Let’s See the Evidence on Al-Awlaki

Ding dong Awlaki’s dead, says the government.

While everyone’s talking about having “got” this latest bogeyman, I just wanted to remind folks the kind of language the Administration used to explain why it could kill an American citizen with no due process.

Accordingly, although it would not be appropriate to make a comprehensive statement as to the circumstances in which he might lawfully do so, it is sufficient to note that, consistent with the AUMF, and other applicable law, including the inherent right to self-defense, the President is authorized to use necessary and appropriate force against AQAP operational leaders, in compliance with applicable domestic and international legal requirements, including the laws of war. [my emphasis]

As to the actual evidence that Anwar al-Awlaki was a terrorist? That’s a state secret.

Incidentally, last week the 9th Circuit said there should be some due process and proof of probable cause before the government acts on claims that someone or something (in this case, al-Haramain) is a terrorist. Lucky for the government they managed to kill Awlaki before anyone asked again for due process for him.

 

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

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 the Guardian, Salon, and the Progressive, 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 and dog in Grand Rapids, MI.

47 replies
  1. MadDog says:

    I wonder if the US government will suddenly show up with an unsealed indictment of al-Awlaki.

    Not that such an indictment would constitute legal authority for a “don’t bother putting your hands up” killing?

  2. bmaz says:

    Meh, whatta ya doin citing the silly 9th Circuit for? Everybody knows we are crazy and not to be taken seriously out here. We exist only to give Scalia and Roberts something to do.

  3. MadDog says:

    As I’ve thought it about it more this morning, it seems to me that we can make some educated guesses about the operation to kill al-Awlaki.

    In order to kill al-Awlaki, there obviously had to be “eyes-in-the-skies” to track the movement of the al-Awlaki convoy. Probably US Reaper or Predator drones.

    But less obvious initally is the likelihood that there were also “eyes-on-the-ground”.

    Whether these assets were informants, Yemeni forces, US forces or a combination of these, the fact remains that in order to have a positive identification that al-Awlaki was in the convoy, folks needed to be on the ground watching to make that ID.

    Additionally, those folks on the ground had to have real-time communications to the US military/CIA attack force.

    There is no way that somebody on the ground watching could drive 50 miles to the nearest gas station payphone, drop some coins in the slot and ring up the US embassy to say “Hey, I just saw Anwar al-Awlaki getting into a white Land Rover an hour ago over in Armpit Yemen and I thought you should know”.

    Additionally, I would hazard a guess that there was informant, Yemeni forces and/or US forces conducting surveillance and tracking of al-Awlaki that had been going on for some period of time. At least days if not more.

  4. Jim White says:

    So how long until the organizers of Occupy Wall Street or other such protest actions are deemed terrorists as dangerous as al-Awlaki and targeted as enthusiastically and with as little due process?

  5. MadDog says:

    “…As to the actual evidence that Anwar al-Awlaki was a terrorist? That’s a state secret…”

    I’m guessing Glenzilla will have a word or two to say about this, but I pose a question for Emptywheelers to consider:

    Will the killing of Anwar al-Awlaki provoke a real public discussion of how it is that the US government can kill an American citizen without any due process or will the killing of Anwar al-Awlaki tend to make such a public discussion moot?

  6. MadDog says:

    @emptywheel: And Glenn says it well:

    “…Many will celebrate the strong, decisive, Tough President’s ability to eradicate the life of Anwar al-Awlaki — including many who just so righteously condemned those Republican audience members as so terribly barbaric and crass for cheering Governor Perry’s execution of scores of serial murderers and rapists — criminals who were at least given a trial and appeals and the other trappings of due process before being killed.

    From an authoritarian perspective, that’s the genius of America’s political culture. It not only finds way to obliterate the most basic individual liberties designed to safeguard citizens from consummate abuses of power (such as extinguishing the lives of citizens without due process). It actually gets its citizens to stand up and clap and even celebrate the destruction of those safeguards.”

    I can hear the chants now: USA! USA!

  7. Jim White says:

    At least the LA Times is also calling it like they see it:

    The White House had placed Awlaki on the CIA’s assassination list.

    Well it is just a blog and not a regular news story, but still, calling it an outright assassination is more blunt than the usual MSM.

