Early last week, NBC News published an exclusive report about an extraordinary document leaked to reporter Michael Isikoff that laid out the Obama administration’s legal case for assassinating US citizens abroad who align themselves with al-Qaeda or “associated forces.”
The document was a Justice Department white paper titled, “Lawfulness of a Lethal Operation Directed Against a US Citizen Who is a Senior Operational Leader of al-Qaeda or an Associated Force.”
The use of the term “white paper” raised a red-flag as it appeared to be one of many documents first sought by Truthout under a Freedom of Information Act (FOIA) request last summer.
Sure enough, after plowing through hundreds of records requests we filed in 2012, we located the original FOIA. It was filed August 10, 2012 with several Justice Department offices, including the Office of Legal Counsel (OLC), which prepared numerous memos authorizing targeted assassinations, of which the white paper is based upon. It said:
I am seeking copies of all “white papers” [emphasis added] and/or PowerPoints, briefing memos, and/or policy summaries and/or policy papers that Department of Justice officials provided to members of Congress, specifically but not limited to the Senate and House Judiciary Committees, or any member of the Obama administration on the use of Unmanned Aerial Vehicles (commonly referred to as “drones”) for the purposes of engaging in lethal force in other countries against terrorist targets. Additionally, I seek copies of all correspondence, which includes but is not limited to memos, letters and emails members of Congress sent to the Justice Department inquiring about the legal rationale behind the use of Unmanned Aerial Vehicles for the purposes of engaging in lethal force against terrorist targets in other countries and/or the general use of Unmanned Aerial Vehicles to hunt down terrorists. I request FOIA analysts use the following search terms: “targeted killing(s)” “targeted killing program,” “targeted assassination program,” “whitepaper,” “Senator John Cornyn,” “Senator Patrick Leahy.” The timeframe for this request would be January 2010 through the present.
Truthout’s FOIA request was filed immediately after investigative blogger Marcy Wheeler, who writes under the name Emptywheel, published a blog post about a congressional hearing where Sen. Patrick Leahy revealed that the Obama administration shared a targeted killing “white paper” with members of an oversight committee:
Leahy: I would note that each of the Senators has been provided with a white paper we received back as an initial part of the request I made of this administration.
Truthout sought expedited processing from the Justice Department’s various agencies where the requests were filed.
The request for expedited processing was granted on August 23, 2012 and September 13, 2012 by DOJ’s Office of Legal Counsel.
Because we filed our FOIA request with OLC and three other offices -Attorney General, Deputy Attorney General and Office of Legislative Affairs – which fall under the purview of the Justice Department’s Office of Information Policy (OIP), the supervisory paralegal at OLC, Bette Farris, suggested we withdraw our request to OLC in order to avoid “potentially duplicative efforts and duplicative fees.”
Farris explained in a September 20, 2012 email: “We expect that those [other] offices would have any responsive records that OLC would have.”
In the interest of receiving responsive records in a timely fashion, Truthout agreed – with the caveat that we reserved the right to resubmit the request at a later time if we were not satisfied with the response from the other Justice Department components.
Six months passed and we still had not received any responsive records. Despite the Obama administration’s high-minded claims that it has taken steps, “unprecedented in American history, to enhance transparency,” it has failed to live up to that pledge when it pertains to the administration’s national security policies.
So when NBC News reported on February 4 that it had obtained a copy of the targeted killing white paper – an unclassified document – just days before the scheduled nomination hearing for John Brennan, Obama’s pick to lead the CIA – the agency that oversees the targeted killing program – Truthout spent the better part of a week trying to find out why our expedited FOIA request went unanswered and we were short-changed on a possible scoop.
Doug Hibbard, the deputy chief of the Initial Request Staff of OIP who supervises the handling of FOIA requests processed by OIP, told Truthout a day after NBC’s report on the white paper was published: “We’re searching for and making sure we find all tangential records” responsive to Truthout’s request.
Hibbard would not specifically discuss why the white paper had not been turned over to Truthout. He noted, however, that some of the records we have requested are currently tied up in litigation between the ACLU and the Department of Justice. The ACLU has been seeking a wide range of documents from the Obama administration about the targeted killing program.
Hibbard said it would take about three months to finish processing our FOIA request. However, last Wednesday, New York Times reporter Charlie Savage revealed on Twitter that his colleague, Scott Shane, also filed a FOIA request for the targeted killing white paper in December with OLC and received a response on January 23, which said the document was being withheld under an exemption that protects “deliberative” records from disclosure. The New York Times has been engaged in a FOIA lawsuit against the government over its refusal to turn over the OLC legal opinion authorizing targeted assassinations of US citizens.
Truthout again contacted Hibbard. He said he could not comment on Shane’s FOIA and the denial he received because Shane filed his request with a different Justice Department component, OLC. But he promised to look into it and get back to us.
Meanwhile, still determined to uncover why the unclassified white paper had not been turned over to Truthout, we filed FOIA requests with OIP for records that are known as processing notes, which provides FOIA requesters with insight into how their records requests are processed and handled by analysts and agency officials. [For an example, see these processing notes Truthout received related to the New York Times’ FOIA request for the OLC legal opinion on targeted killings of US citizens.]
In addition to seeking the processing notes related to Truthout’s FOIA request, we also filed one with OLC to determine how its analysts handled Shane’s records request. Typically it takes several months to receive such records.
At the end of the day last Friday, Truthout received an email from OIP, along with two PDF attachments. It was the targeted killing white paper.
“The Department has determined that the enclosed document responsive to your request is appropriate for release … as a matter of agency discretion, “wrote OIP Director Melanie Ann Putsay, in a letter accompanying the document. “Please be advised that we are continuing our records searches in the Offices of the Attorney General, Deputy Attorney General and Legislative Affairs for additional material responsive to your request.”
The white paper was identical to the one leaked to NBC News, except the one Truthout received was dated November 8, 2011 and was marked “draft.” Hibbard did not respond to a voicemail message Truthout left at his office Wednesday as to why the white paper was released now.
But Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists, wrote at his web site, Secrecy News:
Obviously, the fact that the document leaked – and had already been read by most people who cared to do so – altered DOJ’s calculation. The decision to cease withholding the document in light of its public availability displays some minimal capacity for reality-testing. To continue to insist that the document was protected and exempt from release would have been too absurd.
Aftergood filed a FOIA request for the targeted killing white paper on February 6, two days after NBC News wrote about it. OLC also reversed its previous decision and turned over a copy of the white paper to Shane, the New York Times, reporter, as well.
During his State of the Union address Tuesday evening, Obama made an apparent reference to the targeted killing program and promised to be more transparent with Congress, “the American people and the world” related to the “targeting, detention and prosecution” of terrorists.
“I recognize that in our democracy, no one should just take my word for it that we’re doing things the right way,” Obama said.
But the president’s promise to be more transparent on national security matters “has little meaning,” wrote Adam Serwer in Mother Jones, given that the administration has “consistently invoked the state secrets doctrine to block judicial scrutiny of Bush-era abuses and national security practices” and “has resisted efforts by civil libertarian groups to shed light on Obama administration policies such as targeted killing, calling them ‘secret’ even when they are public knowledge.
“When it comes to the Freedom of Information Act,” Serwer added, “the Obama administration’s promises of transparency have gone unfulfilled.”
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