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

Unlike the fictional President Bennett in Tom Clancy’s Clear and Present Danger, then, President Obama can’t suddenly send the drone fleet down to take out, say, Colombian drug lords or the Lord’s Resistance Army in Uganda. [my emphasis]

All of them claim the Administration is operating exclusively within the AUMF, and based on that assumption conclude certain things about what the Administration has done.

There is abundant evidence to refute that. After all, the Administration invokes self-defense about as many times as it does AUMF in the white paper. The white paper actually situates the authority to kill an American in “constitutional responsibility to protect the country” — that is, Article II authority — and inherent right to self-defense even before it lists the AUMF.

The President has authority to respond to the imminent threat posed by al-Qa’ida and its associated forces, arising from his constitutional responsibility to protect the country, the inherent right of the United States to national self defense under international law, Congress’s authorization of the use of all necessary and appropriate military force against this enemy, and the existence of an armed conflict with al-Qa’ida under international law.

(Interestingly, the Holder speech reverses that order, listing AUMF, law of war, Article II, and then self-defense under international law.)

One of the Senators who has actually been briefed on Anwar al-Awlaki’s killing kept asking, for an entire year, “is the President’s authority to kill Americans based on authorization from Congress or his own authority as Commander-in-Chief?” While Wyden didn’t repeat that question in open session at Brennan’s hearing (so it may have been answered in the OLC memos he got the morning of the hearing), if he didn’t know, then how can all these people who haven’t been briefed claim to know?

Similarly, Colleen McMahon — who has been briefed at least on why CIA needed to invoke No Number No List over their own public speech — emphasized the unilateral nature of the decision to kill Awlaki.

And ultimately, we should look to what Stephen Preston — the General Counsel of the agency that actually carried out the Awlaki killing — has to say about where the CIA gets its authorization to engage in lethal covert operations.

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

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

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

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

The CIA, the agency that killed Awlaki, looks to Article II authority before it engages in targeted killing. Congressional authorization might also provide authority, Preston says. But Preston makes it clear that all the CIA needs to conduct lethal covert operations (though he does not specify that this holds with an American citizen) is the President’s Article II say-so.

At best, this record shows that Obama has operated under Article II and AUMF yoked together. There is no conceivable way (except by deliberate misreading) to argue that he is operating exclusively under the AUMF, because these public statements point to both the AUMF and Article II. And the Preston language at least envisions conducting such operations solely under Article II.

Finally, this notion that the President doesn’t think he could shoot drones against the Colombian drug lords or the LRA? It would be a lot more defensible statement if the Administration would share with even the Intelligence Committees — which it has thus far refused to do — the list of all the countries it has operated with lethal force. Add in those 7 OLC memos authorizing targeting killing (though not of Americans) that the Administration also has thus far refused to share, and there’s good reason to believe the Administration is conducting targeted killings — whether by drones or other means — in ways that must stretch the AUMF, because they won’t share that information with the Congress that purportedly authorized it.

These arguments that Obama ordering the death of an American (purportedly under exclusively AUMF authority) isn’t that bad are all very nice. But insofar as they ignore the public record, which shows that Obama is at least partially situating his authority to kill in his Article II authority, the arguments are simply spin on what Obama really did.

Colleen McMahon: The Covert Op that Killed Anwar al-Awlaki Was Illegal

A lot of people have discussed this section of Judge Colleen McMahon’s January 2, 2013 ruling dismissing ACLU and NYT’s FOIA for memos and other documents related to the targeted killing of Anwar al-Awlaki, Samir Khan, and Abdulrahman al-Awlaki:

I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret. [my emphasis]

But I’m not aware of anyone commenting at length on the section she titles, “Constitutional and Statutory Concerns about Targeted Killings,” a 5-page discussion of assessing targeted killing in terms of due process, treason, and other laws.

While the section is not entirely off point — she explores some of the legal questions raised in ACLU’s FOIA, though as I’ll show, she expands on the questions ACLU raised — the section is completely extraneous to her task at hand, determining whether or not the government has to turn over its legal justifications for killing Anwar al-Awlaki, Samir Khan, and Abdulrahman al-Awlaki. In other words, McMahon takes a 5-page detour from her work of adjudicating a FOIA dispute and lays out several reasons why the Awlaki killing may not be legal.

She recalls how central due process was to the founding of our nation.

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.

She reminds that the Treason Clause appears in Article III of the Constitution, not Article II.

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.”

Thus far, she has just made it abundantly clear she meant her earlier comment about “actions that seem on their face incompatible with our Constitution and laws” seriously (and she addresses points — due process and Treason — the ACLU brought up explicitly). She interrupts her work of assessing the FOIA case before her to make it very clear she believes the Awlaki killing violated key principles of our Constitution.

But I’m particularly interested in the last two pieces of law she raises to suggest she thinks the Awlaki killing might be illegal. First, she looks at 18 USC 1119.

