Marcy Wheeler: This Isn’t the Memo You’re Looking For

By Marcy Wheeler. Cross posted from emptywheel

As important as it is to see the white paper DOJ gave Congress to explain its purported legal rationale, it is just as important to make clear what this white paper is not.

First, is it not the actual legal memos used to authorize the killing of Anwar al-Awlaki and who knows who else. As Michael Isikoff notes in his story, the Senators whose job it is to oversee the Executive Branch — even the ones on the Senate Intelligence Committee that are supposed to be read into covert operations — are still demanding the memos, for at least the 12th time. The release of this white paper must not serve to take pressure off of the White House to release the actual memos.

Which brings me to an equally important point: memos. Plural.

NBC suggests and the close tracking appears to support that this white paper is a version of the OLC memo written in June 2010 and reported on — the last time there was clamor to release the targeting killing authorization publicly — by Charlie Savage.

But as Colleen McMahon strongly hinted last month, that doesn’t mean that this white paper — and the OLC memo which it summarizes — describe the legal basis actually used to kill Anwar al-Awlaki.

Indeed, Ron Wyden has been referring to memos, in the plural, for a full year (even before, if Isikoff’s report is correct, this white paper was first provided to the Committees in June 2012).

And there is abundant reason to believe that the members of the Senate committees who got this white paper aren’t convinced it describes the rationale the Administration actually used. Just minutes after Pat Leahy reminded the Senate Judiciary Committee they got the white paper at a hearing last August, John Cornyn said this,

Cornyn: As Senator Durbin and others have said that they agree that this is a legitimate question that needs to be answered. But we’re not mere supplicants of the Executive Branch. We are a coequal branch of government with the Constitutional responsibility to conduct oversight and to legislate where we deem appropriate on behalf of our constituents. So it is insufficient to say, “pretty please, Mr. President. pretty please, Mr. Attorney General, will you please tell us the legal authority by which you claim the authority to kill American citizens abroad?” It may be that I would agree with their legal argument, but I simply don’t know what it is, and it hasn’t been provided. [my emphasis]

More importantly, one question that Wyden keeps asking would be nonsensical if he believed the content of this white paper reflected the actual authorization used to kill Awlaki.

This white paper, after all, speaks repeatedly of the AUMF and invoked Congressional approval (this is just a limited sampling).

The United States is in an armed conflict with al-Qa’ida and its associated forces and Congress has authorized the President to use all necessary and appropriate force against those entities. See Authorization for Use of Military Force.


Accordingly, the Department does not believe that U.S. citizenship would immunize a senior operational leader of al-Qa’ida or its associated from a use of force abroad authorized by the AUMF or in national self-defense.


None of the three branches of the U.S. Government has identified a strict geographical limit on the permissible scope of the AUMF’s authorization.


In such circumstances, targeting a U.S. citizen of the kind described in this paper would be authorized under the AUMF and the inherent right to national self-defense.


And judicial enforcement of such orders would require the Court to supervise inherently predictive judgments by the President and his national security advisors as to when and how to use force against a member of an enemy force against which Congress has authorized the use of force. [my emphasis]

But Ron Wyden, who has gotten this white paper, still keeps asking this question.

Is the legal basis for the intelligence community’s lethal counterterrorism operations the 2001 Congressional Authorization for the Use of Military Force, or the President’s Commander-in-Chief authority?

Now, to be fair, those bolded sections do hint at something else, the reliance on inherent authority. And in an early passage laying out the authorities, the white paper lists that Article II authority first, well before it lists the AUMF.

The President has authority to respond to the imminent threat posed by al-Qa’ida and its associated forces, arising from his constitutional responsibility to protect the country, the inherent right of the United States to national self defense under international law, Congress’s authorization of the use of all necessary and appropriate force against the enemy, and the existence of an armed conflict with al-Qa’ida under international law. [my emphasis]

But everything about this white paper uses the AUMF — that Congressional authorization — as the key authorization.

This white paper admits the President claims he could kill an American solely on his inherent Article II powers. But that’s not the argument laid out in the white paper.

Now, there are other reasons to believe this is not the authority relied on — at least not for all the attempts to kill Awlaki. After all, when they first tried to kill him on December 24, 2009, the Intelligence Community didn’t believe him to be operational; at that point, according to the knowledge the government had at that time, Awlaki would not meet the three criteria laid out in this memo.

Never fear though! This white paper makes clear that the government may not even need to fulfill those requirements before it offs a US citizen.

