How to Avoid Rubber-Stamping another Drone Execution: Leave

NPR’s Carrie Johnson reports that OLC head Virginia Seitz quietly left OLC before Christmas.

Virginia Seitz, who won Senate confirmation after an earlier candidate under president Obama foundered, resigned from federal service after two-and-a-half years on the job. The timing is unusual because her unit plays a critical role in drawing the legal boundaries of executive branch action —at a time when President Obama says he will do more to bypass a divided Congress and do more governing by way of executive order.

And while DOJ’s official line is that Seitz left entirely for personal reasons, two sources told Johnson the ongoing discussions about whether to drone kill another American were another factor.

Two other sources suggested that aside from the tough work, another issue weighed heavily on her mind over the last several months: the question of whether and when the US can target its own citizens overseas with a weaponized drone or missile attack. American officials are considering such a strike against at least one citizen linked to al Qaeda, the sources said.

While a “law enforcement” source (but wait! the entire point of drone assassinations is they replace law enforcement with intelligence entirely!) suggests the decision has not yet been made.

A law enforcement source told NPR the controversy over the use of drones against Americans in foreign lands did not play a major role in Seitz’s decision to leave government, since the OLC is continuing to do legal analysis on the issue and there was no firm conclusion to which she may have objected or disagreed.

Which is sort of funny, because Kimberly Dozier’s report on the American in question says DOD, at least, has made its decision.

But one U.S. official said the Defense Department was divided over whether the man is dangerous enough to merit the potential domestic fallout of killing an American without charging him with a crime or trying him, and the potential international fallout of such an operation in a country that has been resistant to U.S. action.

Another of the U.S. officials said the Pentagon did ultimately decide to recommend lethal action.

And remember, as I’ve pointed out, this potential drone execution target is differently situated from Anwar al-Awlaki, in that there appears to be no claim this one is targeting civilians in the US.

But let’s take a step back and consider some other interesting details of timing.

First, on November 29 of last year, Ron Wyden, Mark Udall, and Martin Heinrich released a letter they sent to Eric Holder asking for more clarity on when the President could kill an American.

[W]e have concluded that the limits and boundaries of the President’s power to authorize the deliberate killing of Americans need to be laid out with much greater specificity. It is extremely important for both Congress and the public to have a fully understanding of what the executive branch thinks the President’s authorities are, so that lawmakers and the American people can decide whether these authorities are subject to adequate limits and safeguards.

Retrospectively, it seems this letter may have pertained to this new execution target, particularly given the different circumstances regarding his alleged attacks against the US. I might even imagine this serving as a public demand that DOJ not simply rely on the existing Awlaki drone assassination memo, creating the need to do a new one.

Now consider how (currently acting OLC head) Caroline Krass’ confirmation hearing plays in. On December 17, Wyden asked her who had the authority to withdraw an OLC opinion (the opinion in question pertains to common commercial services in some way related to cybersecurity, but I find it interesting in retrospect).

Wyden: But I want to make sure nobody else ever relies on that particular opinion and I’m concerned that a different attorney could take a different view and argue that the opinion is still legally valid because it’s not been withdrawn. Now, we have tried to get Attorney General Holder to withdraw it, and I’m trying to figure out — he has not answered our letters — who at the Justice Department has the authority to withdraw the opinion. Do you currently have the authority to withdraw the opinion?

Krass: No I do not currently have that authority.

Wyden: Okay. Who does, at the Justice Department?

Krass: Well, for an OLC opinion to be withdrawn, on OLC’s own initiative or on the initiative of the Attorney General would be extremely unusual.

She said she did not “currently have that authority.” Was she about to get that authority in days or hours?

Then finally there are the implications for Krass’ confirmation. The leaks about this current drone execution target almost certainly came from Mike Rogers’ immediate vicinity. He’s torqued because Obama’s efforts to impose some limits on the drone war have allegedly made it more difficult to execute this American with no due process.

