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Jack Goldsmith’s Still Active Presidential Dragnet Authorization

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In the follow-up questions for CIA General Counsel nominee Caroline Krass, Ron Wyden asked a series of his signature loaded questions. With it, he pointed to the existence of still-active OLC advice — Jack Goldsmith’s May 6, 2004 memo on Bush’s illegal wiretap program — supporting the conduct of a phone (but not Internet) dragnet based solely on Presidential authorization.

He started by asking “Did any of the redacted portions of the May 2004 OLC opinion address bulk telephony metadata collection?

Krass largely dodged the question — but did say that “it would be appropriate for the May 6, 2004 OLC opinion to be reviewed to determine whether additional portions of the opinion can be declassified.”

In other words, the answer is (it always is when Wyden asks these questions) “yes.”

This is obvious in any case, because Goldsmith discusses shutting down the Internet dragnet program, and spends lots of time discussing locating suspects.

Wyden then asked if the opinion relied on something besides FISA to conduct the dragnet.

[D]id the OLC rely at that time on a statutory basis other than the Foreign Intelligence Surveillance Act for the authority to conduct bulk telephony metadata collection?

Krass dodged by noting the declassification had not happened so she couldn’t answer.

But the 2009 Draft NSA IG Report makes it clear the answer is yes: NSA collected such data, both before and after the 2004 hospital showdown, based solely on Presidential authorization (though on occasion DOJ would send letters to the telecoms to reassure them both the metadata and content collection was legal).

Finally, Wyden asks the kicker: “Has the OLC taken any action to withdraw this opinion?”

Krass makes it clear the memo is still active, but assures us it’s not being used.

OLC generally does not reconsider the status of its prior opinions in the absence of a practical need by an element of the Executive Branch to know whether it can rely upon the advice in connection with its ongoing operations. My understanding is that any continuing NSA collection activities addressed in the May 6, 2004 opinion are being conducted pursuant to authorization by the Foreign Intelligence Surveillance Court, and thus do not rely on the advice of the opinion.

Of course, just yesterday both Dianne Feinstein and Mark Udall made it clear that no one at DOJ is paying close attention to EO 12333 — that is, Presidentially — authorized activities. So how would she know?

One way or another, the Executive Branch still has OLC sanction to conduct a phone dragnet off the books, using only Presidential authorization.

The question is whether, in addition to pointing to this authorization, Wyden is also suggesting that the Executive is currently using it.

(h/t to KH for alerting me that the QFRs had been posted)

With Bradbury’s Appendix M Opinion and 7th Circuit Vance Decision, the Government Can Torture Any of Us

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Three years ago, I showed how Steven Bradbury wrote an OLC memo that approved in advance whatever techniques DOD wanted to put into the sometimes classified Appendix M of the Army Field Manual. At the time, DOJ implied to me that this memo was rescinded along with the rest of Bradbury and John Yoo’s torture memos.

In a really important post yesterday, Jeff Kaye explained that the memo, in fact, remains operative.

LTC Breasseale explained in an email response to my query last year:

Executive Order (EO) 13491 did not withdraw “‘All executive directives, orders, and regulations… from September 11, 2001, to January 20, 2009, concerning detention or the interrogation of detained individuals.’” It revoked all executive directives, orders, and regulations that were inconsistent with EO 13491, as determined by the Attorney General…. [bold emphasis added]

One last point – you seem suggest below that EO 13491 somehow cancelled Steven Bradbury’s legal review of the FM. EO 13491 did not cancel Mr. Bradbury’s legal review of the FM.”

When I then asked the Department of Justice to confirm what Breasseale had said for a story on the Bradbury memo, spokesman Dean Boyd wrote to tell me, “We have no comment for your story.” The fact Boyd did not object to Breasseale’s statement seems to validate the DoD spokesman’s statement.

Breasseale also described DoD’s view that both the current AFM and Appendix M were “not inconsistent with EO 13491,” which “expressly prohibits subjecting any individual in the custody of the U.S. Government to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in the FM. In addition, the Detainee Treatment Act of 2005 expressly prohibits subjecting any individual in the custody of the U.S. Department of Defense to any treatment or technique of interrogation that is not authorized by and listed in the FM. In short, both the President and the Congress have determined that the interrogation techniques listed in the FM are lawful,” Breasseale said.

