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Scott Shane Defends the Commander-in-Chief’s Language

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NYT’s excellent new ombud, Margaret Sullivan, returns to a perennial ombud issue, how the Grey Lady refers to Executive Branch actions and abuses. She includes a long quote from Scott Shane that reveals a great deal about his reporting, and ultimately convinces me we should be calling drone killing assassination.

Adherence to “Targeted Killing” Even While Admitting It’s Not

Let’s start with Shane’s defense of the term “targeted killing” (a term I sometimes use but should not). Sadly, Sullivan cuts off the direct quote from Scott Shane at its most important part, but in the following, the first paragraph here is a direct quote from Shane, the second Sullivan’s report of his comment.

This leaves “targeted killing,” which I think is far from a euphemism. It denotes exactly what’s happening: American drone operators aim at people on the ground and fire missiles at them. I think it’s a pretty good term for what’s happening, if a bit clinical.

Mr. Shane added that he had only one serious qualm about the term. That, he said, was expressed by an administration official: “It’s not the targeted killings I object to — it’s the untargeted killings.” The official “was talking about so-called ‘signature strikes’ that target suspected militants based on their appearance, location, weapons and so on, not their identities, which are unknown; and also about mistaken strikes that kill civilians.”

Shane defends using “targeted killing,” even while admitting that a great deal of drone killing is not targeted. Unless Shane knows a great deal more about individual strikes than he lets on — and therefore knows which drone strikes are targeted at known identities and which are targeted at crowds of unknown military aged males — then he is party to an apparently deliberate strategy on the part of the Administration to spin its killing program as much more orderly and legally justified than it actually is. We saw this operate as recently as yesterday, when John Brennan responded to a question from Jan Schakowsky about signature strikes by telling her to look back at speeches that address only “targeted killing.”

SCHAKOWSKY: Let me ask you this, is there any way that you can define and distinguish between targeted strikes and signature strikes by the — by drones?

BRENNAN: I would refer to the comments that were made by a number of U.S. government officials publicly in speeches, including when I was at the White House. I’m not going to engage in any type of discussion on that here to the Congress, ma’am.

As I said, I’m as guilty of using this term without sufficient awareness as Shane. But doing so consciously really is participating in a propaganda effort the Administration is engaged in.

Executive Order 12333’s Invisible Ink

Then there’s Shane’s refusal to use “assassination” based on Administration claims about Executive Order 12333, which ostensibly prohibits the practice.

“Assassination” is banned by executive order, but for decades that has been interpreted by successive administrations as prohibiting the killing of political figures, not suspected terrorists. Read more →

Pulling Weeds for Think Tank Employees: My Response to Wittes’ Response

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Ben Wittes, an employee of the Brookings think tank, had this to say about my post showing how disingenuous his buddy Jonathan Fredman’s defense of his statements at Gitmo in 2002 is.

Responding to her in detail is difficult, because her account is so weedy;

His entire piece is worth reading, because in key ways it reinforces my argument (though Wittes, the think tank employee, appears not to understand that). His refutation consists of:

  • 189 words effectively saying, “sure I wanted to debate interrogation [sic] history that is a decade old two days ago, but now that you’re presenting facts about my buddy I find it boring.”
  • 444 words admitting that Fredman did not specifically disavow the quote that Wittes claims he did, and shifting the emphasis slightly on what he says Fredman’s memo was disavowing.
  • 1238 words that at times seems to miss the entire headline of my post–which is that Fredman’s actions prove his memo is false–but ultimately seems to accept all the evidence that it is false, though he finds that uninteresting.

Wittes claims Fredman tried to refute his perception comment, not his dead detainee comment

Wittes deems it “bizarre” that I would expect a lawyer to deny a statement explicitly if he were really denying it, especially if he were going to spend 6 pages purportedly denying it. That, in spite of that fact that he admits that Carl Levin and other Senators at the hearing to which Fredman responded referenced a number of other things Fredman allegedly said at the meeting.

Yes, Levin and other senators also quoted a few other alleged Fredman comments from the minutes.

As I noted in my post, several of the things Fredman allegedly said at the Gitmo meeting — claiming the CIA decided which torture techniques to use for most techniques and discussing the use of extreme weather in torture — would have been far more legally troubling in light of Gul Rahman’s subsequent death, by freezing to death after CIA used unapproved water dousing on him, than the “if a detainee dies” comment.

