Dick Cheney: Awlaki Killing Violated American Principles of Justice Just Like Torture Program Did


I can think of no stronger indictment of the process by which the Obama Administration killed Anwar al-Awlaki than for Dick Cheney to, first, confirm that the process by which Awlaki was targeted does not constitute due process, and then state that Presidents should have that authority anyway.

Cheney then says Obama should apologize for suggesting, in his Cairo speech, that the Bush Administration’s counterterrorism policies had violated America’s principles.

I’ve come here to Cairo to seek a new beginning between the United States and Muslims around the world, one based on mutual interest and mutual respect, and one based upon the truth that America and Islam are not exclusive and need not be in competition.  Instead, they overlap, and share common principles — principles of justice and progress; tolerance and the dignity of all human beings.

[snip]

And finally, just as America can never tolerate violence by extremists, we must never alter or forget our principles.  Nine-eleven was an enormous trauma to our country.  The fear and anger that it provoked was understandable, but in some cases, it led us to act contrary to our traditions and our ideals.  We are taking concrete actions to change course.  I have unequivocally prohibited the use of torture by the United States, and I have ordered the prison at Guantanamo Bay closed by early next year.

Cheney’s right: this assassination exhibited the same disdain for our Constitution that Cheney’s torture program did. And Obama does owe an apology: not to Cheney, but to the America people.

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.

32 replies
  1. Don Bacon says:

    I have posted Obama’s National Security Strategy before so I won’t do it again here. The NSS expressly institutionalized the thoughts that Obama expressed in his speech — due process for alleged terrorists. And the NSS, with Obama’s introductory remarks, gives cogent reasons for it. They are mainly two: (1) It’s American and (2) it’s smart politics.

    So we need much more than an apology, we need an explanation for why US actions don’t conform to US stated policies, which are reasonably based on what is American, and also on what is best for the US.

    Why is Obama not conforming to US policy on these matters?
    And why is behaving in a way that puts Americans at risk?

  2. MadDog says:

    While digging around the toobz for more “official” US government commentary, I came across this interesting tidbit in the State Department’s September 30 daily press briefing:

    “…QUESTION: So, you mean to tell us that Awlaki was not stripped of his U.S. citizenship, although he committed high treason?

    MS. NULAND: You know, it’s interesting; I looked into this with our lawyers before coming down here. You might be interested to know that there is no law currently on the U.S. books that allows for the revocation of U.S. citizenship based on one’s affiliation with a foreign terrorist group. Now, an American can be stripped of citizenship for committing an act of high treason and being convicted in a court for that. But that was obviously not the case in this case.

    QUESTION: But there is precedent. I think, just chess master Bobby Fischer was stripped of his citizenship, I believe, at one time.

    MS. NULAND: I can’t speak to any comparison here or there. I’m simply giving you the current state of U.S. law.

    Andy.

    QUESTION: But you called him an operational figure. Doesn’t that imply action?

    MS. NULAND: Under U.S. law, there are seven criteria under which you can strip somebody of citizenship, and none of those applied in this case…”

    The al-Awlaki questioning by the press continued throughout the session.

  3. Don Bacon says:

    QUESTION: ACLU has a pretty strong statement about this al-Awlaki incident, saying that it’s essentially an extrajudicial killing and represents a program under which American citizens, far from the battlefield, can be executed by their own government without any judicial process. And I’m just wondering, what’s the State Department’s sort of position on the legality of this incident?

    MS. NULAND: We worked closely with the Yemeni Government on this case, on other cases, in an effort to defeat Al-Qaida in the Arabian Peninsula, which is a terrorist organization which is intent on killing Americans. With regard to application of U.S. law, I’m going to refer you to the Justice Department.

  4. Don Bacon says:

    from Justice:

    II Incapacitating Terrorists

    Hundreds of terrorism suspects have been successfully prosecuted in federal court since 9/11. Today, there are more than 300 international or domestic terrorists incarcerated in U.S. federal prison facilities. Events over the past year demonstrate the continuing value of federal courts in combating terrorism. In 2009, there were more defendants charged with terrorism violations in federal court than in any year since 9/11.
    http://blogs.usdoj.gov/blog/archives/541

  5. bmaz says:

    I guess the Dicks Cheney are the last people in the world to realize that little to nothing in Obama’s Cairo speech was honest. Go figure.

  6. P J Evans says:

    @MadDog:
    They’re kind of assuming the central point there, that what Awlaki did was treason. (Like a lot of other people, I might add.) And also kind of missing the point that the constitution guarantees even people much more obviously traitors than Awlaki their day in court.
    It makes me wonder if they’ve even thought about the consequences of their assumptions and arguments, and where that road goes.

