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FBI’s Warrantless Drone Surveillance

The FBI has responded to Rand Paul’s request for information on how it uses drones.

It provides several paragraphs detailing the use: They’ve used drones in kidnapping, drug interdiction, fugitive, and search and rescue cases, for a total of 8 criminal and 2 national security cases. Use of drones is governed by the Fourth Amendment, the Privacy Act, FAA rules, DIOG, and a bunch of other rules.

But here’s the core of the letter:

Every request to use UAVs for surveillance must be approved by FBI management at FBI Headquarters and in the relevant FBI Field Office. Without a warrant, the FBI will not use UAVs to acquire information in which individuals have a reasonable expectation of privacy under the Fourth Amendment. To date, there has been no need for the FBI to seek a search warrant or judicial order in any of the few cases where UAVs have been used.

Ultimately, this means the FBI has, on 10 occasions, claimed that drones — with what could be far superior sensor equipment and more persistent (and less apparent) surveillance than planes or helicopters — equate to naked eye surveillance. And based on that claim, it has chosen not to have a court review its determination that US persons don’t have a reasonable expectation to be free of this heightened surveillance.

Perhaps the FBI is correct in judging (itself, in secret) that drones, unlike infrared surveillance but like overhead plane surveillance, don’t go beyond people’s reasonable expectation of privacy.

But it is notable that they chose to make such determinations without asking either Congress in general or specific courts to review their determination.

That’s not in the least surprising. It is consistent with what they have done, for example, with GPS tracking. But it does show that even with something as contentious as drones the FBI — and the government generally — continues to pursue a surveil first ask permission later approach.

In These Times We Can’t Blindly Trust Government to Respect Freedom of Association

One of my friends, who works in a strategic role at American Federation of Teachers, is Iranian-American. I asked him a few weeks ago whom he called in Iran; if I remember correctly (I’ve been asking a lot of Iranian-Americans whom they call in Iran) he said it was mostly his grandmother, who’s not a member of the Republican Guard or even close. Still, according to the statement that Dianne Feinstein had confirmed by NSA Director Keith Alexander, calls “related to Iran” are fair game for queries of the dragnet database of all Americans’ phone metadata.

Chances are slim that my friend’s calls to his grandmother are among the 300 identifiers the NSA queried last year, unless (as is possible) they monitored all calls to Iran. But nothing in the program seems to prohibit it, particularly given the government’s absurdly broad definitions of “related to” for issues of surveillance and its bizarre adoption of a terrorist program to surveil another nation-state. And if someone chose to query on my friend’s calls to his grandmother, using the two-degrees-of-separation query they have used in the past would give the government — not always the best friend of teachers unions — a pretty interesting picture of whom the AFT was partnering with and what it had planned.

In other words, nothing in the law or the known minimization rules of the Business Records provision would seem to protect some of the AFT’s organizational secrets just because they happen to employ someone whose grandmother is in Iran. That’s not the only obvious way labor discussions might come under scrutiny; Colombian human rights organizers with tangential ties to FARC is just one other one.

When I read labor organizer Louis Nayman’s “defense of PRISM,” it became clear he’s not aware of many details of the programs he defended. Just as an example, Nayman misstated this claim:

According to NSA officials, the surveillance in question has prevented at least 50 planned terror attacks against Americans, including bombings of the New York City subway system and the New York Stock Exchange. While such assertions from government officials are difficult to verify independently, the lack of attacks during the long stretch between 9/11 and the Boston Marathon bombings speaks for itself.

Keith Alexander didn’t say NSA’s use of Section 702 and Section 215 have thwarted 50 planned attacks against Americans; those 50 were in the US and overseas. He said only around 10 of those plots were in the United States. That works out to be less than 20% of the attacks thwarted in the US just between January 2009 and October 2012 (though these programs have existed for a much longer period of time, so the percentage must be even lower). And there are problems with three of the four cases publicly claimed by the government — from false positives and more important tips in the Najibullah Zazi case, missing details of the belated arrest of David Headley, to bogus claims that Khalid Ouazzan ever planned to attack NYSE. The sole story that has stood up to scrutiny is some guys who tried to send less than $10,000 to al-Shabaab.

