If the Legal Case for Killing Awlaki Is So Sound, Then Why Maintain Presidential Plausible Deniability?

Glenn Greenwald has another worthwhile post on Democrats’ silence about the Anwar al-Awlaki assassination. But i wanted to push back against one thing he said. After quoting from this Mark Hosenball story on the kill list approval process, Glenn said,

So a panel operating out of the White House — that meets in total secrecy, with no law or rules governing what it can do or how it operates — is empowered to place American citizens on a list to be killed, which (by some process nobody knows) eventually makes its way to the President, who is the final Decider.

But that’s not actually what Hosenball wrote. On the contrary, Hosenball emphasized that Obama’s role in the kill list approval process remains unclear.

The role of the president in ordering or ratifying a decision to target a citizen is fuzzy. White House spokesman Tommy Vietor declined to discuss anything about the process.

[snip]

Other officials said the role of the president in the process was murkier than what Ruppersberger described.

They said targeting recommendations are drawn up by a committee of mid-level National Security Council and agency officials. Their recommendations are then sent to the panel of NSC “principals,” meaning Cabinet secretaries and intelligence unit chiefs, for approval. The panel of principals could have different memberships when considering different operational issues, they said.

[snip]

Several officials said that when Awlaki became the first American put on the target list, Obama was not required personally to approve the targeting of a person. But one official said Obama would be notified of the principals’ decision. If he objected, the decision would be nullified, the official said.

A former official said one of the reasons for making senior officials principally responsible for nominating Americans for the target list was to “protect” the president.

And the Administration has tried to keep Obama’s role murky. In addition to the Vietor refusal to discuss the issue Hosenball notes, Obama very pointedly refused to answer whether he had ordered Awlaki’s killing when asked by Michael Smerconish.

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. [my emphasis]

This is, sadly, another way that the Awlaki assassination is like Bush’s torture program. There, too, the Administration built in plausible deniability for the President. The initial authorization for the torture–Bush’s September 17, 2001 Finding authorizing the capture and detention of al Qaeda figures–didn’t mention torture at all. The Administration twice refused to tell Jane Harman whether the President had authorized the program. The White House only gave more formal Presidential torture authorization in 2003 and again in 2004 (though even there, it attempted to avoid doing so).

Sure, Bush ultimately boasted that he had approved torture. But for years, the Administration sustained the President’s plausible deniability for the illegal program.

The Obama White House efforts to do the same with Awalaki’s death are all the more striking given that it has not been so coy about Obama’s involvement in ordering hits in the past, most notably when we killed Osama bin Laden. Indeed, they worked hard to foster the narrative of Obama making the difficult decision to order the SEAL operation. And here’s what a Senior Administration Official who may be named John Brennan said the day after the Osama bin Laden killing regarding Obama’s role.

In the middle of March, the President began a series of National Security Council meetings that he chaired to pursue again the intelligence basis and to develop courses of action to bring justice to Osama bin Laden.  Indeed, by my count, the President chaired no fewer than five National Security Council meetings on the topic from the middle of March — March 14th, March 29th, April 12th, April 19th, and April 28th.  And the President gave the final order to pursue the operation that he announced to the nation tonight on the morning — Friday morning of April 29th. [my emphasis]

With OBL, the Administration proudly highlighted Obama’s role in the decision-making process; here, they’re working hard to obscure it.

As with the torture program, that suggests the Administration may believe it important for the President to have plausible deniability about this killing.

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.

38 replies
  1. William Ockham says:

    Wow, you know what this reminds me of:

    “What miserable drones and traitors have I nourished and brought up in my household, who let their lord be treated with such shameful contempt by a low-born cleric?”

    That statement made it into popular culture as:

    “Will no one rid me of this turbulent priest?”

    Either way (and I like the irony of the drones and cleric in the original), this is the classic 12th century version of plausible deniability.

  2. B_Amer says:

    Thanks for posting this. I fear that you & Glenn are correct that this cements this policy for the foreseeable future. When a Democratic President follows a Republican & essentially continues policies like this, it means both parties are fully on board.

