Back in June, I wrote about the deceit employed by the Pentagon in going against the advice of SIGAR (pdf) and explicit language in the NDAA to purchase Russian Mi-17 helicopters through the arms dealer Rosoboronexport. Because Rosoboronexport has been supplying weapons to the Assad regime in Syria, the helicopter purchase took on additional levels of outrage. It appears that the Pentagon did get about half of the helicopters it wanted by claiming to use leftover 2012 funds (use of 2013 funds for the helicopters was banned in the NDAA), but they have now cancelled plans to use 2014 funds for the remaining helicopters that had been planned.
Reuters reported in August that the Defense Criminal Investigative Service had opened a criminal probe into the Huntsville, Alabama, Army aviation unit that oversees the Mi-17 program, and ties between the unit’s former chief and two foreign subcontractors.
Texas Senator John Cornyn did a bit of a victory dance over the cancellation. As described in the AP story:
Bipartisan opposition to the Mi-17 acquisition grew as the violence in Syria escalated and U.S. relations with Russia deteriorated. A growing number of lawmakers from both political parties objected to acquiring military gear from Rosoboronexport, which has provided Assad’s regime with weapons used against Syrian civilians.
“I applaud the Defense Department’s decision to cancel its plan to buy 15 additional Mi-17 helicopters from Rosoboronexport,” Sen. John Cornyn, R-Texas, said in an emailed statement. “Doing business with the supplier of these helicopters has been a morally bankrupt policy, and as a nation, we should no longer be subsidizing Assad’s war crimes in Syria.”
But this victory by opponents of the sale comes after a large victory by the Pentagon in the earlier battles:
Rosoboronexport announced Monday that 12 of the Mi-17s had been delivered to Afghanistan in the month of October. The shipments, the export agency said, reflected the joint effort between Russia and the U.S. to combat international terrorism.
The AP story spends a bit of time on how Mi-17’s were chosen: Continue reading
Earlier this evening, Dianne Feinstein called Edward Snowden’s decision to leak NSA documents an act of treason.
“I don’t look at this as being a whistleblower. I think it’s an act of treason,” the chairwoman of the Senate Intelligence Committee told reporters.
The California lawmaker went on to say that Snowden had violated his oath to defend the Constitution.
“He violated the oath, he violated the law. It’s treason.”
Perhaps DiFi can be excused for her harsh judgment. After all, in addition to exposing the sheer range of surveillance our government is doing, Snowden made it very clear that DiFi allowed Director of National Intelligence James Clapper to lie to her committee.
And continues to allow Clapper’s lie to go unreported, much less punished.
But I thought it worthwhile to point out the many people who have committed to make the FISA Court Opinions describing, among other things, how the government’s abuse of Section 215 violated the Constitution.
In 2010, DOJ promised to try to declassify important rulings of law.
In 2010, as part of the same effort, Clapper’s office promised to try to declassify important rulings of law.
In 2011, prior to be confirmed as Assistant Attorney General, now White House Homeland Security Advisor Lisa Monaco promised, “I will work to ensure that the Department continues to work with the ODNI to make this important body of law as accessible as possible.”
All these people claimed they wanted to make FISC’s opinion, among other things, on the secret use of Section 215 public.
What Snowden released on Section 215 — just a single 215 order to Verizon, without details on how this information is used — is far, far less than what DOJ and ODNI and Lisa Monaco pledged to try to release. Given that the collection is targeted on every single American indiscriminately, it won’t tell the bad guys anything (except that they’ve been sucked into the same dragnet the rest of us have). And while it shows that FBI submits the order but the data gets delivered to NSA (which has some interesting implications), that’s a source and method to game the law, not the source or method used to identify terrorists.
So if Snowden committed treason, he did so doing far less than top members of our National Security establishment promised to do.
There’s one more member of this gang of — according to DiFi — traitors committed to tell Americans how their government spies on them. There’s the Senator who said this on December 27, 2012.
