Article II or AUMF? “A High Level Official” (AKA John Brennan) Says CIA Can Murder You

I’m not sure whether Michael Isikoff decided to stamp his version of the white paper all over with “NBC News” to make sure we all knew who was the go-to for sanctioned leaks, or whether Dianne Feinstein and the Administration asked him to do so to make it all but unreadable.

But I’m grateful that Jason Leopold has now liberated another copy that he has made available in readable form. Because now that I can read it, it becomes even more clear why Ron Wyden has persistent questions about whether the Administration killed Anwar al-Awlaki based on authorities granted under the the 2001 Authorization to Use Military Force or Article II.

Contrary to what I said in this post, the memo is actually very nearly balanced, never ultimately committing to whether it relies on AUMF or Article II. In fact, the white paper often employs a dual structure, invoking both the AUMF and self-defense in the same sentence or successive ones. At times, that dual structure is sound. At other times — as with its invocation of Hamdi — it uses the dual structure to rhetorically adopt a precedent for Article II authority that has only been granted under the AUMF.

The most troubling incidence of that comes in one of the white paper’s most extensive sections, analyzing whether 18 USC 1119’s prohibition on murdering Americans overseas includes a public authority exception for those acting in an official capacity. While bmaz promises to refute the argument they do make, for the military it does seem to make sense. A soldier at war can kill someone without being subject to murder charges, right? But applying such a public authority exception to the CIA — which is prohibited from breaking US law under the National Security Act — effectively asserts that if the President authorizes the CIA to murder Americans, based solely on his Article II authority, it can murder Americans.

This dual structure, then, seems to serve more to allow rhetorical argumentative moves that would be astonishing if made to apply to the CIA alone than to authorize DOD to kill Anwar al-Awlaki.

I noted in that post that the white paper actually lists the President’s “constitutional responsibility to protect the country” before it does “Congress’s authorization of the use of all necessary and appropriate military force against this enemy” in paragraph 2. Indeed, just two sentences later, it asserts:

Targeting a member of an enemy force who poses an imminent threat of violent attack to the United States is not unlawful. It is a lawful act of national self defense.

Pure self defense arises from Article II, not the AUMF, which isn’t mentioned again until paragraph 4, when it describes the potential target in both Article II terms — “a terrorist organization engaged in constant plotting against the United States” — and AUMF terms — “as well as an enemy force with which the United States is in a congressionally authorized armed conflict.”

The pattern of invoking both continues. Paragraph 5 (the first in Section I) reads,

In addition to the authority arising from the AUMF, the President’s use of force against al-Qa’ida and associated forces is lawful under other principles of U.S. and international law, including the President’s constitutional responsibility to protect the nation …

Paragraph 6 (the second in Section I) reads,

A use of force under such circumstances would be justified as an act of national self-defense. In addition, such a person would be within the core of individuals against whom Congress has authorized the use of necessary and appropriate force.

Paragraph 7 (the third in Section I) applies Hamdan to both “enemy forces who [are] actively engaged in planning operations to kill Americans” and those “in a non-international armed conflict with al-Qa’ida and its associated forces.” Though the end of that paragraph claims “none of the three branches of the U.S. Government has identified a strict geographical limit” to the AUMF, citing a 2010 letter to Nancy Pelosi as Speaker and Daniel Inouye as President Pro Tempore and two DC Circuit decisions. Not only does it not cite any endorsement from Congress of this principle, but it fails to mention that Tom Daschle refused to extend the AUMF to apply to the US when it was originally passed (I guess that’s why Wyden keeps asking if this authority to murder Americans would extend to the US). But it does turn solely to the AUMF for limits on these authorities.

Paragraph 10 — the last in section I — again invokes both.

In such circumstances, targeting a U.S. citizen of the kind described in this paper would be authorized under the AUMF and the inherent right to national self-defense.

Section II A doesn’t maintain this strict dualism. Paragraph 12 (the first in Section IIA) applies Hamdi’s law-of-war detention to those described as something between enemies under AUMF (which is all Hamdi should apply to) and those who, by virtue of constant attacks, are legitimate self-defense targets under Article II.

