The Delayed “Imminence” of Anwar al-Awlaki’s Killing

As a number of people have noted (Jen Daskal is one), the OLC memo released yesterday doesn’t describe what the government considers an imminent threat.

Meanwhile, Ben Wittes is unexpectedly spending his time writing interesting posts about why imminence is in there in the first place, and not mocking the NYT editorial calling for a drone and/or targeted killing court.

Wittes writes.

I think the source of law for imminence in Holder’s speech, in the white paper, and in this memo is a presidential covert action finding. That is, I think the president, in issuing whatever finding gave rise to the killing of Al-Aulaqi, limited the authorization to situations involving imminent threats. This invocation was prudential, not legally required by any other source of law, but it operates as law for the executive branch.

There are a few pieces of evidence—not conclusive, but suggestive—supporting this view:

The most important is that memo—by omission—excludes the other major possibilities. If the imminence requirement is not there because of constitutional separation of powers, international law, or the constitutional rights of the targets, it’s got to be coming from somewhere. Internal executive branch law is one of the few remaining possibilities.

Moreover, it’s the only obvious possibility I can think of that would leave so little footprint in the memo. Indeed, if the imminence discussion is present but redacted, that suggests that the very source of law is classified. That is consistent with its appearance in a finding. Alternatively, if the reason the discussion seems to be missing is that it isn’t there at all, that is also consistent with its originating in a finding. After all, if we assume that imminence is only a requirement because the president said it’s a requirement, it follows that the concept means—at least in this context—whatever the president wants it to mean.

I’m not sure I buy that there is no legal reason for imminence, but I do agree it is relatively absent in what we have of the July 16, 2010 memo.

As it happens, in my thinking about the absence of a discussion of imminence in this memo, I have started comparing what’s in the white paper but not the OLC memo (I have already noted that the desultory treatment of why Courts couldn’t review the assassination is not in the OLC memo).

Remember, there are two possible explanations for why something would be in the White Paper (dated November 8, 2011, over a month after Awlaki was killed) but not in the July 16, 2010 OLC memo we got yesterday. First, those missing elements could be in the first OLC memo, from February 2010. Section VI of yesterday’s memo cites from and appears to repeat the analysis from that other memo. And that’s precisely where the reference to “imminent” is.

The task before OLC in February 2010 was likely somewhat different than the task in July 2010, because not only did OLC have to come up with an argument for killing an American going forward, but it likely felt some urgency to justify the attack on Awlaki attempted on Christmas Eve 2009, which was by all reports conducted under Article II justification. Dana Priest’s report that Awlaki was on the JSOC kill list probably created real urgency in January and February to provide this justification. Both the fact that that strike was attempted under solely Presidential authority, and that it was done without prior OLC review would raise the importance of arguing that Awlaki, in the wake of early December 2009 revelations that he had been in contact with Nidal Hasan, was an imminent threat.

The other possibility is that the emphasis on imminence came after the OLC memo, and DOJ added it into the white paper either for what was intended to be public (or at least Congressional) consumption, or to deal with developments that occurred between the time David Barron finished the memo in July 2010 and the time the government killed Awlaki 14 months later.

Meanwhile, I’ve been puzzling over something that appears in the white paper that we know can’t appear in either OLC memo: the citation to John Brennan’s September 16, 2011 speech on “Strengthening our Security by Adhering to our Values and Laws.” This sentence of that speech was cited: “The United States does not view our authority to use military force against al-Qa’ida as being restricted solely to ‘hot’ battlefields like Afghanistan.” That is, unless I’m mistaken, the only reference to a source that post-dates the OLC memo that authorized Awlaki’s killing.

As it turns out, that sentence introduces a discussion that leads to a treatment of the government’s definition of “imminence.”

The United States does not view our authority to use military force against al-Qa’ida as being restricted solely to “hot” battlefields like Afghanistan.  Because we are engaged in an armed conflict with al-Qa’ida, the United States takes the legal position that —in accordance with international law—we have the authority to take action against al-Qa’ida and its associated forces without doing a separate self-defense analysis each time.  And as President Obama has stated on numerous occasions, we reserve the right to take unilateral action if or when other governments are unwilling or unable to take the necessary actions themselves.

That does not mean we can use military force whenever we want, wherever we want. International legal principles, including respect for a state’s sovereignty and the laws of war, impose important constraints on our ability to act unilaterally—and on the way in which we can use force—in foreign territories.

Others in the international community—including some of our closest allies and partners—take a different view of the geographic scope of the conflict, limiting it only to the “hot” battlefields.  As such, they argue that, outside of these two active theatres, the United States can only act in self-defense against al-Qa’ida when they are planning, engaging in, or threatening an armed attack against U.S. interests if it amounts to an “imminent” threat.

In practice, the U.S. approach to targeting in the conflict with al-Qa’ida is far more aligned with our allies’ approach than many assume.  This Administration’s counterterrorism efforts outside of Afghanistan and Iraq are focused on those individuals who are a threat to the United States, whose removal would cause a significant – even if only temporary – disruption of the plans and capabilities of al-Qa’ida and its associated forces.  Practically speaking, then, the question turns principally on how you define “imminence.”

