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CIA Aims to Hide Its SEKRIT Files at Second Circuit Again

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Roughly four years ago, then National Security Advisor James Jones submitted a nearly unprecedented sealed declaration to the Second Circuit in the ACLU’s torture FOIA lawsuit. In it he argued the government needed to keep secret a short reference making it clear the torture program operated under Presidential authorization.

The following May — perhaps not coincidentally just months after America’s first attempt to execute Anwar al-Awlaki by drone strike and as OLC was scrambling to come up with some justification for doing so — the Second Circuit granted the government’s request, deeming the language an intelligence source or method, and giving the request particular weight because the language pertained to intelligence activities unrelated to torture.

On October 1, the Second Circuit heard the ACLU and NYT’s appeal of Colleen McMahon’s decision to dismiss their FOIA on documents relating to the Awlaki killing.

At the hearing, this exchange occurred.

JUDGE NEWMAN: In one of your sealed excerpts from your briefs, I am not going to disclose a secret. There is a statutory reference from Title 50. You’re probably familiar with it. It has to do with whether affidavits are sufficient. It’s Title 50. I think it’s Section 430(f)(2). Does that ring a bell at all?

MS. SWINGLE: I believe so, your Honor.

JUDGE NEWMAN: Is that a correct citation? Because I  couldn’t find it.

MS. SWINGLE: I can check and provide the information for your Honor. Off the top of my head, I can’t say that I know either.

JUDGE NEWMAN: Do they have it there?

MS. SWINGLE: Again, your Honor, that would be information we could provide separately to the Court, to the extent it is something that’s only in the classified part.

JUDGE NEWMAN: Just the statutory reference. Is it the right statute? That’s all I want to know.

Citing this passage, on Thursday the government asked to submit an ex parte filling clarifying both the answer Swingle gave, as well as the answer to an unidentified question raised in the hearing.

During the oral argument on October 1, 2013, a member of the panel asked the government to clarify a citation contained in a classified declaration in the record. See Tr. 73-74. The government’s proposed supplemental classified submission provides the clarification requested by the Court. The proposed supplemental classified submission also provides an additional answer to a question posed during oral argument that could not be adequately and completely answered in a public setting.

Both the NYT and the ACLU objected to this ex parte clarification of the answer (the NYT doesn’t object to such a filing pertaining to the citation), given that the Court didn’t ask for any further clarification.

The Government’s motion does not at any point include information about the nature of the “additional answer” that the Government is providing to the Court or the question to which it is addressed. The Court did not request such a supplemental answer, and there is no basis for a party to unilaterally provide itself with a further opportunity to extend argument – especially in secret – after the conclusion of oral argument.

Now, it’s entirely unclear what the erroneous citation in the classified government brief is. Though 50 USC 431(f) may describe this section of the National Security Act on  to CIA files being FOIAed (though 50 USC 403 includes definitions and roles of CIA).

(f) Whenever any person who has requested agency records under section 552 of title 5, United States Code (Freedom of Information Act), alleges that the Central Intelligence Agency has improperly withheld records because of failure to comply with any provision of this section, judicial review shall be available under the terms set forth in section 552(a)(4)(B) of title 5, United States Code, except that–

(2) the court shall, to the fullest extent practicable, determine issues of fact based on sworn written submissions of the parties;

In which case, surprise surprise, this is about hiding CIA files.

But we already knew that.

And unsurprisingly, the two questions that DOJ’s Sharon Swingle referred back to the classified documents to answer also pertained to the CIA’s SEKRIT role in drone killing Americans.

One — which gets repeated several times — pertains to why DOJ’s prior disclosure that OLC wrote one drone killing memo for DOD forces DOJ to use a No Number No List response because admitting there were other OLC memos would also entail admitting an Other Government Agency carries out those drone killings.

JUDGE NEWMAN: I come back to saying, why can’t you have a redacted Vaughn index, at least on legal reasoning. Because I don’t understand your argument that if we say there are five of them, that somehow tells people more information. What does it tell them? It says five lawyers were working.

