Last week, Steven Aftergood released a January 27, 2003 OLC memo, signed by John Yoo, ruling that the Executive Branch could withhold WMD information from Congress even though 22 USC § 3282 requires the Executive to brief the Foreign Relations committees on such information. I had first noted the existence of the memo in this post (though I guessed wrong as to when it was written).
The memo is, even by Yoo’s standards, inadequate and poorly argued. As Aftergood notes, Yoo relies on a Bill Clinton signing statement that doesn’t say what he says it says. And he treats briefing Congress as equivalent to public disclosure.
Critically, a key part of the Yoo’s argument relies on an OLC memo the Reagan Administration used to excuse its failure to tell Congress that it was selling arms to Iran.
Fourth, despite Congress’s extensive powers under the Constitution, Its authorities to legislative and appropriate cannot constitutionally be exercised in a manner that would usurp the President’s authority over foreign affairs and national security. In our 1986 opinion, we reasoned that this principle had three important corollaries: a) Congress cannot directly review the President’s foreign policy decisions; b) Congress cannot condition an appropriation to require the President to relinquish his discretion in foreign affairs; and c) any statute that touches on the President’s foreign affairs power must be interpreted, so as to avoid constitutional questions, to leave the President as much discretion as possible. 10 Op. O.L.C. at 169-70.
That’s one of the things — a pretty central thing — Yoo relies on to say that, in spite of whatever law Congress passes, the Executive still doesn’t have to share matters relating to WMD proliferation if it doesn’t want to.
Thus far, I don’t think anyone has understood the delicious (if inexcusable) irony of the memo — or the likely reasons why the Obama Administration has deviated from its normal secrecy in releasing the memo now.
First, consider the timing. I noted above I was wrong about the timing — I speculated the memo would have been written as part of the Bush Administration’s tweaks of Executive Orders governing classification updated in March 2003.
Boy how wrong was I. Boy how inadequately cynical was I.
Nope. The memo — 7 shoddily written pages — was dated January 27, 2003.The day the White House sent a review copy of the State of the Union to CIA, which somehow didn’t get closely vetted. The day before Bush would go before Congress and deliver his constitutionally mandated State of the Union message. The day before Bush would lay out the case for the Iraq War to Congress — relying on certain claims about WMD — including 16 famous words that turned out to be a lie.
The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.
This memo was written during the drafting of the 2003 State of the Union to pre-approve not sharing WMD information known by the Executive Branch with Congress even in spite of laws requiring the Executive share that information.
Now, we don’t know — because Alberto Gonzales apparently didn’t tell Yoo — what thing he was getting pre-authorization not to tell Congress about. Here’s what the memo says:
It has been obtained through sensitive intelligence sources and methods and concerns proliferation activities that, depending upon information not yet available, may be attributable to one or more foreign nations. Due to your judgment of the extreme sensitivity of the information and the means by which it was obtained, you have not informed us about the nature of the information, what nation is involved, or what activities are implicated. We understand, however, that the information is of the utmost sensitivity and that it directly affects the national security and foreign policy interests of the United States. You have also told us that the unauthorized disclosure of the information could directly injure the national security, compromise intelligence sources and methods, and potentially frustrate sensitive U.S. diplomatic, military, and intelligence activities.
Something about WMD that another nation told us that is too sensitive to share with Congress — like maybe the Brits didn’t buy the Niger forgery documents anymore?
In any case, we do know from the SSCI Report on Iraq Intelligence that an INR analyst had already determined the Niger document was a forgery.
On January 13, 2003, the INR Iraq nuclear analyst sent an e-mail to several IC analysts outlining his reasoning why, “the uranium purchase agreement probably is a hoax.” He indicated that one of the documents that purported to be an agreement for a joint military campaign, including both Iraq and Iran, was so ridiculous that it was “clearly a forgery.” Because this document had the same alleged stamps for the Nigerien Embassy in Rome as the uranium documents, the analyst concluded “that the uranium purchase agreement probably is a forgery.” When the CIA analyst received the e-mail, he realized that WINP AC did not have copies of the documents and requested copies from INR. CIA received copies of the foreign language documents on January 16, 2003.
Who knows? Maybe the thing Bush wanted to hide from Congress, the day before his discredited 2003 State of the Union, didn’t even have to do with Iraq. But we know there has been good reason to question whether Bush’s aides deliberately misinformed Congress in that address, and now we know John Yoo pre-approved doing so.
Here’s the ironic part — and one I only approve of for the irony involved, not for the underlying expansive interpretation of Executive authority.
By releasing this memo just a week before the Iran deal debate heats up, the Obama Administration has given public (and Congressional, to the extent they’re paying attention) notice that it doesn’t believe it has to inform Congress of anything having to do with WMD it deems too sensitive. John Yoo says so. Reagan’s OLC said so, in large part to ensure that no one would go to prison for disobeying Congressional notice requirements pertaining to Iran-Contra.