While that doesn’t mean the NSA surveillance programs played no role, it does mean that the government’s assertions of efficacy (at least as it pertains to terrorism) have proven to be overblown.

Yet from that, Nayman concludes these programs have “been effective in keeping us safe” (given Nayman’s conflation of US and overseas, I wonder how families of the 166 Indians Headley had a hand in killing feel about that) and defends giving the government legal access (whether they’ve used it or not) to — among other things — metadata identifying the strategic partners of labor unions with little question.

And details about the success of the program are not the only statements made by top National Security officials that have proven inaccurate or overblown. That’s why Nayman would be far better off relying on Mark Udall and Ron Wyden as sources for whether or not the government can read US person emails without probable cause than misstating what HBO Director David Simon has said (Simon said that entirely domestic communications require probable cause, which is generally but not always true). And not just because the Senators are actually read into these programs. After the Senators noted that Keith Alexander had “portray[ed] protections for Americans’ privacy as being significantly stronger than they actually are” — specifically as it relates to what the government can do with US person communications collected “incidentally” to a target — Alexander withdrew his claims.

Nayman says, “As people who believe in government, we cannot simply assume that officials are abusing their lawfully granted responsibility and authority to defend our people from violence and harm.” I would respond that neither should we simply assume they’re not abusing their authority, particularly given evidence those officials have repeatedly misled us in the past.

Nayman then admits, “We should do all we can to assure proper oversight any time a surveillance program of any size and scope is launched.” But a big part of the problem with these programs is that the government has either not implemented or refused such oversight. Some holes in the oversight of the program are:

  • NSA has not said whether queries of the metadata dragnet database are electronically  recorded; both SWIFT and a similar phone metadata program queries have been either sometimes or always oral, making them impossible to audit
  • Read more

OMIGOD James Clapper Has Our Gun Purchase Records

It’s a testament to Ron Wyden’s good faith that this letter — asking James Clapper for more information about the government’s secret use of the Section 215 provision of the PATRIOT Act — didn’t try to inflame the NRA.

It’s not until the third paragraph in until Wyden (and the 25 other Senators who signed on) say,

It can be used to collect information on credit card purchases, pharmacy records, library records, firearm sales records, financial information, and a range of other sensitive subjects. And the bulk collection authority could potentially be used to supersede bans on maintaining gun owner databases, or laws protecting the privacy of medical records, financial records, and records of book and movie purchases. [my emphasis]

And while Wyden is right that the letter is bipartisan, I really wonder how it is that only four Republicans — Mike Lee, Dean Heller, Mark Kirk, and Lisa Murkowski — signed a letter raising these issues. Seriously. Not even Rand Paul?

I’ll come back to the loaded questions Wyden asks (I’m frankly still working on some loaded questions he asked 6 months ago — it has turned into a nearly fulltime beat).

But in the meantime, why isn’t the NRA screaming yet?

Obama’s Headlong Rush to Counterterrorism Transparency

By my count, Thursday will be the 100th day since Obama promised, in his State of the Union Adress delivered February 12, “to engage Congress to ensure not only that our targeting, detention and prosecution of terrorists remains consistent with our laws and system of checks and balances, but that our efforts are even more transparent to the American people and to the world.”

Back then there were, officially at least, just a handful of Gitmo detainees on hunger strike. And it’s possible — if DOJ used the two 45-day gags on subpoenas they permit themselves — a subpoena seizing the phone records for 21 AP phone lines had already been issued.

After Obama promised more transparency on drones and other counterterrorism programs, Members of Congress continued to have to demand minimal transparency. On February 20, Rand Paul sent his third request for that information. On February 27, House Judiciary Chairman Bob Goodlatte repeated that Committee’s request to see OLC’s drone targeting memos; he also expressed anger that the Administration had refused to send a witness to the hearing.