MS. SWINGLE: With respect, your Honor, it says that OLC on five separate instances wrote advice memoranda about the use of targeted lethal force. It now tells us, and I do think this is critical, that on four of those instances, it did not involve the Department of Defense. Because we have acknowledged there is a single responsive document as to the Department of Defense. I think that is really significant information. And it is not information that has been made public by the U.S. government.

JUDGE NEWMAN: That’s a secret.

MS. SWINGLE: It is.

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Did Administration Stall Congressional Oversight Just to Beat ACLU in Court?

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In an interview with WSJ last March, White House Counsel Kathryn Ruemmler said that publicly explaining the drone program would be “self-defeating.”

White House Counsel Kathy Ruemmler acknowledged Mr. Obama has developed a broader view of executive power since he was a senator. In explaining the shift, she cited the nature of the office.

“Many issues that he deals with are just on him, where the Congress doesn’t bear the burden in the same way,” she said. “Until one experiences that first hand, it is difficult to appreciate fully how you need flexibility in a lot of circumstances.”

[snip]

Ms. Ruemmler said Mr. Obama tries to publicly explain his use of executive power, but says certain counterterrorism programs like the drone campaign are exceptions. Opening them to public scrutiny would be “self-defeating,” she said.

At the time, I thought she was treating the NYT and ACLU as “the public.” After all, in a debate over releasing the targeted killing memos in the situation room in November 2011, she had warned that releasing the memo might weaken the government’s position in litigation, presumably the FOIA battle with the two entities.

The CIA and other elements of the intelligence community were opposed to any disclosures that could lift the veil of secrecy from a covert program. Others, notably the Justice and State departments, argued that the killing of an American citizen without trial, while justified in rare cases, was so extraordinary it demanded a higher level of public explanation. Among the proposals discussed in the fall: releasing a “white paper” based on the Justice memo, publishing an op-ed article in The New York Times under Holder’s byline, and making no public disclosures at all.

The issue came to a head at a Situation Room meeting in November. At lower-level interagency meetings, Obama officials had already begun moving toward a compromise. David Petraeus, the new CIA director whose agency had been wary of too much disclosure, came out in support of revealing the legal reasoning behind the Awlaki killing so long as the case was not explicitly discussed. Petraeus, according to administration officials, was backed up by James Clapper, the director of national intelligence. (The CIA declined to comment.) The State Department, meanwhile, continued to push for fuller disclosure. One senior Obama official who continued to raise questions about the wisdom of coming out publicly at all was Janet Napolitano, the Homeland Security director. She argued that the calls for transparency had quieted down, as one participant characterized her view, so why poke the hornet’s nest? Another senior official expressing caution about the plan was Kathryn Ruemmler, the White House counsel. She cautioned that the disclosures could weaken the government’s stance in pending litigation. The New York Times has filed a lawsuit against the Obama administration under the Freedom of Information Act seeking the release of the Justice Department legal opinion in the Awlaki case. [my emphasis]

But having now updated my timeline of the over 14 requests members of Congress have made for the targeted killing memos, she seems to lump Congress with the ACLU and NYT.

More troubling, though: it appears the White House stalled its response to Congress for almost nine months simply to gain an advantage in the ACLU FOIA lawsuits.

Here are the relevant dates: Read more →

Is the Government Worried about Revealing Broader Targeted Killing Authority in the Drone FOIAs?

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In addition to yesterday’s letter’s explanation that the government needed an extension in ACLU and NYT’s Anwar al-Awlaki drone FOIA because Obama and/or his closest aides–the highest level of the Executive Branch–were getting involved, there was one other interesting phrase I wanted to note: the way in which it portrays the FOIA.

We write respectfully on behalf of the Department of Justice and the Central Intelligence Agency (collectively, the “Government”) to seek a further extension until May 21, 2012, of the Government’s deadline to file its consolidated motion for summary judgment in these related Freedom of Information Act cases seeking records pertaining to alleged targeted lethal operations directed at U.S. citizens and others affiliated with al Qaeda or other terrorist groups. [my emphasis]

That description doesn’t precisely match the request in any of the three FOIAs, which ask for:

ACLU: the legal authority and factual basis of the targeted killing of [Anwar] al-Awlaki, Abdulrahman [al-Awlaki], and [Samir] Khan.

