Jameel Jaffer has a post on the government’s latest crazy-talk in the ongoing ACLU and NYT effort to liberate more drone memos. He describes how — in the government’s response to their appeal of the latest decisions on the Anwar al-Awlaki FOIA — the government claims the Court’s release of an OLC memo does not constitute official release of that memo. (Note, I wouldn’t be surprised if the government is making this claim in anticipation of orders to release torture pictures in ACLU’s torture FOIA suit that’s about to head to the 2nd Circuit.)
But there’s another interesting aspect of that brief. It provides heavily redacted discussion of the things Judge Colleen McMahon permitted the government to withhold. But it makes it clear that one of those things is a March 2002 OLC memo that offers different analysis about the assassination ban than the analysis used to kill Anwar al-Awlaki.
The district court also upheld the withholding of a March 2002 OLC Memorandum analyzing the assassination ban in Executive Order 12,333 (the “March 2002 Memorandum”). (CA 468-70; see CA 315-29). Although the district court noted that the OLC-DOD Memorandum released by this Court contained a “brief mention” of Executive Order 12,333, the district court concluded that the analysis in the March 2002 Memorandum is significantly different from any legal analysis that this Court held has been officially disclosed and for which privilege has been waived.
The statement here is carefully worded, probably for good reason. That’s because the February 19, 2010 memo McMahon permitted the government to almost entirely redact clearly explains EO 123333 and its purported ban on assassinations in more depth than the July 16, 2010 one; the first paragraph ends,
Under the conditions and factual predicates as represented by the CIA and in the materials provided to us from the Intelligence Community, we believed that a decisionmaker, on the basis of such information, could reasonably conclude that the use of lethal force against Aulaqi would not violate the assassination ban in Executive Order 12333 or any application constitutional limitations due to Aulaqi’s United States citizenship.
I pointed out that there must be more assassination analysis here. It almost certainly resembles what Harold Koh said about a month later, for which activists at NYU are now calling into question his suitability as an international law professor.
Fourth and finally, some have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.”
But the government is claiming that because that didn’t get disclosed in the July 2010 memo, it doesn’t have to be disclosed in the February 2010 memo, and the earlier “significantly different” analysis from OLC doesn’t have to be disclosed either.
At a minimum, ACLU and NYT ought to be able to point to the language in the white paper that addresses assassinations that doesn’t appear in the later memo to show that the government has already disclosed it.
But I’m just as interested that OLC had to change its previous stance on assassinations to be able to kill Awlaki.
Of course, the earlier memo was written during a period when John Yoo and others were pixie dusting EO 12333, basically saying the President didn’t have to abide by EO 12333, but could instead violate it and call that modifying it. Perhaps that’s the difference — that David Barron invented a way to say that killing a high ranking leader (whether or not he’s a citizen) didn’t constitute assassination because of the weapons systems involved, as distinct from saying the President could blow off his own EOs in secret and not tell anyone.
I suggested Dick Cheney had likely pixie dusted EO 12333’s ban on assassinations back in 2009.
But there’s also the possibility the government had to reverse the earlier decision in some other fashion. After all, when Kamal Derwish was killed in a drone strike in Yemen on November 9, 2002, the government claimed Abu Ali al-Harithi was the target, a claim the government made about its December 24, 2009 attempt to kill Anwar al-Awlaki, but one they dropped in all subsequent attempts, coincident with the February 2010 memo. That is, while I think it less likely than the alternative, it is possible that the 2010 analysis is “significantly different” because they had to interpret the assassination ban even more permissively. While I do think it less likely, it might explain why Senators Wyden, Udall, and Heinrich keep pushing for more disclosure on this issue.
One thing is clear, however. The fact that the government can conduct “significantly different” analysis of what EO 12333 means, in secret, anytime it wants to wiretap or kill a US citizen makes clear that it is not a meaningful limit on Executive power.
