Anwar al-Awlaki Assassination: Double Secret Illegitimacy

Frances Fragos Townsend is distraught that the media are not using the government’s euphemism for the Anwar al-Awlaki assassination.

Awalaki op was NOT assassination; nor a targeted killing; nor a hit job as media keeps describing! Was a legal capture or kill of AQ enemy.

My favorite bit is how that “captureorkill” rolls right into her tweet, a false foundation stone for the shaky logic that there’s a legal distinction between an operation in which there was never any consideration of capture, and an assassination.

But her panic that the media is not using the preferred semantics to describe the Awlaki assassination reflects a seemingly growing concern among all those who have participated in or signed off on this assassination about its perceived legitimacy.

In addition to Townsend, you’ve got DiFi and Saxby Chambliss releasing a joint statement invoking the magic words, “imminent threat,” “recruiting radicals,” and even leaking the state secret that Yemen cooperated with us on it. You’ve got Mike Rogers asserting Awlaki, “actively planned and sought ways to kill Americans.” All of these people who have been briefed and presumably (as members of the Gang of Four) personally signed off on the assassination, citing details that might support the legality of the killing.

In his effort to claim the assassination was just, Jack Goldsmith gets at part of the problem. He makes the expected arguments about what a careful process the Obama Administration uses before approving an assassination:

  • Citing Judge John Bates’ punt to the political branches on the issue, all the while claiming what Bates referred to as an “assassination” is not one
  • Arguing that killing people outside of an area against which we’ve declared war is legal “because the other country consents to them or is unable or unwilling to check the terrorist threat, thereby bringing America’s right to self-defense into play”
  • Asserting that Administration strikes “distinguish civilians from attack and use only proportionate force”

But, as Goldsmith admits,

Such caution, however, does not guarantee legitimacy at home or abroad.

And while his argument self-destructs precisely where he invokes the Administration’s claims over any real proof, Goldsmith at least implicitly admits the reason why having Townsend and Chambliss and DiFi and Rogers and himself assuring us this attack was legal is not enough to make it legitimate: secrecy.

[T]he Obama administration has gone to unusual lengths, consistent with the need to protect intelligence, to explain the basis for and limits on its actions.


It can perhaps release a bit more information about the basis for its targeted strikes. It is doubtful, however, that more transparency or more elaborate legal arguments will change many minds, since the goal of drone critics is to end their use altogether (outside of Afghanistan). [my emphasis]

As Goldsmith’s own rationalization for the legality of this attack makes clear, the attack is only legal if Yemen consents OR is unable OR unwilling (leaving aside the question of imminence, which at least DiFi and Chambliss were honest enough to mention). So too must the attack distinguish between a civilian–perhaps someone engaging in First Amendment protected speech, however loathsome–and someone who is truly operational.

And while the government may well have been able to prove all those things with Awlaki (though probably not the imminence bit Goldsmith ignores), it chose not to.

It had the opportunity to do so, and chose not to avail itself of that opportunity.

The Administration very specifically and deliberately told a court that precisely the things needed to prove the operation was legal–whether Yemen was cooperating and precisely what Awlaki had done to amount to operational activity, not to mention what the CIA’s role in this assassination was–were state secrets. Particularly given the growing number of times (with Reynolds, Arar, Horn, al-Haramain, and Jeppesen) when the government has demonstrably invoked state secrets to hide illegal activity, the fact that the government has claimed precisely these critical details to be secret in this case only make its claims the killing was legal that much more dubious.

Critical thinkers must assume, given the government’s use of state secrets in recent years, that it invoked state secrets precisely because its legal case was suspect, at best.

Aside from John Brennan spreading state secrets, the Administration has tried to sustain the fiction that these details are secret in on the record statements, resulting in this kind of buffoonery.

