The Anwar al-Awlaki and Samir Khan assassinations (6)

The invaluable Charlie Savage has an important new report on President Obama's assassination policy, Secret U.S. Memo Made Legal Case to Kill a Citizen New York Times 10/08/2011. Citing as his sources "people who have read the document," he reports:

The secret document provided the justification for acting despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war, according to people familiar with the analysis. The memo, however, was narrowly drawn to the specifics of Mr. Awlaki's case and did not establish a broad new legal doctrine to permit the targeted killing of any Americans believed to pose a terrorist threat. ...

The legal analysis, in essence, concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him. [my emphasis]

According to this reading, the Administration may have violated its own highly dubious (to put it way too generously) justification for the assassination, which in Savage's reporting allowed the hit hit only if capture were not feasible.

The qualification that Savage's sources gave him that the Awlaki kill memo "did not establish a broad new legal doctrine to permit the targeted killing of any Americans believed to pose a terrorist threat" is a tendentious qualification on the face of it. It authorized the assassination of an American citizens without trial, formal charges or any kind of legal process; I don't consider the CYA legal memo Savage is reporting to be legal process, because it's clearly not. But if the President can order the murder of an American citizen under such conditions, it doesn't matter if the Administration calls it "a broad new legal doctrine". If it can claim the legal right to murder Awlaki in these conditions, it can simply state that anyone is an imminent terrorist threat and order them assassinated.

Congress should do a serious investigation of this and demand the appointment of a special prosecutor. Neither is likely to happen, since the Republicans all-but-unanimously support such an assassination option for the President and because the Democrats in Congress either support it or will be unwilling to challenge the Democratic President on it. But that shouldn't stop us from saying that it should be done. Because this issue isn't going away any more than the issue of the torture crimes of the previous Administration.

Savage writes, "The memorandum, which was written more than a year before Mr. Awlaki was killed, does not independently analyze the quality of the evidence against him." It just says the President can assassinate him. Why bother analyzing the evidence when the President has decided the target is somebody who needs killin'?

It's particularly grim to see just how thin their legal justifications are for disregarding the Fourth Amendment guaranteeing a right to trial:

Then there was the Bill of Rights: the Fourth Amendment's guarantee that a "person" cannot be seized by the government unreasonably, and the Fifth Amendment's guarantee that the government may not deprive a person of life "without due process of law."

The memo concluded that what was reasonable, and the process that was due, was different for Mr. Awlaki than for an ordinary criminal. It cited court cases allowing American citizens who had joined an enemy's forces to be detained or prosecuted in a military court just like noncitizen enemies.

It also cited several other Supreme Court precedents, like a 2007 case involving a high-speed chase and a 1985 case involving the shooting of a fleeing suspect, finding that it was constitutional for the police to take actions that put a suspect in serious risk of death in order to curtail an imminent risk to innocent people.

The document's authors argued that "imminent" risks could include those by an enemy leader who is in the business of attacking the United States whenever possible, even if he is not in the midst of launching an attack at the precise moment he is located.

I expect we'll see some professional legal commentary from Constitutional attorneys and scholars on this. Not that it will matter to the authors of this Mob-lawyer-like legal memo. Because it's not at all clear that Awlaki was part of anything that could be considered legally an enemy army; there was no police chase or evidence (so far as we know) that Awlaki presented an imminent danger to anyone other than Samir Khan, and that only because Khan risked becoming a casualty of the CIA's assassination strike on Awlaki; and the definition use of "imminent" there essentially means "not imminent".

Such is the level of Constitional reasoning it takes to authorize an Administration led by a Constitutional law expert to assassinate an American citizen without the barest pretence of due process of law.

There's no way this is anything other than a very bad precedent that will be further abused if it is not legally and definitively reversed.

On whether capturting Awalki was feasible, Savage writes:

It is possible that officials decided last month that it was not feasible to attempt to capture him because of factors like the risk it could pose to American commandos and the diplomatic problems that could arise from putting ground forces on Yemeni soil. Still, the raid on Osama bin Laden’s compound in Pakistan demonstrates that officials have deemed such operations feasible at times.