The due process balancing analysis applied to determine the Fifth Amendment rights of a U.S. citizen with respect to law-of-war detention supplies the framework for assessing the process due a U.S. citizen who is a senior operational leader of an enemy force planning violent attacks against Americans before he is subjected to lethal targeting.

And as I noted here, the imminent threat paragraph is applied to AUMF targets and members — not operational leaders — of a group that pose an imminent threat to the US.

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 member is an imminent threat.

And then, perhaps unsurprisingly, the Fourth Amendment discussion in paragraph 21 (the first in section IIB) only applies to those targeting the US, not members of an AUMF enemy per se.

Similarly, assuming that a lethal operation targeting a U.S. citizen abroad who is planning attacks against the United States would result in a “seizure” under the Fourth Amendment, such an operation would not violate that Amendment in the circumstances posited here.

But wait! The passage goes on to cite two domestic law enforcement cases, Tennessee v. Garner and Scott v. Harris. That’s a problem, because Article II authorities are going to be a covert operation, and therefore the CIA, which is prohibited from serving as a law enforcement agency. Maybe that’s why this passage appears in paragraph 22 (the second in IIB):

What would constitute a reasonable use of lethal force for purposes of domestic law enforcement operations differs substantially from what would be reasonable in the situation and circumstances described in this white paper. But at least in circumstances where the targeted person is an operational leader of an enemy force and an informed, high-level government official has determined that he poses an imminent threat of violent attack against the United States, and those conducting the operation would carry out of the operation only if capture were unfeasible, the use of lethal force would not violate the Fourth Amendment.

Here the dualism collapses, not distinguishing an enemy from one posing an imminent threat.

Hmm. A law enforcement precedent applied to an Agency prohibited from acting as a law enforcement agency yoked back onto AUMF? Ah well, the Fourth Amendment has been all but gutted anyway …

Similarly, paragraph 23 (section IIC) refuses any review from Article III courts by invoking military (AUMF) operations to apply to some very spooky language.

Were a court to intervene here, it might be required  inappropriately to issue an ex ante command to the President and officials responsible for operations with respect to their specific tactical judgement to mount a potential lethal operation against a senior operational leader of al Qa’ida or its associated forces. And judicial enforcement of such orders would require the Court to supervice inherently predictive judgments by the President and his national security advisors as to when and how to use force against a member of an enemy force against which Congress has authorized the use of force.

I get that Courts shouldn’t be making battlefield decisions. But in spite of the fact this passage invokes the AUMF twice, the invocation of “officials responsible for operations” falls far short of limiting the assertions to just the military.

In other words, it’s another instance where the white paper asserts a claim that is uncontroversial for the military to apply to the CIA as well.

Section III — which is the most extensive applying to just one question — repeats precisely the same problem with the Fourth Amendment analysis. Though III A and B just lay out the principle that, in the same way that public officials who might execute a criminal or go to war wouldn’t be liable for murder charges, they also wouldn’t be liable for murder overseas. As I said, bmaz will assess the validity of that claim.

Those sections don’t really distinguish between AUMF and Article II authority, but this passage in paragraph 28 is worth noting for its use of “otherwise lawful” language.

But the generally recognized public authority justification reflects that it would not make sense to attribute to Congress the intent to criminalize all covered activities undertaken by public officials in the legitimate exercise of their otherwise lawful authorities, even if Congress clearly intends to make those same actions a crime when committed by persons not acting pursuant to public authority.

If public officials are legitimately exercising otherwise lawful authorities, then it should be assumed Congress didn’t mean to make laws apply to their so-called duties. But according to the National Security Act, the CIA engaging in covert operations may not break US law.

A finding may not authorize any action that would violate the Constitution or any statute of the United States.

Perhaps that’s why when section IIIC starts (in paragraph 31) to apply this question, it reverts to the strict dual structure found earlier in the white paper.

A lethal operation against an enemy leader undertaken in national self-defense or during an armed conflict that is authorized by an informed, high-level official and carried out in a manner that accords with applicable law of war principles would fall within a well established variant of the public authority justification and therefore would not be murder.

Because it invites the citation of the seemingly slam dunk case of a solider killing during war.