I have offered to Senator Merkley to write a letter requesting declassification of more FISA Court opinions. If the letter does not work, we will do another intelligence authorization bill next year, and we can discuss what can be added to that bill on this issue.
Oh, wait! That was Senator Dianne Feinstein, arguing that they didn’t have time to pass an actual amendment, attached to the actual FISA Amendments Act renewal, forcing the government to turn over this secret law.
But she promised to write a letter!
And even, DiFi claimed (though similar promises to John Cornyn to obtain the OLC memo authorizing Anwar al-Awlaki’s killing went undelivered), to include a requirement in this year’s intelligence authorization requiring the government to turn over far more information on the government’s use of Section 215 than Snowden did.
I get that DiFi doesn’t agree with his method — that he leaked this rather than (!) write a letter. I get that Snowden has exposed DiFi for allowing Clapper lie to her committee, in part to hide precisely this information.
But in debates in the Senate, at least, DiFi has claimed to support releasing just this kind of information.
I hate to waste an entire post on this.
But the NYT’s report last night that President Obama was going to capitulate to the Benghazi truthers rather than turn over memos revealing who and where he has been killing people — as well as all the secondary reporting on it — has made this claim.
Rather than agreeing to some Democratic senators’ demands for full access to the classified legal memos on the targeted killing program, Obama administration officials are negotiating with Republicans to provide more information on the lethal attack last year on the American diplomatic compound in Benghazi, Libya, according to three Congressional staff members.
The strategy is intended to produce a bipartisan majority vote for Mr. Brennan in the Senate Intelligence Committee without giving its members seven additional legal opinions on targeted killing sought by senators and while protecting what the White House views as the confidentiality of the Justice Department’s legal advice to the president. It would allow Mr. Brennan’s nomination to go to the Senate floor even if one or two Democrats vote no to protest the refusal to share more legal memos. [my emphasis]
On February 4, Susan Collins was among the 11 Senators who signed a letter asking for “any and all legal opinions that lay out the executive branch’s official understanding of the President’s authority to deliberately kill American citizens.”
Perhaps Collins has been satisfied with the brief glimpse at the two memos it shared with the Committee back on February 7. Perhaps she — the Senator on the Intelligence Committee who asked the best questions about targeted killing efficacy — is not all that interested in the other memos the Administration is hiding, presumably along with uses of targeted killing she isn’t being briefed on. Perhaps she no longer supports the hinted hold-up for national security nominees.
But even on the Senate Intelligence Committee, the call for the targeted killing memos was a bipartisan affair (among those not on the committee, Mike Lee and Chuck Grassley also signed the letter, and Rand Paul sent his own demand for the memos). Heck, once upon a time, John Cornyn wanted to legislatively demand the memos.
Demanding that the President reveal what kind of targeted killing programs it supports is no hippie fetish. It is something that members of both parties have supported.
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.
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.
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.
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.
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.”
Second, was the prosecution of Mr. Swartz in any way retaliation for his exercise of his rights as a citizen under the Freedom of Information Act? If so, I recommend that you refer the matter immediately to the Inspector General.
I have shown earlier how, during the period when the Grand Jury was investigating Swartz, Swartz was FOIAing stuff that the prosecutor seems to have subpoeaned as part of a fishing expedition into Swartz. I have also shown that a FOIA response he got in January 2011 suggests he may have been discussed in a (presumably different) grand jury investigation between October 8 and December 10, 2010. And Jason Leopold has also pointed to some interesting coincidences in Swartz’ FOIAs.
But there’s a series of FOIAs Swartz submitted that almost certainly pissed off the government: he FOIAed tapes that would have had Bradley Manning, describing in his own words, how he was being treated at Quantico.
On December 23, 2010, David House blogged about the treatment Bradley Manning was being subjected to at Quantico (which has since been deemed illegal).
On December 27, Swartz asked for the following in FOIA from the Marine Corps:
Any records related to Bradley Manning or his confinement in Quantico Brig.