And the “perception … detainee dies” wasn’t even the first quote from Fredman that Levin mentioned at the hearing (which Ben obscures with an ellipsis). First, he raised Fredman’s alleged support for exploiting phobias, including insects which — in 2008 we didn’t know but we now do — appears in the list of techniques approved by DOJ. He also raised Fredman’s description of how waterboarding worked before the “detainee dies” comment.

Claire McCaskill (and Hillary Clinton) focused on Fredman’s alleged comment about hiding detainees from ICRC. McCaskill  also raised Fredman’s alleged comment that videotaping interrogations would be ugly (the latter of which, considering someone in Fredman’s immediate vicinity altered the record of a Congressional briefing just as CIA decided to destroy their tapes, might have been particularly damning given the then ongoing John Durham investigation into that destruction). So in fact, the focus on Fredman at the hearing wasn’t at all exclusively on that detainee dies comment, nor was it the most legally dangerous one for him.

But Ben insists — and he may know this from talking to Fredman personally — that Fredman wrote the memo specifically in response to these comments from Levin, and therefore we shouldn’t expect him to specify that directly:

And Mr. Fredman presented the following disturbing perspective [on] our legal obligations under our anti-torture laws, saying, quote, “It is basically subject to perception. If the detainee dies, you’re doing it wrong.” “If the detainee dies, you’re doing it wrong.” How on earth did we get to the point where a senior U.S. Government lawyer would say that whether or not an interrogation technique is torture is, quote, “subject to perception,” and that, if, quote, “the detainee dies, you’re doing it wrong”?

Look, however, at how Wittes summarizes Fredman’s response:

In that memo, Fredman described the comments he provided at the Guantanamo meeting. And he described them in specific response to these alleged quotations. Far from saying that torture is “subject to perception,” as he described his remarks, he “emphasized that all interrogation practices and legal guidance must not be based on anyone’s subjective perception; rather, they must be based upon definitive and binding legal analysis from the Department of Justice.” And he then went on to flatly deny the statements attributed to him: “I did not say the obscene things that were falsely attributed to me at the Senate hearing. . . . The so-called minutes misstate the substance, content, and meaning of my remarks.” His denial could hardly be clearer. [my emphasis]

Note, first of all, that Wittes uses the plural, “quotations,” in this passage. That’s interesting, because at least some of the journalists Ben wants to shut up shut up shut up used the “if the detainee dies, you’re doing it wrong” quotation without the “subject to perception” bit. The two sentences appear together in the notes and I agree they can be treated as one, but the truly shocking quote — the one Ben wants everyone to stop using — is the “if the detainee dies” one, which is utterly consistent with everything Fredman says in his disingenuous memo, which says repeatedly that detainee deaths are bad things.

More interesting though is that Wittes lays out very clearly what he says Fredman was refuting: that he said torture is subject to perception. And his response to that — Ben’s evidence the memo should be accepted as refutation of that comment — is Fredman’s claim that all torture must be based on definitive and binding legal analysis from DOJ.

Wittes seems to accept that Fredman did not base torture on definitive and binding legal analysis from DOJ

Here’s where Ben’s professed difficulty with weeds seems to have utterly sunk his efforts to defend his buddy. Because if it can be proved that Fredman did not, in his actions, ensure that torture be limited by definitive and binding legal analysis from DOJ, then it is clear that his memo is false, a lie, issued to refute some very damning evidence made worse by subsequent events, but not in any way an honest reflection of what Fredman believed or how he acted.

For any think tank employees or others who have difficulty with weeds, here’s what the evidence I laid out showed:

  • The torturers started using sleep deprivation, with the approval of Fredman’s office, months before DOJ got involved.
  • When the torturers exceeded Fredman’s office’s original limits on sleep deprivation, his office just retroactively authorized what they had already done, apparently without any input from DOJ.
  • When Fredman translated DOJ’s guidance for the Abu Zubaydah torturers, he used not the definitive and binding legal analysis from DOJ, but instead a fax John Yoo had sent, one he purportedly wrote without the input or approval of Jay Bybee.
  • After a detainee died after being subjected to a torture technique that had not been approved by DOJ, CIA’s lawyers — including Fredman’s office — tried to snooker OLC into accepting that another document crafted with Yoo outside official channels constituted “definitive and binding legal analysis.” That effort failed.

