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Update: Attorney General Eric Holder Refuses to Mention “Targeted Killing” of al-Awlaki to Preserve Right to Glomar FOIA Requests

March 6, 2012

The "targeted killing" of "US citizen terrorists" is "not a departure from tour laws and our values."

6 MARCH 2012 UPDATE:

Yesterday, the Attorney General of the United States, Eric Holder, spoke at Northwestern University and proclaimed, “It may not always be feasible to capture a United States citizen terrorist who presents an imminent threat of violent attack.   In that case, our government has the clear authority to defend the United States with lethal force.”  

Holder did not define how people can become labeled as “US citizen terrorists.”  But an anonymous US government official leaked to Reuters last month that a secret “kill or capture” list is created by “a secretive panel of senior government officials, which then informs the president of its decisions . . . There is no public record of the operations or decisions of the panel, which is a subset of the White House’s National Security Council . . . Neither is there any law establishing its existence or setting out the rules by which it is supposed to operate.”  

There’s the rub.  How is an individual determined to be a “US citizen terrorist” and therefore eligible for assassination?  Certainly not through due process.  The White House simply condemns a person as a “US citizen terrorist” in secret, without the public presentation of evidence.  As such, this “US citizen terrorists” cannot refute any allegations.  Instead he’s put on a “kill or capture” list, which –in all likelihood– will imminently lead to his assassination.  

In his speech, Holder mentioned Osama bin Laden, John Walker Lindh, Richard Reid, Zacarias Moussaoui, Umar Farouk Abdulmutallab, Fazizal Shahzad, Ahmed Ghailani, Daniel Boyd, and Michael Finton.  Conspicuously, he did not mention the “targeted killing” of Anwar al-Awlaki.  Probably because if the US government acknowledged the targeted killing of Anwar al-Awlaki –rather than than anonymously leaking it to the press– it would be forced to admit to FOIA requesters (see below) that an Office of Legal Council memorandum justifying his “targeted killings” exists.

US Attorney Holder closed his speech by asserting that the right to kill “US citizen terrorists” is “not a departure from our laws and our values.”  But, as the below glomar response shows, the administration is not willing to release –or even concede the existence of– a legal justification that presents the case for why this is so.   

No malicious intent here (or at the DOJ)!!

On 14 February, 2012, the National Security Archive gave its annual Rosemary Award –named for President Nixon’s Secretary who erased 18 ½ minutes of a crucial Watergate tape– to the Department of Justice for the worst open government performance in 2011.

The “multi-count indictment” of the DOJ is infuriating– and a must read.  The charges the National Security Archive bring include:

  • selective and abusive prosecutions using espionage laws against whistleblowers as ostensible “leakers” of classified information, with more “leaks” prosecutions in the last three years than all previous years combined, at a time when expert estimates of over-classification range from 50 to 90%;
  • persisting recycled legal arguments for greater secrecy throughout Justice’s litigation posture, including specious arguments before the Supreme Court in 2011 in direct contradiction to President Obama’s “presumption of openness”;
  • retrograde proposed regulations that would allow the government to lie in court about the existence of records sought by FOIA requesters, and also prevent elementary and secondary school students – as well as bloggers and new media – from getting fee waivers, while narrowing multiple other FOIA provisions;
  • a mixed overall record on freedom of information with some positive signs (overall releases slightly up, roundtable meetings with requesters, the website foia.gov collating government-wide statistics) outweighed by backsliding in the key indicator of the most discretionary FOIA exemption, (b)(5) for “deliberative process,” cited by Justice to withhold information a whopping 1,500 times in 2011 (up from 1,231 in 2010).

And Unredacted would like to bring one more.  Last November the Department of Justice informed me that it “neither confirms nor denies the existence”  of a DOJ memo that authorized the “lethal targeting” of an American citizen.  The existence of the memo was leaked to the Washington Post (don’t hold your breath for William Welch to prosecute the leaker); the US citizen was Anwar al-Awlaki, who was killed in Yemen in September 2011.

Rosemary worthy.

Yep.  The Department of Justice glomared a document describing why assassinating American citizens without due process is legal.

In the DOJ’s words, “the very fact of the existence or nonexistence of such records is itself classified.”

Well I guess that makes sense.  If were a government official who was stepping on the Constitution, I would probably classify my actions so I wouldn’t be held accountable by the American public.

The New York Times has filed a FOIA lawsuit for this document’s release.  For what it’s worth, here is the MDR appeal that I filed and also sent to Attorney General Eric Holder.

As the above examples show the DOJ was a worthy recipient of this year’s Rosemary Award.  Here’s to hoping they are forced to change their behavior.