In particular, please process as quickly as possible a request for the government-curated audio tapes created in Quantico brig visitation room #2 on December 18 and December 19 2010 from 1:00pm – 3:00pm. These tapes may also contain a recording of David M. House; I have permission from David House under the Privacy Act to request these records.
The timeline that ensued is below, with other significant dates included.
Of particular interest? The Secret Service didn’t get warrants to investigate Swartz immediately after his initial arrest, in spite of the fact Secret Service Agent Michael Pickett offered to get a warrant on January 7. In fact, Secret Service didn’t get warrants until February 9, over a month after his initial arrest. (Update: See this post for more on the delay.)
That’s the day Swartz FOIAed the Army Criminal Investigative Service for the tapes on Manning’s treatment.
More odd still, the Secret Service didn’t immediately use the warrants to obtain the hardware seized in his arrest; the warrant to search his hardware expired and Secret Service eventually got a second one. But Secret Service did search Swartz’ home two days after they got that warrant, on February 11–two days after he asked ACIS for the tape that would have Manning describing how he was being treated.
Suffice it to say that Swartz was pursuing the same information that got State Department Spokesperson PJ Crowley fired just as USSS intensified its investigation of him.
While I don’t think Swartz’ pursuit of details on Manning’s treatment would be the only reason they would deal with him so harshly, the Obama Administration clearly was dealing harshly with those who were critical of the treatment of Manning.
Update: This post has been updated for accuracy.
December 23, 2010: David House blogs about Manning’s treatment, effectively fact-checking DOD’s claims.
December 27, 2010: Swartz FOIAs the recording of House’s visit to Manning, which would have captured Manning describing in his own words how he was being treated.
December 29, 2010: Initial response on Manning brig FOIA.
January 4, 2011: MIT finds Swartz’ computer. Secret Service takes over the investigation.
January 6, 2011: Swartz arrested.
January 7, 2011: Twitter administrative subpoena to several WikiLeaks team members revealed.
January 17, 2011: Protest outside of Quantico for Manning.
January 18, 2011: Manning placed on suicide risk.
January 20, 2011: Swartz’ Manning brig FOIA transfered to Quantico CO.
February 1, 2011: Quantico tells Swartz Manning brig FOIA needs to go to Army Criminal Investigative Service.
February 9, 2011: Swartz FOIAs ACIS for Manning brig information.
February 9, 2011: Secret Service obtains warrant to search Swartz’ hardware and apartment, followed by a warrant to search his office.
February 9, 2011: WSJ reports WikiLeaks investigation cannot prove Assange induced Manning to leak documents.
February 11, 2011: Secret Service searches Swartz’ house and office, but not the hardware primarily implicated in the crime purportedly being investigated.
February 22, 2011: Warrants on Swartz’ hardware expire.
February 24, 2011: Secret Service obtains new warrant for hardware. Initial response from ACIS to Manning brig FOIA.
February 28, 2011: ACIS responds to Swartz’ Manning FOIA, stating,
… the requested documents are part of an ongoing Army court-martial litigation and are not releasable to the public at this time. This request will be closed. Please submit your request at a later time.
March 2, 2011: Swartz responds to this rejection:
On the 28th of February, the US Army’s Freedom of Information Act Officer declined to release documents I requested under FOIA/PA because they “are part of an ongoing Army court-martial litigation.”
Being part of ongoing litigation is not a valid exemption to the FOIA or the Privacy Act.
There are narrow exemptions for certain types of release that interfere with law enforcement activities, but the Army has not claimed these exemptions nor explained why they apply. Furthermore, the normal procedure is to collect the documents and then evaluate them to see whether any portions of them qualify for the exemption. It appears the Army did not collect documents in response to my request at all, so I do not see how it could have evaluated them.
I therefore appeal my request in its entirety.