  8. MadDog says:

    @Jim White: As if we didn’t think otherwise, the NYT has confirmed the following:

    “…In Washington a senior official said Mr. Awlaki had been killed in an American attack by a drone aircraft firing a Hellfire missile…”

  9. MadDog says:

    And to further EW’s call, the NYT also has this:

    “…A senior administration official in Washington said the killing of Mr. Awlaki was important because he had become Al Qaeda’s greatest English-language propagandist and one of its top operational planners.

    “First and foremost, we’ve been looking at his important operational role,” the senior administration official said. “To the extent he’s no longer playing that role it’s all to the good…”

    (My Bold)

    So Obama Administration, put up or shut up!

  10. MadDog says:

    @bmaz: OBL apparently did not hold him in high regard either.

    And another something for consideration:

    Now that the US has killed Anwar al-Awlaki will the proverbial short American attention span mean that America’s interest will dwindle and disappear with regard to Yemen, AQAP, and the status of Yemen President Ali Abdullah Saleh?

    I think Las Vegas might give good odds on a yes.

  11. MadDog says:

    @MadDog: And leave it to Chuck “Dumb as a Pet Rock” Todd on MSNBC just now to pass on “official US-provided” gossip that Anwar al-Awlaki wasn’t very pious because “he was dating a Croatian stripper”.

    I guess that’s sufficient reason enough to kill Anwar al-Awlaki without any due process.

  12. Brian Silver says:

    I hate to sound too academic about this, but I’m looking for the “theory” that justifies certain kinds of executive decisions. It seems that Obama has bought into the John Yoo type of thinking that wearing his “commander and chief” hat, and given his pledge in the Oath of Office to “preserve and protect and defend the Constitution of the United States,” and given the logical leap that in order to “protect the Constitution” the President must have the ability to order the use of military force against the country’s proven enemies, there’s no legal barrier to a President issuing an assassination order, or launching a preemptive war, or assisting or enlisting our allies to kill our sworn enemies, or torturing prisoners or rendering them abroad to be tortured.

    There are several obvious leaps or lapses in logic in this kind of argument. The most obvious was the jarring oxymoron from the Vietnam: “We had to destroy the village in order to save it.” We must ignore the Constitution in order to save it. The Commander in Chief must be able to initiate military action without the impediment or delay implied by Congress’s right to declare of war.

    In Yoo’s argument a declaration of war isn’t really necessary. It’s just words, saying “we declare.” But the commander-in-chief may find it convenient to coopt or implicate any chicken-hearted political opposition who might have second thoughts later. And so an “authorization to use military force” (AUMF) may — or may not — be sought before or after the chief has initiated military action.

    In initiating military or police action against a sworn enemy (be he American or foreign), the types of available and justified actions are unlimited. They are not guided by the niceties of the Bill of Rights (least of all when these actions are taken abroad, beyond the reach of our civil courts and jurisdiction). The actions ordered by a Mr. Hyde commander-in-chief can be swift and terminal (“with extreme prejudice”)! It’s a command decision by the highest level in the military command structure.

    Our country seems mired in John Yooism.

    [Edited for clarity]

  13. MadDog says:

    @MadDog: In Chuckles’ piece with Jim Miklaszewski just now, Miklaszewski mentioned how in coincidentally speaking to a US Administration lawyer, he asked the lawyer whether there were any legal implications concerning the killing of Anwar al-Awlaki and “the lawyer just laughed”.

    That says it all about the US justice system, doesn’t it?

  14. Brian Silver says:

    Sorry for the sometimes ungrammatical elements of my above comment. I should have edited it. Thanks for your patience.

    [Thanks, MadDog, for the arrow pointing toward the Edit option! I cleaned up my previous entry.]

  15. emptywheel says:

    @Brian Silver: I really encourage you to read this post and the court documents behind it–might make a good document for students. It’s pretty much the equivalent of throwing as much as they could against the wall just to make sure something stuck.

  16. Brian Silver says:

    Thanks, EW. The AUMF has also turned into an ex post facto law. This is not just a slippery slope, it’s a moral mire.

  17. hcgorman says:

    I don’t think it is a coincidence that his assassination falls two days after judge Bates threw out his father’s law suit trying to stop the killing. It might have raised an eyebrow if they assassinated him while the suit trying to stop the assassination was still pending.