In his post, Kaye provides a lot of details for why the continued applicability of the memo, authorizing separation, is deeply troubling. I’d add that the particular structure of the memo, which of course allows the insertion of physical torture techniques previously abandoned under cover of classification, adds to the concern.

But there is a pending legal reason why it is important, too.

A few years ago, two contractors, Donald Vance and Nathan Ertel, sued Donald Rumsfeld and others for the torture they were subjected to at Camp Cropper after whistleblowing about Iraqi and US corruption.

The torture was, in large part, the “separation” permitted in Appendix M. As part of their case implicated Rummy personally, they described how, immediately after Congress passed the Detainee Treatment Act, Rummy invented Appendix M as a way to evade the law. Read more →

Leahy and Grassley Promise to Stop Pussy-Footing on OLC Memo Transparency

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As Ryan Reilly demonstrated a few weeks ago, the Office of Legal Counsel refuses to release a list of all the memos they’ve written in the last four years.

In response to [a FOIA list for all OLC opinions written during the Obama Administration] the OLC sent a letter dated Feb. 20 and enclosed five mostly redacted lists from 2009, 2010, 2011, 2012 and the first month-and-a-half of 2013.

What’s more interesting is what wasn’t included: The office stated that it was withholding, in full, 11 lists of classified OLC opinions. Because the length of each list is unknown, it’s unclear how many classified opinions the OLC has issued during the Obama administration.

[snip]

On the unclassified side, the OLC issued 28 legal memos in 2009, 19 in 2010, 12 in 2011, 16 in 2012 and one so far in 2013, for a total of 76 unclassified opinions.

The titles of many OLC opinions were fully redacted in the lists provided, with a Justice Department official writing that the titles were “protected by the deliberative process, attorney-client, and/or attorney work-product privileges.” The names of the lawyers who wrote a number of opinions — including the memo on the president’s use of recess appointments during the Senate’s pro forma sessions — were also blacked out because their disclosure would “constitute a clearly unwarranted invasion of personal privacy,” the official wrote.

In a hearing on Sunshine week today, Patrick Leahy asked DOJ’s Office of Information Policy, Melanie Pustay whether they could get a list of all OLC opinions still in action. Pustay dodged the answer, saying it wasn’t her responsibility. Leahy complained that the Attorney General and President had previously dodged the responsibility themselves. He suggested he might subpoena the list, suggesting Chuck Grassley would be in support, too. Grassley not only endorsed Leahy’s inclusion of him in this subpoena threat, but he said “We’ve been pussy-footing too long on this.”

Yes indeed. Time to stop pussy-footing on understanding what secret interpretations of laws the government has adopted.

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 →

The Most Transparent Administration Ever Hides More OLC Opinions

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Ryan Reilly has liberated a list — such as DOJ would release — of the OLC opinions written under Obama. As he notes, DOJ has refused to even give him a list, much the number, of the classified OLC memos.

What’s more interesting is what wasn’t included: The office stated that it was withholding, in full, 11 lists of classified OLC opinions. Because the length of each list is unknown, it’s unclear how many classified opinions the OLC has issued during the Obama administration.

And it has redacted a ton of the names of unclassified opinions, citing deliberative privilege.

The titles of many OLC opinions were fully redacted in the lists provided, with a Justice Department official writing that the titles were “protected by the deliberative process, attorney-client, and/or attorney work-product privileges.” The names of the lawyers who wrote a number of opinions — including the memo on the president’s use of recess appointments during the Senate’s pro forma sessions — were also blacked out because their disclosure would “constitute a clearly unwarranted invasion of personal privacy,” the official wrote.

Some of the memos mentioned in the list have already been disclosed online by the OLC.

He also notes one memo the existence of which has already been revealed doesn’t appear on the list.

The Justice Department even redacted the title of the opinion on whether the president could unilaterally ignore the debt ceiling limit, though the existence of that memo was disclosed in response to a FOIA request from Talking Points Memo in 2011.