March 3, 2011: ACIS admits Swartz is correct:
You are absolutely correct and I want to apologize for sending you the wrong information. This request is being sent to the Initial Denial Office (IDA) today. Please give them a couple of days to receive it.
March 4, 2011; ACIS sends another letter:
Because this request has been denied this request is being sent to the Initial Denial Office (IDA).
March 13, 2011: White House forces PJ Crowley to resign for criticizing treatment of Manning.
March 18, 2011: ACIS rejects his request, citing an ongoing investigation.
April 19, 2011: DOD announces Manning will be moved to Leavenworth.
John Cornyn just sent a letter to Eric Holder asking a series of questions about the Aaron Swartz prosecution. (h/t Julian Sanchez) Many of them are utterly appropriate coming from a member of the Senate Judiciary Committee: why Carmen Ortiz said the prosecution was “appropriate,” whether DOJ’s prior investigations, plural, of Swartz had had an influence on their conduct, why Ortiz filed the superseding indictment. Kudos to Cornyn for conducting oversight, as intended.
But here’s a question I didn’t expect, the second of seven questions.
Second, was the prosecution of Mr. Swartz in any way retaliation for his exercise of his rights as a citizen under the Freedom of Information Act? If so, I recommend that you refer the matter immediately to the Inspector General.
It’s one thing to ask whether Swartz was targeted–and he appears to have been–for his advocacy on Open Access and Internet freedom.
But to ask whether this was retaliation for his use of FOIA? As far as I know, only Jason Leopold and I have even looked at his FOIAs in relation to his prosecution, and only for insight onto how he responded to it.
“He is a horrendously political animal, and there will be a tendency to politicize information to put the best spin for the administration on it.”
–An anonymous CIA officer, speaking of John Brennan, with whom he worked at CIA during the Bush Administration
As predicted, John Brennan’s past support for torture has generated only limited concern from John McCain and Dianne Feinstein, but no real threat that it will hold up his confirmation. No one, as far as I know, seems to care that Brennan was involved in Dick Cheney’s illegal wiretap program, nor that he decided to give NCTC access to the federal data of completely innocent Americans, nor his “intimate familiarity” with the genesis of NYPD’s abusive domestic spying program. And while there has been much discussion of his role in drone strikes–much of it credulously insisting Brennan wants to put order to drone strikes with an effort stalled after Mitt lost–even drone skeptics like Ron Wyden have not yet raised it as a confirmation issue.
John Cornyn’s warning that Brennan won’t be approved until the leak investigations finish is much more interesting, however.
“John Brennan has not been absolved of responsibility for the slew of high-level security leaks that have characterized this White House,” Sen. John Cornyn (R-Texas) told POLITICO in a statement Monday. “This investigation needs to be resolved before his nomination can move forward.”
An aide to Sen. John McCain (R-Ariz.), speaking on condition of anonymity, said: “The questions about national security leaks by this administration have not yet been answered, and that will obviously be an issue as the Senate considers his nomination.”
Sure, to some degree Cornyn’s professed concern just reflects Cornyn being not only a partisan asshole, but a hypocrite about leaks.
But there seems good reason to inquire into what John Brennan’s sieve-like qualities will have on national security.
Consider his role in the exposure of the sources and methods used to set up a sting entrapping AQAP in an UndieBomb plot and with it sustaining the claim that AQAP wants to–and has the ability to–strike in the US. After the AP revealed there had been a plot (having held off at the request of the Administration), Brennan called his predecessors to spin the plot and in doing so made it clear that it was a sting, thereby exposing the British passport holder who set up the sting as an infiltrator.
At about 5:45 p.m. EDT on Monday, May 7, just before the evening newscasts, John Brennan, President Barack Obama’s top White House adviser on counter-terrorism, held a small, private teleconference to brief former counter-terrorism advisers who have become frequent commentators on TV news shows.
According to five people familiar with the call, Brennan stressed that the plot was never a threat to the U.S. public or air safety because Washington had “inside control” over it.
