David Barron

DOJ’s Leaky SCIF Double Standards

McClatchy’s latest in the CIA-Seante Intelligence Committee fight reports that FBI is now investigating Senate Intelligence Committee staffers for unauthorized removal of classified information from CIA’s SCIF.

The FBI is investigating the alleged unauthorized removal of classified documents from a secret CIA facility by Senate Intelligence Committee staff who prepared a study of the agency’s use of harsh interrogation techniques on suspected terrorists in secret overseas detention centers, McClatchy has learned.


The FBI investigation stemmed from a request to the Justice Department by the CIA general counsel’s office for a criminal investigation into the removal last fall of classified documents by committee staff from a high-security electronic reading room that they were required to use to review top-secret emails and other materials, people familiar with issue told McClatchy. The existence of the referral was first reported online Thursday afternoon by Time magazine.


The investigation request by the CIA general counsel’s office is one of two criminal referrals sent to the Justice Department in connection with the committee’s 6,300-page report, which remains unreleased nearly 15 months after the panel voted to approve its final draft, according to those familiar with the case.

The second was made by CIA Inspector General David Buckley, they said. It relates to the monitoring by the agency of computers that the committee staff used to review millions of classified documents in the electronic reading room set up inside a secret CIA facility in Northern Virginia, they said.

Wow. This removal of a document from a SCIF containing torture documents sure escalated quickly.

Which is particularly remarkable given DOJ’s past response when torture documents walk out of a SCIF, even their own one.

Recall that sometime between 2005 and 2009, at least 10 and possibly as many as 31 documents critical to discussions over the legality of torture disappeared from the Office of Legal Counsel’s very own SCIF.

Some of the documents that went into the production of the torture memos–and should have been reviewed by OPR over the course of its investigation–disappeared some time in the last 5 years.

As I reported last September, after some delay in a FOIA response, Acting head of OLC, David Barron confessed that OLC could not find all of the documents that it had first listed on a 2006 FOIA response.

The problem, as Barron explained in his declaration, seems to stem from three things: CIA, not OLC, did the original FOIA search in 2005 and at that time did not make a copy of the documents responsive to FOIA; for long periods OPR had the documents, lumped in with a bunch of other torture documents, so it could work on is investigation; the documents got shuttled around for other purposes, as well, including other investigations and one trip to the CIA for a 2007 update to the FOIA Vaughn Index. [Here's the 2007 Vaughn Index and here's the Vaughn Index that accompanied Barron's declaration last September.]

And, somewhere along the way, at least 10 documents originally identified in 2005 as responsive to the FOIA got lost.


Not only did DOJ apparently do nothing about their own leaky SCIF, they took some time to even tell the ACLU about it. What’s a few sensitive torture documents escaping from their SCIFs after all?

But now, when it’s the CIA being compromised rather than the CIA doing the compromising, things quickly escalate to potentially criminal investigations.

DOJ seems to have a remarkably inconsistent standard response when torture documents disappear from SCIFs. I wonder why that is?

David Kris Points to the Clause Loopholed Under David Barron on Metadata Collection

I’m working on a longer post on David Kris’ paper on the phone [and Internet] dragnets.

But for the moment, I want to note that he strongly implies the US is relying on 18 U.S.C. § 2511(2)(f) to collect international metadata. He does it when he first introduces the phone dragnet secondary order (page 2).

The order excluded production of metadata concerning “communications wholly originating and terminating in foreign countries.”5 215 Bulk Secondary Order at 2; see Business Records FISA NSA Review at 15 (June 25, 2009) [hereinafter NSA End-to-End Review], available at http://www.dni.gov/files/documents/section/pub_NSA%20Business%20Records%20
FISA%20Review%2020130909.pdf; August 2013 FISC Order at 10 n.10; cf. 18 U.S.C. §2511(2)(f) (“Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978”). [my emphasis]

And he does it just after suggesting that the FISA Court may have approved the phone dragnet in 2006 — however shabby the legal case — just to have it under FISC supervision (note, he also nods to the Internet metadata dragnet, but as I’ll note he goes through some contortions to avoid addressing it all that directly).