Jake Tapper:    You said that Awlaki was demonstrably and provably involved in operations.  Do you plan on demonstrating —

MR. CARNEY:  I should step back.  He is clearly — I mean “provably” may be a legal term.  I think it has been well established, and it has certainly been the position of this administration and the previous administration that he is a leader in — was a leader in AQAP; that AQAP was a definite threat, was operational, planned and carried out terrorist attacks that, fortunately, did not succeed, but were extremely serious — including the ones specifically that I mentioned, in terms of the would-be Christmas Day bombing in 2009 and the attempt to bomb numerous cargo planes headed for the United States.  And he was obviously also an active recruiter of al Qaeda terrorists.  So I don’t think anybody in the field would dispute any of those assertions.

Q    You don’t think anybody else in the government would dispute that?

MR. CARNEY:  Well, I wouldn’t know of any credible terrorist expert who would dispute the fact that he was a leader in al Qaeda in the Arabian Peninsula, and that he was operationally involved in terrorist attacks against American interests and citizens.

Q    Do you plan on bringing before the public any proof of these charges?

MR. CARNEY:  Again, the question makes us — has embedded within it assumptions about the circumstances of his death that I’m just not going to address.

Q    How on earth does it have — I really don’t understand.  How does — he’s dead.  You are asserting that he had operational control of the cargo plot and the Abdulmutallab plot. He’s now dead.  Can you tell us, or the American people — or has a judge been shown —

MR. CARNEY:  Well, again, Jake, I’m not going to go any further than what I’ve said about the circumstances of his death and —

Q    I don’t even understand how they’re tied.

MR. CARNEY:  — the case against him, which, again, you’re linking.  And I think that —

Q    You said that he was responsible for these things.

MR. CARNEY:  Yes, but again —

Q    Is there going to be any evidence presented?

MR. CARNEY:  I don’t have anything for you on that.

Q    Do you not see at all — does the administration not see at all how a President asserting that he has the right to kill an American citizen without due process, and that he’s not going to even explain why he thinks he has that right is troublesome to some people?

MR. CARNEY:  I wasn’t aware of any of those things that you said actually happening.  And again, I’m not going to address the circumstances of Awlaki’s death.  I think, again, it is an important fact that this terrorist, who was actively plotting — had plotted in the past, and was actively plotting to attack Americans and American interests, is dead.  But I’m not going to — from any angle — discuss the circumstances of his death.

Obama, too, tried to sustain the fiction that the government (aside from John Brennan) can’t share these details, though his discussion of cooperation with Yemen seems to violate the terms of Robert Gates’ state secrets invocation.

Michael Smerconish: Now comes the news that we’ve taken out Anwar al-Awlaki. Did you give that order?

Obama: I can’t talk about the operational details, Michael. This is something that we had been working with the Yemeni government on for quite some time. There’s been significant cooperation at the intelligence levels with a lot of countries in the region. We are very pleased that Mr. Awlaki is no longer going to be in a position to directly threaten the United States homeland as well as our allies around the world. This is the guy who was at the forefront of ordering the Christmas Day bomber to carry out his plan. They had put bombs in cartridges, printer cartridges, that were set to go off in US cargo planes and had it not been for outstanding intelligence work and cooperation with some of our partners that could have been a catastrophe. So this was a guy who was operationally involved in trying to kill Americans and the fact that he is now no longer around to initiate the kind of propaganda that also was recruiting people all around the world to [aid?] that murderous cause is I think very good for American security. [my emphasis]

Not only Obama’s elision between Awlaki and the “they” who tried to use cartridges to bomb planes discredit his claim, so does the proliferation of executive branch officials providing these details behind the veil of anonymity. That anonymity serves not only to hide the Administration’s obvious selective prosecution of just some leaks, but also deploys reporters’ reinforcement of the secrecy system as stand-in for any real scrutiny of the case.

You know, just the way the government used secrecy to lie us into the Iraq War?

