Court To Government On Attempt To Bury Drone Memo: You'd Have A Case If You'd Bother To Shut Your Mouth Once In Awhile
from the government-loosens-lips,-sinks-own-ships dept
We've discussed the contents of the DOJ's memo detailing its justifications for the extrajudicial killing of American citizens (being mainly that the Authorization for Use of Military Force, which was rushed into existence three days after the 9/11 attacks, says it can). Now, let's take a look at the ruling that finally pushed this long-withheld document into public view.
The court's decision recounts the long history of the embattled document, including the many attempts made by government agencies to bury the memo. But it appears that most of the reasons why the court decided to clear the (somewhat redacted) memo for release were provided by the government itself, which mooted many of its exemption claims with various statements made to the public.
In considering waiver of the legal analysis in the OLC-DOD Memorandum, we note initially the numerous statements of senior Government officials discussing the lawfulness of targeted killing of suspected terrorists, which the District Court characterized as "an extensive public relations campaign to convince the public that [the Administration's] conclusions [about the lawfulness of the killing of al-Awlaki] are correct."What follows this paragraph is two pages of quotes by government officials, including Eric Holder, making public statements about how fully legal and justified the strike on al-Awlaki was. As the court notes, these assertions give a pretty good indication about the contents of the drone memo.
Even if these statements assuring the public of the lawfulness of targeted killings are not themselves sufficiently detailed to establish waiver of the secrecy of the legal analysis in the OLC-DOD Memorandum, they establish the context in which the most revealing document, disclosed after the District Court's decision, should be evaluated.The court also explains how the close relationship between a DOJ white paper on drone strikes and the still-unseen OLC-DOD memo further weakens its claimed FOIA exemptions.
Even though the DOJ White Paper does not discuss 18 U.S.C. § 956(a), which the OLC-DOD Memorandum considers, the substantial overlap in the legal analyses in the two documents fully establishes that the Government may no longer validly claim that the legal analysis in the Memorandum is a secret...From there, the court takes a swipe at the paranoiac assertions of the Office of Legal Counsel, assertions that seem to infer its clientele is largely comprised of idiots who fail to understand the public records process.
After senior Government officials have assured the public that targeted killings are “lawful” and that OLC advice “establishes the legal boundaries within which we can operate,” and the Government makes public a detailed analysis of nearly all the legal reasoning contained in the OLC-DOD Memorandum, waiver of secrecy and privilege as to the legal analysis in the Memorandum has occurred.
In resisting disclosure of the OLC-DOD Memorandum, the Government contends that making public the legal reasoning in the document will inhibit agencies throughout the Government from seeking OLC’s legal advice. The argument proves too much. If this contention were upheld, waiver of privileges protecting legal advice could never occur…The government also claimed certain other information needed to be withheld, presumably because of the standard terrorism fears. But once again, the information it claims can't safely be made public was made public by government officials time and time again.
Agencies seeking OLC legal advice are surely sophisticated enough to know that in these circumstances attorney/client and deliberative process privileges can be waived and the advice publicly disclosed. We need not fear that OLC will lack for clients.
One is the identity of the country in which al-Awlaki was killed. However, numerous statements by senior Government officials identify that country as Yemen.Again, this is followed by more than a full page of statements by government officials, including the President himself, talking up the great help the Yemeni government was during the hunt for al-Awlaki. The second concern, again undercut by government officials' statements, was the identity of the agency that worked with the Defense Department to eliminate the target.
The other fact within the legal reasoning portion of the OLC-DOD Memorandum that the Government contends merits secrecy is the identity of the agency, in addition to DOD, that had an operational role in the drone strike that killed al-Awlaki. Both facts were deleted from the April 21 public opinion, but have been restored in this opinion. Apparently not disputing that this fact has been common knowledge for some time, the Government asserts the importance of concealing any official recognition of the agency’s identity. The argument comes too late.Undercutting the government's own arguments here are people like (then) CIA director Leon Panetta and Mike Rogers, head of the House Select Committee on Intelligence. James Clapper himself also confirmed this fact during a televised hearing.
As for the common "sources and methods" claims, the court doesn't think much of these either.
