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How Can Samir Khan Be “Collateral Damage” If OLC Memo Restricted Civilian Death?

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Here’s the 32nd of 33 paragraphs in a Charlie Savage story describing the state secrets-protected explanation that justifies the killing of Anwar al-Awlaki.

The memorandum did assert that other limitations on the use of force under the laws of war — like avoiding the use of disproportionate force that would increase the possibility of civilian deaths — would constrain any operation against Mr. Awlaki.

That is, among the other restrictions on the assassination of Anwar al-Awlaki, the memo also said the government had to make efforts to avoid “civilian deaths.”

You know? Civilians? Like Samir Khan, the other American citizen killed in the strike? A propagandist, but not–according to any claim–an operational terrorist?

Yet in spite of the fact they had been following Awlaki for weeks–presumably gathering a good deal of detail in the process–they still killed him in such a way that they didn’t avoid killing an American citizen.

As Savage describes, the memo also says they can only kill someone like Awlaki if they can’t take him alive. But we’ve already seen a stream of articles saying the government simply avoids capture now because it’s … well … inconvenient. Did the David Barron memo prohibit the killing of Americans if capture was inconvenient?

Two more important details of this. First, as seemingly always happens, OLC simply trusted the Executive Branch agency to give it credible intelligence.

The memorandum, which was written more than a year before Mr. Awlaki was killed, does not independently analyze the quality of the evidence against him.

I presume the memo says, “you’ve given us this information; if it proves to be otherwise, our advice might be different.”

And then there’s the timing:

December 24, 2009: Administration tries unsuccessfully to kill Awlaki as collateral damage

Before January 26, 2010: Awlaki may or may not be placed on CIA (or JSOC) kill list

April 2010: Awlaki put on kill list

June 2010: OLC opinion authorizing Awlaki assassination

June 2010: David Barron announces his departure

July 2010: Marty Lederman announces his departure

August 2010: ACLU and CCR sue on Awlaki targeting

September 2010: Administration considers charging Awlaki

September 2010: After not charging Awlaki, the government declares the material just leaked to Charlie Savage a state secret

April 2011: The Administration tries, but fails, to kill Awlaki

September 2011: The Administration assassinates Awlaki and Khan

In other words–as Savage suggests–they had Awlaki on the kill list before they had actually done the review whether or not he should be there.

I can see why I’d want to leave the department if that had happened to me in OLC.

The Use of False Passports Does Not Make Someone an Al Qaeda Member

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Happy Fourth of July.

This week, the DC Circuit Court had to tell the government that using false passports does not make someone an al Qaeda member.

At issue is the appeal of Belkacem Bensayah, an Algerian who had been living in Bosnia alleged to have arranged travel for five others (the rest of the detainees set free after the Boumediene decision gave them habeas rights) to go to Afghanistan to fight the Americans. In the past, the government has claimed the phone number of a “senior al Qaeda member”–reported to be Abu Zubaydah–was found in his possession (PDF 19); in addition, a senior al Qaeda member (presumably also a reference to Abu Zubaydah) “reported he has known the detainee since 1993 when the detainee went to Afghanistan from the war in Tajikistan.”

But the evidence presented in his factual return consists of the following:

  • An intelligence report, labeled, “INFORMATION REPORT, NOT FINALLY EVALUATED INTELLIGENCE,” which the District Court determined could not be relied upon by itself because of “uncertainty about the source of the document and how the information therein was gathered”
  • Claims that Bensayah had ties to Abu Zubaydah–though the Appeals ruling notes that the government provided no evidence of any contact between the two
  • Proof that Bensayah had traveled on false passports in the past (Bensayah said he did so to avoid being sent back to Algeria where he feared prosecution)
  • Questions about his whereabouts in the 1990s, none of which alleges a tie to al Qaeda

The Appeals Court bounced this case back to the District Court to see if the government could come up with any more evidence.

So at one level, this is another of the many cases where the government has detained someone for years based on what Courts say is a too-tenuous connection to al Qaeda.