  7. MadDog says:

    @P J Evans: I found the DOS statement about whether al-Awlaki had committed treason to be fairly definitive:

    “…Now, an American can be stripped of citizenship for committing an act of high treason and being convicted in a court for that. But that was obviously not the case in this case…”

    First, there seems to be a declarative statement by the US government that while they examined the case for charging al-Awlaki with treason, they were unable to make a legal case for it.

    Second, even if there were a case for charging al-Awlaki with treason, it would require a conviction in a Federal court.

    So rather than fuss with pesky stuff like criminal charges and convictions, the US government decided that they had sufficient reason to kill al-Awlaki instead.

    Talk about back asswards: “We can’t convict him of anything, so we’ll kill him instead.”

  8. Don Bacon says:

    On June 28, 2004, the Supreme Court held in Rasul v. Bush, that the nearly-600 men imprisoned by the U.S. government in Guantanamo Bay, Cuba had a right of access to the federal courts, via habeas corpus and otherwise, to challenge their detention and conditions of confinement.

  9. Don Bacon says:

    Citizenship is not an issue.
    “. . .nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

  10. bmaz says:

    @Don Bacon:

    Ah, but those rights are not applicable to non-citizens outside the territorial US jurisdiction. The differentiation with Awlaki, compared to the other drone kill victims, is that he is a citizen. So it does matter.

  11. Don Bacon says:

    Hey, if these Islamic propagandists are so effective, where’s the beef? I mean, if anyone were so infected they could easily make some explosive (google “explosive recipe”) and then truck on over to a giant utility tower, the LA aqueduct, or some other easily accessible target and do the deed.

    It hasn’t happened*. But if the US keeps messing around and spawning these radicals, it might.

    *Major Hasan? The FBI was satisfied that his communications with al-Awlaki posed no threat at the time.
    *Underwear bomber? He’s in custody awaiting legal proceedings, there is a mere suspicion that he had contact with al-Awlaki.

    • bmaz says:

      I am not sure what you mean “what basis”. Simply put, the US Constitution does NOT confer rights on non-US citizens that are not within the territorial jurisdiction of the United States. The only reason there is even an argument as to Awlaki is specifically because he was a US citizen. End of story.

      Now, you can go further and start arguing International Humanitarian Law, the Law of War or any number of Conventions; but that argument is a lot murkier. The real bone of contention is that he was a citizen.

  12. Don Bacon says:

    So is it that the Constitution applies to all people within the US and its jurisdictions, but it only applies to US citizens who are outside the US and its overseas jurisdictions (bases and embassies)?
    So if I’m careful and I don’t get caught I can kill any foreigner who is outside the US and its jurisdictions?

    Now with Awlaki it gets complicated because it involves the US getting permission from Yemen, and the US president is the perp so any extradition treaty is moot.

    Good discussion. Thanks for bearing with me. Gotta go.

    • bmaz says:

      Oh, you were not wrong necessarily, it is all a mess. And just to be clear, I am not advocating that our standard every day it seems drone strikes on foreigners abroad are “legal”, just that the analysis of those is a lot more complex and removed. The consideration on Awlaki is a lot more direct and troubling because, as bad a man as he may have been, US citizenship does confer 5th Amendment rights to due process. For instance, if the US government wanted to surveillance tap Awlaki’s communications, there would be no problem getting that warrant from the FISA court. Hell, I would grant that request in a heartbeat. But to legally do it, you would need to go get that because of 4th and 5th Amendment protections emanating from his citizenship.

      Which makes it pretty fucking absurd that the Obama Administration, while acknowledging those protections, nevertheless feels they have no need for such Due Process compliance to, instead of phone tapping Awlaki, to kill him. For better or worse, THAT’S why the Awlaki incident is more important than the standard drone kill issue. And, as my Friday post argued, I think it is very germane, and depending on facts we don’t yet know, maybe even more germane as to Samir Khan, who was also an US citizen.

  13. Teddy Partridge says:

    Here’s a word you won’t find in the CNN video (or the online story): CITIZEN.

    The dead are “American-born” and “an American of Pakistani origin” — or, as Candy calls them “Americans” — but nowhere does the word CITIZEN appear. Obama’s real crime is completely suppressed here.

    I hope Obama’s happy knowing at least one Bush war criminal is on his side.

  14. jerryy says:

    So how does Rick Perry not only stay safe here in the US, but continues on as Govenor of Texas while running for the office of President?

    There are plenty of videos available of him calling for secession, of him threatening US officials, and so on.

    Last time I read any US history, the previous secession bit ended up killing lots of people and destroying large parts of the country.

  15. earlofhuntingdon says:

    The nature of power, as is true also of those who most accumulate it, is that its abuse is inherent, it is inescapable, and no amount of faux goodwill from notional pundits can change that.