We recognize that in some circumstances the very fact that legal analysis was given concerning a planned operation would risk disclosure of the likelihood of that operation, but that is not the situation here where drone strikes and targeted killings have been publicly acknowledged at the highest levels of the Government...
With the redactions and public disclosures discussed above, it is no longer either “logical” or “plausible” to maintain that disclosure of the legal analysis in the OLC-DOD Memorandum risks disclosing any aspect of “military plans, intelligence activities, sources and methods, and foreign relations.”The government desperately wanted to keep this memo a secret, but couldn't help repeatedly discussing aspects of it publicly. If these officials believed its extrajudicial killings were on firm legal ground, then they could only be helped by releasing the rationale behind them. And if other officials were so concerned about "sources and methods," why couldn't they restrain themselves from congratulating the Yemeni government and bragging about the CIA's role in drone strikes? Maybe this is the transparency so often touted by the administration, albeit one comprised mostly of inadvertent revelations and self-serving statements.
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Filed Under: classification, doj, drones, eric holder, foia, freedom of information, secrecy
Reader Comments
The First Word
“No. Because that's not how we do things in the United States. We have a Constitution that reads in part:
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
(Emphasis mine)
We decided to do things this way a few hundred years ago because we saw what happened when things weren't done this way. We've stuck with that even when it was hard, even when it was inconvenient, even when it was maddening, even when we knew it let the guilty go free, even when some of us died for it, because "sticking with it" is what makes this country the United States.
And there is no way we should abandon it now just because a few inconsequential punks -- who pose zero existential threat to the country -- are issuing threats and/or occasionally bombing something and/or shooting someone. In fact, we should especially not abandon it now, because that would mean that they've won, that they've beaten us into submission and gotten us to give up the foundation the country's built on.
I don't want to see American citizens die at the hands of terrorists. I don't want to die that way myself or see my family and friends die that way. But if that is the price to uphold and defend the Constitution (and you should recognize that phrase) then so be it. We owe it to the memory of the many who came before us and did so; we owe it to the many who will come after us. And we owe it to ourselves: we would be poor stewards of the Constitution and the country if we gave it up so easily.
So what should we do with such people? If they are subject to our jurisdiction and we believe them to be guilty of crimes, then arrest them. Charge them. Try them in public in a timely manner. Produce the evidence against them. Provide them with a robust defense. Prove, in a court of law at trial, in front of the whole world, that they did what they're alleged to have done. That's how it's supposed to work.
Taking them out with a drone strike authorized by a secret court is the coward's way out. It does violence to the Constitution and dishonors the memories of those who fought and died for it.
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Hopefully the next time congress authorizes the use of force, they'll think twice about giving the president full power to determine the nations, organizations, or persons the resolution applies to.
(I'm under the delusion that presidents won't still be using this same AUMF resolution 20 years from now to attack the grandchild franchises of Al-Qaeda).
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So the next progression...
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Wouldn't you? And more to the point, wouldn't you prefer it that way if you were living nearby? Given the choice between possibly becoming collateral damage myself and having it not be a possibility in the first place, I know which one I'd vote for...
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No. Because that's not how we do things in the United States. We have a Constitution that reads in part:
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
(Emphasis mine)
We decided to do things this way a few hundred years ago because we saw what happened when things weren't done this way. We've stuck with that even when it was hard, even when it was inconvenient, even when it was maddening, even when we knew it let the guilty go free, even when some of us died for it, because "sticking with it" is what makes this country the United States.
And there is no way we should abandon it now just because a few inconsequential punks -- who pose zero existential threat to the country -- are issuing threats and/or occasionally bombing something and/or shooting someone. In fact, we should especially not abandon it now, because that would mean that they've won, that they've beaten us into submission and gotten us to give up the foundation the country's built on.
I don't want to see American citizens die at the hands of terrorists. I don't want to die that way myself or see my family and friends die that way. But if that is the price to uphold and defend the Constitution (and you should recognize that phrase) then so be it. We owe it to the memory of the many who came before us and did so; we owe it to the many who will come after us. And we owe it to ourselves: we would be poor stewards of the Constitution and the country if we gave it up so easily.