Assuming arguendo that in certain circumstances the Executive power extends to killing without trial a citizen who, while not actively engaged in armed combat against the United States, has engaged or is engaging in treasonous acts, it is still subject to any constraints legislated by Congress. One such constraint might be found in 18 U.S.C. § 1119, which is entitled “Foreign murder of United States nationals.” This law, passed in 1994, makes it a crime for a “national of the United States” to “kill[] or attempt[] to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country.” The statute contains no exemption for the President (who is, obviously, a national of the United States) or anyone acting at his direction. At least one commentator has suggested that the targeted killing of Al-Awlaki (assuming it was perpetrated by the Government) constituted a violation of the foreign murder statute. Philip Dore, Greenlighting American Citizens: Proceed with Caution, 72 La. L. Rev. 255 (2011).

18 USC 1119 is, of course, the passage of the white paper I focused on here, which the Administration dismisses, in part, this way.

Similarly, under the Constitution and the inherent right to national self-defense recognized in international law, the President may authorize the use of force against a U.S. citizen who is a member of al-Qa’ida or its associated forces who poses an imminent threat of violent attack against the United States.

And I’m such a geek that I actually mapped out what Eric Holder said in his Northwestern Speech and what actually appears in the white paper. The discussion on section 1119 is, by far, the topic explored in greatest length in the white paper but left unmentioned in Holder’s public spin of the legal thinking behind Awlaki’s killing. Section 1119 is something that Administration was very worried about, but didn’t want the public to know how worried they were.

McMahon’s discussion is interesting, too, because it’s somewhat tangential to the list of things ACLU asked about. They ask for “the reasons why domestic-law prohibitions on murder … do not preclude the targeted killing of Al-Awlaki.” And their original FOIA letter cites the same Dore article that McMahon cites. The ACLU never mentions section 1119 by name. But McMahon does, honing in on the statute that — at least given the relative focus of the white paper — the Administration seemed most concerned about. (She did get classified declarations, so it’s possible she got the white paper, though her comments about not needing to see the one OLC memo identified in the Vaughn Indices would seem to suggest she had not seen it.)

Then McMahon brings up something that doesn’t show up in the white paper (but one I’ve brought up).

There are even statutory constraints on the President’s ability to authorize covert activity. 50 U.S.C. §413b, the post-World War II statute that allows the President to authorize covert operations after making certain findings, provides in no uncertain terms that such a finding “may not authorize any action that would violate the Constitution or any statute of the United States.” 50 U.S.C. § 413b(a)(5). Presidential authorization does not and cannot legitimize covert action that violates the constitution and laws of this nation.

McMahon is, by this point, basically arguing that the Article II rationalizations that end up in the white paper (whether or not she had seen it) are invalid. The President cannot authorize something that violates the Constitution and US law, not even for (or especially not for) a covert operation the CIA would conduct.

Mind you, she’s a bit more gentle in her legal condemnation of the argument.

So there are indeed legitimate reasons, historical and legal, to question the legality of killings unilaterally authorized by the Executive that take place otherwise than on a “hot” field of battle. [my emphasis]

But she refutes, in 5 pages, not only what the government argued in the white paper (including its extensive section 1119 argument), but also the Treason Clause question they didn’t address.

And look at what she’s refuting here. She says the Executive “unilaterally authorized” Awlaki’s killing. She suggests they did so via a covert op.

In this section, she doesn’t once mention the Authorization to Use Military Force the Administration tries to yoke CIA actions onto, in spite of her discussion of the AUMF earlier in her ruling. (Update: Though she does introduce her Treason section by saying, “If the War on Terror is indeed a war declared by Congress pursuant to its constitutional power, and if Al-Awlaki was a combatant in that war, then he is a traitor.”)

In Colleen McMahon’s 5-page detour, having read a slew of classified declarations on the legality of the Awlaki killing — including CIA’s rationale for invoking Glomar — she addresses this killing as a covert operation authorized “unilaterally,” with no mention of the AUMF attaching Congressional authorization to the killing.

Perhaps that’s just her skepticism about whether the AUMF applies away from the “hot” battlefield; elsewhere, she notes that Awlaki “was located about 1500 miles from Afghanistan, in Yemen, a country with which the United States is not at war (indeed, which the United States counts as an ally).” That is, perhaps she just doesn’t buy the Administration’s arguments about the global battlefield.

But I find it very telling that a Judge who has read classified declarations from several agencies (and went on to write her own classified ruling, in addition to the public one) assesses the legality of the Awlaki killing as if it were solely based on Article II authority.

The CIA Glomared Their Own Public Speech

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

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

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

[snip]

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

This Isn’t the Memo You’re Looking For

As important as it is to see the white paper DOJ gave Congress to explain its purported legal rationale, it is just as important to make clear what this white paper is not.

First, is it not the actual legal memos used to authorize the killing of Anwar al-Awlaki and who knows who else. As Michael Isikoff notes in his story, the Senators whose job it is to oversee the Executive Branch — even the ones on the Senate Intelligence Committee that are supposed to be read into covert operations — are still demanding the memos, for at least the 12th time. The release of this white paper must not serve to take pressure off of the White House to release the actual memos.

Which brings me to an equally important point: memos. Plural.

NBC suggests and the close tracking appears to support that this white paper is a version of the OLC memo written in June 2010 and reported on — the last time there was clamor to release the targeting killing authorization publicly — by Charlie Savage.

But as Colleen McMahon strongly hinted last month, that doesn’t mean that this white paper — and the OLC memo which it summarizes — describe the legal basis actually used to kill Anwar al-Awlaki.

