DOJ Places David Barron’s Anwar Awlaki Memos on the “Not Selected for Publication”

Sometime between March 27 and April 15 of last year, the Office of Legal Counsel posted the two memos David Barron wrote authorizing the execution of Anwar al-Awlaki (February 19, 2010; July 16, 2010) on its list of memos “Not selected for publication” in its reading room. The website explains that these are memos that have been posted through discretionary release, but “may not reflect the Office’s current views.”

Consistent with the President’s FOIA memorandum dated January 21, 2009, and the Attorney General’s FOIA guidelines dated March 19, 2009, OLC sometimes releases requested records as a matter of discretion, even if they fall within the scope of a FOIA exemption or have not been the subject of a FOIA request.  To make such documents generally available when they are the subject of repeated requests or may be of public or historical interest, the Office may post them in this electronic reading room.  Documents posted in this electronic reading room are being disclosed through discretionary release, but they have not been selected for official publication and thus they are not included among the Office’s formal published opinions.  Although these records may be of public or historical interest, the views expressed in some of these records may not reflect the Office’s current views.

Of course, a number of the memos (most but not all of which are tied to the war on terror) weren’t released at DOJ’s discretion. Rather, some of these memos (including the two Awlaki ones) were released after DOJ tried to suppress them, only to have a Federal judge force their release.

I’ve got a call in to see if OLC has some easy explanation. But I’m wondering if it means DOJ may have thought better of now Circuit Court judge David Barron’s advice that you can kill an American citizen with no real due process.

Particularly given the timing, I’m wondering whether any change in DOJ’s views about these memos would affect American citizens overseas, such as Liban Haji Mohamed, a Somali American who was put on the Most Wanted List last year, then detained (never to publicly have shown up in an American court) on March 2, 2015. Unlike Anwar al-Awlaki, Mohamed (who is the brother of Gulet Mohamed, who has had a whole different set of problems with the government) has actually been indicted.

ACLU’s Jameel Jaffer points to a potentially more cynical (and therefore likely) explanation though. As he noted last year, at about the same time DOJ was deeming the Barron memos discretionary releases, it submitted a filing in their lawsuit against ACLU, insisting that having been ordered by a court to release the memo doesn’t count as official disclosure. In a footnote of the April 2 filing, DOJ claimed,

We further note that the Court’s release of the OLC-DOD Memorandum and its order compelling disclosure by the government of additional information would not themselves constitute an independent official disclosure or waiver by the government that would strip protection from otherwise exempt information and material.

That is, during precisely the time period when it was deeming this memo discretionary on its website, it was making that argument to the courts.

So I assume they believe they still have the right to execute American citizens at their discretion. And keep their rationale for doing so secret.

CIA Officers Didn’t Carry Out Waterboarding

A lot of people are pointing to John Brennan’s assurances that CIA won’t ever torture again as if it means anything (usually ignoring Brennan’s motivation from institutional preservation, not efficacy or morality or legality).

CIA Director John Brennan told NBC News in an exclusive interview that his agency will not engage in harsh “enhanced interrogation” practices, including waterboarding, which critics call torture — even if ordered to by a future president.

“I will not agree to carry out some of these tactics and techniques I’ve heard bandied about because this institution needs to endure,” Brennan said.

[snip]

When asked specifically about waterboarding Brennan could not have been clearer.

“Absolutely, I would not agree to having any CIA officer carrying out waterboarding again,” he said.

There are a lot of reasons this doesn’t mean anything, starting with the fact that President Trump could easily fire Brennan and replace him with someone pro torture.

But it’s funny, too, because Brennan’s assurances about waterboarding would hold true even for the period when CIA was waterboarding detainees. Because CIA officers didn’t do the waterboarding.

As a reminder, at least four detainees were known to be waterboarded under the Gloves Come Off Memorandum of Notification. The first, Ibn Sheikh al-Libi, was waterboarded by Egyptian intelligence, though with Americans present.

The others were waterboarded as part of torture led by Mitchell and Jessen, who were not CIA officers, but instead contractors. CIA officers were definitely involved in that torture (as they were present for our outsourced Egyptian torture). But the torture was technically done by contractors.

Don’t get me wrong: CIA officers did engage in a whole lot of torture directly.