So what should we do with such people? If they are subject to our jurisdiction and we believe them to be guilty of crimes, then arrest them. Charge them. Try them in public in a timely manner. Produce the evidence against them. Provide them with a robust defense. Prove, in a court of law at trial, in front of the whole world, that they did what they're alleged to have done. That's how it's supposed to work.
Taking them out with a drone strike authorized by a secret court is the coward's way out. It does violence to the Constitution and dishonors the memories of those who fought and died for it.
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Drones, on the other hand, are much smaller, are cheap to operate by comparison, offer very little in the way of risk in terms of soldier's lives. Those in charge don't have to worry about losing much and therefore are much more likely to engage in questionable operations with questionable gains based on questionable reasoning behind it.
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While assassination can have it's merits depending on the method, the big controversy over the drone strikes is that they do have misery, collateral damage, and death associated with them. Missiles typically don't have target sizes smaller than a room or vehicle. They also aren't very good at going "Whoops, none of these people are the ones I'm here to kill. Sorry for the inconvenience folks, wrong house." and turning around to go back to base for better targeting information with no one dead.
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Until then, it's all speculatory bullshit. The "we must do anything to hurt the terrorists!" excuse is all fine and dandy until it hurts people who aren't terrorists, which we've seen it do time and time again.
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Of course. But all that ignores the problems with the drone strikes. There are too many to go into them all here, so I'll just focus on two (which are related):
First, the "reduced harm" argument only works if we use drone strikes in situations where otherwise we would have sent in troops or conducted a serious bombing campaign. That's not the way they're actually being used, though.
Second, the drones are so cheap and easy to deploy, and have so little visibility outside of the military itself, that they are being used in situations where it's far from clear that action is needed at all. We strike targets that we merely think might be related to terrorists of some ill-defined sort. Often, we're wrong. In the past, we would have given a LOT more thought to military action before doing it. That's all out the window now. Drones let us be a "shoot first, ask questions later" power.
In other words, they are one of the things that are helping to turn us into exactly the sort of nation that we used to despise.
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I assume you're referring to taking down Bin Laden? That was not a "big show of force." A "big show of force" was what we did in Iraq and Afghanistan; it was even sold in almost exactly those terms. ("Shock and awe," a "surge," etc.)
What we did with Bin Laden was exactly what we should have done at the very beginning. It's what I was saying we needed to do since September 2001: have the CIA find Osama Bin Laden and send a Special Forces team to assassinate or capture him, without wasting tons of lives, time and money on pointless warfare.
...OK, what we did was almost right, aside from that last part. :(
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You're absolutely right, the idea of 'Well they're terrorists, so they don't deserve to be treated the same and have the same legal rights as others' is the coward's way out, and shows a massive amount of disrespect for those that have fought and died in order to protect the rights of everyone, even, or especially, the 'guilty', because in so doing the rights of the innocent are protected as well.
'Justice' for most, but not all, for peace but not war, Is. Not. Justice.
I only wish more people realized this, that no matter how scary the boogieman at the time may seem to be, the threat they pose is nothing compared to the idea of throwing the rights and liberties of the people out the window at the first sign of trouble. That path, is the path of the coward, and not something someone who truly respects and admires what the US used to stand for and believe should ever suggest or accept.
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Why? Are you seriously saying more people are being killed, and more harm and misery is being inflicted, by drone strikes than what happened when we had actual boots-on-the-ground combat operations going on? If so, you really need to take a second look at the numbers.
[citation needed]
This is nothing more than the same sort of "oooo! This is new and unfamiliar and therefore it must be scary and dangerous" moral panic that Techdirt usually (and rightly!) spends its time taking apart. I'm a pacifist, but also a realist, and as distasteful as it is to have to admit it, there are some people in the world who simply need killing. That's the ugly, unfortunate reality of the world in which we live. So the real moral question is, how to go about killing them in the least horrific and destructive manner possible?