Indeed, Ron Wyden has been referring to memos, in the plural, for a full year (even before, if Isikoff’s report is correct, this white paper was first provided to the Committees in June 2012).

And there is abundant reason to believe that the members of the Senate committees who got this white paper aren’t convinced it describes the rationale the Administration actually used. Just minutes after Pat Leahy reminded the Senate Judiciary Committee they got the white paper at a hearing last August, John Cornyn said this,

Cornyn: As Senator Durbin and others have said that they agree that this is a legitimate question that needs to be answered. But we’re not mere supplicants of the Executive Branch. We are a coequal branch of government with the Constitutional responsibility to conduct oversight and to legislate where we deem appropriate on behalf of our constituents. So it is insufficient to say, “pretty please, Mr. President. pretty please, Mr. Attorney General, will you please tell us the legal authority by which you claim the authority to kill American citizens abroad?” It may be that I would agree with their legal argument, but I simply don’t know what it is, and it hasn’t been provided. [my emphasis]

More importantly, one question that Wyden keeps asking would be nonsensical if he believed the content of this white paper reflected the actual authorization used to kill Awlaki. [Update: I take this part back — go read this post for why Wyden keeps asking this question.]

This white paper, after all, speaks repeatedly of the AUMF and invoked Congressional approval (this is just a limited sampling).

The United States is in an armed conflict with al-Qa’ida and its associated forces and Congress has authorized the President to use all necessary and appropriate force against those entities. See Authorization for Use of Military Force.

[snip]

Accordingly, the Department does not believe that U.S. citizenship would immunize a senior operational leader of al-Qa’ida or its associated from a use of force abroad authorized by the AUMF or in national self-defense.

[snip]

None of the three branches of the U.S. Government has identified a strict geographical limit on the permissible scope of the AUMF’s authorization.

[snip]

In such circumstances, targeting a U.S. citizen of the kind described in this paper would be authorized under the AUMF and the inherent right to national self-defense.

[snip]

And judicial enforcement of such orders would require the Court to supervise inherently predictive judgments by the President and his national security advisors as to when and how to use force against a member of an enemy force against which Congress has authorized the use of force. [my emphasis]

But Ron Wyden, who has gotten this white paper, still keeps asking this question.

Is the legal basis for the intelligence community’s lethal counterterrorism operations the 2001 Congressional Authorization for the Use of Military Force, or the President’s Commander-in-Chief authority?

Now, to be fair, those bolded sections do hint at something else, the reliance on inherent authority. And in an early passage laying out the authorities, the white paper lists that Article II authority first, well before it lists the AUMF.

The President has authority to respond to the imminent threat posed by al-Qa’ida and its associated forces, arising from his constitutional responsibility to protect the country, the inherent right of the United States to national self defense under international law, Congress’s authorization of the use of all necessary and appropriate force against the enemy, and the existence of an armed conflict with al-Qa’ida under international law. [my emphasis]

But everything about this white paper uses the AUMF — that Congressional authorization — as the key authorization.

This white paper admits the President claims he could kill an American solely on his inherent Article II powers. But that’s not the argument laid out in the white paper.

Now, there are other reasons to believe this is not the authority relied on — at least not for all the attempts to kill Awlaki. After all, when they first tried to kill him on December 24, 2009, the Intelligence Community didn’t believe him to be operational; at that point, according to the knowledge the government had at that time, Awlaki would not meet the three criteria laid out in this memo.

Never fear though! This white paper makes clear that the government may not even need to fulfill those requirements before it offs a US citizen.

As stated earlier, this paper does not attempt to determine the minimum requirements necessary to render such an operation against a U.S. citizen lawful in other circumstances.

Even as shoddy as this argument is — as forced its interpretation of the word “imminent” and the court precedents — this white paper holds out the possibility that there may be other circumstances, other lesser requirements fulfilled, that would still allow the President to kill an American citizen.

And that, I fear, is what is in the real memos.

Update: Note, too, that 9 of the 11 Senators who demanded the memo have seen this white paper (all but Tom Udall and Jeff Merkley are on either the Senate Intelligence of Judiciary Committee). Yet they’re still demanding to know the “executive branch’s official understanding of the President’s authority to deliberately kill American citizens.”

Ron Wyden: There Is More than One Targeted Killing Memo

I’ve been comparing Ron Wyden’s February 2012 letter demanding the authorization the Administration uses to kill American citizens with the one he sent John Brennan last week.

It’s striking how similar the letters are, particularly given the Administration’s drone publicity tour last year, between the time Wyden wrote the two letters. Wyden dismisses the value of the publicity tour in his latest letter.

Both you and the Attorney General gave public speeches on this topic early last year, and these speeches were a welcome step in the direction of more transparency and openness, but as I noted at the time, these speeches left a larger number of important questions unanswered. A federal judge recently noted in a Freedom of Information Act case that “no lawyer worth his salt would equate Mr. Holder’s statements with the sort of robust analysis that one finds in a properly constructed legal opinion,” and I assume that Attorney General Holder would agree that this was not his intent.

And in fact, what’s most striking is how similar some key features of the letters are.