As stated earlier, this paper does not attempt to determine the minimum requirements necessary to render such an operation against a U.S. citizen lawful in other circumstances.

Even as shoddy as this argument is — as forced its interpretation of the word “imminent” and the court precedents — this white paper holds out the possibility that there may be other circumstances, other lesser requirements fulfilled, that would still allow the President to kill an American citizen.

And that, I fear, is what is in the real memos.

Update: Note, too, that 9 of the 11 Senators who demanded the memo have seen this white paper (all but Tom Udall and Jeff Merkley are on either the Senate Intelligence of Judiciary Committee). Yet they’re still demanding to know the “executive branch’s official understanding of the President’s authority to deliberately kill American citizens.”

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  1. ambrit

    The behaviour of the Executive in relation to the Congress shows a clear attempt to usurp power. Now is the time to put things plainly and start referring to the President more accurately as the Imperator.
    Ave Princeps et Primus Mercator!

  2. skippy

    I dub thee… Loose Lips Sink Ships Rational Argument

    Skippy… the Mob does not suffer stool pidgins or the informed!

    1. ambrit

      The Mobile Vulgaris might not do so, but any efficient police system relies on stool pigeons to get the work done. Will we get to the point where ‘we’ ‘eliminate’ Quislings and Stoolies as a matter of self preservation? I hope not, but it is a distinct possibility. I recommend Ophuls’ “The Sorrow and the Pity” for a clear depiction of a real life version of the same. (I can sort of understand why the French government had to ban it.)

  3. toxymoron

    I thought Mr President had sworn ‘to uphold the Constitution’ and not ‘to protect the Country’.

      1. AbyNormal

        ‘on going state of emergency’
        wait till they figure out they can’t mfg enough WMDs to combat guilt & paranoia

  4. LucyLulu

    If nothing else, release of this white paper has finally gotten some attention of the mainstream “liberal” media on the immorality, if not blatant illegality and unconstitutionality, of the use of drone attacks. (Where have they been until now?)

    If there is a different rationale being used, why would it be considered confidential and not released unless there is concern it won’t hold up to scrutiny. In the short run, it may save the lives of U.S. soldiers, but what will be the long-term costs in terms of smoldering animosity eventually erupting into flames towards the U.S.?

    From today’s links:

  5. Jim

    I’m sorry that you see it as illegal. Actually, I believe, it was and has been declared illegal by the UN. Something about Geneva Convention. But then congress has more important things to look after, then to see if the “war” and emergency war powers have been usurped by the pentagon. This is just a diversion, created by b2, and his one shot oil buddy, to circumvent all the rules put in place to prevent their style of person from becoming the american emperor. I’m afraid you found out, just put on your lazer glasses, keep an eye toward the sun, lok for the odd shadows, jump fast if it moves.

  6. Mcmike

    I hope the right wingers are happy now.

    They goaded Clinton into viewing the constitution as secondary to security; openly mocking ideas like habeus corpus and howling for something to be done about terrorism and nfta protestors.

    Then they cheered as Bush shredded just about every imaginable protection and principle in favor of security and an endless secret war. Cheering the Cheney neocon argument for an imperial infallible executive.

    Now they are aghast that Obama is exercizing the very powers they worked so hard to instill in the President.

    My God, we are beset by children in this country.

  7. b.

    “The release of this white paper must not serve to take pressure off of the White House to release the actual memos.”

    Release? I was under the impression this was a “whistleblowing” leak from the legislative branch, not an “authorized” leak from the executive branch, let a alone a “release”. Isikoff: “confidential memo …. a copy of which was obtained by NBC News”.


  8. Tom

    Might as well through in a conspiracy story to round it all out. War on terror to use anything on the table. Weapon-ization of finance….. used to destabilize regimes and governments. Was laundering of money for drug cartels and terrorist organizations part of a war on terrorism? It may explain the reluctance to prosecute these crimes under the Patriot act. The financial destruction and collateral damage to a functioning democracy brought about by the banks use of weaponized money? The undermining of our constitution? Could we be seeing our US financial institutions using weaponized money against USA citizens in a war against terrorism, because, they were given a green light (in the name of fighting terrorism) to use the tool of money – did they think they could get away with this tool to capture our democracy? Can the president now drone out the leaders of our financial institutions because they destabilized the world economy which has created conditions ripe for the methods of terrorism to be used internationally and domestically?
    Hey, because I stated the above – does that make me a threat?

    1. Tom

      Apply the same thought to IT, Privacy etc etc.
      Command, Control, Communications… the 3Cs of warfare….