On March 7, Eric Holder hinted that we would “will hear from the President in a relatively short period of time” on drones and transparency and counterterrorism.  On March 8, guards at Gitmo shot non-lethal bullets at detainees. The following day US conducted a drone strike in Pakistan, one of two strikes that month.

On March 11, Progressive Members of Congress sent a letter asking for information on drone targeting.

On April 9, McClatchy reported that most drone strikes had hit low level militants, contrary to public claims; it also revealed the intelligence reports themselves were false.

On April 10, the House Judiciary Committee finally threatened to subpoena the OLC memos authorizing the killing of an American citizen; that was at least the 23rd request for such information from Congress. A week later the Committee would finally get a promise to see just those memos, memos squarely within the Committee’s oversight jurisdiction.

On April 13, the military locked down Gitmo, effectively depriving most detainees of the human company they had enjoyed for years. On that day, 43 men were hunger striking.

On April 14, Samir Haji al Hasan Moqbel described, in a NYT op-ed, “I’ve been on a hunger strike since Feb. 10 and have lost well over 30 pounds. I will not eat until they restore my dignity.” That same day, the US launched one of two drone strikes in Pakistan that month.

On April 15, the Tsarnaev brothers attacked the Boston Marathon, reportedly in retaliation for treatment of Muslims in Afghanistan and Iraq.

April 17, a US drone struck the Yemeni village of a Yemeni, Farea al-Muslimi, already scheduled to testify before the Senate Judiciary Committee about how drones turn Yemenis against the US.

On April 21, the number of hunger strikes at Gitmo reached 84 — over half the men there. Six days later, on April 27, that number reached 100. Three more men have since joined the hunger strike.

As those numbers were growing, on April 25, Dianne Feinstein called on Obama to transfer those detainees who have been cleared. On April 30, Obama renewed his promise to close Gitmo. The next day, the White House made clear that the moratorium preventing almost half the detainees, men who have been cleared for transfer, to return home to Yemen, remained in place.

On May 10, the AP learned that DOJ had seized phone records from 21 phone lines with no notice, potentially exposing the sources of up to 100 journalists.

On May 16, in a hearing querying whether Congress should eliminate or expand the September 18, 2001 Authorization to Use Military Force, Assistant Defense Secretary Michael Sheehan testified the war on terror would last at least 10-20 more years. He also said DOD won’t be taking over CIA’s side of the drone war anytime soon.

Saturday, a drone strike killed at least 4 thus far unidentified men in Yemen.

Which brings us to Thursday when, the WaPo details, Obama will give a speech telling us once again the drone strikes are legal, his desire to close Gitmo is real, and leaks his new CIA Director exacerbated are serious. He will, apparently, also tell us how he plans to make his counterterrorism plan look more like what he promised it would look like 4 years ago.

President Obama will deliver a speech Thursday at the National Defense University in which he will address how he intends to bring his counterterrorism policies, including the drone program and the military prison at Guantanamo Bay, Cuba, in line with the legal framework he promised after taking office.

In the interim between when he promised this transparency and when he’ll start to sort of deliver it (but not, apparently, any actions to close Gitmo), about 7% of his second term will have passed.

Some of the delay, apparently, comes from the need to address the issues that have been festering during the delay.

Obama was prepared to deliver the speech earlier this month, but it was put off amid mounting concerns over a prisoner hunger strike at Guantanamo Bay and more recently the Justice Department leaks investigation — both of which the revised speech may address.

But otherwise, it appears it has taken 100 days to be able to craft a speech good enough to make his paranoia about secrecy and lip service to human rights in counterterrorism look like something else.

Ah well, at least they’ve sharply curtailed drone strikes while they’ve been writing a speech.