We are finding increasing recognition in the international community that a more flexible understanding of “imminence” may be appropriate when dealing with terrorist groups, in part because threats posed by non-state actors do not present themselves in the ways that evidenced imminence in more traditional conflicts.  After all, al-Qa’ida does not follow a traditional command structure, wear uniforms, carry its arms openly, or mass its troops at the borders of the nations it attacks.  Nonetheless, it possesses the demonstrated capability to strike with little notice and cause significant civilian or military casualties.  Over time, an increasing number of our international counterterrorism partners have begun to recognize that the traditional conception of what constitutes an “imminent” attack should be broadened in light of the modern-day capabilities, techniques, and technological innovations of terrorist organizations.

At a minimum, Brennan’s speech might suggest the imminence analysis is in the OLC memos, to the extent it is, because our allies would insist on it. But even while he does that — and purportedly cedes to the international view on the battlefield that would 2 weeks later take Awlaki’s life — he suggests the definition is changing.

Remember, too, that Assassination Drone Czar Brennan would have been the one to conduct the final review of the standards laid out before okaying the killing of Awlaki, the one to decide he was still an imminent threat 21 months after he was first targeted. So Brennan’s depiction of a changing standard of imminence is quite interesting, given that either by this time, or 2 weeks later, he would have signed off on the imminence of the threat Awlaki posed.

I raise Brennan not just because I find it significant that the white paper relied on this as a “source” of authority to kill Awlaki over a year after OLC had judged it. But the reliance on the speech also suggests that the white paper emphasis on imminence might post-date both OLC’s memos on Awlaki.

And there is one obvious thing that emphasized imminence — and the potential role of judges — that post-dated the OLC memo, though not by much. Around July 1, Nasir al-Awlaki’s father retained ACLU and Center for Constitutional Rights to represent him in a challenge to Awlaki’s targeting. The very same day OLC issued its memo, Treasury named Awlaki a Special Designated Terrorist, which required the ACLU and CCR to request permission to represent Awlaki’s father to avoid being charged with material support for terrorism.

In their suit — filed August 30 — they asked for,

a declaration from this Court that the Constitution and international law prohibit the government from carrying out targeted killings outside of armed conflict except as a last resort to protect against concrete, specific, and imminent threats of death or serious physical injury; and an injunction prohibiting the targeted killing of U.S. citizen Anwar Al-Aulaqi outside this narrow context.

That is, the ACLU/CCR suit emphasizing imminence almost certainly would have raised the stakes for it, if it wasn’t already a government standard.

In September, the government moved to dismiss the suit, arguing (as they did in the white paper but not the July 2010 OLC memo) that the courts had no role in reviewing this issue…

The Judiciary is simply not equipped to manage the President and his national security advisors in their discharge of these most critical and sensitive executive functions and prescribe ex ante whether, where, or in what circumstances such decisions would be lawful. Whatever the limits of the political question doctrine, this case is at its core.

… And arguing that the courts couldn’t determine whether someone was an imminent threat.

For example, even assuming for the sake of argument that plaintiff has appropriately described the legal contours of the President’s authority to use force in a context of the sort described in the Complaint, the questions he would have the court evaluate—such as whether a threat to life or physical safety may be “concrete,” “imminent,” or “specific,” or whether there are “reasonable alternatives” to force—can only be assessed based upon military and foreign policy considerations, intelligence and other sources of sensitive information, and real-time judgments that the Judiciary is not well-suited to evaluate.

See also this post for the choose your own adventure novel the government laid out to cover Awlaki’s killing.

Whatever the government argued in February 2010, its arguments to combat this suit in September 2010 required the government to deal with imminence directly, whether or not they did extensively in February or July 2010. And then, just weeks before they killed Awlaki (it having been a year since the most recent publicly claimed attack the government claimed Awlaki had a role in), the Administration publicly advocated a very flexible notion of imminence.

Clearly, the government nodded to imminence before the Nasir al-Awlaki suit, at least by a few weeks. But certainly, the government’s successful attempt at avoiding court review relied on certain arguments that show up in more prominent form in November 2011 then it does in July 2010.

Again, I’m agnostic whether the government emphasized imminence to explain the (under the standard as written, because the government did not believe Awlaki to be operational on that day) illegal strike against Awlaki from December 24, 2009, or whether they increased their focus on imminence in response to CCR and ACLU. But I think either might be a likely explanation.

Please No Drone and/or Targeted Killing FISA Court!

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:

  • The FISA Court has a history of  unquestioningly accepting evidence from dubious sources, including torture
  • Certain factual issues a drone and/or targeted killing court would need to judge — including the scope of the AUMF — are not well defined and should not be defined by the Executive in secret
  • The Administration claims the authority to conduct targeted killings for pre-crime, which a court has no way of assessing (and which should not be sanctioned in law)
  • Decisions by the FISC — such as interpreting “relevance” to authorize vast suspicionless collections of data and permitting back door searches of content collected off of programatic orders — prove that the court no longer fulfills its originally intended purpose

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.


