There are multiple reports that President Obama is considering nominating Jeh Johnson to head DOD.
I get the attraction. Obama and Johnson get along well. Johnson only recently left DOD, so he knows it — and the legal loopholes it exploits — well. And in Johnson, Obama would have someone who would gloss his warmaking as something noble.
I even think Obama might welcome the way such a nomination would heighten the confrontation with the GOP on immigration.
Still, Johnson has served as head of DHS for less than a year. His tenure is only now marking a transition from a period during which DHS had such a wildly spinning revolving door that it could begin to serve its alleged mission.
An exodus of top-level officials from the Department of Homeland Security is undercutting the agency’s ability to stay ahead of a range of emerging threats, including potential terrorist strikes and cyberattacks, according to interviews with current and former officials.
Over the past four years, employees have left DHS at a rate nearly twice as fast as in the federal government overall, and the trend is accelerating, according to a review of a federal database.
The departures are a result of what employees widely describe as a dysfunctional work environment, abysmal morale, and the lure of private security companies paying top dollar that have proliferated in Washington since the Sept. 11, 2001, attacks.
And all that’s on top of DHS’s almost impossible mandate, both because it is either too big or poorly defined.
Look, I’m sure Johnson’s a nice guy and maybe a great manager (he hasn’t been in place long enough for us to know).
But if DHS is a necessary agency, if its domestic spying and immigration and cybersecurity and disaster recovery missions are vital to this nation, if it is going to survive as a many-headed monster, then it should have the person Obama thinks is his best Agency head leading it. If that person is Johnson — as Obama’s consideration of him to lead DOD suggests — then moving him would seem to be a concession that DHS, and its obvious failures, really isn’t all that important after all.
If Obama moves Johnson from DHS to DOD, he should, at the same time, break DHS back up into more manageable agencies, declare the whole experiment an expensive failure, eliminate the word “Homeland” from our vocabularies. Because it is not working, and if there’s no urgency to make it work, then we should break it up into parts that can function competently again.
At a House Judiciary Committee oversight hearing for Department of Homeland Security today, Trent Franks implored DHS Secretary Jeh Johnson to consider the threat of electromagnetic pulse or geomagnetic disturbance to the electrical grid because “we have additional information that seems to indicate the threat is more significant than we have been aware of.”
Franks also submitted an amendment to the Intelligence Authorization requiring the Director of National Intelligence to report on the threat EMPs pose to the US through 2025.
I have no idea whether this is credible or not. Franks is not one of the Members of Congress I consider to be the most reliable (and our resident desert rat has even less complimentary things to say).
But golly. Franks sure seems worried about the EMP threat of late.
I’ll have more to say about Jeh Johnson’s skeptical speech on a drone and/or targeted killing court later.
But I wanted to point to this detail:
Our government finds itself in a lose-lose proposition: it fails to officially confirm many of its counterterrorism successes, and fails to officially confirm, deny or clarify unsubstantiated reports of civilian casualties.
Our government’s good efforts for the safety of the people risks an erosion of support by the people.
It is in this atmosphere that the idea of a national security court as a solution to the problem — an idea that for a long time existed only on the margins of the debate about U.S. counterterrorism policy but is now entertained by more mainstream thinkers such as Senator Diane Feinstein and a man I respect greatly, my former client Robert Gates – has gained momentum.
To be sure, a national security court composed of a bipartisan group of federal judges with life tenure, to approve targeted lethal force, would bring some added levels of credibility, independence and rigor to the process, and those are worthy goals.
In the eyes of the American public, judges are for the most part respected for their independence.
In the eyes of the international community, a practice that is becoming increasingly controversial would be placed on a more credible footing. [my emphasis]
As I understand it, the model under discussion is simply to give the existing FISA Court the additional task of reviewing kill decisions, not creating a new court.Yet the FISA Court — whose judges are appointed by the Chief Justice of the Supreme Court (and therefore, for the entire life of the FISA Court, by a Republican appointee) — is in no way bipartisan.
