David Barron and the OTHER missing memos

David Barron was just confirmed to the First Circuit.

To secure that vote, the Administration announced it would not appeal the Second Circuit’s order to turn over a redacted version of a July 16, 2010 memo Barron wrote at OLC authorizing the killing of Anwar al-Awlaki, effectively responding to demands from Senators Rand Paul and Mark Udall and others to release the memo in exchange for a vote.

With each Executive Branch confirmation (the Administration released a white paper summarizing the memo in connection with John Brennan’s 2013 confirmation as CIA Director), then, we get a slightly clearer picture of the Executive Branch’s legal justification for executing an American citizen who it claims played a senior operational role for a group affiliated with al Qaeda.

But thus far, the public – and apparently most or all of Congress – remains ignorant about the legal analysis behind other parts of the drone program.

When the Administration first released the Awlaki memo to all members of the Senate Intelligence Committee last year, Dianne Feinstein revealed that the Committee had never seen at least 5 other OLC memos pertaining to targeted killing. In her statement, she cited 9 total memos, while reporting at the time suggested there might be 11 (and therefore 7 memos even the Intelligence Committees had not seen).

Just after that disclosure, the National Journal provided some description of what might be in the memos withheld even from the Intelligence Committees: “secret protocols with foreign governments, including Pakistan and Yemen,” the two countries where the US is known to have used signature strikes. Members of the House Judiciary Committee have twice asked for memos pertaining to signature strikes; and John McCain has posed questions about them as well.

Another possible topic of memos describing the “protocols” used with the countries where we conduct lethal drone strikes would be what Greg McNeal called “side payment strikes,” which are “targets provided by allies in a non-international armed conflict in which the U.S. is a participant.” As Mark Mazzetti reported, the first drone strike in Pakistan targeted a Pakistani target, Nek Mohammed.

According to the National Journal, other withheld memos may pertain to countries less well-known to be theaters of drone operations, including Algeria and Mali.

And of course, memos may pertain to targeted killing carried out by means other than drones. Certainly, that’s another area in which the Administration has withheld information from Congress. At least until 2013, the Administration had refused to give Ron Wyden a list of all countries where the US had used lethal force in counterterrorism operations. And DOD has failed to meet statutory requirements that they inform the Armed Services Committees about targeted killing operations conducted under the AUMF. Thus, it would not be surprising if the Administration withheld memos authorizing actions that it hasn’t reported to Congress.  Ted Poe and Trey Gowdy have asked how War Powers Act pertains to drone campaigns; 7 Progressive Democrats have posed general questions about the “architecture” of the drone program.

Given the timing of drone campaigns in the countries reported to be covered by the still secret drone memos – drone strikes in Pakistan and Yemen pre-dated Barron’s tenure; patrols targeting Mali post-dated it – it’s likely many or most of these memos were written by other OLC lawyers, not Barron. Yet without a confirmation fight to leverage more targeted killing memos, we may never learn the legal arguments the government has used.

That’s where the Second Circuit’s order on the Awlaki memo may provide some additional value. Because Scott Shane’s FOIA was somewhat general, these memos may be included in a redacted Vaughn Index also required by the Second Circuit. At least then we might learn when OLC has weighed in on drone killing and during what time frame.

Until then, however, the Executive continues to operate much of its drone war without sharing the legal basis for it with Congress. 

About the Author(s)

Marcy Wheeler

Independent Journalist Follow her on Twitter (@emptywheel).