Ron Wyden: Obama Killed Anwar al-Awlaki with Authority Granted to Him

As part of a letter asking the Administration to provide more details on its drone and/or targeting killing program, Senators Wyden, Udall, and Heinrich have judged the killing of Anwar al-Awlaki to be “a legitimate use of the authority granted the President.” (Adam Serwer first reported on this letter here). That judgement — as well as the Senators’ further comments on Awlaki — may provide further hints about the killing. Here’s the full paragraph:

Having carefully reviewed the matter, we believe that the decision to use lethal force against Anwar al-Aulaqi was a legitimate use of the authority granted to the President. As the President noted in his May 2013 speech at the National Defense University, Mr. al-Aulaqi clearly made a conscious decision to join an organized fighting force that was (and is) engaged in planning and carrying out attacks against the United States, including the 2009 Christmas Day bombing and the 2010 cargo plane plot. By taking on a leadership role in this organization, involving himself in ongoing operational planning against the United States, and demonstrating the capacity and intent to carry out these operations, he made himself a legitimate target for military action. Additionally, while the US government did not publicly acknowledge that it was attempting to kill Mr. al-Aulaqi, this fact was nonetheless widely reported in US and international media. This disclosure served as the equivalent of a wanted poster, and if Mr. al-Aulaqi had been a wrongly targeted innocent man he could have turned himself in and cleared his name. Additionally, alternative reasonable means to apprehend Mr. al-Aulaqi or otherwise deal with the threat that he posed do not appear to have been available. Finally, based on what we have been told, lethal force appears to have been used against Mr. al-Aulaqi in a manner consistent with applicable international law. [my emphasis]

Recall that for a full year, Ron Wyden kept asking whether, “the President’s authority to kill Americans [is] based on authorization from Congress or his own authority as Commander-in-Chief?” Once he saw the Awlaki memos in February, he stopped asking.

And while this paragraph doesn’t definitively answer that question, it does suggest an answer. This letter describes the President acting under authority “granted” to him, rather than inherent to the position. It describes Awlaki as having been the target of “military action.” And it concludes that, if everything they’ve been told is correct, the killing was “consistent with applicable international law.” All three of those details make it more likely the government operated under an AUMF justification than an Article II one. It also suggests that the military person pressed the actual button to kill Awlaki, given that there’s little way a CIA officer doing so would have been legal (and if that’s correct, then it means John Brennan has not made a single change to the drone program).

All that said, later in the letter, the Senators write,

We also believe the Executive Branch needs to clarify whether all lethal counterterrorism operations to date have been carried out pursuant to the 2001 Authorization to Use Military Force, or whether any have been based solely on the President’s own authorities.

So even while they suggest Awlaki’s killing was authorized under the AUMF, they still profess ignorance about whether all targeted killings have been. Also note they’re asking about “lethal counterterrorism operations,” not drone killing.

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

26 replies
  1. Saltinwound says:

    Is it not possible that the memo left both doors open, in terms of which authority was used, and Wyden is choosing to focus on one?

  2. emptywheel says:

    To answer both your questions, keep in mind that Wyden’s past attention to the Awlaki memos was always written alone (with the exception of the group letter calling for the release to SSCI). So it may be the views of this letter reflect more about what Udall and Heinrich believe.

  3. bmaz says:

    And what exactly was Mr. Awlaki supposed to “turn himself in” on? This has long been, and remains still, one of the most asinine positions by apologists for his killing. There were no criminal charges, and the only time they ever were apparently considered, they were ruled out. It is insulting to actual criminal procedure. No, Senators, it was NOT like a legitimate wanted poster for criminal charges, it was like a mob target knowing that the Mafia has placed a contract for his extrajudicial execution. Would the good Senators expect said mob target to go down and talk it out with Don Corleone?

    Secondly, the blithe assumption that Awlaki could not have been captured still seems weak. Especially if Yemen has the functioning and cooperative government that the US regularly claims it does. Either that is a fiction for convenience for other purposes, or it is true and mitigates against mandatory killing of Awlaki.

