Extrajudicial Execution of Samir Khan Arguably More Significant Than Awlaki

By this time in the day, the early morning report of the killing of Anwar Awlaki is old news. From ABC News:

Senior administration officials say that the U.S. has been targeting Awlaki for months, though in recent weeks officials were able to pin down his location.

“They were waiting for the right opportunity to get him away from any civilians,” a senior administration official tells ABC News.

And today they got him. Awlaki was killed by a drone delivered Hellfire missile, via a joint CIA and JSOC operation, in the town of Kashef, in Yemen’s Jawf province, approximately 140 kilometres east of Sanaa, Yemen’s capital. But not only Awlaki was killed, at least three others, including yet another American citizen, Samir Khan, were killed in the strike.

That’s right, not just one, but two, Americans were summarily and extrajudicially executed by their own government today, at the direct order of the President of the United States. No trial, no verdict, just off with their heads. Heck, there were not even charges filed against either Awlaki or Khan. And it is not that the government did not try either, there was a grand jury convened on Khan, but no charges. Awlaki too was investigated for charges at least twice by the DOJ, but non were found.

But at least Awlaki was on Barrack Obama’s “Americans That Are Cool to Kill List”. Not so with Samir Khan. Not only is there no evidence whatsoever Khan is on the classified list for killing (actually two different lists) my survey of people knowledgeable in the field today revealed not one who believed khan was on any such list, either by DOD or CIA.

So, the US has been tracking scrupulously Awlaki for an extended period and knew with certainty where he was and when, and knew with certainty immediately they had killed Awlaki and Khan. This means the US also knew, with certainty, they were going to execute Samir Khan.

How did the US then make the kill order knowing they were executing a US citizen, not only extrajudicially, but not even with the patina of being on the designated kill list (which would at least presuppose some consideration and Yoo-like pseudo-legal cover)?

Did Barack Obama magically auto-pixie dust Khan onto the list with a wave of his wand on the spot? Even under the various law of war theories, which are not particularly compelling justification to start with as we are not at war with Yemen and it is not a “battlefield”, the taking of Khan would appear clearly prohibited under both American and International law. As Mary Ellen O’Connell, vice chairman of the American Society of International Law, relates, via Spencer Ackerman at Wired’s Dangerroom:

“The United States is not involved in any armed conflict in Yemen,” O’Connell tells Danger Room, “so to use military force to carry out these killings violates international law.”

O’Connell’s argument turns on the question of whether the U.S. is legally at war in Yemen. And for the administration, that’s a dicey proposition. The Obama administration relies on the vague Authorization to Use Military Force, passed in the days after 9/11, to justify its Shadow Wars against terrorists. Under its broad definition, the Authorization’s writ makes Planet Earth a battlefield, legally speaking.

But the Authorization authorizes war against “nations, organizations, or persons [the president] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” It’s a stretch to apply that to al-Qaida’s Yemen affiliate, which didn’t exist on 9/11. But when House Republicans tried to re-up the Authorization to explicitly bless the new contours of the war against al-Qaida, the Obama administration balked, fearing the GOP was actually tying its hands on the separate question of terrorist detentions.

“It is only during the intense fighting of an armed conflict that international law permits the taking of human life on a basis other than the immediate need to save life,” O’Connell continues. “In armed conflict, a privileged belligerent may use lethal force on the basis of reasonable necessity. Outside armed conflict, the relevant standard is absolute necessity.”

So did al-Awlaki represent an “absolute” danger to the United States? President Obama, in acknowledging Awlaki’s death on Friday morning, didn’t present any evidence that he did.

And therein lies lies the reason the US killing of Samir Khan may be even more troubling than the already troubling killing of al-Awlaki. There is no satisfactory legal basis for either one, but as to Khan there was NO process whatsoever, even the joke “listing” process utilized for Awlaki. The US says it took care to not harm “civilians”, apparently that would mean Yemeni civilians. American citizens are fair game for Mr. Obama, list or no list, crime or no crime, charges or no charges. Off with their heads!