NYT Savage: all Office of Legal Counsel memorandums analyzing the circumstances under which it would be lawful for United States armed forces or intelligence community assets to target for killing a United States citizen who is deemed to be a terrorist.

NYT Shane: all Office of Legal Counsel opinions or memoranda since 2001 that address the legal status of targeted killings, assassination, or killing people suspected of ties to Al-Qaeda or other terrorist groups by employees or contractors of the United States government.

The government seems squeamish, first of all, about repeating the language used in all three of these requests–targeted killing–opting instead for the phrase “targeted lethal operations.” Note, significantly, that these requests, and especially Shane’s, would not be limited to drone strikes, but also would include hit squads.

The government understandably opts not to use the names specified by ACLU, opting instead to use the generic “US citizen” used by Savage.

Equally understandably, it uses Shane’s language to describe the target: “Al-Qaeda or other terrorist groups.” But I find the adoption of Shane’s formulation significant, because it is much broader than the language from the AUMF:

those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons

And somewhat broader than the language from the NDAA:

person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners

Now, it’s not just Shane’s language that broadens the scope here. None of the three requests mention AQAP, which would at least give the government the ability to focus on questions about how it decided that Awlaki was a legitimate target under the AUMF (on that topic, note this exchange between Robert Chesney and Bruce Ackerman). Both NYT requests ask for information about targeting terrorists generally. Which might get into some interesting targeting decisions both specific to Pakistan (for example, the original decision to target Beitullah Mehsud–and therefore the Pakistani Taliban–was based on a potentially erroneous information about a dirty bomb) and more generally in places like Gaza or Iran or Latin America.

In other words, if the government maintains it has the authority to assassinate terrorists, generally, perhaps tied to the Iraq AUMF or perhaps tied to the Gloves Come Off MON, then this language might make it hard for the government to provide a tidy response to this FOIA.

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Yet More White House Involvement in FOIA Responses

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As I’ve been writing my series on the Administration’s extensive efforts to hide all mention of what I have decided to call the Gloves Come Off Memorandum of Notification, this passage from Daniel Klaidman’s article on the Administration’s equivocations about revealing information on the Anwar al-Awlaki killing has been nagging me.

Another senior official expressing caution about the plan was Kathryn Ruemmler, the White House counsel. She cautioned that the disclosures could weaken the government’s stance in pending litigation. The New York Times has filed a lawsuit against the Obama administration under the Freedom of Information Act seeking the release of the Justice Department legal opinion in the Awlaki case. (The department has declined to provide the documents requested.)

The suggestion here is that White House Counsel Kathryn Ruemmler didn’t want to affirmatively reveal details about Awlaki’s killing because doing so would mean they’d have to reveal details in the ACLU and NYT’s FOIAs for … the same information.

That never really made sense (though I never dwelt too much on it because the Administration’s stance on secrecy rarely makes sense).

But in the last few days, I’ve been wondering if Ruemmler was thinking not about the drone FOIA–about revealing details of one element authorized by the Gloves Come Off MON–but instead thinking about the MON itself. After all, if the government reveals one (torture) after another (drones) of the programs authorized by the Gloves Come Off MON, then it gets harder and harder to claim the whole MON must remain secret. And remember, still to be litigated in the torture FOIA is the MON itself, in addition to what I believe are references to it in the title of the Tenet memo.

And while this may mean nothing, the government has been stalling on its response to the drone FOIA. Back on April 9, the government asked for 10 more days to respond to the FOIA. Judge Colleen McMahon responded by snipping, “Ok, but dont ask for any more time. If government official can give speeches about this matter without creating security problem, any involved agency can.” Yet in spite of her warning, they asked for an additional month-long extension today.

We write respectfully on behalf of the Department of Justice and the Central Intelligence Agency (collectively, the “Government”) to seek a further extension until May 21, 2012, of the Government’s deadline to file its consolidated motion for summary judgment in these related Freedom of Information Act cases seeking records pertaining to alleged targeted lethal operations directed at U.S. citizens and others affiliated with al Qaeda or other terrorist groups. Attorney General Eric H. Holder, Jr. has personally directed us to seek this additional time to allow the Government to finalize its position with regard to the sensitive national security matters presented in this case.