    2. Eclair

      “Hey, because I stated the above – does that make me a threat?”

      Probably. The white paper refers to “al Qa’ida and an associated force.” Whoa! “Associated force” could be broadly defined.

      “Posing an imminent threat of violent attack against the United States:” How broadly do you want to define “violence?” Are words “violent?’

      “… an act of national self-defence:” And who defines themselves as “the nation” these days? Financial institutions, fossil fuel corporations, Walmart?

      Good idea to stay out of foreign countries, Tom.

      1. Cynthia

        If history is any guide, and it usually is, look to see Obama or a future president employ al-Qaeda or an al-Qaeda affiliate in America’s war on terror. And when Obama or one of our future presidents does do this, it will be perfectly legal under US law for him to be a target for an extrajudical drone assassination.

        Like the Good Book says, it’s only a matter of time before you reap what you sow. Apparently Obama missed that Bible lesson, otherwise he would have known not to set himself up to be a victim of his own making.

  9. Tom

    Just pointing out that, under a declaration of war – the use of all methods on the table would legally allow for the secret to remain secret under current ‘national security guidlines’ maybe it a reason for going after tweets and texts via the prosecution of certain folks devising ways around governmental intrusion upon privacy rights, the reason vast quantities of information are being gathered using legal doctrines to avoid the appearance of violating constitutional rights, and a defense of folks from criminal prosecution for frauds because – they are looked upon as ‘soldiers in the war on terrorism’.

  10. Renodino

    Would like to start a death pool to guess the year when we get our first domestic extra-judicial drone killing of a suspected American terrorist. Call it the year when the Chickens Come Home to Roost. My guess is 2018.

  11. Pathman

    The way this issue has divided those on the left is most fascinating! Anyone want to speculate as to why this has happened?

    1. Strangely Enough

      Because Democrats, regardless of actual ideology, are commonly mistaken for “the left,” and appear to be just as tribal as Republicans.

    2. ltr

      The moment a Democrat became President many self-styled liberals or Democratic centrists turned to being the most militarist conservatives. The only problem these folks had before was with President Bush or Republicans, they were always militarists however.

      Samantha Power? Hillary Clinton? John Kerry?

  12. Gil Gamesh

    “Yet they’re still demanding to know the “executive branch’s official understanding of the President’s authority to deliberately kill American citizens.””

    How …senatorial. Well, if you have to ask, then they can’t tell you. My theory is, given that the USA is a Christian country, Jesus’ redoubt on Earth, the power of the POTUS to snuff out the life of any American, anywhere, at anytime, for his pleasure or even sexual release, is divinely sourced. Nacheral Law, as Brother Clarence would tell us, were he conscious.

  13. OpenThePodBayDoorHAL

    I read one analysis of this “leak” that said the only way the “legal” team could justify these pre-crime murder missiles left the door WIDE OPEN for any other nation to drone bomb the US at their discretion, just as we do to them.
    Lethal chickens coming home to roost. You reap what you sow.

    1. McMike

      “Lethal chickens coming home to roost. You reap what you sow.”

      Indeed. These actions fail miserably on the hypocrisy test – wherein we ask “would we be outraged if someone else used the same justification against us.”

      Of course, Americans are quite good at our exceptionalism-driven hypocrisy, even amongst ourselves. Particularly amongst ourselves. [See Bush v. Gore].

      But a lot of this GWOT has been truly over the top.

  14. steelhead23

    I feel like we’re in a time-warp. The AUMF was an almost verbatim copy of the Gulf of Tonkin Resolution. Let us remember how this resolution was sold – to the American People if not the U.S. Congress – Saddam Hussein possessed weapons of mass destruction and was poised to use them against the U.S. or its allies. Let’s leave aside that both these WMDs and the Gulf of Tonkin incident were lies. The bottom line is that the sole authority to declare war (or issue letters of marque reprisal) is vested in the U.S. Congress (Article 1, Section 8). I would encourage all patriots to recall the words of Robert Byrd with regard to the AUMF:

    How have we gotten to this low point in the history of Congress? Are we too feeble to resist the demands of a president who is determined to bend the collective will of Congress to his will — a president who is changing the conventional understanding of the term “self-defense”? And why are we allowing the executive to rush our decision-making right before an election? Congress, under pressure from the executive branch, should not hand away its Constitutional powers. We should not hamstring future Congresses by casting such a shortsighted vote. We owe our country a due deliberation….