More broadly, it is important to consider the context in which the FISA Court initially approved the bulk collection. Unverified media reports (discussed above) state that bulk telephony metadata collection was occurring before May 2006; even if that is not the case, perhaps such collection could have occurred at that time based on voluntary cooperation from the telecommunications providers. If so, the practical question before the FISC in 2006 was not whether the collection should occur, but whether it should occur under judicial standards and supervision, or unilaterally under the authority of the Executive Branch.147

147 With respect to metadata concerning foreign-to-foreign communications, which the FISC’s order expressly does not address, see 18 U.S.C. § 2511(2)(f)

This is important because it is precisely the clause (the one Kris cites above) that the Office of Legal Counsel reinterpreted in 2010 to cover past illegal access to phone metadata, including US based phone metadata.

The existence of that memo was first disclosed by Glenn Fine in his Exigent Letter IG Report. (See also this post.) He described how, in the context of its effort to clean up the legal process free access of phone data from the telecoms, DOJ had ordered up this opinion (though they claimed they were not relying on it). In 2011, DOJ provided enough information in response to a FOIA to make it clear the memo pertained to this passage.

Now, in context, Kris is just implying that the government is using this clause to get the telecoms to voluntarily turn over foreign to foreign communications.

Except we know precisely how the NSA defines “foreign communications.”

Foreign communication means a communication that has at least one communicant outside of the United States. All other communications, including communications in which the sender and all intended recipients are reasonably believed to be located in the United States at the time of acquisition, are domestic communications.

That is, so long as just one end of a communication is foreign, the NSA considers it a foreign communication (and therefore the telecoms can voluntarily disclose it under their interpretation of this clause of ECPA).

And remember: this opinion reinterpreting ECPA was written under the direction of — if not written by — David Barron, the guy Obama wants to have a lifetime appointment on the First Circuit.

I need to think through whether this means what I think it means. But it sure seems like Kris is not only saying that the government did use this loophole to collect metadata involving foreigners (and Americans). But given that DOJ claimed it could use this memo to clean up its entirely domestic communications problems (per the Fine IG Report), it sure seems like Kris is saying if we close the Section 215 collection, the government will just resume using ECPA.

Update: I just realized this post, which adopts an argument I made almost two weeks ago (that there is no original opinion for the phone dragnet) was written by Marty Lederman (who was at OLC during roughly the same period that Barron was).

Which is why I find it weird that Lederman makes an extended argument noting that an earlier clause in ECPA tweaked during the original PATRIOT Act bill prohibits this sharing of phone metadata.

You wouldn’t know it from Judge Eagan’s opinion–or from David Kris’s paper, for that matter–but Congress has actually considered the specific question about whether and under what circumstance service providers may disclose to the government the telephony metadata of their customers, and has enacted a statute dealing specifically with that question–a statute that expressly prohibits such disclosure.  Moreover, the prohibition in question was enacted as part of the very same law that includes Section 215, namely, the PATRIOT Act of 2001.

A provision of the Electronic Communications Protection Act (ECPA), 18 U.S.C. 2702(a)(3), states that “a provider of remote computing service or electronic communication service to the public shall not knowingly divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by paragraph (1) or (2)) to any governmental entity.”

Statutory language doesn’t often get much clearer than that:  A provider of remote computing service or electronic communication service to the public — a category that includes phone service providers — cannot knowingly convey consumer records or information to any governmental entity.

Remarkably, Congress added this prohibition to ECPA in section 212(a)(1)(B)(iii) of the 2001 PATRIOT Act itself–the same law in which section 215 expanded the “business records” provision upon which the government relies here.  The two provisions are only three pages apart in the Statutes at Large.  In other words, the government is relying here upon a broad, general “business records” provision included in the PATRIOT Act; but in that very same legislation, Congress included another provision specifically involving the business records of telephone customers, and in that more specific provision it precluded the very sort of records transfer at issue here.