That Makes Over 21 Requests by 31 Members of Congress, Mr. President

Adding the letter that Barbara Lee, as well as a list of all Members of Congress who have, at one time or another, requested the targeted killing memos.

February 2011: Ron Wyden asks the Director of National Intelligence for the legal analysis behind the targeted killing program; the letter references “similar requests to other officials.” (1) 

April 2011: Ron Wyden calls Eric Holder to ask for legal analysis on targeted killing. (2)

May 2011: DOJ responds to Wyden’s request, yet doesn’t answer key questions.

May 18-20, 2011: DOJ (including Office of Legislative Affairs) discusses “draft legal analysis regarding the application of domestic and international law to the use of lethal force in a foreign country against U.S. citizens” (this may be the DOJ response to Ron Wyden).

October 5, 2011: Chuck Grassley sends Eric Holder a letter requesting the OLC memo by October 27, 2011. (3)

November 8, 2011: Pat Leahy complains about past Administration refusal to share targeted killing OLC memo. Administration drafts white paper, but does not share with Congress yet. (4) 

February 8, 2012: Ron Wyden follows up on his earlier requests for information on the targeted killing memo with Eric Holder. (5)

March 7, 2012: Tom Graves (R-GA) asks Robert Mueller whether Eric Holder’s criteria for the targeted killing of Americans applies in the US; Mueller replies he’d have to ask DOJ. Per his office today, DOJ has not yet provided Graves with an answer. (6) 

March 8, 2012: Pat Leahy renews his request for the OLC memo at DOJ appropriations hearing.(7)

June 7, 2012: After Jerry Nadler requests the memo, Eric Holder commits to providing the House Judiciary a briefing–but not the OLC memo–within a month. (8)

June 12, 2012: Pat Leahy renews his request for the OLC memo at DOJ oversight hearing. (9)

June 22, 2012: DOJ provides Intelligence and Judiciary Committees with white paper dated November 8, 2011.

June 27, 2012: In Questions for the Record following a June 7 hearing, Jerry Nadler notes that DOJ has sought dismissal of court challenges to targeted killing by claiming “the appropriate check on executive branch conduct here is the Congress and that information is being shared with Congress to make that check a meaningful one,” but “we have yet to get any response” to “several requests” for the OLC memo authorizing targeted killing. He also renews his request for the briefing Holder had promised. (10)

July 19, 2012: Both Pat Leahy and Chuck Grassley complain about past unanswered requests for OLC memo. (Grassley prepared an amendment as well, but withdrew it in favor of Cornyn’s.) Leahy (but not Grassley) votes to table John Cornyn amendment to require Administration to release the memo.

July 24, 2012: SSCI passes Intelligence Authorization that requires DOJ to make all post-9/11 OLC memos available to the Senate Intelligence Committee, albeit with two big loopholes.

December 4, 2012: Jerry Nadler, John Conyers, and Bobby Scott ask for finalized white paper, all opinions on broader drone program (or at least a briefing), including signature strikes, an update on the drone rule book, and public release of the white paper.

December 19, 2012: Ted Poe and Tredy Gowdy send Eric Holder a letter asking specific questions about targeted killing (not limited to the killing of an American), including “Where is the legal authority for the President (or US intelligence agencies acting under his direction) to target and kill a US citizen abroad?”

January 14, 2013: Wyden writes John Brennan letter in anticipation of his confirmation hearing, renewing his request for targeted killing memos. (11)

January 25, 2013: Rand Paul asks John Brennan if he’ll release past and future OLC memos on targeting Americans. (12)

February 4, 2013: 11 Senators ask for any and all memos authorizing the killing of American citizens, hinting at filibuster of national security nominees. (13)

February 6, 2013: John McCain asks Brennan a number of questions about targeted killing, including whether he would make sure the memos are provided to Congress. (14)

February 7, 2013Pat Leahy and Chuck Grassley ask that SJC be able to get the memos that SSCI had just gotten. (15)

February 7, 2013: In John Brennan’s confirmation hearing, Dianne Feinstein and Ron Wyden reveal there are still outstanding memos pertaining to killing Americans, and renew their demand for those memos. (16)

February 8, 2013: Poe and Gowdy follow up on their December 19 letter, adding several questions, particularly regarding what “informed, high level” officials make determinations on targeted killing criteria.