Brennan’s comment appears unintentionally to have helped lead to disclosure of the secret at the heart of a joint U.S.-British-Saudi undercover counter-terrorism operation.
A few minutes after Brennan’s teleconference, on ABC’s World News Tonight, Richard Clarke, former chief of counter-terrorism in the ClintonWhite House and a participant on the Brennan call, said the underwear bomb plot “never came close because they had insider information, insider control.”
A few hours later, Clarke, who is a regular consultant to the network, concluded on ABC’s Nightline that there was a Western spy or double-agent in on the plot: “The U.S. government is saying it never came close because they had insider information, insider control, which implies that they had somebody on the inside who wasn’t going to let it happen.”
The White House made it clear they would have revealed the plot anyway. Indeed, they did so in an analogous situation two years earlier. And our Saudi and Yemeni partners tend to boast about such things anyway. Much of the outrage over this so-called leak served only to beat up on the AP that had exposed the aforementioned abusive NYPD program.
Nevertheless, revelations about how Brennan briefs his predecessors who then run to their respective networks to officially leak this information show that he is an enthusiastic participant in the asymmetric spread of information in DC.
But hey. We knew that.
Nevertheless, the asymmetry is key. As I’ve noted, Brennan has an interesting closeness to half of the Administration’s whistleblower prosecutions. Yet one of those prosecuted whistleblowers–John Kiriakou, whose book someone who looks exactly like Brennan helped to get published–suggested today that Brennan is “the most prolific leaker in this administration.” A former senior Administration official seems to agree.
“It’s not on people’s radar, but this could be an issue,” said the former administration official, who asked not to be named discussing a potential downside of Brennan’s nomination. “He’s a guy who comes across as a strong, silent type who never speaks, [but] he actually does a lot of talking both internally with the president and externally with select, influential reporters. … I’m not saying the guy seeks it, but [other White House officials] view him as the most credible internal mouthpiece on national security matters.”
Which brings me back to this point. It’s not just that Brennan exposes sources and methods while seemingly supporting the unprecedented prosecution of whistleblowers who do the same. But it’s also that he does so for political gain. This is not–contra Brennan’s many boosters–transparency. It’s about enforcing an official version of events that often contradicts markedly from the truth.
Mind you, it is not at all unprecedented to have a skilled leaker madly spinning Administration policies rather than leveling with the American people at CIA. That doesn’t make it good for national security, but it happens a lot.
All that said, one of yesterday’s jokes is that Brennan–a man with ties to torture and illegal wiretapping–is replacing a guy purportedly ousted for a consensual affair. There are reasons why such affairs on the part of the Director of CIA raise more concerns in the nuclear era than they might have in the past. And that nuclear tie may be the related complications cited to explain why Petraeus had to resign.
Or maybe not. In Rajiv Chandrasekaran’s recent report on Petraeus’ habit of giving the pundits who advanced his career Top Secret clearance and access to materials that might be used to oppose Administration policies, he suggested this practice was receiving new scrutiny at DOD, the kind of scrutiny that might necessitate retirement.
John Cornyn is largely being an asshole in raising Brennan’s blabby mouth in respect to his nomination. But in doing so, he may just expose the deep hypocrisy underlying this Administration’s asymmetric leaks. That may be the price Cornyn demands to rubberstamp Brennan’s CIA appointment.
It took transcribing the debate in the July 19 Senate Judiciary Committee hearing for me to realize it, but Democrats are running very serious interference to keep the Anwar al-Awlaki targeted killing memo secret. Not only did Dianne Feinstein basically roll John Cornyn, telling him she’d introduce language that would accomplish his goal of getting all the oversight committees the memo when, if hers passes, it will only, maybe, get the Intelligence Committee the memo. Not only did the Democrats vote on a party line vote to table John Cornyn’s amendment to require the Administration to share it–in classified or unclassified form–with the Judiciary and Armed Services Committees. Not only did Pat Leahy get pretty snippy with Cornyn for offering–and asking to speak on–the Amendment.
