Blogger Marcy Wheeler discusses why the DOJ white paper doesn’t adequately explain the OLC memos or the Obama administration’s legal justification for targeted killings; how the AUMF is used as a fallback when the government is painted into a legal corner; why John Brennan is probably the “senior official” signing off on kill lists; the media’s silence on the drone strike that killed Anwar al-Awlaki’s son; why the drones operating in Yemen are based in Saudi Arabia; why the white paper leak won’t help the ACLU and CCR in their many lawsuits against government secrecy; and why Dianne Feinstein may be the source of the leak – in an effort to deflect attention from the underlying scandal.

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Transcript:

SCOTT HORTON:  All right, y’all. Welcome back to the show. I’m Scott Horton. Full archives are at scotthorton.org, and you can find me on Facebook, Twitter and YouTube at /scotthortonshow. You can’t be my friend because I’m overfull, but you can subscribe, which I think is the same thing. Anyway. Next up is the great Marcy Wheeler, Emptywheel as she’s known on the web, emptywheel.net. Welcome back to the show, Marcy. How are you?

MARCY WHEELER:  Hey, thanks to be back. Good to be back. Thanks for having me. All of that. Good to talk to you.

SCOTT HORTON:  (laughs) Great. Yes. You too. Exactly.

MARCY WHEELER:  (laughs)

SCOTT HORTON:  What happened was, somebody leaked this white paper that the Department of Justice had written up to give to the Congress and you noticed everything important in the white paper and all the events surrounding it and who leaked it and why and everything, so I was just wondering if you could explain it all in order of importance to you, please.

MARCY WHEELER:  Well, so the white paper is what the administration gave the Senate Judiciary – or actually both the House and Senate Judiciary and Intelligence Committees, so the committees that should have oversight on whether the administration is breaking the law, rather than giving multiple Office of Legal Counsel memos authorizing an administration to kill an American citizen. So, what happened, going back to early 2011, is senators and members of Congress started asking for these memos and ultimately have now requested the memos over 12 times, and the administration has always refused it. In June of last year they gave them this white paper, and we don’t actually know whether the white paper summarizes the one memo that we know about, or whether it tries to glom together the many methods and multiple memos that they’ve used – we don’t know. And even after receiving the memo, at least 12 senators have said, “I’ve got the memo but I still don’t know what the administration’s legal reasoning is when it says it can kill an American citizen.” So the memo – we should be very, very skeptical about the usefulness of the memo because the senators who know the most about the program –

SCOTT HORTON:  Wait, you’re saying that the senators are saying, “We’re not buying that this is the actual legal justification that you’re using in your internal documents. We think this is a smokescreen,” in a way.

MARCY WHEELER:  Yeah, I mean, for example the memo emphasizes the Authorization to Use Military Force, suggesting that Congress has authorized these steps killing Awlaki, but in Senator Wyden’s multiple requests to get the memo he keeps asking, “I don’t even know whether you’re using AUMF or Article II as your justification for killing an American citizen. Can you at least tell me that?” It’s not clear he’s gotten an answer, and if he – you know, if it’s not AUMF, then clearly the white paper has told Congress, “Oh, yeah, you guys approved this killing,” when that’s not actually how they did it. They did it based on the president’s – I mean, I’m not saying this is what happened, but I suspect this is what these senators suspect, which is that the president killed an American citizen based solely on his authority, and frankly did it – I mean, one of the things that’s really egregious about this is, if they did it as a covert op, so if they did it not as part of the AUMF but as a covert op, they are obliged by law to brief at least the intelligence committees on it. And they haven’t done that. You know, so either – there’s no way it makes sense, and, you know, one thing that really just hasn’t gotten enough play in the last couple of days is, what are they hiding? I mean, if they’re going to such lengths to hide this even from the intelligence committees, that’s telling.

