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Did John Brennan’s Leak Hypocrisy Catch Up to Him?

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In his interview with Jason Leopold in May 2010, Jon Kiriakou explained how his book got approved by the CIA Publication Review Board. He describes someone who–given the mention of the transition team and the seniority at CIA–must be John Brennan, advising him to wait to resubmit his book until after the Obama Administration cleaned out the CIA.

Kiriakou: I called a very senior CIA officer, former CIA officer, who was very quietly supportive of me.

Leopold: Can you identify that person?

Kiriakou: I can’t, unfortunately. But he said, ‘I’m on the Obama transition team. We’re going to win this election next week. And we’re going to be making wholesale changes over there. Everybody’s gonna go. So make your changes and don’t resubmit until I tell you to.’ A week later Obama wins. About six weeks pass, Director Hayden resigns. Several people a layer or two, three layers beneath him also resign, My friend calls me back and says ‘resubmit it.’ This is immediately after Panetta is named Director. I resubmitted it. A week later, I got a one page letter saying ‘the book is cleared in its entirety.’

So not only was this guy who appears identical to John Brennan “quietly supportive
of Kiriakou,” but this John Brennan lookalike also played a key role in getting Kiriakou’s book approved.

Which is mighty interesting, because John Brennan was also centrally involved in this investigation, particularly in the hiring of Pat Fitzgerald in March 2010 to respond to CIA’s demand for IIPA charges.

According to the officials, the dispute centered on discussions for a interagency memorandum that was to be used in briefing President Obama and senior administration officials on the photographs found in Cuba.

Justice officials did not share the CIA’s security concerns about the risks posed to CIA interrogators and opposed language on the matter that was contained in the draft memorandum. The memo was being prepared for White House National Security Council aide John Brennan, who was to use it to brief the president.

The CIA insisted on keeping its language describing the case and wanted the memorandum sent forward in that form.

That resulted in the meeting and ultimately to Mr. Vieira withdrawing from the probe.

Now, I’m not suggesting that Kiriakou was targeted just to get back at John Brennan.

But I am saying that it is–at the very least–ironic that a world class leak hypocrite would be supportive of the guy who got nabbed in this investigation.

On the one hand, after all, Brennan had an antagonistic role with at least one of the whistleblowers the Obama Administration has targeted.

Yet, at the same time, he’s a noted leaker himself, such as for the breathless account of the Osama bin Laden targeting, and, more recently, providing on the record details that the Administration had declared a state secret.

The CIA got their IIPA charge. I’m not sure whether Kiriakou is the guy everyone thought they’d get.

Peter King, Movie Mogul

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Peter King, the former terrorist sympathizer conducting witch hunts against alleged terrorist sympathizers, is not one to assail others for their gross hypocrisy. And technically, that’s not what his complaint about apparent Administration plans to cooperate in an Osama bin Laden Fuck Yeah movie set to release just as voters start thinking about the November election. King is purportedly less concerned about the Administration’s glaring hypocrisy on leaks and more concerned about leaks in general. Though given his silence about this leak fest, I’d wager he’s most concerned that voters might learn that it took a Democratic Administration to actually hunt down OBL.

In response to King’s request and in response to a preliminary review, DOD has promised to start an investigation into the charges immediately.

The CIA’s response was more ambiguous. It noted that,

The CIA’s Office of Public Affairs handles requests for information from the entertainment industry. According to a senior official from that office, the protection of national security equities–including the preservation of our ability to conduct effective counterterrorism operations–is the decisive factor in determining how the CIA engages with filmmakers and the media as a whole.

It seems to me this policy allows CIA to cooperate with Hollywood if doing so would make Americans enthusiastically support exciting operations against big movie villains. It allows CIA to cooperate with Hollywood to ensure CIA gets full credit for offing OBL (even if that slights the SEALs involved). In other words, there’s a whole lot that might be fall under CIA’s own definition of what might “preserv[e its] ability to conduct effective counterterrorism operations.” All the more so under a Director who’s a bit of a media magnet.