The thing is, I find it almost impossible to believe that Lederman wouldn’t know about (or even didn’t review) that January 8, 2010 opinion. And he certainly must know what the implications of invoking foreign communications in the context of 18 U.S.C. § 2511(2)(f) to be.

I’m confused.

Update: I missed one other mention of 2511(2)(f), which comes in Kris’ incomplete description of all the violations in the phone dragnet program (it is incomplete, in part, because he cites from the June report of the problems rather than the August filing presenting them, which includes several more, probably more troubling violations; but he also misses details of a few of the other violations which is particularly interesting because he, of all people, must know this stuff).

(8) acquisition of metadata for foreign-to-foreign telephone calls from a provider that believed such metadata to be within the scope of the FISC’s orders, when it was not, NSA End-to-End Review at 15; cf. August 2013 FISC Order at 10 n.10 (“The Court understands that NSA receives certain call detail records pursuant to other authority, in addition to the call detail records produced in response to this Court’s Orders.”); see generally 18 U.S.C. § 2511(2)(f) (“Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978”);

His inclusion of it here is interesting because this violation is likely the collection that Reggie Walton shut down temporarily on July 9, 2009. Does that mean they just kept collecting from this provider (I wonder, by the way, whether it’s something exotic like Skype), and deemed it covered by 18 U.S.C. § 2511(2)(f)? If so, Kris would have been among those who made the decision to do so.

Another Reason David Barron Should Not Get a Lifetime Appointment without Further Disclosure

The other day I noted that President Obama had nominated David Barron to a lifetime appointment on the First Circuit even while his government was stonewalling the release  under FOIA of Barron’s OLC memo authorizing the due process-free execution of an American citizen.

While I presume Patrick Leahy will rush Barron’s confirmation through the Senate Judiciary Committee anyway, he shouldn’t, not until Americans have a better sense of Barron’s fairly outrageous claims (including, that courts couldn’t review such executions) in that memo.

Here’s another thing Leahy should insist we see before Barron gets to be a Circuit Judge.

If the N.S.A. does not immediately use the phone and e-mail logging data of an American, it can be stored for later use, at least under certain circumstances, according to several documents.

One 2011 memo, for example, said that after a court ruling narrowed the scope of the agency’s collection, the data in question was “being buffered for possible ingest” later. A year earlier, an internal briefing paper from the N.S.A. Office of Legal Counsel showed that the agency was allowed to collect and retain raw traffic, which includes both metadata and content, about “U.S. persons” for up to five years online and for an additional 10 years offline for “historical searches.”

Now, Barron left during the summer of 2010, so it’s not at all clear he wrote the OLC briefing paper (which presumably means “memo that is called something else to make it harder to FOIA”) authorizing retention of US person data, including content (presumably collected off the switches, but who knows?), for up to 15 years.

And it may well be that this is not as outrageous as an argument as those deployed to authorize the Anwar al-Awlaki killing. Perhaps this mem — um, briefing paper — doesn’t address the legality of the underlying collection at all and only addresses reasonable (!) retention policies under the Privacy Act or some other statute. Probably this memo invests the same blind faith in minimization — the argument that collecting and holding US person data is no big deal so long as there are procedures purportedly limiting the distribution of it, even if those procedures allow the Intelligence Community to operate with great discretion in secret –as the rest of NSA’s programs do.

So I’m not asserting that I know this mem– um, briefing paper — is problematic. I’m suggesting it may be.

I’m suggesting that we ought to know whether David Barron has green-lighted pretty broad abuses of US person privacy before he takes up an appellate position for the rest of his life.

Question: What Do David Barron and Jay Bybee Have in Common?

Answer: They were both nominated for a lifetime appellate court seat even as the Executive continued hiding their controversial OLC opinions.

Several hours ago, Barack Obama nominated David Barron, author of the notorious OLC memos authorizing the assassination of an American citizen with the kind of “due process” the Executive Branch gives, by itself, in secret, to serve on the First Circuit.