For example, the list of questions Wyden appends to his later letter largely repeats and expands on questions Wyden poses in his earlier letter; the only new questions are (these are my summaries):

  • What standard is used to determine whether it is feasible to capture a particular American.
  • What is the rationale for applying Ex Parte Quirin, Hamdi v. Rumsfeld, and Mathews v. Eldridge to the question of when the President may legally kill an American?
  • What impact does Holder’s reference to the use of lethal force “outside the hot battlefield in Afghanistan” have on the applicable legal principles of due process laid out in Hamdi?

And given my contention that Judge Colleen McMahon, in her opinion denying ACLU and NYT’s request for the drone killing opinion, suggested there were multiple opinions, some of them pertaining solely to CIA, and potentially invoked the Gloves Come Off Memorandum of Notification, I’m especially interested in these two details that remained consistent over the two Wyden letters.

First, in both letters Wyden refers to legal opinions–in the plural. Here’s the first letter.

Senior intelligence officials have said publicly that they have the authority to knowingly use lethal force against Americans in the course of counterterrorism operations, and have indicated that there are secret legal opinions that explain the basis for this authority.

[snip]

The Director indicated that he would have liked to be responsive to my request, but he told me that he did not have the authority to provide formal written opinions of the Department of Justice’s Office of Legal Counsel to Congress.

 

So, as you will remember, I called you in April 2011 and asked you to ensure that the secret Justice Department opinions that apparently outline the official interpretation of this lethal authority were provided to Congress.

[snip]

For the executive branch to claim that intelligence agencies have the authority to knowingly kill American citizens (subject to publicly unspecified limitations) while at the same time refusing to provide Congress with any and all legal opinions that delineate the executive branch’s understanding of this authority represents an indefensible assertion of executive prerogative, and I expected better from the Obama Administration.

[snip]

So I request, again, that you provide me with any and all legal opinions regarding the authority of the President, or individual intelligence agencies, to kill Americans in the course of counterterrorism operations. [my emphasis]

And here’s the Brennan letter.

I have asked repeatedly over the past two years to see the secret legal opinions that contain the executive branch’s understanding of the President’s authority to kill American citizens in the course of counterterrorism operations.

Senior intelligence officials have said publicly that they have authority to knowingly use lethal force against Americans in the course of counterterrorism operations, and have indicated that there are secret legal opinions issued by the Justice Department’s Office of Legal Counsel that explain the basis for this authority. I have asked repeatedly to see these opinions, and I have been provided with some relevant information on the topic, but I have yet to see the opinions themselves.

[snip]

As I have said before, this situation is unacceptable. For the executive branch to claim that intelligence agencies have the authority to knowingly kill American citizens but refuse to provide Congress with any and all legal opinions that explain the executive branch’s understanding of this authority represents an alarming and indefensible assertion of executive prerogative. [my emphasis]

I’m especially intrigued by Wyden’s repetition of “any and all,” as if he suspects the Administration might hide the existence of one by revealing the existence of only one more respectable one–a suggestion I myself have made.

And given that Wyden seems certain there are more than one opinions authorizing the President to kill American citizens, I find this question–raised in both letters–very provocative.

Is the legal basis for the intelligence community’s lethal counterterrorism operations the 2001 Congressional Authorization for the Use of Military Force, or the President’s Commander-in-Chief authority?

I assume “President’s Commander-in-Chief authority”–which is the formulation Stephen Preston used in his speech on targeted killing, in contradistinction to the formulation Holder and everyone else used–is shorthand for “authorized under the National Security Act.” That is, I assume “President’s Commander-in-Chief authority” is a polite way to invoke covert operations.

Here you have a member of the Senate Intelligence Committee–the members of which according to the same law that permits the President to unilaterally authorize covert operations must be briefed on those covert operations–revealing complete ignorance as to whether the President’s execution of US citizens was done as a covert op or a legally military one.

Along with a bunch of other troubling things, these details from Wyden’s letters reveal something else. The Obama Administration is playing the same shell game with the authorization to kill American citizens that the Bush Administration played with the illegal wiretap program: waving the AUMF around as purported Congressional sanction all the while insisting that the President could–and appears to have, in this case, given the strong hints in McMahon’s opinion–unilaterally approve such actions without Congressional sanction.

The evidence is building that the Administration believes it can–and did, in the case of Anwar al-Awlaki–simply kill an American based solely on the President’s say-so, under the National Security Act.

Crowd of Unilateral Lawyers Applaud Unilateral Operator

Sarah Cleveland? Not a judge. Greg Craig? Not a judge. William Dodge? Not a judge. Jeh Johnson? Not a judge. David Kris? Not a judge. David Martin? Not a judge. Daniel Meltzer? Not a judge. And Trevor Morrison?

Also not a judge.

Nevertheless, these eight lawyers–all of whom served the function of interpreting the law for the Executive Branch within the Executive Branch for Obama (and, in Kris’ case, for Bush)–assure you that John Brennan will uphold our laws.

Throughout his tenure as Assistant to the President for Homeland Security and Counterterrorism in the Obama Administration, John Brennan has been a persistent and determined leader in support of adherence to the rule of law, a principled commitment to civil liberties and humanitarian protection, and transparency. On a broad range of issues, he has endeavored to ensure that the national security practices of the United States Government are based on sound long-term policy goals and are consistent with our domestic and international legal obligations, as well as with broader principles of democratic accountability. John Brennan has been a steadfast champion of the President’s commitment to closing the detention facility at Guantánamo, and has urged that our Article III courts remain a vital tool in our counterterrorism toolbox. He has stood firmly with the President’s efforts to ensure that interrogations are conducted in accord with the law and our values. And he has worked to ensure that the responsible and effective pursuit of our counterterrorism objectives will not depend simply on the good instincts of officials, but will instead be institutionalized in durable frameworks with a sound legal basis and broad interagency oversight.