Man, I must have written about this letter Ron Wyden sent to John Brennan during his confirmation process 15 times (of which just a few are linked below). Which is why I’m so fascinated by the back and forth between Wyden’s office (the staffer’s name is redacted) and ODNI, largely Bob Litt, both before and after Wyden sent the letter on January 14, 2013. (Many many kudos to Zack Sampson who FOIAed it through MuckRock.)
Wyden’s office submitted the letter for a declassification review on January 11, 2013. Wyden’s office did not get an answer before he sent it. And on January 15, Bob Litt complained,
I have a concern that there are several references in this letter that are not only classified but compartmented.
So the staffer writes back letting Litt know that he or she had unclassified comments by Executive Branch officials for all the references, and he or she will happily share it. To which Litt responded (on January 17),
Although I am dubious, since there are statements in there that assume as fact things that we have recently succeeded in convincing a judge remain classified, I’ll take a look.
It went on for a while (the email thread is from page 21 to 24), with Litt complaining some more, promising Brennan wouldn’t answer questions about it, and the staffer ultimately pointing out that the reason they keep asking publicly is because ODNI won’t provide answers even in classified form (this exchange precedes Clapper’s lies about the dragnet — about which most of the other documents released under this FOIA pertain — by two months).
What Litt was talking about, clearly, was the Administration’s killing of Anwar al-Awlaki, the memos authorizing which Judge Colleen McMahon, citing Alice in Wonderland for the bizarreness of it all, had just ruled remained exempt from FOIA on January 2, 2013.
In other words, Litt was suggesting that Wyden should not have said the following — which cites McMahon!! — because McMahon had ruled that the government did not have to give the OLC memos authorizing the Awlaki killing to ACLU and NYT, which is rather different from ruling they didn’t have to share such information with the Intelligence Committee or claiming that Wyden could not refer to official comments in a letter to someone who made those comments because citing back those comments made them classified.
I have asked repeatedly over the past two years to see the secret legal opinions that contain the executive branch’s understanding of the President’s authority to kill American citizens in the course of counterterrorism operations. Senior intelligence officials have said publicly that they have the authority to knowingly use lethal force against Americans in the course of counterterrorism operations, and have indicated that there are secret legal opinions issued by the Justice Department’s Office of Legal Counsel that explain the basis for this authority. I have asked repeatedly to see these opinions and I have been provided with some relevant information on the topic, but I have yet to see the opinions themselves.
Both you and the Attorney General gave public speeches on this topic early last year, and these speeches were a welcome step in the direction of more transparency and openness, but as I noted at the time, these speeches left a large number of important questions unanswered. A federal judge recently noted in a Freedom of Information Act case that “no lawyer worth his salt would equate Mr. Holder’s statements with the sort of robust analysis that one finds in a properly constructed legal opinion,” and I assume that Attorney General Holder would agree that this was not his intent.
As Wyden noted, both Brennan and Holder had given big dog-and-pony shows that were clearly about killing Awlaki, and yet Bob Litt wanted to prevent Wyden from pressuring Brennan to turn over the actual legal authorizations to the Intelligence Community’s oversight committee? Really?
Ah well, it all worked out for the forces of good, as when the Committee threatened to hold up Brennan’s confirmation, someone leaked the White Paper to Mike Isikoff that therefore had to be shared with Jason Leopold that ultimately led McMahon to liberate the opinions themselves.
Which is probably precisely what Bob Litt was worried about.
Make sure to read the update below: It’s possible McMahon’s estimate is off and this whole review process has gotten hopeless screwed up.
Update: yes, this memo is actually the February 19, 2010 memo, not an earlier one. The referenced pages refer to the discussion from the February 19 memo. I’m marking out this post, because it appears to be incorrect.