If you think that’s wrong, you have to argue the Bush Administration improperly politicized intelligence behind the Iraq War. You have to agree that the heroes of Iran-Contra — people like John Poindexter, who signed onto a letter opposing the Iran deal — should be rotting in prison. That is, the opponents of the Iran deal — most of whom supported both the Iraq War and Iran-Contra — have to argue Republican Presidents acted illegally in those past actions.
Me? I do argue Bush improperly withheld information from Congress leading up to the Iraq War. I agree that Poindexter and others should have gone to prison in Iran-Contra.
I also agree that Obama should be forthcoming about whatever his Administration knows about the terms of the Iran deal, even while I believe the deal will prevent war (and not passing the deal will basically irretrievably fuck the US with the international community).
A key thing that will be debated extensively in coming days — largely because the AP, relying on an echo chamber of sources that has proven wrong in the past, published an underreported article on it — is whether the inspection of Parchin is adequate. Maybe that echo chamber is correct, and the inspection is inadequate. More importantly, maybe it is the case that people within the Administration — in spite of IAEA claims that it has treated that deal with the same confidentiality it gives to other inspection protocols made with inspected nations — know the content of the Parchin side agreement. Maybe the Administration knows about it, and believes it to be perfectly adequate, because it was spying on the IAEA, like it long has, but doesn’t want the fact that it was spying on IAEA to leak out. Maybe the Administration knows about the Parchin deal but has other reasons not to worry about what Iran was allegedly (largely alleged by AP’s sources on this current story) doing at Parchin.
The point is, whether you’re pro-Iran deal or anti-Iran deal, whether you’re worried about the Parchin side agreement or not, John Yoo gave Barack Obama permission to withhold it from Congress, in part because Reagan’s OLC head gave him permission to withhold Iran-Contra details from Congress.
I believe this document Yoo wrote to help Bush get us into the Iraq War may help Obama stay out of an Iran war.
Loretta Lynch is an excellent nominee for Attorney General, and her prior actions in whitewashing the blatant and rampant criminality of HSBC should not be held against her, because she didn’t know that at the time she last whitewashed that criminal enterprise, right?
No. Nothing could be further from the truth.
This is a cop out by Lynch’s advocates. Lynch either knew, or damn well should have known. She signed off on the HSBC Deferred Prosecution Agreement (DPA), if she was less than fully informed, that is on her. That is what signing legal documents stands for….responsibility. Banks like HSBC, Credit Suisse, ING etc were, and still are, a cesspool of criminal activity and avoidance schemes. Willful blindness to the same old bankster crimes by Lynch doesn’t cut it (great piece by David Dayen by the way).
But, all the above ignores the Swiss Alps sized mountains of evidence that we know Lynch was aware of and blithely swept under the rug by her HSBC DPA. So, we are basically left to decide whether Lynch is a bankster loving toady that is her own woman and cravenly whitewashed this all on her own, or whether she is a clueless stooge taking orders to whitewash it by DOJ Main. Both views are terminally unattractive and emblematic of the oblivious, turn the other cheek to protect the monied class, rot that infects the Department of Justice on the crimes of the century to date.
And that is only scratching the real surface of my objections to Lynch. There are many other areas where Lynch has proven herself to be a dedicated, dyed in the wool “law and order adherent” and, as Marcy Wheeler artfully coined, “executive maximalist”. Lynch’s ridiculous contortion, and expansion, of extraterritorial jurisdiction to suit the convenient whims of the Obama Administration’s unparalleled assault on the Rule of Law in the war on terror is incredibly troubling. Though, to be fair, EDNY is the landing point of JFK International and a frequent jurisdiction by designation. Some of these same questions could have been asked of Preet Bharara (see, e.g. U.S. v. Warsame) Loretta Lynch has every bit the same, if not indeed more, skin in the game as Bharara, whether by choice or chance.
Lynch has never uttered a word in dissent from this ridiculous expansion of extraterritorial jurisdiction. Lynch’s record in this regard is crystal clear from cases like US v. Ahmed, Yousef, et. al. where even Lynch and her office acknowledged that their targets could not have “posed a specific threat to the United States” much less have committed specific acts against the US.
This unconscionable expansion is clearly all good by Lynch, and the ends justify the means because there might be “scary terrists” out there. That is just dandy by American “executive maximalists”, but it is toxic to the Rule of Law, both domestically and internationally (See, supra). If the US, and its putative Attorney General, are to set precedents in jurisdictional reach on common alleged terroristic support, then they ought live by them on seminal concerns like torture and war crimes under international legal norms. Loretta Lynch has demonstrated a proclivity for the convenience of the former and a toady like disdain for the latter.