Perkins & Boyce, Criminal Law at 1093 (noting that a “typical instance [] in which even the extreme act of taking human life is done by public authority” involves “the killing of an enemy as an act of war and within the rules of war.”)

The example of killing an enemy in a formal war is cited twice more in a footnote.

This passage cites the dual structure again in paragraph 32 and then invokes Hamdi again for the principle that the “military may constitutionally use force against a U.S. citizen who is part of enemy forces in paragraph 33.

Then in that same paragraph — retaining this dual structure — the white paper effectively argues (though it doesn’t say so) that the President may, under Article II power alone, authorize the CIA to kill a U.S. citizen.

Similarly, under the Constitution and the inherent right to national self-defense recognized in international law, the President may authorize the use of force against a U.S. citizen who is a member [note, they’ve dropped the senior operational leader modifier here!] of al-Qa’ida or its associated forces who poses an imminent threat of violent attack against the United States.

And just to be sure, the following paragraph again adopts the dual structure, and ends by says killing an American under such circumstances isn’t assassination because the President authorized it.

Paragraph 35 (the second in section IV) uses the same dual structure to claim it would not be a War Crime to kill under these circumstances because,

Common Article 3 does not alter the fundamental law of war principle concerning a belligerent party’s right in an armed conflict to target individuals who are part of an enemy’s armed forces or eliminate a nation’s authority to take legitimate action in national self-defense.

The paragraph is particularly interesting for two reasons. First, it adopts Common Article 3 to get to the definition, used in the white paper’s argument on imminence, requiring a person to formally renounce belligerence — “mere suspension of combat is not insufficient” — before he counts as a non-combatant. I suspect we’re going to learn that the government had no evidence Anwar al-Awlaki had recently been operational when we killed him in 2011.

The paragraph is also interesting because it’s one the areas where the white paper deviates from the detail offered by Charlie Savage most significantly. Here’s what the June 2010 memo says on this point, according to Savage (I’ve included the 1119 language here as well).

federal statute that prohibits Americans from murdering other Americans abroad, the lawyers wrote, did not apply either, because it is not “murder” to kill a wartime enemy in compliance with the laws of war.

But that raised another pressing question: would it comply with the laws of war if the drone operator who fired the missile was a Central Intelligence Agency official, who, unlike a soldier, wore no uniform? The memorandum concluded that such a case would not be a war crime, although the operator might be in theoretical jeopardy of being prosecuted in a Yemeni court for violating Yemen’s domestic laws against murder, a highly unlikely possibility.

That is, this War Crimes analysis pertained specifically to the question of whether the CIA could kill Awlaki. But they again used the dual structure to make its application to the CIA less obviously controversial (it helps, of course, that the white paper doesn’t admit it’s really talking about the CIA when it invokes Article II).

It’s an elaborate rhetorical gambit, suggesting that DOD and CIA are like entities. As Colonel Morris Davis keeps insisting (to far too little notice) they’re not.

Heck, to be legal under the National Security Act, this white paper effectively argues that if the President orders the CIA to murder Americans, it doesn’t count as murder.

Ron Wyden as much as said that’s what the actual OLC memos say during John Brennan’s hearing the other day. Now that we can read the white paper clearly — and understand its rhetorical ploy — I can see why.

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.

31 replies
  1. Phil Perspective says:

    Heck, to be legal under the National Security Act, this white paper effectively argues that if the President orders the CIA to murder Americans, it doesn’t count as murder.

    So, if David or Charles goes on an overseas trip and the ghost of Paul Wellstone puts a Hellfire up their ass it would be peachy keen? Do I have that right?

  2. D Loveless says:

    I just keep thinking about Anwar al-Awlaki’s sixteen year old son. His son might have been a dumb-ass, but he was hardly a terrorist or an imminent threat to the United States.

  3. orionATL says:

    the more i read here, the more difficult i find it to discover any persistent, coherent thread of reasoning.

    of course there are explanations for that personal to me :),

    but i am fonder of the notion that this entire argument(s) is an exercise in deliberate, politically essential obfuscation, intended to leave readers, even those skilled in these branches of law, confused, frustrated, and ready to throw up their hands at the entire matter.