    A hundred years ago, when Lord Acton observed that power corrupts, absolute power corrupts absolutely, such a comment was commonplace. More than two hundred years ago, intellectual American landed aristocrats were so convinced of it they designed this country’s political system to blunt the obvious effects of too much accumulated power and its inherent abuse.

    Today, however, such a comment is considered – by those who wield power, naturally – as unSerious cynicism worthy only of those addicted to John le Carre novels. Which reminds me that the devil’s greatest trick, apart from aiding the rise to prominence of Sarah Palin and Michelle Bachmann, is to convince us she doesn’t exist.

  16. P J Evans says:

    @MadDog:
    Yup. And people are cheering what Mr Alleged Constitutional Lawyer ordered. I don’t think they’re looking at where it will lead. I’m not sure some of them can see that future at all. (It scares me as much as Cheney’s statements did. And he had me seeing the possibility of armed guards in polling places, making sure people voted the Right Way, or else.)

  17. Bob Schacht says:

    On this general subject, I have a petition up on the White House petition site to:
    appoint a Special Prosecutor to independently investigate torture and other crimes of the Bush Administration. I prolly shoulda made the wording to include the Obama Administration. Here’s the description:

    The purpose of this petition is to hold members of the Bush administration accountable for war crimes such as torture, as well as warrantless wiretapping and other abuses of Federal power.

    Twice now, President-elect Obama has asked ordinary citizens to vote on the questions they most wanted him to answer. This petition is based on the question by Bob Fertik

    (http://www.democrats.com/special-prosecutor-question-is-the-first-test-of-obamas-commitment-to-citizen-power) that ranked 6th in the first poll, and #1 in the second.

    Top-ranking members of the Bush administration have not only admitted such crimes in their books, but have bragged about them. We need to return to the high standards set by Judge Jackson during the Nuremberg Trials after WW-II, to world acclaim.

    We only have 36 signatures so far, and need 5,000 to get a response from the White House. Already, 8 petitions have crossed the 5,000 threshold, and three of them have to do with legalizing marijuana. Can’t we do better than that?

    Bob in AZ

  18. JohnLopresti says:

    I think the passage in the Obama Cairo speech about trying to quit torture was a promise Obama kept, within the bounds of the bureaucracy in which he works.

    In a Washington Post article, Mazzetti and Schmitt, reprinted in a different newspaper, the drone attack pinpointed a third person, too, a munition expert.

    Then there is the geopolitical question of the siting of the drone attack in Yemen, which has some problems similar to Iraq in its history as it was assembled over time after regional conflicts, a patchwork effort which had longterm problems with governance and coherence.

    I would contextualize more apolitically the drone attack in the context of how the 9-11 commission developed understanding of purposes entertained by the people who flew the planes as attack vehicles on 9-11.

    I think Bush and Cheney both had foundations in a part of the US which had some rugged individualist ethos, and that likely was part of why Bush found resonance in his own understanding for his comments about wanted poster language he applied to his own administration’s targeting philosophies.

    Metaphysically I think 9-11 bespoke statelessness, and that was Bush’s reference center in his wanted-poster lexicon, and, probably, Cheney’s midwest sensibilities concerning the dignity of the human body. Like cyber-entities, people who were leaders after 9-11, too, had a sort of stateless aspect to their participation in remediation measures.

    Constitutionally, the modern satellite circled world is very far from the burgeoning settlements of Europeans which wrote the founding documents and designed the government’s failsafe components to guard against slips which had repeated too often in the history of Europe.

    There is a kind of old-guard, in rhetoric, that avers it supports the originalism perspective of the founding documents. And there are the teapartiers who try to don the mantle of the civilized rugged individualist. The former mostly seem to seek to protect the moneyed classes; the latter, mostly their own fantasy embued view of history, while begging the listener not to dispute details where sloppiness is glaringly obvious.

    Probably totally too abstract in this sort of treatment of the quality of citizenhood is a stanza taken out of context from a 1966 Dylan song, which had some crude and rough edges, yet part of which seems to talk about statelessness in the legal and or moral meanings of that concept:
    “Well, six white horses that you did promise
    Were fin’lly delivered down to the penitentiary
    But to live outside the law, you must be honest
    I know you always say that you agree
    But where are you tonight, sweet Marie?” *

    A preacher, an anarchist editor, and a munitions expert; all perished in a nation teetering on revolution’s brink; where its own 3 decades long dictator has expatriated, de facto, at least. It’s difficult to perceive any constitution in that harsh environment. So I appreciate bmaz’s and others’ reviews of the shreds of law which most clearly apply to some of those drone perished people, all the while in the setting of the gnarled surrounding bodies of law whose applicability is less limpidly obvious.

    I think it was another kind of May 2 decision Obama had to make 4th and goal. But Cheney is not vindicated. The organization known as Global Security has a sort of biography of the history and planned phaseout of the Predator there. And Tom Englehardt has written a little hyperbolized but still readable article recently concerning topics like the robotics-law-war interface there.
    – – – – –
    * source.