Yet even while Obama moved to make Barron a lifetime appointed judge, the FOIA suits to liberate the troubling opinion Barron authored continues at a snail’s pace. CIA filed an intransigent opinion back in August in the more general suit (that would, however, probably return Barron’s opinions). In a response a few weeks ago, the ACLU suggested that such frivolous claims could only serve to forestall the time when it will have to release the assassination-related documents.

The CIA’s blanket “no number no list” response is utterly deficient—indeed, it is so plainly inadequate that it verges on the frivolous. To justify a “no number no list” response, the agency must establish that not even one responsive document can be described, in any way,without revealing information that falls within FOIA’s exemptions. The CIA cannot carry this burden, and its brief barely makes the attempt. The agency’s “no number no list” response is so obviously deficient that one can only assume that the CIA’s goal is not to prevail on this motion but simply to delay as long as possible the day on which the agency will finally be required to explain what documents it is withholding and why.

While, when Bybee was confirmed to the Ninth Circuit, we had no idea about the Yoo-authored torture memos he rubber-stamped, we do know what one (of two) of Barron’s OLC opinions look like from the White Paper leaked to hasten John Brennan’s confirmation in February.

And at least from what we see, the authors of such an opinion have no business on a court. For starters, that’s because it suggested the Courts have no role in adjudicating the assassination of an American citizen.

Similarly, paragraph 23 (section IIC) refuses any review from Article III courts by invoking military (AUMF) operations to apply to some very spooky language.

Were a court to intervene here, it might be required  inappropriately to issue an ex ante command to the President and officials responsible for operations with respect to their specific tactical judgement to mount a potential lethal operation against a senior operational leader of al Qa’ida or its associated forces. 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.

I get that Courts shouldn’t be making battlefield decisions. But in spite of the fact this passage invokes the AUMF twice, the invocation of “officials responsible for operations” falls far short of limiting the assertions to just the military.

In other words, it’s another instance where the white paper asserts a claim that is uncontroversial for the military to apply to the CIA as well.

Perhaps more troubling, it suggests if the President orders the CIA to assassinate an American citizen, it is legal.

[T]he white paper effectively argues (though it doesn’t say so) that the President may, under Article II power alone, authorize the CIA to kill a U.S. citizen.

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 [note, they've dropped the senior operational leader modifier here!] of al-Qa’ida or its associated forces who poses an imminent threat of violent attack against the United States.

And just to be sure, the following paragraph again adopts the dual structure, and ends by says killing an American under such circumstances isn’t assassination because the President authorized it.

In fact, several of the claims Martha Lutz, the CIA person designated to lay out why CIA cannot reveal more details, point to covert actions that would be authorized by Presidential authorization.

Similarly, references to “legal memoranda” from either the CIA’s Office of General Counsel or the Department of Justice would reveal the extent to which the CIA’s involvement required formal legal analysis, which would raise the same concerns discussed above.


Theoretically, such involvement could be based on not only the CIA’s foreign intelligence gathering functions, but also its ability to conduct covert action and other activities as directed by the President.


Hypothetically, if it was officially confirmed that the CIA possesses this extraordinary authority, it would reveal that the CIA had been granted authorities against terrorists that go beyond traditional intelligence-gathering activities.

Which is all consistent with what then CIA and currently DOD General Counsel Stephen Preston said last year.

That is, there’s reason to wonder whether Barron gave legal rubber stamp to the kind of unilateral authority that has no place in a democracy.

And yet, if the Obama Administration has its way, that won’t become public before Barron’s nomination gets considered.

The NYT Grants David Barron and Marty Lederman a Mulligan on 18 USC 1119

I’ll have far more to say about this irresponsibly credulous accounting of the background to the Anwar al-Awlaki killing from the NYT tomorrow. But for the moment I wanted to point to an interesting detail about the genesis of the June-July 2010 OLC memo.

The NYT explains that David Barron and Marty Lederman wrote an initial short OLC memo to authorize Anwar al-Awlaki’s killing. But then, after reading a blog post that describes why such a killing would be a violation of 18 USC 1119, they decided they needed to do a more thorough memo.