But this case is all the more interesting because of the way it relates to questions I raised the other day about Kagan’s comments about indefinite detention. As Charlie Savage reported in detail in March, once the Obama Administration backed off Bush’s justification for detaining alleged terrorists under Article II, it set off a debate within the Administration over whether they could detain people who had just supported–but were not a part of–al Qaeda. Harold Koh said they could not, Jeh Johnson said they could, and David Barron, acting head of OLC, basically just punted. Read more →

One Acting OLC Head Replaces Another

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Charlie Savage reports that Acting OLC head David Barron is returning to spend more time with his law students at Harvard, to be replaced by Jonathan Cedarbaum. Unlike several of the legal jobs that have turned over under this Administration, this one doesn’t appear to be tied to a fight over counter-terrorism policy.

David J. Barron, the acting head of the Justice Department’s powerful Office of Legal Counsel, will step down next month and be replaced by one of his current deputies, Jonathan G. Cedarbaum, the department said Thursday.

Mr. Barron has run the office, which advises the president and executive branch whether proposed actions would be lawful, since January 2009. He is returning to Harvard Law School, which limits tenured professors to two years of leave, and he said in an interview that wants to move back to Massachusetts before the start of the school year because he has three young children.

And so we move on to yet another Acting head of the OLC that has been in place since the last Senate-confirmed head of the OLC–Jack Goldsmith–left six years ago.

Savage notes that Cedarbaum is one of the lawyers Liz “BabyDick” Cheney targeted in a witch hunt of all the Obama Administration lawyers who had ever represented a Gitmo detainee.

Mr. Barron’s replacement, Mr. Cedarbaum, came to public attention earlier this year after Fox News named him as one of several Justice Department lawyers who had previously advocated for detainees.[snip]

At a partner at the WilmerHale law firm, he was one of several lawyers whose name appeared on a Supreme Court brief in a case involving six Algerian detainees who had been arrested in Bosnia, and who were seeking a right to a habeas-corpus hearing.

Which means both the Acting Solicitor General, Neal Katyal, and the Acting Assistant Attorney General for OLC are among those who defended our legal system by representing detainees. (Of course, Eric Holder himself represented some terrorist supporters, but the board of Chiquita are a bunch of rich white Republican terrorist supporters who don’t offend BabyDick in the least.)

Koh v. Johnson: Material Support in Far Away “Battlefields”

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I don’t know about you. But I’m sort of bored with the Holder v. Rahm fight over torture and Gitmo. My hope is they’ll start a military commission trial, it’ll get delayed and challenged, and Holder will be able to demonstrate in terms even Rahm understands that civilian trials are not just a question of politics–they are also clearly more efficacious.

Ah well.

Lucky for us, there’s a new debate to watch, this one between State Department Legal Advisor Harold Koh and DOD General Counsel Jeh Johnson, over whether Presidential wartime powers are limited to those actually in al Qaeda, or include those more loosely affiliated with the organization. As Charlie Savage describes, both have written secret memos advocating a position on the issue.

But behind closed doors, the debate flared again that summer, when the Obama administration confronted the case of Belkacem Bensayah, an Algerian man who had been arrested in Bosnia — far from the active combat zone — and was being held without trial by the United States at Guantánamo. Mr. Bensayah was accused of facilitating the travel of people who wanted to go to Afghanistan to join Al Qaeda. A judge found that such “direct support” was enough to hold him as a wartime prisoner, and the Justice Department asked an appeals court to uphold that ruling.

The arguments over the case forced onto the table discussion of lingering discontent at the State Department over one aspect of the Obama position on detention. There was broad agreement that the law of armed conflict allowed the United States to detain as wartime prisoners anyone who was actually a part of Al Qaeda, as well as nonmembers who took positions alongside the enemy force and helped it. But some criticized the notion that the United States could also consider mere supporters, arrested far away, to be just as detainable without trial as enemy fighters.

That view was amplified after Harold Koh, a former human-rights official and Yale Law School dean who had been a leading critic of the Bush administration’s detainee policies, became the State Department’s top lawyer in late June. Mr. Koh produced a lengthy, secret memo contending that there was no support in the laws of war for the United States’ position in the Bensayah case.