At the time he wrote the white paper, Delery was Senior Counselor to Attorney General Eric Holder. Last March, he became Principal Deputy Assistant Attorney General in the Civil Division of DOJ and, in the absence of an Assistant AG (or, as far as I can tell, even a nominee, in which case this feels a lot like what George Bush did with Steven Bradbury when he left the Acting head in charge for years on end), the Acting head of the Civil Division.
As I also noted, Delery actually argued the government’s case in the ACLU’s Drone FOIA on September 20, 2012. Now, that’s the ACLU’s other drone FOIA, not the one specifically requesting information that should have included the unclassified white paper Delery wrote if DOJ had answered the FOIA in good faith.
Nevertheless, it asked for closely related information:
The Request seeks a variety of records relating to the use of unmanned aerial vehicles to conduct targeted killings, including the legal basis for the strikes and any legal limits on who may be targeted; where targeted drone strikes can occur; civilian casualties; which agencies or other non-governmental entities may be involved in conducting targeted killings; how the results of individual drone strikes are assessed after the fact; who may operate and direct targeted killing strikes; and how those involved in operating the program are supervised, overseen or disciplined.
At the time ACLU submitted the request on January 13, 2010, Delery was in the Deputy Attorney General’s Office. DOJ responded to its part of the FOIA on February 3, 2010 — 16 days after DOJ worked on a briefing on targeted killing Eric Holder would make to President Obama and 15 days after he delivered that briefing — by claiming only FBI would have responsive records. When FBI searched its records it found none. DOJ made that initial response 6 days before someone in DAG — Delery’s office — wrote an email to OLC about the Holder briefing.
So while DOJ’s non-responsiveness in the drone FOIA is not as egregious as it was in the Awlaki FOIA, it’s still clear that the department Delery worked in, if not (as in the Awlaki FOIA) Delery’s work itself, was shielded from FOIA by a disingenuous FOIA response.
Yet Delery, the Acting head of the Civil Division, nevertheless decided he should argue the government’s case. Technically, Delery was arguing for CIA’s right to pretend it hadn’t confirmed its role in drone strikes in spite of repeated public statements doing just that, so he wasn’t defending the non-disclosure of his Department’s work, per se. Still, it’s not generally considered good form for a lawyer to argue a matter in which he has been so closely involved. He did so, however, at a time before we knew just how centrally involved he was in this matter.
With all that in mind, I thought I’d look at what Delery said to the DC Circuit.
MR. DELERY: May it please the Court, Stuart Delery for the Appellee, CIA.
This Court in several cases has identified two important interests that the strict test for official confirmation serves. It protects the Government’s vital interest in information related to national security and foreign affairs, and it advances FOIA’s interest in disclosure by not punishing officials for attempting to educate the public on matters of public concern because otherwise officials would be reluctant to speak on important national security matters.
Here, the Government has acknowledged that the United States makes efforts to target specific terrorists as part of its counter-terrorism operations, that as part of those operations or, in some cases, those operations involve the use of remotely piloted aircraft or drones, and it’s also described the legal framework and standards that apply in this context in a series of speeches and interviews including by the President’s counter-terrorism advisor, John Brennan, but also the Attorney General, the legal advisor to the State Department, the General Council of DOD, and as has been referenced in yesterday’s or the recent exchange of 28J letters including a recent interview by the President. But, there’s been no official acknowledgment one way or the other about whether the CIA is involved in these particular operations. [my emphasis]
Delery suggests that a series of Leon Panetta comments (both before and after he moved from CIA to DOD) making the CIA’s role in drone killing clear should not amount to confirmation that the CIA is involved in drone killing because, he says, FOIA’s interest in disclosure should not punish public officials for attempting to educate the public.
Or, to put it another way, the Administration giving a bunch of self-serving speeches should not then make the topic of those speeches subject to FOIA because, in Delery’s mind, that would work contrary to FOIA’s support for disclosure because it would punish officials for giving self-serving speeches.
When I compared what appeared in Eric Holder’s March 2012 targeted killing speech and the targeted killing white paper, I discovered two sections that appear in Holder but not the white paper: a section on leaders as targets.
