They Knew the Evidence against Anwar al-Awlaki Was Weak When They Killed Him

In case you don’t want to read these two long posts, I want to point to two passages from the white paper that show, on two key points, the government wasn’t even claiming Anwar al-Awlaki was the “senior operational leader of Al Qaeda or associated forces” they keep saying he was when they killed him.

First, on the issue of whether someone is an imminent threat or not, the white paper says a person is an imminent threat if he has “recently been involved in activities posing an imminent threat against the US” and has not renounced those activities.

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 this part of the definition requires only that the target be an al Qaeda member, not a “senior operational leader.”

And then, when examining whether killing an American overseas counts as murder, the white paper says the President can order the murder of an al Qaeda member who poses an imminent threat to the US.

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 of al-Qa’ida or its associated forces who poses an imminent threat of violent attack against the United States.

Again, the American need only be a member, not a senior operational leader.

These are, to be sure, two short passages in a much longer memo. But consider how they work with the 3-part criteria laid out in the memo, which requires only that 1) John Brennan determines that someone is an imminent threat,  2) John Brennan determines that capture is not feasible, and 3) that the killing be consistent with applicable law of war principles.

Once you get to that “imminence” designation, you can kill the American, based on John Brennan’s say so. And “imminence,” for these purposes, can be as weak as past involvement (not leadership — and remember they once said that actions that lead to actions that pose a threat can get you killed, too) in activities that pose an imminent threat of violent attack on the US, so long as you haven’t formally renounced those activities.

This, I strongly suspect, is why Ron Wyden keeps asking “Does the President have to provide individual Americans with an opportunity to surrender before using lethal force against them?” Because as the white paper stands, being uninvolved with any attack for at least a year and perhaps as long as 20 months — which may well be the case with Awlaki — doesn’t count as renunciation.

I have suggested this language may have gotten introduced in a second memo, not long before they killed Awlaki in September 2011, at a point when all the evidence against him was very stale and had gotten weaker over time (the government moved to protect something under CIPA in the UndieBomber case just a week before Awlaki was killed, though that could have been the first memo).

Whether that’s what happened, though, it seems highly unlikely the language would be in the white paper if it weren’t in some document somewhere authorizing Awlaki’s killing.

Which seems to suggest they couldn’t prove — even if they once had been able to — that Awlaki was the senior operational leader they have insisted him to be. And so they wrote the memo to authorize the killing anyway.

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.

17 replies
  1. orionATL says:

    what probably needs to be factored in as the real reason al-awlaki was executed is, if i recall correctly being reported here, he was some sort of double- or triple(?)- agent.

    in other words, this was our mafiaesque cia doing a venegence killing because an operator stepped out of line.

    this, and the fact that he was an articulate, charasmatic, english-speaking preacher – the same j. edgar hoover would have done to m.l. king if hoover had thought he could get away with it.

  2. StephenKMackSD says:

    It was more than interesting to watch Sen. Feinstein, near the end of the public Senate conformation hearing for Mr. Brennan, comment publicly on Mr.Awlaki. Now, the infighting between Feinstein and the Wyden/Udall faction is quite obvious, so Sen. Feinstein’s bit of politicking on behalf of the ‘Awlaki was a bad man’, as opposed to the practice of due process, could not have been more evident. Sen. Feinstein’s casual comments, and her rather lame attempts to coach Mr. Brennan into further elaboration, as if Mr. Brennan would comment before a Senate committee on his own culpability: if only tangentially, in the commission of a possible crime, or even the possibility of foreknowledge of such a crime, even though he and Obama colluded on the murder of Mr. Awlaki, seems redolent with a cultivated and self-serving political naivete. The cameras were rolling and she took full advantage of that fact.She and President Obama are co-guardians of the myth of American Exceptionalism.

  3. PeasantParty says:

    Thank you for all the in-depth, hard work to bring us this.

    I am still slow to understanding how any of these secret or not so secret laws are Constitutional. I still don’t understand how after the fact/killing memos make these actions comply with the International Laws of War. If these actions are in fact compliant with International Laws of War does it mean other countries can do the same to us?