There are at least four pieces of evidence in the public record that Fredman authorized torture in ways outside of DOJ’s definitive and binding legal analysis. Now, Ben doesn’t refute a single one of these points. Indeed, he actually uses the Yoo fax in his response (he doesn’t, however, mention the retroactive effort to snooker OLC, perhaps because his blogmate was involved in refusing to be snookered).

From which I take it that Ben accepts that Fredman’s office, and Fredman personally, repeatedly found ways around relying on the definitive and binding legal analysis DOJ developed. Read more →

Ben Wittes Relies on Obviously False Document to Claim Other Document False

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For those coming from Wittes’ so-called response to my post, here’s my response to that response, which shows that Wittes effectively cedes the point that Fredman’s memo is dishonest. 

In a post subtitled “Just Shut Up About Jonathan Fredman” (really!) Ben Wittes argues we should not hold former CIA Counterterrorism Center lawyer Jonathan Fredman responsible for paraphrases attributed to him in the Senate Armed Services Committee report on torture because Fredman wrote a memo claiming he didn’t say those things and because he’s a career official, not a political appointee.

Fredman is a personal friend of mine, but this is getting ridiculous. It’s one thing to hold political appointees responsible for the things they did, said, and wrote. It’s quite another thing to hold career officials accountable for things they didn’t say, do, or write.

Now, in point of fact, Fredman’s memo does not deny saying “if the detainee dies, you’re doing it wrong.” He says,

Those notes, which were misleadingly labeled by their author as “minutes,” to the best of my knowledge were never circulated for comment and contain several serious misstatements of fact. Those misstatements were then compounded by the false allegation at the hearing that the so-called minutes contained quotations from me; the first page of those so-called minutes themselves expressly states that “all questions and comments have been paraphrased” — and, I might add, paraphrased sloppily and poorly.

And,

I expressly warned that should a detainee die as a result of a violation, the responsible parties could be sentenced to capital punishment.

And,

I noted that if a detainee dies in custody, there will and should be a full investigation of the facts and circumstances leading to the death.

And,

I again emphasized that all interrogation practices and legal guidance must not be based upon anyone’s subjective perception; rather, they must be based upon definitive and binding legal analysis from the Department of Justice;

And, after specifically asserting the paraphrase about the Istanbul conference is inaccurate, Fredman concludes,

I did not say the obscene things that were falsely attributed to me at the Senate hearing, nor did I make the absurd comment about Turkey that the author similarly misrepresented. The so-called minutes misstate the substance, content, and meaning of my remarks; I am pleased to address the actions that I did undertake, and the statements that I did make.

Now perhaps Fredman includes “if the detainee dies, you’re doing it wrong,” in his reference to “obscene things,” but he doesn’t specifically say so.

Funny, isn’t it? That a lawyer would write a 6-page memo purportedly denying he said something really outrageous, but never get around to actually denying the statement in question, even while specifically denying another one?

Yet Wittes tells us to shut up shut up shut up about his friend, based on that non-denial denial.

Now, in a twitter exchange about Fredman, Wittes assured me he read both the SASC report and the OPR report on torture. So either he’s a very poor reader, or he doesn’t want to talk about how disingenuous it has since become clear Fredman’s memo was.

The rest of the memo is, by itself, proof that Fredman misrepresents his own actions relating to torture.

Read more →

Fresh Allegations of Torture in Bahrain

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On a day when President Obama is at least making the admirable move of visiting the West Bank and speaking favorably for Palestinian statehood after his visit to Israel (to lend legitimacy to Netanyahu’s continued desire to attack Iran?), it is easy to overlook a report in the Wall Street Journal in which we see fresh allegations of torture continuing in Bahrain.

Recall that in the aftermath of Bahrain’s brutal crackdown on its citizens trying to join in the Arab Spring movement in early 2011, one of Bahrain’s “reforms” was to hire notorious police thug John Timoney to run its police force and to “implement” the findings of an independent commission that had been brought in to investigate torture and other abuses by the government. Just a few months after taking charge, Timoney took the repressive step of banning all protests while jailing a number of prominent protest figures. A couple of days later, there were mysterious bomb blasts that might well have been the work of Timoney’s known practice of infiltration since they were not directed at government targets as one might expect if they were the work of a developing resistance movement. US actions in response to abuses on the part of Bahrain’s government has been especially lame since the US is so attached to its base for the Fifth Flleet in Bahrain and “security’ for the flow of oil from the region.