People should not just be evaluating today’s fresh kills as to Awlaki, Samir Khan should be at the tip of the discussion spear too.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.
38 replies
  1. MadDog says:

    “…As Mary Ellen O’Connell, vice chairman of the American Society of International Law, relates, via Spencer Ackerman at Wired’s Dangerroom:

    “The United States is not involved in any armed conflict in Yemen,” O’Connell tells Danger Room, “so to use military force to carry out these killings violates international law.”

    Perhaps this is why as I commented in EW’s previous post that CIA leadership is always given as the cover for these kill strikes.

    Even though the OBL killing was done by US Navy Seals, that too was “officially” under the auspices of the CIA’s leadership.

    It would seem that under such legal nimbleness a flimsy figleaf is constructed shielding the US for using our military to conduct such kill strikes that without the CIA cover would be considered as Acts of War.

  2. MadDog says:

    I am tempted to mimic our glorious US leadersip and pontificate that the extrajudicial killing of 1 American citizen is merely an anomaly, but then the question arises as to whether 2 is a habit precedent?

    If not, how many is?

  3. rugger9 says:

    Twice makes a trend, thrice a policy.

    But, since Samir Khan wasn’t on anyone’s list, it seems to me to be murder by definition. That the WH took pains to point out that they delayed the hit to ensure no collateral damage [and knew SK was in the car] tells me that someone wanted SK dead, now. And as noted above, even a grand jury that would indict a french fry failed to return charges on Khan. Hmmm……

    Doesn’t seem like there was much reason to take either of them out except on Faux News. Anyone wade into that cesspool to see how their spinning this as a Bu$hie triumph? I’d barf if I tried.

  4. MadDog says:


    “…But, since Samir Khan wasn’t on anyone’s list, it seems to me to be murder by definition…”

    That seems to align with what I heard from the Michael Smerconish interview with President Obama on MSNBC and commented on in the previous post:

    “…Smerconish asks him whether he “ordered this action” against al-Awlaki, (my paraphrase), and Obama demurs that “he can’t comment on operational details”.

    Huh? Did you or did you not order the killing of al-Awlaki? Simple fookin’ question and doesn’t implicate operational details.

    What it does implicate is the US President ordering the death of a US citizen, which if I understand just a wee bit of legalese is called “an admission against interests”.

    I would hazard a guess that the legal advice the White House is using is to not to admit to ordering the killing of American citizens.

  5. allan says:

    When the President does it, that means that it’s not illegal has morphed into,
    When the President orders a hit, that means that the targets are terrorists.

  6. William Ockham says:

    This is the official confirmation of what we here have known, but so many people claimed wasn’t true. Our entire political establishment has accepted the idea that if an American citizen steps foot outside of the United States, the government can kill him or her on the President’s orders and nothing else. Whether or not he can kill us on a whim inside the borders of the U.S. is an open question.

    Not to put too fine a point on this or anything, but we’ve all just agreed to a world in which Rick Perry’s threat against Ben Bernanke needn’t be the empty bluster that it obviously was. If Perry were to win the nomination and election, he could have Bernanke executed. He just needs to wait for Bernanke to goes to Davos or something and send that Hellfire after him. There’s really no difference, legally or morally, between that what the Obama administration just did to Samir Khan.

  7. rugger9 says:

    Same circumstances with respect to terrorism activities? I seem to remember the claim it was a mistake, but I might be wrong about that.

    No doubt it’s policy now, however.

  8. Jeff Kaye says:

    @William Ockham:

    This is the official confirmation of what we here have known, but so many people claimed wasn’t true. Our entire political establishment has accepted the idea that if an American citizen steps foot outside of the United States, the government can kill him or her on the President’s orders and nothing else. Whether or not he can kill us on a whim inside the borders of the U.S. is an open question.