In any case, it’d be nice if King’s claimed stance towards classified information…

The Administration’s first duty in declassifying material is to provide full reporting to Congress and the American people, in an effort to build public trust through transparency of government. In contrast, this alleged collaboration belies a desire of transparency in favor of a cinematographic view of history.

Was embraced by anyone in DC, Democrat or GOP.

But King, for his own part, has been working so hard to create a different villain, I doubt we’ll get it from him, either.

We Request to Inform You that You Inform Us We Killed Another Drone Target

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I want to follow-up on Jim’s latest drone post–and go back to Greg Miller’s article on drones–to look at the the approval process. A lot of readers of Miller’s article noted this passage, revealing that JSOC continues to avoid the kind of (minimal) oversight that CIA gets.

There is no comparable requirement in Title 10, and the Senate Armed Services Committee can go days before learning the details of JSOC strikes.

But read the whole passage in context.

Within 24 hours of every CIA drone strike, a classified fax machine lights up in the secure spaces of the Senate Intelligence Committee, spitting out a report on the location, target and result.

The outdated procedure reflects the agency’s effort to comply with Title 50 requirements that Congress be provided with timely, written notification of covert action overseas. There is no comparable requirement in Title 10, and the Senate Armed Services Committee can go days before learning the details of JSOC strikes.

Neither panel is in position to compare the CIA and JSOC kill lists or even arrive at a comprehensive understanding of the rules by which each is assembled.

The senior administration official said the gap is inadvertent. “It’s certainly not something where the goal is to evade oversight,” the official said. A senior Senate aide involved in reviewing military drone strikes said that the blind spot reflects a failure by Congress to adapt but that “we will eventually catch up.”

The disclosure of these operations is generally limited to relevant committees in the House and Senate and sometimes only to their leaders. Those briefed must abide by restrictions that prevent them from discussing what they have learned with those who lack the requisite security clearances. The vast majority of lawmakers receives scant information about the administration’s drone program.

In addition to the long-standing problem of JSOC avoiding oversight (and, implicitly, that this notice apparently comes after the fact, when CIA sends a fax over, which is a little late for the Intelligence Committees to weigh in, IMO), Miller lays out the following:

  • No one–not the intelligence committees or even the Gang of Four–gets enough insight into the drone programs to understand how JSOC’s practices differ from CIA’s (this is consistent with what the Gang of Four said about Anwar al-Awlaki’s killing, given that they said they never saw the kill lists)
  • As is typical, the intelligence committee overseers can’t share information from briefings with their colleagues not read into the program (this is how the Bush Administration gutted intelligence committee oversight of the torture and illegal wiretap programs)

But don’t worry, a senior Administration official says, this time, this secrecy is not designed specifically to avoid oversight.

Apparently, this SAO’s interlocutors don’t agree, because the WSJ’s Adam Entous and Siobhan Gorman have a similar story out today, just three days after Miller’s, quoting “current and former administration, military and congressional officials” complaining about oversight gaps.

Read more →

More Collateral Damage From Mad Rush to Rely on Drones

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A drone crashed in Afghanistan earlier this week. (Wikimedia Commons photo via Bakhtar News)

Marcy already covered the very important Greg Miller Washington Post article on drones and the way the Obama administration is growing ever more reliant on their use. I would like to focus on more of the collateral damage from drone use as described in two Los Angeles Times articles from this week.  Today’s article discusses the growing reliance on civilian contractors in the use of drones.  Earlier in the week, we learned about the “death squads” roaming the tribal areas of Pakistan doling out revenge on those thought to have sold information used by the US in developing target information. Taken together, these articles demonstrate how the excessive reliance on drones is outstripping the military and CIA support infrastructure. This matter will be only be made worse by the fact that the number of US personnel on the ground within Pakistan to develop intelligence has been cut to one fourth the previous level.

