Eight Months after Putting Anwar al-Awlaki on Kill List, DOJ Considers Charges

Back in January, Dana Priest first revealed that Anwar al-Awlaki was on a JSOC kill list and was being considered for a CIA kill list. Now, eight months later, DOJ is considering charging him.

The Obama administration is considering filing the first criminal charges against radical cleric Anwar al-Awlaki in case the CIA fails to kill him and he’s is captured alive in Yemen.

[snip]

Such charges, however, would come with political and intelligence-gathering risks. Counterterrorism officials regard al-Awlaki as a terrorist operative, not just a preacher, but they have revealed few specifics. Charging al-Awlaki with having direct involvement in terrorism could require the U.S. to reveal evidence gleaned from foreign wiretaps or confidential informants.

Now, it appears DOJ sources are throwing some baloney in with this news. For example, the claim that criminal charges might require the US to reveal evidence collected using wiretaps doesn’t sound all that awful, given that the contents of some of the wiretaps of al-Awlaki’s communications with Nidal Hasan have already been published. The government didn’t seem to have a problem leaking these intercepts earlier this year…

And the claim that they’re charging al-Awlaki just in case they happen to capture him alive rather than dead (opps!)? I’d suggest it probably has a lot more to do with the suit CCR and ACLU have taken against the government. I’m guessing that following shortly on formal charges, DOJ will tell the courts they can’t litigate the al-Awlaki suit because it pertains to an ongoing criminal investigation. Voila! No discovery in the lawsuit!!

Particularly given this detail:

If the Justice Department decides to charge al-Awlaki, it’s likely he would not be indicted. Rather, charges are more likely to take the form of an FBI complaint. That’s because an indicted suspect automatically gets the right to an attorney if he is captured, making it harder for authorities to question him.

In other words, this doesn’t appear to be an effort to finally use due process before targeting an American citizen with assassination. Rather, it seems to be more about closing off legal options to that American citizen.

Update: Here’s the joint ACLU/CCR statement on this:

Our organizations have long stated that if the government has evidence that Anwar Al-Aulaqi is involved in terrorist activity, it should present that evidence to a court – not authorize his execution without charge or trial. Now, months after the government announced its intent to kill Al-Aulaqi, it may finally bring charges against him. This would be a step in the right direction. The constitutional guarantee of due process relies on the critical distinction between allegations and evidence. If the reports that charges may be brought against Al-Aulaqi are true, the fact that it has taken the government this long – months after having announced his death sentence – suggests that, in this case, the government’s allegations were far ahead of its evidence.

While bringing charges against Al-Aulaqi based on credible evidence would be a step in the right direction, it would not mean that he could now be targeted for killing without trial. It is well established that the government cannot use extrajudicial killing to punish people for past acts, but only to prevent grave and imminent threats. A criminal charge for past crimes does not provide a license to kill.

We continue to believe that the courts must play a role in establishing legal standards for when the government can take the life of one of its own citizens without charge or trial. For that reason, we will continue with our litigation.”

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

  1. BoxTurtle says:

    Not sure they need discovery. The government has already admitted that Al-Awlaki is on their hit list and that he is an American citizen.

    When does the executive branch have the power to order an American killed? When they want to? When they’ve charged him? When they’ve convicted him? When he’s sentanced to death?

    Current law holds that we need a death sentance and a round of appeals at minimum.

    Boxturtle (If ObamaLLP can cap someone without even a warrant, were I Boehner I’d worry)

    • emptywheel says:

      Yeah, but one of the two things they’ve requested in the suit is the standard the govt uses to target Americans:

      Plaintiff also seeks an injunction requiring the government to disclose the standards under which it determines whether U.S. citizens can be targeted for death.

      I would imagine DOJ will say that this information would be protected as an ongoing law enforcement matter. Once they charge him, I mean.

      • Peterr says:

        I disagree, Marcy.

        I think the DOJ will simply plead the Fifth Amendment. Any attempt to define a legitimate state-sanctioned, non-judicially-ordered execution that fails to persuade the judge of its legitimacy would be an admission of a conspiracy to commit murder.