Furthermore, it is entirely lawful – under both United States law and applicable law of war principles – to target specific senior operational leaders of al Qaeda and associated forces. This is not a novel concept. In fact, during World War II, the United States tracked the plane flying Admiral Isoroku Yamamoto – the commander of Japanese forces in the attack on Pearl Harbor and the Battle of Midway – and shot it down specifically because he was on board. As I explained to the Senate Judiciary Committee following the operation that killed Osama bin Laden, the same rules apply today.
And a section asserting that the technology of drones doesn’t change the legal principles behind the use of lethal force.
These principles do not forbid the use of stealth or technologically advanced weapons. In fact, the use of advanced weapons may help to ensure that the best intelligence is available for planning and carrying out operations, and that the risk of civilian casualties can be minimized or avoided altogether.
But that language was not new to the Holder speech; it appears as two of the main bullet points in Harold Koh’s March 2010 speech addressing, in part, our use of drones.
First, some have suggested that the very act of targeting a particular leader of an enemy force in an armed conflict must violate the laws of war. But individuals who are part of such an armed group are belligerents and, therefore, lawful targets under international law. During World War II, for example, American aviators tracked and shot down the airplane carrying the architect of the Japanese attack on Pearl Harbor, who was also the leader of enemy forces in the Battle of Midway. This was a lawful operation then, and would be if conducted today. Indeed, targeting particular individuals serves to narrow the focus when force is employed and to avoid broader harm to civilians and civilian objects.
Second, some have challenged the very use of advanced weapons systems, such as unmanned aerial vehicles, for lethal operations. But the rules that govern targeting do not turn on the type of weapon system used, and there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict– such as pilotless aircraft or so-called smart bombs– so long as they are employed in conformity with applicable laws of war. Indeed, using such advanced technologies can ensure both that the best intelligence is available for planning operations, and that civilian casualties are minimized in carrying out such operations.
In addition to situating drone strikes within law of war principles, Koh also addressed two other issues that show up in the white paper (and Holder’s speech): due process and assassinations.
Third, some have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in an armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force. Our procedures and practices for identifying lawful targets are extremely robust, and advanced technologies have helped to make our targeting even more precise. In my experience, the principles of distinction and proportionality that the United States applies are not just recited at meetings. They are implemented rigorously throughout the planning and execution of lethal operations to ensure that such operations are conducted in accordance with all applicable law.
Fourth and finally, some have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.”
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.
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.
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:
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.
Charlie Savage covers a very troubling development in the case of Ali al-Bahlul, a Yemeni who is serving a life sentence for serving as Al Qaeda’s videographer.
After Hamdan had his conviction vacated by the DC Circuit last year because material support was not a war crime at the time of his support for al Qaeda, Bahlul’s conviction was put in jeopardy too. As Savage earlier reported, there was a debate among the national security lawyers. And in spite of the fact that almost everyone disagreed with Eric Holder on this count, Holder made them press forward anyway.
The Obama administration, after a high-level debate among its legal team, told a federal appeals court on Wednesday that the conviction of a Guantánamo Bay prisoner by a military commission in 2008 was valid even though the charges against him — including “conspiracy” and “material support for terrorism” — were not recognized as war crimes in international law.
Attorney General Eric H. Holder Jr. decided to press forward with the case, fighting the appeal of a guilty verdict against the prisoner, a Yemeni man named Ali al-Bahlul. In an unusual move, Mr. Holder overruled the recommendation of the solicitor general, Donald B. Verrilli Jr., who had wanted to drop the case because the appeals court had rejected the same legal arguments in another case several months ago, according to officials familiar with the deliberations.
The chief prosecutor of the military commissions system, Brig. Gen. Mark Martins, had also urged the Justice Department to drop the case and pointedly did not sign the 22-page brief to the court on Wednesday. It concedes that the judges must side with Mr. Bahlul at this stage because of the earlier ruling in the other case, but argues that the earlier ruling was wrong.
It sure appears that Eric Holder is just counting on getting the same kind of batshit crazy ruling he got in Latif, so as to sustain his legally unjustified detention.
What’s especially interesting about this, however, is the Kremlinology. Back in early December over the course of two days time, both Jeh Johnson and Harold Koh resigned. It felt very much like a protest, or a refusal to be part of something that struck them as legally unsound (I thought then–as still suspect–it was partly a response to John Brennan’s halt of the effort to put drones on a sound legal footing).