Today’s LA Times article opens with a description of the difficulties that ensue when civilians take part in analysis of video feeds from drones that hit civilian targets:

After a U.S. airstrike mistakenly killed at least 15 Afghans in 2010, the Army officer investigating the accident was surprised to discover that an American civilian had played a central role: analyzing video feeds from a Predator drone keeping watch from above.

The contractor had overseen other analysts at Air Force Special Operations Command at Hurlburt Field in Florida as the drone tracked suspected insurgents near a small unit of U.S. soldiers in rugged hills of central Afghanistan. Based partly on her analysis, an Army captain ordered an airstrike on a convoy that turned out to be carrying innocent men, women and children.

We learn in the article that maintaining drones in the air requires a very large contingent of ground support, with Predators requiring over 150 ground crew for a 24 hour flight and twice that amount for the larger drones. We are already short on these ground crews and yet the number of these medium and large drones is expected to go from the current 230 to 960 within ten years. But don’t worry, only 44 hours of training are required to certify a pilot!

In relying so heavily on civilian contractors, the US is flirting with breaking the international laws of war.  Also from today’s article: Read more →

“Oddly Passive” in the World of Drone Killing

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The WaPo has an important piece on the use of drones. One thing bmaz noted about it on Twitter, for example, is that CIA had Anwar al-Awlaki under such multi-drone surveillance before they killed him, it is not credible that they killed Samir Khan, also an American, out of ignorance of his presence. Particularly given their claim they had made sure no “civilians wandered in the cross hairs.”

Two Predators pointed lasers at Awlaki’s vehicle, and a third circled to make sure that no civilians wandered into the cross hairs.

So the article makes it clear that the Administration doesn’t consider non-operational American citizen propagandists “civilians.”

But I’m particularly interested in what a “former official who served in both [the Bush and Obama] administrations and was supportive of the [drone] program” had to say about who was promoting increased use of drones. The official starts by pointing to Hillary Clinton, Leon Panetta, and John Brennan as the program’s champions.

Secretary of State Hillary Rodham Clinton, former CIA director and current Defense Secretary Leon E. Panetta, and counterterrorism adviser John O. Brennan seemed always ready to step on the accelerator, said a former official who served in both administrations and was supportive of the program. Current administration officials did not dispute the former official’s characterization of the internal dynamics.

And then calls the Commander-in-Chief “oddly passive” when it comes to drones.

Obama himself was “oddly passive in this world,” the former official said, tending to defer on drone policy to senior aides whose instincts often dovetailed with the institutional agendas of the CIA and JSOC.

The senior administration official [who also disputed that the drones were driving our counterterrorism policy and not vice versa] disputed that characterization, saying that Obama doesn’t weigh in on every operation but has been deeply involved in setting the criteria for strikes and emphasizing the need to minimize collateral damage.

“Everything about our counterterrorism operations is about carrying out the guidance that he’s given,” the official said. “I don’t think you could have the president any more involved.”

The description of a passive Obama accords with other descriptions of Obama’s role in the drone war. As I noted in October, even Obama’s “approval” of the Anwar al-Awlaki targeting, according to Mark Hosenball, consisted only of not rejecting the recommendations of the Principals Committee’s recommendation (and therefore people like Hillary, Brennan, and Panetta).

The role of the president in ordering or ratifying a decision to target a citizen is fuzzy. White House spokesman Tommy Vietor declined to discuss anything about the process.

[snip]

Other officials said the role of the president in the process was murkier than what Ruppersberger described.

They said targeting recommendations are drawn up by a committee of mid-level National Security Council and agency officials. Their recommendations are then sent to the panel of NSC “principals,” meaning Cabinet secretaries and intelligence unit chiefs, for approval. The panel of principals could have different memberships when considering different operational issues, they said.

[snip]

Several officials said that when Awlaki became the first American put on the target list, Obama was not required personally to approve the targeting of a person. But one official said Obama would be notified of the principals’ decision. If he objected, the decision would be nullified, the official said.

A former official said one of the reasons for making senior officials principally responsible for nominating Americans for the target list was to “protect” the president.