And the same willingness to go along to get along with contortion of the Rule of Law in that regard seems beyond certain to extend to her treatment of surveillance issues and warrant applications, state secrets, over-classification, attack on the press and, critically, separation of powers issues. Those types of concerns, along with how the Civil Rights Division is utilized to rein in out of control militarized cops and voting rights issues, how the OLC stands up to Executive overreach, whether OPR is allowed to continue to shield disgraceful and unethical AUSAs, and whether she has the balls to stand up to the infamously insulated inner Obama circle in the White House. Do you really think Loretta Lynch would have backed up Carolyn Krass and OLC in telling Obama no on the Libyan War Powers Resolution issue?
For my part, I don’t think there is a chance in hell Lynch would have stood up to Obama on a war powers, nor any other critical issue, and that is a huge problem. Krass and Holder may have lost the Libyan WPR battle, but at least they had the guts to stand up and say no, and leave a record of the same for posterity.
That is what really counts, not the tripe being discussed in the press, and the typically preening clown show “hearing” in front of SJC. That is where the rubber meets the road for an AG nominee, not that she simply put away some mobsters and did not disgrace herself – well, beyond the above, anyway (which she absolutely did) – during her time as US Attorney in EDNY. If you are a participant in, or interested observer of, the criminal justice system as I am, we should aspire to something better than Eric Holder. Holder may not have been everything hoped for from an Obama AG when the Administration took office in January of 2009, but he was a breath of fresh air coming off the AG line of the Bush/Cheney regime. Loretta Lynch is not better, and is not forward progress from Holder, indeed she is several steps down in the wrong direction. That is not the way to go.
The fact that Loretta Lynch is celebrated as a great nominee by not just Democrats in general, but the so called progressives in specific, is embarrassing. She is absolutely horrible. If Bush had put her up for nomination, people of the progressive ilk, far and wide, would be screaming bloody murder. Well, she is the same person, and she is a terrible nominee. And that does not bode well for the Rule of Law over the remainder of the Obama Administration.
And this post has not even touched on more mundane, day to day, criminal law and procedure issues on which Lynch is terrible. And horrible regression from Eric Holder. Say for instance pot. Decriminalization, indeed legalization, of marijuana is one of the backbone elements of reducing both the jail and prison incarceration rate, especially in relation to minorities. Loretta Lynch is unconscionably against that (See, e.g., p. 49 (of pdf) et. seq.). Lynch appears no more enlightened on other sentencing and prison reform, indeed, she seems to be of a standard hard core prosecutorial wind up law and order lock em up mentality. Lynch’s positions on relentless Brady violations by the DOJ were equally milquetoast, if not pathetic (See, e.g. p. 203 (of pdf) et. seq.). This discussion could go on and on, but Loretta Lynch will never come out to be a better nominee for Attorney General.
Observers ought stop and think about the legal quality, or lack thereof, of the nominee they are blindly endorsing. If you want more enlightened criminal justice policy, to really combat the prison state and war on drugs, and to rein in the out of control security state and war on terror apparatus, Loretta Lynch is a patently terrible choice; we can, and should, do better.
So, just a quick thought here, and with a little prompting by Jon Turley, obviously there is torture, and outright homicide thereon, spelled out and specified by the SSCI Torture Report. As I have said on Twitter, there are many things covered in the SSCI Torture Report and, yet, many things left out.
There are too many instances in the SSCI Torture Report to catalogue individually, but let’s be perfectly clear, the failure to prosecute the guilty in this cock up is NOT restricted to what is still far too euphemistically referred to as “torture”.
No, the criminality of US Government officials goes far beyond that. And, no, it is NOT “partisan” to point out that the underlying facts occurred under the Cheney/Bush regime (so stated in their relative order of power and significance on this particular issue).
As you read through the report, if you have any mood and mind for actual criminal law at all, please consider the following offenses:
These are but a few of the, normally, favorite things the DOJ leverages and kills defendants with in any remotely normal situation. I know my clients would love to have the self serving, toxically ignorant and duplicitous, work of John Yoo and Jay Bybee behind them. But, then, even if it were so, no judge, court, nor sentient human, would ever buy off on that bullshit.
So, here we are. As you read through the SSCI Torture Report, keep in mind that it is NOT just about “torture” and “homicide”. No, there is oh so much more there in the way of normally prosecuted, and leveraged, federal crimes. Recognize it and report it.
Harold’s Koh’s grudging defense of the domestic legal basis for President’s Obama’s use of force against the Islamic State in Iraq and Syria is important. It adds little new to other defenses of the President’s position – a legal position, I have argued in past posts, is politically stupid and constitutionally imprudent but nonetheless legally defensible under Article II and the 2002 AUMF (but not the 2001 AUMF). Koh’s defense is nonetheless important because it definitively reveals the death of the Obama administration’s ambition to end what Koh has described as “the Forever War.”