SCOTT HORTON:  Mmhmm. Well, now, and correct me if I’m wrong, which I very well could be, but you’ll be able to correct me – didn’t Brennan say back, I think before they killed Awlaki but after they had announced that they were going to kill Awlaki, despite the fact that he was an American citizen, that didn’t – wasn’t it John Brennan, who was the head of counterterrorism in the White House and is now nominated to be the new head of the CIA – didn’t he say that there are – or was it the Director of National Intelligence? – one of them – didn’t they say that there are a dozen Americans on the same list of people considered Al Qaeda enemies as Awlaki. Now I don’t believe they were saying that are to be killed on first sight kind of thing, they weren’t necessarily saying that, but they were saying, “These dozen Americans are considered enemies in the same way that we consider Awlaki an enemy and therefore, you know, maybe could be turned into an assassination target.” Is that right?

MARCY WHEELER:  Yeah, I’m not sure which the reference is, but they – I don’t think they’ve said there’s a dozen. I think they’ve said there’s a handful. There’s two kill lists. There’s the DOD and the CIA kill lists. And one would assume that you use different criteria to put people on those kill lists, for just the reason I said, that you hypothetically shouldn’t be on the DOD kill list unless you fall under the AUMF, where presumably the CIA kill list – you know, maybe they’re going after Iranian “terrorists” or Hezbollah or something like that.

SCOTT HORTON:  Yeah, well, I mean they use the AUMF to mean just about anything anyway, don’t they? And by the way, for people who aren’t familiar, right, the AUMF is the authorization passed right after September 11th to go after the guys that did it. Didn’t even say the Taliban and the people of Afghanistan, or “Go ahead and invade Afghanistan” wasn’t even in there. It just said, “Get the guys who did the attack.” Only now they use that to kill people in Somalia and wherever they want.

MARCY WHEELER:  That’s one of the lessons we should take from the white paper and just about everything else we get from either the Bush or Obama administrations. When they get in legally dicey areas, they immediately say AUMF, but I’m not sure we should believe them. And so, you know, they may be saying, “Oh, yeah, Somalia, Mali, they’re all covered, blah blah blah,” when actually what they’re operating on and the reason they’re so gung ho and the reason they keep not caring whether or not – because another thing that’s come out, Scott, is that in addition to asking for these OLC memos, Ron Wyden, senator from Oregon, has also said, “You know, I’ve been” – he said to Brennan – “I’ve been asking for a year for a list of other countries in which we use these counterterrorism lethal force – in which we have used, or in which I think” – I’d have to look at the language again – or “in which we are authorized – you are operating with these counterterrorist lethal force.” And he hasn’t gotten that either. So Ron Wyden, a member of the Intelligence Committee, doesn’t even know which countries we’re at war with. That says, you know – and again, it’s this problem, like if Congress doesn’t know which countries we’re at war with, then it’s very hard to say that Congress has approved that war, and if Congress hasn’t approved it, then it would be a covert op, in which case the Intelligence Committee should have been briefed, but we know Ron Wyden hasn’t been briefed, so either way they’re in legal problem.

SCOTT HORTON:  Well, but isn’t – I mean, I could be off, but isn’t JSOC the big loophole there? That if it’s a CIA covert op based on a finding, they have to notify Congress, but if it’s a Joint Special Operations Command thing, well those guys don’t exist and they’re not answerable to anybody. They’re outside the chain of command.

MARCY WHEELER:  Yeah. And there’s the sense that – I mean that’s actually one of the questions that Carl Levin asked Chuck Hagel is, “How do you feel about this Title 10, Title 50” – meaning that, you know, they’re kind of nesting JSOC in CIA so as to escape the law, and Hagel gave kind of a whatever answer. I mean, this gets to the core of the problem, I think, that irrespective of whether and how the president can have the authority to kill American citizens, this whole area is turning into a big mess, and rather than trying to sort out the mess, the administration is just kind of cocooning. They’re just, you know, hiding and not telling Congress and not dealing with the issue. And it may be that they’re – you know – if what they’re doing is legitimate, there ought to be a way to solve it. You know. And maybe it is legitimate. I just really – Congress and frankly the American people need to know, because this, you know, huddling inside a bunker and just claiming “la la la la la, it’s legitimate” doesn’t work. It’s not how democracies work.