  3. Jim White says:

    As with the torture program, that suggests the Administration may believe it important for the President to have plausible deniability about this killing.

    And, just like the torture program, they are doing it this way precisely because they know that the justifications they have cooked up are bogus and what they are doing breaks the law. This situation should serve as Exhibit A in the case for why Obama absolutely did not want Dawn Johnsen to head OLC. There’s just no way she would have been involved in providing cover for an extrajudicial execution of an American citizen.

  4. orionATL says:

    this is all one needs to know to assert president obama’s complete responsibility for al-awlaki’s and khan’s murders at the hands of the cia:

    “… But one official said Obama would be notified of the principals’ decision. If he objected, the decision would be nullified, the official said…”

    any assertion about lesser officials (sometimes from different agencies) making the kill-call is a shell game to hide just where the P (for prez) is in the decision making process.

    but only a credulous fool (or a career-cautious corporate media reporter – they’re functionally the same) would argue that obama was not fully responsible for al-a’s and kahn’s assasinations.

  5. orionATL says:

    just for the record:

    there IS no legal justification for the cia’s killing al-aor khan NONE.

    the decision to kill was volitional on the part of the president and the advisors he chose.

    it occurred because;

    1. the president needed the press coverage for his re-election plans (tough by god on terrorism)

    and

    2. it has become the principal american policy in uprooting terrorism to terrorize not onlyn those whom the u.s. designates as “terrorist”, but also those whom the u.s. designates as “associates and encouragers” of terrorists.

    the killing of al-a was designed to send this message to muslim preachers preaching radical rage at the u.s. – “shut up, or you could be next!”

  6. orionATL says:

    since we are enjoying the hidden delights, suddenly made manifest, of the english language:

    one could say al-awlaki’s murder was intended to have a chilling effect on radical muslim speech.

  7. MadDog says:

    Minor sentence construction typo EW in “The White House only gave more formal about Presidential torture authorization in 2003”.

    I also think another reason for the unwillingness to describe the actual decision-making process as I’ve commented before is the potential legal liability issue from both a criminal and civil perspective. An “admission against interests”.

    While Obama gave the previous Bush/Cheney regime a pass on their criminal acts of torture and domestic wiretapping, I doubt very much whether the Obama Administration feels they would have a guarantee of similar treatment.

  8. rugger9 says:

    @William Ockham:
    Note that Henry II was blamed for the murder of Thomas a Becket [who was later canonized], and was forced into penitence by the Pope, including getting scourged in public.

    So, while plausible deniability may have been the goal even then when there were fewer lines to be crossed, the scheme failed.

    Legal liability aside, as the Commander In Chief Obama should know that authority may be delegated, but responsibility cannot. Just like Henry, he is on the moral hook regardless of perceived legal wiggle room. He put in place this system, gave it his blessing, chose the people who sit on the committees, who are all acting as if the President will have their backs if “legal issues” arise.

  9. rugger9 says:

    And so who is accountable for collateral damage (i.e. Samir Khan) which seems to have had no discussion at all?

    And, remember that today’s enemy du jour can include others tomorrow. That’s why in the early years of the Iraq war, we had the spectacle of the Raging Grannies and the Quakers being fingered as potential collaborators with Al Qaeda. Should these pacifists be on a kill list?

  10. Don Bacon says:

    The US has no facts that Awlaki committed any crime (as with OBL) so they have to make the process mysterious and the result deadly so the victim can’t talk, as orion suggested above. Awlaki was simply a mouthy propagandist, something the US fears more than any actual criminal. But ranting is not a crime or we’d all be in prison. Or dead. Ya think?

  11. Mary says:

    You know, this is also a lot like the way the BUSHCO USA firings were handled. At first Bush is distanced from the decision, Tony Snow getting irate that anyone would try to lay them at Bush’s door, but then Bush began to go around preening, “hey, they serve at my pleasure.” The really direct question that Obama is getting asked here, for some reason I never heard asked of Bush – I never heard anyone ask Bush, “Mr. Presiden, did you personally order the firings of the US attorneys? I know you are now saying that they serve at your pleasure, but your original remarks were that you had nothing to do with their firing. Did you order that they be fired and if not, who did?”