        Pleading the Fifth is so much simpler.

      • BoxTurtle says:

        I’m not sure it matters what standards they use, I’d argue that POTUS is not granted the authority to assassinate US citizen under the constitution. That is the providence of the courts and to date ObamaLLP has not even alleged conduct that would NOT be protected speech under the constitution. Freedom of speech even applies to hate speech, ask the KKK.

        Boxturtle (I’m betting there’s no standard more formal than a post it note stuck on Holders monitor)

      • Mason says:

        Yeah, but one of the two things they’ve requested in the suit is the standard the govt uses to target Americans:

        Don’cha know that Obama’s eleventy dimensional mind cannot be straitjacketed by a mere standard or constrained in any way. As He is the God manifesting in human form, He is presumed to be perfect in every way and it is heresy of the most insulting sort to question His supreme authority or the wisdom of His decisions.

        And if that’s not good enough for you, the process He follows to make decisions is incomprehensible to mere mortals. They would never understand it so, rather than confuse them, He has declared it a state secret.

        To challenge Him is a major misconduct worthy of being included on the list of Obama’s Top 100 “Hits.”

        OH BAMA OH BAMA OH BAMA OH!
        Hallowed be thy Name.

  2. donbacon says:

    in other news:
    Washington, DC –Following Secretary of State Hillary Clinton’s foreign policy speech at the Council on Foreign Relations, Human Rights First’s Elisa Massimino issued the following statement:

    “In her remarks today, Secretary Clinton rightly rejected the false choice between human rights and national security, and she reaffirmed her belief that America’s record on promoting human rights should be judged not on rhetoric, but on results.

    • BoxTurtle says:

      Unh, she’d really rather we be judged by rhetoric rahter than results. We still TALK a good game on human rights.

      Boxturtle (Though if we accept the implicit assumption that Scary Brown Moslems aren’t people, we’re fine)

    • bobschacht says:

      In her remarks today, Secretary Clinton rightly rejected the false choice between human rights and national security, and she reaffirmed her belief that America’s record on promoting human rights should be judged not on rhetoric, but on results.

      I’m all for that. Let the judging begin! And I nominate Mary to be the judge.

      Bob in AZ

  3. phred says:

    Thanks for the post EW. I’m curious, even if charges are filed, can a judge decide to allow discovery in the CCR/ACLU case anyway, since the charges are so clearly an act intended as a cover-up? Or are the judge’s hands tied and the mere existence of charges precludes discovery?

  4. Margaret says:

    Somebody must have figured out that it would look extremely awkward to execute somebody who has never even been charged with a crime. I’ll bet he’s already dead.

    • nonplussed says:

      Yeah, it’s just difficult to sort him out from the intermingled bits and pieces of the regrettable, but unavoidable, collateral damage of that wedding party which happened to get in the way of those “precision” 1,000 lb bombs which were used to get him…

  5. donbacon says:

    Let’s look at the results of the US “human rights” policy in Iraq, Afghanistan, Somalia etc. How many killed, injured, displaced, imprisoned and tortured. That any US official can even bring up the subject of human rights in China or anywhere is farcical, and the world knows it. Whom do they think they’re kidding? The US State Department issues an annual human rights report on virtually every country in the world — except the USA. Introspection (understandably) is not a US government trait.

  6. klynn says:

    In other words, this doesn’t appear to be an effort to finally use due process before targeting an American citizen with assassination. Rather, it seems to be more about closing off legal options to that American citizen.

    Citizen Targeting II.

    Will be renamed: Disappeared.

    Boxturtle @ 1…laughed so much at your ( ) I could not breath!

  7. donbacon says:

    It’s a take-off on the no-fly list, called the no-live list, and you never know when your name might appear on it.

  8. tjbs says:

    Verdict first, then a trial as if you ever need it.

    I’m not sure obama isn’t bush with a rubber mask. Never see them together these days.

    In our free and open society, can the free citizens know how many of US are on that list?

    What’s the threshold line to cross be included on the list?