But Brennan’s squirmy language should only emphasize the fact that even when CIA was in the business of waterboarding, CIA officers didn’t do the waterboarding. So Brennan’s guarantees that CIA officers won’t do so in the future are pretty meaningless guarantees.

Monday Morning: The Urge to Merge

In my eyes, indisposed
In disguises no one knows
Hides the face, lies the snake
The sun in my disgrace

— excerpt, Black Hole Sun by Soundgarden

Looks like this week is all about mergers. Enjoy this simulation on replay several times while listening to Soundgarden’s Black Hole Sun while we dig in.

Roll Call

• Yahoo’s vulnerability brings all the nasty suitors to the yard (MarketWatch) — If Daily Mail wins, Yahoo will be one massive tabloid, and Tumblr will become a cesspool. Bidding’s open until next Monday; what other potential buyers may emerge this week?
• Big names in hotels to join after shareholders approve Marriott offer for Starwood Hotels (UPI) — The vote came last Friday after Chinese insurance holding group Anbang withdrew from bidding.
• Merger of beer producers SABMiller and A-B InBev still in holding pattern (Milwaukee Business Journal) — The deal is languishing for approval by South Africa’s Competition Commission. Part of SABMiller was once South African Brewing.
• UK balks at Hutchins and Telefonica tie up (Reuters) — Cousins across the pond better watch out; this proposed merger, even if shot down by regulators, portends another telecom marriage ahead. With UK’s Competition and Markets Authority recommending a spin-off of either Three Mobile or O2 mobile network business in order to approve the deal, a divestment of one of these may happen anyhow.

The Yahoo and Hutchins-Telefonica deals bear scrutiny for their potential for mass surveillance depending on how the proposals play out. Yahoo could end up operating under UK laws, and some part(s) of either Hutchins or Telefonica could end up with a non-UK or non-EU partner.

All of these proposed mergers were in the works before the Panama Papers were released; none them appear to be motivated solely by tax reduction, but instead by economies of scale and weak market conditions. It’d be nice if executives of all companies raking in profits realized that failing to pay their hourly workers well has a direct impact on overall market demand. Their businesses could retain autonomy instead of spending time and money on M&A they could spend on employees’ wages.

Speaking of Panama Papers: revelations still shaping policy and politics

• U.S. Treasury still working on tax rules to reduce tax avoidance and evasion by offshoring (Bloomberg) — Many large holding company structures use intra-group loans to move money out of the U.S. The new rules which may limit these moves may affect not only U.S. corporations but foreign corporations with subsidiaries in the U.S.
• UK’s PM David Cameron facing heat about tax avoidance strategies used by his family (Scotsman) — Strategies included a tax-free gift of 200,000 pounds to Cameron from his mother. He is supposed to appear before Parliament for questioning.
• Mossack Fonseca still getting hacked due to poor security response (The Register) — At what point do we ask if MossFon is really just a honeypot, given continued insufficient security?

Just for fun: Rockets!
If you didn’t watch SpaceX’s Falcon 9 launch on Friday, you really ought to make some time to do so for entertainment purposes. The first stage of the rocket returned successfully for reused, nailing a landing on a drone ship — a DRONE SHIP AT SEA. I missed the fact the landing pad was a drone vessel when I watched the first attempts. It’s a really narrow thing, landing on a speck of a pad in the ocean which is pushed around a bit by ocean currents in spite of the drone ship’s programming and/or remote control. (I would love to know who named the drone ship, ‘Of Course I Still Love You’ and why…)

What’s similarly remarkable is the SpaceX team — their excitement is off the map, rather like watching a K-12 FIRST LEGO robotics competition than an aeronautics business at work. Note in the video the team’s reaction just seconds (about 27:30) to the first stage return landing; it’s as if they KNEW they had it nailed before it happened. Wouldn’t you love to know just how they knew?

Also for grins: compare SpaceX’s landing on Friday (start at 23:48 into video) to competitor Blue Origin’s recent rocket return. Blue Origin is owned by Amazon’s Jeff Bezos; the return is so smooth and slick, but it’s in the west Texas desert where potential disruption of the landing has been minimized. Important to keep in mind that SpaceX actually delivered a payload after reaching orbit, where Blue Origin is still limited to sub-orbit elevation.

With that our week’s been launched — let’s go!