“Excuse me, will you commit to providing a copy of the ... legal memo?” Nadler interrupted to ask.
Holder replied that he would “certainly look at the request” and “consider the possibility of a briefing.”
“The possibility? You won’t commit to giving a briefing to this committee?” Nadler asked.
Holder ended up pledging to respond to the request within a month.
“The Department of Justice has not been very cooperative with us, to put it mildly. On this or a number of other things,” Nadler said in an interview. “It is frustrating.”
Nadler added that Holder only responded to questions from a December hearing two days before last week’s hearing.
“We got the response two days ago. And I’m sure we probably wouldn’t have gotten a response if he wasn’t going to appear before the committee again,” Nadler said.
Leahy requested the OLC drone memo in writing in October, then asked Holder about it at a November hearing.
The request came shortly after Anwar al-Awlaki, a senior al-Qaida official who was a U.S. citizen born in New Mexico, was killed by the United States in Yemen.
Holder refused to indicate whether the memo existed but promised to accommodate Leahy “to the extent that we can.”
But eight months later, Leahy is still empty-handed. He renewed his request in his opening statement at a hearing Tuesday.
Leahy could subpoena the document. But the Vermont Democrat has praised the DOJ for its cooperation in other areas and might not believe that is a necessary step.
In the House hearing, Nadler also asked Holder about the DOJ’s prosecutions of medical marijuana producers and about the administration’s invocation of the state secrets privilege.
Nadler cited reports that the Obama administration has been more aggressive in prosecuting medical marijuana dispensaries than the Bush administration, but Holder dismissed that as fantasy.
“This is inconsistent with the little thing called the facts,” Holder said. “We limit our enforcement efforts to those individuals and organizations that are acting out of conformity with state laws. Or, in the case of Colorado, where distribution centers were placed in close proximity to schools.”
Nadler said he was looking into it but was doubtful that Holder’s answer was true. “I’m not aware of that fact,” he said, laughing. “I was surprised to hear that. I hope it’s correct.”
Nadler also pressed Holder on the administration’s invocation of the state secrets privilege, which allows the executive branch to bar evidence and even entire cases from court if it could expose vital national security information.
Nadler, who has introduced legislation that would rein in the use of the doctrine by the executive branch, said the Bush administration used the state secrets doctrine more often and in a far broader way than previous administrations.
Holder instituted a policy in September 2009 requiring his personal approval for the executive branch to cite the privilege in court.
Holder said he had only approved its invocation “one, two, [or] three” times, saying he couldn’t remember the precise number.
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