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11 Comments leave one →
  1. February 14, 2012 7:01 pm

    The Rosemary Awards and the recent press release are much appreciated; lots of good info.

    I’m curious, though; criticism of Obama and Holder was largely absent from the press release; why? One might conclude from reading between the lines that they’re either well-intentioned but weak/clueless leaders, or they’re typical Establishment pols and appointees; taking a public position that will endear them to their base, while actually doing the things that will please the Establishment, i.e. leaving the veneer on top of the corruption. Neither of them is called out over the DoJ’s efforts to keep out the sunshine, while the treatment of certain career DoJ bureaucrats is scathing (justifiably, imho).

    I understand that govt institutions develop cultures, and that, like people, they’ve got flaws and they resist criticism, accountability and change. I also understand that elected leaders and appointees come and go, and that career employees and institutions have ways of thwarting directives and change during the time that any reform-minded pols/appointees might be holding office.

    But, if Obama/Holder are either tolerating the thwarting of their directives or secretly approving of it, they bear responsibility. A career employee’s persistent failure to comply with a directive or meet performance standards is grounds for removal from a position. Appointees serve at the pleasure of the president and get replaced all the time.

    A case could be made that Obama and Holder are weak/clueless, and that may be part of the truth, but the record levels of whistleblower prosecutions, while leakers of ‘info’ that support ‘war on terror’ policies are ignored, indicate that Obama and Holder aren’t sincere about transparency and accountability. Other examples are Obama’s initial refusal to release White House visitor logs, and his EO postponing the future release of his administration’s records.

    • Nate Jones permalink*
      February 14, 2012 8:18 pm

      Good points Eric, well taken.

      I think we whacked Holder pretty hard in the web posting “who is minding the store” with a picture of the AG. He might have “escaped” the press release due to space. Still I bet criticism of the DOJ is probably widely read as criticism of him.

      On Obama, you’re right. Criticism of him was largely absent from the posting. I think you could chalk this up more to not wanting to “dilute the message” about DOJ, rather than giving Obama a pass.

      But you’re right. His administration appears ignorant –at best– of these problem. Hopefully the president and his advisers quickly begin to fix agencies’ intransigence on FOIA and overclassificaiton. I think the Open Government Partnership provides open government groups a large amount of leverage in this. How can Obama look foreign leaders in the eye and tell them that he is presiding over a government that is becoming more secret, not less? We’ll want to make this very clear as OGP gets rolling.

  2. Will Kammer permalink
    February 15, 2012 9:05 am

    Nate & Tom – We found your Rosemary Award article, mean-spirited, over the top, and generally not funny.

    Disappointed,

    Will Kammer
    DoD FOIA

    • Nate Jones permalink*
      February 15, 2012 4:39 pm

      Dear Will,

      Tom and I very much respect your opinion and are sorry you found our Rosemary citation mean spirited. However, the Rosemary is one of the few tools that open government advocates have to force recalcitrant agencies to improve their practices. Please know that the Archive has the utmost respect for the OSD/JCS FOIA Office, which has never been a contender for the Rosemary. And if DOJ had taken its FOIA responsibilities as seriously as DOD has, it certainly would not have won this dubious prize.

      Nate

  3. February 15, 2012 11:14 am

    Just reread the section on Holder, and am now of the opinion that this section, in the context of the whole piece, does appropriately hold him accountable.

    And I get your point about wanting to keep the focus on the DoJ. DoJ’s shameful performance under Holder’s direction does reflect on Obama, even more so as it’s in contrast to his public position, which was noted.

    The OGP is a good thing, and it’s good that Obama’s stuck his neck out on this. If his administration and the executive branch under him don’t come thru, they’ll look even worse than they already do. If they do come thru, I’ll be pleasantly shocked.

Trackbacks

  1. Sunshine Week Document Friday! Kissinger Says, “The illegal we do immediately; the unconstitutional takes a little longer. But since the FOIA, I’m afraid to say things like that.” « UNREDACTED
  2. The NSA – Holder Responds to Rosemary Award « MA BERND PULCH, MAGISTER ARTIUM
  3. Sunshine Week Document Friday! Kissinger Says, “The illegal we do immediately; the unconstitutional takes a little longer. But since the FOIA, I’m afraid to say things like that.” « phantasypublishing
  4. Department of Justice Not Qualified to Be FOIA Ombudsnan « UNREDACTED
  5. “Authorized” vs. “Unauthorized” Leaks « UNREDACTED
  6. How the Department of Justice Can Narrow its FOIA Credibility Gap | UNREDACTED

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