[snip]

John Brennan understands that adherence to the Constitution and the rule of law serve, rather than undermine, our national security interests. Time and again, he has demonstrated seasoned wisdom and judgment in responding to our nation’s greatest national security threats, and he has consistently reaffirmed his core commitment to conducting our national security and counterterrorism policy in a fashion that comports with our deepest values. [my emphasis]

Sure, there are a few tells–such as the boast that his pursuit of counterterrorism objectives will be institutionalized in a broad interagency–not interbranch–oversight. Or, on the reverse, the claim that John Brennan–whose solution to the National Counterterrorism Center’s failure to fulfill minimization requirements was just to open up all Federal databses to NCTC without that minimization–has a “principled commitment to civil liberties.”

But mostly, it’s the structural problem here. Regardless of what John Brennan himself believes–and all the public evidence suggests these lawyers are too close to judge and perhaps just a little seduced by the old spook–this Administration doesn’t stand for any of these things.

More importantly, this Administration has refused just about every opportunity to have someone else–lawyers and judges who hadn’t counseled these policies from the start–weigh these issues. The Administration has shown great disdain for both democratic accountability and Article III courts. It has ensured that interrogations–both those conducted under Bush and those conducted in dark prisons under Obama–never be tested for whether they accord with the law. Indeed, Obama’s Administration has gone to great lengths to hide our torture from international oversight and even from litigants in our own courts.

So even assuming John Brennan is the nice guy these lawyers say he is–an assumption that defies the evidence–they’re still damning Brennan with the same illegitimate argument the Obama Administration has always relied on:

Trust us.

They are emphasizing precisely why John Brennan’s success in an Administration that has refused even basic oversight should not be sufficient for confirmation to lead a secretive agency.

And while in any other week I might be inclined to grant David Kris’ word great weight, not this week. After all, Kris warned we might get into trouble with Hamdan’s material support for terrorism conviction years ago. Nevertheless, the Obama Administration is treating Gitmo with the same Kangaroo arrogance that Bush did, refusing to take the DC Circuit’s ruling on Hamdan as law, overriding their own prosecutor at Gitmo. This Administration–Brennan’s Administration–is defiant of even the warnings Kris offered years ago. So when Kris and other lawyers boast that Brennan will be a great leader consistent with Obama’s policies…

He is also exceptionally qualified to provide leadership and direction to the Agency, consistent with President Obama’s national security objectives.

… It’s shouldn’t exactly count as a glowing endorsement.

Sure, this letter to Dianne Feinstein in support of Brennan’s nomination will work. It’ll provide cover for all the evidence that Brennan is none of these things. At the very least, it’ll force a few Democrats on the Senate Intelligence Committee to consider whether they’re prepared to admit that Obama’s policies exhibit none of this respect for rule of law. Which they aren’t, yet. So it’ll serve its purpose.

The last actual judge who got a glimpse at the Obama Administration’s claim to abide by the rule of law had this to say:

I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping reasons for their conclusion a secret.

John Brennan is the knave of this Alice in Wonderland system of legal justice.

I take that as a far better read of Brennan’s fitness to be CIA Director than the word of the Queen of Hearts’ other cards up her sleeve.

Update: Conor Friedersdorf does more fact-checking of the claims in the letter.

Why Ask the FBI about Classification on the Targeted Killing FOIA?

The FBI, as far as we know, never gets to press the buttons on JSOC and CIA’s drones. And as I noted last June, FBI information we know exists (some of it in unclassified form) was suspiciously absent from the materials identified in the response to ACLU’s request for information on the evidence supporting the targeting of Anwar al-Awlaki and Samir Khan.

Remember, in addition to general information about the legal authorization process, ACLU asked for:

Facts supporting a belief that al-Awlaki posed an imminent threat to the United States or United States interests;

[snip]

Facts supporting the assertion that al-Awlaki was operationally involved in al Qaeda, rather than being involved merely in propaganda activities;

[snip]

All documents and records pertaining to the factual basis for the killing of Samir Khan

DOJ probably has information pertaining to the assessment–for example–that Samir Khan could leave the US and travel to Yemen even though a long line of FBI terror investigation subjects have gotten arrested for doing the same. There’s also information submitted in the Mohamed Osman Mohamud prosecution pertaining to Khan which also probably would have received high level attention.

And we know that DOJ claims to have evidence that proves that Awlaki was operational, much of it pertaining to Umar Farouk Abdulmutallab’s attempted attack and subsequent interrogation (indeed, two of the few documents OIP says were responsive date to January and February 2010 and almost certainly pertain to the aftermath of Abdulmutallab’s attempted attack).

Yet in spite of FBI’s notable absence from the discussion of the targeted killing FOIA, Judge Colleen McMahon asked them–and not ODNI or CIA, both of which submitted declarations in this case–whether anything in her unclassified opinion was classified.