    The Samir Khan question does seem to keep getting skated as well. It would be nice to have someone ask the President if he ordered the killing of Khan and under what circumstances US citizens can be made collateral damage. If it had been a journalist trying to get a story, could they have been killed as well? If the target has US children, can they be collateral damage as well? What about if a member of Congress was attempting a meeting overseas with one of his constituents who is claimed to be a terrorist – can they be killed as collateral damage? And if the “operational” aspect of Awlaki is that he allegedly told a guy to wait until he was over US airspace to try to activate his bomb – but that guy’s evidence may have been elicited under coecion techniques and was never made available for cross examination or investigation – is that the standard for the killing of a US citizen? If a criminal suspect will agree, under coercion, to name someone the US president or his CIA handlers wants to take out, then everything is good to go?

    At least the direct question is being asked now, if not answered.

    Here’s another one for them to ask: Mr. Obama, given the rate of drone bombing killings since you have been in office, including the over 3 dozen deaths of tribal leaders at a jirga trying to settle mining disputes, is it fair to say that you’ve executed more men and women and even children than Rick Parry – and you’ve been able to pull it off without wasting any governmen monies in trials?”

  12. Mary says:

    The farce that we would both have laws prohibiting the Executive from turning someone over to a foreign government that might torture them yet at the same time, have a Justice Department that wholeheartedly urges the Executive to just bomb and kill whoever they want – and any “collateral damage” along with them, is a sad thing to watch play itself out.

  13. speer's rotting corpse says:

    Sounds like the best way to sort it all out is to have Russia submit a UNSC resolution referring extrajudicial killing charges to the International Criminal Court under Article 8.2.c.iv. Give him his day in court, let him make his case. The US can always veto the referral, if they have something to hide, then the GA can pass a ‘Uniting for Peace’ resolution instituting a truth commission.

  14. orionATL says:

    mary wrote:

    “…Mr. Obama, given the rate of drone bombing killings since you have been in office, including the over 3 dozen deaths of tribal leaders at a jirga trying to settle mining disputes, is it fair to say that you’ve executed more men and women and even children than Rick Parry ..?”

    whoa, now that’s hard!

  15. Bill Michtom says:

    @MadDog: “While Obama gave the previous Bush/Cheney regime a pass on their criminal acts of torture and domestic wiretapping, I doubt very much whether the Obama Administration feels they would have a guarantee of similar treatment.”

    While I’m less certain that Obama wouldn’t also have immunity (the Rs figuring even the Ds would retaliate), I would be more than happy for at least one of our criminal presidents to face responsibility for his crimes.

  16. Don Bacon says:

    @Jim White:
    Apparently the US was able to get Professor Philip Alston removed last year as United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions. But we do have these resources:

    This website provides information about Professor Philip Alston’s work during his mandate as United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions (August 2004—July 2010).

    The Project on Extrajudicial Executions (2005-2011) provided support to the mandate of the United Nations Special Rapporteur on extrajudicial executions, Professor Philip Alston. It carried out factual, legal, and policy research into issues related to unlawful killings around the world.

    During his term as the UN Special Rapporteur, Professor Philip Alston conducted human rights fact-finding missions to countries around the world to investigate and report on allegations of unlawful killings

    This site also contains the full text of the UN Special Rapporteur on Extrajudicial Executions Handbook – a book containing detailed legal and policy analyses by Alston and the Project on Extrajudicial Executions. The Handbook organises into thematic chapters each of the issues the Special Rapporteur’s mandate covers, and contains sections clarifying the relevant law, analyzing gaps in the law, applying the law to common fact scenarios, setting out best practices, and surveying categories of unlawful killings around the world.
    http://www.extrajudicialexecutions.org/

  17. Don Bacon says:

    Awlaki is high-profile, others haven’t been. They’re just old men, women and kids, lots of kids. from the above link:

    “You have people going in with a kill list and the public accountability simply doesn’t exist,” said Sarah Knuckey, director of the Project on Extrajudicial Executions at the Center for Human Rights and Global Justice at the New York University School of Law. She went to Afghanistan in 2008 to interview dozens of civilians who had complained of indiscriminate military attacks.