As I said, I think this is a misreading of Koh. Koh still clings to the notion that a Congress ducking legislative action for many reasons — almost none of which have to do with electoral pressure in the short term, and many of which have to do with the fact the President has given them the luxury of dodging responsibility for what will almost certainly be an unpopular and probably unsuccessful escalation — will provide the President a more appropriate authorization for his escalation later this year.
Achieving a better outcome is not politically impossible. Representative Adam Schiff’s proposed AUMF, for example, would accomplish in one bill three of the four steps described above. It would (1) authorize “all necessary and appropriate force against ISIL” for eighteen months, limited geographically to Iraq and Syria and operationally to no US ground forces; (2) repeal the 2002 Iraq AUMF now and (3) repeal the 2001 al-Qaeda AUMF in eighteen months. If the President openly backed such legislation, it would place his war with ISIL on a much firmer legal ground, while advancing his longer-term objective—announced in 2013 at the National Defense University —of taking us off a permanent war footing.
This President came to office to end war. But he just declared a new one, sparing Congress of its constitutional responsibility to back him. Instead of breaking the vicious cycle, and asking Congress to live up to its constitutional duties to confront the Islamic State, the President prolonged a dysfunctional historical pattern that is inconsistent with the design of our National Security Constitution. As the conflict with ISIL stretches on, pressure will build to send advisers and other boots on the ground to further the goal of destroying ISIL. Americans and the world will grow weary and forget the exigencies that led this President to take this course.
There is still time to avoid this vicious cycle. When Congress returns, some will be lame ducks, and for all, the next election will be at least two years off. If members of Congress seriously care about their prerogatives, they will have no excuse for again ducking their constitutional responsibility. And this President will have those same years to consider what his constitutional legacy will be. History will treat this President far better if he leaves office not just having fought the Islamic State, but having lived up to his promise to put us on the path toward ending the Forever War.
That is, Koh still clings to the fantasy that the President will agree to limit his own authority when Congress won’t force him to do so.
Goldsmith, on the other hand, presents Koh’s painful somersaults as endorsement of the notion that Islamic extremism will remain a threat for the foreseeable future, and therefore Congress may finally replace the 2001 AUMF with something that better authorizes Forever War for the long haul.
I always thought the debates about what to do with the 2001 AUMF – repeal it, let the President interpret it flexibly, or replace it with a more rigorous updated authorization – turned on intuitions about the persistence and danger posed by Islamist terrorists. It is now clear that the Islamist terrorist threat is not dissipating anytime soon. It is also clear that the President’s interpretation of the 2001 AUMF to fight this threat, whether lawful or not, is certainly a stretch, even on Koh’s account. It is also pretty clear, finally, that Congress will not easily authorize wars on a threat-by-threat basis. So perhaps now we can start talking about realistic statutory replacements for the 2001 AUMF.
For Koh, this is a choice between a legally defensible (in the short term) justification, and more legally justifiable way to bring the Forever War to a close. For Goldsmith, however, the choice is between a legally suspect justification for the Forever War, and a more defensible justification for the Forever War.
Forever War or Forever War.
Whichever you choose, the President will retain the authority to override limits on domestic spying (written by … Jack Goldsmith!), to override due process to drone-kill American citizens, to indefinitely detain men who were sold for a bounty, and to train and arm men we’ve given cause to loathe us. From time to time, Congress will be called on to stir itself from suckling, Matrix-like, on its Defense Contractor cash to approve funds and expand immunities. The fight Osama bin Laden started will continue to rot our government and Constitution. “They hate us for our freedoms,” they used to say, and now our experts embrace indefinitely signing away those freedoms in increasing bits, via legally suspect means or legally defensible.
All the while, this Forever War will suck up money that should be spent funding things like education and infrastructure, things that used to sustain America’s vitality. And the constant threat inflation needed to justify this Forever War will distract from far more pressing threats, like climate change and Ebola and reckless banksters.
Perhaps the only thing that hasn’t worked as OBL wanted is that America’s refusal to deal with climate change will kill devout Muslims in far greater numbers, at first, than it will Americans.
Institutionalizing the Forever War might as well be declaring victory for OBL.
The most telling part of this exchange, though, is how Koh, after having referred to a bunch of fellow law professor critics as “commentators,” then called law professor Mary Ellen O’Connell, writing for a publication with greater reach and news credibility than the legal blog Just Security that Koh was writing in, “the blogosphere.” Continue reading
Over the weekend, the NYT had a story reporting the “conspiracy theory” popular among Iraqis that the US is behind ISIS.