Last year, Yemeni commandos surrounded a village in which Mr. Awlaki was believed to be hiding, but he managed to slip away.

Tags: anwar al-awlaki, assassination, charlie+savage, samir khan, war crimes

The Anwar al-Awlaki and Samir Khan assassinations (5)

Scott Horton appeared on RT's The Alyona Show talking about the Awlaki/Khan assassination (the video is dated 10/04/2011 at the show's YouTube channel):



He comments on it at his blog, The Secret Al-Awlaki Memo No Comment 10/03/2011:

The major questions following al-Awlaki’s death are simple: Why has the Obama Administration failed to make public its rationale for the strike, including the considerations that led it to the conclusion that it can use lethal force against a U.S. citizen under such circumstances? And why has it kept the Justice Department memorandum a secret?

This practice of the Obama Administration, continuing the policy of the previous Cheney-Bush Administration, is very dangerous. The RT video at around 7:15 shows Dick Cheney demanding an apology from the Obama Administration for criticizing their illegal policies because he's continuing so many of them. And, so far as we know, event he Cheney-Bush Administration never ordered a specific hit on an American citizen.

Tags: anwar al-awlaki, assassination, targeted assassination, samir khan

The Anwar al-Awlaki and Samir Khan assassinations (4)

Reuters has a report from Mark Hosenball on the extralegal process the President uses to decide which American citizens should be assassinated without so much as the pretence of legal process, Secret panel can put Americans on "kill list' 10/05/2011:

American militants like Anwar al-Awlaki are placed on a kill or capture list by a secretive panel of senior government officials, which then informs the president of its decisions, according to officials.

There is no public record of the operations or decisions of the panel, which is a subset of the White House's National Security Council, several current and former officials said. Neither is there any law establishing its existence or setting out the rules by which it is supposed to operate.

The panel was behind the decision to add Awlaki, a U.S.-born militant preacher with alleged al Qaeda connections, to the target list. He was killed by a CIA drone strike in Yemen late last month.

The role of the president in ordering or ratifying a decision to target a citizen is fuzzy. White House spokesman Tommy Vietor declined to discuss anything about the process.

This last is most likely a Mob-like legal dodge designed to minimize the potential legal liability of the President if the participants in this for-real "death panel" ever get caught up in the rule of law. Hosenball reports further:

Several officials said that when Awlaki became the first American put on the target list, Obama was not required personally to approve the targeting of a person. But one official said Obama would be notified of the principals' decision. If he objected, the decision would be nullified, the official said.

A former official said one of the reasons for making senior officials principally responsible for nominating Americans for the target list was to "protect" the president.

It's hard to put any good face on this. It's lynch law, which the Republican are glad to have the African-American President validate, even as they smear him as a Kenyan Marxist Islamunofascist who hates America and white people. As Scott Lemieux puts it (The Star Chamber Lawyers Guns and Money 10/06/2011):

If you think this process isn’t an invitation for the worst sort of abuses, you must have been in a coma for most of the last decade. And it is striking how spotty and lacking in specifics about actual terrorist activity even the unrebutted, unchecked case against Awlaki is.

The latter comment may refer to the discussion of the allegations in the Reuters article.

Glenn Greenwald asks the obvious rhetorical question (Execution by secret WH committee Salon 10/05/2011):

So a panel operating out of the White House — that meets in total secrecy, with no known law or rules governing what it can do or how it operates — is empowered to place American citizens on a list to be killed by the CIA, which (by some process nobody knows) eventually makes its way to the President, who is the final Decider. It is difficult to describe the level of warped authoritarianism necessary to cause someone to lend their support to a twisted Star Chamber like that; I genuinely wonder whether the Good Democrats doing so actually first convince themselves that if this were the Bush White House’s hit list, or if it becomes Rick Perry’s, they would be supportive just the same. Seriously: if you’re willing to endorse having White House functionaries meet in secret — with no known guidelines, no oversight, no transparency — and compile lists of American citizens to be killed by the CIA without due process, what aren’t you willing to support? [my emphasis]

Obviously, someone who supports this is operating on an authoritarian assumption under which there can be no legal or moral objection to Presidential assassination orders. In the case of Democratic supporters, they are presumably doing so out of loyalty to the Democratic President and in deference to the national security establishment.