If I’m understanding this heavily redacted memo from Colleen McMahon correctly, the government was reviewing whether it was legal to kill Anwar al-Awlaki before Umar Farouk Abdulmutallab implicated him in his High Value Interrogation Group obtained “confession.” That’s because, in her discussion of what she, at times, calls “the first Barron memo,” she says this:
Bies Exhibits B, which is responsive to both FOIA requests, is a memorandum prepared by OLC six months prior to its preparation of the OLC-DoD memorandum and the Draft White Paper. It pertains specifically to the proposed al-Aulaqi operation that was the subject of the Draft White Paper and the OLC-DoD Memorandum. Written by David J. Barron, it is entitled “Lethal Operation Against Shaykh Anwar Aulaqi.” I will refer to it hereafter as the Bies Exhibit B or as “The First Barron Memorandum.” The “OLC-DoD” memo is the July 16, 2010 memo. McMahon justifies the partial release of “the First Barron Memo” because the July 16, 2010 memo cites it specifically. Apparently, the reference “As we explained in our earlier memorandum, Barron Memorandum at 5-7″ (page 94) refers to that memo, and further discussions on the Fourth and Fifth Amendment and EO 12333 rely on that memo. But McMahon tells us this earlier memo — the first Barron memo considering the drone killing of Anwar al-Awlaki — was “prepared by OLC six months prior” to the July 16, 2010 one. That would date it around January 16, 2010. Before Umar Farouk Abdulmutallab could have implicated Awlaki in his plot. We know that’s true because: That is, unless McMahon’s estimate is off by 2 weeks, there’s no way they could be relying on Abdulmutallab’s confession in their case against Awlaki. And yet that is the one thing the government points to to explain its changed view — from December 24, 2009 — that Awlaki was not operational. The government appears to be aware of this problem. In trying to claim this document was still secret, they claimed “the date, title, and recipient of the analysis provided in the document relate to “entirely separate deliberative processes.” Indeed, it seems likely this was one of the memos the government was trying to bury after the Second Circuit ruled. Because, when this memo gets released with a mid-January release date, it will be clear that the entire story they’ve been telling about Awlaki doesn’t hold up.
In any case, McMahon is having none of that claim.
The Government’s arguments are demonstrably untrue. There were no “separate deliberative processes” here; rather, the Government deliberated about whether or not it could and should kill al-Aulaqi over the course of many months, during which time it asked OLC to render advice on a number of occasions.
The deliberation process is the same process. And it started before such time as the government had what it claims is first-hand evidence against Awlaki.
Update: There is one more possibility. That this memo–released in August and dated February 19, 2010–is the memo in question. That would mean 1) That McMahon was off in her estimate by a month and 2) that she’s very confused about what she’s reviewing, given that her opinion dates to a month and a half after the memo was released. But the content and the title would match up. So it seems possible that’s the memo, at which point they had their first “confession” implicating Awlaki.
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.
Last year, after the drone white paper demonstrated how shoddy were the Obama Administration’s claims to be able to kill Anwar al-Awlaki, a group of Senators decided the best way to avoid difficult questions but appear to address the issue would be to have the FISA Court review drone and/or targeted killings before they happened. I did a series of posts laying out what a horrible idea that was. I showed:
As a reminder, I argued the claims in that last bullet in February 2013.
The Fourth Amendment holds that judges must decide whether wiretaps are reasonable or not.
Yet after the FISA Amendments Act, that’s not what happens. Rather, judges are deprived of the ability to do more than review the government’s certifications about targeting and minimization. Once a judge has done so, however, the government can not only bulk collect telecommunications involving someone overseas, but it can later search on those telecommunications to get to the US person’s side of the conversation, apparently without court review on the back side.
Effectively, discretion over this massive system has collapsed back inside the Executive Branch.
And all that’s before the government’s use of the secret law that Mark Udall and Ron Wyden keep complaining about, which probably involves — in part — the bulk collection of geolocation information from cell phones. It’s also before the government has interpreted the word “relevance” to justify other massive collection programs (at a minimum, of things like hydrogen peroxide and acetone purchases) involving US persons.