    • BoxTurtle says:

      What’s the threshold line to cross be included on the list?

      I’m afraid that by simply posting here, you may have crossed that line. The rhetoric coming from ObamaLLP about DFH bloggers makes me worry that we’re next on the list.

      Come and get me, ya buggers. My dogs will cover you with mud, saliva and dog hair before you even get to my porch.

      Boxturtle (And the sun will bake you into a statue before you can ring the bell)

  9. rmwarnick says:

    Anwar al-Awlaki’s lawyer has raised the pressing issue of how any U.S. citizen can trust our own government, when they won’t say what the criteria are for being marked for death.

    Since al-Awlaki is still a citizen, it seems the standard of proof for revoking citizenship is higher than what it takes to get put on an assassination list.

  10. mafr says:

    does the President assert the right to assassinate people, including American citizens, within the boundaries of the United States?

  11. fatster says:

    O/T Yay!

    Md. judge: Military contractors can be sued
    Md. judge says soldiers’ lawsuit over burn pits against military contractors can continue.

    “A federal judge says military contractors can be sued by soldiers and others who allege they were harmed by improper waste disposal while serving in Iraq and Afghanistan.”

    LINK.

  12. OldFatGuy says:

    In other words, this doesn’t appear to be an effort to finally use due process before targeting an American citizen with assassination. Rather, it seems to be more about closing off legal options to that American citizen.

    Yes.

    You’ve got this one 100% correct, including that last paragraph I quoted.

    Great work.

  13. donbacon says:

    from the National Security Strategy, May 2010:

    Deliver Swift and Sure Justice: To effectively detain, interrogate, and prosecute terrorists, we need durable legal approaches consistent with our security and our values. We adhere to several principles: we will leverage all available information and intelligence to disrupt attacks and dismantle al-Qa’ida and affiliated terrorist organizations; we will bring terrorists to justice; we will act in line with the rule of law and due process; we will submit decisions to checks and balances and accountability; and we will insist that matters of detention and secrecy are addressed in a manner consistent with our Constitution and laws. To deny violent extremists one of their most potent recruitment tools, we will close the prison at Guantanamo Bay.

    http://www.whitehouse.gov/sites/default/files/rss_viewer/national_security_strategy.pdf

  14. Mary says:

    With the Muftis at State and OLC weighing in, it appears that the Republicans may have been right about Obama after all – apparently in addition to the powers given under the Constitution, the Executive branch can issue fatwas. But he goes Sharia one better and has his “scholars” issue Sectret Fatwas.

    /s

    Obviously, with the US killing off family members and completely unrelated people left and right with their assassains and drones, you can see where a family member or a lawyer for a family member might have a lot of concern about just who can be killed and when, where, etc. If the son is targeted, what about the father? The mother? The sister? Or are they only subject to be being disappeared for EITs? Are the eligible to be killed, but only if they step over a border? Can they be disappeared like KSMs children or taken hostage like women and children in Iraq for leverage?

    Hard to believe those might be serious questions to ask of The Changling, but he’s shown that there isn’t much he won’t defend or engage in himself – shipping containers full of bodies, disappeared children, rapists who can’t be charged bc we’d look bad, US sponsored genital mutiliation of guys who look at a spoof site on making a nuke by swinging a bucket over your head, attacks on whistleblowers and efforts to destroy them and their families while wrongdoers get promotions, threats to foreign allies to put them in danger if they don’t cover up our torture, etc. I really am not all that sure that McCain would have been as bad.

    Oh well – to the point, I guess it would be fun to see that FBI complaint – kind of like the FBI declarations for Padilla there’s no way it’s not going to be riddled with really questionable sourcing. Maybe they found another use for that Yemeni mental-states-challenged guy who was their source, often sole source, for Yemeni GITMO detentions and who the GITMO judges found out about despite Obama’s best efforts to violate the discovery orders issued in those cases.

    • emptywheel says:

      They may well do something like they did with Mehsud: charge on crimes (conspiracy to kill the CIA targeters who illegally killed his brother) that have little to do with the big issue (in this case the undie bomber).