There’s in fact at least one other known OLC opinion that doesn’t show up on the list: a January 8, 2010 memo on whether the Electronics Communication Privacy Act would prevent telecoms from willingly turning over international communications to the government. It was first revealed in a January 2010 DOJ IG Report on Exigent Letters (see this post for background).

On January 8, 2010, the OLC issued its opinion, concluding that the ECPA “would not forbid electronic communications service providers [three lines redacted]281 In short, the OLC agreed with the FBI that under certain circumstances [~2 words redacted] allows the FBI to ask for and obtain these records on a voluntary basis from the providers, without legal process or a qualifying emergency.

In February 2011, McClatchy’s Marisa Taylor received a FOIA denial for the memo, although in denying her request DOJ revealed that this was the section of the law the memo discussed.

(f) Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.

Effectively, DOJ has already made clear that the memo says it can get international communications with no legal process.

But it didn’t release the name of the memo to Reilly.

There are two explanations for that. It has redacted the names of many OLC opinions under deliberative process, which it often argues means that it did not rely on the memo and therefore it did not influence the Executive’s final decision. That’s probably what happened with the debt ceiling memo; we know Obama hasn’t unilaterally raised the debt ceiling, meaning he hasn’t relied on the memo, so even though it has confirmed the memo exists, DOJ is hiding the memo because the Administration didn’t ultimately rely on it.

It may have redacted the title of the ECPA decision for the same reason. In the IG Report, at least, FBI claimed it would not rely on the opinion (no doubt meaning it would get all our communications via some other means).

Alternately, it could be considering this memo, which has been discussed at length, classified. Stranger things have happened with this Administration.

Update: Just checked, and via email at the time, Taylor said this is what DOJ told her:

The cover letter dated Feb. 8, 2011 to McClatchy said the OLC memo was protected by the “deliberative process privilege” under Exception Five. The letter also said the memo is “classified” and therefore “exempt pursuant to Exemption One, 5 USC 552 (b)(1).” The letter goes on to describe the memo as “a January 8, 2010 OLC memorandum analyzing the authority of the FBI under Section 2511 (2)(F) of the Stored Communications Act, 18 USC 2511 (2)(f).”

So they’re at least claiming a b5, and possibly claiming that its very name remains classified, in spite of repeated references to it in unclassified form.

In any case, the refusal to release even the name of memos that we know exist sure boosts the Administration’s claim to be the most transparent ever!

The DOD Targeted Killing Memo Not Addressed to DOD

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I’m still deep in the weeds of Judge Colleen McMahon’s opinion rejecting the NYT and ACLU’s efforts to get the legal basis for killing Anwar al-Awlaki, The Child (as McMahon calls Anwar’s son Abdulrahman), and Samir Khan.

I observed yesterday that McMahon strongly hinted that the DOD OLC memo identified by the government in response to the FOIA may not be the legal authority under which Awlaki was ultimately killed. She seems to suggest the DOD memo may not have been relied on, and there may be some other document that authorizes the government–possibly the CIA–to kill Awlaki.

And from that I wondered whether the June 2010 memo that both Scott Shane and Charlie Savage had tips on, and which Savage described in detail, was the DOD memo, not the memo used.

There’s another detail of all this that was apparent before but which McMahon emphasizes.

The DOD memo was not addressed to the DOD.

DoD also excepts to disclosure of this document [the OLC memo] (though it was apparently not prepared for or directed to the Defense Department),

[snip]

That may be so, but it is sheer speculation that this particular OLC memorandum–addressed to the Attorney General “pertaining to the Department of Defense” and “regarding a potential military operation in a foreign country”–contains the legal analysis that justifies the Executive Branch’s conclusion that it is legal in certain circumstances to target suspected terrorists, including United States citizens, for killing away from a “hot” field of battle. [my emphasis]

She’s right. Here’s how OLC’s John Bies described the document.

OLC identified one OLC opinion pertaining to the Department of Defense marked classified as responsive to the Shane and Savage requests. That OLC opinion contains confidential legal advice to the Attorney General, for his use in interagency deliberations, regarding a potential military operation in a foreign country.

This is interesting for several reasons.