    That is true, but on such a solemn occasion, why not say what we also know is true: if they powers that be deem it important enough, they will assassinate an American citizen on U.S. soil, too, be it someone with little power, like a Fred Hampton, a disgruntled insider, like Frank Olson, or someone with seemingly a great deal of power, like a John Kennedy. Perhaps it is time to dust off the faux-conspiracy phobia and just say what is. The U.S. government murders. They have a taste for murder. And the only thing that keeps them from going the whole hog is that they mostly find it, for the time being, an inefficient and socially provocative way to enlarge their political supremacy. (Also, there is that pesky tradition from the Enlightenment and much of U.S. history about fighting for rule of law, and distrusting the power of government, particularly the Executive… ah! how quaint)

    But the message of these killings is… seems they don’t find it so inexpedient anymore.

  9. bmaz says:

    @Jeff Kaye:

    Yep, there is a bit of truth there. As the Doobie Brothers would say, what were once vices are now habits. The US has always executed/assassinated, without question even its own citizens on occasion by any rational reading of history; but, as with so much ill these days, it is now open, notorious and ratified into accepted practice, if not law.

    All thanks to a DEMOCRATIC, SUPPOSEDLY LIBERAL, President and, putatively, Congress.

  10. rugger9 says:

    OK, my error. So, the 5th amendment, the Declaration of Independence, and centuries of common law no longer matter. The thing is that the corporate media has brainwashed enough sheeple that there is no outcry, and that is a direct result of Clinton’s relaxing the ownership rules.

    As far as in-country killings go, let’s not forget that has happened in the USA as well, some interesting cases in AL and FL, the DC Madam, and ones where there appear to be no improprieties [officially, and there’s a report on the one I’m thinking of in OH] but there is a faint whiff of a failed smell test due to circumstances.

    It’s about the perception. A generation ago, during the Vietnam Era, there were cynics, but because the press was still vibrant and diverse, people had the sense that there was no way the USG could assassinate Americans and get away with it. Lying about everything else, sure, but not assassinations. A generation before that, it wouldn’t have entered into anyone’s head that the USG would engage in that conduct, even while hunting pinkos. Trial first, then execution. We now have the Queen of Hearts mentality in the USG, not just in this case, but also exemplified by the rush to judgement on Amerithrax where two slam-dunk suspects were sequentially identified. One sued and won [Hatfill], the other conveniently died [officially by suicide, no reason to doubt it] and now the fall guy. Except, the case doesn’t add up. We have Wen Ho Lee who had a 59-count espionage case fall apart to a plea bargain for improper handling of data, and Lee won 1.6 million bucks in 2006 from the smear merchants. The judge in the case hammered the DOJ for misconduct and misrepresentations [http://www.wenholee.org/apology]. The list is hardly exhaustive, but it points to the continuing pattern of frying someone in the press, i.e. “Execution, then trial”.

    Meanwhile, as we have seen for Troy Davis’ execution, the real perps continue to walk the streets on these cases.

  11. Kathleen says:


    As Jeremy Scahill said on MSNBC’s Martin Bashir’s program. The Obama administration is “normalizing these policy’s”

    Chris Matthews was banging the “the terrorist is dead” drum. No guest who challenged, questioned or gave any different view than what Chris Matthews was selling. Chris Matthews “victory for the war on terror”
    MSM rolling over again.

    Not one challenging question. Not one guest on Dylan Ratigans, Chris matthews who had an opposing view

  12. Mary says:

    Thanks for this piece bmaz. Absolute necessity is tied to imminent threat. Right now, the necessity issue they are using ties to the 2009 underwear bombing and is based on information that no one ever got an opportunity to contest and which was affirmatively withheld from a court and from an advocate for Awlaki – that doesn’t stack as process. But for Khan, they don’t even claim that he was involved in anything other than the editing the magazine.

    And Obama’s proud of this. And of the Yemenis he is willing to sit back and watch Saleh keep killing, all so he can keep collecting US scalps for his wall.

  13. Mary says:

    @rosalind: Poor Frannie – in what way is a drone bomb a legal capture? I think the talking point got so stuck she’s fact impervious now.

    AQAP isn’t AQ and Awlaki wasn’t even a blip on the radar when the 911 bombing took place and the AUMF associated with that bombing was issued.