In addition, Joby Warrick’s description of the targeting approval process used before we killed Baitullah Mehsud and his young wife shows just the Director of the CIA signing off on the killing.

So it’s not news, exactly, that Obama has been given plausible deniability about the out-of-control backlash-creating program. Nor that the Administration wants to sustain that plausible deniability while still pursuing political advantage from the drone strikes.

But I am interested in the implication Greg Miller leaves as a result. Obama is passive, and so his senior aides control the program (perhaps one of the aides denying that Obama is passive?), and they, in turn, basically support the “the institutional agendas of the CIA and JSOC.”

Here’s what that senior aide had to say to try to deny that we’re letting a fondness for drones drive our counterterrorism policy.

“People think we start with the drone and go from there, but that’s not it at all,” said a senior administration official involved with the program. “We’re not constructing a campaign around the drone. We’re not seeking to create some worldwide basing network so we have drone capabilities in every corner of the globe.”

It seems there’s a third option, an alternative to “we’re building so many drone bases because we like drones” and “we have so many drones because there are so many possible targets for them.”

That third option is that JSOC and CIA have certain “institutional agendas” that center on wielding the power of drones anywhere in the world to implement a policy they’ve dreamt up rather than their civilian Commander-in-Chief. There’s a hint, at least, that drones not only take the human out of the cockpit, but also take the Commander-in-Chief out of the cockpit as well.

Drone War Secrecy and Kill or Capture

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As we stand on the doorstep of President Obama signing into law the new NDAA and its dreaded controversial provisions, there are two new articles out of interest this morning. The first is an incredibly useful, and pretty thorough, synopsis at Lawfare of the new NDAA entitled “NDAA FAQ: A Guide for the Perplexed”. It is co-written by Ben Wittes and Bobby Chesney and, though I may differ slightly in a couple of areas, it is not by much and their primer is extremely useful. I suggest it highly, and it has condensed a lot of material into an easily digestible blog length post.

The second is a long read from the Washington Post on how secrecy defines Obama’s drone wars:

The administration has said that its covert, targeted killings with remote-controlled aircraft in Pakistan, Yemen, Somalia and potentially beyond are proper under both domestic and international law. It has said that the targets are chosen under strict criteria, with rigorous internal oversight.
….
“They’ve based it on the personal legitimacy of [President] Obama — the ‘trust me’ concept,” Anderson said. “That’s not a viable concept for a president going forward.”

The article goes on to state how the CIA, and the majority of voices in the White House, are fighting tooth and nail for continued utmost secrecy lest any of our enemies somehow discover we are blowing them to bits with our drones. This is, of course, entirely predictable, especially now that the former head of the CIA leads the military and the former military chief for the greater Af/Pak theater which has long been ground zero for the drone kill program, Petraeus, is the head of the CIA.

But then the Post piece brings up our old friend, the OLC:

The Justice Department’s Office of Legal Counsel has opposed the declassification of any portion of its opinion justifying the targeted killing of U.S. citizen Anwar al-Awlaki in Yemen this year. Awlaki, a propagandist for the Yemen-based al-Qaeda affiliate whom Obama identified as its “external operations” chief, was the first American known to have been the main target of a drone strike. While officials say they did not require special permission to kill him, the administration apparently felt it would be prudent to spell out its legal rationale.
….
Under domestic law, the administration considers all three to be covered by the Authorization for Use of Military Force that Congress passed days after the Sept. 11, 2001, attacks. In two key sentences that have no expiration date, the AUMF gives the president sole power to use “all necessary and appropriate force” against nations, groups or persons who committed or aided the attacks, and to prevent future attacks.

The CIA has separate legal authority to conduct counterterrorism operations under a secret presidential order, or finding, first signed by President Ronald Reagan more than two decades ago. In 1998, President Bill Clinton signed an amendment, called a Memorandum of Notification, overriding a long-standing ban on CIA assassinations overseas and allowing “lethal” counterterrorism actions against a short list of named targets, including Osama bin Laden and his top lieutenants. Killing was approved only if capture was not deemed “feasible.”