The United States has conducted an escalating campaign of deadly airstrikes against the extremists of the Islamic State for more than a month. But that appears to have done little to tamp down the conspiracy theories still circulating from the streets of Baghdad to the highest levels of Iraqi government that the C.I.A. is secretly behind the same extremists that it is now attacking.
“We know about who made Daesh,” said Bahaa al-Araji, a deputy prime minister, using an Arabic shorthand for the Islamic State on Saturday at a demonstration called by the Shiite cleric Moktada al-Sadr to warn against the possible deployment of American ground troops. Mr. Sadr publicly blamed the C.I.A. for creating the Islamic State in a speech last week, and interviews suggested that most of the few thousand people at the demonstration, including dozens of members of Parliament, subscribed to the same theory.
The prevalence of the theory in the streets underscored the deep suspicions of the American military’s return to Iraq more than a decade after its invasion, in 2003. The casual endorsement by a senior official, though, was also a pointed reminder that the new Iraqi government may be an awkward partner for the American-led campaign to drive out the extremists.
It suggests the theory arises from lingering suspicions tied to our occupation of Iraq.
But, given the publicly available facts, is the theory so crazy?
Let me clear: I am not saying the US currently backs ISIS, as the NYT’s headline but not story suggests is the conspiracy theory. Nor am I saying the US willingly built a terrorist state that would go on to found a caliphate in Iraq.
But it is a fact that the US has had a covert op since at least June 2013 funding Syrian opposition groups, many of them foreign fighters, in an effort to overthrow Bashar al-Assad. Chuck Hagel confirmed as much in Senate testimony on September 3, 2013 (the NYT subsequently reported that President Obama signed the finding authorizing the op in April 2013, but did not implement it right away). We relied on our Saudi and Qatari partners as go-betweens in that op and therefore relied on them to vet the recipient groups.
At least as Steve Clemons tells it, in addition to the more “moderate” liver-eaters in the Free Syrian Army, the Qataris were (are?) funding Jabhat al-Nusra, whereas Saudi prince Bandar bin Sultan gets credit for empowering ISIS — which is one of the reasons King Abdullah took the Syria portfolio away from him.
McCain was praising Prince Bandar bin Sultan, then the head of Saudi Arabia’s intelligence services and a former ambassador to the United States, for supporting forces fighting Bashar al-Assad’s regime in Syria. McCain and Senator Lindsey Graham had previously met with Bandar to encourage the Saudis to arm Syrian rebel forces.
But shortly after McCain’s Munich comments, Saudi Arabia’s King Abdullah relieved Bandar of his Syrian covert-action portfolio, which was then transferred to Saudi Interior Minister Prince Mohammed bin Nayef. By mid-April, just two weeks after President Obama met with King Abdullah on March 28, Bandar had also been removed from his position as head of Saudi intelligence—according to official government statements, at “his own request.” Sources close to the royal court told me that, in fact, the king fired Bandar over his handling of the kingdom’s Syria policy and other simmering tensions, after initially refusing to accept Bandar’s offers to resign.
ISIS, in fact, may have been a major part of Bandar’s covert-ops strategy in Syria. The Saudi government, for its part, has denied allegations, including claims made by Iraqi Prime Minister Nouri al-Maliki, that it has directly supported ISIS. But there are also signs that the kingdom recently shifted its assistance—whether direct or indirect—away from extremist factions in Syria and toward more moderate opposition groups.
The worry at the time, punctuated by a February meeting between U.S. National Security Adviser Susan Rice and the intelligence chiefs of Turkey, Qatar, Jordan, and others in the region, was that ISIS and al-Qaeda-affiliated Jabhat al-Nusra had emerged as the preeminent rebel forces in Syria. The governments who took part reportedly committed to cut off ISIS and Jabhat al-Nusra, and support the FSA instead. But while official support from Qatar and Saudi Arabia appears to have dried up, non-governmental military and financial support may still be flowing from these countries to Islamist groups.
Thus, to the extent that we worked with Bandar on a covert op to create an opposition force to overthrow Assad, we may well have had an indirect hand in its creation. That doesn’t mean we wanted to create ISIS. It means we are led by the nose by the Saudis generally and were by Bandar specifically, in part because we are so reliant on them for our HUMINT in such matters. Particularly given Saudi support for Sunnis during our Iraq occupation, can you fault Iraqis for finding our tendency to get snookered by the Saudis suspect?
Moreover, our ongoing actions feed such suspicions. Consider the way the Administration is asking for Congressional sanction (at least in the form of funding) for an escalated engagement in the region, without first briefing Congress on the stupid things it has been doing covertly for the last 18 months?
Jack Goldsmith observes that President Obama seems to be skirting War Power Resolution rules by sending Congress notice of incremental battles against ISIS.