  14. emptywheel says:

    @rosalind: Isn’t that priceless? I suspect they’re in a real panic, because people are actually more skeptical of this killing than they expected.

  15. rosalind says:

    @emptywheel: at the risk of coming off hyperbolic, the line Obama has just dragged this Country across is going to leave a marker for now and forever.

    (and I was supposed to see your former Governor at her book tour the other day, but was too optimistic about my ability to get downtown for a 7:45am start. alas.)

  16. ron says:

    These activities remind one of the CIA in the 60’s and early 70’s in South and Central America. Nothing much has changed in D.C. other then the locations and technology. Obama’s is basing his reelection partly around his activities as the War President, always a winning position with the American Public.

  17. Kathleen says:

    ““The United States is not involved in any armed conflict in Yemen,” O’Connell tells Danger Room, “so to use military force to carry out these killings violates international law.”

    Watched CNN, MSNBC, some Fox all avoided whether Obama had directly ordered the killings.

  18. orionATL says:

    the central fact that counts for me with these two presidentially order killings and the padilla imprisonment is this:

    they were undertaken to meet the political needs of a president.

    the bodies and minds of these men were used by a president gor his political benefit.

    there was no exigent emergency that warranted the american military treating any one of the men the way the military did treat them.

    an exigency claim was made in the case of padilla but was a false claim. it was not even made in the case of awlaki or khan.

    it is of lesser gravity by far, but the suppression of dissent and the intimidation of leaders of dissenting groups is of one with the more extreme gov’t actions taken against padilla, al-awlaki, and khan – they occur because they are politically necessary or politucally useful for a governor or president.

  19. mzchief says:

    @mzchief: “Facts about Modern Warfare“:

    – For the first time in human history, it’s possible to kill someone on the other side of the planet in real time – by remote control.
    – In 2008, the Air Force trained more remotely piloted aircraft pilots than fighter and bomber pilots. The number of patrols has increased by 300%.
    The U.S. Congress has decreed that by 2015, one third of the army’s ground systems must be unmanned.
    – The U.S military cannot send ground troops or manned planes without a formal declaration of war. But they can send drones to attack from the other side of the world.
    – When the U.S. entered Iraq there were zero unmanned vehicles on the ground. Today, there are more than 12,000.

    Note that in the film that military planners and their financial backers envision robot-to-robot warfare. Also, another application of robots by Central governments (most of them are acquiring drones) is for removing human labor from the equation in almost any industry. Note the land grabs (here and here). Have the bankstas already decided that large swaths of the Earth’s population are worth more dead than alive?

  20. prostratedragon says:

    @William Ockham:

    Your post reminds me of Domingo Cavallo, whom I’ll bet Bernanke knows. Cavallo’s arrest mentioned near the end of the article had a close relationship to dissatisfaction with his by-then bankrupt policies, as I recall. The rest, and how it could unfold on the American plan, is really quite something to ponder.

    Well anyway, it appears that apart from outright assassination on foreign soil, we citizens can now be arrested and indefinitely held incommunicado and under deliberately ruinous circumstances, as per Jose Padilla; and instead of, or maybe merely before, being reduced to a skidmark in our foreign place of asylum we can be browbeaten into surrendering our US citizenship, as per Yaser Hamdi, as a condition of being allowed to go to that place. So it seems that those who want such policies available are well on the way to a complete set covering any whim or contingency.

  21. orionATL says:

    i had been hoping for a lucky strike on der google from which i could compare, lone for line, some of kings rhetoric with some of al-awlaki’s.

    i have no idea of what either said in detail, but i’d bet good money that the hot anti-british rhetoric of king would match the hot anti-american gov’t rhetoric of al-awlaki.

    this thought is just a consequence of earlier musing that the al-awlaki and khan killings could be considered a first amendment issue.

  22. rugger9 says:

    So, according to Malloy, Awlaki was targeted because he was inspiring terrorism, but if that makes him a target, why isn’t Beck [Tides], Palin [crosshairs] and the rest of the flying monkeys on the kill list? Oh, that’s right, the RW nuts were all lone wolves, no matter how many there are.

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