In short, the FISA Court has become a venue not for judges to exercise individualized discretion about probable cause. Rather, it has become the venue in which the government uses the secrecy offered to develop expansive legal interpretations to support vast new spying programs it won’t even tell Americans about. Not only the promise of individualized judicial discretion has been eliminated, so has the very premise that American should know what laws they are subject to.
In June and August of last year, Snowden disclosures led the rest of the world to recognize that the FISC had authorized back door searches without judicial review of programmatic collection, had authorized the bulk collection of data from cell phones (though more limited collection of location data), and had interpreted the word “relevance” to mean “all.”
That is, my argument that the FISC was broken and therefore couldn’t be trusted with matters of life and death came to be accepted by just about everyone, up to and including Administration officials who agreed to make cosmetic (though not functional) changes to the FISC.
Along the way, we have also learned that the government is not complying with Congressional intent with respect to defendants’ rights, meaning the efficacy of the FISC in protecting constitutional rights has avoided the tests it should have had.
Yet the changes we have made — effectively inviting the FISC to call their existing clerks “advocates” to provide the patina of adversarial review — really are no more than cosmetic, and USA Freedumber has aspects that would weaken the FISC even further.
I thought all this had led people to see the folly in using the FISC to judge drone and/or targeted killings.
In accepting the Sam Adams prize, Chelsea Manning raised the ACLU/NYT lawsuits for the OLC memo authorizing the killing of Anwar al-Awlaki. (h/t Kevin Gosztola)
In doing so, she borrows an argument about separation of power and secrecy Judge Colleen McMahon made in her opinion on the FOIA.
As they gathered to draft a Constitution for their newly liberated country, the Founders – fresh from a war of independence from the rule of a King they styled a tyrant- were fearful of concentrating power in the hands of any single person or institution, and most particularly in the executive. That concern was described by James Madison in Federalist No. 47 (1788):
The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny ….
The magistrate in whom the whole executive power resides cannot of himself … administer justice in person, though he has the appointment of those who do administer it.
The Framers — who were themselves susceptible to being hanged as traitors by the King of England during the Revolutionary War — were as leery of accusations of treason as they were of concentrating power in the hands of a single person or institution. As a result, the Constitution accords special protections to those accused of the most heinous of capital crimes; Article 3, Sec. 3 sets the procedural safeguard that, “No Person shall be convicted of treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”
Interestingly, the Treason Clause appears in the Article of the Constitution concerning the Judiciary — not in Article 2, which defines the powers of the Executive Branch. This suggests that the Founders contemplated that traitors would be dealt with by the courts of law, not by unilateral action of the Executive. As no less a constitutional authority than Justice Antonin Scalia noted, in his dissenting opinion in Hamdi, 542 U.S. at 554, “Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime.”
The founders of America – fresh from a war of independence from King George lll – were particularly fearful of concentrating power. James Madison wrote that “the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”(1)
When drafting Article III of the American Constitution, the founders were rather leery of accusations of treason, and accorded special protections for those accused of such a capital offense, providing that “[n]o person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”
For those of you familiar with the American Constitution, you may notice that this provision is under the Article concerning the Judiciary, Article III, and not the Legislative or Executive Articles, I and II respectively. And, historically, when the American government accuses an American of such crimes, it has prosecuted them in a federal criminal court.
After having repeated McMahon’s lesson on the checks our Founders gave Article III courts over the President, Manning described how frustrated McMahon was in not being able to release the OLC memo to ACLU and NYT.
In a recent Freedom of Information Act case(2) – a seemingly Orwellian “newspeak” name for a statute that actually exempts categories of documents from release to the public – a federal district court judge ruled against the New York Times and the American Civil Liberties Union. The Times and the ACLU argued that documents regarding the practice of “targeted killing” of American citizens, such as the radical Sunni cleric Anwar Nasser al-Aulaqi were in the public’s interest and were being withheld improperly.