Mr. Koh found himself in immediate conflict with the Pentagon’s top lawyer, Jeh C. Johnson, a former Air Force general counsel and trial lawyer who had been an adviser to Mr. Obama during the presidential campaign. Mr. Johnson produced his own secret memorandum arguing for a more flexible interpretation of who could be detained under the laws of war — now or in the future.

Part of me actually wonders whether the debate stems at least partly from Johnson’s greater familiarity with whom we’re already keeping–which includes a bunch of people whose “material support for terrorism” is really quite tenuous. That doesn’t justify holding them, but this may be a question about whom we have already held for 9 years.

Still, the ramifications of holding those who materially supported al Qaeda are pretty ominous, given the fairly expansive notion this country has used to claim material support.

And meanwhile, David Barron–Dawn Johnsen’s stand-in–basically punted on this question, seemingly hoping that some judge who is not a radical Bush appointee will make the decision for him.

OLC Identified 31 Missing Documents During Period Leading Up to Torture Tape Investigation

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As I reported on Monday, DOJ lost not only John Yoo and Patrick Philbin’s emails from the period when they were writing the Bybee Memos. It also lost at least 10 documents on torture, a number of them that went into the development of the torture memos.

We first learned these documents had disappeared from a declaration that David Barron, Acting head of OLC, submitted in response to an ACLU FOIA last September. In it, he described the six month effort OLC made last year to recreate the original Vaughn document first created in 2005. With a lot of searching last year, OLC was able to identify 171 documents that might be the documents referenced in the original Vaughn Index.

But OLC appears to have first discovered the problem before last year. Barron’s declaration describes one OLC lawyer attempting–but failing–to identify all the documents in the Vaughn index during late December 2007 or early January 2008. At that time, the OLC lawyer was only able to identify 150 of the 181 documents listed in the Vaughn index.

On at least one occasion in late 2007 or early 2008, when the documents were recalled by OLC from OPR for purposes of another matter, an OLC attorney made significant efforts to recompile the 181 documents listed on the original Vaughn index based on the descriptions of the documents in that index. The attorney made tentative identifications of approximately 150 of the 181 documents and marked the original documents with pencil numbers corresponding to the Vaughn index in the lower left-hand corner of each of those 150 documents.

It’s likely, but not certain, that these documents were recalled as part of DOJ’s review of whether it should criminally investigate the torture tape destruction (news of the tape destruction broke December 6 and Mukasey announced the investigation on January 2). And whether or not that’s why they recalled these documents, the OLC lawyer who tried to recreate the Vaughn index had to have been aware that CIA had destroyed evidence of its torture program.

And yet, according to Barron’s declaration, no one made any attempt to look for the 31 documents that OLC lawyer had not been able to find for more than another year.

That’s a remarkably lax attitude regarding documents potentially disappearing from a SCIF.

It’s Not Just the Emails DOJ Lost, It’s the Backup Documentation

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We’ve been talking quite a bit about John Yoo and Patrick Philbin’s emails on the torture memos that OLC deleted: with a rebuttal of John Yoo’s claims there were no email, a report on the National Archives’ attempts to learn what happened, and a catalog of damning facts we learned from the few emails left over.

But it’s not just the emails that are missing. It’s also some of the backup documentation. Some of the documents that went into the production of the torture memos–and should have been reviewed by OPR over the course of its investigation–disappeared some time in the last 5 years.

As I reported last September, after some delay in a FOIA response, Acting head of OLC, David Barron confessed that OLC could not find all of the documents that it had first listed on a 2006 FOIA response.

The problem, as Barron explained in his declaration, seems to stem from three things: CIA, not OLC, did the original FOIA search in 2005 and at that time did not make a copy of the documents responsive to FOIA; for long periods OPR had the documents, lumped in with a bunch of other torture documents, so it could work on is investigation; the documents got shuttled around for other purposes, as well, including other investigations and one trip to the CIA for a 2007 update to the FOIA Vaughn Index. [Here’s the 2007 Vaughn Index and here’s the Vaughn Index that accompanied Barron’s declaration last September.]

And, somewhere along the way, at least 10 documents originally identified in 2005 as responsive to the FOIA got lost.

Poof!

