Enough Secret Law: Newly Released DOJ Drone Killing Justification Memo... Points To Another Secret Drone Memo

from the sniffing-out-the-truth dept

Wed, Jun 25th 2014 2:10pm — Mike Masnick

We already reported on the finally released DOJ legal drone memo that supposedly "justifies" the extrajudicial killing of Americans via drones. However, as we noted, much of it was actually redacted, leaving many of the details and reasons totally secret. Jameel Jaffer, the ACLU lawyer who helped get this heavily redacted memo released in the first place has written up an analysis which notes how ridiculous the redactions are and the fact that the memo actually points to another secret memo that reveals more details:

In one instance, the long sought-after drone memo references another legal memo that concluded that al-Awlaki's American citizenship did not "preclude the contemplated lethal action." From this reference, we can deduce that the OLC authored a separate drone memo assessing – and dispensing with – the proposition that an American citizen had the right not to be deprived of his life without some form of judicial process. But that earlier memo, treated by the executive branch as binding law, is still secret.

This kind of thing is all too common, but tremendously problematic. For folks actually trying to understand what the law actually is the fact that people have to play this bizarre game of 20 questions, seeking secret laws and interpretations, only to get breadcrumbs pointing to other secret interpretations of the law is just ridiculous. We've complained in the past about the dangers of a secret law, but just the fact that the American public needs to play this stupid game, and the DOJ appears to have broken up the secret interpretations of the law into different sections, making it that much harder to track it all down, raises serious questions about what sort of government we have, and how Americans can be expected to respect, let alone obey, the law when we can't even be told what it is.

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Filed Under: doj, drones, extrajudicial killing, foia, olc, secret interpretations, secret laws
Companies: aclu

36 Comments

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rw (profile), 25 Jun 2014 @ 10:23am

Ignorance of the law is no excuse. Of course I thought that only applied to those you could, you know, look up.
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Rabbit80, 25 Jun 2014 @ 2:19pm

Re:
Damn you, I was just about to post the same comment!
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AricTheRed (profile), 25 Jun 2014 @ 2:20pm

Constitutionally Affirmed Rights?
That's right! Step right up! Who can keep their eye on the lucky lady!

You sir? You look sharp, put your cash on the table and keep your eye on the lucky lady!

It's called three card monte now instead of that other olde outdated concept of "Constitutionally Affirmed Rights"

Don't worry the deck aint stacked against you Citizen.
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Anonymous Coward, 25 Jun 2014 @ 2:21pm

Can we hold the US Government in contempt of Public?
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Anonymous Coward, 25 Jun 2014 @ 2:22pm

Disobey
Not all laws deserve to be respected or obeyed. The U.S. govt no longer functions as intended. Checks and balances are non existent. The "representation" is a mockery of what the people want and exists as a pacifier and distraction mechanism. While the government prepares to manage and apparently kill it's people legally, so should the people prepare to defend against it. This isn't something we're going to be able to vote ourselves out of. The writing on the wall is crystal clear, years from now, people will wonder what the hell were we thinking to allow this to happen so easily. All I can say is ribbit.
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Anonymous Coward, 25 Jun 2014 @ 2:25pm

Secret Laws are illegal
Simple. None of it is legal. There is nothing that can be written down in any memo that justifies knowingly assassinating an american citizen without due process. They were discussing it for years, instead of actually going through and getting the court decision. It doesn't matter if they could have gotten it, the fact that they did it without covering their ass legally, is the reason they won't show it. It is evidence in their subversion of due process and the american right to face your accusers.
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Anonymous Coward, 25 Jun 2014 @ 2:27pm

It's Secret Memos all the way down!
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Charles (profile), 25 Jun 2014 @ 2:55pm

Re: Secret Laws are illegal
I wholeheartedly agree.

What are we going to do when a US citizen is killed by drone on US soil, by that I mean the States? Isn't that the next step in regression?
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Padpaw (profile), 25 Jun 2014 @ 3:01pm

People should be in open revolt over this. Of course 99.99999% won't care until it happens to them or their family.
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Padpaw (profile), 25 Jun 2014 @ 3:03pm

Re: Re: Secret Laws are illegal
There is a growing suspicion Michael Hastings was killed by a drone strike. Since the eyewitness accounts contradict the official story. along with the evidence the car's engine was blown out of the car as if the car had been blown up.