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The CIA’s [redacted] Operations

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.

18 USC 1119:

(a)Definition.— In this section, “national of the United States” has the meaning stated in section 101(a)(22) of the Immigration and Nationality Act (8U.S.C. 1101 (a)(22)).

(b)Offense.— A person who, being a national of the United States, kills or attempts to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country shall be punished as provided under sections 11111112, and 1113.

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:

Screen shot 2014-06-23 at 4.24.44 PM

And this passage from page 32:

Screen shot 2014-06-23 at 4.28.11 PM

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.


Working Thread: The Awlaki Memo

The Awlaki Memo has just been released. This post will be a working thread. Note, page numbers will be off the page numbers of the memo itself (starting at PDF 61).

Pages 1-11: Barron takes 11 pages to lay out both the claims the government made about Anwar al-Awlaki and the request for an opinion. All of that is redacted.

Page 12: This memo is particularly focused on 18 USC 1119, which OLC only treated because Kevin Jon Heller raised it in a blog post. Note that OLC splits its consideration of whether DOD could kill Awlaki (which it probably could) from its consideration whether CIA could (which is far more controversial). The memo seems to have been written so as to authorize both DOD and CIA to carry out the operation, whichever got around to it. Also note the memo assumes the earlier Barron memo that authorizes this secret due process gimmick.

Page 13: OLC’s analysis is closely tied to legislative history, which is fine. Except that DOJ routinely ignores legislative history when it doesn’t serve its purposes.

Page 15: Footnote 12 argues that after invoking public authority jurisdiction the government doesn’t have to say what happened to the law:

There is no need to examine whether the criminal prohibition has been repeated, impliedly or otherwise, by some other statute that might potentially authorize the governmental conduct, including teh authorizing statute that might supply the predicate for the assertion of the public authority justification itself.

Nothing is cited to defend this proposition. It seems like a giant hole in the opinion, though I await the lawyers to tell me whether that’s the case.

Page 15: Note the government has redacted all the other memos listed in Fn14 where it has exempted itself from criminal law.

Page 16: The government only leaves Nardone unredacted in FN15 among laws where Congress has limited Congressional action. That seems … odd.

Page 17: Note that part of FN 20 is redacted. This seems to justify other claims OLC made that something wasn’t illegal.

Page 18: Note the redaction describing the kind of CIA operation here. I’d be curious whether it used Traditional Military Activities or paramilitary, as the distinction is a crucial one but one that often gets ignored.

Page 19: Note how the language on “jettison[ing] public authority justification” as if it existed prior to 1119 for both DOD and CIA.

Page 19: This is likely one reason why Ron Wyden keeps asking for more specifics:

Instead, we emphasize the sufficiency of the facts that have been represented to us here, without determining whether such facts would be necessary to the conclusion we reach.

Page 21: Note that one of the things OLC concludes — rather than restates — in the redacted 11 pages that start the opinion is the AUMF language. It appears by reference in this form.

And, as we have explained, supra at 9, a decision-maker could reasonably conclude that this leader of AQAP forces is part of al-Qaida forces. Alternatively, and as we have further explained, supra at 10 n 5, the AUMF applies with respect to forces “associated with” al-Qaida that are engaged in hostilities against the U.S. or its coalition partners, and a decision-maker could reasonably conclude that the AQAP forces of which al-Aulaqi is a leader are “associated with” Al Qaeda forces for purposes of the AUMF.

Two things about this: by this point (July 2010), the government had already gotten away with this “associated forces” claim in Gitmo habeas filings. But if that’s what they rely on, why not leave it unredacted? (Note, they do cite it on the next page, but not in this discussion.)

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Government Appears to Be Trying to Hide 3 Other OLC Memos in the Awlaki Memo

The Government is trying to quasi appeal the 2nd Circuit’s order to turn over information on the Awlaki killing (in part, it appears, to claim the CIA was not involved in the killing after all!). It appears to be hiding a number of references to other OLC memos (and one memorandum that may not be from OLC and another to OLC). Among the other things it lists that the 2nd Circuit said should be released but which the government would like censored are the following:

  • the citation to and description of an OLC memorandum cited at page [redacted]
  • the citation to and description of an OLC memorandum cited at pages [redacted]
  • a citation to a memorandum to OLC at page [redacted]
  • the citation and description of a memorandum at page [redacted]


  • the citation to and description of an OLC memorandum at pages 16 nn. 14 & 16

Admittedly it’s possible the three references to the memos are to the same memo, but from the syntax it doesn’t sound like it. The thing is, the government gets to hide OLC memos by claiming they weren’t finalized. But if the government is citing them in a finalized memo, then it is relying on them. Then they’re finalized, aren’t they?

The Administration’s Non-Appeal Appeal on the Awlaki Memo

The Administration has informed the 2nd Circuit it won’t appeal its order to release the Anwar al-Awlaki memo. (h/t Mike Scarcella)

But it is going to ask nicely that the Circuit reconsider some of its instructions on redactions.