  4. ess emm says:

    Having a hard time seeing how any of this applies to Abdulrahman al-Awlaki.

    And this is scary: “But applying such a public authority exception to the CIA — which is prohibited from breaking US law under the National Security Act — effectively asserts that if the President authorizes the CIA to murder Americans, based solely on his Article II authority, it can murder Americans.”

  5. beowulf says:

    Great analysis. The whole privileged combatant issue (Air Force pilots have legal immunity under the Rules of Land Warfare for killing the enemy that CIA pilots do not) is so easily avoidable that it deserves explanation why the CIA got the assignment instead of the USAF.

    The only reason that I can imagine is Air Force brass signaling the WH that (and this just my speculation) their JAG lawyers thought it was an illegal order.

  6. Jeffrey Kaye says:

    They won’t release these memos publicly, as I’ve noted before, but no one seems to agree or care, because they will reference earlier findings and memoranda, such as Bush’s September 17, 2001 still classified finding that gave the CIA carte blanche to assassinate and torture.

    I think it’s worth revisiting Jeremy Scahill’s July 2009 article on US assassination policy pre-9/11:

    Members of Congress have expressed outrage over the “secret” CIA assassination program that former vice president Dick Cheney allegedly ordered concealed from Congress. But this program — and the media descriptions of it — sounds a lot like the assassination policy implemented by President Bill Clinton, particularly during his second term in office….

    Throughout the 1990s, the question of covert assassinations was a source of major discussion within the Clinton White House and it is clear assassinations were attempted with presidential approval. Newsweek magazine reported on how, in 1995, U.S. Special Forces facilitated the assassination of a Libyan “terrorist” in Bosnia, saying, “American authorities justified the assassination under a little-known 1993 ‘lethal finding’ signed by President Bill Clinton that gave permission to target terrorists”….

    The Clinton White House worked for years with the CIA to craft an assassination policy — specifically relating to “al Qaeda” in general and Osama bin-Laden and his top deputies specifically…. Eventually, however, Clinton did authorize what amounted to assassination squads to hunt down and kill bin Laden and other “al Qaeda leaders.” That happened officially in 1998 with Clinton’s signing of a Memorandum of Notification authorizing the CIA to carry out covert assassinations. George W Bush was not the president and Dick Cheney was not the vice president. Of course, current CIA Director Leon Panetta was Clinton’s chief of staff from 1994 to 1997 and would have been party to years worth of discussion on this issue when Clinton was president.

    Under Clinton, the Justice Department’s Office of Legal Counsel issued secret rulings stating that the Ford/Reagan ban on assassinations did not apply to “military targets or “to attacks carried out in preemptive self-defense,” according to Steve Coll, Pulitzer-Prize winning author of Ghost Wars.

    More Coll, from WashPost, link above:

    The ban on assassinations — contained in a 1981 executive order by President Ronald Reagan — did not apply to military targets, the Justice Department’s Office of Legal Counsel had previously ruled in classified opinions. Bin Laden’s Tarnak Farm and other terrorist camps in Afghanistan were legitimate military targets under this definition, White House lawyers agreed.

    Also, the assassination ban did not apply to attacks carried out in preemptive self-defense — when it seemed likely that the target was planning to strike the United States. White House and Justice Department lawyers debated whether bin Laden qualified under this standard as well, and most of the time agreed that he did….

    In fashioning this sensitive policy in the midst of an impeachment crisis that lasted into early 1999, Clinton’s national security adviser, Samuel R. “Sandy” Berger, struggled to forge a consensus within the White House national security team. Among other things, he had to keep on board a skeptical Attorney General Janet Reno and her Justice Department colleagues, who were deeply invested in law enforcement approaches to terrorism, according to senior officials involved.

    As the months passed, Clinton signed new memos in which the language, while still ambiguous, made the use of lethal force by the CIA’s Afghan agents more likely, according to officials involved. At first the CIA was permitted to use lethal force only in the course of a legitimate attempt to make an arrest. Later the memos allowed for a pure lethal attack if an arrest was not possible.

    It was not my finding or my story that I’m pushing here, but Coll’s and Scahill’s. I’d appreciate if you’d include their investigations in your narrative, so Americans really know what’s going on here (as best we can).