The new allegations of torture include torture of suspects arrested for those November 2012 bombings:

Five detainees arrested in Bahrain last year said they were tortured in custody, according to family members, lawyers and an ex-prisoner, accusations that a member of an official inquiry panel said should be formally investigated.

Bahrain security forces used methods including beatings, electrocution and suspension on ropes to force confessions from the detainees, who were accused of involvement in bombings in the capital, Manama, the people alleged to The Wall Street Journal. The Bahrain government said the torture allegations were false.

The claims suggest the Bahrain government has failed to implement some of the changes recommended by the 2011 Bahrain Independent Commission of Inquiry, according to Sir Nigel Rodley, a human-rights lawyer who took part in the commission.

/snip/

One detainee, Talib Ali Mohammed, 37 years old, was arrested in November on suspicion of involvement in coordinated bombings in Manama that month that killed two expatriate workers.

Over 16 days of interrogation in the Central Intelligence Department building in the Adliya district of Manama, Mr. Talib was beaten repeatedly and tortured, according to his wife, Fatima Ebrahim, and his lawyer, Sayed Hashin Saleh, who have seen Mr. Talib in prison and spoken with him by phone. Mr. Talib eventually confessed to charges including possessing explosive material and forming a group with the intention of harming others.

/snip/

Ahmed Abdullah, a 24-year-old gymnasium worker, was arrested in November and accused by authorities of involvement in the bombings. According to his brother Ibrahim, who has visited him in prison and spoken to him by phone, Mr. Abdullah was blindfolded for nearly 20 days in the CID building in Adliya, where he was beaten repeatedly, and forced to stand for long periods until he signed a confession.

There is now new leadership at the Department of State. Will we see a stronger condemnation of torture by the Bahrain government and support for Rodley’s call for a new commission of inquiry over the new torture accusations, or will we get the same weak platitudes we saw from Foggy Bottom last year?

Bahrain continues to profess its innocence. In one of the most craven, idiotic defenses by a government ever, the Journal carried this denial:

Minister of State for Information Affairs Samira Ibrahim Bin Rajab dismissed the allegations. “This is not our culture, not our attitude or our behavior,” she said. “We are very civilized, educated people.”

Civilized, educated people never torture. They rely on enhance interrogation techniques that are perfectly legal. Just ask John Yoo. He’ll confirm that in an instant and have a follow-up memo for you tomorrow that retroactively authorizes any actions you need approved.

Eric Holder Invokes Article II in Suggesting Congress Can’t Legislate Lethal Force

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As I lay out in this Salon post, Eric Holder told Chuck Grassley that Article II of the Constitution would make probably any attempt to limit the use of lethal force in the US unconstitutional.

 Chuck Grassley, R-Iowa, asked Holder whether Congress could prohibit the targeted killing of Americans in America. “Do you believe Congress can pass a law prohibiting POTUS to use lethal force on U.S. soil?” he bluntly asked, explaining he meant the prohibition would apply only where a person did not present an imminent threat.

“I’m not sure that such a bill would be constitutional,” the attorney general responded. “It might run contrary to the Article II powers that the president has.” Article II is the section of the Constitution that lays out the president’s authority as commander in chief of the military.

Holder went on to embrace a view of the AUMF (as he has before) that ignores Congress’ refusal in 2001 to authorize the use of military force in the US.

Holder embraced a view of the 2001 Authorization to Use Military Force that completely ignores the legislative history of the law that authorized the war against al-Qaida. “We didn’t exempt the homeland in the AUMF did we?” Lindsey Graham, R-S.C., asked the attorney general, in a question setting up his support for presidential use of lethal force in the U.S. “No,” Holder replied, “I don’t think we did.”

The attorney general may believe Congress authorized the use of lethal force in the U.S. with the AUMF, but former Senate Majority Leader Tom Daschle has made it clear that Congress refused to authorize military force in the U.S. “Literally minutes before the Senate cast its vote,” Daschle revealed in a 2005 Op-Ed that described the legislative process behind the AUMF, “the [George Bush] administration sought to add the words ‘in the United States’” into the authorization. Such a change, Daschle continued, “would have given the president broad authority to exercise expansive powers not just overseas — where we all understood he wanted authority to act — but right here in the United States, potentially against American citizens.”

Back in 2001, Congress very specifically refused to authorize lethal force against Americans.

It has long been clear that the Administration believed — as John Yoo did — that nothing can limit their authority in the war against terror. But these were rather more blunt admission than normal.