Granted, we knew they were going to try to hide that CIA conducts the drone killing, and some other details (perhaps even that the drone killing happened in Yemen).

But they insist on doing this ex parte.

The government does not intend to seek further review of the Court’s ruling that the OLC-DOD Memorandum may not be withheld in full under the Freedom of Information Act (“FOIA”). The government does intend, however, to seek panel rehearing, and alternatively, rehearing en banc, with respect to certain parts of the Court’s opinion and its proposed redactions.


The government intends to seek rehearing to protect certain information in the Court’s opinion, the Court-redacted version of the OLC-DOD Memorandum, and the OLC classified Vaughn index ordered disclosed by the Court. In the government’s view, that information is properly classified, protected from disclosure by statute, and/or privileged, and therefore exempt under FOIA Exemptions 1, 3, and/or 5, 5 U.S.C. § 552(b)(1), (3), and/or (5), even if the OLC-DOD Memorandum cannot be withheld in its entirety under FOIA. Some of the information appears to have been ordered disclosed based on inadvertence or mistake, or is subject to distinct exemption claims or other legal protections that have never been judicially considered.

Of course, the Administration got David Barron confirmed before this was resolved (that was naive response from Mark Udall and Ron Wyden, in my opinion — I wouldn’t trust the Administration’s word after this!).

And now they’re going to make a secret bid to keep the jist of the report (likely everything that hasn’t already been published in the white paper) secret.

The Disturbing Paradox of the David Barron Nomination

CryingJusticeBarack Obama has a preternatural preference for ivory tower elites from Harvard when it comes to judicial and executive branch appointees, and David Barron is the latest example. The White House is in the final stages of an all out push to insure David Barron gets confirmed to a lifetime Article III seat on the First Circuit.

In this regard, Mr. Barron has gotten exactly the kind of fervent support and back channel whipping the Obama White House denied Goodwin Liu, and refused to give to the nominee at OLC that David Barron stood as the designated and approved Obama acting placeholder for, Dawn Johnsen.

It turns out Mr. Obama and his White House shop really can give appropriate support to nominees if they care, which seemed to be a trait entirely lacking earlier in the Obama Presidency. And by giving the ill taken legal cover to Mr. Obama for the extrajudicial execution of American citizens, that Obama had already attempted once without, Mr. Barron certainly earned the support of the Obama White House.

It would be wonderful if Mr. Obama were to give support to candidates for judicial seats and key legal agencies who protect the Constitution instead of shredding it for convenience, but it appears to not be in the offing all that consistently. Obama has never been the same since blowback from the release of the Torture Memos when he first took office. Even Federal judges like Mary Schroeder and Bill Canby who, less than a month after Obama took office, were stunned by the about face, and wholesale adoption, by Obama of the Bush/Cheney security state protocols. From a New York Times article at the moment:

During the campaign, Mr. Obama harshly criticized the Bush administration’s treatment of detainees, and he has broken with that administration on questions like whether to keep open the prison camp at Guantánamo Bay, Cuba. But a government lawyer, Douglas N. Letter, made the same state-secrets argument on Monday, startling several judges on the United States Court of Appeals for the Ninth Circuit.

“Is there anything material that has happened” that might have caused the Justice Department to shift its views, asked Judge Mary M. Schroeder, an appointee of President Jimmy Carter, coyly referring to the recent election.

“No, your honor,” Mr. Letter replied.

Judge Schroeder asked, “The change in administration has no bearing?”

Once more, he said, “No, Your Honor.” The position he was taking in court on behalf of the government had been “thoroughly vetted with the appropriate officials within the new administration,” and “these are the authorized positions,” he said.

Make no mistake, from my somewhat substantial knowledge of Mary Schroeder, that was the voice of shock and dismay. But it was an early tell of who and what Barack Obama, and his administration, would be on national security issues from there forward. And so, indeed, it has been.

What was unconscionable and traitorous to the rule of law and Constitution for Obama, and the Democratic majority in the Senate, under George Bush is now just jim dandy under Barack Obama. It is intellectual weakness and cowardice of the highest order.

So we come back to the case of David Barron. Frankly, it is not hard to make the argument that what Barron has done is actually worse than the travesties of John Yoo and Jay Bybee. As unthinkable, heinous and immoral as torture is, and it is certainly all that, it is a discrete violation of domestic and international law. It is definable crime.

But what David Barron did in, at a minimum, the Awlaki Targeted Kill Memo (there are at least six other memos impinging on and controlling this issue, at a minimum of which at least one more is known to be authored by Barron, and we don’t even deign to discuss those apparently), was to attack and debase the the very foundational concept of Due Process as portrayed in the Bill of Rights. Along with Habeas Corpus, Due Process is literally the foundation of American criminal justice fairness and freedom under our Constitution.