The final draft of this unclassified opinion was provided to the FBI several days ago, in order to give the Government an opportunity to object to the disclosure of any classified information that may have inadvertently found its way into this document.

The FBI?!? Why would the FBI be the entity to review this opinion, in which they have no apparent role?

Meanwhile, one of the assertions for which McMahon provides absolutely no support in her unclassified opinion is this one.

Most of what is sought in the facially overbroad request filed by the American Civil Liberties Union (“ACLU”) was properly withheld pursuant to one or more properly invoked exemptions that Congress wrote into the FOIA statute to guard against the disclosure of highly confidential and operational information–if, indeed, the Government has acknowledged that any such documents exist.

In her unclassified opinion, McMahon discusses at length why the government can withhold the (or one of the) OLC opinion on killing Awlaki we all know exists. But she says nothing about what makes a request for the evidence backing the Awlaki targeting (she says ACLU presented no evidence Khan was targeted) “facially overbroad.”

As I suggested the other day, it is perhaps judicious to assume that any big holes in McMahon’s ruling are dealt with, by necessity, in her classified Appendix. Note too that in addition to providing an overview of the ACLU request in her unclassified opinion, McMahon also includes–but doesn’t discuss at length–the ACLU’s full request as an Appendix itself.

All of which is my way of suggesting that one thing in McMahon’s classified Appendix is almost certainly a discussion of why the American people are not allowed to know what the government knows–or claims to know–about Awlaki’s ties to terrorism. And that, as part of her discussion, McMahon actually got into some of what the government knows (or claims to know) or how it claims to have learned it.

I’m not really interested in that–though I do hope the ACLU points out this big gap in her unclassified opinion in their appeal, because their request doesn’t seem overbroad to me, particularly since the government has made unclassified claims about Awlaki being an operational leader without supporting those claims.

But I want to reflect on what it suggests that the FBI–and not CIA or NSA intelligence–seems to be treated as the crown jewels of the Anwar al-Awlaki intelligence.

As I keep repeating, we know that on the day Umar Farouk Abdulmutallab tried to attack a Detroit bound plane, the day after the government first targeted Awlaki in a drone strike, the FBI did not believe Awlaki to be operational. And while there are other big claims against Awlaki–the toner cartridge plot that implicated other AQAP members more directly, for example (and yes, I know Fox and Judicial Watch are making new claims, but they’ve been debunked)–the key claim always comes back to the UndieBomb plot.

And yet the government has avoided–in the suit Awlaki’s father took against the government, in the Abdulmutallab trial, and in this FOIA–presenting this information in any antagonistic venue. Only when they had the opportunity to present the information in a venue where their interlocutors could not challenge the provenance of their claims–in the Abdulmutallab sentencing hearing–did the government make the legal claim that Awlaki was the operational leader they ultimately killed him for being.

Again, I hope the ACLU pursues a better explanation for why the government doesn’t have to present the same level of information they’d have to present in a trial, especially given that they’ve made unclassified claims about this stuff.

Because I find it damned telling that information they’ve protected so assiduously from the antagonistic challenges they would have faced in a terror trial appear to be the central secret they’re protecting here.

The DOD Targeted Killing Memo Not Addressed to DOD

I’m still deep in the weeds of Judge Colleen McMahon’s opinion rejecting the NYT and ACLU’s efforts to get the legal basis for killing Anwar al-Awlaki, The Child (as McMahon calls Anwar’s son Abdulrahman), and Samir Khan.

I observed yesterday that McMahon strongly hinted that the DOD OLC memo identified by the government in response to the FOIA may not be the legal authority under which Awlaki was ultimately killed. She seems to suggest the DOD memo may not have been relied on, and there may be some other document that authorizes the government–possibly the CIA–to kill Awlaki.

And from that I wondered whether the June 2010 memo that both Scott Shane and Charlie Savage had tips on, and which Savage described in detail, was the DOD memo, not the memo used.

There’s another detail of all this that was apparent before but which McMahon emphasizes.

The DOD memo was not addressed to the DOD.

DoD also excepts to disclosure of this document [the OLC memo] (though it was apparently not prepared for or directed to the Defense Department),

[snip]

That may be so, but it is sheer speculation that this particular OLC memorandum–addressed to the Attorney General “pertaining to the Department of Defense” and “regarding a potential military operation in a foreign country”–contains the legal analysis that justifies the Executive Branch’s conclusion that it is legal in certain circumstances to target suspected terrorists, including United States citizens, for killing away from a “hot” field of battle. [my emphasis]

She’s right. Here’s how OLC’s John Bies described the document.

OLC identified one OLC opinion pertaining to the Department of Defense marked classified as responsive to the Shane and Savage requests. That OLC opinion contains confidential legal advice to the Attorney General, for his use in interagency deliberations, regarding a potential military operation in a foreign country.

This is interesting for several reasons.

As I said, the memo Savage described was written in June 2010. Six months before, on December 24, 2009, JSOC–that is, DOD–tried to kill Awlaki. They did so the day before (according to the William Webster report and subsequent Intelligence Community testimony) the IC came to believe Awlaki was operational. And while sources subsequently told Dana Priest that Awlaki wasn’t the primary target of that drone strike and only afterwards got added to the JSOC target list (though he was still added six months before the one memo we know about), a cable released by WikiLeaks makes it fairly clear that then Yemeni President Ali Abdullah Saleh believed Awlaki was a direct target of that strike.