In the case of Republicans, their primary loyalty seems to be to the Party itself, as well as to the national security establishment, although they expect the latter to be subordinate to the Party, as well. What Dick Cheney need to establish his Unilateral Executive firmly as official practice was a successor President to validate it. As Greenwald also asks:

Even for those deeply cynical about American political culture: wouldn’t you have thought a few years ago that having the President create a White House panel to place Americans on a CIA hit list — in secret, without a shred of due process — would be a bridge too far?

The process has worked like this, with some of the steps occurring simultaneously:

• Cheney and Bush establish the torture policy, which included murdering prisoners and torturing American citizens (e.g., John Walker Lindh and José Padilla)

• Cheney and Bush establish a kangaroo court system outside the official civilians and military courts

• Cheney and Bush practice indefinite detention

• Cheney and Bush defend the torture policy under a effectively unlimited theory of Presidential power (the Unitary Executive, aptly called the Unilateral Executive by Al Gore)

• Cheney and Bush Make federal legal officials complicit in the crimes

• Cheney and Bush claim very expansive Executive secrecy claims

• The Obama Administration avoids prosecution of the torture crimes

• The Obama Administration continues key elements of the policy like the secret prisons, which virtually guarantee that torture will occur

• The Obama Administration makes even more expansive secrecy claims than the Cheney-Bush Administration

• The Obama Administration claims the right to assassinate American citizens accused of being enemies of the US with no legal process or judicial review

• The Obama Administration carries out such an assassination

Of course, all of this takes place in the context of the Iraq War, the Afghanistan War, now the Libya War and the wide range of domestic and international activities known as the War on Terror.

Samir Khan was apparently not on that secret hit list of American citizens. But he was an American citizen and he is dead, killed in the attack on Awlaki. The Charlotte Observer reports on Khan's family's public reaction to his killing in U.S. actions 'appall' family of slain al-Qaida blogger by Tim Funk 10/06/2011. They released the following statement which, whatever kind of person Khan actually was and whatever he may have done, are entirely valid questions:

"We, the family of Samir Khan, in our time of grief and mourning, request that the media let us have our peace and privacy during this difficult time. It has been stated in the media that Samir was not the target of the attack; however no U.S. official has contacted us with any news about the recovery of our son's remains, nor offered us any condolences. As a result, we feel appalled by the indifference shown to us by our government.

"Being a law abiding citizen of the United States our late son Samir Khan never broke any law and was never implicated of any crime. The Fifth Amendment states that no citizen shall be 'deprived of life, liberty, or property, without due process of law' yet our government assassinated two of its citizens. Was this style of execution the only solution? Why couldn't there have been a capture and trial? Where is the justice? As we mourn our son, we must ask these questions."

Funk's report notes what a landmark the Awlaki-Khan assassination was:

Friday's drone attack is thought to be the first instance in which a U.S. citizen was tracked and killed based on secret intelligence and the president's say-so. Al-Awlaki was placed on the CIA "kill or capture" list by the Obama administration in April 2010 - the first American to be so targeted.

This isn't an obscure procedural issue. The President has no authority to order an American citizen assassinated. In fact, it's illegal. No formal charges were ever brought against the two Americans summarily executed. Nor does the evidence in the public record indicate that they committed a capital crime, if indeed they committed a capital crime at all.