A week after the Sept. 11 attacks, the Bush administration amended the finding again, dropping the list of named targets and the caveat on “feasible” capture.

“All of that conditional language was not included,” said a former Bush administration official involved in those decisions. “This was straight-out legal authority. . . . By design, it was written as broadly as possible.”

This brings us back to the notable October 8, 2011 article by the New York Times’ Charlie Savage on his viewing of the Awlaki targeting memo relied on by the Obama White House for the extrajudicial execution of Anwar al-Awlaki. Marcy, at the time discussed the incongruity of the collateral damage issue and the fact Samir Khan was also a kill in the targeted Awlaki strike.

I would like to delve into a second, and equally misleading, meme that has been created by the self serving and inconsistent secret law Obama has geometrically expanded from the already deplorable Bush/Cheney policy set: the false dichotomy in the kill or capture element of the Read more →

Serial Abuser of Executive Branch “Flexibility,” John Brennan, Making Veto Case on Detainee Provisions

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I have already said I think Obama needs to veto the Defense Authorization because of the detainee provisions. And I have argued that the Administration needs to lay the groundwork for doing so right now, preferably by fear-mongering about how much less safe presumptive military detention would make us.

Obama claims he’s still going to veto the Defense Authorization because of these detainee provisions. Good. I think he should. But if he really plans to do so, someone needs to be fear-mongering 24/7 about how much less safe these provisions will make us (and they will).

But I’m dismayed the Administration has chosen John Brennan, of all people, to do so. (h/t Ben Wittes)

The Administration has chosen someone who served as a top CIA executive during the period it developed its torture program to go out and argue the Executive Branch needs “flexibility” in detention to collect intelligence.

And so, what we’ve tried to do in this administration is to maintain as much flexibility as possible. And anything that restricts our flexibility in terms of how we want to detain them, question them, prosecute them is something that counterterrorism professionals and practitioners really are very concerned about.

[snip]

What we want to do is to extract the intelligence from them so that we can keep this country safe. We cannot hamper this effort. It’s been successful to date and this legislation really puts that at risk. [my emphasis]

We let a President have that kind of unrestricted flexibility on how to detain suspected terrorists and he used it to order Brennan’s agency to engage in torture.

But it’s not just with torture that John Brennan has been party to the Executive Branch’s abuse of this kind of unfettered “flexibility” in the past.

As I’ve pointed out, one of the problems (for the Administration) with the AUMF-affirming language in the Senate detainee provisions is that it may circumscribe the Administration’s ability to claim that terrorists with no ties to al Qaeda are legitimate military targets. That broader interpretation, relying on the Iraq AUMF, was implemented in 2004 to authorize things that presumably were already being done with the illegal wiretap program. When that May 2004 opinion was written, John Brennan oversaw the targeting–relying on that expansive definition–for the illegal wiretap program.

And then there’s the Administration’s insistence that no court should be able to review their decisions about who is and is not an enemy under the AUMF and whether those enemies represent an imminent threat. They prevented such a review with Anwar al-Awlaki, in part, by invoking state secrets over the precise terms at issue in the detainee language. Yet after the Administration killed Awlaki, Administration officials spilled state secrets repeatedly, at times solely to boast about the kill. Brennan even provided details covered under state secrets declarations on the record. The Administration’s badly hypocritical approach to secrecy in the case of Awlaki, particularly its failure to prosecute John Brennan for leaking state secrets, makes it clear their state secrets invocation had nothing to do with national security, but instead had to do with remaining free from any oversight–with retaining the maximum “flexibility,” if you will–over precisely the issues at the core of the detainee provisions. And as with torture and illegal wiretapping, John Brennan was at the center of that gross abuse of executive power as well.

There are some superb reasons to veto the Defense Authorization because of the detainee provisions: largely because DOJ has proven best able to interrogate and prosecute terrorists in the last decade. And there are some horrible reasons to do so: to allow the Executive Branch to continue to wield expanded powers with almost no oversight.