The government first refused to acknowledge the existence of the documents, but later argued that their release could harm national security and were therefore exempt from disclosure. The court, however, felt constrained by the law and “conclud[ed] that the Government [had] not violated the FOIA by refusing to turn over the documents sought in the FOIA requests, and [could not] be compelled . . . to explain in detail the reasons why [the Government’s] actions do not violate the Constitution and laws of the United States.”
However, the judge also wrote candidly about her frustration with her sense that the request “implicate[d] serious issues about the limits on the power of the Executive Branch under the Constitution and laws of the United States,” and that the Presidential “Administration ha[d] engaged in public discussion of the legality of targeted killing, even of [American] citizens, but in cryptic and imprecise ways.” In other words, it wasn’t that she didn’t think that the public didn’t have a right to know – it was that she didn’t feel that she had the “legal” authority to compel disclosure.
Against that background, Manning notes that she was charged with treasonable offense, and wonders whether under the Awlaki precedent she could have been drone killed, just like Awlaki.
I was accused by the Executive branch, and particularly the Department of Defense, of aiding the enemy – a treasonable offense covered under Article III of the Constitution.
Granted, I received due process. I received charges, was arraigned before a military judge for trial, and eventually acquitted. But, the al-Aulaqi case raises a fundamental question: did the American government, and particularly the same President and Department, have the power to unilaterally determine my guilt of such an offense, and execute me at the will of the pilot of an Unmanned Aerial Vehicle?
She then compares (I think, though the timing on this is perhaps understandably murky) the release of both the OLC memo and follow-up speeches — and its revelation of the powers claimed by the President — with her own releases.
Until documents held by the U.S. Department of Justice’s Office of Legal Counsel were released after significant political pressure in mid-2013, I could not tell you. And, very likely, I do not believe I could speak intelligently of the Administration’s policy on “targeted killing” today either.
There is a problem with this level of secrecy, obfuscation, and classification or protective marking, in that they supposedly protect citizens of their nation; yet, it also breeds a unilateralism that the founders feared, and deliberately tried to prevent when drafting the American Constitution. Now, we have a “disposition matrix,” classified military commissions, and foreign intelligence and surveillance courts – modern Star Chamber equivalents.
I am now accepting this award, through my friend, former school peer, and former small business partner, Aaron, for the release of a video and documents that “sparked a worldwide dialogue about the importance of government accountability for human rights abuses,” it is becoming increasingly clear to me that the dangers of withholding documents, legal interpretations, and court jurisprudence from the public that pertain to the right to “life, liberty, and property” of a state’s citizens is as fundamental and important to protecting against such human rights abuses.
Of course, we still don’t know what happened to Anwar al-Awlaki; the White Paper leaves many of the key details obscure. Even as the government prepares to execute another of its citizens.
But in comparing her own releases with the government’s refusal to reveal precisely how they decided to execute an American with no due process, Manning points to where this has already gone.
And she makes a compelling case that the government’s claims of secrecy cannot be trusted.
Roughly four years ago, then National Security Advisor James Jones submitted a nearly unprecedented sealed declaration to the Second Circuit in the ACLU’s torture FOIA lawsuit. In it he argued the government needed to keep secret a short reference making it clear the torture program operated under Presidential authorization.
The following May — perhaps not coincidentally just months after America’s first attempt to execute Anwar al-Awlaki by drone strike and as OLC was scrambling to come up with some justification for doing so — the Second Circuit granted the government’s request, deeming the language an intelligence source or method, and giving the request particular weight because the language pertained to intelligence activities unrelated to torture.
At the hearing, this exchange occurred.
JUDGE NEWMAN: In one of your sealed excerpts from your briefs, I am not going to disclose a secret. There is a statutory reference from Title 50. You’re probably familiar with it. It has to do with whether affidavits are sufficient. It’s Title 50. I think it’s Section 430(f)(2). Does that ring a bell at all?