February 8, 2013: Bob Goodlatte, Trent Franks, and James Sensenbrenner join their Democratic colleagues to renew the December 4, 2012 request. (17)

February 12, 2013: Rand Paul sends second letter asking not just about white paper standards, but also about how National Security Act, Posse Commitatus, and Insurrection Acts would limit targeting Americans within the US.

February 13, 2013: In statement on targeted killings oversight, DiFi describes writing 3 previous letters to the Administration asking for targeted killing memos. (18, 19, 20)

February 20, 2013: Paul sends third letter, repeating his question about whether the President can have American killed inside the US.

February 27, 2013: At hearing on targeted killing of Americans, HJC Chair Bob Goodlatte — and several other members of the Committee — renews request for OLC memos. (21)

March 11, 2013: Barbara Lee and 7 other progressives ask Obama to release “in an unclassified form, the full legal basis of executive branch claims” about targeted killing, as well as the “architecture” of the drone program generally. (22)

All Members of Congress who have asked about Targeted Killing Memos and/or policies

  1. Ron Wyden
  2. Dianne Feinstein
  3. Saxby Chambliss
  4. Chuck Grassley
  5. Pat Leahy
  6. Tom Graves
  7. Jerry Nadler
  8. John Conyers
  9. Bobby Scott
  10. Ted Poe
  11. Trey Gowdy
  12. Rand Paul
  13. Mark Udall
  14. Dick Durbin
  15. Tom Udall
  16. Jeff Merkley
  17. Mike Lee
  18. Al Franken
  19. Mark Begich
  20. Susan Collins
  21. John McCain
  22. Bob Goodlatte
  23. Trent Franks
  24. James Sensenbrenner
  25. Barbara Lee
  26. Keith Ellison
  27. Raul Grijalva
  28. Donna Edwards
  29. Mike Honda
  30. Rush Holt
  31. James McGovern

“Engaged in Combat”

Last night, Rand Paul said this:

Well, words do make a difference, and I would feel a little more comfortable if we would get in writing a letter that says he doesn’t believe killing people not actively engaged in combat with drones in America, on American soil, is constitutional.

Today, Eric Holder wrote Paul this letter.

It has come to my attention that you have now asked an additional question. “Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?” The answer to that question is no.

Aside from noting that Holder took out the “actively” modifier in Paul’s statement (though Paul said some version of this so many times last night that Holder’s formulation might be justified by one of those other ones), I’d have to say that Paul has only managed to move the pea under a different shell in this shell game.

Because now we need a definition of what “engaged in combat” means.

 

Democrats Refuse Non-Binding Resolution Limiting Presidential Drones against Non-Combatants, Too

I noted earlier that Eric Holder suggested that a law prohibiting the use of drones against non-combatant Americans in the US would be unconstitutional.

Grassley: Do you believe Congress has the Constitutional authority to pass a law prohibiting the President’s authority to use drone aircraft to use lethal force against Americans on US soil and if not, why not?

Holder: I’m not sure that such a bill would be constitutional. It might run contrary to the Article II powers that the President has.

That’s interesting background for a move Rand Paul tried at roughly hour 8 of his filibuster.

He proposed a non-binding resolution saying precisely what Grassley had laid out 10 hour earlier, voicing the position of the Senate to be opposed to the “use of drones to target Americans on American soil who pose no imminent threat.”

As I understand it, the resolution was independent from the Brennan nomination (so it would not disrupt that, aside from a vote).