David Barron attacked that core foundation. Sure, it is in the so called name of terrorism today, tomorrow it will justify something less in grade. And something less the day after. Such is how Constitutional degradation happens. And there is absolutely nothing so far known in Mr. Barron’s handiwork to indicate it could not be adapted for use domestically if the President deems it so needed. Once untethered from the forbidden, once unthinkable Executive Branch powers always find new and easier uses. What were once vices all too easily become habits. This is exactly how the once proud Fourth Amendment has disappeared into a rabbit hole of “exceptions”.

This damage to Due Process occasioned by David Barron can be quite easily argued to be more fundamental and critical to the Constitution, the Constitution every political and military officer in the United States is sworn to protect, than a temporally limited violation of criminal statutes and international norms on torture as sanctioned by Yoo and Bybee. But it is not treated that way by cheering Dems and liberals eager to confirm one of their own, a nice clean-cut Harvard man like the President, to a lifetime post to decide Constitutional law. What was detested for Jay Bybee, and would certainly be were John Yoo ever nominated for a federal judgeship, is now no big deal when it comes to David Barron. Constitutional bygones baybee; hey Barron is cool on same sex marriage, what a guy! Screw Due Process, it is just a quaint and archaic concept in a piece of parchment paper, right?

If the above were not distressing enough, the Barron nomination was supposed to, at a minimum, be used as leverage to get public release of the Barron handiwork legally sanctioning Mr. Obama to extrajudicially execute American citizens without a whiff of Due Process or judicial determination. Did we get that? Hell no, of course not. A scam was run by the Obama White House, and the Senate and oh so attentive DC press fell for it hook, line and sinker. We got squat and Barron is on the rocket path to confirmation with nothing to show for it, and no meaningful and intelligent review of his facially deficient record of Constitutional interpretation.

Barron cleared cloture late Wednesday and is scheduled for a floor vote for confirmation today, yet release of the “redacted memo” is nowhere remotely in sight. This framing on Barron’s nomination, irrespective of your ultimate position on his fitness, is a complete and utter fraud on the American citizenry in whose name it is being played. And that is just on the one Awlaki Memo that we already know the legal reasoning on from the self serving previous release of the “white paper” by the Administration. Discussion of the other six identified pertinent memos has dropped off the face of the earth. Booyah US Senate, way to do your job for the citizens you represent! Or not.

Personally, there is more than sufficient information about David Barron’s situational legal, and moral, ethics in the white paper alone to deem him unfit for a lifetime Article III confirmed seat on a Circuit Court of Appeal.

But, even if you disagree and consider Barron fit, you should admit the American citizenry has been ripped off in this process by the Democratically led Senate, and an Obama Administration who has picked a dubious spot to finally get aggressive in support of one of their nominees.

If Goodwin Liu and Dawn Johnsen, two individuals who had proven their desire to protect the Constitution, had received this kind of support, this country, and the world, would be a better place. Instead, Mr. Obama has reserved his all out push for a man who, instead, opted to apply situational ethics to gut the most basic Constitutional concept of Due Process. That’s unacceptable, but at a minimum we should have the benefit of proper analysis of Barron’s work before it happens.

David Barron’s ECPA Memo

Last week, I laid out the amazing coinkydink that DOJ provided Sprint a bunch of FISA opinions — including the December 12, 2008 Reggie Walton opinion finding that the phone dragnet did not violate ECPA — on the same day, January 8, 2010, that OLC issued a memo finding that providers could voluntarily turn over phone records in some circumstances without violating ECPA.

Looking more closely at what we know about the opinion, I’m increasingly convinced it was not a coinkydink at all. I suspect that the memo not only addresses FBI’s exigent letter program, but also the non-Section 215 phone dragnet.

As a reminder, we first learned of this memo when, in January 2010, DOJ’s Inspector General issued a report on FBI’s practice of getting phone records from telecom provider employees cohabiting at FBI with little or no legal service. The report was fairly unique in that it was released in 3 versions: the public unclassified but heavily redacted version, a Secret version, and a Top Secret/SCI version. Given how closely parallel the onsite telecom provider program was with the phone dragnet, that always hinted the report may have touched on other issues.

Roughly a year after the IG Report came out, EFF FOIAed the memo (see page 30). Over the course of the FOIA litigation — the DC Circuit rejected their appeal for the memo in January — DOJ provided further detail about the memo.

Here’s how OLC Special Counsel Paul Colborn described the memo (starting at 25):

The document at issue in this case is a January 8, 2010 Memorandum for Valerie Caproni, General Counsel of the Federal Bureau of Investigation (the “FBI”), from David J. Barron, Acting Assistant Attorney General for the Office of Legal Counsel (the “Opinion”). The OLC Opinion was prepared in response to a November 27, 2009 opinion request from the FBI’s General Counsel and a supplemental request from Ms. Caproni dated December 11, 2009. These two requests were made in order to obtain OLC advice that would assist FBI’s evaluation of how it should respond to a draft Report by the Office of Inspector General at the Department of Justice (the “OIG”) in the course of a review by the OIG of the FBI’s use of certain investigatory procedures.In the context of preparing the Opinion, OLC, as is common, also sought and obtained the views of other interested agencies and components of the Department. OIG was aware that the FBI was seeking legal advice on the question from OLC, but it did not submit its views on the question.