And while Rogers doesn’t get a vote over Krass’ confirmation to be CIA General Counsel, Dianne Feinstein and Saxby Chambliss do. And their efforts to keep CIA in the drone business may well have an impact on — and may have been motivated by — our ability to assassinate Americans.

I don’t recall Krass getting questions that directly addressed drone killing, though she did get some that hinted at the edges of such questions, such as this one:

Are there circumstances in which a use of force, or other action, by the U.S. government that would be unlawful if carried out overtly is lawful when carried out covertly? Please explain.

ANSWER: As a matter of domestic law, I cannot think of any circumstances in which a use of force or other action by the U.S. government that would be unlawful if carried out overtly would be lawful when carried out covertly, but I have not studied this question.

This seems to be a question she would have had to consider if she had any involvement in OLC’s consideration of a new drone execution memo.

All that said, she hasn’t yet gotten her vote (though any delay may arise from holds relating to the Senate Torture Report).

It just seems likely that — as we did in May 2005 when Steven Bradbury reapproved torture in anticipation of a promotion to head OLC — we’re faced yet again with a lawyer waiting for a promotion being asked to give legal sanction to legally suspect activity. My impression is that Krass has far more integrity than Bradbury (remember, she’s the one who originally imposed limits on the Libya campaign), so I’m only raising this because of the circumstances, not any reason to doubt her character.

It just seems like if you need lawyers to rubber stamp legally suspect activities, there ought to be more transparency about what promotions and resignations are going on.

15 replies
  1. James says:

    And while DOJ’s official line is that Seitz left entirely for personal reasons

    She had a personal problem with providing legal cover for blatantly unconstitutional actions by the Executive. You know, personal reasons.

  2. GKJames says:

    (1) “Now, we have tried to get Attorney General Holder to withdraw it, and I’m trying to figure out — HE HAS NOT ANSWERED OUR LETTERS — …” (emphasis added). WTF?

    (2) “a new drone execution memo”: Even if they’re not relying on the execrable al-Awlaki version, how long could it possibly take to do a new (legitimate) memo? And if there’s all the time in the world for memo cobbling and interagency deliberation and massaging of Congress, where does the imminent threat of future harm — versus revenge for alleged past acts — come into play?

  3. john francis lee says:

    There are no honorable people associated with Obama’s serial assassination program. Or non-criminals. They all belong in prison. Good for this one for walking, she avoided the criminal part … she should have been talking as she walked, she might have avoided the dishonorable part as well.

  4. Peterr says:

    That last question and answer reminds me of the guy who was driving 90 MPH down the highway, who told his friends in the back seat who protested his speeding, “It’s only illegal if they catch you.”

  5. Peterr says:

    @James: Given that she clerked for SCOTUS Justice William Brennan, it’s not much of a stretch to think that she would not be thrilled with the notion of “providing legal cover for blatantly unconstitutional actions by the Executive.”

  6. Peterr says:

    From Krass’ bio at DOJ/OLC:

    Ms. Krass served as Special Counsel to the President for National Security Affairs and Deputy Legal Adviser at the National Security Council from January 2009 through December 2010. Before that, she served for nine years in the Office of Legal Counsel, first as an Attorney Adviser and later as Senior Counsel. She served as a Special Assistant U.S. Attorney in the National Security Section of the United States Attorney’s Office for the District of Columbia from 2007 to 2009 and as Deputy Legal Adviser at the National Security Council from 1999-2000.

    Her service alongside Bybee, Bradbury, and Yoo at OLC for the duration of the Bush administration does not inspire me with confidence.

  7. scribe says:

    Her decision to leave shows the view from the outside of one of the great dilemnas of lawyering. When an entity, as opposed to a person, is your client, and the people in charge of the entity insist on doing wrong, what do you do?