But — as just one of two Democrats to show up during this filibuster (Ron Wyden showed up in support during the 3:00 hour) — Dick Durbin showed up to oppose Paul’s unanimous consent to call for that resolution.

Durbin promised his subcommittee of the Senate Judiciary Committee would hold a hearing on drones. Nevertheless, he objected to Paul’s resolution. He suggested more Constitutional review of this simple measure was needed.

A leader of the Democratic party (and the President’s fellow Chicagoan) opposed a non-binding resolution prohibiting the use of drones in the US against non-combatants out of Constitutional concerns.

I’ve got a lot of theories why that might be. A belief this is all about making trouble for another nomination. insistence that nothing limit potential Article II claims.

But I keep thinking about the fact that there’s a wrongful death suit out there, with state secrets as the fallback claim crumbling with the public discussion.

Incapacitating Terrorists in the US: the FBI’s Job

Remember when I suggested that a targeted killing in the US would look a lot like the killing of Imam Luqman Abdullah in 2009 (though I’m not saying that Abdullah’s killing was a targeted killing), in which bunch of FBI’s Hostage Rescue Team members flew in from around the country, set up an “arrest” operation, sicced a dog on him, and then shot him 21 times as he tried to hold off the dog?

Here are three assertions in the letters Eric Holder and John Brennan made in response to Rand Paul’s question about whether “the President has the power to authorize lethal force, such as a drone strike, against a US citizen on US soil, and without trial,” each addressing a different agency which might conceivably conduct targeted killing.

DOD

It is possible, I suppose, to imagine an extraordinary circumstance in which it would be necessary and appropriate under the Constitution and applicable laws of the United States for the President to authorize the military to use lethal force within the territory of the Untied States.

CIA

I can, however, state unequivocally that the agency I have been nominated to lead, the CIA, does not conduct lethal operations inside the United States — nor does it have any authority to do so. Thus, if I am fortunate enough to be confirmed as CIA Director, I would have no “power” to authorize such operations.

DOJ

As a policy matter, moreover, we reject the use of military force where well-established law enforcement authorities in this country provide the best means for incapacitating a terrorist threat. We have a long history of using the criminal justice system to incapacitate individuals located in our country who pose a threat to the United States and its interests abroad. Hundreds of individuals have been arrested and convicted of terrorist-related offenses in our federal courts.

All three answers are interesting. Paul is upset that Holder said the President could use lethal military force in the US. Holder invoked Pearl Harbor and 9/11, during the latter of which the Vice President, on his sole authority, ordered DOD to shoot down domestic aircraft in the US. If Paul has a problem, he should probably also have a problem with Dick Cheney’s order on 9/11.

Brennan’s answer about the CIA is a masterpiece of misdirection. Brennan doesn’t answer whether the CIA can operate in the US, which is broadly covered by other questions Paul asked so easily could and should have been included in his answer. He uses very interesting scare quotes around power. He makes it very clear that this answer does not address the legal question of whether the CIA could do this (he says DOJ will answer that, but Holder in fact didn’t address whether CIA could be ordered to kill in the US). Most importantly, however, Brennan answers a question Paul didn’t answer: Whether the CIA Director could order the CIA to use lethal force in the US.

The CIA, of course, conducts covert operations based on Presidential authorization, not CIA Director authorization. And Brennan stopped well short of answering whether the President could authorize the CIA to conduct lethal operations in the US, and whether the Executive Branch believed the President could authorize such strikes based on his own authority. And as I said, Holder quite simply didn’t answer that question at all.

Finally, though, I love the way Eric Holder discusses trials only after talking about using law enforcement — like the FBI — to incapacitate terrorists and other evil-doers twice.

Holder didn’t comment, one way or another, on whether the President could authorize law enforcement authorities to conduct targeted killings in the US. And since the precedents for using lethal force in the white paper are domestic law enforcement cases, that use of lethal force would come with the most cover from legal precedent.