SCOTT HORTON:  Right. Well, and now, you know, the other Scott Horton was on the show yesterday, and I won’t try to make his case for him, but he certainly wasn’t buying it, whatever was in that white paper, that that amounted to good enough or that, you know, what they consider imminent is imminent, or what they consider – or even that it’s plausible at all that it can just be up to the government to say, you know, for the president to appoint someone and say that they’re in charge of designating someone to be guilty – you know, like was it Holder’s speech that said, “Well, the due process takes place in the president’s mind. He’s got the two hemispheres of his brain, and if they agree, then that’s due process of law, and then he can kill you, and that’s all the Constitution ever meant anyway,” right? I mean –

MARCY WHEELER:  Well, and that’s one of the funny things about – well, “funny” meaning it’s not humorous but it’s odd – is that for years now, and certainly since last May when there was a big PR campaign, the story has been that Obama has been the one making the decision – you know, however troubling it is that the president would choose to kill an American citizen, that’s not what the white paper says. The white paper says that a senior official – “an informed senior official” – we know that’s John Brennan. John Brennan was not elected. He’s not been confirmed by the Senate. He couldn’t be confirmed in 2009 and probably shouldn’t be confirmed this week but he probably will be. And so we’ve got this guy who couldn’t be confirmed in 2009 because he was so closely tied to crime, making a decision on whether or not Americans should be killed.

SCOTT HORTON:  There you go. And, you know what’s funny about this, in an odd not humorous way, I was watching on the TV and they were talking about, yeah, you know, they did kill this guy Awlaki who, he doesn’t have a very long beard but he kind of looks like Osama bin Laden with his funny hat and everything, and then here’s this guy Samir Khan, who at least he’s dark-skinned enough that he looks like he might be from somewhere else and is very scary, even though they’re both American citizens, but no mention whatsoever of the boy, the 16-year-old boy who like some Disney movie or something went to go and find his dad and bring him home, and they drone striked him to death too. Sometimes they’ll mention that in print but call it an accident.

MARCY WHEELER:  Yeah, maybe if we made a movie about him then people would finally start talking – yeah, right. Maybe if we made a movie about him, people would finally start talking about him, and make it, use that Disney angle?

SCOTT HORTON:  Yeah, I mean, it’s perfect, isn’t it, you know? Father is a dedicated preacher and then he goes off the deep end and then his boy tries to go and rescue him and then Barack Obama shoots him with a Hellfire missile.

MARCY WHEELER:  We can call it “Telemachus Clay,” sorry, “Telemachus Drone” after Odysseus’s son, right?

SCOTT HORTON:  There you go. See. Marcy Wheeler, that’s –

MARCY WHEELER:  Yeah, and they don’t want to talk about that, and they don’t want to talk about that because that’s when things get really dicey. And, you know, it’s really easy – I think there are problems with the case they’ve made about Awlaki, and I think a lot of people, I bet Scott did yesterday, the other Scott Horton, I bet, you know, one of the things a lot of lawyers have problems with is the imminence language, and I think one of the reasons the imminence language is so ridiculous – I think for two reasons. One is, I think the original memo they signed, or one of the memos they signed in June 2010, they actually had reasonably fresh intelligence that purportedly tied Awlaki to the underwear bomb. There were problems with that, but at least they had that. Whereas, you know, it was a full 20 months between that and the time they killed Awlaki, and his ties to the subsequent crimes are much, much more tangential, and so their case in September of 2011 that he was an imminent threat was far weaker than their case in June of 2010 that he was an imminent threat.

SCOTT HORTON:  Right. Well. And you know what’s amazing about this too is – of course you do know, but I would just remind people that they had announced that they were going to kill Awlaki, well, like almost a year and a half in advance, something like that, and so –

MARCY WHEELER:  Twenty months, yeah. Yeah.

SCOTT HORTON:  And so, so, I mean, I talked with the Center for Constitutional Rights and the ACLU where, you know, they had lawsuits trying to get a federal court to put an injunction on the president to not kill this American citizen, and the court ruled that the father didn’t have standing to sue. (laughs) Awlaki has to show up himself in the court in order to sue for an injunction to not be assassinated.