The answer, obviously, is assassination, and like in so many other areas (which Techdirt frequently comments positively on,) modern technology provides a more efficient, less wasteful way to go about it. As cool as newer and better methods of distributing entertainment content is, this is something that actually matters. Forget making record labels and movie studios obsolete; we're beginning to develop technology that can make armies obsolete, and all the blood and horror that they bring along with them! Why are so many people around here talking like that's a bad thing?
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If your answer to that question is 'We should drop freakin' bombs on them, inevitably killing civilians and non-combatants(you know, that thing that they do that makes them the bad guys?)', given your goal of 'least horrific and destructive manner possible', you might want to think that one through a bit more.
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Never attribute to malice what can be explained by simple stupidity. That's about you, voters.
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No, I'm not saying that. I'm saying that's the wrong comparison. We are using drone strikes now in situations where we would not have sent troops in at all -- so the casualties caused by them do not represent a reduction in harm.
"[citation needed"
Really? This stuff has been all over the news for a few years now. But, if you need, I'll spend some time tonight digging them up.
"This is nothing more than the same sort of "oooo!"
I disagree. the problem with drone strikes is not that they are new and unfamiliar. It's that they're being used in a way that is objectionable.
On a personal note, I was amused that you said you're a pacifist -- because I am not a pacifist. We both seem to be falling on the opposite side of this issue than most would have expected. :)
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Is this the same news media that... you know, I don't even need to finish that question, do I?
My overarching view is basically the model of civilization. It's founded on reciprocity and mutual trust. You behave in a civilized manner towards me, I behave in a civilized manner towards you, and even when we don't agree on everything, we can still work together so you and me and the rest of our society in general all benefit from it. I walk around without carrying a big weapon and suspiciously looking everywhere to see who might be watching me, I leave myself potentially wide open to attack, because I can trust that those around me extend me and each other that same level of trust, even though they don't know me and I don't know them. Mutual trust and reciprocity.
But when somebody willfully chooses to step outside that fundamental framework, they have placed themselves outside of it. Disregarding someone else's fundamental rights necessarily involves forfeiture of your own. It's offensive, the very height of hypocrisy in fact, to run roughshod over other people and then cynically appeal to people's sense of fair play in order to avoid justice, and people have an innate understanding of this. It's why so many are outraged at the lack of legal consequences in the banking world after 2008, just to give one example
The consequence of disregarding someone else's fundamental right to life if a simple, logical extrapolation of that principle.
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Due process is not just "a process that you do"; it has a real purpose, and that purpose is to be as sure as possible that someone is guilty before you punish them. But there's a very good reason that exception is in there: when someone is actively making war on you and putting the public in danger, the highest duty is to put a stop to it as quickly as possible.
A doctor might cauterize a severe injury even though it causes horrible, irreparable damage to the tissue, because it can prevent something even worse from happening: having the patient bleed out. This is the same basic principle, and it's been known for thousands of years, and formalized at least as far back as Sun Tzu, the guy who literally wrote the book on war. His basic, overarching doctrine was surprisingly simple to articulate: you do everything necessary to end the conflict quickly, no matter how brutal the necessary actions may be, because it is still much less horrible and destructive than a long, drawn-out war.
So yes, by all means, let's hold to what the Constitution says, all of it, not simply cherry-picking parts that we find helpful. It was written by guys with actual experience in issues like this.
And it's always worth remembering that they weren't the only ones. Keep in mind Abraham Lincoln, who said "the Constitution is not a suicide pact."
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Who is putting words in the mouth of whom?
Or is this a [reading comprehension needed] problem? The overall tone suggests an ideological problem, but whatever.
As if anything like the total amount of murder and destruction was actually necessary, or accomplished much of anything. We send actual troops on low information and lies, and you expect us you believe that something as push-button as drone strikes doesn't have a lower threshold for use?
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'Assassination' and 'Drone strikes' are worlds apart from each other(The first kills the target and no one else. The second kills the target and no-one else if you're lucky), yet your post above seems to treat them as one and the same.
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"[...] except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger [...]"
