The Gang of Four Doesn’t Have Access to the Kill List

Particularly given the questions bmaz raised the other day, I wanted to point to something Dutch Ruppersberger, the Democratic Ranking Member of the House Intelligence Committee, had to say the other day. As part of the assurance he offered that the killing of Anwar al-Awlaki was legal, he admitted he doesn’t know whether Samir Khan, the other American citizen killed, was on the government’s kill list, because he doesn’t have access to the list.

Ruppersberger 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.

The Gang of Four (or possibly the full Eight, though only the Four have made comments about the killing) is presumably the only review anyone outside of the Executive Branch gives of its decisions to target people, including American citizens, for killing.

But if the Gang of Four doesn’t have access to the kill list, then the only opportunity they’ll have to review the government’s case that the target is indeed a legal target will come at a time when the government already has the person in their sights, presumably with a great deal of time sensitivity.

Yet another reason why this process is inadequate.

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.

25 replies
  1. Mary says:

    “A process” isn’t the same as “due process.”
    I believe there was ‘a process’ involved in sending people to concentraion camps to be killed, or to selecting the persons on whom collective punishment was going to be visited, etc. Someone has been trying, without the same success of the Bushies, to plant a talking point.

    I’m still reluctant to even acknowledge that there is some kind of Constitutionally or statutorily recognizable Gang of Four, btw. I think it’s better to frame all of this within the National Security Act gang of 8, fwiw.

  2. Don Bacon says:

    Rep. Jane Harman, called him, “probably the person, the terrorist, who would be terrorist number one in terms of threat against us.”

    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.

    The US had to kill Awlaki b/c there’s no basis for any of these charges against him which would have meant anything in court (same as with OBL).

    Terrorist number one? Very, very dangerous? Why?
    *9/11 highjackers? Three of them reportedly attended his religious services.
    *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.

    In Yemen nobody knew him, according to Max Fisher’s piece: “Anwar Who?

    If there was any evidence Awlaki would have been captured and tried, as many others have been. But there isn’t.
    from Justice:
    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.

    We’ve heard all this before, with Hussein, bin Laden, Zarkawi, etc. — it goes on and on. They all have to be killed.

    Fisher: “But he did manage to convince the U.S. government of his importance — how we may never know, as the U.S. declared its evidence against Awlaki secret — and it cost him his life.”

  3. bmaz says:

    In addition to Mary’s thoughts, what about situations where the “time sensitivity” is so urgent the Executive just doesn’t have time to inform, much less meaningfully discuss, with the Gang of Howevermany? Because as we all know, intrepid Executive Branches do have a history of acting and seeking cover sanction later. What then?

    Here is another thought, suppose one or more – heck even all – of the Gang of Howevermany thinks the kill listing and execution of a citizen is ill advised and objects. What then? How do they meaningfully express that, a Jello Jay Rockefeller vapor letter to nowhere?

  4. Bill Michtom says:

    The execution of OBL–who was not resisting–was no more legitimate than Awlaki’s. The US now just kills people to avoid having to justify anything it does, legal niceties have nothing to do with it. They have returned to the policies that slaughtered native Americans.

  5. MadDog says:

    @MadDog: And for Jim White, remember my SWAG that the new secret CIA airbase was in Oman. From that Greg Miller piece:

    “Traveling from secret bases on opposite sides of Yemen, armed drones from the CIA and the military’s Joint Special Operations Command converged above Anwar al-Aulaqi’s position in northern Yemen early Friday and unleashed a flurry of missiles…

    [snip]

    …The military aircraft came across the Gulf of Aden from Djibouti, which has been the primary base for JSOC drones patrolling Yemen for much of the past year.

    U.S. officials said that CIA drones involved in the strike took off from an agency base in the Arabian peninsula so new that it had become operational only in recent weeks…”

    (My Bold)

    If one looks at a map of Yemen, Djibouti is on one side of Yemen (across the Gulf of Aden) and Oman is on the other side of Yemen.

    The new CIA secret airbase could still be in Saudi Arabia, but I’m betting that Oman is the place.

  6. MadDog says:

    @emptywheel: I’d be willing to make a small wager, really a tiny wager, that there will be a public release of this purported lengthy OLC opinion (with major redactions of course) in the near future.

    My wager? A nickel…perhaps a dime.

  7. rkilowatt says:

    And Breitbar used “a process” to attack Shirley Sherrod.
    All crims use a process.
    All non-crims use a process, too.

    Anyway, How could Rupp. have certainty Anwar was on “the list” if he has no access to it?
    He was told it was true? That’s pure hearsay, unless his source was s/o who he could really, really trust….but that’s just hearsay, too.

    Maybe Anwar was put on “the list” after he was killed w/o due-process.

  8. earlofhuntingdon says:

    How, pray tell, does one become a legitimate target of extra-judicial killing at the behest solely of the president? What actions, what thoughts without action, are sufficient to commit suicide-by-president?

    Admittedly, our former “constitutional law” professor president has shredded the Constitution more handily than any Republican bar Dick Cheney and his acolyte George Bush. He has done more, to wit, institutionalizing the Republican’s ad hoc tearing apart of the Constitution, in part by refusing to investigate and prosecute those who have done the most to shred it. And rather than forge new laws, he is content to play a game of attrition, waiting and propagandizing until the “old” way of thinking is so far behind us that only unSerious “zealots”, civil liberties “extremists” expect the law to mean what it and two hundred years of precedent say it means. Admittedly, Mr. Obama is as leery as Mr. Cheney in avoiding an informed court’s decision on his most dramatic shredding of the Constitution.

    Depriving someone of life and limb without due process, however, is as core a civil liberty as it is possible to have. It’s the sort of thing African Americans fought to avoid for 200 years in the American South. The only things that come close are depriving us of a right peaceably to assemble, to speak our minds (short of advocating immediate physical violence) and to petition our government with our grievances. Rights the government seems determined to deprive Wall Street protesters who are crying “Foul” with their feet and not just their keyboards.

    This case is about extra-judicial killing at the order of the president. No argument about probable cause, none about having committed an indictable offense. No offering or testing of proof, no witnesses, documents or arguments in favor of the defense. And instead of a simple bullet, fired by a sniper and his spotter, we have extra-judicial killing by unpiloted aircraft that received its “Shoot to kill” authorization from a civilian “intelligence” operative, working with televised and audio data. All to stop a “threat” so far undisclosed, unargued, unproven.

    It is in power’s nature to be abused, regardless of intent. It is from whence come pithy comments about the corruption of power and it is why stories about Rings that bind them stir our emotional souls decade after decade. The issue is not simply whether Mr. Obama can bear the Ring without falling prey to it; he can’t. It is about what kind of society, stripped of political propaganda, we have and want and are willing to fight for.

    Mr. Obama, like Mr. Bush, has gone out of his way to succor the needs of the wealthy and ignore the needs of the many for jobs, educations, health and welfare. That already made him a candidate on par with Mr. Bush for America’s worst president. His latest assertion of lawless power makes him the clear front-runner as America’s worst president.

  9. P J Evans says:

    @earlofhuntingdon:

    The issue is not simply whether Mr. Obama can bear the Ring without falling prey to it; he can’t.

    I’d say he’s already been taken (in spirit, at least). He says things that sound good, but I no longer expect the actions to match the words.

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