Yesterday President Obama sent a War Powers Resolution (WPR) letter to Congress concerning U.S. airstrikes “in support of an operation to deliver humanitarian assistance to civilians in the town of Amirli, Iraq.” This is the third Iraq WPR letter to Congress in a month, and the sixth this summer. In June the President sent three WPR letters – the first (June 16) on the initial deployment of 275 soldiers to protect the embassy; then another (June 26) on further troops to protect the embassy and increased intelligence-gathering against the Islamic State; and a third (June 30) for ore troops to protect the embassy. Six weeks later, on August 8, the President sent a WPR letter concerning the use of force in Iraq to stop the “current advance on Erbil by the terrorist group Islamic State of Iraq and the Levant and to help forces in Iraq as they fight to break the siege of Mount Sinjar and protect the civilians trapped there.” On August 17, he sent a letter concerning the use of force in Iraq “to support operations by Iraqi forces to recapture the Mosul Dam.” And then yesterday’s letter on Amirli. (John recently summarized how these WPR letters are typically generated.)
Such frequent letters to Congress about discrete missions within a single country are not typical. Typically the President sends one WPR letter to cover the use of force within a country, and then updates that use of force as part of a biannual consolidated report.
Why, then, has the President sent Congress six narrowly tailored WPR letters related to Iraq since mid-June? I can think of two possible explanations.
First, the President wants to keep Congress super-informed about what he is doing in Iraq. I doubt this is the reason, or at least the main reason, since the information in the letters was publicly known (or about to be). Relatedly, the administration might want to emphasize to Congress that each use of force is limited in scope and time, though in the aggregate such discrete reporting might have the opposite effect.
Second, the administration is trying to circumvent WPR time limits on it deployment of troops and uses of force in Iraq. (NSC spokeswoman Caitlin Hayden recently dodged whether the WPR applied to the recent air strikes and related actions in Iraq.)
Definitely click through to see the addendum Goldsmith put together, showing Obama’s accelerating rate of WPR note-sending.
Not only does he seem to be dodging the intent of WPR (in more legalistic, though no less obstinate fashion than Obama did with Libya). But by attaching letters to each mountain or dam we have to defend on humanitarian grounds, you pretty much ensure a piecemeal approach.
That may still be better than declaring war against ISIS, with the inevitable mission creep that would bring. But I’m not sure that war by epistolary novel is any less likely to result in mission creep.
Back when we last saw Judge Colleen McMahon in the ACLU/NYT drone killing FOIA, she reluctantly shut down those FOIA bids. Since then, of course, the government kept blathering about its drone programs — including releasing a white paper so John Brennan could become CIA Director — leading the 2nd Circuit to order the government to release the drone killing memo and have McMahon review the others for release.
The government tried to welch on that part of the order though, twice asking McMahon to let them file a motion for summary judgment regarding what it should and should not have to disclose. The ACLU and NYT were not amused with the government’s attempts to rewrite the 2nd Circuit’s order.
You know who was even less amused? Judge McMahon.
This court will not be entertaining arguments about the applicability of FOIA exemptions to the legal memoranda that the Government must produce before complying with the mandate. Instead, it will follow the mandate to the letter: I will analyze the legal memoranda that were not previously produced (either to this court or to the Second Circuit) to see if the Government has waived its right to invoke any FOIA exemptions. I will do that before I do anything else, and I will do it on the schedule I set.
There is no need to conduct any “careful review,” let alone any “inter-agency review” before producing the documents in accordance with the mandate. The Circuit’s order that they be produced for in camera inspection is clear and admits of no argument or exception. Frankly, the Government’s bald assertion, in its letter of July 7, 2014, that it gets to decide “whether any of those documents, or particular portions thereof, fall within the scope of the waiver found by the Second Circuit” would be offensive if it were not so laughable. The Second Circuit directed this court to make that determination, in light of the rulings it has made. And so I shall. [emphasis original]
Remember, McMahon made it clear that before the government kills someone for treason, they’re supposed to make their case before an Article III Judge.
She seems to be getting weary of the government’s usurpation of her job.
In very much related news, the 2nd Circuit just told the government it actually has to provide a functional Vaughn Index. It, too, appears to be weary, this time of the government’s repeated efforts to expand the universe of titles of documents it doesn’t have to disclose.
It is far too late in the day to fail to identify by specific numbers the “other” listings. The Government’s claim that “space constraints” in the rehearing petition preclude the requisite specificity, see Petition 15, is without merit. Any additional numbers could have been included in one or two lines of type in the blank bottom one-third of the last page of the petition.
Imagine that. The government might actually have to release more details of how it uses drones to kill US citizens.