That's there because we don't expect soldiers in the field fighting a war to stop shooting and put enemy soldiers on trial. (And the clause includes the militia because of course when this document was written, the militia were expected to supplement regular troops.) But -- at the moment -- the United States is not at war. With anyone. If we need to be at war with someone, then Congress has the power to make it so. But thus far they've declined to do so, so NONE of our armed forces are "in actual service in time of War".
As to "public danger", there really is none except that endlessly hyped by the propaganda machine. As I'm fond of pointing out, Americans are as likely to be killed by their own furniture as by terrorism. Surely such a trivial, inconsequential "threat" fails to qualify as a "public danger", doubly so when far more Americans -- orders of magnitude more -- are killed in other ways every year.
The United States managed to survive capturing Al Capone and putting him on trial. It managed to survive to capturing Goering, Borman, Hess and the rest and putting them on trial. It managed to survive capturing Charles Manson and putting him on trial. It would, I think, manage to survive capturing J. Random Alleged Terrorist and putting him or her on trial. So I hardly think that remaining within the bounds of Constitutionally-permissible behavior veers anywhere near national "suicide".
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As I read it the public danger exception applies only to the land or naval forces or in the militia, not more broadly. I don't read it to mean OR danger to the public, just like I don't read it to mean OR a(ny) danger in public.
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I'm not talking about sympathizers or family (not that either are acceptable), I'm talking about their neighbors & the neighbors' kids, who didn't know their neighbors were terrorists.
Murdering innocents are what the terrorists do, not civilized nations. At least, they didn't used to.
Innocents are NEVER "acceptable losses." Our Founding Fathers preferred criminals go free/ live, rather than innocents be unjustly punished/ killed.
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http://mic.com/articles/21070/predator-drone-double-taps-highlight-possible-war-crimes-by -obama
One of the many reasons Obama and Bush have been charged with war crimes. For intentionally targeting non combatants.
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EXCELLENT summation, glad someone first-worded it...
i would only add that we calmly accept that 20-30 THOUSAND of our precious amerikan nekkid apes die in automobile crashes every year, year in, year out (not to mention ANY number of causes of large number of deaths), but we barely bat an eyelash at *that* incredible (and largely preventable) waste of human lives; but let a mere few hundreds or thousands get killed ONCE IN A BLUE MOON, and chicken little squawks about how the sky is falling...
we got a hundred ways to die which are more numerous, more wasteful, and more preventable than -on average- a couple deaths a year from 'terrorism', but 'we' (meaning our puppetmasters of the propaganda) gin up hysteria over something that is not likely to happen to 99.9999999999% of us...
we are -what is it?- 8-10 times MORE LIKELY to be killed by a donut-eater than a terrorist, so why aren't we declaring War On Kops ? ? ? (they've already declared war on US...)
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In other words, "In cases arising in the land or naval forces, or in the militia, when in actual service in time of War or public danger, an exception to the requirement of an indictment by an Grand Jury to hold a person to answer for a capital or otherwise infamous crime shall exist."
Interpreting that exception to apply to all clauses would imply, for example, that in military cases, double jeopardy is allowed. Does precedent support that? Do you think it should be allowed? I would certainly hope not, on both counts.
Applying the usual rules that hold for use of semicolons, the single sentence - and thus the amendment - could be split into multiple without changing the meaning, something like so:
There is one part of that conversion which I think might be slightly questionable: because the "be a witness against himself" point is separated from the "deprived of life, liberty or property" point only by a comma and not by a semicolon, it could reasonably be argued that the latter - like the former - applies only to a person "be[ing] compelled in any criminal case".
Taking that interpretation over the one I've used in the conversion seems like it would require more of a stretch from the text to the meaning, however, and in any case I think there's long-established precedent to the effect that "depriv[ation] of life, liberty or property" is prohibited even in cases where no criminal activity is alleged.
(Hmm. I wonder what precedent says about "due process of law" for a police officer shooting of an uninvolved person?)
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Houston, We Have A Problem!
Secondly, (and this is a serious question) when did our government become our worst enemy? Why are they trying so hard to destroy the Constitution, the country, and the rule of law? Do they really think that we will stand by and allow them to create a police state? We already fought one revolutionary war with England. Do we now have to fight another with Washington? What's really going on?
.
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