As I said, the memo Savage described was written in June 2010. Six months before, on December 24, 2009, JSOC–that is, DOD–tried to kill Awlaki. They did so the day before (according to the William Webster report and subsequent Intelligence Community testimony) the IC came to believe Awlaki was operational. And while sources subsequently told Dana Priest that Awlaki wasn’t the primary target of that drone strike and only afterwards got added to the JSOC target list (though he was still added six months before the one memo we know about), a cable released by WikiLeaks makes it fairly clear that then Yemeni President Ali Abdullah Saleh believed Awlaki was a direct target of that strike.

Whether the June 2010 memo is the disclosed OLC memo or not, it’s clear it was written after the government had already tried to kill Awlaki, and had done so at a time when he was understood to be a really obnoxious propagandist, but not–as the OLC memo laid out would be required to justify targeting–an operational leader of al Qaeda. And yet it is being protected (this is true whether or not it is the DOD memo, because the CIA documents were exempted for this reason as well) as a predecisional document.

That suggests that JSOC–whose actions were controlled by CentCom, which was then headed by David Petraeus, who would be in charge of CIA when Awlaki was killed by a strike understood to be a CIA one–may have tried to kill Awlaki without having OLC legal guidance in hand authorizing it.

Though note there is an entirely different possibility, which is that the DOD memo is much older, written before the time the US killed Kamal Derwish much as they did Samir Khan and as they claim to have tried to kill Awlaki the first time, by treating him as collateral damage to a strike on someone else.

They may not have had legal guidance, but they had the President’s personal sign-off (remember, too, that the cables discussing the first attempted strike on Awlaki were copied to the White House).

As part of the operations, Obama approved a Dec. 24 strike against a compound where a U.S. citizen, Anwar al-Aulaqi, was thought to be meeting with other regional al-Qaeda leaders. Although he was not the focus of the strike and was not killed, he has since been added to a shortlist of U.S. citizens specifically targeted for killing or capture by the JSOC, military officials said.

And if the revealed memo is the DOD one, when OLC finally wrote legal guidance covering DOD that would have authorized the December 24, 2009 strike on Awlaki (except that the intelligence clearly did not, at that point, support it), they may have addressed that opinion not to DOD, but to the Attorney General.

There are two more interesting details of this.

First, the only document revealed in the FOIA response that claimed a Presidential privilege–revealed in the OIP Vaughn Index and also discussed by the OLC–is a January 18, 2010 set of draft talking points for an Eric Holder briefing of the President. In the days after DOD first tried to kill Awlaki and around the same time, according to Priest’s not entirely credible sources, that Awlaki was added to the JSOC kill list, Eric Holder briefed the President about legal issues relating to killing Awlaki. And (if the June 2010 memo is the disclosed one) six months later OLC wrote Holder a memo authorizing a DOD strike.

Note, too, that OLC was fully forthcoming with the documents it had pertaining to the Awlaki targeting. DOJ’s Office of Information Policy, which is in charge of responding to FOIAs including the Attorney General and Deputy Attorney General, was not.

All of this is really inconclusive. Though unless the DOD memo is a much older one, it seems to indicate JSOC targeted Awlaki on Presidential authority, not OLC guidance.

This is, to be clear, inconclusive, since we don’t know whether the DOD memo really is the memo Savage described.

But it appears more and more like what happened with torture: which is that the spooks were executing the program under Presidential authority–that is, under the Gloves Come Off Memorandum–and only after someone complained internally about the legal sketchiness of it all, did they go about getting an OLC opinion sanctioning the actions that had already happened.

DOJ Attributes Its Inadequate Response to Targeted Killing FOIA on the Deputy and Attorney General’s Staff

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Back in June, I showed several departments in the government had done inadequate searches for documents responsive to the NYT and, especially, ACLU FOIAs on targeted killing.

DOJ did not perform a reasonable search for documents responsive to ACLU’s FOIA

Part of the problem–for all respondents save the OLC (and CIA, which didn’t describe its search)–is that they used search terms that were likely to leave out responsive documents. In the case of DOJ’s Office of Information Policy, that problem was exacerbated because it searched only on the names of Anwar and Abdulrahman al-Awlaki and Samir Khan in conjunction with the word “target;” not only would that search leave out documents responsive to the NYT FOIA, it was pretty much guaranteed to leave out several important parts of the ACLU request, notably those pertaining to the underlying evidence that Anwar al-Awlaki was an imminent threat or operational.