Good chance Americans are already being executed via drone strikes on US soil.
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Shmerl, 25 Jun 2014 @ 3:20pm

Watchbirds are coming?
http://www.gutenberg.org/ebooks/29579
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Uriel-238 (profile), 25 Jun 2014 @ 4:43pm

Circular secred memos?
This reminds me of the formation of wiki facts, in which Wikipedia cites journalistic material which cites Wikipedia.

I suspect it would be possible for policies such as this to nucleate circular references as well, where Memorandum A refers to B as its justification, which refers to Memo C which refers to Memo D which refers to Memo E... which then refers to Memo A.

And that way no-one ever has to claim responsibility for, say committing murder, by drone attack.

People should be in open revolt over this. Of course 99.99999% won't care until it happens to them or their family.

In past revolutions, you only need about 5% involved in the revolt and the majority either sympathetic or neutral to the revolt. Considering the rate at which we are militarizing the police (who still don't account for civilian deaths in unjustified raids), that shouldn't take too long.
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Uriel-238 (profile), 25 Jun 2014 @ 4:46pm

Re: Circular secred memos?
Maybe I was trying to say "circular sacred memos". I think both words come from the same origin.

"Es lebe unser heiliges Deutschland!"
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Rich Kulawiec, 25 Jun 2014 @ 5:21pm

The business of the American nation...
...should be carried out in full view of the American people.

That's especially true when the business of the nation happens to be those things that are the most serious -- and certainly killing people is at the top of that list.

When the state carries out such actions, it must do so with the knowledge and consent of the citizenry. And the citizenry cannot reasonably be said to have given that consent if they don't know what's being done, why it's being done, how it's being done, and how all of that squares with the Constitution and the applicable laws.

If government officials truly believe that what they are doing is both Constitutional and legal, then they should be willing to submit it -- in toto -- to public scrutiny. And they should do so before such actions are taken, since they are of course irreversible.

The fact that they've tried very hard to hide these memos strongly indicates two things. First: they have little confidence that their rationale would withstand review. Second: they don't comprehend what it means to be a public servant.
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Anonymous Coward, 25 Jun 2014 @ 5:27pm

Sooo, ignorance of the secret law is no excuse?
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Anonymous Coward, 25 Jun 2014 @ 6:25pm

If it looks like murder, it is murder.
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That One Guy (profile), 25 Jun 2014 @ 7:11pm

Re: The business of the American nation...
Second: they don't comprehend what it means to be a public servant.

Likely because most of them don't believe they are public servants. As their actions have made clear, large chunks of the government quite clearly believe that the public exists to serve them, not the other way around.

They may think of it, or phrase it as 'benevolent' rule/leadership('The people just aren't smart enough to take care of or protect themselves, so we'll just take that matter into our own hands so they don't have to worry about it.'), but it doesn't change the fact that those who are supposed to represent the people are increasingly treating it as ruling the people, similar to the relationship between a boss and their employees, or (going back a few hundred years) the royalty and the peasantry.
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AnonCow, 25 Jun 2014 @ 7:49pm

Lawmakers have gotten on the secret law/treaty kick. It is pure catnip to them. All the power of making laws, all the money from the lobbyists, but without having to answer to your pesky constituency.
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bgmcb (profile), 25 Jun 2014 @ 9:21pm

The second memo likely is based on the secret constitutional amendment that has dominated the last few years.

If the courts and legislative branch fail to uphold the constitution the executive branch can do whatever it wants.

The power of secrets.
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David, 25 Jun 2014 @ 10:45pm

Re: Re: Circular secred memos?
You are apparently trying to allude to Nazi Germany, but that was secular, so "Long live our holy Germany" does not work with that.
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David, 25 Jun 2014 @ 10:48pm

Satire is dead
It's already been said as "1984 was satire, not an instruction manual". It would appear that the same disclaimer needs to be said for "Catch 22".
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Anonymous Coward, 26 Jun 2014 @ 4:54am

Re: Secret Laws are illegal
If only we'd see some actual action taken against it. I could easily see a prosecutor with some shred of ethics or sanity deciding rightfully to try as deprivation of rights under the color of the law. Which would be a capital offence in this case.
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Anonymous Coward, 26 Jun 2014 @ 5:31am

403'd
Don't use anonymizers, open proxies, VPNs, or TOR to access Project Gutenberg. This includes the Google proxies that are used by Chrome.