MS. SWINGLE: I believe so, your Honor.
JUDGE NEWMAN: Is that a correct citation? Because I couldn’t find it.
MS. SWINGLE: I can check and provide the information for your Honor. Off the top of my head, I can’t say that I know either.
JUDGE NEWMAN: Do they have it there?
MS. SWINGLE: Again, your Honor, that would be information we could provide separately to the Court, to the extent it is something that’s only in the classified part.
JUDGE NEWMAN: Just the statutory reference. Is it the right statute? That’s all I want to know.
Citing this passage, on Thursday the government asked to submit an ex parte filling clarifying both the answer Swingle gave, as well as the answer to an unidentified question raised in the hearing.
During the oral argument on October 1, 2013, a member of the panel asked the government to clarify a citation contained in a classified declaration in the record. See Tr. 73-74. The government’s proposed supplemental classified submission provides the clarification requested by the Court. The proposed supplemental classified submission also provides an additional answer to a question posed during oral argument that could not be adequately and completely answered in a public setting.
Both the NYT and the ACLU objected to this ex parte clarification of the answer (the NYT doesn’t object to such a filing pertaining to the citation), given that the Court didn’t ask for any further clarification.
The Government’s motion does not at any point include information about the nature of the “additional answer” that the Government is providing to the Court or the question to which it is addressed. The Court did not request such a supplemental answer, and there is no basis for a party to unilaterally provide itself with a further opportunity to extend argument – especially in secret – after the conclusion of oral argument.
Now, it’s entirely unclear what the erroneous citation in the classified government brief is. Though 50 USC 431(f) may describe this section of the National Security Act on to CIA files being FOIAed (though 50 USC 403 includes definitions and roles of CIA).
(f) Whenever any person who has requested agency records under section 552 of title 5, United States Code (Freedom of Information Act), alleges that the Central Intelligence Agency has improperly withheld records because of failure to comply with any provision of this section, judicial review shall be available under the terms set forth in section 552(a)(4)(B) of title 5, United States Code, except that–
(2) the court shall, to the fullest extent practicable, determine issues of fact based on sworn written submissions of the parties;
In which case, surprise surprise, this is about hiding CIA files.
But we already knew that.
And unsurprisingly, the two questions that DOJ’s Sharon Swingle referred back to the classified documents to answer also pertained to the CIA’s SEKRIT role in drone killing Americans.
One — which gets repeated several times — pertains to why DOJ’s prior disclosure that OLC wrote one drone killing memo for DOD forces DOJ to use a No Number No List response because admitting there were other OLC memos would also entail admitting an Other Government Agency carries out those drone killings.
JUDGE NEWMAN: I come back to saying, why can’t you have a redacted Vaughn index, at least on legal reasoning. Because I don’t understand your argument that if we say there are five of them, that somehow tells people more information. What does it tell them? It says five lawyers were working.
MS. SWINGLE: With respect, your Honor, it says that OLC on five separate instances wrote advice memoranda about the use of targeted lethal force. It now tells us, and I do think this is critical, that on four of those instances, it did not involve the Department of Defense. Because we have acknowledged there is a single responsive document as to the Department of Defense. I think that is really significant information. And it is not information that has been made public by the U.S. government.
JUDGE NEWMAN: That’s a secret.
MS. SWINGLE: It is.
The decision is based on a theory Merrick Garland used in the hearing (which Wells Bennett analyzed here). Whether or not the CIA had admitted to the agency being involved in drones, it had admitted to having an interest in them. Which makes any claim that it cannot reveal it has documents ridiculous.