Yes, the Government Does Believe the Military Can Use Military Force in the US

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I made an error.

In this post, I suggested that debates about whether the 2001 Authorization to Use Military Force constituted an exception to the Posse Comitatus Act ignore that for 7 years — from the time John Yoo wrote a memo on whether the Fourth Amendment inhibited military deployment in the US  in 2001 until the time Steven Bradbury “withdrew” the memo in 2008 — the official position of the Executive Branch was that PCA had been suspended under the AUMF.

Armando Llorens and Adam Serwer have debated — specifically in the context of whether the President could kill Americans within the US – whether PCA applies in this war. And while they’re staging an interesting argument (I think both are engaging the AUMF fallacy and therefore not discussing how a President would most likely kill Americans in the US), what the Yoo memo shows, at the least, is that the folks running the Executive Branch believed, for 7 years, the PCA did not apply.

To be clear, this memo was withdrawn in October 2008 (though not without some pressure from Congress). While the PCA aspect of the opinion is one of the less controversial aspects in the memo, as far as we know it has not been replaced by similar language in another memo. So while this shows that PCA was, for all intents and purposes, suspended for 7 years (as witnessed by NSA’s wiretapping of Americans), it doesn’t mean PCA remains suspended.

My error was in suggesting Bradbury “withdrew” the memo.

He did not.

Instead, Bradbury directed that “caution should be exercised” before relying on it.

The purpose of this memorandum is to advise that caution should be exercised before relying in any respect on the Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General, and Robert J. Delahunty, Special Counsel, Office of Legal Counsel, Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States (Oct. 23, 2001) (“10/23/01 Memorandum”) as a precedent of the Office of Legal Counsel, and that certain propositions stated in the 10/23/01 Memorandum, as described below, should not be treated as authoritative for any purpose.

As noted, he said that five propositions in the Yoo memo should not be treated as authoritative for any purpose.

We also judge it necessary to point out that the 10/23/01 Memorandum states several specific propositions that are either incorrect or highly questionable. The memorandum’s treatment of the following propositions is not satisfactory and should not be treated as authoritative for any purpose:

But then, in a series of bullet points laying out the problems with those five propositions, Bradbury doesn’t always dismiss the outcomes Yoo’s analysis supported, but in several cases accepts the outcomes but simply provides a different basis for supporting them. Read more →

Zoe Lofgren Didn’t Vote to Let Presidents Wage Unlimited War, But John Yoo Did

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As a series of Presidents continue to claim the September 18, 2001 Authorization to Use Military Force authorizes fairly unlimited power on an unlimited battlefield, I keep coming back to this Tom Daschle op-ed, in which he described how Congress refused to extend the AUMF to US soil.

Just before the Senate acted on this compromise resolution, the White House sought one last change. Literally minutes before the Senate cast its vote, the administration sought to add the words “in the United States and” after “appropriate force” in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas — where we all understood he wanted authority to act — but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.

The op-ed is, as far as I know, the only public statement describing how Congress narrowed a breathtakingly broad claim for military force.

Until Wednesday’s drone hearing, that is.

In response to a comment from John Bellinger that it was appropriate for the Executive Branch to refuse to share its OLC memos with Congress, Zoe Lofgren suggested (1:36 and following) the President was exceeding the terms of the AUMF (she comes very close to saying the President broke the law, but stops herself). She refers to — as Daschle did — negotiations leading up to the AUMF that actually did get passed.

Lofgren: If you take a look at the Authorization to Use Military Force, which all of us voted for — those of us who were here (there was only one no vote in the House) — it says “the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks.” Now, are we to believe that everyone on this list was responsible for the 9/11 attack? I mean, is that the rationale?

Bellinger: No, your exactly right. All four of us agree with you that the 2001 AUMF, which was only about 60 words long — I was involved in drafting it literally almost on the back of an envelope while the World Trade Center was still smoldering — now is very long in the tooth. The good government solution, while extremely difficult and controversial, would be for Congress to work together with the Executive Branch to revise that AUMF. It’s completely unclear about what it covers, who it covers, where it covers.