    Oh heck! I still have problems with Gitmo and doing away with Prisoner of War status. Oh, and don’t try to explain a war against an emotional response, “terror”. How can any of these things be legal if war is not declared by Congress against an actual entity?

    Is everything justified by the use of the word “terror”? AQAP or where they may be has to be more specific.

  4. orionATL says:

    this site writes about our covert system of “justice” for american muslims.

    al-awlaki was one such case of many.

    glenn greenwald writes of another:

    the primary agencies perpetrating these injustices are the fbi, the tsa, the cia, and ice – the very ones allowed by national security “needs” to operate in secret with no effective congressional OR presidential oversight

  5. TarheelDem says:

    @PeasantParty: Constitutionality is what the Supreme Court and the courts say it is. Over 200 years, the accumulation of precedents has turned some elements of the Constitution on its head. For the past 66 years, the idea of imminent threat and appealing to Pearl Harbor has been used to give the executive branch more “latitude” in making decisions and protecting “state secrets” so as to dodge accountability from Congress and the people. The Watergate era and the Church Committee did not complete their jobs because of folks like Scoop Jackson and a bunch of military-base porkbarrel members of Congress.

  6. PeasantParty says:

    @TarheelDem:”The Watergate era and the Church Committee did not complete their jobs because of folks like Scoop Jackson and a bunch of military-base porkbarrel members of Congress”

    L. Graham is numero uno in my area.

    Isn’t it time this country, as the greatest in Democracy, progress themselves and revisit these issues? I would much more prefer to evolve into a better nation, than to revert to Barbaric tendacencies of the past.

    There is much to do and I am trying to figure out why all the major nations on this globe are being forced under austerity plans.

  7. PeasantParty says:

    The more I think about this, the more I feel that Brennan would not be nominated or approved if the REAL documents were released. I keep thinking of Lisa Monaco’s bargain to be placed before the documents are released. She is to step up into Brennan’s place and she also has to be part of the reasoning behind their assbackward, barbaric program to detain indefinitely and murder via drones, even on American soil.

    The OLC, DOJ, and DOD must be investigated. There is way too much pay to play going on here. There is too many secrets that cannot be overlooked even though the oversight committees choose to loose sight of their main objectives.

  8. PeasantParty says:

    I also think Cheney is afraid of something in those memos too. He is now out talking again. He states that Obama’s picks are “Substandard”.

    Immeninence no longer means that one is about to pull the trigger, push the button, or whatever. Cheney, really loved using that term while Bush liked being the Decider.

  9. greengiant says:

    @Dead Last: If bloggers, aka Awlaki, are terrorists, Dorner was beyond the rules for being drone fodder a few days ago, the first of many in the U.S.

  10. hcgorman says:

    Well I was looking for my avenue into this story and I guess a discussion of drones in california is going to be it…by the way if you have not read the manifesto from this former cop you should-it is long but it is an amazing look into racism in this here country and how it can affect an individual- but I digress-
    speaking of california good old judge Bybee had the opportunity to issue an opinion in the 9th circuit on torture- coincidentally the decision looks at what was known about torture in 2002-the same year he was busy writing torture memos- he held that the conduct the prisoner was subjected to (in jail) didn’t amount to torture and anyway way back in the day (2002) there were no federal decisions that would have put ANYONE on notice that conduct like “being chained at the ankles and the waist, shackled to a metal bed without a mattress, and forced to lie down and lap his meals from a bowl without using his hands in a cell that was kept hot, poorly ventilated and in constant bright light for well over a week…” was unconstitutional….here is his opinion-justifying for himself what he allowed–

  11. P J Evans says:

    That manifesto is the product of a broken mind. (People tend to overlook that the guy was fired five years ago for cause, and couldn’t get another law-enforcement job.)
    Note that I’m not saying that the LAPD is racism-free, but it’s a long way from what it was 20 years ago.

  12. SpanishInquisition says:

    @P J Evans: People are definitely not overlooking that Dorner was fired for crossing the thin blue line, which also cost him his Navy career.

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