The 10 Missing Documents

Here’s a list of the short descriptions of what disappeared:

  • Document 6, 07/25/2002, 46 [or 60 or 59] page Top Secret [or Secret] memo providing legal advice
  • Document 20, 09/12/2003, 1 page Top Secret memo requesting legal advice
  • Document 47, 07/07/2004, 1 page Top Secret memo providing legal advice
  • Document 77, 08/16/2004, 2 page Top Secret memo providing legal advice
  • Document 142, undated 2 page Top Secret memo requesting legal advice
  • Document 155, undated 3 page Top Secret draft memo with attached handwritten notes requesting legal advice
  • Document 172, undated 5 page Top Secret memo requesting legal advice
  • Document 175, undated 6 page Top Secret draft memo providing legal advice
  • Document 177, undated 10 page Top Secret draft memo providing legal advice
  • Document 181, undated 127 page Top Secret draft memo providing legal advice

Why did CIA do the FOIA responses?

Now, before I get into why this is troubling in terms of the OPR Report, let me just challenge a claim Barron made in his declaration. He explained that CIA, rather than OLC, had done the first and second FOIA searches this way:

CIA attorneys were initially given access to the OLC Sensitive Compartmented Information Facility (“SCIF”) in 2005 to search for documents responsive to the FOIA request at issue in this litigation. CIA attorneys conducted the search because no OLC attorneys assigned at the time to the processing of FOIA requests had the clearances needed to access and review the documents.

It’s not entirely clear when CIA would have been rifling through OLC’s SCIF drawers in 2005 (and Barron apparently doesn’t feel like telling us). But it would have come after Judge Alvin Hellerstein ordered the CIA to respond to the FOIA on February 2, 2005 (they had been refusing to respond to his order to do so from the previous fall). And they would have done it over the next year and a half. In any case, it would have happened after Daniel Levin wrote his unclassified torture memo, about which the OPR Report explains,

Virtually all of OLC’s attorneys and deputies were included in the review process,

And it would have happened during or after the drafting of the Bradbury memos, about which the OPR Report explains,

Bradbury circulated drafts of his memoranda widely within the Department.

Granted, the OPR Report doesn’t say the Bradbury Memos were circulated widely within OLC, but when they had an incentive to make the claim, DOJ later claimed that the torture memos, which would have been the same compartment as all the FOIA documents, were widely circulated. It seems unlikely that Levin’s memo was reviewed by “virtually all of OLC’s attorneys,” but that the following year they couldn’t find a single OLC lawyer to put together a FOIA response.

And what seems even more curious is that rather than invite CIA to OLC’s SCIF to do the updated FOIA response in 2007–at a time when the documents were under investigation–DOJ would instead send all the documents over to CIA for them to do it.

In 2007, the documents were recalled from OPR by OLC so that they could be sent to the CIA for processing and for purposes of updated the unclassified Vaughn Index submitted in this matter.

It’s sort of funny that DOJ took fewer cautions with these documents after they were actively under investigation than they did beforehand. Here, DOJ seems to have said to the CIA, see if you can’t make some of these documents accidentally blow into the Potomac on your way back to DOJ…

Three Troubling Documents

Now, it’s hard to tell what disappeared, since we don’t actually get to see either the documents that disappeared or those the DOJ thinks might be close matches. But three of the documents, in particular, trouble me.

Document 6, 07/25/2002, 46 [or 60 or 59] page Top Secret [or Secret] memo providing legal advice

Here’s the longer description of this document submitted in the 2007 FOIA response:

Document No. 6 is a 60-page document dated 25 July 2002 that consists of a 3-page memorandum and six attachments of 2 pages, 7 pages, 10 pages, 13 pages, 13 pages, and 12 pages, respectively. It is classified SECRET.

The memorandum and attachments contain confidential client communications from the CIA on a matter in which it requested legal advice from OLC.

Aside from the fact that DOJ has said, at different times, this packet of information was 46, 60, and 59-pages long (and that the same FOIA claims it is classified both Top Secret and Secret), the questions about this document alarm me because I’m fairly certain this is the packet of JPRA information sent OLC in the last days of drafting of the first torture documents. It’s going to take me a full post to explain the many reasons questions about this document’s provenance is problematic–tune in next post for the next installment of disappearing evidence!

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