The whole charade is made the more ridiculous given the counter-example of the Osama bin Laden killing. Sure, in that case, too, John Brennan led the brigade of boastful blabberers, both on and off the record. In that case, revealing the secrets of an uncontroversial but operationally more sensitive killing have had real repercussions for our relations with Pakistan (though perhaps useful ones, in that it forces us to deal with their duplicity) and may hurt the SEALs’ effectiveness. By contrast, the Administration is trying much harder to pretend it’s not leaking the details of the Awlaki death, in spite of the fact that Yemen leaked the details even before we did (President Saleh has obvious reasons to want to own this operation).

I guess it’s a lot easier to transparently leak real details when only a very few people challenge the legal legitimacy of an operation, even if doing so does more damage to national security.

And finally there’s the other lesson gleaned from comparing this to the OBL killing. I may not approve of the way they’ve gone about killing Anwar al-Awlaki. But a lot of voters do. And if the Administration were able to stop this charade of secrecy, then it could more loudly boast that Obama has a much bigger dick than even Dick Cheney (or whatever it is that killing terrorists proves). But because they’ve invested in this secrecy charade rather than making a public case for the legitimacy of this killing, they can’t even get maximum political benefit from it, at a time when Obama badly needs some political wins. With the OBL killing, the White House fostered a narrative of Obama making the hard decision; here, Obama makes a weaselly non-answer about that decision to preserve the charade of secrecy.

Again, the legitimacy problems of the Awlaki killing are either self-inflicted (in that the Administration has solid proof but has created unnecessary legal reasons why it won’t share that proof) or there’s a real reason why they’re engaging in this secrecy charade: because they don’t have the proof.

This Administration has long reveled in the power their asymmetric invocation of secrecy grants them. But in this instance, that asymmetry works against them, because every effort they’ve made to defend the Awlaki assassination has instead undermined its legitimacy.

Update: I originally asked why the fourth Gang of Four member, who I misstated was Silvestre Reyes, hadn’t commented. That is now Dutch Ruppersberger. He has made public statements (including stating that Samir Khan was “collateral damage”), but not issued a formal press release.

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.

36 replies
  1. rosalind says:

    “The American Government has learned that Al-Awlaki recently sought significant quantities of uranium from…er, sought ways to KILL Americans…”

    rinse. repeat. send the bill to the citizens of Yemen and the U.S.

  2. MadDog says:

    Focusing just on a small part of your post EW, really just a smidgen, I read Jack Goldsmith’s Op-Ed last night, as well as the pieces of his Lawfare blog cohorts Ben Wittes and Bob Chesney earlier in the day, and each one of these advocates for the extrajudicial killing of US citizens without due process loses that battle by forfeiture.

    How is it that they forfeit their case you ask?

    Tis very simple.

    In each of their arguments, they fail to address the central failing of their position. To wit: As the party in the dispute advocating the killing of Anwar al-Awlaki, said party may not also be the Judge in such a dispute due to said party’s bias and inherent conflict of interest.

    Far more brilliant people than these three advocates have over the course of centuries and centuries of human advancement perfected the functions of “Judgeship” to mandate that it be done by a neutral, independent and disinterested third party.

    None of these three advocates deign to even address this foundational requirement of any “due process” because it would not only lay waste to their sleight-of-hand legal argument distractions, but it would brand them for all to see as biased, conflicted, and partisan advocates for the Executive whose water they carry.

  3. suejazz says:

    When Barack Obama appointed John Brennan as National Security Advisor that was the tell. Every criminal and immoral national security policy and action of this administration goes back to that choice. Brennan is to Obama’s national security policy what Geithner is to his economic policy. Obama chose them and enables them and that will be a major part of his legacy.

  4. Don Bacon says:

    Obama: “This is further proof that al Qaeda and its affiliates will find no safe haven anywhere in the world.”

    This is a war on al Qaeda and its affiliates, and any country that has harbored them in the past or might do so again (Afghanistan).

    No judges are needed, only a resolute commander-in-chief.

    Obama: “we will be resolute in our commitment to destroy terrorist networks that aim to kill Americans, and to build a world in which people everywhere can live in greater peace, prosperity and security.”