And now we know that around that time, the Attorney General was overriding not just their advice, but that of most of the others involved in this, including the Solicitor General and the Military Commission Chief Prosecutor.
Yesterday’s brief, incidentally, was signed by the Acting Deputy General Counsel at DOD, not Johnson (of course).
So Johnson and Koh are gone. And Eric Holder? The Administration just announced he will stay into the second term. (And, not incidentally, yesterday I floated the suggestion that Lisa Monaco, who sided with Holder on this fight, would be named to replace FBI Director Mueller later this year; a number of smart people suggested that was a smart prediction.)
Update: In the WaPo version of this story, Steve Vladeck suggests that if the government really planned to push forward with an appeal of this to SCOTUS (that is, to reverse the ruling in Hamdan II), the language in the brief would have been stronger.
Incidentally, I wonder yet again about the case of the three Somalis in this context. Is this why they added a conspiracy charge to their indictment, to establish that as a precedent in this situation?
There’s been a series of moves and trial balloons among Obama’s national security lawyers that lead me to assume that any effort to apply some regularity and the patina of legality to the drone program is dead.
First, after some reporting that he might replace Eric Holder as Attorney General, DOD General Counsel Jeh Johnson instead announced his resignation, effective the moment the New Year’s ball drops.
Mr. Johnson, who was general counsel to the Air Force during the Clinton administration, was a key legal adviser and fund-raiser for then-Senator Obama during his run for the presidency in the 2008 campaign. On Thursday, he sent Mr. Obama a letter saying that he would resign effective midnight on Dec. 31.
“Thank you for the opportunity to be part of your campaign, your transition, and your Administration,” Mr. Johnson wrote. “Thank you also for the best clients I will ever have: Robert Gates, Leon Panetta, and the men and women of the U.S. military.”
Mr. Johnson, a former prosecutor, has been mentioned as a potential attorney general should Eric H. Holder Jr. step down in Mr. Obama’s second term. That speculation has been centered more among his colleagues in the Pentagon rather than among civilian law enforcement officials, however.
In his current job, Mr. Johnson worked closely on internal debates about the scope and limits of the government’s power to hold terrorism suspects in indefinite detention and to target them with drone strikes in places like Yemen and Somalia. In those debates he generally sought broader latitude for the government than some others, notably State Department officials.
But Mr. Johnson took a more restrained position than some colleagues during the NATO-led air war in Libya. As American participation in the effort neared an apparent 60-day limit imposed by the War Powers Resolution for hostilities that had not been authorized by Congress, he urged pulling back on direct combat activities – like missile strikes – but was overruled by the White House.
Now, as Charlie Savage notes, the reports that Johnson might be named Attorney General seemed to come from Johnson’s backers, not the White House. And as Savage reports, Johnson’s role has been mixed. While he pushed for more flexibility–particularly with drones themselves–he did try to hew to rule of law in other areas. And he recently suggested that the AUMF the government has operated under will one day (I would argue, already has) effectively been vacated because core al Qaeda has been disrupted so thoroughly.
I do believe that on the present course, there will come a tipping point – a tipping point at which so many of the leaders and operatives of al Qaeda and its affiliates have been killed or captured, and the group is no longer able to attempt or launch a strategic attack against the United States, such that al Qaeda as we know it, the organization that our Congress authorized the military to pursue in 2001, has been effectively destroyed.
At that point, we must be able to say to ourselves that our efforts should no longer be considered an “armed conflict” against al Qaeda and its associated forces; rather, a counterterrorism effort against individuals who are the scattered remnants of al Qaeda, or are parts of groups unaffiliated with al Qaeda, for which the law enforcement and intelligence resources of our government are principally responsible, in cooperation with the international community – with our military assets available in reserve to address continuing and imminent terrorist threats.
Once core al Qaeda has been decimated (which they have been), Johnson said, the military must become solely a reserve force, with intelligence and law enforcement leading the fight.
In many ways, the speech reads, in hindsight, like a valedictory, listing Johnson’s personal accomplishments at DOD (notably, the repeal of Don’t Ask Don’t Tell). But it also calls for conventional legal limits to the war on terror.
