Gloves Come Off Memorandum of Notification

Happy “Dirty Your Hands” by Partnering with Bashar al-Assad Day

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As I noted last week, 12 years ago today, President Bush signed the Memorandum of Notification that governed — and as of last year, at least, still governs — our war on terror.

Part of that MON, according to Bob Woodward’s Bush at War, includes partnering with “rogue regimes” like Syria on intelligence collection.

[Tenet] called for initiating intelligence contact with some rogue states such as Libya and Syria that he said might be helpful in trying to destroy al Qaeda. For the CIA to obtain helpful information against the terrorists, they might have to get their hands dirty.

After signing that MON, Bush’s own regime sent people like Maher Arar off to be tortured by Bashar al-Assad’s government.

The same guy we almost went to war against last week because he’s so barbaric, we partnered with, in a policy set by the President, outsourcing our torture.

As of May 25, 2012, the government was still relying on this MON (probably, at a minimum, to cover the drone and other method assassinations that aren’t covered by any AUMF).

I already noted all this; I wasn’t going to otherwise call out the anniversary of the day the “Gloves Came Off.”

But then I saw this clip of Philip Mudd on Colbert. About halfway through, Mudd says we have to fight Syria because Assad is,

a tyrant who has a reckless abandon when he murders innocents. At what point do you draw a line and say we are not just US citizens, we’re global citizens?

Mudd then goes on to answer a question about whether he tortured prisoners by saying he was Deputy Director of the Counterterrorism Center, which held and tortured prisoners.

He doesn’t regret that, he says.

He then goes on to admit he signed papers to render prisoners.

Mudd: If you’re asking if I’m responsible for some of that, the answer’s yes.

Colbert: Alright, you think that was the right thing to do.

Mudd: Yes.

Colbert: And we renditioned some of those people to Syria.

Mudd: Uh, I think the answer’s yes, I don’t [shakes head]

Colbert: OK

Mudd: We rendered a lot of people.

At what point do you draw a line, says this man, who can’t even remember that Syria was indeed one of the countries we outsourced our torture to, even the torture of an innocent man. We must be global citizens, not just American citizens, he says, and doing anything else is a sign of cowardice.

And yet, this intelligence expert can’t even figure out why Assad thinks he can get away with murdering his own people.

Tommy Vietor and I Exchange On the Record Non-Dickish Comments

Back in the days, just weeks ago, when Tommy Vietor was the National Security Council Spokesperson, I tended to attribute the dickish comments made by Senior Administration Officials in articles in which he was also quoted to him.

When he left, we had this exchange on Twitter.

Screen shot 2013-03-04 at 9.38.18 PM

I will say this for him. He’s a good sport.

I don’t envy his position trying to claim the Obama Administration lives up to its self-billing as the Most Transparent Administration Evah™, based on releasing White House visitor logs.

All that said, I would have added two points to the exchange above.

First, the Administration is not conducting counterterrorism exclusively under the AUMF.

Obama’s own Administration went to the mat in 2009 to prevent a short phrase — maybe 6 words — from being released under FOIA making it clear that torture was originally conducted under the September 17, 2001 Gloves Come Off Memorandum of Notification on President Bush’s authorization alone. And they managed to win that battle by arguing the MON — which authorizes targeting killing, among other things — is still active. So, no, Tommy, the Administration is not operating — not exclusively anyway — under the AUMF.

Also, what the fuck kind of democracy are we if we require lawsuits for basic democracy to take place? It’s all well and good of Vietor to say we (only Trevor Timm of the three of us really has the funds to sue sue sue, and even then, only in selective situations) should just sue our way to democracy. But the law says we shouldn’t have to sue.

Anyway, it was a particularly fun appearance, and great to be on with Kevin Gosztola and Trevor Timm as well.

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.

Emptywheel Twitterverse
bmaz @joshgerstein @hbottemiller @ObamaFoodorama Were they screwing or drinking the sushi?
5mreplyretweetfavorite
bmaz @CBSAndrew @MikeSacksEsq Joined; good to see Mike back.
7mreplyretweetfavorite
bmaz And I still maintain Naverette has far greater Constitutional significance than Schuette. It deserves more attention.
9mreplyretweetfavorite
bmaz Here's @ScottGreenfield on why Navarette is such a heinous decision, and why Scalia's dissent is praiseworthy http://t.co/JkFbebz4tC
11mreplyretweetfavorite
bmaz The dragnet too. Getting snitches big FBI goal RT @adamgoldmanwp Lawsuit: FBI using no-fly list to recruit informants http://t.co/TqeLQT8gPO
20mreplyretweetfavorite
bmaz This quote by Guantanamo lead prosecutor Andrea Lockhart is proof of the total farce that are the Gitmo Show Trials https://t.co/NmvPfzWXdZ
33mreplyretweetfavorite
bmaz @carolrosenberg So she has never practiced in federal, state or local courts?
35mreplyretweetfavorite
JimWhiteGNV With Removal of Materials Under CW Agreement Nearly Complete, Concern in Syria Over Chlorine Use http://t.co/FuRNs7bmpT
37mreplyretweetfavorite
bmaz @ScottGreenfield @VolokhC @OrinKerr That will be one of the saddest moves imaginable in the legal blogging community.
38mreplyretweetfavorite
emptywheel Reup: Back Door Searches: One of Two Replacements for the Internet Dragnet? http://t.co/17vCc9ZbRe
43mreplyretweetfavorite
bmaz @michaelwhitney Have you considered meth?
44mreplyretweetfavorite
bmaz @EdgeofSports FYI: A look at Pat Tillman the man, apart from football and Army http://t.co/LHFaQOUS99
49mreplyretweetfavorite
April 2014
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