MARCY WHEELER:  And, you know, regardless of whatever else you think, I mean that actually was an opportunity for the administration where they could have presented their argument and gotten sanction on it, and they chose not to do so because – and again, that’s clear from the white paper, the language about force in the white paper is pretty chilling, because they say judges have no role overseeing the executive’s actions in this area. They’re basically saying judges should not be able to tell the president that he can’t kill an American citizen. I mean, they ought to, every time they want to execute a criminal, they should just say, “Well, I’m going to drone strike him,” and then they don’t have to worry about courts at all, because that’s the argument they’re making.

SCOTT HORTON:  Right. Well, and of course, they’ll always just claim the special exception, somebody like Awlaki who, I don’t know if they had any intelligence really that he did anything, maybe he really did, it seemed like they really hated him because he was a propagandist for the other side and he spoke English and he had a YouTube account and you can’t close down his YouTube accounts or Vimeo or whatever, so (laughs) you just kill him and then that’ll shut him up. That was basically what it was about, it seemed like to me. I remember, and you can elaborate on what all you know about this if you like, but I remember a Washington Post story that said, you know, this anonymous official would go so far as to say, “We believe that Awlaki may have ties to Al Qaeda and that’s why we’re going to drone strike him.” And after – you know, when they had announced that they were going to kill him, that was as far as the anonymous source was willing to tell the Post:  “We believe he may have ties,” rather than “operational commander” or whatever – what’s the language in the memo?

MARCY WHEELER:  “Senior operational leader.”

SCOTT HORTON:  Yeah, I mean – is there any evidence, Marcy, that they even believe that about this guy? Or that’s just what they call it?

MARCY WHEELER:  Well, I mean there’s a lot of evidence they’re overselling that. And one thing to remember, which I keep harping on because it’s fundamentally important for this discussion, is that they first tried to kill Anwar Awlaki on December 24, 2009, and we know from WikiLeaks cables, from a conversation that Ali Abdullah Saleh, the then-president of Yemen, had with David Petraeus, that Awlaki was a named target. Right? So we didn’t just try and take out the guy he was sitting next to, we were trying to take out Awlaki. The Webster report, which was a study of the conversations, the e-mails between Nidal Hasan, who attacked Fort Hood, and Anwar Awlaki – that came out last year, and that was very crystal clear that on December – I mean they don’t talk about the drone strike against Awlaki, but they say, “Until the underwear bombing on December 25th, 2009, we did not believe him to be operational.” And what that says is, you know, no matter what kind of intelligence they had in May 2011 and in September 2011, which are the two other times that they tried and then ultimately succeeded in killing him with a drone, they did not believe he was – I mean, the intelligence community has said, an unclassified document, official document, they did not believe he was operational the first time they tried to kill him with a drone. And what’s interesting, if you go back to Dennis Blair, who was then Director of National Intelligence, got a little mouthy at a House Intelligence Committee hearing, and then the logic he gave for being able to kill Awlaki – what’s really interesting, he said, “Well, if his actions led to actions which threatened Americans, it was okay to kill him. That’s probably a pretty good example of how his radical preaching influenced Nidal Hasan, who then killed Americans.” But that’s a much harder legal case to make. But it is what the administration first announced as its logic for killing Awlaki.

SCOTT HORTON:  Huh. Well, I guess – it doesn’t sound like any of these different people, when they comment on it, actually use the very same language, and certainly not the language of the white paper, right?

MARCY WHEELER:  Yeah, and again I think that’s partly a reflection of the fact that there are multiple memos behind this, and probably – I mean, I’m hoping to do a post tracing out what I think the justifications were and might have been at three different times when they were targeting Awlaki. Everyone’s focusing on what the justification was in June 2010, but I think there was at least one and probably two different justifications based on what kind of intelligence we actually had. And again I think that’s one of the reasons the white paper is so awful, because it reflects different viewpoints about Awlaki at different points in time, but ultimately what it boiled down to is we wanted him dead and we kept coming up with new arguments to make sure that he could be dead.

SCOTT HORTON:  I don’t know if you know too much about the history of this, Marcy, but – well, do you know of another time that a president sought power like this since the Civil War?