And there is still more. In 2009, then-Director of the CIA Leon Panetta delivered remarks at the Pacific Council on International Policy. In answer to a question about “remote drone strikes” in the tribal regions of Pakistan, Director Panetta stated:
[O]bviously because these are covert and secret operations I can’t go into particulars. I think it does suffice to say that these operations have been very effective because they have been very precise in terms of the targeting and it involved a minimum of collateral damage. . . . I can assure you that in terms of that particular area, it is very precise and it is very limited in terms of collateral damage and, very frankly, it’s the only game in town in terms of confronting and trying to disrupt the al-Qaeda leadership.8
It is hard to see how the CIA Director could have made his Agency’s knowledge of — and therefore “interest” in — drone strikes any clearer. And given these statements by the Director, the President, and the President’s counterterrorism advisor, the Agency’s declaration that “no authorized CIA or Executive Branch official has disclosed whether or not the CIA . . . has an interest in drone strikes,” Cole Decl. ¶ 43; see CIA Br. 43, is at this point neither logical nor plausible.
It is true, of course, that neither the President nor any other official has specifically stated that the CIA has documents relating to drone strikes, as compared to an interest in such strikes. At this stage of this case, however, those are not distinct issues. The only reason the Agency has given for refusing to disclose whether it has documents is that such disclosure would reveal whether it has an interest in drone strikes; it does not contend that it has a reason for refusing to confirm or deny the existence of documents that is independent from its reason for refusing to confirm or deny its interest in that subject. And more to the point, as it is now clear that the Agency does have an interest in drone strikes, it beggars belief that it does not also have documents relating to the subject.
But again, there is more. In the above-quoted excerpt from the CIA Director’s Pacific Council remarks, the Director spoke directly about the precision of targeted drone strikes, the level of collateral damage they cause, and their usefulness in comparison to other weapons and tactics. Given those statements, it is implausible that the CIA does not possess a single document on the subject of drone strikes. Continue reading
Back in February, when the “White Paper” was first “leaked”, Marcy wrote a fantastic article entitled Article II or AUMF? “A High Level Official” (AKA John Brennan) Says CIA Can Murder You on the issues of Article II authority versus AUMF authority in relation to the Obama targeted killing program. First off, let me say that the the lack of recognition of the presence of both these these respective authorities in the targeted killing program, even among legal commentators I respect greatly, is one of, if not the, most discouraging aspects of the discussion being had. Sadly, the big filibuster by Sen. Rand Paul did not necessarily improve the understanding, and even the New York Times continues to propagate the misdirection and misinformation peddled by the Obama Administration.
I wish to discuss the interaction of the statutory law contained in 18 USC 1119, the “Foreign Murder statute”, with the greater Obama Administration Targeted Killing Program, and the White Paper foundation for it. Specifically I want to point out the circular and disingenuous way in which the White Paper tries to bootstrap itself, and the Administration, around criminal liability for murder in the case of a targeted US citizen such as Anwar Awlaki. Frankly, Marcy let fly with another must read post on 18 USC 1119 and the White Paper yesterday in the wake of the New York Times sop to the Administration, and it filets both the White Paper, and the NYT, open at the seams.
The most important principle to understand about the White Paper’s discussion of 18 USC 1119 is, as Marcy noted, that it is impertinent if the the law of war (formally the “Law of Armed Conflict” or “LOAC”) is truly in play. In short, if the Administration is using the AUMF – military force – in an active battle situation, there is no need for further discussion, whether Mr. Awlaki is a US citizen or not. That, of course is diametrically opposed to what the facts were at the action point with Awlaki, and that we now know.
The truth is the Administration used a civilian agency, the CIA, to kill a US citizen without judicial due process, far from the “hot battlefield” and that is why such a deliberate attempt was made in the White Paper to obfuscate the legal basis for their targeting and killing, and why such a seemingly inordinate time was spent in the White Paper on a traditional criminal law statute, 18 USC 1119.
I’ll have far more to say about this irresponsibly credulous accounting of the background to the Anwar al-Awlaki killing from the NYT tomorrow. But for the moment I wanted to point to an interesting detail about the genesis of the June-July 2010 OLC memo.