We are mindful of the Court’s admonition in its April 9, 2012, order that the Government not seek an further extensions of its briefing deadline, and we do not take this request lightly. Given the significance of the matters presented in this case, the Government’s position is being deliberated at the highest level of the Executive Branch. It has become clear that further consultation and discussion at that level of the Executive Branch is necessary before the Government can make its submission to the Court.

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White House Counsel Kathy Ruemmler Vows Not to Let the White House Be Defeated by Actual Citizens

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In an article describing how–in the guise of “flexibility”–the White House has continued the seeming relentless grab for unchecked executive power, White House Counsel Kathy Ruemmler offers a terribly cynical explanation for the Administration’s asinine levels of secrecy regarding its drone strikes.

But in an interview, White House Counsel Kathy Ruemmler acknowledged Mr. Obama has developed a broader view of executive power since he was a senator. In explaining the shift, she cited the nature of the office.

“Many issues that he deals with are just on him, where the Congress doesn’t bear the burden in the same way,” she said. “Until one experiences that first hand, it is difficult to appreciate fully how you need flexibility in a lot of circumstances.”

[snip]

Ms. Ruemmler said Mr. Obama tries to publicly explain his use of executive power, but says certain counterterrorism programs like the drone campaign are exceptions. Opening them to public scrutiny would be “self-defeating,” she said.

The WSJ doesn’t explain what she meant when invoking “self-defeat.” But her stance was described in a Daniel Klaidman article on the Administration’s decision, at a meeting in the Situation Room last November, to release more information about the targeted killing of Anwar al-Awlaki.

Another senior official expressing caution about the plan was Kathryn Ruemmler, the White House counsel. She cautioned that the disclosures could weaken the government’s stance in pending litigation. The New York Times has filed a lawsuit against the Obama administration under the Freedom of Information Act seeking the release of the Justice Department legal opinion in the Awlaki case. (The department has declined to provide the documents requested.)

That is, Ruemmler’s not making an argument about the efficacy of the drone strikes themselves; al Qaeda already knows who’s responsible for the arms raining down on their heads.

Rather, Ruemmler doesn’t want to be “defeated” by journalists, civil liberties organizations, and ordinary citizens seeking to at least understand, if not limit, executive power.

Kathy Ruemmler’s not waging her counterterrorism war against al Qaeda when she warns of self-defeat. She’s waging her counterterrorism war against us.

How Good Are DOJ’s Reasons for Burying Its Case against Anwar al-Awlaki?

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Today’s the day Eric Holder explains how his Department decided it was okay to kill a US citizen with no independent legal review, even while he says we should use civilian courts to, uh, give terrorists due process.

Now, at least as of late January, the Administration still planned not to include any real information about its case against Anwar al-Awlaki in Holder’s speech.

As currently written, the speech makes no overt mention of the Awlaki operation, and reveals none of the intelligence the administration relied on in carrying out his killing.

Since much of the evidence that has been used to implicate Awlaki came from Umar Farouk Abdulmutallab, I’m going to return to a question I first raised several weeks ago, why DOJ sat on the information it got from Abdulmutallab implicating Awlaki so long.

In this post, I considered why DOJ published a narrative explicitly describing Anwar al-Awlaki’s role in Umar Farouk Abdulmutallab’s terror plot last month, rather than when it learned the information from Abdulmutallab sometime in 2010. The reason is likely evidentiary. It appears the government never persuaded Abdulmutallab to testify against Awlaki even while he was implicating Awlaki during “plea negotiations,” meaning it’s unclear Abdulmutallab would have repeated the information implicating Awlaki in court. Note, since that post, Abdulmutallab prosecutor Jonathan Tukel confirmed in court that the UndieBomber was offered–but did not accept–a plea agreement.

In this post, I will consider other reasons why DOJ may have buried (and presumably will continue to bury) their case against Awlaki: a desire to hide its signals intelligence, its informants, as well as a desire to win legal cases.