MARCY WHEELER:  You know, I – one of my questions about this – and it’s just complete speculation – but I wonder whether there’s an OLC memo authorizing the assassination of Fred Hampton, the Black Panther.

SCOTT HORTON:  Huh.

MARCY WHEELER:  Remember – you know, remember he was killed by the FBI – just crazy, a bajillion bullets to kill this guy in his sleep – and I wonder if they had, if they went to the trouble of giving them some kind of – but it’s similar, and I frankly, you know, I wouldn’t be – the way they thought of Awlaki was not different from the way – and this is why it should be so chilling to people – it’s not all that different from the claims that were made about the Black Panthers, right? You know, “They’re terrorists, there’s a war, the entity that this particular person is fighting with isn’t exactly the entity we’re at war against but because we’re at war we have the authority to use extreme measures,” and therefore all of a sudden he’s dead.

SCOTT HORTON:  Hmm. Well, you know, Nixon put out a hit on Ellsberg, but I guess – I understood the implication to be that that was more of a favor than an op, you know what I mean? Nothing on paper, but there were some Cubans that were supposed to kill him at a public function, I forgot on the steps of which monument, but there were just too many people around, they didn’t have a shot, and so they left. But that was as close as they got to – but it was the president’s wishes if not his orders, you know what I mean?

MARCY WHEELER:  Well, and since you brought up the Cubans, the Washington Post just reported yesterday – well, everyone reported after having sat on for 10 months – more than that, I mean, for two years almost – what we all sort of knew, which is that our drone base that we’re using to attack Yemen is in Saudi Arabia, and I really think one thing that needs to happen out of this discussion is we really need to ask what is going on in our relationship with Saudi Arabia more closely, and I was half joking 10 minutes ago, but I said, “You know, I wonder if there’s an OLC memo that says it’s okay to kill an American citizen so long as a Saudi presses the drone button.” But, you know, the drone we used to kill Awlaki was launched out of Saudi Arabia, and so I wouldn’t be surprised to see that kind of – in the same kind of shell game we talked about earlier where they hide JSOC inside CIA, I wouldn’t be surprised if we saw shell games where they’re hiding covert operations inside this, you know, we’re claiming the Saudis are doing it and therefore not having to comply with the law either.

SCOTT HORTON:  Mmhmm. Uh, very interesting. Well, and of course there’s also the larger question of the blowback from having bases in Saudi Arabia at all, and Bush, the one good thing he ever did was move most of them out of – well, he didn’t really move them off the Arabian Peninsula, obviously, but at least further away from Mecca and Medina. You know? Got a little blowback problem with that one –

MARCY WHEELER:  Yeah, one of the things, I mean I’m getting off topic, but one of the things that’s really interesting is the Saudi Minister of Interior was in town in mid January and he renewed this, what’s called the Technical Cooperation Agreement with the United States, where it’s another military cooperation for purportedly military training, and as part of that we’re helping the Ministry of Interior build a 35,000-person force to protect ostensibly the oil fields, and, you know, it’s defined as protecting the critical infrastructure and the border, and it’s not hard to get from protecting the border in Saudi Arabia to protecting, you know, launching strikes into Yemen. So I sort of wonder whether there’s that kind of shell game going on and that that is leading to this increased military presence in Saudi Arabia as well.

SCOTT HORTON:  Now, is the qualitative difference between the apparent legal theories here, and I know you’re saying that the real memos behind this white paper are probably much worse and different, but either way, is this very different from all the Bush legal theories about torture, etcetera, only they didn’t go quite this far – is that really the only distinction? Or how’s that work? I mean, what does David Addington have to say about this, you know, do you bet?