OIP’s inadequate search was proven by the results of OLC’s search. OLC found 50 documents responsive to the ACLU’s FOIA that also included offices under OIP’s area of responsibility; 32 of those fell in the abbreviated time frame OIP included in their search. OIP only found one of those documents on its own, and only found 4 documents, total, on its own. Given that there were surely a bunch of conversations that transpired exclusively within the Attorney General and Deputy Attorney General’s offices that OLC couldn’t find, we can say with certainty that OIP’s searches found just a tiny fraction (probably less than one percent) of responsive documents.

DOJ doesn’t acknowledge scope of missed documents

The ACLU raised those and other problems with the government’s search in July. In last week’s response, the government didn’t admit what the record clearly shows–that their search was inadequate–and offer to do a real search. Rather, it called the ACLU’s points “nitpicks.” It responded to ACLU’s argument that only searching documents in conjunction with “target” would miss a lot of responsive documents (the ACLU didn’t make the point about the “imminent” and “operational” intelligence as strongly as they might have) by effectively saying, “excluding documents was the point,” even while misrepresenting the content of ACLU’s request as pertaining only to the decision to kill Awlaki and not the underlying decision that he represented an imminent threat because he had gone operational.

And it responded to the ACLU’s demonstration that the search clearly missed responsive documents because OLC had found 10 times more documents from OIP’s area of responsibility than OIP had with a citation to a case that found the government hadn’t conducted an adequate search because it relied on a name search, which is what OIP effectively used. The one line of the decision they cite pertains to the government failing to find one document, not 49 (nowhere in the government response do they admit to how many documents they failed to find).

The ACLU points out that OIP did not uncover some of the documents located by OLC. “Of course, the failure to turn up [a] document does not alone render the search inadequate; there is no requirement that an agency produce all responsive documents.” Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 892 n.7 (D.C. Cir. 1995). Again, the focus is on whether the search was reasonable.

Moreover, this case’s holding would support the ACLU argument that it’s not enough to do a name search if it clearly leaves out the intent of the request, as OIP’s searches do.

OIP didn’t search FOR responsive documents, it worked to exclude documents

As I said, DOJ tried to explain their use of names plus “target” as a justifiable means of search because the Office of the Attorney General and Office of the Deputy Attorney General had so many files they needed to sort somehow.

OIP used fewer search terms than OLC in part because it covers offices with a broader range of interests.

[snip]

Moreover, OIP’s limitation on the search of names to documents also including the word “target” is reasonable in light of the language of the ACLU’s request, which did not seek all documents concerning Aulaqi, but rather information on the factual and legal basis for the alleged individual targeting decisions.

But that doesn’t explain why “target” was the proper way of excluding bunches of non-responsive documents. Read more →

The NSC’s May 2011 “Draft” Legal Analysis and the Continued Stonewalling of Ron Wyden

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I’m ultimately going to get around to arguing that the reason the government response to the ACLU targeted killing FOIA is so funky is because (mind you, this is a wildarsed guess) the CIA didn’t rely on the OLC memo authorizing Anwar al-Awlaki’s killing.

But for the moment I want to point out a far tinier but nevertheless related point.

On March 30 of this year, just before the government started scrambling for extensions on this FOIA, AUSA Sarah Normand called ACLU Attorney Eric Ruzicka to ask if ACLU would “limit the first prong of its FOIA requests” to DOJ and DOD. The first prong asked for,

All records created after September 11, 2001, pertaining to the legal basis in domestic, foreign and international law upon which U.S. citizens can be subjected to targeted killings, whether using unmanned aerial vehicles (“UAVs” or “drones”) or by other means.

Normand asked Ruzicka to agree to exclude any draft legal analyses, emails, and internal communication. Ruzicka agreed to waive draft analyses, but not emails and internal communications.

Most of the internal communications from the DOD and DOJ that would have been excluded which are described in the Vaughn indices aren’t all that interesting–almost all pertain to discussions leading up to the Situation Room debate over how transparent to be on these killings or to Jeh Johnson and Eric Holder’s speeches on targeted killing.

