DOJ Will Neither Confirm Nor Deny They’ve Okayed the Assassination of US Citizens

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On October 7, Charlie Savage FOIAed the OLC memo authorizing Anwar al-Awlaki’s assassination which he described in detail in this article. DOJ has responded–with a Glomar response.

Pursuant to FOIA Exemptions One, Three and Five, 5 U.S.C. § 552(b)(1), (3) and (5), the Office of Legal Counsel neither confirms nor denies the existence of the documents described in your request. We cannot do so because the very fact of the existence or nonexistence of such documents is itself classified, protected from disclosure by statute, and privileged.

Basically, DOJ is saying that for reasons of National Defense, statute (probably the National Security Act, but I bet they’re also pretending that state secrets is a statute), and interagency process, they can’t even tell Savage whether a memo the existence of which he has reported on page 1 of the NYT exists.

Back in the good old days of the Bush Administration, when a major news outlet reported on the existence of an OLC memo, DOJ generally accepted that reference in support of a FOIA. Through such means, reporters and the NGOs were able to lay out at least the dates and subjects–and ultimately, much of the content–of the OLC memos that authorized rendition, torture, and illegal wiretapping.

But not now, not under the “most transparent Administration ever.” Under this Kafkaesque Administration, the government can kill an American citizen, leak details of the legal justification for doing so, and then boast about the killing, yet still tell FOIA requesters that it won’t even confirm that the government has claimed the ability to kill American citizens.

Mind you, there is some consistency here. Given that the government has claimed all this is a state secret, a Glomar response is the appropriate FOIA response. Or it would be if the government were, at the same time, prosecuting all the Administration officials who have and continue to leak about this assassination.

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11 replies
  1. MadDog says:

    I guess I was wrong in predicting we’d see a redacted version of this OLC opinion. Not when the Obama Administration is Glomaring even its existence.

  2. Jim White says:

    @MadDog: And don’t forget they want to change the rules to the point that rather than Glomarizing, they just want to outright lie and say no responsive documents exist when there are secret ones they want to hide.

  5. allan says:

    It would be funny, except that it isn’t, how similar this language is to the
    “deny and imply” that citizens are subjected to in Gary Shteyngart’s Super Sad True Love Story:

    “Men in civilian clothes zapped our bodies and our apparati [iPhones on steroids] … and asked us both to deny and imply consent to what they were doing to us.”

  6. Mary says:

    DOJ doesn’t want to confirm or deny whether or not the facts of the Obama assassinations, now including awakli’s juvenile child in the follow up bombings, fit the facts of their memos either. In this story
    http://online.wsj.com/article/SB10001424052970204394804577010141334953180.html?mod=googlenews_wsj
    About al-asiri, it turns out that the US didn’t have any clue who was with awaking when they killed everyone.

    The main point of the story is that the killings of 3 or so American citizens, including a child and that really scared thing, an editor, has now cleared the way for the assassination squads to focus on asiri. but it is also dealing, in the subtext, with the assassains wanting to create the story that they didn’t know they were killing the US editor (trying to negate intent) while the US has been simultaneously selling the story that they know who they are assassinating and it ain’t civilians.

    As a side note, under the (don’t laugh) rules of professional conduct, if something like the weapon story puts an assassination memo lawyer on notice that in practice, the US isn’t bothering to identify the bulk of the people it will be assassinating with its Yemeni bombings, they do have the duties to, among other things, advise that their opinion does not cover such a fact pattern and to also provide a lit hold notice given the likelihood such non covered actions may become subject of litigation that, given the deaths of US citizens not covered by the opinion, has no statute of limitations.

  7. earlofhuntingdon says:

    Is it possible that our constitutional lawyer president does not want to admit that his stellar performance at Harvard Law was just him punching his ticket, the price for getting his name on the American nomenklatura?

    The rule of law and the golden rule are anathema to a government that has spent decades toppling foreign governments whose laws and aspirations for social and economic justice imperiled its ability to dominate them and their economic resources. In place of the defunct “communists” as a description of amorphous existential evil, we have co-opted the term “terrorists”, and heightened our fears so that harm to them and those near them can be dismissed as inconsequential.

    What seems to be happening, as Alfred McCoy suggested in his work on our 100 years of imperial conduct in the Philippines, is the outing and the domestication of the repressive tools of empire. In this case, we are not compiling hit lists of the leftists, progressives, liberals, unionists and nationalists we want imprisoned or killed the way we did in Chile, Guatemala, Iran, Indonesia, Nicaragua, or the Philippines. We are targeting those we claim are actively opposed to our dominance in the Middle East, regardless of citizenship or actual conduct. And we are preparing the ability to use at home the enforcement tools we’ve developed for use abroad.

  8. Mary says:

    Also worth noting – in addition to lying about Executive branch illegal activity in FOIA responses, Obama’s DOJ has been busy fighting against procedural rule modifications that would require the DOJ to hand over all exculpatory info they have to the defense (imagine the Kurnaz case if that had been an express rule).

    http://www.mainjustice.com/2009/10/15/justice-department-opposes-expanded-brady-rule/

    Lanny Breur is arguing that training DOJ lawyers about Brady rule requirements (while simultaneously teaching them that in claimed (but not necessarily real) national security settings, it’s ok to destroy evidence, “lose it,” fib to judges, fail to index, torture witnesses, cover up torture, and disappear and/or authorize the Executive branch to assassinate witnesses, etc.) clears everything up and makes it unreasonable to expect more of the DOJ.

    Besides, Breuer can prove nothing more is needed. After all, the DOJ’s wholly owned, subject to AG and PRes restrictions and decisions OPR, which has never been allowed to conduct any real or meaningful investigation into the collusion between DOJ lawyer and other Exec branch lawyers and principles such as the CIA Director, VP, PRes, etc. – that OPR has only found 15 cases of misconduct. In the cases it was allowed to investigate. Without any criminal support in its investigations. Without the ability to investigate what the AG and Pres shut down, etc. Breuer just can’t understand why things like his affidavits about “golly gee, we lost some of those torture docs, oh well” with an OPR thumbs up sticker don’t necessarily assauge some Federal judges. The ones who remember the Judicial branch and as a separate and equal branch and one to which Exec and Congressional lawyers owed a duty concurrent with their duties to the Exec and Congressional branches.

  9. earlofhuntingdon says:

    In terms of get-out-of-jail-free cards for government ministers and corporate executives, I suspect the DoJ is now a more profitable white collar legal defense law firm than Sullivan & Cromwell, the former home to John Foster and Allen Dulles.

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