In short, none of these assertions constitutes a denial that a particular agency could, under certain circumstances, could conduct targeted killing in the US. All they say, in conjunction, is that were a targeted killing to be conducted in the US, it would most likely be conducted by law enforcement.

Count Von Count Counts 20 Times the Administration Has Blown Off Targeted Killing Memo Requests

1 – 2 – 3 – 4 – 5 – 6 – 7 – 8 – 9 – 10 – 11 – 12 – 13 – 14 – 15 – 16 – 17 – 18 – 19 -20

With Bob Goodlatte’s — and several other members of the House Judiciary Committee — renewed requests on Wednesday for the Office of Legal Counsel memos authorizing the targeted killing of American citizens, we have reached a milestone.

20

Members of Congress have asked for the targeted killing memos more than 20 times. And with the exception of the 35 members of the intelligence committees getting a quick peek without staff assistance and (presumably) a more substantial review by members of the Gang of Eight, the Administration has blown off every single one of those 20 requests.

I’ve included the updated timeline below. In addition to the hard count, note two letters from Ted Poe and Trey Gowdy to Eric Holder that don’t specifically ask for the memo, but ask a lot of pretty good questions about drone and other targeted killings.

February 2011: Ron Wyden asks the Director of National Intelligence for the legal analysis behind the targeted killing program; the letter references “similar requests to other officials.” (1)

April 2011: Ron Wyden calls Eric Holder to ask for legal analysis on targeted killing. (2)

May 2011: DOJ responds to Wyden’s request, yet doesn’t answer key questions.

May 18-20, 2011: DOJ (including Office of Legislative Affairs) discusses “draft legal analysis regarding the application of domestic and international law to the use of lethal force in a foreign country against U.S. citizens” (this may be the DOJ response to Ron Wyden).

October 5, 2011: Chuck Grassley sends Eric Holder a letter requesting the OLC memo by October 27, 2011. (3)

November 8, 2011: Pat Leahy complains about past Administration refusal to share targeted killing OLC memo. Administration drafts white paper, but does not share with Congress yet. (4)

February 8, 2012: Ron Wyden follows up on his earlier requests for information on the targeted killing memo with Eric Holder. (5)

March 7, 2012: Tom Graves (R-GA) asks Robert Mueller whether Eric Holder’s criteria for the targeted killing of Americans applies in the US; Mueller replies he’d have to ask DOJ. Per his office today, DOJ has not yet provided Graves with an answer. (6)

March 8, 2012: Pat Leahy renews his request for the OLC memo at DOJ appropriations hearing.(7)

June 7, 2012: After Jerry Nadler requests the memo, Eric Holder commits to providing the House Judiciary a briefing–but not the OLC memo–within a month. (8)

June 12, 2012: Pat Leahy renews his request for the OLC memo at DOJ oversight hearing. (9)

June 22, 2012: DOJ provides Intelligence and Judiciary Committees with white paper dated November 8, 2011.

June 27, 2012: In Questions for the Record following a June 7 hearing, Jerry Nadler notes that DOJ has sought dismissal of court challenges to targeted killing by claiming “the appropriate check on executive branch conduct here is the Congress and that information is being shared with Congress to make that check a meaningful one,” but “we have yet to get any response” to “several requests” for the OLC memo authorizing targeted killing. He also renews his request for the briefing Holder had promised. (10)

July 19, 2012: Both Pat Leahy and Chuck Grassley complain about past unanswered requests for OLC memo. (Grassley prepared an amendment as well, but withdrew it in favor of Cornyn’s.) Leahy (but not Grassley) votes to table John Cornyn amendment to require Administration to release the memo.

July 24, 2012: SSCI passes Intelligence Authorization that requires DOJ to make all post-9/11 OLC memos available to the Senate Intelligence Committee, albeit with two big loopholes.

December 4, 2012: Jerry Nadler, John Conyers, and Bobby Scott ask for finalized white paper, all opinions on broader drone program (or at least a briefing), including signature strikes, an update on the drone rule book, and public release of the white paper.