As you read the Awlaki memo, it’s worth remembering why it was written, after David Barron had already written a memo authorizing Anwar al-Awlaki’s killing 5 months earlier. In April 2010, as newspapers reported that Awlaki had been added to the CIA Kill List (having been added to the JSOC one either in December 2009, before they tried to kill him on Christmas Eve, or in January 2010, when Dana Priest reported it), international law scholar Kevin Jon Heller wrote a blog post arguing that it would be murder for CIA to kill Awlaki.
The Obama administration has been savagely criticized for authorizing the CIA to use lethal forceagainst Anwar al-Awlaki, a US citizen who is allegedly a member of al-Qaeda in Yemen. Glenn Greewald, for example, has described the decision — justifiably — as “unbelievably Orwellian and tyrannical.” To date, however, critics have ignored what I think is perhaps the most important point:An American who kills an American outside of the United States is guilty of murder. Not political murder. Not figurative murder. Legal murder.
The foreign-murder statute has to be the starting point of any analysis of the Obama adminstration’s decision to authorize the CIA to kill al-Awlaki. If the CIA does kill him — and even if it doesn’t; see below — any CIA operative involved in the killing who is American is presumptively a murderer. The only questions would be (1) whether for some reason 18 USC 1119 would not apply, and (2) whether the CIA operative would have a plausible defense if he was charged with murder in federal court.
In response to this post, David Barron felt the need to reconsider the question.
The main point was to determine whether the CIA — not the government generally — could kill Awlaki.
And the memo seems to betray uncertainty about whether they’ve really proved their case.
Consider the length. Barron takes 10.5 pages to consider whether DOD could kill Awlaki, and somewhat unsurprisingly finds that soldiers whose job it is to kill the country’s enemies can kill someone who has been deemed an enemy to his country.
Barron spends just 5 pages considering the far more controversial question whether CIA can kill Awlaki. As was pretty clear Barron would do from the White Paper, he does so by collapsing the difference between soldiers (whose job is to kill our enemies) and CIA (who are prohibited from breaking US law and whose job is not, primarily, to kill our enemies). That is, the argument in favor of soldiers killing stands in for a considered argument for spies killing.
It seems to accomplish this by classifying CIA’s actions as military — though the classification is redacted. See this passage from page 18:
And this passage from page 32:
Given debates that took place afterwards, I think the redacted language may either describe CIA’s actions as Traditional Military Activities or paramilitary activities. It appears by labeling the CIA’s job as such, Barron disappeared the other rules that govern CIA action. But his language in this footnote, doesn’t reflect great confidence his argument is very strong.
We note, in addition, that the “lawful conduct of war” variant of the public authority justification, although often described with specific reference to operations conducted by the armed forces, is not necessarily limited to operations by such forces; some descriptions of that variant of the justification, for example, do not imply such a limitation. See, e.g., Frye, 10 Cal. Rptr. 2d at 221 n.2 (“homicide done under a valid public authority, such as execution of a death sentence of killing an enemy in a time of war”); Perkins & Boyce, Criminal Law at 1093 (“the killing of an enemy as an act of war and within the rules of war.”)
Barron’s confidence in footnote 44 — especially where he argues that the US doesn’t think that unprivileged combatants (which include both CIA and al Qaeda members operating not in uniform) engaging in killing violates the law — appears even more shaky. If that’s true, then someone should go free Omar Khadr, because we argued that his self-defense attempted killing of Americans was illegal solely because he was unprivileged.
That is, it doesn’t appear even Barron believes his own argument.
One other thing that appears to be redacted is the authority for CIA’s actions, in the redacted language following “the CIA would carry out in accord with” …
That language probably refer to the Presidential Finding required before CIA engages in covert operations. That is, critical to this argument appears to be the formula that if the President deems the CIA a military force (and gives them drones) then they get treated — at least according to US law — just like soldiers, even when they’re killing Americans.
That involves an extra step to the formula “if the President authorizes it,” requiring also that he call CIA spies soldiers. But it still amounts to the same argument.
Five years ago, I reported (BREAKING) that the Bush Administration (aka Dick Cheney) made the torture program a Special Access Program in unusual fashion. Rather than CIA Director George Tenet make torture a SAP, as mandated by the Executive Order governing such things, unnamed people in the National Security Council did so.
Panetta tells a funny story about how (but not when) the torture program became a special access program.
Section 6.1(kk) of the Executive Order defines a “special access program” as “a program established for a special class of classified information that imposes safeguarding and access requirements that exceed those normally required for information at the same classification level.” Section 4.5 of the Order specifies the U.S. Government officials who may create a special access program. This section further provides that for special access programs pertaining to intelligence activities (including special activities, but not including military operations, strategic, and tactical programs), or intelligence sources or methods, this function shall be exercised by the Director of the CIA.
