One of Just Four Overseers on Drone Targeting Believes First Amendment Protected Activities Merit Execution

While the Gang of Four do not have access to the CIA’s kill list (and therefore did not know whether Samir Khan was on it before his death), they are the only people outside the Executive Branch who had, before today, seen the government’s rationale for killing Anwar al-Awlaki (and DOJ still has 8 memos on targeted killing to turn over). Thus, up until today, the Gang of Four has been the only outside review on that killing, 16 months after Awlaki’s death.

That’s all very nice because last March, in the context of the Administration’s refusal to turn over these memos, Dianne Feinstein offered this guarantee that the targeted killing program — and all other counterterrorism programs — are constitutional.

The Attorney General presented the administration’s legal analysis for the use of force against terrorists, including Americans. I believe it is important for the public to understand the legal basis and to make clear that our counterterrorism efforts are lawful under the Constitution, U.S. law and the law of war.

We are made safer by strikes against terrorists who continue to lead and carry out attacks on the United States. There are legal limits to this authority and great care is taken to ensure it is exercised carefully and with the absolute minimum of collateral damage. The Senate Intelligence Committee is kept fully informed of counterterrorism operations and keeps close watch to make sure they are effective, responsible and in keeping with U.S. and international law. [my emphasis]

That’s it. One of the only assurances that Awlaki’s death, and everyone else’s, is legal.

Which is all the more troubling given that DiFi’s judgement of what makes someone a legitimate target is so outrageous it made even John Brennan pause.

DiFi presented a series of terrorist attacks and asked Brennan to validate that Awlaki was, in fact, involved. It went something like this:

DiFi: Did he have connection to Umar Farouk Abdulmutallab?

Brennan: Yes.

DiFI: Can you tell us what that was?

Brennan: I prefer not to.

DiFI: Did he have a connection to Fort Hood?

[long pause and serious squirming]

Brennan: As a member in AQAP he had a role in inciting a number of individuals. There were a number of occasions where individuals, including Awlaki, has been in touch with Nidal Hasan.

DiFi: Did Faisal Shahzad tell interrogators he was inspired by Awlaki.

Brennan: Yes

DiFI: Last October, was he involved [not sure she used that word, and she means October 2010] in the failed attempt to bring down cargo aircraft?

Brennan: Awlaki was involved in overseeing a number of attacks–there was a relationship there.

Now, it is rather telling that Brennan didn’t want to address Abdulmutallab; I think it possible that there are problems with Abdulmutallab’s confession, as I lay out here. That said, there is also NSA information (leaked by Pete Hoekstra and made fairly obvious by the Webster report) and, probably, information from people infiltrated into AQAP, meaning Brennan needed to protect sources and methods.

And the toner cartridge plot is pretty weak, too, as Jabir al-Fayfi reportedly testified that others from AQAP were really in charge of the operation.

But for DiFi to suggest that Awlaki could be killed because of his role in the Nidal Hasan attack is outright irresponsible. After all, FBI read the correspondence between Hasan and Awlaki in real time. And yet having read it all — and having read whatever else email Awlaki received between June 2009 and December 24, 2009 when the US first tried to kill Awlaki — they still didn’t consider Awlaki to be operational (though one office following him believed he aspired to be).

As of January 7 and June 16, 2009, the FBI knew Anwar al-Aulaqi was an anti-American, radical Islamic cleric and the subject of a Tier <redacted> FBI counterterrorism investigation. San Diego believed [<redacted> that Aulaqi was [developing ambitions beyond radicalization] <redacted>. WFO viewed him at that time as merely inspirational. The FBI’s full understanding of Aulaqi’s operational ambitions developed only after the attempted bombing of Northwest Airlines Flight 253 on Christmas Day 2009.

Indeed, William Webster spent years trying to figure out whether FBI should have known Hasan was planning an attack from the emails, which is a much closer call. But even after reading everything that might have transpired between the two, no one believes that Awlaki had anything more than an inspirational role.

And yet one of the only four people outside the Administration who has attested to the legality of the strike on Awlaki thinks this should be part of the case to justify a due process free execution.

It got worse from there. She went on to insist that [rough transcript] ” Awlaki was not, by far, an American citizen of whom America would be proud.”

But like writing a bunch of First Amendment protected hateful propaganda, being “an American of whom America would not be proud” is not reason to be executed.

Dianne Feinstein, however, thinks it is.

 

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.

23 replies
  1. Phil Perspective says:

    It got worse from there. She went on to insist that [rough transcript] ” Awlaki was not, by far, an American citizen of whom America would be proud.”