Lofgren: If I may, I think it’s not as unclear as you suggest. There are — this was a limitation, and there were big arguments about it as you’re, I’m sure, aware, there was a prior draft that was  much more expansive. There was a prior draft that was much more expansive and it was narrowed so we could get bipartisan consensus and it was narrowed for an important reason. And I guess I — yes, the Executive has the ability to keep his legal advice confidential, that’s a long-standing principle, but since it looks like — at least, questions are raised — as to whether the executive is complying with the law, then if he feels he is, then I feel it would be a very positive thing for the Administration to share that legal advice with this committee and with the American people. Read more →

John Yoo and the Obama White Paper and Killing Americans in America and Yemen

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Just for shits and giggles, compare this paragraph:

In the normal domestic law enforcement context, the use of deadly force is considered a “seizure” under the Fourth Amendment. The Supreme Court has examined the constitutionality of the use of deadly force under an objective “reasonableness” standard. See Tennessee v. Garner, 471 U.S. 1, 7, 11 (1985). The question whether a particular use of deadly force is “reasonable” requires an assessment of “the totality of the circumstances” that balances ‘”the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.'” Id. at 8-9 (quoting United States v. Place, 462 U.S. 696, 703 (1983)). Because “[t]he intrusiveness of a seizure by means of deadly force is unmatched,” id. at 9, the governmental interests in using such force must be powerful. Deadly force, however, may be justified if the danger to the officer’s or an innocent third party’s life or safety is sufficiently great. See Memorandum to Files, from Robert Delahunty, Special Counsel, Office of Legal Counsel, Re: Use of Deadly Force Against Civil Aircraft Threatening to Attack 1996 Summer Olympic Games (Aug. 19, 1996).

With this one:

The Fourth Amendment “reasonableness” test is situation-dependent. Cf Scott, 550 U.S. at 382 (“Garner did not establish a magical on/off switch that triggers rigid preconditions whenever an officer’s actions constitute ‘deadly force.”‘). What would constitute a reasonable use of lethal force for purposes of domestic law enforcement operations differs substantially from what would be reasonable in the situation and circumstances discussed in this white paper. But at least in circumstances where the targeted person is an operational leader of an enemy force and an informed, high-level government official has determined that he poses an imminent threat of violent attack against the United States, and those conducting the operation would carry out the operation only if capture were infeasible, the use of lethal force would not violate the Fourth Amendment. Under such circumstances, the intrusion on any Fourth Amendment interests would be outweighed by the “importance of the governmental interests [that] justify the intrusion,” Garner, 471 U.S. at 8-the interests in protecting the lives of Americans.

The first paragraph comes from this October 23, 2001 Office of Legal Counsel Memo authored by John Yoo. The second comes from the Obama Administration’s November 8, 2011 White Paper on targeted killing.

The Yoo paragraph was a bit of an odd diversion in a memo otherwise laying the groundwork to allow DOD to conduct searches in the US; as far as I know, it was primarily used to enable the National Security Agency (which, after all, is part of DOD) to conduct warrantless searches of US person communications collected within the US. But along the way, Yoo threw in deadly force — within the US — because he had already suspended the Fourth Amendment in the memo and so why not?

The White Paper paragraph would be a relatively uncontroversial paragraph among other more controversial ones authorizing the President to kill an American with no due process. Except that it collapses the distinction between laws that apply to the military and laws that apply to the CIA.

And then, perhaps unsurprisingly, the Fourth Amendment discussion in paragraph 21 (the first in section IIB) only applies to those targeting the US, not members of an AUMF enemy per se.

Similarly, assuming that a lethal operation targeting a U.S. citizen abroad who is planning attacks against the United States would result in a “seizure” under the Fourth Amendment, such an operation would not violate that Amendment in the circumstances posited here.

But wait! The passage goes on to cite two domestic law enforcement cases, Tennessee v. Garner and Scott v. Harris. That’s a problem, because Article II authorities are going to be a covert operation, and therefore the CIA, which is prohibited from serving as a law enforcement agency.

Nevertheless, these respective paragraphs — insofar as they apply domestic law enforcement precedents to purported real threats — are somewhat reasonable expansions of the authority, confirmed in Tennessee v. Garner, to kill an American in hot pursuit, within the context of more controversial memos.

There are two reasons to look further than that, however.

The Posse Comitatus Question

First, there’s Yoo’s analysis, which was treated as law for 7 years, that in the War on Terror, the Posse Comitatus Act did not apply.

Both the express language of the PCA and its history show clearly that it was intended to prevent the use of the military for domestic law enforcement purposes. It does not address the deployment of troops for domestic military operations against potential attacks on the United States. Both the Justice Department and the Defense Department have accordingly interpreted the PCA not to bar military deployments that pursue a military or foreign policy function.