Whether the June 2010 memo is the disclosed OLC memo or not, it’s clear it was written after the government had already tried to kill Awlaki, and had done so at a time when he was understood to be a really obnoxious propagandist, but not–as the OLC memo laid out would be required to justify targeting–an operational leader of al Qaeda. And yet it is being protected (this is true whether or not it is the DOD memo, because the CIA documents were exempted for this reason as well) as a predecisional document.

That suggests that JSOC–whose actions were controlled by CentCom, which was then headed by David Petraeus, who would be in charge of CIA when Awlaki was killed by a strike understood to be a CIA one–may have tried to kill Awlaki without having OLC legal guidance in hand authorizing it.

Though note there is an entirely different possibility, which is that the DOD memo is much older, written before the time the US killed Kamal Derwish much as they did Samir Khan and as they claim to have tried to kill Awlaki the first time, by treating him as collateral damage to a strike on someone else.

They may not have had legal guidance, but they had the President’s personal sign-off (remember, too, that the cables discussing the first attempted strike on Awlaki were copied to the White House).

As part of the operations, Obama approved a Dec. 24 strike against a compound where a U.S. citizen, Anwar al-Aulaqi, was thought to be meeting with other regional al-Qaeda leaders. Although he was not the focus of the strike and was not killed, he has since been added to a shortlist of U.S. citizens specifically targeted for killing or capture by the JSOC, military officials said.

And if the revealed memo is the DOD one, when OLC finally wrote legal guidance covering DOD that would have authorized the December 24, 2009 strike on Awlaki (except that the intelligence clearly did not, at that point, support it), they may have addressed that opinion not to DOD, but to the Attorney General.

There are two more interesting details of this.

First, the only document revealed in the FOIA response that claimed a Presidential privilege–revealed in the OIP Vaughn Index and also discussed by the OLC–is a January 18, 2010 set of draft talking points for an Eric Holder briefing of the President. In the days after DOD first tried to kill Awlaki and around the same time, according to Priest’s not entirely credible sources, that Awlaki was added to the JSOC kill list, Eric Holder briefed the President about legal issues relating to killing Awlaki. And (if the June 2010 memo is the disclosed one) six months later OLC wrote Holder a memo authorizing a DOD strike.

Note, too, that OLC was fully forthcoming with the documents it had pertaining to the Awlaki targeting. DOJ’s Office of Information Policy, which is in charge of responding to FOIAs including the Attorney General and Deputy Attorney General, was not.

All of this is really inconclusive. Though unless the DOD memo is a much older one, it seems to indicate JSOC targeted Awlaki on Presidential authority, not OLC guidance.

This is, to be clear, inconclusive, since we don’t know whether the DOD memo really is the memo Savage described.

But it appears more and more like what happened with torture: which is that the spooks were executing the program under Presidential authority–that is, under the Gloves Come Off Memorandum–and only after someone complained internally about the legal sketchiness of it all, did they go about getting an OLC opinion sanctioning the actions that had already happened.

Colleen McMahon’s Cheshire Cat: CIA’s Stephen Preston

As you no doubt remember from Alice in Wonderland, the Cheshire Cat keeps disappearing. Indeed, the cat’s habit of disappearing at will presents an insurmountable challenge to the Queen’s normally simple rules on executions.

When [Alice] got back to the Cheshire Cat, she was surprised to find quite a large crowd collected round it: there was a dispute going on between the executioner, the King, and the Queen, who were all talking at once, while all the rest were quite silent, and looked very uncomfortable.

The moment Alice appeared, she was appealed to by all three to settle the question, and they repeated their arguments to her, though, as they all spoke at once, she found it very hard indeed to make out exactly what they said.

The executioner’s argument was, that you couldn’t cut off a head unless there was a body to cut it off from: that he had never had to do such a thing before, and he wasn’t going to begin at HIS time of life.

The King’s argument was, that anything that had a head could be beheaded, and that you weren’t to talk nonsense.

The Queen’s argument was, that if something wasn’t done about it in less than no time she’d have everybody executed, all round. (It was this last remark that had made the whole party look so grave and anxious.)

Alice could think of nothing else to say but ‘It belongs to the Duchess: you’d better ask HER about it.’

‘She’s in prison,’ the Queen said to the executioner: ‘fetch her here.’

And the executioner went off like an arrow. The Cat’s head began fading away the moment he was gone, and, by the time he had come back with the Duchess, it had entirely disappeared; so the King and the executioner ran wildly up and down looking for it, while the rest of the party went back to the game.

While Judge Colleen McMahon’s reference to Alice was probably just an offhand reference, I submit that she’s got a Cheshire Cat right in the middle of her ruling: CIA General Counsel Stephen Preston and the Gloves Come Off Memorandum of Notification.

As you read her ruling, it’s helpful to remember that she has seen some materials that plaintiffs ACLU and NYT have not. Moreover, this ruling was not sufficient to her argument. She has also written a classified Appendix.

This opinion will deal only with matters than have been disclosed on the public record. The Government has submitted material to the Court ex parte and for in camera review. Certain issues requiring discussion in order to make this opinion complete relate to this classified material. That discussion is the subject of a separate, classified Appendix to this opinion, which is being filed under seal and is not available to Plaintiff’s counsel.