The factual information contained in the FBI’s requests to OLC for legal advice concerned certain sensitive techniques used in the context of national security and law enforcement investigations — in particular, significant information about intelligence activities, sources, and methodology.

Later in his declaration, Colborn makes it clear the memo addressed not just FBI, but also other agencies.

The Opinion was requested by the FBI and reflects confidential communications to OLC from the FBI and other agencies. In providing the Opinion, OLC was serving an advisory role as legal counsel to the Executive Branch. In the context of the FBI’s evaluation of its procedures, the general counsel at the FBI sought OLC advice regarding the proper interpretation of the law with respect to information-gathering procedures employed by the FBI and other Executive Branch agencies. Having been requested to provide counsel on the law, OLC stood in a special relationship of trust with the FBI and other affected agencies.

And FBI Record/Information Dissemination Section Chief David Hardy’s declaration revealed that an Other Government Agency relied on the memo too. (starting at 46)

This information was not examined in isolation. Instead, each piece of information contained in the FBI’s letters of November 27, 2009 and December 11, 2009, and OLC’s memorandum of January 8, 2010, was evaluated with careful consideration given to the impact that disclosure of this information will have on other sensitive information contained elsewhere in the United States intelligence community’s files, including the secrecy of that other information.


As part of its classification review of the OLC Memorandum, the FBI identified potential equities and interests of other government agencies (“OGAs”) with regard to the OLC memo. … FBI referred the OLC Memo for consultation with those OGAs. One OGA, which has requested non-attribution, affirmatively responded to our consultation and concurs in all of the classification markings.

Perhaps most remarkably, the government’s response to EFF’s appeal even seems to suggest that what we’ve always referred to as the Exigent Letters IG Report is not the Exigent Letters IG Report!

Comparing EFF’s claims (see pages 11-12) with the government’s response to those claims (see pages 17-18), the government appears to deny the following:

  • The Exigent Letters IG Report was the 3rd report in response to reporting requirements of the USA PATRIOT reauthorization
  • FBI responded to a draft of the IG Report by asserting a new legal theory defending the way it had obtained certain phone records in national security investigations, which resulted in the January 8, 2010 memo
  • The report didn’t describe the exception to the statute involved and IG Glenn Fine didn’t recommend referring the memo to Congress
  • In response to a Marisa Taylor FOIA, FBI indicated that USC 2511(2)(f) was the exception relied on by the FBI to say it didn’t need legal process to obtain voluntary disclosure of phone records

Along with these denials, the government reminded that the report “contained significant redactions to protect classified information and other sensitive information.” And with each denial (or non-response to EFF’s characterizations) it “respectfully refer[red] the Court to the January 2010 OIG report itself.”

The Exigent Letters IG Report is not what it seems, apparently.

With all that in mind, consider two more details. First, as David Kris (who was the Assistant Attorney General during this period) made clear in his paper on the phone (and Internet) dragnet, in addition to Section 215, the government obtained phone records from the telecoms under USC 2511(2)(f), the clause in question.

And look at how the chronology maps.

November 5, 2008: OLC releases opinion ruling sneak peak and hot number requests (among other things) impermissible under NSLs

December 12, 2008: Reggie Walton rules that the phone dragnet does not violate ECPA

Throughout 2009: DOJ confesses to multiple violations of Section 215 program, including:

  • An alert function that serves the same purpose as sneak peaks and also violates Section 215 minimization requirements
  • NSA treated Section 215 derived data with same procedures as EO 12333 data; that EO 12333 data included significant US person data
  • One provider’s (which I originally thought was Sprint, then believed was Verizon, but could still be Sprint) production got shut down because it included foreign-to-foreign data (the kind that, according to the OLC, could be obtained under USC 2511(2)(f)

Summer and Fall, 2009: Sprint meets with government to learn how Section 215 can be used to require delivery of “all” customer records

July 9, 2009: Sprint raises legal issues regarding the order it was under; Walton halts production from provider which had included foreign-to-foreign production

October 30, 2009: Still unreleased primary order BR 09-15

November 27, 2009: Valerie Caproni makes first request for opinion

December 11, 2009: Caproni supplements her request for a memo

December 16, 2009: Application and approval of BR 09-19

December 30, 2009: Sprint served with secondary order

January 7, 2010: Motion to unseal records

January 8, 2010: FISC declassifies earlier opinions; DOJ and Sprint jointly move to extend time when Sprint can challenge order; and OLC releases OLC opinion; FISC grants motion (John Bates approves all these motions)

January 11, 2010: DOJ moves (in a motion dated January 8) to amend secondary order to incorporate language on legality; this request is granted the following day (though we don’t get that order)

January 20, 2010: IG Report released, making existence of OLC memo public

This memo is looking less and less like a coinkydink after all, and more and more a legal justification for the provision of foreign-to-foreign records to accompany the Section 215 provision. And while FBI said it wasn’t going to rely on the memo, it’s not clear whether NSA said the same.

