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Fri Feb 8, 2013, 10:46 AM

A theory of why Obama is withholding drone memos

Obama, or any president, is required to turn over secret documents to the senate oversight committee. So why hasn’t he turned over the memos that contain legal justifications for the drone strikes he’s ordered?

The following is just a theory for why he hasn’t done so.

It’s possible that some of the info in the memos could be twisted by Republicans to attack and smear Obama.

Yes, I know that the senate intelligence committee is restricted from releasing highly classified or secret information. But does anyone really believe that today’s Republicans would not leak secret information and frame it so as to tarnish the president (or perhaps even use it as an excuse for impeachment proceedings)?

There is no doubt in my mind that Republicans would put a higher priority on “getting” Obama than on leaking information related to national security. (Recall that Cheney outed CIA agent Valerie Plame when her husband, Ambassador Joe Wilson, was testifying before congress on the bullshit about Iraq’s weapons of mass destruction. Outing a CIA agent is against the law and no one knows how many of her Middle East contacts were executed after she was compromised.)

Anyhow, the above is just one possibility as to why Obama hasn’t released the memos which “legally justify” the drone strikes he’s ordered.

And for the record, I’m terrified about the precedent being set that could be used by some future inhabitant of the White House.

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Response to Solly Mack (Reply #1)

Fri Feb 8, 2013, 10:56 AM

2. He said he was turning them over, but hasn't.

Rachel Maddow (and others) covered this last night and evidently the Dems on the committe are not satisfied with what was turned over.

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Response to Cyrano (Reply #2)

Fri Feb 8, 2013, 11:06 AM

5. I think they just announced on Wednesday that they would turn the memos over.

I figured it would take longer than 2 days. Maybe they'll turn them over today. I don't know.

I knew the committees wanted more than the "white paper".



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Response to Solly Mack (Reply #5)

Fri Feb 8, 2013, 11:09 AM

6. Could be. As I said,

my post is just a theory. If I'm wrong, I hope he turns everything over. Had Bush/Cheney done this, we'd all be bouncing off the walls.

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Response to Cyrano (Reply #6)

Fri Feb 8, 2013, 11:14 AM

7. Oh, I agree that Republicans will use any means they can to attack President Obama.

Even as they embrace drones, they would still use the issue to attack him if they saw an opening. Hypocrisy isn't a real concept to them. Well, their own hypocrisy.

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Response to Solly Mack (Reply #5)

Fri Feb 8, 2013, 11:18 AM

8. They were supposed to have them yesterday (Thursday) morning

still nothing as far as I can tell, despite Congress asking 14 times already. Here's the timeline so far:


February 2011: Ron Wyden asks the Director of National Intelligence for the legal analysis behind the targeted killing program; the letter references “similar requests to other officials.” (1)

April 2011: Ron Wyden calls Eric Holder to ask for legal analysis on targeted killing. (2)

May 2011: DOJ responds to Wyden’s request, yet doesn’t answer key questions.

May 18-20, 2011: DOJ (including Office of Legislative Affairs) discusses “draft legal analysis regarding the application of domestic and international law to the use of lethal force in a foreign country against U.S. citizens” (this may be the DOJ response to Ron Wyden).

October 5, 2011: Chuck Grassley sends Eric Holder a letter requesting the OLC memo by October 27, 2011. (3)

November 8, 2011: Pat Leahy complains about past Administration refusal to share targeted killing OLC memo. Administration drafts white paper, but does not share with Congress yet. (4)

February 8, 2012: Ron Wyden follows up on his earlier requests for information on the targeted killing memo with Eric Holder. (5)

March 7, 2012: Tom Graves (R-GA) asks Robert Mueller whether Eric Holder’s criteria for the targeted killing of Americans applies in the US; Mueller replies he’d have to ask DOJ. Per his office today, DOJ has not yet provided Graves with an answer. (6)

March 8, 2012: Pat Leahy renews his request for the OLC memo at DOJ appropriations hearing.(7)

June 7, 2012: After Jerry Nadler requests the memo, Eric Holder commits to providing the House Judiciary a briefing–but not the OLC memo–within a month. (8)

June 12, 2012: Pat Leahy renews his request for the OLC memo at DOJ oversight hearing. (9)

June 22, 2012: DOJ provides Intelligence and Judiciary Committees with white paper dated November 8, 2011.