According to officials familiar with the deliberations, the lawyers threw themselves into the project and swiftly completed a short memorandum. It preliminarily concluded, based on the evidence available at the time, that Mr. Awlaki was a lawful target because he was participating in the war with Al Qaeda and also because he was a specific threat to the country. The overlapping reasoning justified a strike either by the Pentagon, which generally operated within the Congressional authorization to use military force against Al Qaeda, or by the C.I.A., a civilian agency which generally operated within a “national self-defense” framework deriving from a president’s security powers.

They also analyzed other bodies of law to see whether they would render a strike impermissible, concluding that they did not. For example, the Yemeni government had granted permission for airstrikes on its soil as long as the United States did not acknowledge its role, so such strikes would not violate Yemeni sovereignty.

And while the Constitution generally requires judicial process before the government may kill an American, the Supreme Court has held that in some contexts — like when the police, in order to protect innocent bystanders, ram a car to stop a high-speed chase — no prior permission from a judge is necessary; the lawyers concluded that the wartime threat posed by Mr. Awlaki qualified as such a context, and so his constitutional rights did not bar the government from killing him without a trial.

But as months passed, Mr. Barron and Mr. Lederman grew uneasy. They told colleagues there were issues they had not adequately addressed, particularly after reading a legal blog that focused on a statute that bars Americans from killing other Americans overseas. In light of the gravity of the question and with more time, they began drafting a second, more comprehensive memo, expanding and refining their legal analysis and, in an unusual step, researching and citing dense thickets of intelligence reports supporting the premise that Mr. Awlaki was plotting attacks. [my emphasis]

This post — an April 8, 2010 post entitled “Let’s Call Killing al-Awlaki What It Is — Murder” — is almost certainly the blog post in question. There’s almost nothing else written on 1119 (there’s this legal journal article, but from Fall 2011), much less focusing specifically on Awlaki and published in a legal blog.

Which is interesting, because the post describes one of the possible bases for arguing that 1119 does not apply to the killing of Awlaki that Obama is just ignoring the statute as Commander-in-Chief.

Which leads us to the second possible explanation of why 18 USC 1119 does not apply: because Obama has authorized the CIA to kill al-Awlaki.  That explanation seems implicit in much of the media’s coverage of the Obama administration’s decision; I have yet to see any reporter ask why Obama believes he has the legal authority to order Americans killed, given that 18 USC 1119 specifically criminalizes such killings.  The argument, however, is deeply problematic — and eerily reminiscent of debates over the Bush administration’s authorization of torture. The Bush administration argued that Bush had the authority as Commander-in-Chief to ignore the federal torture statute, 18 USC 2340; the Obama administration seems to now be arguing, albeit implicitly, that Obama has the authority as Commander-in-Chief to ignore the foreign-murder statute.

As I noted, while the white paper, at least, plays a neat rhetorical game to collapse AUMF and Article II authorizations, ultimately it uses this language to explain why an Article II authorized killing of Awlaki would not violate 1119.

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.

In other words, the white paper, at least, does precisely what Kevin Jon Heller warned might be so troubling — it said that if the President authorized Awlaki’s killing, it would mean 1119 would not apply.

To the extent that the white paper fairly reflects the content of the OLC memo, then, David Barron and Marty Lederman failed to find a counterargument to precisely the argument that appears to have convinced them to write a second, longer OLC memo in the first place.

Which may be why the NYT article goes to such lengths to try to explain away this apparent problem.

Continue reading

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 speaks as if Awlaki, whom he refers to as a cleric, not an AQAP member, was a designated target of December 24 attack.

Continue reading

Is One of the Anwar al-Awlaki Memos a Revised Imminence Standard?

I’ve been working on a theory on why the white paper is so crappy based, in part, on a problem international law experts keep making. For my purposes, Noura Erakat’s description of the problem will suffice, but a ton of people have raised it.