    The failure to turn over or release these docs, or fear they would come out, or for a muddied-water “White Paper” is to keep the real truth from emerging, viz. assassination has been US policy for years, even under Clinton-Gore.

    Note role of Panetta in all this.

  7. beowulf says:

    When was the earliest targeted drone strike against Aulagi? Or more importantly, when he was he first put on the kill list? That alone would be a violation of 18 USC 1117 Conspiracy to murder.

    Any OLC memos written after that date are worthless since any conclusion other than “nothing to see here, move along” would be tantamount to concluding that Administration officials had already broken the law by conspiring to murder a US National.

  8. TarheelDem says:

    We’ve seen before this use of a dual argument to create enough ambiguity to permit any action. Is Guantanamo domestic jurisdiction or international jurisdiction? Does US law exclusively apply or does international law apply? Same for the concept of “enemy combatant” that permits dodging both the Geneva Convention and the US Bill of Rights.

    (And Israel plays the same dual argument game with the status of Palestine.)

    Exactly which Bush era folks at DOJ are still burrowed in?

  9. emptywheel says:

    @beowulf: There are several possible reasons. First, bc JSOC fucked up the first time when they aimed for Awlaki w/o legal cover. Bc, the US (may have) agreed to tell Saleh everything DOD was doing, and he kept tipping Awlaki off. Bc the Saudis found Awlaki and used that as leverage to get access to drones that they wanted, but demanded it be CIA.

  10. Jeffrey Kaye says:

    9/11 Commission Report:

    The [Clinton] Administration’s position was that under the law of armed conflict, killing a person who posed an imminent threat to the United States would be an act of self-defense, not an assasination. On Christmas Eve 1998, Berger sent a final draft to President Clinton, with an explanatory memo. The President approved the document.

    Because the White House considered this operation highly sensitive, only a tiny number of people knew about this Memorandum of Notification. Berger arranged for the NSC’s legal advser to inform Albright, Cohen, Shelton, and Reno. None was allowed to keep a copy. Congressional leaders were briefed, as required by law. Attorney General Reno had sent a letter to the President expressing her concern: she warned of possible retaliation, including the targeting of U.S. officials. She did not pose any legal objection.

    Lots to chew on here. I’d say let’s see ALL the OLC memos on assassination, going back at least to 1998. Did Dawn Johnsen have any input into the 1998 Xmas Eve memo approving assassination, or did she leave OLC for reasons related to this issue? What was the roll of Randolph Moss, Johnsen’s successor at OLC?

  11. Jeffrey Kaye says:

    @Phil Perspective: I do think the main difference here is the fact the killing concerns a U.S. citizen, and that is an important distinction, at least legally and historically. Morally, not at all. My point is that this all flows from earlier decisions. Though, it’s possible that this earlier decision somehow already included ability to kill a US citizen, or could be read that way. Maybe that’s the kind of thing that’s already in the Obama-era OLC memos withheld, among other things.

    My comments do respectfully challenge statements like this from @TarheelDem: “Exactly which Bush era folks at DOJ are still burrowed in?”

    Point is, it may not be “Bush era folks” or exclusively them. In fact, I’m sure it’s not.

  12. Hugh says:

    There is no Article II power which says the Executive can violate the Constitution. Indeed the Presidential oath is quite specific that the President’s primary duty is to preserve, protect, and defend the Constitution:

    “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

    The truth is though that national security was the wedge and the War on Terror the hammer to do away with large parts of the Constitution, including the Bill of Rights, the 14th Amendment, habeas corpus, and the Congressional power to declare war.

    Quite simply, we live in a Presidential dictatorship. The Nixon doctrine that “if the President does it, that means it can’t be illegal” has prevailed. That is why Article II power is being cited. The AUMF is just window dressing, a figleaf, an imprimatur. It is one of a long line of Congressional surrenders and sellouts which has led from its unequivocal Article I, Section 8 power to declare war to the War Powers Act to the AUMF to Obama waging war, as in Libya or any of a host of other countries on nothing more than his own Article II say so.

    War, national security, terrorism, ordinary criminality, political disagreement, international, domestic, all the lines have been blurred, erased deliberately, so that there are no Constitutional or legal restraints on Presidential action, only PR ones.