      • bmaz says:

        By the way, things are now a bit off kilter for Fruit of the Loom Boom Boy.

        Umar Farouk Abdulmutallab, accused of the Christmas Day attempt to blow up a Northwest Airlines plane with explosives hidden in his underpants, told a judge that he wants to defend himself in court.
        ….
        Abdulmutallab, a 23-year-old Nigerian citizen, faces six criminal counts including attempting to use a weapon of mass destruction, attempted murder and trying to wreck an aircraft. He pleaded not guilty before a federal magistrate on Jan. 8.

        “When representing myself, if I want to plead guilty on some counts, how would that go?” Abdulmutallab asked Edmunds today.

        Um, well Farouk, that ain’t gonna go real well at all actually.

        • BoxTurtle says:

          Man who represent self have fool for client – Twain(?)

          If he chooses to plead guilty, he’ll save some time. For once, I think the government has all the evidence needed to convict AND it’s admissable.

          Boxturtle (Waiting for ObamaLLP to go after the Christian Clerics who inspire the abortion terrorists)

        • b2020 says:

          “including attempting to use a weapon of mass destruction”

          At this rate, Saddam must have had some WMD after all – horseradish, maybe, nail polish remover, or a bag of fertilizer.

          There are nukes, there are conventional means that require truckloads, there are guns, and then there are incendiary underpants.

          The concept of “WMD” was designed as a fraud at inception, but this is not even laughable anymore. They should let the Marx Brothers write the laws.

      • Mary says:

        Can’t. Type on my droid v well. What i am wondering is about fbi laundering torture, coerced info,illegally obtained info, questionable info etc about which fbi has no direct info like they did with padilla

        • emptywheel says:

          I’ve wondered the same thing. Can they not charge Mehsud bc they sleep deprived Shahzad in the US, and held his family in Pakistani custody until he cooperated?

          • Mary says:

            Back on a laptopr – yeah rah – I do not have the thumbs of a teenager ;)

            I think along those lines – we know they laundered torture and coerced information and also laundered information that their own department experts had evaluated as false(e.g., Zubaydah’s status as high level operational operative) in the declarations they filed under oath in Padilla and were still recycling those false statements for public consumption when they held their very inappropriate Presser on Padilla to try to sway the SUp Ct.

            Who is going to be the guy to sign off on the reps to the court for al-awlaki that do the same things and what will it mean if he does end up being captured? We know that lies for the mat wit warrant ended up being ignored by Mukasey,bc the case went to trial in a different jurisdiction on a completely different basis, but still …

  15. stevo67 says:

    In other words, this doesn’t appear to be an effort to finally use due process before targeting an American citizen with assassination. Rather, it seems to be more about closing off legal options to that American citizen.

    Due process was sooo 20th Century, we’re fighting a War on a Verb, after all…

  16. papau says:

    I suspect the state secret problem is the Anwar al-Awlaki connection to the London attack.

    Given Nixon working on killing an American journalist in the US, Obama killing an American overseas – only – seems quite liberal /s

    As stevo67 said , we are fighting a War on a Verb – and I might add – a few nouns like “drugs”, “fat”, Obesity”, “border”, “illegals”, etc. Who knew that wars on other Countries in our original construction Constitution world was really a war on words.

  17. b2020 says:

    “The Obama administration is considering filing the first criminal charges against radical cleric Anwar al-Awlaki in case the CIA fails to kill him and he’s is captured alive in Yemen.”

    That sentence alone is mindblowing. Rule of law, constitutional scholar and all. I suppose one has to amend this with “captured alive in Yemen in a public manner preventing rendition to Blackholegram Airbase”.

    Related: Greenwald linked to Horton, who has the 9th Tortured Circuit summed up:

    http://harpers.org/archive/2010/09/hbc-90007607

  18. JamesJoyce says:

    Sounds more and more like the behavior of Nazis, than Americans? So much for the rule of law, except when protecting the corporate interest? Situation ethics for sure!