    The school solution is this: you tell (in writing, preferably) the people who insist on doing wrong that they are exposing themselves and the entity to various species of liability. If that doesn’t work, you go to the higher levels in the entity, up to the top if possible, to report to them and ask their intervention on the side of Right. After all, your loyalty is to and attorney-client relationship is with the entity, not the people. If they turn you down or refuse to correct their wrongdoing, the only thing you can do is quit. Without saying the real “why” behind it because, again, your duty of confidentiality is to the organization/entity and the entity has not released you from that obligation.

    This also highlights the great problem which arises in organiztions almost daily. The “good” people – the one who follow the rules, follow the procedures, and don’t use their place and power in the organization to do wrong, wind up either providing cover for the shitbirds who do wrong, or they have to quit and leave the wrongdoers exclusively in charge. This only gets worse when, as in the case of Colonel Davis reported on here the other day, the rot goes all the way to the top.

    There’s not much to do then other than get out of the way and hope it collapses of its own weight sooner rather than later.

  8. bmaz says:

    Does Krass have more integrity than Bradbury? From what I know/have been able to discern, she does.

    She is one tough cookie. And she has been the backstop for Seitz even since Seitz appeared at OLC, a job she was far less ready for than Krass. Don’t sell this one short.

  9. Peterr says:

    @bmaz: Care to expand on your observations, bmaz? I’m not necessarily disagreeing with you, but when I look at her spending 8 years in the BushCo OLC, that isn’t exactly a resume builder in my book.

  10. orionATL says:


    it’s a four-way table.

    the only choices are not:

    tell the entity (bosses) they are broaching illegality and should desist,

    if they do not, resign representation of the entity ( which is, by the way, de facto representation of the bosses).

    another choice could be called the bradbury approach, aka, the mafia lawyer approach, help the entity/bosses to achieve their illegal goal and reap the rewards of having done so.

    to break up the either/or choice of the first two quadrants ( propel change or resign) –

    a major whistleblowing statute, one with the reach and protective power not envisioned even by (or especially by) candidate obi-one in ’08,

    would change american politics and government bureaucracy radically.

  11. joanneleon says:

    Gah, if your theory is correct about the approval being a requirement for promotion, even if unspoken, it reminds me of organized crime and the process (required to kill someone) for becoming a “made man” (assuming that’s real and not just a Hollywood myth).

  12. Greg Bean (@GregLBean) says:

    @joanneleon: I’ve been thinking along the Mafia lines as well.

    It seems to me that it is about time the entire argument that Snowden’s leaks have done little to no harm need to be discarded and the real argument that Snowden’s leaks will take down the NSA (used generically for all such org’s), needs to be emphatically made.

    The NSA is as corrupt as the Mafia, and as such, and as with a Mafia leaker, anyone who does it harm is a hero to be moved into a witness protection program and shielded while providing evidence to convict the guilty.

    Damn right Snowden has done harm, and good on him, the NSA Mafia needs to be shuttered. It would be nice to see someone with the guts and political capacity take this on and begin prosecutions.

  13. Jonathan says:

    @joanneleon: As a rule, all “successful” societies impose some sort of sacrifice on their subjects as a demonstration of group devotion. (I mean successful by way of intergenerational propagation, not by any quantitative or qualitative measure of its subjects’ experiences.) Unfortunately, those sacrifices happen to be ripe, juicy pretexts for exploitation and elitism, as the rhetoric of nearly every POTUS since Reagan (or at least every Democratic POTUS) has illustrated.

  14. john francis lee says:

    Who Tried to Silence Drone Victim Kareem Khan?

    At a recent Congressional hearing, the Republican chairman of the House Intelligence Committee, Mike Rogers, defended the drone program, warning that recently announced changes to the program, meant to provide safeguards and openness,

    “are endangering the lives of Americans at home and our military overseas.”

    More to the point, safeguards and openness – were they really on the horizon, would endanger the killing that Mike and Kristi Rogers are making – literally – on the NSA/CIA panopticon/assassination program.

    Innocents must die to that the well-connected may live ‘well’. No one in America lives ‘well’ anymore, least of all the rich – we are all sick, complicit in the crimes of ‘our’ government.

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