  18. jerryy says:

    Does this mean that all US citizens now have standing to go into federal courts and sue the government into not murdering them?

    As this article makes clear, names are being submitted as potential targets and there is no judicial oversight as to how arbitrary the reasoning is behind those decisions. Not to mention how disgusting that this is happening.

  19. emptywheel says:

    @jerryy: Well, if they could get someplace safe to sue. Judge Bates would let Awlaki’s father sue. He said Awlaki could just email in a complaint via a lawyer.

    Because, you know, the govt doesn’t wiretap emails to lawyers or anything.

  20. jerryy says:

    @emptywheel: How about a class action suit filed in every district by a representative concerned group residing in that district?

    I know this would clog the courts, but … that bit in the Constitution about due process is rather important.

  21. orionATL says:

    @Don Bacon:

    here as interview that scott horton (harper’s) did with philip alston on the topic of the american use of drones to kill individuals it considered an “enemy”:

    http://harpers.org/archive/2010/06/hbc-90007190

    by way of introduction, horton writes:

    “… In your report, you specifically challenge the American government’s decision to allow the CIA to wage drone warfare, calling it the “greatest challenge” to the principle of compliance with the law of armed conflict…”

    here’s a sample quote from professor alston:

    “… It’s no secret that over the years there have been significant problems with U.S. military compliance with the laws of war, and related transparency and accountability issues. But the CIA almost makes the military look good. Because it shrouds its operations in secrecy, it has to reject out of hand the international law requirement that there must be at least some minimal accountability for such targeted killings…”

  22. Don Bacon says:

    @orionATL:
    Thanks — very interesting. I can find nothing recent (since July 2010) on Prof. Alston. I hope they didn’t, you know . . .He was pretty hard on the CIA, who is Keeping Us Secure™.

    With Scott Horton, Alston discussed “law of 9/11 self-defense justification,” the “undefined and open-ended” war with AQ, and the US failure to define the “scope of the armed conflict in which the United States asserts it is engaged, the criteria for individuals who may be targeted and killed, the existence of any substantive or procedural safeguards to ensure the legality and accuracy of killings, or the existence of accountability mechanisms.”

    Another interesting article: “Drone Assassinations Hurt the U.S. More Than They Help Us” By John Horgan | October 3, 2011
    http://blogs.scientificamerican.com/cross-check/2011/10/03/drone-assassinations-hurt-the-u-s-more-than-they-help-us/

    I call it ‘recruiting resistance.’

  23. earlofhuntingdon says:

    As with Mr. Bush’s grandest initiatives, including the awesome power wielded by Mr. Cheney as his stand-in, all of the actions at issue here are so novel as to stand solely on a single point. That point is in the person of the President of the United States.

    If Mr. Obama did not pull the trigger, he put a loaded weapon in the hand of a named person who did. He delegated to that person the authority he claims to have to order a due process-free killing.

    Disclosed or undisclosed, sensical or nonsensical, no “process” could create plausible deniability for Mr. Obama. The buck stops in one place. It is with him. It is not with any staff member, outside contractor, intern, chief of staff at the White House or joint chiefs, or the director of an unnamed alphabet soup agency. The buck stops in the Oval Office, at the desk of the president.

  24. earlofhuntingdon says:

    The grasping at “plausible” deniability ought to be several reasons, including what should be the political repercussions of Mr. Obama claiming to have the authority of a mafia don to send out a button man to take care of business. Another is the likelihood that the “legal analysis” purporting to find that the president has such authority is as weak and boot-strapped as a John Yoo legal opinion.