My understanding is that both men did advocate the killing of innocent Americans. If so, that's obviously wrong and contemptible. But under American law advocating the use of political violence in the abstract, even advocating criminal action like killing innocents in the abstract, is not a crime. But the sketchiness of the actual evidence in the public record can be seen in the Reuters report. Greenwald elaborates on that point in his column:

What's crucial to keep in mind is that nobody can see this "evidence" which these anonymous government officials are claiming exists. It's in their exclusive possession. As a result, they're able to characterize it however they want, to present it in the best possible light to support their pro-assassination position, and to prevent any detection of its flaws. As any lawyer will tell you, anyone can make a case for anything when they're in exclusive possession of all the relevant evidence and are the only side from whom one is hearing; all evidence becomes less compelling when it's subjected to adversarial scrutiny. Yet even given all those highly favorable pro-government conditions here, it’s obvious — even these officials admit — that the evidence is "partial," "patchy," based on "suspicions" rather than knowledge. [emphasis in original]

This assassinating American citizens is bad stuff. And this assassination of Anwar al-Awlaki and Samir Khan sets a seriously, seriously bad precedent for far more deadly and abusive actions by this and future Presidents.

Tags: anwar al-awlaki, assassination, targeted assassination, samir khan

The Anwar al-Awlaki and Samir Khan assassinations (3)

The Presidential-ordered assassination of American citizens Anwar al-Awlaki and Samir Khan in Yemen, neither of them so much as indicted for actual crimes, is a further serious corruption of the US Constitutional system. The Executive Branch has neither the legal nor Constitutional authority to target individual Americans for assassinations, within or outside the borders of the country. The idea that the President can order a hit on anyone he pleases, including an American citizen, goes to the heart of the rule of law, just as does the torture policy initiated by the Cheney-Bush Administration.

Michael Ratner, the president emeritus of the Center for Constitutional Rights, writes on The Extrajudicial Drone Murder of US Citizen Anwar al-Awlaki Alternet 10/02/2011:

The claim, after the fact, by President Obama that Awlaki "operationally directed efforts" to attack the United States was never presented to a court before he was placed on the "kill" list and is untested. Even if President Obama's claim has some validity, unless Awlaki's alleged terrorists actions were imminent and unless deadly force employed as a last resort, this killing constitutes murder.

We know the government makes mistakes, lots of them, in giving people a "terrorist" label. Hundreds of men were wrongfully detained at Guantánamo. Should this same government, or any government, be allowed to order people's killing without due process?

The dire implications of this killing should not be lost on any of us. There appears to be no limit to the president's power to kill anywhere in the world, even if it involves killing a citizen of his own country. Today, it's in Yemen; tomorrow, it could be in the UK or even in the United States. [my emphasis]

Daphne Evitar back last December noted the problematic nature of the federal court decision that blocked a challenge by Awlaki's father to the assassination order in Al-Awlaki Decision Leaves Key Questions Unanswered Human Rights First 12/07/2011:

"How is it that judicial approval is required when the United States decides to target a U.S. citizen overseas for electronic surveillance, but ... judicial scrutiny is prohibited when the United States decides to target a U.S. citizen overseas for death?"

That's just one of many intriguing questions raised - but not answered - by the D.C. District Court today in its decision dismissing the case of Anwar al-Awlaki, a challenge to the government's authorization to kill a U.S. citizen allegedly tied to Al Qaeda overseas. Ultimately, the court won’t answer any of these critical questions because it decided that Al-Awlaki's father lacks standing to sue, since he’s not directly harmed by the U.S. action.

Significantly, though, Judge John Bates did not dismiss the case on the merits. Instead, he went out of his way to write that the case raises important legal questions regarding whether the government can target its own citizen for death in a foreign country without so much as a hearing to determine that he's done anything wrong. [my emphasis]

Neither the torture crimes nor the assassination policy are going away. There has to be a real accounting for both. And an end to both.

Tags: anwar al-awlaki, assassination, targeted assassination, samir khan

The Anwar al-Awlaki and Samir Khan assassinations (2)

New Yorker senior editor Amy Davidson poses Questions About Killing Awlaki 09/30/2011. She concludes her piece with a key question:

If the debate about the death penalty in the past few weeks has shown anything, it should be that the bad nature of the executed is not the only thing that matters. So does the approach we take to execution, and the character and commitment to the law we show when we decide to kill someone. We have every right to interrogate those, no matter the frightening pictures and quotes from sermons we are shown. If we can kill Awlaki, in the way and for the reasons we have, whom else can we kill, and why?