  19. Don Bacon says:

    @Teddy Partridge:
    CNN isn’t the only agency that has a problem with CITIZEN.
    Here’s State:
    QUESTION: So, Toria, are you in a position to confirm the deaths of two American citizens in Yemen earlier today? Can you – if you are, can you tell us what the circumstances of their deaths were? And I don’t believe the Privacy Act applies in the case of deceased people, so, as much as you can give us would be great.

    MS. NULAND: I’m not sure what case you are referring to, Matt. Are you referring to dual-Yemeni-U.S. national Awlaki, who the President spoke to earlier today?

    QUESTION: That would be one of the two, yes.

    MS. NULAND: Well, I think the President spoke very fully on the Awlaki case —

    QUESTION: I realize that —

    MS. NULAND: He was a dual U.S.-Yemeni citizen. He was also the leader of external operations for al-Qaida in the Arabian Peninsula. And as the President made clear, he played a significant operational role in the attempted attack on the U.S. airliner around Christmas in December 2009, and he also oversaw the plot to detonate explosives aboard a U.S. cargo aircraft.

    With regard to another dual-citizen or another U.S. citizen —

    QUESTION: Samir Khan. I’m not sure since – I haven’t heard this before. Does it really make much of a difference whether they’re dual citizen? Are you saying that he wasn’t really a U.S. citizen?

    MS. NULAND: I’m not saying that at all. I’m simply saying that this was a guy who was a very, very dangerous individual who was involved and dedicated to trying to kill Americans.

    ——–

    Translation: You’re not really a citizen if you’re “dual” and “very, very dangerous.”

  20. Bob Schacht says:

    @Don Bacon: Furthermore, WE (i.e., the Obama administration) will decide who is very, very dangerous. We don’t need no stinkin’ courts. Just remember, we’re at WAR WAR WAR WAR WAR WAR WAR. Oh, and did I mention? We’re at WAR. [/s]

    Bob in AZ

  21. Don Bacon says:

    @Bob Schacht:
    I’m not sure what WAR you are referring to, Bob.

    Are you referring to OPERATION NEW DAWN with operations 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? or

    are you referring to OPERATION ENDURING FREEDOM which is going strong in Afghanistan, Guantanamo Bay (Cuba), Djibouti, Eritrea, Ethiopia, Jordan, Kenya, Kyrgyzstan, Pakistan, Philippines, Seychelles, Sudan, Tajikistan, Turkey, Uzbekistan, and Yemen? or

    possibly the KOREAN WAR which the US has thoughtfully never seen fit to end? or

    maybe you’re thinking of the upcoming wars with IRAN and CHINA?

  22. Don Bacon says:

    Oct 20, 2010:
    Anwar Al-Awlaki was a lunch guest of military brass at the Pentagon within months of the Sept. 11, 2001, terror attacks.

    Documents exclusively obtained by Fox News, including an FBI interview conducted after the Fort Hood shooting in November 2009, state that Awlaki was taken to the Pentagon as part of the military’s outreach to the Muslim community in the immediate aftermath of the attacks.

    Awlaki, a Yemeni-American who was born in Las Cruces, N.M., was interviewed at least four times by the FBI in the first week after the attacks because of his ties to the three hijackers Nawaf al-Hazmi, Khalid al-Mihdhar and Hani Hanjour. The three hijackers were all onboard Flight 77 that slammed into the Pentagon. Apparently, none of the FBI’s information about Awlaki was shared with the Pentagon.
    http://www.foxnews.com/us/2010/10/20/al-qaeda-terror-leader-dined-pentagon-months/

  23. Bob Schacht says:

    @Don Bacon: Yeah, them first two “Operations.” For some reason the suspended war with N. Korea hasn’t been used as a justification to suspend civil liberties on as broad a scale.

    Oh, and if you meant to list all of our current wars, you forgot our war with the previously legitimate Government of Libya.

    Besides, you know, it is all part of the same Never-ending Global War on Terror(ism). You didn’t really have to separate them out. And doncha know, the AUMF covers them all, including any future wars with Syria, Iran, Pakistan, etc.

    But there’s a possible ironic twist to all of this: The Republicans thought that by driving our country into bankruptcy, it would force us to dismantle Social Security, Medicare, and Medicaid (i.e., those “entitlements” to which they say we’re not entitled). But instead, bankruptcy may just force us to end the Wars. Wouldn’t that be nice?

    Bob in AZ

  24. Mary says:

    @JohnLopresti: The catch 22 on that is that the Executive wants to use governmental consent to negate the act of war underpinnings of their military operation in Yemen. However, with an acknowledged failed state, you don’t get governmental consent cover, bc you are the one arguing that the government is failed and not operational.

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