    We may not always be able to avoid war, particularly if it is thrust upon us, but Congress must not attempt to give away the authority to determine when war is to be declared. We must not allow any president to unleash the dogs of war at his own discretion and for an unlimited period of time. Yet that is what we are being asked to do. The judgment of history will not be kind to us if we take this step…. We must not yield to this absurd pressure to act now, 27 days before an election that will determine the entire membership of the House of Representatives and that of a third of the Senate. Congress should take the time to hear from the American people, to answer their remaining questions and to put the frenzy of ballot-box politics behind us before we vote. We should hear them well, because while it is Congress that casts the vote, it is the American people who will pay for a war with the lives of their sons and daughters.

    Steelhead again: In effect, the U.S. Congress abdicated its constitutional authority in both the Iraq AUMF and the Gulf of Tonkin Resolution to the POTUS. Now, we may (and should) object to the steamroller the president has driven through that chink in our constitutional armor, but we should not forget how that chink was formed. It was an abdication by our Congress. Nor will I grant a pass to my own senior senator (Ron Wyden) who voted for the AUMF, has not proposed legislation to defund the illegal wars he authorized, and has not drafted articles of impeachment for the crimes of our president. Dear Senator Wyden, the longer this sore festers, the worse it will get. Please review Hindenburg’s Reichstag Fire Decree to better understand where this road leads.

    1. steelhead23

      An addendum: I believe the AUMF Marcy was referring to was the authorization to seek vengeance for the 9-11 attacks, not the AUMF to attack Iraq. In my diatribe above, I am referring to the Iraq war authorization. The arguments would be similar in either case, but I should have been more careful.

      1. steelhead23

        Oops again. Actually Wyden voted against the Iraq war authorization. My apologies to Sen. Wyden.

  15. Cynthia

    Eric Holder said that there are many kinds of due process (see link below), and this is where the needle should go screeching across the record, and the speech comes to a halt, and everybody should say, what?

    Many kinds of due process? Well, um, no. Wrong. There’s only one kind of due process, and that’s an independent courtroom.

    If you don’t have a court you don’t have due process; what you have is murder.

  16. Doug Terpstra

    For this criminal regime, worse than the last, the AUMF is a terminal catch-all without boundaries or expiration date. The paper claims there are three criteria for the kill order: “imminent threat”, “infeasibility”, and “war principles”, but in all cases these are just judgment calls. “Imminence” applies — “even if there is no intelligence indicating they are engaged in an active plot to attack the U.S.” (WTF? Calling Orwell!) And “infeasibility” (of capture) boils down to mere inconvenience, in the case of attacking within a sovereign country not actually at war with us, or if it might risk injury to US troops (a blanket catch-all); and of course “war principles” is just a throwaway. This is pure amateurish self-contradictory bootstrapping.

    Wikipedia has posted a better readable/searchable version of the paper here:

    As Wheeler implies, “The Most Transparent Administration Ever”™ refuses to release the memos because they are probably even more spurious, vague, and patently self-contradicting than this white paper. And they are quite likely as incoherent and non-compelling as the torture memos written by presidential weasel Alberto Gonzales. I wonder how The Hague would rule.

    Obama is a megalomaniac who relishes absolute power. Unfortunately, the calls for accountability from Congress are more likely for public consumption only, all sound and fury, signifying nothing.

    1. McMike

      “Obama is a megalomaniac who relishes absolute power.”

      Duh, he ran for President.

      That statement gives Obama too much credit. The fact is, he is only acting as an agent for the broader fascist-industrial complex, who want it this way.

      These actions are of a perfect arc from Clinton (and before) and up through to Obama. Obama is merely standing on the shoulders of administrations before him (standing astride past compliant Congresses) as he reaches a little further out on the limbs of doctrines for which the ground work has long been laid.

      Obama would be impossible without Bush. In a sense, it is Obama who was “born on third base.”

      The way to end the escalation of executive abuse would have been war crimes trials of the Bush admin. Which of course Obama had no interest in, and the right would never have permitted in any case.

  17. indio007

    This white paper is a joke. Neither Congress nor the President, nor the courts can even strip someone of citizenship. So how the hell can they strip them of their life?

    This isn’t a legal justification , it’s public relations.

  18. Tom in Az

    By looking only forward, O acquiesced to all of the crimes in our names, and against us. DOJ has been nothing but a protection racket under Holder. And I was a supporter-twice. And complain to both in writing under my real name, Just because I felt the other bunch was/ and is a real menace if let truly unleashed again, doesn’t make me blind to the failures of these people. Mad, and sad, but not really surprised.

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