[snip]

Because using military force to combat terrorist attacks would be for the purpose of protecting the nation’s security, rather than executing the laws, domestic deployment in the current situation would not violate the PCA.

Armando Llorens and Adam Serwer have debated — specifically in the context of whether the President could kill Americans within the US — whether PCA applies in this war. And while they’re staging an interesting argument (I think both are engaging the AUMF fallacy and therefore not discussing how a President would most likely kill Americans in the US), what the Yoo memo shows, at the least, is that the folks running the Executive Branch believed, for 7 years, the PCA did not apply.

To be clear, this memo was withdrawn in October 2008 (though not without some pressure from Congress). While the PCA aspect of the opinion is one of the less controversial aspects in the memo, as far as we know it has not been replaced by similar language in another memo. So while this shows that PCA was, for all intents and purposes, suspended for 7 years (as witnessed by NSA’s wiretapping of Americans), it doesn’t mean PCA remains suspended.

Update: Read this post. Bradbury didn’t withdraw the memo. He urged people to use caution before relying on Yoo’s earlier memo. And while he specifically takes apart Yoo’s language on PCA, he leaves intact the military purpose doctrine, including for the use of military force.

The Lackawanna Six and the First Dead American

The earlier Yoo memo is also interesting to review in light of the debate the Bush Administration had in 2002 about whether they ought to use it to declare the Lackawanna Six enemy combatants.

Some of the advisers to President George W. Bush, including Vice President Dick Cheney, argued that a president had the power to use the military on domestic soil to sweep up the terrorism suspects, who came to be known as the Lackawanna Six, and declare them enemy combatants.

Mr. Bush ultimately decided against the proposal to use military force.

Dick Cheney espoused doing so because, DOJ worried, the government didn’t have a strong enough case against the Six.

Former officials said the 2002 debate arose partly from Justice Department concerns that there might not be enough evidence to arrest and successfully prosecute the suspects in Lackawanna. Mr. Cheney, the officials said, had argued that the administration would need a lower threshold of evidence to declare them enemy combatants and keep them in military custody.

Call me crazy, but there’s reason to believe DOJ believed any case against Anwar al-Awlaki had similar weaknesses.

The Lackawanna Six, under pressure of being named enemy combatants, all plead guilty to material support; all have or are reaching the end of their sentence.

Which is where this comes full circle.

Because just months after Dick Cheney contemplated sending the military to capture 5 guys outside of Buffalo (the sixth was in Bahrain getting married), the US killed the first American in a drone strike in Yemen, Kamal Derwish, purportedly the recruiter for the Six.

The same impetus that first contemplated using military force in the US ended in the first drone death of an American. And now, in discussion of the memo authorizing the death of another American (or three) in Yemen, we’re back to discussing whether the President can authorize targeted killings within the US.

I’m not saying the white paper is as outrageous as the Yoo memo. In some ways it is more defensible. In others–specifically in its application to the CIA–it is more of a stretch.

But, as this relatively reasonable paragraph from less reasonable memos makes clear, we really haven’t moved that far beyond where Dick Cheney was in 2002.

Obama Administration Not Meeting Transparency Standard Set by Bush Lawyer Steven Bradbury

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Glenn Greenwald has a great post on the Administration’s refusal to say whether it can kill Americans inside the US. But he misstates how extreme Obama’s refusal to share Office of Legal Counsel memos is. That’s because he equates an Administration sharing OLC memos with the intelligence committee and sharing them with the public.

Critically, the documents that are being concealed by the Obama administration are not operational plans or sensitive secrets. They are legal documents that, like the leaked white paper, simply purport to set forth the president’s legal powers of execution and assassination. As Democratic lawyers relentlessly pointed out when the Bush administration also concealed legal memos authorizing presidential powers, keeping such documents secret is literally tantamount to maintaining “secret law”. These are legal principles governing what the president can and cannot do – purported law – and US citizens are being barred from knowing what those legal claims are.

[snip]

You know who once claimed to understand the grave dangers from maintaining secret law? Barack Obama. On 16 April 2009, it was reported that Obama would announce whether he would declassify and release the Bush-era OLC memos that authorized torture. On that date, I wrote: “today is the most significant test yet determining the sincerity of Barack Obama’s commitment to restore the Constitution, transparency and the rule of law.” When it was announced that Obama would release those memos over the vehement objections of the CIA, I lavished him with praise for that, writing that “the significance of Obama’s decision to release those memos – and the political courage it took – shouldn’t be minimized”. The same lofty reasoning Obama invoked to release those Bush torture memos clearly applies to his own assassination memos, yet his vaunted belief in transparency when it comes to “secret law” obviously applies only to George Bush and not himself.