Well, that's stupid.
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DannyB (profile), 26 Jun 2014 @ 6:19am

Secret Laws
The fact that these secrets keep leaking is why we need more secret laws and secret interpretations of laws to keep things secret.

For extra good measure we need secret courts that can issue secret warrants to secretly spy on people suspected of leaking secrets, and can secretly gag ISPs to keep the very existence of the secret warrants a secret.

The next step would be to empower secret courts to secretly arrest people, even in foreign countries, and take them to secret prisons for secret interrogations. The defendants should not be allowed access to secret evidence used against them.

The next improvement would be to not confine these secret new practices to just the military and federal government. The local law enforcement should able use these streamlined practices to make their work easier and make justice more flexible.

Oh, wait.
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Michael, 26 Jun 2014 @ 7:55am

Re: Re: Re: Secret Laws are illegal
Tinfoil hats throw off drone radar.
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Michael, 26 Jun 2014 @ 7:56am

Re:
and once they are the victim of a drone strike, they probably will not speak up anyway.
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Michael, 26 Jun 2014 @ 8:01am

Re:
The idea of the US government having secret laws that they cannot reveal to the citizens is a huge problem.

However, you do have to realistically keep in mind that these are laws enabling the targeting of people with drone strikes.

So, unless you own a weaponized drone, it is unlikely you are going to accidentally break these specific laws.

And since my weaponized drone has just been grounded by the FAA (unless I am killing people for pleasure), I am also not likely to be able to violate these laws either.
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Seegras (profile), 26 Jun 2014 @ 8:23am

Re: Re:
> The idea of the US government having secret laws that they
> cannot reveal to the citizens is a huge problem.

I see. The fact that the GESTAPO in Nazi Germany could arrest anyone based on some secret law was also "a huge problem"?

I don't call this a problem. I'd call it an abomination.
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Peter (profile), 26 Jun 2014 @ 8:28am

That's right...
I just want to comment that every one of you is correct, but you do not realize yet how scary and frightening and Orwellian it is. This is the real deal -- it's amazingly scary, and you have to do WHATEVER it takes to stop it now, while there's still time. The Executive Branch is having it's way right now, completely unconstitutional, and it's up to us to stop it -- and it's ALREADY too late.
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Anonymous Coward, 26 Jun 2014 @ 9:12am

Re: 403'd
Yes it is. Just happened to me too.
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John Fenderson (profile), 26 Jun 2014 @ 9:36am

Re: Re:
"unless you own a weaponized drone, it is unlikely you are going to accidentally break these specific laws."

That's not the problem. The problem is that if we don't know what the government has decided they can do, then we cannot stop them from doing it.
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Michael, 26 Jun 2014 @ 9:44am

Re: Re: Re:
I completely agree, but the OP was talking about ignorance of these laws not being an excuse. Ignorance of a law is no excuse for violating it, but these laws are somewhat difficult for the average US citizen to violate.

A government "for the people" should never be doing anything that they need to hide from those people.
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John Fenderson (profile), 26 Jun 2014 @ 12:04pm

Re: Re: Re: Circular secred memos?
So Hitler claimed -- but Nazi Germany was actually incredibly religious, both within the government and without, for a "secular" state.
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Uriel-238 on a mobile device, 26 Jun 2014 @ 1:15pm

Re: Re: Re: Circular secred memos?
I was referring to Staffenburg's last words.

And the contoversy regarding what witnesses remembered.
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The Wanderer (profile), 5 Jul 2014 @ 4:40am

Re: The business of the American nation...
I believe this deserves First Word status, although it's late enough at this point that it'll probably never get it.

For that matter, this deserves to be read out on the floor of the House and/or the Senate, as a good sound-bite component of a larger political "argument". (Scare quotes because of course much of what gets said on the floor of Congress doesn't more than vaguely resemble actual argument.)
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