  18. joanneleon says:

    I hear people talking about how we could not have brought him back here to be tried, or how it would have been too hard or too dangerous.

    First of all, if we’ve proven that we’re good at anything in the past ten years, we’ve proven that we are extraordinarily good at renditioning. Second, could he not have been tried in absentia?

    I’m amazed at the number of people who call themselves Democrats and/or Progressives who are cheering this on. I probably shouldn’t be amazed. But I am. Isn’t anybody the slightest bit worried that they themselves someday could be declared a traitor or a criminal with false accusations, or become the target of a powermongering enemy? Have they never heard of a slippery slope?

  19. orionATL says:

    anwar al-awlaki

    and

    jose padilla

    remember those names.

    they belong in every american’s memory.

    they are the perpetually branded shame of

    president george w. bush

    and

    president barrack obama.

    the unlawful, politically expedient and exploitative, treatment each received from their american president and their american federal judiciary

    forebodes a time of wider intimidation and imprisonment, and occasionally murder, for americans who act in a way politically useful to, politically threatening to, or merely offensive to, any future american president.

    neither case of mistreatment was merited by the circumstance of actual threat to the nation,

    and both cases have now set precedents that will haunt, and haunt again.

  20. Brian Silver says:

    It’s definitely true that the unitary executive muck has continued to spread. It’s very sticky, too. Once you get into that reasoning there’s seemingly no exit from it. Yooism is what I called it. And it has brought to mind Dr. Seuss (no fan of war or violence).

    From “Fox in Sox” (with a slight modification: blue=Yoo)

    We’ll find something new to do now.
    Here is lots of new Yoo goo now.
    New goo. Yoo goo. Gooey. Gooey.
    Yoo goo. New goo. Gluey. Gluey.

  21. MadDog says:

    @bmaz: Twas as I thought:

    “…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…”

  22. Don Bacon says:

    In President Obama’s foreword to the 2010 National Security Strategy he says: “In all that we do, we will advocate for and advance the basic rights upon which our Nation was founded, and which peoples of every race and region have made their own.”

    And the NSS itself states: (excerpts)

    “The rule of law—and our capacity to enforce it—advances our national security and strengthens our leadership. At home, fidelity to our laws and support for our law enforcement community safeguards American citizens and interests, while protecting and advancing our values.

    “Legal Aspects of Countering Terrorism: The increased risk of terrorism necessitates a capacity to detain and interrogate suspected violent extremists, but that framework must align with our laws to be effective and sustainable. When we are able, we will prosecute terrorists in Federal courts or in reformed military commissions that are fair, legitimate, and effective. For detainees who cannot be prosecuted—but pose a danger to the American people—we must have clear, defensible, and lawful standards. We must have fair procedures and a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified. And keeping with our Constitutional system, it will be subject to checks and balances. The goal is an approach that can be sustained by future Administrations, with support from both political parties and all three branches of government.

    “Uphold the Rule of Law: The rule of law—and our capacity to enforce it—advances our national security and strengthens our leadership. At home, fidelity to our laws and support for our law enforcement community safeguards American citizens and interests, while protecting and advancing our values. Around the globe, it allows us to hold actors accountable, while supporting both international security and the stability of the global economy. America’s commitment to the rule of law is fundamental to our efforts to build an international order that is capable of confronting the emerging challenges of the 21st century.”

  23. Don Bacon says:

    In President Obama’s foreword to the 2010 National Security Strategy he says: “In all that we do, we will advocate for and advance the basic rights upon which our Nation was founded, and which peoples of every race and region have made their own.”

    And the NSS itself states: (excerpts)
    “The rule of law—and our capacity to enforce it—advances our national security and strengthens our leadership. At home, fidelity to our laws and support for our law enforcement community safeguards American citizens and interests, while protecting and advancing our values.

    “Legal Aspects of Countering Terrorism: The increased risk of terrorism necessitates a capacity to detain and interrogate suspected violent extremists, but that framework must align with our laws to be effective and sustainable. When we are able, we will prosecute terrorists in Federal courts or in reformed military commissions that are fair, legitimate, and effective. For detainees who cannot be prosecuted—but pose a danger to the American people—we must have clear, defensible, and lawful standards. We must have fair procedures and a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified. And keeping with our Constitutional system, it will be subject to checks and balances. The goal is an approach that can be sustained by future Administrations, with support from both political parties and all three branches of government.