    What we need to understand is that Brennan just like his boss Obama is a shining example of this new order where if the President does it, it is the law and Constitutional in and of itself.

  13. emptywheel says:

    @Jeffrey Kaye: I’ve said before. I wonder whether there’s a memo to cover Fred Hampton. His situation (militant group during time of war that is not the primary enemy) is not all that different from Awlaki.

    Though back then, pre-Church, they didn’t much care about memos, I guess.

  14. What Constitution? says:

    @Hugh: While I pretty much agree with you, we do need to correct that typo right away, before it is turned into a State Definition. I’m referring to your characterization of how the War on Terra has been used to “due away with large parts of the Constitution”. I really hope you meant to say “do away”, although with all the focus on unilateral presidential assassinations we have in fact been watching as they try to “do away” with “due process”. Let’s not encourage them to start referring to this problem as an Executive power needed to “due away with al Qaida.” OK? But a great, great gaffe. Unless you’re a neocon, in which case it’s something more Freudian, I’m sure.

  15. orionATL says:

    tarheeldem and kaye have brought history into play.

    i have been thinking throughout this imbrolio about the german-americans imprisoned in wwi and wwii:

    and about the internme t of japaese-americans in wwii:

    this does not invole xecution by presidential authority,

    but it does involve the next step down in the power of the state – non-judicial deprivation of liberty grounded in a “national security” argument.

    “enemy combatant” jose padilla received this treatment in a far worse – torturous, actually – from from the bush gang.

    the federal courts have courageously avoided challenging the presidency.

    president jimmy carter, a politician with a strong ethical sense, order a review of the japanese internment in the late ’70’s. the result was apology from our government and reparations.

    the point this history makes is that deprivation of liberty or life by the american gov’t in war is long-established conduct.

    i just don’t see how we can be declared by executive fiat ourselves “at war” when the “combatants” are members of disparate armed gangs who merely use the same name for identity and recruitment purposes.

    we were at war with afghanistan and iraq. that’s it.

  16. Jeffrey Kaye says:

    @emptywheel: And how many assassination attempts does Michael Ratner document the US government ran against Castro?

    By the way, another Clinton-era connection there, b/c Clinton’s HEW secretary, Califano, was heavily involved in the anti-Castro covert ops back in the early-mid 1960s.

    The whole damn government is drenched in assassination and the leadership is all culpable, for cover-up if nothing else.

  17. orionATL says:


    “… There is no Article II power which says the Executive can violate the Constitution. Indeed the Presidential oath is quite specific that the President’s primary duty is to preserve, protect, and defend the Constitution:

    “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”…”

    i like this argument and have been thinking along the same lines recently.

    the president’s oath is to uphold the constitution.

    this business of “provide for national secutity” is a political mandate, not a constitutional one. the constitution makes provisions for civilian (presidential) authority over the military.

    the constitution NEVER places “provide for national security” as the consideration that trumps are other constitutional considerations – that has been the work of politician-presidents ratified by a compliant federal judiciary.

  18. PeasantParty says:

    Now I understand more why Cheney made sure his air-space above his little Conn. home is an official NO-Fly Zone!

    If the President says to do it, it is not murder.

  19. Stu Wilde says:

    @D Loveless: I really don’t understand your insulting “dumb-ass” comment, at the most he was unlucky to have the father he did, but the important aspect of the son’s killing is that no one could ever make the argument that he was a senior operational leader of al-qaeda or an associated force. The White Paper is built on a house of cards, a tenuous strung-together conglomeration of theories, but it only purports to provide justification for killing high-level targets.

  20. rsmatesic says:

    Reading though these comments, something just occurred to me: isn’t it the case that CIA has been whacking people around the world for decades, through independent contractors or off-the-book “assets”? So what’s changed? Why is it that the Executive branch now finds itself bringing the practice (only slightly) above ground, in the form of these acknowledged but otherwise classified legal memoranda?

    After dispensing with any notion that this administration is more moral or honest than its predecessors, or feels a greater urge to transparency, or has calculated that its political fortunes turn on accommodating those clamoring for information or justice, or is simply reacting to the relevant litigation (CCR, ACLU, etc.), I was left with this: drones.