But it is not the case that Bush always sat on OLC memos. In fact, as Dianne Feinstein noted in John Brennan’s confirmation hearing, at least by the last year of the Bush Administration, Democrats had gotten Steven Bradbury to start turning over even the most sensitive OLC memos to Congress.

I wanted to talk about, just for a moment, the provision of documents. Senator Wyden and others have had much to do about this. But our job is to provide oversight to try to see that the CIA and intelligence communities operate legally.

In order to do that, it is really necessary to understand what the legal — the official legal interpretation is. So the Office of Legal Counsel opinions becomes very important.

We began during the Bush administration with Mr. Bradbury to ask for OLC opinions. Up til last night, when the president called the vice chairman, Senator Wyden and myself and said that they were providing the OLC opinions, we have not been able to get them. It makes our job to interpret what is legal or not legal much more difficult if we do not have those opinions.

Which made it possible to — as DiFi did in an exchange with Michael Mukasey on April 10, 2008 — force the (Bush) Administration to publicly disavow some of the more extreme positions endorsed by John Yoo.  Read more →

Did Logistics Guy John Brennan Set Up the Torture Taping System? Did He Buy the Torture Coffin?

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This was one of the most interesting little-noticed exchanges at John Brennan’s confirmation hearing last week.

CHAMBLISS: In 2002 what was your knowledge of interrogation videotapes about Abu Zubaydah, and did you seek any information about an Office of General Counsel review of them in 2002?

BRENNAN: I have — I don’t have a recollection of that, Senator.

CHAMBLISS: Of the tapes, or that request?

BRENNAN: At the time, in 2002, I do not know what my involvement or knowledge was at the time of the tapes. I believe that they — I was aware of the Abu Zubaydah debriefings and interrogation sessions being taped.

John Brennan not only knew of the torture tapes but … well, he doesn’t remember whether he asked about the OGC review of torture tapes or not.

As a threshold matter, remember that Brennan was in a logistical role at the time the torture sessions were first taped. He had nothing to do with the development of the techniques, he says. But thus far, I think no one has asked him if he procured any of a number of items the torturers used.

For example, did John Brennan help set up the torture taping system? That would explain how he knew they were taping the sessions.

But that’s not all. Remember, the Office of General Counsel reviewed the torture tapes — originally as a preliminary to them being destroyed in 2002 — to make sure what the torturers did matched what DOJ’s Office of Legal Counsel approved them to do.

We know they shouldn’t have. We know the tapes should have shown the torturers exceeding the guidelines of waterboarding. We know the tapes should have shown the torture preceding the date when OLC actually approved it.

And we know the tapes should have shown the torturers putting Abu Zubaydah in a box as part of a mock burial, the only torture technique John Yoo ever labeled illegal.

In short, we know that the tapes should have shown that the torturers exceeded even the limited restrictions OLC put on them.

Instead, by the time OGC reviewed the torture tapes, 15 of the tapes were already partially or entirely destroyed. Some were taped over, some were broken, some showed the taping system had been shut off. 21 hours of Abu Zubaydah’s torture somehow did not remain on the tapes at the time of the OGC review in November to December 2002. As it happened, when the Inspector General later reviewed the tapes and compared what John McPherson, the OGC lawyer who had reviewed the tapes, actually recorded, he discovered that McPherson had found it unremarkable that the torturers were deviating from the guidelines approved by OLC.

But it appears, given Saxby’s comment, that Brennan was not so much interested in what the IG found, but in what McPherson found. Brennan appears to have been interested in what remained on the tapes after they had been partially destroyed, the first time, after the presumably most incriminating aspects of Abu Zubaydah’s torture had been destroyed.

Here’s another question. Did logistics guy John Brennan procure the waterboard the use of which exceeded the guidelines laid out by OLC? More importantly, did logistics guy John Brennan procure the box used to conduct an even-John-Yoo-said-it-was-illegal mock burial? And if so, did John Brennan know that the torturers considered the box a coffin?

Did John Brennan know, because he had done the logistics for the torture program, that the torturers had violated the only law Yoo ever put into place?

It would sure explain why the Obama Administration worked so hard to cover up the torture program.