Imminence is one element of the law of self defense and has no bearing upon the lawfulness of a target where there is an existing armed conflict. Instead, in ongoing hostilities, the legality of a target is a status-based assessment that distinguishes combatants from civilians. Unless he surrenders, a combatant can be killed regardless of activity. In contrast, a civilian retains his immunity unless he directly participates in hostilities, which is subject to a wholly distinct legal analysis. The point is this: if Al-Awlaki, or another target, is indeed a combatant in the U.S.’s ongoing hostilities authorized by the 2001 Authorization for the Use of Military Force (AUMF), an imminence analysis is not relevant at all.

If, as the white paper sort of suggests, the AUMF is what justifies Anwar al-Awlaki’s killing and the government had evidence he was operational (that is, a legitimate combatant with AQAP after the point when AQAP was added to the official AQ roster) then imminence should be moot. So why is it in there, particularly in such a crazyass form?

Consider, though, that we know there are multiple memos: two, according to DiFi, in the opening moments of the John Brennan hearing, though Ron Wyden insisted the Committee hadn’t received all the targeted killing memos and DiFi may have said they’re waiting on 8 more.

Also we know that Ron Wyden has been asking whether the Administration killed Awlaki under AUMF or Article II authorities, suggesting that the Administration may be making arguments based on one or another in different memos.

So I’m going to advance the wildarsed guess that — rather than being a simple summary of the June 2010 memo we know about — the white paper is actually a pained amalgam meant to encompass the more radical memos, while still retaining some patina of whatever decent argument Marty Lederman and David Barron made in June 2010.

Continue reading

Columnist Endorses War Crimes Against al Qaeda Because They Murdered a Journalist

I had never heard of Alex Beam before today, but his column in today’s Boston Globe crossed my email (h/t dakine01) and I am still fuming at his cavalier endorsement of war crimes. Perhaps even more infuriating, though, is that Beam’s endorsement of war crimes is an aside tossed in while Beam is making an argument with which I otherwise agree.

Beam’s central point, as he suggests in his title for the column,”A double standard on war crimes?”, is that while John Yoo has been widely vilified for his role in authoring the OLC memos that authorized torture, David Barron and  Martin Lederman haven’t been attacked nearly as aggressively for authoring the OLC memos under which Anwar al-Awlaki, an American citizen, was killed in Yemen.  My only quibble with that point is that Beam’s roster for the torture memos should be expanded to also include at least Jay Bybee and Steven Bradbury.  His argument:

So, which is the greater crime against the Constitution that all three men swore to uphold? Waterboarding Al Qaeda suspects or killing US citizens? Yoo has been vilified from Marin County to Munich for his legal opinion. If the Obama lawyers are facing job loss or tenure revocation, I haven’t heard about it. This is not a subject they care to discuss.

Beam relies on Mary Ellen O’Connell of Notre Dame to further his argument:

“I do think the two cases call for a different level of criticism,’’ she says. “Isn’t killing worse than torture? Even if the arguments to support torture are weaker arguments, it seems to me that the US should err on the side of the strictest compliance of the law when it comes to taking somebody’s life.’’

Where is the outrage, I asked? It won’t come from the right, she pointed out, “because the policies that Obama is pursuing are basically the same policies that Bush pursued.’’ So where are the principled men and women of the left? “Some of the people who criticized Yoo and his colleagues are in the administration,’’ she answered. “Marty Lederman was a critic of John Yoo, and now he’s writing the memos. So he’s not going to criticize himself.’’

I agree that Lederman and Barron should be subjected to the same level of criticism as Yoo (and Bybee and Bradbury), although I’m less inclined to make a distinction between the crimes of murder and torture.  I find both equally heinous and never justified under any conditions.  As O’Connell points out, the torture arguments likely were much farther outside the law than the extrajudicial execution arguments, but I still can’t join her in making killing artificially a higher crime than torturing.

But here is the jaw-dropping problem with Beam’s column.  Just a bit over halfway through the column, we get this paragraph:

Two points. First, I’m all for waterboarding Al Qaeda bad guys, and the disappearance of al-Awlaki and his ilk by whatever means necessary bothers me not a whit. Continue reading

No Wonder the Administration Didn’t Want Buck McKeon’s New AUMF; Marty Lederman Already Gave Them One

Glenn Greenwald has a typically provocative post on the news that Marty Lederman and David Barron wrote the authorization to kill Anwar al-Awlaki. He uses Dawn Johnsen’s comments on the way secret OLC memos create secret law that undermine democracy.