Golly. It’d sure be nice if we got to see that memo before David Barron got to be a lifetime appointed judge.

How David Barron Played Judge and Jury for Anwar al-Awlaki

Rand Paul has gone and united drone apologists and opponents with an op-ed explaining his opposition to David Barron’s confirmation without full transparency on the drone memos Barron wrote. It’s a good op-ed, though the only new addition from what he has said before is that any other drone memos Barron has written ought to be on the table as well.

It’s Ben Wittes’ and David Cole’s responses that I’m reluctantly interested in.

In addition to a lot of “trust me I know the man” defenses from Cole that I find utterly inappropriate for a lifetime appointment, both Cole and Wittes argue we’ve already seen the “Administration’s” logic on drone killing, so we have no need to see the memo itself. Cole cautiously doesn’t characterize what that standard is in his defense.

Second, the administration has in fact made available to all Senators any and all memos Barron wrote concerning the targeting of al-Awlaki – the core of the issue Sen. Paul is concerned about.  So if Sen. Paul and any other Senator want to review Barron’s reasoning in full, they are free to do so.  Moreover, the administration also made available to the Senate, and ultimately to the public, a “White Paper” said to be drawn from the Barron memo (though written long after he left office).  Thus, no Senator need be in the dark about the Administration’s reasoning, and the public also has a pretty good idea as well.

Wittes, less wisely, does.

This idea of a trial in absentia followed by drone strike as a means of effectuating a death sentence is novel—and very eccentric. Paul never seeks to explain why wartime authorities are inappropriate for dealing with a senior operational leader of an enemy force who is actively plotting attacks on the United States. 


The legal standard for targeting a U.S. citizen the administration has embraced is limited to U.S. citizens (1) who are operational leaders of AUMF-covered groups, (2) who pose an imminent threat, (3) whose capture is not feasible, and (4) whose targeting is consistent with the law of armed conflict. Suspects in Germany or Canada or any other governed space would almost surely be feasible to capture and if not, because in a hostage-like situation, would be dealt with by law enforcement, including using law enforcement’s powers at times to use lethal force. The definition of the group of citizens covered is so narrow, in reality, that it has so far described a universe of exactly one person—Al Awlaki—whom the administration has claimed the authority to target.

Wittes, you see, is certain that not only did the Administration have evidence Anwar al-Awlaki was a “senior operational leader” of AQAP by the time they executed him, but they had that evidence by July 2010 when Barron signed a memo saying that the specific circumstances at hand justified killing Awlaki. But even if he’s seen it via some magic leak, the public has not.

As I’ve noted repeatedly — and as Lawfare has been sloppy about in the past — at the time Barron signed off on Awlaki’s execution, one of the chief pieces of evidence against Awlaki — a confession Umar Farouk Abdulmutallab had given as a proffer in a plea deal that never got consummated — was undermined by Abdulmutallab’s previous confession and other evidence (and would be undermined further, just days after Awlaki’s execution, when Abdulmutallab pled guilty without endorsing the claims about Awlaki included in that confession).

Now, I suspect the government didn’t present that nuance to Barron when he wrote his memo (just as the government lied to John Yoo and a series of other OLC lawyers as they wrote torture memos). I imagine the memo starts with a caveat that says, “Assuming the facts are as you present them and no other facts exist,” absolving Barron in case the government presented only partial evidence or worse, as it appears to often do in the case of OLC memos.

But it is possible that the government gave Barron really nuanced information, and he nevertheless rubber stamped this execution, in spite of the possibility that the case Awlaki was a senior operational official of AQAP by that point was overstated. It’s possible too that there’s a great deal of evidence to counterweigh the very contradictory information on the chief claim in the public record and absent any contrary evidence Barron thought it was a conservative legal decision.

One way or another, Barron participated in a tautological exercise in which the government presented unchallenged evidence showing that Awlaki was a senior operational leader that then served as justification for setting aside due process and instead having OLC — Barron — weigh whether or not Awlaki was a senior operational leader who could be executed with no due process.

This is why (egads) Paul is right and Wittes is wrong. Because the idea of a trial before you execute an American citizen is in fact the rule, and the idea of having an OLC lawyer judge all this in secret is in fact the novelty. It doesn’t matter whether the case laid out against Awlaki applies to him and him alone (though I doubt it does; I doubt it applies as well as supporters say, and complaints about the lack of specificity of it makes it clear it could too easily be applied for others).

But the big underlying point — and the reason why Cole and Wittes’ claim that Barron can’t be held to account here, only the Administration whose policy he reviewed can be, is wrong — is that tautology. What the memo shows and the white paper does not is that Barron was provided evidence against Awlaki and he willingly played the role of both saying that the underlying legal logic (what we see in the white paper) was sound but that the evidence in this case (what we haven’t seen in the memo) made this departure from due process sound. Barron signed off on both the logic and the evidence justifying that logic itself.

