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Justice Dept., CIA Decline Our FOIA Request About Killing U.S. Citizens

Descend for a moment, won’t you, into a bureaucratic labyrinth with me, in pursuit of constitutional rights and government transparency.

In April, anonymous administration officials claimed to reporters that they possessed the right to kill an American citizen, Anwar al-Awlaki, because of Awlaki’s apparent connections to al-Qaeda. There was no due process involved, as the Constitution entitles an American citizen at the risk of losing his life at the hands of the government; he could simply be targeted for death. Not knowing why such an act was legal, I filed a Freedom of Information Act request on April 7 with the Justice Department and the CIA, the two agencies most likely to make an assessment of the killing’s legality — Justice because that’s probably a job for its Office of Legal Counsel; CIA because it would probably be the agency asked to kill an American citizen believed to be part of al-Qaeda. (And because Awlaki is in Yemen, where the CIA has launched missiles at non-citizen al-Qaeda targets in the past.)

Today I got my answer: No. That wasn’t unexpected. The path the agencies took to to reject — sort of — my FOIA request, however, was. I’ll explain.

First, the CIA. I received a letter from CIA’s information and privacy coordinator, Delores M. Nelson, reminding me that the agency’s mandate deals with “foreign intelligence — not domestic — matters.” And that apparently causes an administrative problem with addressing my request. Nelson:

Our records are not configured in a way that would allow us to perform a search reasonably calculated to lead to responsive records. Therefore, we must decline to process your request.

So I’m not being denied on any substantive ground. The CIA just doesn’t know how to search for any record it may possess about the legality of killing an American citizen, just weeks after public confirmation appears that this is an active issue in internal counterterrorism deliberations focusing on an area of historic CIA counterterrorism operations. This is quite the non-responsive search tool.

Then there’s the Justice Department. My request went to its National Security Division and not the Office of Legal Counsel, for reasons that mystify me. But Arnetta James, the Freedom of Information and Privacy Acts initiatives coordinator at the division, wrote to tell me that the division doesn’t handle the information that interests me. Reasonable! But instead of forwarding my request to OLC, she sent it to the Defense Department’s Freedom of Information Policy Office. Someone there, I’m assured, will get back to me.

While I won’t complain — I suppose it stands to reason that the Defense Department could be tasked with killing al-Awlaki and accordingly it has a legal equity here — I’m going to try to re-file explicitly through the Office of Legal Counsel, which I still presume is the branch of government most likely to handle this rather remarkable constitutional assertion. I’ll commiserate with my editors and figure out how to respond to CIA as well.

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