But there is a series of three email chains I find particularly interesting.

On May 18-19, 2011 attorneys at OLC and the National Security Council deliberated discussing “draft legal analysis regarding the application of domestic and international law to the use of lethal force in a foreign country against U.S. citizens.” Then, on May 19, lawyers at OLC, DOJ’s Civil and National Security Divisions, and at the Offices of the Associate and Deputy Attorney General discussed the same thing. Finally, on May 20, the DOJ lawyers and the National Security Council lawyers continued the discussion, this time including DOJ’s Office of Legislative Affairs.

This says, at a minimum, two things. First, the White House and DOJ were discussing what they called “draft” legal analysis as late as May 2011, 11 months after OLC finalized an opinion supposedly authorizing Anwar al-Awlaki’s killing but 4 months before the US killed him. And, that the discussion of that “draft” legal analysis pertained, in part, to some issue raised by Congress.

That, by itself, is interesting. Why was this legal analysis still considered draft analysis in May 2011? (And for what it’s worth, they were having similar deliberations in November 2011, after they had already killed Awlaki.)

But then there’s the likelihood that this discussion relates to persistent requests from Ron Wyden to get basic questions about targeted killing answered.

In a letter to Eric Holder on February 8, 2012  (so before DOJ tried to get ACLU to waive precisely this information) complaining about continued stonewalling of his questions about targeted killing, Wyden made it clear he called Holder in April 2011 to get these questions answered. Read more →

Columnist Endorses War Crimes Against al Qaeda Because They Murdered a Journalist

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I had never heard of Alex Beam before today, but his column in today’s Boston Globe crossed my email (h/t dakine01) and I am still fuming at his cavalier endorsement of war crimes. Perhaps even more infuriating, though, is that Beam’s endorsement of war crimes is an aside tossed in while Beam is making an argument with which I otherwise agree.

Beam’s central point, as he suggests in his title for the column,”A double standard on war crimes?”, is that while John Yoo has been widely vilified for his role in authoring the OLC memos that authorized torture, David Barron and  Martin Lederman haven’t been attacked nearly as aggressively for authoring the OLC memos under which Anwar al-Awlaki, an American citizen, was killed in Yemen.  My only quibble with that point is that Beam’s roster for the torture memos should be expanded to also include at least Jay Bybee and Steven Bradbury.  His argument:

So, which is the greater crime against the Constitution that all three men swore to uphold? Waterboarding Al Qaeda suspects or killing US citizens? Yoo has been vilified from Marin County to Munich for his legal opinion. If the Obama lawyers are facing job loss or tenure revocation, I haven’t heard about it. This is not a subject they care to discuss.

Beam relies on Mary Ellen O’Connell of Notre Dame to further his argument:

“I do think the two cases call for a different level of criticism,’’ she says. “Isn’t killing worse than torture? Even if the arguments to support torture are weaker arguments, it seems to me that the US should err on the side of the strictest compliance of the law when it comes to taking somebody’s life.’’

Where is the outrage, I asked? It won’t come from the right, she pointed out, “because the policies that Obama is pursuing are basically the same policies that Bush pursued.’’ So where are the principled men and women of the left? “Some of the people who criticized Yoo and his colleagues are in the administration,’’ she answered. “Marty Lederman was a critic of John Yoo, and now he’s writing the memos. So he’s not going to criticize himself.’’

I agree that Lederman and Barron should be subjected to the same level of criticism as Yoo (and Bybee and Bradbury), although I’m less inclined to make a distinction between the crimes of murder and torture.  I find both equally heinous and never justified under any conditions.  As O’Connell points out, the torture arguments likely were much farther outside the law than the extrajudicial execution arguments, but I still can’t join her in making killing artificially a higher crime than torturing.

But here is the jaw-dropping problem with Beam’s column.  Just a bit over halfway through the column, we get this paragraph:

Two points. First, I’m all for waterboarding Al Qaeda bad guys, and the disappearance of al-Awlaki and his ilk by whatever means necessary bothers me not a whit. Read more →

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.