    Unlike the covert killing and terrorizing of the past, drone attacks are overt. There is no plausible deniability. There is no way to dissociate their use from the government that launched them. Open assassination, in other words, requires at least a fig leaf of legality.

    No epitaph for the due process clause and Fourth Amendment would be complete without noting that, despite the fall of the Soviet Union, we never gave up the arms race. Of all the choices we could have made, we chose paranoia and profit seeking, only to realize too late that we’d have to break the constitution to accommodate both. And we’re doing that now because of the new toy in our arsenal. And it seems we will continue doing so, as needed, for every new toy that comes along.

    Either we drastically cut the appropriations for DOD, intelligence, and our militarized local police departments, for good, or we’re toast.

  21. Frank33 says:

    John Brennan or someone at the CIA murdered the career of Petraeus. It was a “palace coup” by CIA insiders who revealed P4’s broad, Paula. Or was it Jill? Will we ever know now that Spyfall is in total information lockdown.

    Brennan’s shenanigans may have been responsible for the death of Ambassador Stevens. The spymasters are using a nontraditional command structure. That is so shocking.

    With JSOC (Joint Special Operations Command), Brennan waged his own unilateral operations in North Africa outside of the traditional command structure. These Direct Action (DA) operations, unlike the traditional ISR missions mentioned above, were ‘off the books’ in the sense that they were not coordinated through the Pentagon or other governmental agencies, including the CIA. With Obama more than likely providing a rubber stamp, the chain of command went from Brennan to McRaven, who would then mobilize the men of ISA (Intelligence Support Activity), SEAL Team Six, or Delta Force to conduct these missions.

    And similar to Ollie North, Brennan has his own mercenary armies and off the shelf entities for gun running. More guns for more wars.

    John Brennan also ran a highly compartmentalized program out of the White House in regard to weapons transfers, and Stevens would not have been trusted with that type of information. Stevens likely helped consolidate as many weapons as possible after the war to safeguard them, at which point Brennan exported them overseas to start another conflict.

  22. GKJames says:

    This analysis highlights the ex-post-facto cobbling together of rationales for assassinating Awlaki. (Brings to mind the “hackin’ and hewin’” bit for those old enough to recall Beyond the Fringe….) In Awlaki, the US was faced with an articulate, persuasive advocate, not least because—disconcertingly to American officialdom—he spoke accent-free English. What made Awlaki persuasive was his turning the rhetorical tables: if you (the US) deem it legitimate to kill Muslims (combatants and civilians alike) anywhere anytime, if you insist on “this is war,” and if you believe this “war” to be global,” your own people and interests are perforce legitimate targets anywhere, any time.

    It’s not hard to imagine how the conversation in Washington went from there. “What do we need to do to shut this guy up? Can we take him out?” Quick interagency agreement; instructions to DOJ: paper it up. Uh oh—due process. Whaddya mean?!?! “He’s no longer an American!” “He’s a member of enemy forces!” “Connect him to somebody DOING something!” “Abdulmutallab confirmed (after just three “pours”!) that Awlaki was in on it; he’s operational!” “What does that mean?” “He said, ‘Right on, al-Quaeda!’ and ‘Underwear — great idea!'” “But that was months ago!” “Easy: take “imminent,” hold it at both ends and twist until it fits.” The rest of the story is the ear-splitting noise of DOJ hacks — convinced, rightly, that they’ll never have their work subjected to legitimate legal scrutiny, let alone cross-examination — hammering that square peg into the round hole.

  23. joanneleon says:

    I feel thoroughly baffled about the laws and precedents on assassination and war. I know I need to dedicate the time to find all the relevant things to read and study it, but I don’t know where to start. I know bits and pieces of this and that and have been reading on the topic for years, but I need more than that. And why, if I have been reading on it for years in various news articles and blog posts, do I still feel so incompetent on the subject? Maybe it’s just information overload today, I don’t know.

  24. klynn says:

    How much of this language/policy and process has (or could) be use in “the war on drugs” or organized crime/trafficking?

    How about protestors,peace activists or Mennonites?

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