    Lastly, of course, there remains flimsy, at best, facts to support that Awlaki was indeed as “operational” as the good Senators claim.

  4. Saltinwound says:

    I may be off base, but in my work, there are many cases of “ambiguous sovereignty.” I’ll make a point to someone that he is doing something with my okay, even if that person does not bleieve he needs my permission.

  5. emptywheel says:

    @bmaz: I actually included a discussion of their formulation of the evidence against him in a draft of this post.

    Note they DON’T say he was involved in the UndieBomb and toner cartridge plots. They say AQAP was, and he joined and took a leadership role in AQAP. So it would be consistent with the notion that Morten Storm’s claims provided basis for his operational role. Except then you’ve got a major time problem, in that he was first targeted in 2009, before we knew him to be operational, and the memos were written at a time when the UndieBomb (plus the British Airways questions) would have to be the basis for it.

    I think it quite possible there’s intell (NSA intercepts that didn’t get acted on until after the fact?) supporting the case. Alternately, I think it’s possible the IC lied abt what the intelligence (and Abdulmutallab’s statements) actually said.

  6. bmaz says:

    @emptywheel: Oh, it is more than possible there actually is such evidence. My problem is that it is always rattled off (not by you) as a self evident fact, and it is not. In one short paragraph, you reeled off the three best pieces: Storm, UndieBomb and toner cartridges. All three of those have problems if you inspect them, and the government has gone to such ridiculous lengths to keep all bottled up that it makes one suspicious as to what strength there is there. Just sayin…..

  7. john francis lee says:

    ” Having carefully reviewed the matter, we believe that the decision to use lethal force against Anwar al-Aulaqi was a legitimate use of the authority granted to the President. ”

    A government of murderers and their apologists. We need to replace these 546 traitors with ordinary Americans, people of integrity.

  8. seedeevee says:

    “The letter states that while the U.S. government did not “publicly acknowledge” that it was targeting al-Awlaki, leaks to the media had “served as the modern equivalent of a wanted poster,”

    “leaks to the media” are the “modern equivalent of a wanted poster”. — Legal notifications are so “quaint” nowadays.

  9. C says:

    And what exactly was Mr. Awlaki supposed to “turn himself in” on? This has long been, and remains still, one of the most asinine positions by apologists for his killing. There were no criminal charges, and the only time they ever were apparently considered, they were ruled out. It is insulting to actual criminal procedure.

    I have to agree with @bmaz and for that matter @seedeevee on this one. The concept of “turning oneself in” assumes actual charges and a formal warrant from a court. Here the government was demanding that he cease doing things they won’t specify and claimed they had evidence that they won’t share of things that they won’t explain. That is not a formal legal proceedings nor is it a serious attempt at justice and the closest it gets to a “wanted poster” is one that a lynch mob would put out.

    More to the point underlying the logic of this letter is an acceptance of the idea that the government can have secret evidence and withhold it even from congress before issuing a kill order. They may be right that that is a sound reading of the AMUF, it is certainly what Obama and Cheney before him have been pushing for, although I doubt it. But it is fundamentally wrong under any coherent moral standard.

  10. This is a job for ECOMOG says:

    It’s clear that the USA is what the international community would call a transitional country, critically in need of intensive development assistance. Let’s get the pros in here to teach the natives civilized ways. Wyden’s a hopeless eunuch, but maybe some of the younger cohorts are educable. The security sector is running amok and there’s not much time to stop it without nukes.

  11. john francis lee says:

    A term from Paraguay for the senators … all those on the Intelligence Oversight Committee, for instance … who overlook, no! who oversee the totalitarian crimes of nsa/cia/doj … senarratas, or senate rats.

    “We are going to work at the grassroots level and go after the three branches of government; our agenda isn’t marked by anyone,” said Professor [Natalia Paola] Rodríguez, who is very active in #15Npy.

    Look to South America for demonstrations of democracy, to North America for totalitarianism.