The NYT explains that David Barron and Marty Lederman wrote an initial short OLC memo to authorize Anwar al-Awlaki’s killing. But then, after reading a blog post that describes why such a killing would be a violation of 18 USC 1119, they decided they needed to do a more thorough memo.
According to officials familiar with the deliberations, the lawyers threw themselves into the project and swiftly completed a short memorandum. It preliminarily concluded, based on the evidence available at the time, that Mr. Awlaki was a lawful target because he was participating in the war with Al Qaeda and also because he was a specific threat to the country. The overlapping reasoning justified a strike either by the Pentagon, which generally operated within the Congressional authorization to use military force against Al Qaeda, or by the C.I.A., a civilian agency which generally operated within a “national self-defense” framework deriving from a president’s security powers.
They also analyzed other bodies of law to see whether they would render a strike impermissible, concluding that they did not. For example, the Yemeni government had granted permission for airstrikes on its soil as long as the United States did not acknowledge its role, so such strikes would not violate Yemeni sovereignty.
And while the Constitution generally requires judicial process before the government may kill an American, the Supreme Court has held that in some contexts — like when the police, in order to protect innocent bystanders, ram a car to stop a high-speed chase — no prior permission from a judge is necessary; the lawyers concluded that the wartime threat posed by Mr. Awlaki qualified as such a context, and so his constitutional rights did not bar the government from killing him without a trial.
But as months passed, Mr. Barron and Mr. Lederman grew uneasy. They told colleagues there were issues they had not adequately addressed, particularly after reading a legal blog that focused on a statute that bars Americans from killing other Americans overseas. In light of the gravity of the question and with more time, they began drafting a second, more comprehensive memo, expanding and refining their legal analysis and, in an unusual step, researching and citing dense thickets of intelligence reports supporting the premise that Mr. Awlaki was plotting attacks. [my emphasis]
This post — an April 8, 2010 post entitled “Let’s Call Killing al-Awlaki What It Is — Murder” — is almost certainly the blog post in question. There’s almost nothing else written on 1119 (there’s this legal journal article, but from Fall 2011), much less focusing specifically on Awlaki and published in a legal blog.
Which is interesting, because the post describes one of the possible bases for arguing that 1119 does not apply to the killing of Awlaki that Obama is just ignoring the statute as Commander-in-Chief.
Which leads us to the second possible explanation of why 18 USC 1119 does not apply: because Obama has authorized the CIA to kill al-Awlaki. That explanation seems implicit in much of the media’s coverage of the Obama administration’s decision; I have yet to see any reporter ask why Obama believes he has the legal authority to order Americans killed, given that 18 USC 1119 specifically criminalizes such killings. The argument, however, is deeply problematic — and eerily reminiscent of debates over the Bush administration’s authorization of torture. The Bush administration argued that Bush had the authority as Commander-in-Chief to ignore the federal torture statute, 18 USC 2340; the Obama administration seems to now be arguing, albeit implicitly, that Obama has the authority as Commander-in-Chief to ignore the foreign-murder statute.
As I noted, while the white paper, at least, plays a neat rhetorical game to collapse AUMF and Article II authorizations, ultimately it uses this language to explain why an Article II authorized killing of Awlaki would not violate 1119.
Similarly, under the Constitution and the inherent right to national self-defense recognized in international law, the President may authorize the use of force against a U.S. citizen who is a member of al-Qa’ida or its associated forces who poses an imminent threat of violent attack against the United States.
In other words, the white paper, at least, does precisely what Kevin Jon Heller warned might be so troubling — it said that if the President authorized Awlaki’s killing, it would mean 1119 would not apply.
To the extent that the white paper fairly reflects the content of the OLC memo, then, David Barron and Marty Lederman failed to find a counterargument to precisely the argument that appears to have convinced them to write a second, longer OLC memo in the first place.
Which may be why the NYT article goes to such lengths to try to explain away this apparent problem.