    As I said on Twitter, it’s too bad someone didn’t ask DiFi if the same applied to Dan White. That would probably have pissed her off more than the Code Pink women did.

  2. joanneleon says:

    Dude, are you going to piss off or vote against a high-level official whom you now know has the power of the drone? What if he decides that you are “an American of whom America would not be proud”?

  3. scribe says:

    And she’s also one of the leaders in the charge to take American citizens’ guns away.

    What a peach of a gal.

  4. emptywheel says:

    @Phil Perspective: Missed that. I would have retweeted the hell out of it.

    Of course, I was in Twitter jail at the time (which is why I have notes of this exchange), so I guess it’s a tradeoff.

  5. GKJames says:

    Her vacuousness is staggering. Brennan must still be laughing his ass off at the senatorial buffoonery on display before him. Californians, on the other hand. . .

    Notice, by the way, that even Brennan limits Awlaki’s role to “overseeing” (whatever THAT means), and to having a “relationship there.” This would’ve been the perfect occasion for Brennan to state unequivocally on what facts Awlaki was executed. And Wyden could’ve followed up with, “Fine, what about the kid?”

    Ultimately, the most discouraging part of the charade is the glaring lack of curiosity on the part of Congress. Agree or disagree with the Administration’s policies, but — in your separation of powers role — at least compel it to state some facts, or ask pointed questions designed to elicit answers rather than oatmeal. On torture, for example, don’t give him the chance to do the I’m-not-a-lawyer schtick. Ask him something like: If our methods are lawful, and if — as the government has insisted for years — they prevent attacks, isn’t it the height of irresponsibility to stop using them when there are ongoing “imminent threats of violent attacks on the United State” that need preventing?

  6. JTMinIA says:

    Your perception of time (and, therefore, things like cause and effect) are both too linear and too unidirectional, ew.

    Because al-Awlaki became operational at some point (which may be in the future on an alternative time-line in which we didn’t kill him), he has been an immanent threat since the moment his dad’s sperm made happy-time with his mom’s egg. Keeping this in mind, you need to go back over his interactions with Hasan with a post-White-Paper (cf. post-911) perspective.

  7. Hugh says:

    Brennan lies and temporizes. Congress dithers. This is the same old same old. Feinstein is a toxic egomaniacal fossil. So are most Senators, but she is even more so, a caricature of a caricature if you will.

    We have one class of criminals holding hearings in order to vet a different class of criminal. Can any of us be surprised at the result of such a corrupt process?

  8. Snoopdido says:

    In the New York Times (http://www.nytimes.com/2013/02/08/us/politics/senate-panel-will-question-brennan-on-targeted-killings.html?hp), Diane Feinstein in all her glory:

    “But she defended the agency’s record on the strikes, saying the number of civilians killed each year has been “in the single digits.” A reporter pointed out that she has accused the agency of lying for years about its interrogation program and asked how she could have such confidence in its claims on casualties in the drone program. “I am confident of those figures until I am not confident of them,” she said.”

  9. ess emm says:

    Also DiFi wanted to give Brennan credit for the FBI’s arrest of about 100 individuals within US borders, as if that excuses the fact that just one high-value target was captured (rather than killed) overseas during Brennan’s time in the O Administration.

    Rockafeller was a joke as well.

  10. jo6pac says:

    Sorry nothing will change with these people in charge and he gets his office in cia and the next day if not later the same day does drones goes down to the little people because they might be enemies of Amerika, I wonder can some start a pool on when this starts on the mother land. I mean just for fun;)

  11. pcall says:

    Feinstein’s performance was positively cringe worthy. My skin crawled when she got that excited, gleam in her eye as she went through her questions. What a vicious woman.

  12. Peterr says:

    The three strongest words of this post come near the end: Due Process Free.

    Lord North and King George III would be proud.

  13. justbetty says:

    DiFi’s comments about “terrorists being inspired” made me wonder if she thinks the Pope is an appropriate target for inspiring people to attack abortion doctors and clinics. How sickening that whole charade was.

  14. joanneleon says:

    This is one of three major things from that hearing that caused me to lose sleep last night. The other two were the single-digit civilian kills and the refusal to state that waterboarding is torture.

  15. P J Evans says:

    @seedeevee:
    I wish someone would hand her a copy of the rules covering flag-handling, with the section on proper disposal highlighted. She doesn’t seem to understand that flag-burning is legal.

    (I want to see a public flag-burning where everyone is holding protest signs at attention and silently while it’s burned.)

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