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The Administration’s Many Excuses for Hiding Its Targeted Killing Memo

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Remember this article? It describes the debate within the Administration over how readily and extensively to acknowledge the US killing of Anwar al-Awlaki. As it describes, the debate was at least preliminarily resolved at a Situation Room meeting in November.

The issue came to a head at a Situation Room meeting in November. At lower-level interagency meetings, Obama officials had already begun moving toward a compromise. David Petraeus, the new CIA director whose agency had been wary of too much disclosure, came out in support of revealing the legal reasoning behind the Awlaki killing so long as the case was not explicitly discussed. Petraeus, according to administration officials, was backed up by James Clapper, the director of national intelligence. (The CIA declined to comment.) The State Department, meanwhile, continued to push for fuller disclosure. One senior Obama official who continued to raise questions about the wisdom of coming out publicly at all was Janet Napolitano, the Homeland Security director. She argued that the calls for transparency had quieted down, as one participant characterized her view, so why poke the hornet’s nest? Another senior official expressing caution about the plan was Kathryn Ruemmler, the White House counsel. She cautioned that the disclosures could weaken the government’s stance in pending litigation. The New York Times has filed a lawsuit against the Obama administration under the Freedom of Information Act seeking the release of the Justice Department legal opinion in the Awlaki case. (The department has declined to provide the documents requested.)

It came down to what Denis McDonough, the deputy national-security adviser, cheekily called the “half Monty” versus the “full Monty,” after the British movie about a male striptease act. In the end, the principals settled on the half Monty. As the State Department’s Koh continued to push for the maximum amount of disclosure, McDonough began referring to that position as “the full Harold.”

Note especially the stance of Kathryn Ruemmler, the White House Counsel, who argued that any disclosures on the Awlaki killing “could weaken the government’s stance in pending litigation.”

That is, Ruemmler argued the Administration couldn’t voluntarily provide information about Awlaki’s killing, because it might mean it would have to involuntarily give that information up pursuant to a lawsuit over that information. Huh?

Since November, both the NYT (on December 20, 2011) and the ACLU (yesterday) have sued to get the Awlaki memo under FOIA (the ACLU is also suing to get the underlying evidence, including that relating to Samir Khan and Awlaki’s son Abdulrahman).

So I wanted to compare the different responses different agencies gave the NYT and ACLU around the same time that many top Administration officials were advocating for some kind of transparency even while the White House Counsel was arguing that doing so might lead to transparency. Here’s how the government responded to these FOIAs when (I’ve not noted the ACLU appeals, but all were appealed before the subequent follow-up):

Around June 2010: OLC completes Awlaki memo

June 11, 2010: NYT’s Scott Shane FOIAs DOJ OLC for memos on targeted killings

October 7, 2011: NYT’s Charlie Savage FOIAs OLC for memos on targeting killings

October 19, 2011: ACLU FOIAs Anwar al-Awlaki OLC memo, underlying evidence supporting it, and information relating to Samir Khan and Abdullah al-Awalaki

October 27, 2011: OLC denies both NYT requests under FOIA exemptions (b)(1), (b)(3), and (b)(5), and, in response to Shane’s request, also notes that with regards to other agencies, “neither confirms nor denies the existence of the documents” in the request

October 27, 2011: DOJ Office of Information Policy grants ACLU’s request for expedited processing but determines the request fell within “unusual circumstances” so it could not meet the statutory deadline

October 31, 2011: DOD denies ACLU’s request for expedited processing and also claimed “unusual circumstances”

November 2011, unknown date: Situation Room meeting at which Principals decide to pursue a “half monty” strategy of limited release of information on Awlaki

November 4, 2011: NYT appeals its denial

November 7, 2011: USSOCOM denies ACLU’s request for expedited processing and determined the request fell within “unusual circumstances”

November 14, 2011: OLC denies ACLU’s request under FOIA exemptions (b)(1), (b)(3), and (b)(5)

November 17, 2011: CIA denies ACLU’s FOIA “pursuant to FOIA exemptions (b)(1) and (b)(3)” and claims that the “fact of the existence or nonexistence of requested records is currently and properly classified”

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