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