MARCY WHEELER:  Oh, he’s probably been laughing for the last two days. You know, I think also that probably something very similar happened, which is that they were doing it. You know, we, we – on September 17, 2001, so the day before the Authorization to Use Military Force was signed, President Bush signed a memorandum notification which authorizes covert operations, and it covered targeted killing, rendition and detention, aka torture, partnering with people like the Syrians and the Libyans on intelligence, interrogations, also the Egyptians, but that was kind of old hand by then. So it covered all of these – it covered both of them. It covered torture and it covered targeted killing. Same justification. And I suspect that – I don’t know at all, but I suspect that we didn’t have a memo on targeted killings for a long time, probably until after the first Awlaki strike. And that’s what happened with torture as well. We were already torturing Abu Zubaydah and had sent Ibn Sheikh al Libi to be tortured and to lie about ties between Al Qaeda and Iraq well before the OLC started looking at the legal concerns, and then the OLC kind of had to invent something after the fact, and I think that’s what happened here. I think that we had already, you know, put Awlaki on the strike list and then we needed to come up with the legal justification to do it, and that’s another reason why the memos look so bad, because they had to come up with some rationale for probably illegal actions that had already taken place.

SCOTT HORTON:  Mmhmm. Hey, do you think that the release of the white paper will help groups like the CCR, the ACLU, wage war in court over this and get the real memos or make other kinds of progress along these lines?

MARCY WHEELER:  I doubt it, because the court is going to say the same thing that they said when the ACLU pointed to all the speeches that the administration made, which is, there’s no way to prove that the speeches reflect the same thing as the memo. And we know, I mean in fact there’s abundant evidence that this white paper doesn’t actually reflect the actual contents of the memo. Because the senators keep saying it doesn’t.

SCOTT HORTON:  I see. Well, and by the way, have you talked with the senator yourself and asked him to clarify?

MARCY WHEELER:  With Senator Wyden?

SCOTT HORTON:  Yeah.

MARCY WHEELER:  I have not.

SCOTT HORTON:  It seems like you’d be the one to do it since you got all your ducks in a row better than anybody like always.

MARCY WHEELER:  Yeah. Yeah. And I think, I mean, to Senator Wyden’s credit, he has been very good at raising questions without releasing any classified information, unlike Dianne Feinstein, who’s probably the one who leaked this white paper. He’s been very circumspect, and I think he’s trying to do that so as to avoid the administration from getting an excuse to kick him off the committee.

SCOTT HORTON:  I see. Yeah, you call it at your blog, again it’s emptywheel.net, you call it “Dianne Feinstein’s Limited Hang-Out.” Does she have an ulterior motive, a bad motive for doing it? For leaking what she did leak?

MARCY WHEELER:  It’s hard to say. I mean, look, Dianne Feinstein is one of probably just four people who’s actually been briefed on all of this, so if the decision behind these operations was bad, she has herself to protect as much as the administration. So her motivations can’t be entirely in the right place because she’s complicit with what’s already happened.

SCOTT HORTON:  Right. Yeah. Typical. And by the way, so what about that 6,000-page torture report? You think they’re going to ever release that, or that’s already over and it’s not happening?

MARCY WHEELER:  I think Feinstein actually wants that released, and I think that will be what she uses for leverage on the Brennan confirmation for, and she’ll leave all the other big issues about counterterrorism swinging in the wind – and so basically protecting Obama’s program and exposing Bush’s. And so I think there’s also some partisan –

SCOTT HORTON:  Yeah. I was trying to think, why would she do anything good at all? That’s suspicious, but –

MARCY WHEELER:  She actually – I mean, she’s been good on torture. Give her her due, she has been pretty good on trying to clean up our torture.

SCOTT HORTON:  Well, back when it was happening, or after?

MARCY WHEELER:  She wasn’t in the same position to do it back when it was happening.

SCOTT HORTON:  Yeah.

MARCY WHEELER:  I mean, but even, I’ll say this, Jane Harman was trying to do something to clean up our torture as well. The problem is these committees are not built to empower the members of Congress to actually do these things. I mean, I’m no more a Jane Harman fan than I am a Dianne Feinstein fan, but I think both of them really legitimately tried to fix the torture problem.

SCOTT HORTON:  Yeah, fair enough, that’s cool. Give credit where it’s due. And with that I got to let you go, you got to go too, I know, so thanks very much for your time and it’s great talking to you as always.

MARCY WHEELER:  Always great to talk to you, Scott. Thanks.

SCOTT HORTON:  All right, everybody, that’s Marcy Wheeler, Emptywheel.

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