Im-mi-nent: (Adj, DOJ) 20 Months

Michael Isikoff has obtained and posted the white paper DOJ gave to the Senate Intelligence and Judiciary Committees to stave off giving them the OLC memos that actually authorized Anwar al-Awlaki’s killing. I noted its mention in an SJC markup last year.

While the memos they are hiding are almost certainly far more damning (as I’ll lay out tomorrow), this is utterly damning in itself.

It effectively defines imminence so as to have no meaning.

First, the condition that an operational leader present an “imminent” threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future. Given the nature of, for example, the terrorist attacks on September 11, in which civilian airliners were hijacked to strike the World Trade Center and the Pentagon, this definition of imminence, which would require the United States to refrain from action until preparations for an attack are concluded, would not allow the United States sufficient time to defend itself. The defensive options available to the United States may be reduced or eliminated if al-Qa’ida operatives disappear and cannot be found when the time of their attack approaches. Consequently, with respect to al-Qa’ida leaders who are continually planning attacks, the United States is likely to have only a limited window of opportunity within which to defend Americans in a manner that has both a high likelihood of success and sufficiencly reduces the probabilities of civilian casualties.

[snip]

By its nature, therefore, the threat posed by al-Qa’ida and its associated forces demands a broader concept of imminence in judging when a person continually planning terror attacks presents an imminent threat, making the use of force appropriate. In this context, imminence must incorporate considerations of the relevant window of opportunity, the possibility of reducing collateral damage to civilians, and the likelihood of heading off future disastrous attacks on Americans.

[snip]

With this understanding, a high-level official could conclude, for example, that an individual poses an “imminent threat” of violent attack against the United States where he is an operational leader of al-Qa’ida or an associated force and is personally and continually involved in planning terrorist attacks against the United States. Moreover, where the al-Qa’ida member in question has recently been involved in activities posing an imminent threat of violent attack against the United States, and there is no evidence suggesting that he has renounced or abandoned such activities, that member’s involvement in al-Qa’ida’s continuing terrorist campaign against the United States would support the conclusion that the members is an imminent threat.

Even assuming this is the justification they used to kill Anwar al-Awlaki, they killed him about 20 months after the alleged attacks (the UndieBomber and plotting against British Airways) in which they sort of have evidence against him (though DOJ has always managed to make sure that evidence was not challenged in an antagonistic setting).

If you measure from the toner cartridge plot — in which other AQAP members seem to have been the operational leaders — it was a year between the plot and the killing.

Anwar al-Awlaki may have been dangerous and surely was a hateful man. But it appears clear that DOJ had no evidence he was an imminent threat — at least as traditionally defined.

So they just redefined it.

Update: See Opino Juris for an assessment of this definition from an IHL and IHRL perspective.

Update: I’ve corrected my transcription of the imminent passage above (I had had “Second” instead of “Moreover”).

 

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2 Responses to Im-mi-nent: (Adj, DOJ) 20 Months

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Emptywheel Twitterverse
bmaz @kennwhite Thank you! I had read some on it, but nothing that had the active link. So, I opted out. No change yet, but I will check it later
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emptywheel @Krhawkins5 Also suspect he secretly knew abt Stellar Wind when presiding over In Re Sealed. Sadly for Addington, Olson did not. @froomkin
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emptywheel RT @froomkin: Silberman says he will take to his grave some of the dirt (on still living people) he saw in J. Edgar Hoover’s secret files #…
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emptywheel EO 12333, under which NSA conducts most of its spying? OLC ruled that "“An executive order cannot limit a President." http://t.co/Y6LHNv2mIX
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emptywheel Another thing missing from the EO12333 discussion: How George Bush pixie dusted the order, without telling anyone. http://t.co/Y6LHNv2mIX
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emptywheel @Eclectablog Just till Saturday. It's a Halloween costume.
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emptywheel RT @Eclectablog: Republican Mike Bishop, candidate in MI-08, has had a VERY bad couple of weeks http://t.co/0YL9dElpMv
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emptywheel <<<< turning blue holding my breath tho I was wondering what @csoghoian was having so much fun working on. @NateWessler @onekade
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emptywheel @onekade If only some NGO can sic someone like @NateWessler on that issue.
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emptywheel @matthewstoller Don't you say that or Chiquita's big GOP donors will take their bananas and defect to Brazi--oh wait. Too late.
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emptywheel DOJ IG knows how to keep GOP in his camp, releases new report showing ATF/AZ USA failures on investigation. http://t.co/AuaDNi9jHM
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emptywheel As US prepares to withdraw, ISAF decided to start hiding details on ANSF troop capability. https://t.co/BjsPXBeubI (Reup fr @JimWhiteGNV)
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