These Are the Memos You Want

Cross posted from The Stars Hollow Gazette

The secret memos giving the legal justification for drone attacks and “kill lists,” that President Barack Obama has refused to say even existed, are to be released to the two Congressional Intelligence Committees

Until Wednesday, the administration had refused to even officially acknowledge the existence of the documents, which have been reported about in the press. This week, NBC News obtained an unclassified, shorter “white paper” that detailed some of the legal analysis about killing a citizen and was apparently derived from the classified Awlaki memorandum. The paper said the United States could target a citizen if he was a senior operational leader of Al Qaeda involved in plots against the country and if his capture was not feasible.

Administration officials said Mr. Obama had decided to take the action, which they described as extraordinary, out of a desire to involve Congress in the development of the legal framework for targeting specific people to be killed in the war against Al Qaeda. Aides noted that Mr. Obama had made a pledge to do that during an appearance on “The Daily Show” last year.

Don’t get too excited, these memos are still classified and will only be released to the members of the two congressional committees consisting of 35 people selected by party leaders. Keep in mind two of those 35 members are Representatives Michelle Bachmann (R-MI) and Lynn Westmoreland (R-GA).

A point that Marcy Wheeler makes is this is being misreported, there is more than one memo. President Obama and Senators Ron Wyden (D-OR) and Dianne Weinstein (D-CA) have all referred to memos, plural, but people persist in reporting that there is one memo.  The white paper that MSNBC’s Michael Isikoff reported was given to Congress was not the memo we were looking for

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.

I have no idea how this will effect John Brennan’s confirmation hearing before the Senate Select Committee On Intelligence but it should be interesting considering some of the questions that Sen. Ron Wyden (D-OR) intends to ask.

    Every American has the right to know when their government believes that it is allowed to kill them.

   The Justice Department memo that was made public yesterday touches on a number of important issues, but it leaves many of the most important questions about the President’s lethal authorities unanswered.  Questions like ‘how much evidence does the President need to decide that a particular American is part of a terrorist group?’, ‘does the President have to provide individual Americans with the opportunity to surrender?’ and ‘can the President order intelligence agencies or the military to kill an American who is inside the United States?’ need to be asked and answered in a way that is consistent with American laws and American values.  This memo does not answer these questions.