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Republicans on both sides of the Capitol have piled on Attorney General Eric Holder recently. But now he’s facing document demands — and complaints — from Democrats as well.
In a House Judiciary Committee hearing last week, some of the most antagonistic questions came, surprisingly, from Rep. Jerrold Nadler, a liberal Democrat who represents Manhattan.
Nadler is demanding to see a Justice Department memo that explains the legal rationale for targeted drone killings of U.S. citizens overseas.
The memo is so sensitive that Holder refused to acknowledge whether it exists at a November hearing before the Senate Judiciary Committee. That panel’s chairman, Sen. Patrick Leahy (D-Vt.), is also seeking a copy.
If the administration does not release such documents, it would contrast with President Barack Obama’s decision to release, three months after his inauguration, the “torture memos” that outlined the legal rationale for “enhanced” interrogation techniques during the administration of George W. Bush.
Memos on both topics — if the drone memo even exists, although experts say it undoubtedly does — were authored by the DOJ’s Office of Legal Counsel.
In October 2011, the New York Times reported that the 50-page drone memo, written by David Barron and Martin Lederman, was completed in June 2010. The Times said the memo argued that a U.S. citizen participating in a war against the United States could be killed via drone if it were not possible to capture him.
John Elwood, a partner at Vinson & Elkins and a former deputy assistant attorney general in the Bush administration’s OLC, said that while he tries to give the benefit of the doubt to his successors, the circumstances of the drone memo point to a strong case for its release.
“It’s been two years since they signed it,” Elwood said, adding that the memo could be redacted or released with a DOJ white paper with the memo’s legal rationale, as the Bush administration did in some instances.
The DOJ, Nadler noted in the House hearing, has defended the drone policy in court by arguing that Congress, not the courts, should be the check on the drone policy.
“The department has sought dismissal of cases seeking judicial review of lethal targeting by arguing, among other things, that the appropriate check on executive branch conduct here is the Congress and that information is being shared with Congress to make that check a meaningful one. Yet we have yet to get any response to our request,” Nadler said.
Holder initially brushed off the question, offering a vague promise to “provide information to the extent we can” and referring to a public speech he delivered at Northwestern University.