  25. earlofhuntingdon says:

    @Mary: You know, don’t you, that all those killed were insurgents? At least that’s what the MSM reportage would say. It seems to be moving beyond the notion that we freely kill innocents when they get in the way of our killing someone who someday might somehow be a threat to us or one of our great corporations or a sister state and its favored companies. “Collateral damage” and other euphemisms seem to be giving way to simply reporting the claimed body count.

  26. orionATL says:

    @earlofhuntingdon:

    earlofhuntingdon wrote:

    “…Disclosed or undisclosed, sensical or nonsensical, no “process” could create plausible deniability for Mr. Obama. The buck stops in one place. It is with him. It is not with any staff member, outside contractor, intern, chief of staff at the White House or joint chiefs, or the director of an unnamed alphabet soup agency. The buck stops in the Oval Office, at the desk of the president…”

    and then wrote:

    “…The grasping at “plausible” deniability…”

    i could not agree more.

    in my view, “plausible deniability” has been vasty over-used since it entered the common vocabulary in the nixon era.

    in this case, for example, there really can be no “plausible deniality”, none whatsoever;

    there can only be credulous reporters, editors, and citizens.

    consider the implications of this counter-example:

    a group of subordinate “national security” officials decides on their own to murder al-awlaki and khan, then proceedes to murder them, with the co-operation of the cia air force.

    fait accompli, they inform the prez of their decision and action (or potus is informed thru media accounts).

    what do you think would be the presidential response?

    “guys, guys, please! you gotta keep me in the loop. next time, give me a hint in advance, o.k. ?”

    not too f-kin’ likely.

    so, there can be no plausible deniability for the prez in the matter of al-awlaki’s assasination.

    it would take a hague prosecutor a few days of discovery and a few hours of testimony under oath to unravel any such official scam.

  27. P J Evans says:

    @orionATL:
    Also designed, I suspect, to make sure that all of us in the US get the message that we, too, are potential targets. (But the MOTUs and the Very Serious People don’t have anything to worry about.)

  28. Don Bacon says:

    Why did Obama want Awlaki dead?
    from Fox News:
    During a hearing before the House Intelligence Committee on Thursday, [Rep. Peter] King demanded answers from FBI Director Robert Mueller.

    “Do I have any reason to believe that we’re not going to get the information … involving the FBI’s dealings with al-Awlaki and the Justice Department dealings with al-Awlaki?” he asked.
    “No and I, quite obviously, I’d go back and check and see what has happened in response to that letter,” Mueller said, adding, that the bureau would return a response to King.

    King also questioned the cleric’s stint as a guest speaker at the Pentagon in February 2002 — first reported by Fox News — and the fact the FBI had interviewed the cleric at least four times in the first eight days after Sept. 11 because of his known contacts with the three hijackers. Mueller, whose bureau is run out of the Justice Department, replied that he would have to get back to him.

  29. rugger9 says:

    King loves him some terrorists, now even without the brogue. Either that or he’s a dimwit. Or both. but, IOKIYAR.

  30. earlofhuntingdon says:

    @Don Bacon: Fox Noise listeners are among the most information-deprived of Americans. Relying on Fox for the accuracy of a fact in context is like expecting a tobacco salesman to give a smoker an accurate diagnosis for his lung cancer or believing Taser’s chief lawyer or executive’s statement on the harmlessness of its products.

  31. pdaly says:

    @earlofhuntingdon:

    “or believing Taser’s chief lawyer or executive’s statement on the harmlessness of its products.”

    That’s probably why Bin Laden was not taken down by a taser. Too many down sides.

    Imagine the company’s profile would have been hurt if it got out ‘we tried to capture Bin Laden alive and the taser killed him’
    Or alternatively if it was non-lethal in Bin Laden’s capture and became public knowledge then the public outcry with it subsequent use on the population: ‘I’m no international terrorist–don’t tase me!’

  32. MarkH says:

    @pdaly: What if it’s important to the administration to make it unclear to the world (precisely who killed awlaki)? There could be a reason for that.

    BTW, this website looks weird and operates strangely. Would ew take responsibility now or maintain plausible deniability until forced by a Congressional hangin’ posse comes ’round with a court order for testifyin’. :-)

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