Most stunning, though, is Dick Durbin’s comment on it.
Durbin: Thank you Mr. Chairman. My staff briefed me of this on the way in, and I asked the basic question, “would I ask this of a Republican President? Of course. And I did ask it, in a different context, of the previous President, when it came to questions of interrogation, torture, and surveillance. I might say to the Senator from Texas I had no support from the other side of the table when I made that request. But I do believe it is a valid inquiry and I would join the Senator from Texas and any who wish in sending a letter to the Attorney General asking for this specific information on a bipartisan basis. And certainly we can raise it the next time the Attorney General appears before us. I do have to say that I’m going to vote to table because I think that as flawed as this [the FAA extension] may be without the Lee Amendment which I think would help it, I do believe we need to pass this and bringing in these other matters are going to jeopardize it. But I think it is a legitimate question to be asked of Presidents of either party, and I will join you in a letter to this President and his Attorney General for that purpose. [my emphasis]
This partisan retort (one Leahy repeated) says, in part, that the Democrats aren’t going to cooperate with Cornyn’s effort to get the memo because Cornyn didn’t cooperate with Durbin’s efforts to get the torture and illegal wiretap memos. Durbin and Leahy are right: Cornyn and the rest of the Republican party did obstruct their efforts.
That doesn’t make obstructing Cornyn’s effort right, of course, particularly given that Durbin purports to support Cornyn’s intent.
But remember, Republicans obstructed the release of the torture and illegal wiretap memos because, well, they showed the Executive had broken the law. When we all got to see the torture memos, they made it clear CIA had lied to DOJ to get authorization for torture, had exceeded the authorizations given to them, had engaged in previously unimagined amounts of torture, and had ignored legal precedent to justify it all.
And while we’ve only ever seen part of Jack Goldsmith’s illegal wiretap memo (after the Bush Administration purportedly fixed the data mining and other illegal problems with it) and a teeny fragment of an earlier John Yoo memo, those showed that Yoo relied on gutting the Fourth Amendment, there is an additional secret memo on information sharing, they were hiding their flouting of the exclusivity provision, and–possibly–the illegal wiretap program violated an earlier decision from the FISA Court of Review. We also learned, through some Sheldon Whitehouse persistence, that these memos revealed the President had been pixie dusting Executive Orders and claiming the right to interpret the law for the Executive Branch.
The Republicans had good reason to want to help Bush bury these memos, because they showed breathtaking efforts on the part of the Bush Administration to evade the law.
And that’s the fight that Dick Durbin analogized this one to.
At the end of a useful Steve Coll piece on the Constitutional danger of the Administration’s unilateral decisions to kill American citizens, he argues that Congress has the ability to force the Administration to release the process by which it executes Americans with no due process publicly.
None of Obama’s legal advisers has testified similarly about what secret system and classified legal memos may exist for judging, in the case of an American citizen targeted overseas, whether and why a capture attempt may be feasible. Congress has the power to force such statements onto the public record. It must try; it is obvious by now that the Obama Administration will not volunteer them. Is “kill or capture” a policy, or are the words just a screen for politically convenient targeted killings?
As I laid out the other day, Congress has tried to ask nicely for the memos on over 10 occasions, only to be blown off by the Administration.
That’s why Dianne Feinstein’s thus far successful effort to undercut John Cornyn’s effort to mandate release of the memos is so dangerous. John Cornyn’s amendment would mandate release to six oversight committees (those overseeing Intelligence, Judiciary, and Armed Services) within a month. DiFi’s bill would require release of all intelligence related memos (which is good), but only to the Intelligence Committees, and with loopholes that would permit the Administration to withhold a slew of their legal authorities. And any release could be delayed 6 months beyond the passage of the bill (so, if Mitt were to win, beyond the end of the Obama Administration).