Here are more of her questions:

... there are a couple of points here that should make anyone wary: first, that the President of the United States could order the killing of an American citizen with no judicial proceedings, in a country (Yemen) with which we are not at war, simply because the President judges that person to be dangerous; and, second, the fuzziness used when discussing the exact nature of the danger Awlaki posed. ...

Was it as a conspirator or an inspirer that he was killed? The "senior Administration official" told the Times that his operational role was more important, and the A.P. noted that the Administration disclosed new "detailed intelligence to justify the killing of a U.S. citizen." If so, it makes the extrajudicial nature of this operation more frustrating. And when one hears about Awlaki being linked to a dozen terror cases, the link in question is more often a sermon or an article or e-mails about jihad, rather than what might be called overt acts. (The Washington Post noted that he had been "been implicated in helping to motivate several attacks on U.S. soil.") Would that have been enough?

Although she mostly speaks about Awlaki's killing, she does mention the simultaneous killing of Samir Khan, who like Awlaki was an American citizen.

Marcy Wheeler in Anwar al-Awlaki Assassination: Double Secret Illegitimacy Emptywheel 10/01/2011 deals with this article by Jack Goldsmith, formerly of the Cheney-Bush Justice Department, in which he justifies the assassination of Awlaki, A Just Act of War New York Times 09/30/2011. The following is a big understatement: "This fateful new step in our ever-expanding war against terrorists — intentionally killing an American citizen — is fraught with the danger of executive overreach or mistakes." He doesn't even bother to mention the assassination of Samir Khan, the other American citizen who was with Awlaki. Unlike with Awlaki, the Justice Department had convened a grand jury to bring charges against Khan but failed to do so.

Tags: anwar al-awlaki, assassination, samir khan, war crimes

The Anwar al-Awlaki and Samir Khan assassinations (1)

The apparently successful assassination last week of American citizens Anwar al-Awlaki and Samir Khan by US forces in Yemen has emphasized for me again how important for the future of American democracy and the rule of law it is to drastically change our foreign policy and the bloated, often lawless national security state apparatus that comes with it.

This is yet another grim turning point for the United States. Even if the claim is true that Awlaki and Khan were actual threats to the United States - claims not established by sound information in the public record - this is still a huge overstep of Executive authority. Like the Cheney-Bush torture program, this goes to the heart of the rule of law. If the Executive can order the murder of American citizens based solely on the judgment of the Executive Branch with no judicial process, which is what the Obama Administration did here, the rule of law can be put in abeyance simply of the word of the President that it involves national security.

It was clear long ago that the Obama Administration was not going to prosecute even the most serious torture and other war crimes of the previous Administration. But now that Obama has maintained secret prisons for this long, which operate under conditions that torture is virtually certain to take place even if it's not officially permitted, and now has actually deliberately assassinated two American citizens not even indicted for crimes, it virtually rules out any attempt to prosecute such crimes from the previous Administration. Because they are now open to prosecution under American and international law themselves.

Tags: anwar al-awlaki, assassination, samir khan, war crimes

The assassination of US citizen Anwar al-Awlaki

However bad a guy Anwar al-Awlaki may have been, he was an American citizen who had never been charged with a crime, much less convicted in a legal process. And he was just reportedly assassinated by the US military, possibly along with another American citizen. This is a big problem, even if everything the US government that killed Awlaki is saying about him really is true. There have been claims before than Awlaki had been killed, but this one apparently has more confirmation than the typical Awlaki-is-dead-again reports.

Here is President Obama's triumphalist announcement of having successfully assassinated an American citizen:



Again, the claims Obama is making of Awlaki's misdeeds have never produced an indictment, much less a conviction. "Only" an assassination.