John Brennan is, in this Administration at least, the personification of all the horrible reasons.

Update: The AP reports the Administration is conducting a “full court press” to get changes to the bill. But look at what they point to to justify their “flexibility:”

The administration insists that the military, law enforcement and intelligence agents need flexibility in prosecuting the war on terror. Obama points to his administration’s successes in eliminating Osama bin Laden and al-Qaida figure Anwar al-Awlaki. Republicans counter that their efforts are necessary to respond to an evolving, post-Sept. 11 threat, and that Obama has failed to produce a consistent policy on handling terror suspects. [my emphasis]

Frankly, they’d probably be able to assassinate Awlaki under the new bill. But it’s telling they point to it–based as it is on their ability to interpret the AUMF in secrecy and with no oversight–as their justification for “flexibility.”

Bachmann Was Almost Right: The ACLU Is in Cahoots with the CIA

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As I have puzzled over the civil liberties and human rights communities’ stance on the NDAA Detainee Provisions, I’ve come to the unfortunate conclusion that Michelle Bachmann was not far off when she claimed, “Barack Obama … has essentially handed over our interrogation of terrorists to the ACLU. He has outsourced it to them.”

After all, in the guise of “fixing” some of what I agree are problems with the Detainee Provisions–the laws regarding detention and interrogation of detainees–the ACLU is telling its members to lobby for the Udall Amendment to the NDAA.

But there is a way to stop this dangerous legislation. Sen. Mark Udall (D-Colo.) is offering the Udall Amendment that will delete the harmful provisions and replace them with a requirement for an orderly Congressional review of detention power. The Udall Amendment will make sure that the bill matches up with American values.

In support of this harmful bill, Sen. Lindsey Graham (R-S.C.) explained that the bill will “basically say in law for the first time that the homeland is part of the battlefield” and people can be imprisoned without charge or trial “American citizen or not.” Another supporter, Sen. Kelly Ayotte (R-N.H.) also declared that the bill is needed because “America is part of the battlefield.”

The solution is the Udall Amendment; a way for the Senate to say no to indefinite detention without charge or trial anywhere in the world where any president decides to use the military. Instead of simply going along with a bill that was drafted in secret and is being jammed through the Senate, the Udall Amendment deletes the provisions and sets up an orderly review of detention power. It tries to take the politics out and put American values back in.

As a threshold matter, the ACLU’s  support of the Udall Amendment appears to put them on the same side of the debate as–among others–former CIA exec John Brennan and the former Director of the CIA, Leon Panetta. (Current CIA Director and outspoken detention authority while still at DOD, General David Petraeus, has been eerily quiet over the last several weeks.)

And I do agree with the ACLU that the Udall Amendment sets up an orderly review of detention power.

But, as I’ve noted, there’s one aspect of the Detainee Provisions that Udall doesn’t leave for orderly review: the scope of the language describing a “covered person.” Instead, Udall’s Amendment says covered people should be those “whose detention … is consistent with the laws of war and based on authority provided by” the 9/11 and Iraq AUMFs, as well as “any other statutory or constitutional authority.”

(b) Covered Persons.–A covered person under this section is any person, other than a member of the Armed Forces of the United States, whose detention or prosecution by the Armed Forces of the United States is consistent with the laws of war and based on authority provided by any of the following:

(1) The Authorization for Use of Military Force (Public Law 107-40).

(2) The Authorization for Use of Military Force Against Iraq Resolution 2002 (Public Law 107-243).

(3) Any other statutory or constitutional authority for use of military force.

Udall pretty much unilaterally reasserts the application of the AUMFs (plural) and other vaguely defined legal bases to detention (and, because that’s how OLC has built up Executive Power over the last decade, a bunch of other things), in an effort to defeat SASC’s language that limits such detention authority to those tied directly to 9/11 or “who [were] part of or substantially supported al-Qaeda, the Taliban, or associated forces.” Udall’s Amendment may give SSCI and SJC another shot at this law, but it dictates that detention authority apply to a far broader group of people than the SASC language describes.