    It’s a good cause — we’re going to “build a world” — so we can forget about that due process stuff. The end justifies the means.

  5. Don Bacon says:

    news headline:
    US officials warn of possible retaliation over al-Awlaki killing

    –But I thought we were building a world in which people everywhere can live in greater peace, prosperity and security? And instead now we have war, recession and insecurity. Damn.

  6. dekster says:

    I’ve never been as dismayed for the future of the country as I have been in the past couple of days. There is not going to be a post-Bush “pendulum swing” back to sanity. Whatever process results in restoring sanity and the rule of law and economic . . . well, again, sanity . . . it’s going to be a much longer process than a pendulum swing. If it ever happens.

    As Laurie Anderson said in Homeland, we’ve got some new kind of North, here.

  7. orionATL says:

    – there was no imminent danger/exigent circumstances posed by al-awlaki or khan

    – there was no recruiting of radicals on any scale warranting extra- judicial death

    – there was a pre-emminent first amendment right held by both american citizens, al-awlaki and khan – a right to speak out and have others listen without either man being punished in any way by the american govt.

    – there was a political need by the obama administration to kill al-awlaki. that need has to do with running for re-election with a poorly performing economy. obama will not be the first politician or american president to run on “the foreign threat”.

    unless we experience an economic miracle in the next 9 months, “the foreign threat” is all obama will have to run on.

    the president decided in 2009 that this recession and recovery would be a jobless one. “foreign threats” was his best chance for re-election. that is why he became a right-wing copy-cat within 6 months of assuming the presidency. that is why civil rights died again under obama, as under bush. that is why the wars were continued. that is why petraeus is a cia – cia-drone killing raids, together with jsoc killing raids, are now the principle means of conducting the wars and are ones which get by far the best press – that the body bags are for the other side is a bonus, you see.

  8. P J Evans says:

    The people who would support the war on terrorism aren’t the people who will vote for Mr Alleged Constitutional Lawyer. They’re the people who will vote for whatever wingnut shows up for the other party.

  9. bmaz says:

    @P J Evans:

    Hey, I am not against aggressively fighting terrorism. There really are some bad people out there who need to be addressed. And intelligent precautions and defenses should be made here at home. but the actions in both regards should not be, and do not need to be, ones that undermine the very moral and legal foundation the US was built on.

  10. allan says:

    Noted constitutional scholar Condolezza Rice weighs in:

    “I can assure you that no constitutional questions are raised here. There are authorities that the president can give to officials. He’s well within the balance of accepted practice and the letter of his constitutional authority.”

  11. prostratedragon says:

    So I guess Ms. Townsend envisions a matter where the government’s terminology anchors a defense somewhere, if necessary.

    Then it would be a wonder no doubt to see the evidence that a capture was viewed as a real possibility. You know, assets prepared and in place, that kind of thing, as when KSM was captured. Since she insists on the point, maybe Ms. Townsend knows and can say something about it.

  12. radiofreewill says:

    Wahooo! Preview!

    The place just keeps getting better!

    I hate to say it, but I just don’t think contesting the Awlaki ‘assassination’ has a winnable argument from our side.

    How is Awlaki any different from an American citizen who chose to fight for the Nazis in WWII?

    OT: Go Spartans! Auburn is about to complete the comeback for the win!

    Edit, too!

  13. bmaz says:


    They were either on a designated field of battle under international law and/or were working on behalf of a specific and named enemy in a constitutionally declared war. The differences are rather stark actually.

  14. P J Evans says:

    I’m with you on that. But this isn’t the way it should be done. (We’re doing really well, as a country, at creating more terrorists. Some of whom will, inevitably, be citizens and resident in the 50 states, with friends and relatives. And probably not really terrorists at all, just people who annoyed someone in government once too often.)

  15. radiofreewill says:


    I’ve been away from the newz lately, thanks for the fill-in!

    So, why in this case doesn’t the AUMF + NATO Action + UN Resolutions fulfill the requirements you list for “a designated field of battle under international law and/or were working on behalf of a specific and named enemy in a constitutionally declared war”?