June 27, 2012: In Questions for the Record following a June 7 hearing, Jerry Nadler notes that DOJ has sought dismissal of court challenges to targeted killing by claiming “the appropriate check on executive branch conduct here is the Congress and that information is being shared with Congress to make that check a meaningful one,” but “we have yet to get any response” to “several requests” for the OLC memo authorizing targeted killing. He also renews his request for the briefing Holder had promised. (10)

July 19, 2012: Both Pat Leahy and Chuck Grassley complain about past unanswered requests for OLC memo. (Grassley prepared an amendment as well, but withdrew it in favor of Cornyn’s.) Leahy (but not Grassley) votes to table John Cornyn amendment to require Administration to release the memo.

July 24, 2012: SSCI passes Intelligence Authorization that requires DOJ to make all post-9/11 OLC memos available to the Senate Intelligence Committee, albeit with two big loopholes.

December 4, 2012: Jerry Nadler, John Conyers, and Bobby Scott ask for finalized white paper, all opinions on broader drone program (or at least a briefing), including signature strikes, an update on the drone rule book, and public release of the white paper.

January 14, 2013: Wyden writes John Brennan letter in anticipation of his confirmation hearing, renewing his request for targeted killing memos. (11)

February 4, 2013: 11 Senators ask for any and all memos authorizing the killing of American citizens, hinting at filibuster of national security nominees. (12)

February 7, 2013: Pat Leahy and Chuck Grassley ask that SJC be able to get the memos that SSCI had just gotten. (13)

February 7, 2013: In John Brennan’s confirmation hearing, Dianne Feinstein and Ron Wyden reveal there are still outstanding memos pertaining to killing Americans, and renew their demand for those memos. (14)

http://www.emptywheel.net/2013/02/08/members-of-congress-have-asked-for-the-targeted-killing-memos-14-times/?utm_source=rss&utm_medium=rss&utm_campaign=members-of-congress-have-asked-for-the-targeted-killing-memos-14-times



We however, we the people, are never ever to see these memos or know what's in them. How's that for hope, change and transparency?

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Response to Catherina (Reply #8)

Fri Feb 8, 2013, 11:20 AM

10. Thanks!

So they were supposed to have the memos prior to the confirmation hearing.

Much appreciated!!!

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Response to Catherina (Reply #8)

Fri Feb 8, 2013, 01:01 PM

17. See reply #12

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Response to Cyrano (Original post)

Fri Feb 8, 2013, 10:59 AM

3. But the Republicans are completely FOR this resolution & the drone program.

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Response to JaneyVee (Reply #3)

Fri Feb 8, 2013, 11:02 AM

4. And they're MORE FOR dragging Obama down

any way they can.

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Response to Cyrano (Original post)

Fri Feb 8, 2013, 11:20 AM

9. Or, the public? How can "we the people" hold our government accountable if we don't know what it's

doing?

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Response to Cyrano (Original post)

Fri Feb 8, 2013, 11:48 AM

11. I think it's the opposite

what's damning about the drone program is that it legitimizes Bush type national security policies, which of course the GOP supported wholeheartedly. The worst the GOP can do with the information is call him a hypocrite, but mostly it just undermines their line about him being soft on terror.

Which makes this policy perfectly sensible politically. It undercuts the right wing, and the only downside politically is opposition from the left, which mostly isn't happening. Obama can take liberal support 100% for granted. Since being in office, he has spent approximately 3 seconds worrying about opposition the left.

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Response to Cyrano (Original post)

Fri Feb 8, 2013, 11:55 AM

12. Because it is an opinion of counsel


The Office of Legal Counsel exists specifically to provide the President with legal advice. That attorney-client relationship is no different than any other attorney-client relationship with respect to the confidentiality and privilege of advice provided in the context of that relationship.

It's not a question of "classified" or "secret" information. It is subject to the same legal protections as a letter from your lawyer advising you on whether you should sue your cousin over Aunt Bertha's will.

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Response to jberryhill (Reply #12)

Fri Feb 8, 2013, 12:04 PM

13. We saw the "legal advice" that

Bush/Cheney got from lawyer John Yoo and others regarding torture. It doesn't stand up to the light of day.

As I said elsewhere, I hope the theory in my op is wrong. It would be a catastrophy if some future president in the Bush/Cheney mold used Obama's actions as a precedent. If a president can order the death of American citizens, what's to stop some future prez from hitting some "terrorist" group in South Chicago?