    “Uphold the Rule of Law: The rule of law—and our capacity to enforce it—advances our national security and strengthens our leadership. At home, fidelity to our laws and support for our law enforcement community safeguards American citizens and interests, while protecting and advancing our values. Around the globe, it allows us to hold actors accountable, while supporting both international security and the stability of the global economy. America’s commitment to the rule of law is fundamental to our efforts to build an international order that is capable of confronting the emerging challenges of the 21st century.”

  24. rg says:

    I’ve had several hours now to think about this news. I’m disgusted, and feel, as one who voted for this regime, that I have blood on my hands. I’m reminded of two historical remarks:
    From LBJ: “We’re running a Murder,Inc down in the Caribbean”.
    From a Bush White House aide: “We’re an empire now”.

  25. rugger9 says:

    While Al-Awlaki’s father may have a legitimate case, the state secrets roadblock will stop it in its tracks and will do so forever. Just as Perry spiked the commission investigating how he executed an innocent man, Obama will ensure that no close scrutiny will ever be addressed to this case.

    As a Constitutional Law professor early on in his career, he knows better, unlike Shrub where such knowledge was at best doubtful. More and more, it appears to me that Obama is counting on the “crazy Republican” election strategy where the GOP selects someone completely unelectable. Rove and the Kochs are smarter than that. Taking Christie as an example, and combining it with the speed of the so-called TEA party rise, I can see the in-state committees being formed and fully funded very quickly in 2012 once Obama has splintered his base beyond repair. That point of no return is coming. Soon.

    America is accelerating towards its fascist future, and the question posed by Greenwald is very apt: do you want this power in the hands of a President Perry or Bachmann? As far as that goes, who decides that a person is an enemy? Take a look at the follies of the no-fly list, that included a sitting US Senator, babies in arms, and at least one Marine returning from deployment [in that case because his name matched an out-of-favor author] and the rest of his unit staged a sit-in in protest.

  26. prostratedragon says:

    So they’re saying the “operational role” was as a propagandist? That’d be high on the list of particulars I’d like to know.

  27. rugger9 says:

    @prostratedragon:
    What I’m saying is that you will not find out anything if the Obama WH gets its way.

    However, since the GOP is operating in anti-Obama mode regardless of the issue, maybe Issa will step into that bucket for us to be spiteful, and something useful will come out of the hearings.

  28. prostratedragon says:

    @rugger9: Oh, I’m sure that WH won’t willingly be saying much, and that all such requests on this blog and in its comments that they do are essentially rhetorical.

    I just want to be sure that I’m correct in the future when I highlight that some propagandists get drone-fried, while some don’t.

  29. Kathleen says:

    http://www.washingtonpost.com/world/national-security/aulaqi-killing-reignites-debate-on-limits-of-executive-power/2011/09/30/gIQAx1bUAL_story_1.html
    ““International human rights law dictates that you can’t unilaterally target someone and kill someone without that person posing an imminent threat to security interests,” said Vince Warren, executive director of the Center for Constitutional Rights. “The information that we have, from the government’s own press releases, is that he is somehow loosely connected, but there is no specific evidence of things he actualized that would meet the legal threshold for making this killing justifiable as a matter of human rights law.”

    ACLU lawyer Ben Wizner said that Aulaqi had been targeted for nearly two years and that the government would appear to have a very elastic definition of imminent threat. The former intelligence official said the CIA conducted reviews every six months to ensure that those targeted for possible killing remained threats as defined by law and presidential findings.”

  30. thatvisionthing says:

    @hcgorman:

    ianal — why can Mr. Awlaki senior have standing now when he couldn’t while his son was pre-assassinated? Same crime, no?

    (I read Scott Horton call the DOJ the Department of Pre-Crime now — should have been right down their alley?)

    Like Philip K. Dick’s short story “The Minority Report,” DOJ went after people not because they had committed a crime, but because it believed that they were likely to do so in the future. It became the Department of Pre-Crime.

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