    It’s true that the action took place in Yemen, but we had their permission…

  16. Don Bacon says:

    There are half a dozen US terrorist lists, but there’s also a special presidential enemies list.

    news report:
    Maryland Rep. C.A. Dutch Ruppersberger, the ranking Democrat on the House Intelligence Committee, . . .said al-Awlaki was on a special list of individuals that have attempted to attack the United States and are a severe threat to U.S. citizens.

    “There’s a process that goes through the National Security Council, and then after that it goes to the president, and then the president then indicates that these individuals are on this list, and as a result of that process we followed it’s legal,” Ruppersberger said. “It’s legitimate, and we’re taking out someone who has attempted to attack us on numerous occasions, and he was on that list. It was pursuant to a process.”

    Ruppersberger said he didn’t know if Khan was on the list. “But Khan was a collateral damage issue here, and I don’t know because I don’t really have access to that list,” Ruppersberger said.

  17. emptywheel says:

    @radiofreewill: Because we don’t know that he has “fought.” The Admin says he has, but has provided next to no detail on it, and appears to be censoring the details that otherwise would come out in the UndieBomber trial.

    That said, I’m writing this bc I’m rather surprised by the number of people who have questioned why the govt doesn’t show proof. This is not a lefty issue, it’s a more generalized one.

    And I don’t think it helps the Admin that Awlaki was killed the day after the model plane drone entrapment. They first found that guy in Awlaki-related chat rooms. A lot of people found that entrapment stupid. So their credibility is sinking generally.

    None of this should be accepted unquestioningly, and as the Admin leakers make clear, there’s nothing really secret about this stuff. So it’s time the govt stopped avoiding having to prove its claims.

  18. Don Bacon says:

    Serial killers tend to be white, heterosexual males in their twenties and thirties who are sexually dysfunctional and have low self-esteem. Their methodical rampages are almost always sexual in nature. Their killings are usually part of an elaborate fantasy that builds to a climax at the moment of their murderous outburst. Serial killers generally murder strangers with cooling off periods between each crime.

  19. Don Bacon says:

    Yemen is in the OEF combat theater

    Other Locations (besides Afghanistan) thru Sep 30, 2011
    99 total, 10 KIA, 89 Non-hostile
    OPERATION ENDURING FREEDOM (Other Locations), includes casualties that occurred in Guantanamo Bay (Cuba), Djibouti, Eritrea, Ethiopia, Jordan, Kenya, Kyrgyzstan, Pakistan, Philippines, Seychelles, Sudan, Tajikistan, Turkey, Uzbekistan, and Yemen.

    Kenya! Sudan! Philippines!
    Top candidates for the KIA: Pakistan, Philippines, Yemen, Uzbekistan

    Iraq is no slouch either.
    OPERATION NEW DAWN includes casualties that occurred on or after September 1, 2010 in the Arabian Sea, Bahrain, Gulf of Aden, Gulf of Oman, Iraq, Kuwait, Oman, Persian Gulf, Qatar,
    Red Sea, Saudi Arabia, and United Arab Emirates.

  20. Don Bacon says:

    And what thanks does Saleh get for setting up Awlaki?
    news report:
    “After this big victory in catching Awlaki, the White House calls on the president to leave power immediately? The Americans don’t even respect those who cooperate with them,” Deputy Information Minister Abdu al-Janadi told Reuters.

  21. matt carmody says:

    Barry’s very mistaken when he says that al-Awlaki can no longer generate any propaganda that will be used by al-Qaida for recruitment purposes. Like every other illegal outrage visited upon Muslims by this country, the actions themselves serve as incentives in ways no one’s words ever could.

  22. Don Bacon says:

    @matt carmody:
    Exactly. The idea that when the US takes an action then the case is closed is wrong. There’s no such thing as unrequited hate when it involves murder.