Officials at the National Security Council, (NSC) determined that in light of the extraordinary circumstances affecting the vital interests of the United States and the senstivity of the activities contemplated in the CIA terrorist detention and interrogation program, it was essential to limit access to the information in the program. NSC officials established a special access program governing access to information relating to the CIA terrorist detention and interrogation program. As the executive agent for implementing the terrorist detention and interrogation program, the CIA is responsible for limiting access to such information in accordance with the NSC’s direction. [my emphasis]
See the funny bit? The first paragraph says the Director of the CIA “shall” “exercise” the function of creating special access programs pertaining to intelligence. But then the very next paragraph says “NSC officials established a special access program.” One paragraph says the Director of CIA has to do it, but the next paragraph admits someone else did it.
Since that time, I’ve asked experts in classification and they agree that something funky went down (note, too, that torture wasn’t a SAP at the very beginning).
I believe torture’s odd SAP status is one of the things that has implicated the Presidency, which the Obama Administration went to some lengths to cover up.
But it also should dictate the White House take the lead on declassification of the torture program.
Don’t take my word for it — take Dianne Feinstein’s word. In a letter to the White House, she invoked torture’s status as a “covert action program under the authority of the President and National Security Council” to call for the White House to lead declassification.
In a letter to the President dated April 7 and obtained by McClatchy, Dianne Feinstein, D-Calif., called for swift action on the summary and the findings and conclusions of the report, which members voted last week to declassify. The summary, Feinstein said, should be released “quickly and with minimal redactions.”
“As this report covers a covert action program under the authority of the President and National Security Council, I respectfully request that the White House take the lead in the declassification process,” the letter reads.
Note, Dianne Feinstein has just formally confirmed the same detail the Obama Administration appealed to keep secret: torture was authorized by the President, not by OLC, not by George Tenet, not by John Rizzo. The President.
Which is why the President should take responsibility for releasing the report.
As I noted on Friday, Judge Rosemary Collyer threw out the Bivens challenge to the drone killings of Anwar and Abdulrahman al-Awlaki and Samir Khan.
The decision was really odd: in an effort to preserve some hope that US citizens might have redress against being executed with no due process, she rejects the government’s claims that she has no authority to decide the propriety of the case. But then, by citing precedents rejecting Bivens suits, including one on torture in the DC Circuit and Padilla’s challenge in the Fourth, she creates special factors specifically tied to the fact that Awlaki was a horrible person, rather than that national security writ large gives the Executive unfettered power to execute at will, and then uses these special factors she invents on her own to reject the possibility an American could obtain any redress for unconstitutional executions. (See Steve Vladeck for an assessment of this ruling in the context of prior Bivens precedent.)
The whole thing lies atop something else: the government’s refusal to provide Collyer even as much information as they had provided John Bates in 2010 when Anwar al-Awlaki’s father had tried to pre-emptively sue before his son was drone-killed.
On December 26, Collyer ordered the government to provide classified information on how it decides to kill American citizens.
MINUTE ORDER requiring the United States, an interested party 19 , to lodge no later than January 24, 2014, classified declaration(s) with court security officers, in camera and ex parte, in order to provide to the Court information implicated by the allegations in this case and why its disclosure reasonably could be expected to harm national security…, include[ing] information needed to address whether or not, or under what circumstances, the United States may target a particular foreign terrorist organization and its senior leadership, the specific threat posed by… Anwar-al Aulaqi, and other matters that plaintiff[s have] put at issue, including any criteria governing the use of lethal force, updated to address the facts of this record.
Two weeks later, the government moved to reconsider, both on jurisdictional grounds and because, it said, Collyer didn’t need the information to dismiss the case.
Beyond the jurisdictional issue, the Court should vacate its Order because Defendants’ motion to dismiss, which raises the threshold defenses of the political question doctrine, special factors, and qualified immunity, remains pending. The information requested, besides being classified, is not germane to Defendants’ pending motion, which accepts Plaintiffs’ well-pled facts as true.
As part of their motion, however, the government admitted to supplementing the plaintiffs’ facts.
Defendants’ argument that decedents’ constitutional rights were not violated assumed the truth of Plaintiffs’ factual allegations, and supplemented those allegations only with judicially noticeable public information, the content of which Plaintiffs did not and do not dispute.
The plaintiffs even disputed that they didn’t dispute these claims, pointing out that they had introduced claims about:
Ultimately, even Collyer scolds the government for misstating the claims alleged in the complaint.
The United States argued that the factual information that the Court requested was not relevant to the Defendants’ special factors argument because special factors precluded Plaintiffs’ cause of action, given the context in which the claims, “as pled,” arose––that is, “the alleged firing of missiles by military and intelligence officers at enemies in a foreign country in the course of an armed conflict.” Mot. for Recons. & to Stay Order at ECF 10. The United States, however, mischaracterizes the Complaint. Continue reading