Obama’s original choice to head the OLC, Dawn Johnsen, repeatedly railed against this Bush practice of concealing OLC memos as “secret law,” writing that “the Bush Administration’s excessive reliance on ‘secret law’ threatens the effective functioning of American democracy” and “the withholding from Congress and the public of legal interpretations by the Justice Department Office of Legal Counsel (OLC) upsets the system of checks and balances between the executive and legislative branches of government.”  In her April, 2008 testimony before the Senate Judiciary Committee, she was nothing short of scathing on the practice of concealing OLC memos. [Glenn's emphasis]

From there, he notes that Lederman and Barron used the same justification–the AUMF–that John Yoo used to justify the detention without due process of Jose Padilla.

So the AUMF allowed the President to designate Awlaki an “enemy combatant” without a shred of due process, and then to act against him using the powers of war, because we are at war with an entity for which Awlaki had become a combatant.

There are many problems with that reasoning, but one in particular that deserves attention now is this: that was exactly the theory repeatedly offered by the Bush DOJ for far less draconian acts than assassinating a U.S. citizen, and it was one that the very same Marty Lederman categorically rejected.  As I’ve noted many times, one of the most controversial Bush/Cheney acts was its claimed power to detain U.S. citizen Jose Padilla without charges or due process — not to kill him, but merely detain him — on the theory that the AUMF authorized the President to designate him as an “enemy combatant” and treat him accordingly. [Glenn's emphasis]

I’m not sure I buy this comparison. There are times when the US might legally wage war against one of its citizens, but because of its own secrecy, the Administration has simply not made the case that that is true in this case.

One of the big problems with Lederman and Barron’s interpretation of the AUMF, though–one Glenn doesn’t treat closely but which perfectly exemplifies Johnsen’s point–is the extension of the AUMF to apply to AQAP, an entity that simply didn’t exist when the AUMF authorized war against groups that had launched 9/11.

Other assertions about Mr. Awlaki included that he was a leader of [AQAP], 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.

One area where Lederman’s reported memo is particularly dangerous, IMO, is in the extension of the AUMF to groups clearly not included in the congressional authorization.

All the more so given events that have transpired since the memo was written in June 2010. One of the first things the new Chair of the House Armed Services Committee, Buck McKeon, did after last year’s election was to call for a new AUMF. Notably, he wanted to include Yemen (and AQAP) in the new AUMF. The Administration was disinterested in that new AUMF, stating they believed already had the authority to do what they need to.

They claim to have that authority, of course, because Marty Lederman said they have it.

No wonder they discouraged a new AUMF! An open debate over the new terms of the AUMF might interpret AQAP more restrictively than Lederman did in secret, which might have challenged the OLC memo authorizing the Awlaki killing (yeah, I know, the chances of that are almost nonexistent).

Furthermore, I wonder whether the Administration told Congress they had already effectively legally expanded the AUMF? McKeon counterpart Carl Levin’s call for the Administration to release the memo makes me wonder whether he has seen it, and if not whether he knows the Administration legally expanded the AUMF by secret fiat.

Which is why Glenn’s point that the Administration avoided not just Article III oversight, during the ACLU/CCR suit, on this killing, but also Congressional oversight is so important. I don’t support McKeon’s effort to write a new AUMF. But it is undeniable that Congress proposed changing the law in such a way that would have given the Awlaki killing more–though probably not adequate–sanction. Rather than embracing the opportunity by working with Congress to formally extend the war to Yemen and AQAP, the Administration instead operated with the secret self-sanction Lederman had already given it.

The Administration chose not to avail itself of the opportunity to explain in the context of an Article III court why it had the authority to kill Awlaki. So, too, it chose not to avail itself of the opportunity to negotiate with Congress to give the Awlaki killing more (though not adequate) legal sanction. Instead, it used its own secret law-making power to do what the other two branches of government could have done with transparency and legitimacy.