    We see this big-time when the US professes to bring peace, prosperity and security to the world but brings the opposites instead. Idealism has its limits. Other countries deserve to left alone.

  23. Mary says:

    @MadDog: Exactly. This is the gist of the bill of attainder prohibition – – the Executive can’t execute its enemies on its own fiat and the Legislature can’t give the Executive that power either.

    Back in some of JW’s Pakistan threads, there was discussion of how Brennan et al were laying the cover for the non-hot battlefield as a hot battlefield and the non-imminent threat as an imminent threat. It was coming up in the context of the Haqqani situation but you can easily see why Brennan and Obamaco were laying as much foundation as they could.

    EW – that ties a bit to the support you are quoting Goldsmith as providing, i.e., that the assassination of a US citizen in another country where we are not at war is *legal* “because the other country consents to them or is unable or unwilling to check the terrorist threat, thereby bringing America’s right to self-defense into play.”

    Not having read Goldsmith (I don’t have time for all the extra showers that would be necessary) I’m guessing he doesn’t delve too much into the consent question, but since he relies on an “or” and not an “and” that’s a pretty Goldsmith doctrine he’s floated. If a US Executive branch agent has an axe to grind with a US citizens and can get a foreign government to consent, that US citizen can be taken out. And everything can be classified and be unreviewable.

    No wonder the Goldsmith right wing wants to do in PBS – Conjunction Junction is threat to some of their more necessary legal theories.

    Kudos for the win – how nifty that you can raise your children in a “Homeland” that supports (based on your helpful legal input) torture and disappearance and concentrated population camps and assassinations, of even its own citizens and that will trawl the international waters to find people of the right religious affiliation to subject to the aforegoing policies of torture, disappearance, concentrated population detention and assassination. Lucky are the children who aren’t just going to be raised in that New Nation, but who can point to their parents as having such pivotal roles in its formation.

  24. Mary says:

    @radiofreewill: What in the AUMF or NATO actions or UN resolutions are you finding that refers to an entity that isn’t actually al-Qaeda and didn’t emerge until 2009 and didn’t have anything to do with the 911 actions and which operates in Yemen, where there is no US boots on the ground battlefield and in a country that has not been declared to be a lawless state like Afghanistan was (and we are pretty much depending, apparently, on no such designation being applicable when we claim “government consent”) and which therefore has the functioning judicial system that pretty much is the constitutionaly defined counterweight to the declaration of a battlefield? You have to cover all of the foregoing – not just pick and choose something like how functioning the government actually is – because they are all interelated and changing one of them alone doesn’t make the pieces fit and may put you on a different puzzle table altogether.

  25. Mary says:

    It would be nice, btw, to see someone push on the questions of whether or not Yemen is a failed state, has been so declared, etc and if so, how there was any government to give consent and if not, why there was never even an application for extradition or pursuit of the generally accepted avenues of inter-governmental transfer. And the nifty question of – at what point does the consent of a foreign despot legalize the killing of American citizens by their government abroad?

    Anyway – the good news is that the Yemeni’s and CIA aren’t likely to make mistakes. It’s not like, for example, they’d bomb their own and kill a couple of dozen or so and just say “oops.”

  26. radiofreewill says:


    If the President declares a US Citizen an ‘enemy combatant’ – does that enemy combatant lose the protections of his rights as a Citizen?

    • bmaz says:

      No. You are a citizen until you are not a citizen, whether by affirmatively relinquishing citizenship, or having it stripped. Neither applied to Awlaki.

  27. pdaly says:


    Does Awlaki’s father now have standing in a US court of law for a wrongful death suit? I only see state statutes, however, not sure if there is a federal one.

    Maybe this could be a way to force secrets out in the open? It’s pathetic that the US government hasn’t/couldn’t provide details to justify a legal killing by now.