  19. Mary says:

    I meant to link to this earlier when I saw it, but this really seems as good a place as any.

    Last week Scott Horton did an interview with Lawrence Wright in connection with Wright’s HBO project, My Trip To Al-Qaeda.

    In addition to asking Wright about wiretaps of his daughter and other topics, Horton and Wright discussed the Jan. 2007 murder of Osama Bin Laden’s brother-in-law, Mohammed Jamal Khalifa, who had been a big source of information for Wright’s book, The Looming Tower.

    After discussing how Khalifa had tried to make arrangements to speak with the FBI through Wright (the CIA would not allow it apparently) Wright discusses the killing:

    …many analysts in the intelligence community assumed that, because he was bin Laden’s brother-in-law, he must have been entangled in Al Qaeda. Once I heard a well-known writer, who teaches counter-terrorism to international police agencies, declare that Jamal was on the Al Qaeda shoura council. That was wrong and ridiculous, but it may have gotten Jamal killed. I think he was assassinated by American Special Forces on the mistaken assumption that he was an Al Qaeda operative. I can’t prove it. He was murdered in Madagascar. No one was arrested in the killing.

    So here you had someone who was probably a very good potential source of info and who was condeming Bin Laden in the Arab press and wanting to talk to the FBI, that our Executive assassinated instead of letting the FBI interview.

  20. Jeff Kaye says:

    Good article and excellent points, EW.

    Now, months after the government announced its intent to kill Al-Aulaqi, it may finally bring charges against him. This would be a step in the right direction.

    I think CCR/ACLU is engaging in some very dry, black humor here. A step in the right direction… no kidding.

    And O/T, re that DoD Inspector General Report on the Drugging of Detainees… well, it came out a year ago, but no one knew it! Here’s the story by me and Jason Leopold, now up at Truthout:

    Government Report on Drugging of Detainees Is Suppressed

    Short version: We don’t know what’s in it. They’re keeping if classified. SASC has seen it. Govt supposedly says no harm done. The article makes a different case. And anyway… why’d they keep it such a big secret for so long? I can tell you, there’s a number of interested parties who are quite pissed right now.

  21. Mary says:

    Nice piece Jeff.

    It’s been a long time since I looked at them, but I didn’t remember the Yoo/Bybee memos mentioning the use of drugs. Where your article says

    Nearly three years before the Bradbury memo, OLC memos written by John Yoo, with assistance from Jay Bybee and David Addington, had allowed for the use of mind-altering drugs in interrogations, maintaining such use was not torture unless it caused “permanent” or “profound” mental harm or damage.

    do you have the quotes or passages from the memos? I know they used ht standard of permanent or profound mental harm, but I don’t remember the reliance memos mentioning using drugs, bc they would have had to have dealt with some very specific language in the torture stats when they did that.

    • Jeff Kaye says:

      Re Yoo and the memos, an in-depth discussion is here.

      In the meantime, here’s Yoo from his March 13, 2003 memo to Haynes, but it’s almost verbatim what is in the first Yoo/Bybee August 2002 memo.

      … [18 U.S.C.] section 2340(2)(B) provides that prolonged mental harm, constituting torture, can be caused by “the administration or application or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality.” The statute provides no further definition of what constitutes a mind-altering substance. The phrase “mind-altering substances” is found nowhere else in the U.S. Code nor is it found in dictionaries. It is, however, a commonly used synonym for drugs.

      Yoo twists and massages the possible meanings of the law to make it say what he wants:

      For drugs or procedures to rise to the level of “disrupt[ing] profoundly the senses or personality,” they must produce an extreme effect. And by requiring that they be “calculated” to produce such an effect, the statute requires that the defendant has consciously designed the acts to produce such an effect….

      By requiring that the procedures and the drugs create a profound disruption, the statute requires more than that the acts “forcibly separate” or “rend” the senses or personality. Those acts must penetrate to the core of an individual’s ability to perceive the world around him, substantially interfering with his cognitive abilities, or fundamentally alter his personality.

      Thanks for the kind words, Mary. Your opinion means a lot to me.