As a threshold matter, then, it is perhaps judicious to assume that any big holes in McMahon’s ruling are dealt with, by necessity, in that Appendix.

There is one obvious, glaring hole (though I am biased, given that I was the first to point to it in the government’s filings): her analysis of whether the government’s searches for documents was adequate. After laying out the relevant standard (page 35), she simply lists the Government’s explanation of its searches–one of which is a classified CIA declaration–and concludes,

This court has reviewed these explanations and concludes that the searches by the responding agencies comported with their statutory obligations.

Again, I’m biased, having pointed out all sorts of reasons why the searches were inadequate, but for McMahon to conclude they were, there must be more compelling evidence in that classified declaration, and she should have to explain how those facially inadequate searches were adequate.

But consider her treatment of a different document I’ve found missing in the past: Preston’s very public speech obliquely covering targeted killing. McMahon acknowledges (page 20) that the plaintiffs have included that in their list of public statements Obama officials have made about targeted killing, but she doesn’t give it the detailed treatment she gives several other speeches by John Brennan, Harold Koh, President Obama, Jeh Johnson, and Eric Holder.

I find that significant given that Preston laid out different logic for the legality of targeted killing than the others did, situating it in Article II rather than in the AUMF.

Preston checks off the first box–authorization under US law before the op–by looking to Article II, not the AUMF Congress passed.

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

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

That’s interesting for several reasons. First, it situates the authority to use lethal force not in the stated basis OLC is using–the one SCOTUS has affirmed (sort of), but in Article II. Just where John Yoo would look to situate it.

This also means that CIA maintains it has this authority–presuming a Presidential Finding–outside the context of a declared war.

The memo described by Charlie Savage, like all the other speeches, relies on the AUMF.

Mr. Awlaki, who was born in New Mexico, was also accused of playing a role in a failed plot to bomb two cargo planes last year, part of a pattern of activities that counterterrorism officials have said showed that he had evolved from merely being a propagandist — in sermons justifying violence by Muslims against the United States — to playing an operational role in Al Qaeda in the Arabian Peninsula’s continuing efforts to carry out terrorist attacks.

Other assertions about Mr. Awlaki included that he was a leader of the group, which had become a “cobelligerent” with Al Qaeda, and he was pushing it to focus on trying to attack the United States again. The lawyers were also told that capturing him alive among hostile armed allies might not be feasible if and when he were located.

Based on those premises, the Justice Department concluded that Mr. Awlaki was covered by the authorization to use military force against Al Qaeda that Congress enacted shortly after the terrorist attacks of Sept. 11, 2001 — meaning that he was a lawful target in the armed conflict unless some other legal prohibition trumped that authority.

Preston’s speech suggests that if OLC were writing a memo authorizing the CIA to kill Awlaki–as distinct from a memo authorizing DOD to kill him–it wouldn’t necessarily situate the authority in the AUMF. And from that we can surmise that DOJ might have an entirely different memo for CIA than for DOD, with the one described by Savage being the DOD one.

I’ve suspected that’s the case for quite some time (I’ll try to rewrite the 2 very long unpublished posts laying this out).

But I suspect it even more so now.

About 30 pages of McMahon’s opinion addresses why DOD can withhold OLC opinions it has acknowledged. As part of that discussion, she asserts the NYT only wants the DOD opinion.

The Times sole apparent goal at this point is to get a hold of the OLC-DoD Memo, which, it assumes, contains the final legal analysis and justification it seeks.

The ruling doesn’t note this, but I think NYT is doing more than assume here. Savage suggested, after all, that the memo he described was the memo that governed the killing of Awlaki.

But the document that laid out the administration’s justification — a roughly 50-page memorandum by the Justice Department’s Office of Legal Counsel, completed around June 2010 — was described on the condition of anonymity by people who have read it.

So I assume he was told that the memo described to him was the memo that governed the killing a full 15 months later, at a time when CIA had taken over the lead in drone killings in Yemen from DOD.

But McMahon leaves a lot of suggestions that this is not the case, particularly in this long passage explaining why deliberative privilege governs the DOD memo the government has acknowledged. (Thoughout this section, bold emphasis mine, italics McMahon’s, and citations omitted.)

But there is no suggestion, in any of those speeches or interviews, that the legal reasoning being discussed is the reasoning set out in the OLC-DoD Memo, a document which the Government acknowledges exists. This document, unlike the OLC opinions on local enforcement of immigration laws, has never been mentioned in any public statement. For that matter, OLC has never been mentioned in any public statement; none of the speeches attribute any legal principles announced to OLC or to any opinion it has issued.

Indeed, she even quotes from a colleague’s opinion raising the possibility of other memos addressing the same topic.

My colleague Judge Scheindlin noted [in National Day Laborer Organization v ICE], “[U]nless the defendants have unlawfully withheld other legal memoranda from plaintiffs and this Court, it was the only document comprehensively laying out the legal authority for making Secure Communities mandatory. Thus, the analysis in the Memorandum seems to be the only rationale that the agency could have relied upon and adopted as the legal basis for the policy.”

In this case, however, there is no evidence that the Government “continually relied upon and repeated in public the arguments made” specifically in the OLC-DoD Memo. Read more