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.
“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.
Tracy Schmaler, a spokeswoman for Holder, did not reply to a request for comment.
Vice President Joe Biden waits to conduct a mock swearing-in ceremony with Sen. Brian Schatz, D-Hawaii, in the Capitol's Old Senate Chamber, December 2, 2014. Schatz was sworn in to serve the remainder of his term since he was appointed to the seat after Sen. Daniel Inouye, D-Hawaii, passed away.