Update: Meanwhile, McKeon is holding the Defense Authorization hostage to his bigotry.

How Can Samir Khan Be “Collateral Damage” If OLC Memo Restricted Civilian Death?

Here’s the 32nd of 33 paragraphs in a Charlie Savage story describing the state secrets-protected explanation that justifies the killing of Anwar al-Awlaki.

The memorandum did assert that other limitations on the use of force under the laws of war — like avoiding the use of disproportionate force that would increase the possibility of civilian deaths — would constrain any operation against Mr. Awlaki.

That is, among the other restrictions on the assassination of Anwar al-Awlaki, the memo also said the government had to make efforts to avoid “civilian deaths.”

You know? Civilians? Like Samir Khan, the other American citizen killed in the strike? A propagandist, but not–according to any claim–an operational terrorist?

Yet in spite of the fact they had been following Awlaki for weeks–presumably gathering a good deal of detail in the process–they still killed him in such a way that they didn’t avoid killing an American citizen.

As Savage describes, the memo also says they can only kill someone like Awlaki if they can’t take him alive. But we’ve already seen a stream of articles saying the government simply avoids capture now because it’s … well … inconvenient. Did the David Barron memo prohibit the killing of Americans if capture was inconvenient?

Two more important details of this. First, as seemingly always happens, OLC simply trusted the Executive Branch agency to give it credible intelligence.

The memorandum, which was written more than a year before Mr. Awlaki was killed, does not independently analyze the quality of the evidence against him.

I presume the memo says, “you’ve given us this information; if it proves to be otherwise, our advice might be different.”

And then there’s the timing:

December 24, 2009: Administration tries unsuccessfully to kill Awlaki as collateral damage

Before January 26, 2010: Awlaki may or may not be placed on CIA (or JSOC) kill list

April 2010: Awlaki put on kill list

June 2010: OLC opinion authorizing Awlaki assassination

June 2010: David Barron announces his departure

July 2010: Marty Lederman announces his departure

August 2010: ACLU and CCR sue on Awlaki targeting

September 2010: Administration considers charging Awlaki

September 2010: After not charging Awlaki, the government declares the material just leaked to Charlie Savage a state secret

April 2011: The Administration tries, but fails, to kill Awlaki

September 2011: The Administration assassinates Awlaki and Khan

In other words–as Savage suggests–they had Awlaki on the kill list before they had actually done the review whether or not he should be there.

I can see why I’d want to leave the department if that had happened to me in OLC.

Emptywheel Twitterverse
bmaz Was the police response to Boston bombing really appropriate? http://t.co/uWcY77L9Wi Answer is no; great work by @radleybalko @WPTheWatch
bmaz @GregoryMcNeal No. And it was pretty obvious from the start.
bmaz I see all the good news+discussion on pardons today and can't help but think what profound+great impact @DafnaLinzer + @ProPublica crew had.
bmaz RT @JameelJaffer: Excellent piece by @rgoodlaw & @SarahKnuckey about @nytimes' reporting on drone strikes in Yemen. http://t.co/08yMJVr3fG
bmaz @FalguniSheth @gideonstrumpet Fair point. I think my county is bigger than 8 states, all up there except Hawaii.
bmaz @gideonstrumpet @FalguniSheth Don't know about Falguni's schedule, but @emptywheel is going to be around a bit, you should hook up.
bmaz @gideonstrumpet @FalguniSheth Right. But that is not exactly CT....
bmaz @gideonstrumpet @FalguniSheth Wait, you are traveling?
bmaz @FalguniSheth @gideonstrumpet No, like me Gid is really a recluse.
bmaz This----> RT @DLind This morning's DOJ announcement is a BFD. And we are on hand to explain why it matters. http://t.co/zahKzX0jLK
bmaz @FalguniSheth @emptywheel You girls keep the lawyer near you. Never know when the professional pricks might be handy.
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