  28. bmaz says:


    Man, this is not an easy question. Wrongful death is a creature of statutory, not common law and is present through state law. There is a way to bring one through a state law based claim in a Federal Civil Rights action under 42 USC 1983. None of that is going to work as to Awlaki though. There are only two possible paths I can see, and neither one of them is particularly possible. The first is the Federal Tort Claims Act, but there are bars to actions based on military and war related activities. Probably jurisdictional and standing issues as Awlaki’s father is foreign. The other is the Alien Tort Statute, but that is not particularly appropriate for suing the US government. So, not so good as to prospects. Even is you were creative enough to find a litigation path, it would be shut down by state secrets.

  29. Mary says:

    @radiofreewill: No. Someone has to actually be – fact based – a combatant to end up being covered under the laws of war as a combatant. If they are a uniformed member of an entity against whom the US Congress has declared war, they can be taken as a POW on or off an active battlefield. If they are not uniformed, but they are an actual combatant (Milligan, for example, was blowing things up himself) and they are captured on an active battlefield (defined by the US courts to mean a place where US troops are actively engaged in battle and no courts are open and operating) then they can be subjected to a different kind of commission, a commission of necessity established based on the lack of an operating judicial system with jurisdiction. If the are an actual combatant but not a member of an entity against whom the US Congress has declared war (and AQAP, created in 2009, isn’t such an entity) and they are not on what the US courts called a battlefield and what Goldsmith /Brennan are NOW redefining as a “hot” battlefield (so as to still use “battlefield” rationale on locales that are otherwise excluded from the legal definition of battlefield) then they can still be subject of a capture (or kill) operation if they pose an imminent threat of danger to “the US” (i.e., it is an “absolute necessity” for self defense purposes to kill them).

    The last such act would still be an act of belligerency/war (using military assest to kill someone in foreign country with whom we are not at war) absent the consent of that country to our military action within their borders. Although now Goldsmith is apparently positing that instead of consent being an additive element that is needed to keep the action legal within the country-in-question’s borders, it is a stand alone basis for legalizing the killing of an American by their government (i.e., Goldsmith is saying that if a country gives consent, there doesn’t need to be the imminent threat, even as he and Brennan and Hayden have re-defined imminent). fwiw, don’t know if any of that went to the heart of what you want to know or not.

  30. Mary says:

    @bmaz: There is always the war crimes act.

    I know I phrased it as snark earlie, but I’d really like to see the underpants bomber move for some kind of action, based on the deliberate government assassination of a US citizen/material witness in his case. And some claims of inability to participate in his own defense based on fear of assassination if he is successful in his defense. I think they neeed to push the inability to assist in defense due to government actions harder in Padilla – a return to habeas proof torture as the fruits of your successful defense pretty much cuts you off at the knees as much as letting the gov hold a loaded gun to your client’s head while saying “go on, defend yourself, and if you win, we pull the trigger.”

  31. bmaz says:


    I agree with that, and wish Hasan and Warsame would do the same. I still think Awlaki is the “US National” in the Warsame indictment that they use to get the conspiracy that is effectively, if not literally, the entire basis for jurisdiction of US courts.

  32. pdaly says:

    Thanks bmaz, Mary, and emptywheel (and Glenn Greenwald).

    BTW, I’ve been visiting a conservative website this weekend where they were discussing the Awlaki killing. Most have cheered it on (not unlike commenters at dkos). However, among the commenters who voiced doubts going forward about the advisability of killing an American without due process, there was unanimous “certainty” that Awlaki was operational and no concern that the attack occured in Yemen, far from the battlefield. ‘The world is a battlefield in the WOT’ is a reflexive refrain there.

    So I hope you don’t mind, but I’ve been dropping emptywheel, bmaz and Mary quote baubles of light and truth to help them see better.

    Not sure if it is working, but it couldn’t hurt (except, I apologize in advance if I’ve led trolls back to here). This issue is too important to leave some in the dark.

  33. b2020 says:

    “an uncontroversial but operationally more sensitive killing”

    The reporting is worth the eyeball time, but the editorial comments are getting hard to bear. Uncontroversial? Really? Maybe the goalposts need to be motorized going forward.

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