December 19, 2012: Ted Poe and Tredy Gowdy send Eric Holder a letter asking specific questions about targeted killing (not limited to the killing of an American), including “Where is the legal authority for the President (or US intelligence agencies acting under his direction) to target and kill a US citizen abroad?”

January 14, 2013: Wyden writes John Brennan letter in anticipation of his confirmation hearing, renewing his request for targeted killing memos. (11)

January 25, 2013: Rand Paul asks John Brennan if he’ll release past and future OLC memos on targeting Americans. (12)

February 4, 2013: 11 Senators ask for any and all memos authorizing the killing of American citizens, hinting at filibuster of national security nominees. (13)

February 7, 2013Pat Leahy and Chuck Grassley ask that SJC be able to get the memos that SSCI had just gotten. (14)

February 7, 2013: In John Brennan’s confirmation hearing, Dianne Feinstein and Ron Wyden reveal there are still outstanding memos pertaining to killing Americans, and renew their demand for those memos. (15)

February 8, 2013: Poe and Gowdy follow up on their December 19 letter, adding several questions, particularly regarding what “informed, high level” officials make determinations on targeted killing criteria.

February 8, 2013: Bob Goodlatte, Trent Franks, and James Sensenbrenner join their Democratic colleagues to renew the December 4, 2012 request. (16)

February 12, 2013: Rand Paul sends second letter asking not just about white paper standards, but also about how National Security Act, Posse Commitatus, and Insurrection Acts would limit targeting Americans within the US.

February 13, 2013: In statement on targeted killings oversight, DiFi describes writing 3 previous letters to the Administration asking for targeted killing memos. (17, 18, 19)

February 20, 2013: Paul sends third letter, repeating his question about whether the President can have American killed inside the US.

February 27, 2013: At hearing on targeted killing of Americans, HJC Chair Bob Goodlatte — and several other members of the Committee — renews request for OLC memos. (20)

Did Susan Collins Switch Parties? Cause She Wanted OLC Memos, Too

I hate to waste an entire post on this.

But the NYT’s report last night that President Obama was going to capitulate to the Benghazi truthers rather than turn over memos revealing who and where he has been killing people — as well as all the secondary reporting on it — has made this claim.

Rather than agreeing to some Democratic senators’ demands for full access to the classified legal memos on the targeted killing program, Obama administration officials are negotiating with Republicans to provide more information on the lethal attack last year on the American diplomatic compound in Benghazi, Libya, according to three Congressional staff members.

The strategy is intended to produce a bipartisan majority vote for Mr. Brennan in the Senate Intelligence Committee without giving its members seven additional legal opinions on targeted killing sought by senators and while protecting what the White House views as the confidentiality of the Justice Department’s legal advice to the president. It would allow Mr. Brennan’s nomination to go to the Senate floor even if one or two Democrats vote no to protest the refusal to share more legal memos. [my emphasis]

On February 4, Susan Collins was among the 11 Senators who signed a letter asking for “any and all legal opinions that lay out the executive branch’s official understanding of the President’s authority to deliberately kill American citizens.”

Perhaps Collins has been satisfied with the brief glimpse at the two memos it shared with the Committee back on February 7. Perhaps she — the Senator on the Intelligence Committee who asked the best questions about targeted killing efficacy — is not all that interested in the other memos the Administration is hiding, presumably along with uses of targeted killing she isn’t being briefed on. Perhaps she no longer supports the hinted hold-up for national security nominees.

But even on the Senate Intelligence Committee, the call for the targeted killing memos was a bipartisan affair (among those not on the committee, Mike Lee and Chuck Grassley also signed the letter, and Rand Paul sent his own demand for the memos). Heck, once upon a time, John Cornyn wanted to legislatively demand the memos.

Demanding that the President reveal what kind of targeted killing programs it supports is no hippie fetish. It is something that members of both parties have supported.