This is a 09/30/2011 report from Aljazeera English:



The headline on Glenn Greenwald's commentary isn't an exaggeration: The due-process-free assassination of U.S. citizens is now reality Salon 09/30/2011. This is a seriously bad precedent, a direct violation of US law. Greenwald writes:

It was first reported in January of last year that the Obama administration had compiled a hit list of American citizens whom the President had ordered assassinated without any due process, and one of those Americans was Anwar al-Awlaki. No effort was made to indict him for any crimes (despite a report last October that the Obama administration was "considering" indicting him). Despite substantial doubt among Yemen experts about whether he even has any operational role in Al Qaeda, no evidence (as opposed to unverified government accusations) was presented of his guilt. When Awlaki's father sought a court order barring Obama from killing his son, the DOJ argued, among other things, that such decisions were "state secrets" and thus beyond the scrutiny of the courts. He was simply ordered killed by the President: his judge, jury and executioner. When Awlaki's inclusion on President Obama's hit list was confirmed, The New York Times noted that "it is extremely rare, if not unprecedented, for an American to be approved for targeted killing."

This is seriously bad stuff. There were good reasons the US got its agencies completely out of the assassination business in the 1970s. But this is the first time a US Administration has proclaimed its authority to put out a hit on US citizens solely on the authority of the Executive Branch. This is one way in which the Obama Administration has extended its claims of illegitimate Executive power beyond anything Cheney and Bush had declared.

Greenwald notes grimly, "The government and media search for The Next bin Laden has undoubtedly already commenced."

Tags: anwar al-awlaki, glenn greenwald

American citizen Dangerous terrorist almost assassinated

Margaret Coker, et al, reported for Rupert Murdoch's Wall Street Journal that the Obama Administration just tried but failed to assassinate US citizen Anwar Al-Awlaki: Strike Marked Yemeni Cleric 05/06/2011. Despite the Murdoch-y headline, Al-Awlaki is a US citizen. Here's how they report it, relying on an anonymous "Yememi account," whatever that may mean:

According to a Yemeni account of Thursday's strike, the U.S. launched two separate attacks aimed at Mr. Awlaki in the southern province of Shebwa, which is considered an AQAP [Al Qa'ida in the Arabian Peninsula] stronghold.

The missiles killed two suspected AQAP members but missed their intended target, Mr. Awlaki. Although the strike was conducted by the military, the operation—like the bin Laden raid—appears to be the result of close cooperation between the Department of Defense, the CIA and Yemeni officials.

Yemen officials said the U.S. fired twice at Mr. Awlaki in two attacks spread over about 45 minutes. In the first, the U.S. fired three rockets at a pickup truck in which Mr. Awlaki and a Saudi national and suspected al Qaeda member were traveling outside the village of Jahwa, located some 20 miles away from the Shebwa provincial capital, according to local residents and the Yemeni security official.

Two Yemeni brothers, who were known by local residents for giving shelter to al Qaeda militants, rushed to the scene of the attack. Mr. Awlaki switched vehicles with them, leaving the two Yemenis in the pickup. A single missile from the U.S. rocket then hit the pickup truck, killing the Yemenis inside.

Mr. Awlaki escaped in the other vehicle.

The writers draw this conclusion:

The strike sends a clear message that despite turmoil in the Middle East and the success of the bin Laden operation, the U.S. is resolved to ratchet up an aggressive campaign targeting Mr. Awlaki and other members of his group.

They repeat the US claims about Al-Awlaki and his supposed role with the so-called Al Qa'ida in the Arabian Peninsula group.

But this is problematic, to put it mildly. This is an American citizen who has been sentenced to death by assassination by the US government, with no trial and no judicial vetting of the evidence by which he has been sentenced to death.

And not to worry about the two brothers who were erroneously killed instead. According to the Journal, they were "known by local residents for giving shelter to al Qaeda militants," so they obviously deserved to die anyway. At least that's the logic of the targeted-assassination world. If we believe the anonymous "Yememi account." And the US government's un-vetted evidence against Al-Awlaki.

For now, the Global War On Terror goes forward!

Tags: anwar al-awlaki,, global war on terror, targeted assassination