  12. pdaly says:

    @Don Bacon: My thought, too–or that fellow senators are being squeezed to make Wyden parrot the line. Maybe Wyden really believes the evidence, but then I agree with bmaz–the evidence, if there is any, has problems with it that the government has gone to lengths to avoid disclosing.

    And what about the fact that AQ of the Arabian Peninsula did not even yet exist at the time the AUMF was passed by Congress? Has any court agreed that the AUMF applies to AQAP in Yemen–a “hot battleground” non-hot battleground country with which the USA is not at war?

  13. bloodypitchfork says:

    First off, the mere thought that Congress can write an “authorization” that allows the executive to create an ongoing kill list whereby he orders the execution of an American citizen by virtue of Eric Holders interpretation of the Constitutionally guaranteed “due process” whereby the target is judged guilty by the executive alone, nor are there any charges levied whereby the “target” can challenge in a court of law, redefines the word absurd.

    Furthermore, for Holder to claim the authority to redefine the meaning of the 5th Amendment by virtue of his position in the executive, defies everything the Constitution was created for in the first place, as it suspends the concept of “checks and balances”, as when challenged in a court of law by those who refute his interpretation are deemed without standing,(Mr. Awlaki’s father for one example) and one who does manage to gain standing is thwarted by the claim that National Security precludes any remedy by virtue that all evidence is “classified” and not subject to review by any court, reminds one precisely why inquisitions are repugnant to any human being who was born since the day the Magna Carta was signed into existence.

    Moreover, for these Congressman to claim that leaked information discussed in the public sphere amounts to a “wanted poster” whereby the “wanted party” must assume he is wanted for committing some unknown breach of some unknown law and therefor should submit himself to an unknown authority for adjudication should cause a cacophonous wave of raucous, gut splitting laughter from sea to shining sea, notwithstanding the creation of an insurrection of biblical proportions. After all, even King GeorgeIII issued General warrants and had “wanted” posters nailed to every tree within a hundred miles of every signatory of the Declaration of Independence. At least they “knew” they were officially wanted..for STATED offenses against the King. Although..I don’t think any of them surrendered to fight the charges.

    I don’t know about you, but it appears to me we are at free fall speed into the chasm of Totalitarianism on steroids.

    Dear Senator Church…I’m so sorry no one listened…least of all your future colleagues. Unfortunately, in this case, hindsight is useless..exactly like you predicted.

  14. bloodypitchfork says:

    @Betty:

    Thank you. I might not be very good at putting my thoughts in writing, but at least no one can accuse me of a being verbally conservative. :)

  15. what constitution? says:

    I’d rather have Wyden purport to characterize these killings as “authorized” by the AUMF and justified by his “understanding” of the facts within the context of his understanding of the authority temporarily conferred by the statutory AUMF than have Wyden be seen as concurring in a constitutional “executive Art. II implied authority” to do this sort of thing. Wyden could be, and certainly in my view is, factually wrong about the underpinnings/justifications invoked in these cases — but at least he can still reserve the option to deal with the larger issues by making sure to “dissolve” the AUMF and/or allow its “expiration” … without leaving an open-ended carte blanche or otherwise appearing to support plainly unconstitutional unilateral executive actions. In other words, this is hopefully just the “least bad” gloss to put on these pernicious executive acts, and allows for some hope that somewhere, some day our Congress will say so directly.

    I’m plenty disappointed in this, but I’d sure be more traumatized by having Wyden say anything remotely similar to “yeah, Obama has all the implied Art. II ‘rights’ that Bush/Cheney postulated, and then some, and I’m OK with that because that al-Awlaki guy was a bad dude.” Al-Awlaki is and will remain dead, the AUMF eventually should not be in existence, and when that happens we may get to insist upon a rational interpretation of the United States Constitution. I look forward to that day and I hope Wyden can be there for that.

  16. ess emm says:

    1. So why didnt Wyden write the al-Awlaki part of the letter in February? Or May? Nothing new has been disclosed since Obama’s NDU speech.

    2. Wyden makes little sense in any case, as he has all these questions about adequate limits, evidentiary requirements, rules and safeguards yet he is somehow able say they are all met with regards to assassinating al-Awlaki.