There is widespread bipartisan support for releasing a real explanation of this to the public, now. Cornyn’s amendment would be an important half measure, requiring release of the Awlaki kill memo at least to the members of Congress purportedly ensuring government activities remain constitutional. And yet DiFi’s efforts undercut even that half measure.
Update: My original title, which I’ve resigned to the dustbin of over-long novels, stunk. Thankfully, Kade Ellis gave me a better one.
Back in September 2010, when the Administration successfully argued that whether or not the government had the authority to kill Anwar al-Awlaki was a matter for the Executive and Congressional Branches to decide, it claimed Congress served as a check on that power.
The nonjusticiability of the plaintiff’s claims in this Court “does not leave the executive power unbounded.” Schneider, 412 F.3d at 200. “The political branches effectively exercise such checks and balances on each other in the area of political questions[,]” and “[i]f the executive in fact has exceeded his appropriate role in the constitutional scheme, Congress enjoys a broad range of authorities with which to exercise restraint and balance.” Id. Accordingly, “the allocation of political questions to the political branches is not inconsistent with our constitutional tradition of limited government and balance of powers.” Id.
The Administration’s behavior in the interim period has proven those assurances to be utterly false. Congress has asked the Administration on more than 10 separate occasions for the OLC memo authorizing the killing of Anwar al-Awlaki (many of these 10 documented requests refer to earlier requests, and Pat Leahy sent President Obama a letter that his office could not share).
And yet here we are, 22 months after the Administration assured Judge John Bates that Congress exercised some kind of check on the Executive, at least 17 months after members of Congress first started asking for the legal analysis, and the Administration has not responded to those requests.
Here are the requests.
February 2011: Ron Wyden asks the Director of National Intelligence for the legal analysis behind the targeted killing program. (1)
April 2011: Ron Wyden calls Eric Holder to ask for legal analysis on targeted killing. (2)
May 2011: DOJ responds to Wyden’s request, yet doesn’t answer key questions.
May 18-20, 2011: DOJ (including Office of Legislative Affairs) discusses “draft legal analysis regarding the application of domestic and international law to the use of lethal force in a foreign country against U.S. citizens” (this may be the DOJ response to Ron Wyden).
October 5, 2011: Chuck Grassley sends Eric Holder a letter requesting the OLC memo by October 27, 2011. (3)
November 8, 2011: Pat Leahy complains about past Administration refusal to share targeted killing OLC memo. (4)
February 8, 2012: Ron Wyden follows up on his earlier requests for information on the targeted killing memo with Eric Holder. (5)
March 7, 2012: Tom Graves (R-GA) asks Robert Mueller whether Eric Holder’s criteria for the targeted killing of Americans applies in the US; Mueller replies he’d have to ask DOJ. Per his office today, DOJ has not yet provided Graves with an answer. (6)
March 8, 2012: Pat Leahy renews his request for the OLC memo at DOJ appropriations hearing. (7)
June 7, 2012: After Jerry Nadler requests the memo, Eric Holder commits to providing the House Judiciary a briefing–but not the OLC memo–within a month. (8)
June 12, 2012: Pat Leahy renews his request for the OLC memo at DOJ oversight hearing. (9)
June 27, 2012: In Questions for the Record following a June 7 hearing, Jerry Nadler notes that DOJ has sought dismissal of court challenges to targeted killing by claiming “the appropriate check on executive branch conduct here is the Congress and that information is being shared with Congress to make that check a meaningful one,” but “we have yet to get any response” to “several requests” for the OLC memo authorizing targeted killing. He also renews his request for the briefing Holder had promised. (10)
July 19, 2012: Both Pat Leahy and Chuck Grassley complain about past unanswered requests for OLC memo. (Grassley prepared an amendment as well, but withdrew it in favor of Cornyn’s.) Leahy (but not Grassley) votes to table John Cornyn amendment to require Administration to release the memo.
July 24, 2012: SSCI passes Intelligence Authorization that requires DOJ to make all post-9/11 OLC memos available to the Senate Intelligence Committee, albeit with two big loopholes.