And then, days after delivering that speech, Johnson was not only not named to replace Holder, but was himself on the way out the door.
Then the day after Johnson’s departure announcement, came State Department Counselor Harold Koh’s.
That one I find more troubling. While it might just be tied to Yale’s desire to have Koh do his job again (though those transitions usually happen in August, not December), and while Hillary’s departure may explain Koh’s departure (though Hillary isn’t leaving for some time yet), Koh’s departure comes just weeks after Scott Shane’s report that the attempt to put order to the drone program–which had first been reported before the election–had stalled after the election. I suggested then that the Shane report might be an effort from those trying to put more legal regularity to the drone program–an effort undoubtedly led by Koh–to force John Brennan to carry through on his earlier plans. Matthew Aid confirmed that the drone rules, at least, if not the leak to Shane, came from those in State (again, this must be Koh) and DOJ who recognized the drone program didn’t really fly under international law.
A State Department official who recently left his post for a better paying job in the private sector admitted that there is deep concern at State and Justice that sooner or later, a court in the U.S. or in The Hague will issue a ruling on the question of the legality of these missions, which many in Washington fear will go against the U.S. government position that these strikes are legal.
So whether Koh left because he lost this fight with Brennan or because of academic schedules and Hillary’s upcoming departure, in his absence, the drone rules Koh pushed for are far less likely to happen.
Then there’s the news–this one, unlike reports of Johnson as Attorney General, sourced to the Administration itself–that Stephen Preston, currently CIA’s General Counsel, may replace Johnson at DOD.
I’m ultimately going to get around to arguing that the reason the government response to the ACLU targeted killing FOIA is so funky is because (mind you, this is a wildarsed guess) the CIA didn’t rely on the OLC memo authorizing Anwar al-Awlaki’s killing.
But for the moment I want to point out a far tinier but nevertheless related point.
On March 30 of this year, just before the government started scrambling for extensions on this FOIA, AUSA Sarah Normand called ACLU Attorney Eric Ruzicka to ask if ACLU would “limit the first prong of its FOIA requests” to DOJ and DOD. The first prong asked for,
All records created after September 11, 2001, pertaining to the legal basis in domestic, foreign and international law upon which U.S. citizens can be subjected to targeted killings, whether using unmanned aerial vehicles (“UAVs” or “drones”) or by other means.
Normand asked Ruzicka to agree to exclude any draft legal analyses, emails, and internal communication. Ruzicka agreed to waive draft analyses, but not emails and internal communications.
Most of the internal communications from the DOD and DOJ that would have been excluded which are described in the Vaughn indices aren’t all that interesting–almost all pertain to discussions leading up to the Situation Room debate over how transparent to be on these killings or to Jeh Johnson and Eric Holder’s speeches on targeted killing.
But there is a series of three email chains I find particularly interesting.
On May 18-19, 2011 attorneys at OLC and the National Security Council deliberated discussing “draft legal analysis regarding the application of domestic and international law to the use of lethal force in a foreign country against U.S. citizens.” Then, on May 19, lawyers at OLC, DOJ’s Civil and National Security Divisions, and at the Offices of the Associate and Deputy Attorney General discussed the same thing. Finally, on May 20, the DOJ lawyers and the National Security Council lawyers continued the discussion, this time including DOJ’s Office of Legislative Affairs.
This says, at a minimum, two things. First, the White House and DOJ were discussing what they called “draft” legal analysis as late as May 2011, 11 months after OLC finalized an opinion supposedly authorizing Anwar al-Awlaki’s killing but 4 months before the US killed him. And, that the discussion of that “draft” legal analysis pertained, in part, to some issue raised by Congress.
That, by itself, is interesting. Why was this legal analysis still considered draft analysis in May 2011? (And for what it’s worth, they were having similar deliberations in November 2011, after they had already killed Awlaki.)
But then there’s the likelihood that this discussion relates to persistent requests from Ron Wyden to get basic questions about targeted killing answered.
In a letter to Eric Holder on February 8, 2012 (so before DOJ tried to get ACLU to waive precisely this information) complaining about continued stonewalling of his questions about targeted killing, Wyden made it clear he called Holder in April 2011 to get these questions answered. Continue reading