And for me, that’s enough. That’s enough to disqualify him — no matter how liberal or brilliant he is, both qualities I’d like to see on a bench — as a judge.

That’s enough for me. But those who want to push Barron through anyway ought to consider what they would need to show to prove that Barron’s decision was reasonable: the evidence Barron saw that he believed sufficient (and unquestionable, given the absence of rebuttal) to authorize a due-process free execution. It’s unlikely we’ll ever get that evidence, because the government won’t declassify it.

That’s the problem with this nomination, one way or another. No matter how sound the underlying logic, Barron played another role in Awlaki’s execution, certifying that the evidence merited getting to the underlying logic of denying a US citizen due process. Barron both approved an entirely parallel system to replace due process, and played the judge in that system.

Update: Katherine Hawkins reminds me that when David Cole wrote about the white paper shortly after it got released, he had trouble with precisely the thing he has no trouble now.

The white paper addresses the legality of killing a US citizen “who is a senior operational leader of al-Qaeda or an associated force.” Such a person may be killed, the document concludes, if an “informed, high-level official” finds (1) that he poses “an imminent threat of violent attack against the United States;” (2) that his capture is not feasible; and (3) the operation is conducted consistent with law-of-war principles, such as the need to minimize collateral damage.  However, the paper offers no guidance as to what level of proof is necessary: does the official have to be satisfied beyond a reasonable doubt, by a preponderance of the evidence, or is reasonable suspicion sufficient? We are not told.

Nor does the paper describe what procedural safeguards are to be employed. It only tells us what is not required: having a court determine whether the criteria are in fact met.

What determines whether that standard has been met is the same OLC lawyer who determined that such a standard would be appropriate.

Why Should Someone Who Authorized Due Process Free Executions Be A Judge Anyway?

Yesterday, Rand Paul announced he would filibuster the nomination of First Circuit nominee David Baron until the Administration released the OLC memo authorizing the killing of Anwar al-Awlaki, as ordered by the Second Circuit last month.

As I wrote in a piece at The Week, I think this move is far more serious a political move than Paul’s earlier filibuster of John Brennan (and since you all know how I fell about Brennan, that’s saying something).

Four years ago, David Barron opened a Pandora’s box, giving presidents an inadequately limited authority to kill Americans outside all normal judicial process. As Paul notes in his letter, it would simply be “irresponsible” for the Senate to confirm his nomination without discovering what the memo could reveal about his views on due process, civil liberties, and international law. In a letter to all 100 senators, the ACLU echoed this language, recalling the precedent of Jay Bybee. “No senator can meaningfully carry out his or her constitutional obligation to provide ‘advice and consent’ on this nomination to a lifetime position as a federal appellate judge without being able to read Mr. Barron’s most important and consequential legal writing.”

The Senate took such an irresponsible step in 2003 with Jay Bybee. It can avoid that mistake here.

Apparently, I’m not alone. Senators Udall and Wyden have both said they would not vote to advance Barron’s nomination without more transparency on that memo  (and remember — they’ve seen it).

Given that makes almost enough people (the GOP plus potentially 6 Democrats under the new filibuster rules) to hold up Barron’s nomination, Obama is making yet another limited hangout, permitting Senators to go read the drone-killing memo in a SCIF.

On Tuesday, the White House offered the senators a concession. It offered all senators to a chance to look at the legal opinion. However, Obama has still not acceded to the Paul and Udall’s call for public disclosure of the memo.

“I can confirm that the administration is working to ensure that any remaining questions member of the Senate have about Mr. Barron’s legal work at the Department of Justice are addressed, including making available in a classified setting a copy of the Al-Awlaki opinion to any senator who wishes to review it, prior to Mr. Barron’s confirmation,” White House Press Seceretary Jay Carney said at a daily briefing for reporters.

“It should be noted that last year members of the Senate Judiciary Committee had access to the memo and in his committee vote Mr. Barron received unanimous Democratic support,” Carney said, referring to a January panel vote in which all Republicans opposed the nominee. “We are confident that David Barron wil be confirmed to the 1st Circuit Court of Appeals and that he will serve with distinction.”

So Senators will get to see it. But not the public (even though a court has ordered its release!).

The President of the United States, of the purported most Transparent Administration Evah™, thinks it appropriate to have the Senate vote on a lifetime appointed Circuit Court judge without the public seeing one of that nominees’ most momentous legal arguments ever.

The President thinks it appropriate to control access to information about a nominee who vastly expanded Executive Power.

And ultimately, it’s time this discussion moved to whether the opinion is itself disqualifying.

In a comment to NYT, Wyden put it this way.

Mr. Wyden added that he was also not committed to voting yes.

“Certainly the opinion would not be something I would have written. The question is: Is it disqualifying,” he said, adding that the administration should start the process of releasing the memos. “It needs to be addressed before a vote.”

Frankly, I don’t care how nice or how liberal Barron is. I feel about him like I feel about Jay Bybee. Someone who gets nominated after having rubber stamped such awful executive authorities should not be rewarded with a lifetime seat interpreting the law, because he has already been compromised.