    3. Is Wyden so deluded that he thinks “The House and Senate Intelligence committees can provide oversight of secret operations”? Maybe if the torture report is released I might be convinced they can provide oversight.

    4. bmaz is absolutely right @4 above, especially his first paragraph.

    Last thought. Who does Udall think he is? John freaking Hancock?

  17. Jeff Kaye says:

    @emptywheel: Please don’t defend Wyden in this instance. Please. It’s beneath you. He and the other 2 senators capitulated even though they claim there is not enough assurance as to where the authority even came from.

    I think C put it well, building on @bmaz’s comment re the “wanted poster” argument (if such specious reasoning even deserves the appellation “argument”):

    The concept of “turning oneself in” assumes actual charges and a formal warrant from a court. Here the government was demanding that he cease doing things they won’t specify and claimed they had evidence that they won’t share of things that they won’t explain. That is not a formal legal proceedings nor is it a serious attempt at justice and the closest it gets to a “wanted poster” is one that a lynch mob would put out.

    More to the point underlying the logic of this letter is an acceptance of the idea that the government can have secret evidence and withhold it even from congress before issuing a kill order. They may be right that that is a sound reading of the AMUF, it is certainly what Obama and Cheney before him have been pushing for, although I doubt it. But it is fundamentally wrong under any coherent moral standard.

    Bloodypitchfork has it right, too:

    “…even King George III issued General warrants and had “wanted” posters nailed to every tree within a hundred miles of every signatory of the Declaration of Independence. At least they “knew” they were officially wanted..for STATED offenses against the King.

    Bottom line: the State cannot take the life of one of its citizens without due process of law, as defined in the Constitution. Am I wrong here? Have I just not gotten the notice that the AUMF trumps constitutional protections.

    The Democratic Party is the biggest obstacle to progress in this country. Not the GOP. We know what the GOP is, and they deliver mostly what they promise. The Democrats lie, dissemble, and provide terribly weak rationales for what the GOP would do most of the time anyway.

    We need a new political party that will fight — actually fight — for progressive causes, and take the side of the poor and working people against the established powers, allied with other poor and working people across the globe, to end territorial aggrandizement and war, whether of the economic sort, or the kind that comes at the end of a Hellfire or cruise missile, or distributed by cluster bomblets, and enforced by rendition and torture.

  18. bloodypitchfork says:

    @Jeff Kaye: quote:”We need a new political party that will fight — actually fight — for progressive causes, and take the side of the poor and working people against the established powers, allied with other poor and working people across the globe, to end territorial aggrandizement and war, whether of the economic sort, or the kind that comes at the end of a Hellfire or cruise missile, or distributed by cluster bomblets, and enforced by rendition and torture.”unquote

    Fight? Be careful what you wish for, as I believe we are on the verge of seeing a new party coalesce, only it won’t be “progressive”. It’ll be anti-collectivist gun owners. In reality, the first anti-gun collectivists salvo was fired yesterday in NYC when the PTB of NYC issued a demand to city residents to IMMEDIATELY SURRENDER THEIR WEAPONS.

    http://www.washingtontimes.com/news/2013/nov/28/nyc-alarms-notice-immediately-surrender-your-rifle/

    I give it a week before NYC SWAT start kicking in doors of registered gun owners who refuse to comply. And that will be that. The 2nd Amendment line in the sand will have been breached, the Law of Unintended Consequences will go into effect and the annuls of Great Moments in Monumental Stupidity will have a new contender for numero uno. Given the Oath Keepers and the 3%er’s have vowed “no more free Waco’s”, I believe the shit is about to hit the fan. We’ll see. All I know is the first citizen to be killed in a SWAT assault to confiscate weapons will be the modern equivalent of Fort Sumter. Lord help us if they do, as they will have, as the Japanese put it..”awaken a Tiger”..and a pissed off one at that. Remember, it only took 3% of the population to defeat the British and 3% of current gun owners STILL amount to 90 MILLION GUNS. Bring it on motherfuckers.

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