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Response to Cyrano (Reply #13)

Fri Feb 8, 2013, 12:59 PM

16. Yes, we did see it

A client can waive privilege in relation to opinions of counsel. It's usually a good course not to do so at the drop of a hat, since asking for an opinion of counsel is an exceptional request, and being too willing to release them raises a question as to whether one has generally waived the privilege. Hence the "tooth pulling" exercise in getting the opinion to the committee.

As a general matter, though, it is not the responsibility of anyone to provide explanations of why they believe their activities to be legal. That's not even how our system is set up.

The way our system is supposed to work is that if Congress is of a mind that the President is engaged in unlawful behavior, Congress can draft articles of impeachment to that effect. It's up to the one asserting unlawful behavior to prove it. Whether or not the President obtained an opinion of counsel in advance is a defense to willfulness, provided the opinion is reasonable. The standard for reasonability in that context is not whether the opinion is "correct" in any sense, but whether it is reasonable per se. It is entirely possible and common to be reasonable, and to be incorrect.

To avoid having to invoke the impeachment process to sort these kinds of things out, what happens is precisely what is happening - i.e. a less formal hashing out of this kind of thing along the lines of "what is the probable defense and likely prospects for success" in a committee setting.

But the mere fact that the White House doesn't release opinions of the OLC is, itself, unexceptional, routine, and mundane.

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Response to jberryhill (Reply #16)

Fri Feb 8, 2013, 01:20 PM

19. I'll bow to what seems to be

your informed legal opinion. In reality, the Republicans always want to "bomb the hell out of the ragheads," so they're not bitching about the memos not being turned over. And the Dems have no desire whatever (nor do I) to impeach our president.

So if your legal analysis is correct, we're screwed concerning tranparency in government.



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Response to Cyrano (Reply #19)

Fri Feb 8, 2013, 02:38 PM

20. I wouldn't say we are "screwed concerning transparency"

First off, what we are talking about here is a legal memo containing the opinion of counsel in relation to an activity which we know is being conducted. As I mentioned, there is no obligation for the president to provide a legal justification for anything the president is doing. Before he came out and pardoned turkeys in November, he doesn't precede that action with "according to the opinion of my counsel, I am permitted to engage in ceremonial activities which observe certain holidays... yadda... yadda... yadda..." In other words, the president is not obligated to have obtained an opinion of counsel in the first place.

As far as "transparency" goes, we know that Al-Awlaki was a US citizen in Yemen who was killed on order of the president by a drone attack. That these things are going on is not a secret. The question of "why do you think this is legal?" is answered by "I have an opinion of counsel to that effect". Again, the Congress is perfectly well able to assert that they believe it is not legal, and to act on that assertion. In other words, what matters is whether Congress is informed of what the administration is doing. The rationale by which the administration does it, which is the focus of the "OMG SEKRIT MEMO" business, is really only secondary to the question of whether Congress is informed of the actions themselves, rather than the thinking behind it.

The other thing Congress can do is to make rules which apply to the activity. It is the apparent lack of a legal framework around this activity which is the primary problem. That, again, is the fault of Congress, not the president. At bottom, the Church Commission recommendations and practices need an update. This requires having a functional Congress.

A simple way to put it in legal terminology also sounds superficially scary, but is trivially true. In your daily life, you are not regularly asked by anyone to explain why you think you are not violating any laws. If you cross a street, a cop doesn't come up to you and say, "What makes you think you crossed that street legally?" In other words, you are presumed to be engaging in lawful behavior unless it is proven otherwise. The burden is always on the accuser. So when I say the following sentence, don't read too much into it: The President's actions are presumptively legal. Just like anyone else's. That doesn't mean they can't be proven to be illegal, but it is neither the president's job, nor anyone else's, to provide a rationale for their belief they are engaging in legal behavior.

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Response to Cyrano (Original post)

Fri Feb 8, 2013, 12:14 PM

14. There are those other than Republicans who put a higher priority on "getting" Obama than on

anything else, so Republicans will have some help in that regard.

All of this is also about the Democratic policy agenda.

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Response to Cyrano (Original post)

Fri Feb 8, 2013, 12:15 PM

15. Don't forget the 1% have no political party. nt

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Response to Cyrano (Original post)

Fri Feb 8, 2013, 01:02 PM

18. Or it could be what it almost ALWAYS is.

And the "Top Secret" label was attached because the information would make them look bad all on its own.

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