Hey, Mark. See that calendar? We’re not going to pass and sign this bill before December 1. We’re due to pull our troops out of Iraq by the end of that month. Are you telling me we need to include that language for less than 31 days? Or just to provide a bubble during which the Administration can do whatever it wants with Ali Mussa Daqduq, the alleged Hezbollah agent in US custody presenting so many legal dilemmas for us in Iraq? Or are you instead applying the AUMF for a war that is effectively over to grant the President authority to hold a much broader category of “terrorist” than the 9/11 AUMF authorized? Why, at this late date, are you including the Iraq AUMF?

Given your “based on authority provided” language, I assume it is the latter, meaning this attempt to do an orderly review of detention authority also mandates that that detention authority be applied as if the Iraq war were not ending.

And all that’s before you consider the “any other statutory or constitutional authority for use of military force,” which seems to say that in any circumstance in which Congress has authorized some use of military force, Udall’s Amendment also piggybacks detention authority … and whatever else (like assassination and wiretap authority) gets built off of detention authority in secret by the OLC.

The Udall Amendment, while giving the Senate Intelligence and Senate Judiciary Committees an opportunity to weigh in on what the President must and can do with detainees, goes far beyond the language in the SASC version of 1031, which reaffirmed the war on terrorists, but only on terrorists who have anything directly to do with, or are associated with, 9/11.

I may be badly misreading this. But as I understand it, the ACLU is basically lobbying to codify a vastly-expanded AUMF that will serve to legitimize many of the intelligence community’s most egregious civil liberties abuses, not just on detention, but on a range of other “war powers,” like wiretapping and assassination.

And while that may not be the same as outsourcing interrogation to the ACLU–as Bachmann described it–it does amount to using the ACLU to give sanction to a broad expansion of Executive war and surveillance powers the likes of which the CIA loves to exploit.

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.

John Brennan Boasts that an Obama Decision Killed Anwar al-Awlaki

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Okay, I don’t know for a fact that the Senior Administration Official Jake Tapper rather irresponsibly gave anonymity to is John Brennan. After all, Ben Rhodes loves to boast anonymously too.

But given the Administration’s past caution about describing Obama’s role in the Awlaki assassination, I find it interesting that John Brennan this SAO is now claiming credit, in Obama’s name, for Awlaki’s killing, too.

The president emphasized the internationality of the NATO effort, and that’s part of what a senior White House official tells ABC News is the way Obama looks at foreign policy.

“What we’re demonstrating is you can move to a more targeted use of US force and be more successful in achieving our objectives,” a Senior White House official tells ABC News. This means a “smaller footprint, a more targeted use of force. It means less of a cost to taxpayers and troops, and also clearly results in our ability to take care of our interests.”

“With al Qaeda, we’re going after them in a very targeted way,” the Senior White House official says. “With Libya, we identified the unique capabilities the US has to go after Gadhafi,” and then NATO took the lead. The US role from that point on was to be the “glue” of the operation “keeping the coalition together,” providing “targeting, intelligence, refueling, and command and control.”

“Bin laden, Awlaki, Gadhafi have all met their demise in some fashion because of decisions the president made” utilizing this foreign policy view, the senior administration official said. [my emphasis]

Not surprisingly, John Brennan this SAO didn’t boast about the internationality of our effort in Somalia, where al-Shabaab made a grisly display of the bodies of 70 Burundian soldiers serving in AMISOM yesterday; al-Shabaab said they had ambushed the soldiers. John Brennan this SAO only boasts about the victories, you see. Nor did John Brennan this SAO claim credit for killing an American teenager the other day. We’re still pretending that was an accident.

But for the record, John Brennan this SAO can no longer control himself. He’s gonna claim credit not just for Osama bin Laden and Qaddafi–even claim credit for providing the command and control in what was purportedly a kinetic action–but also boast that Obama’s orders resulted in the death of an American citizen.