As I noted earlier, one of the questions that National Counterterrorism Center nominee Nick Rasmussen got asked in his prehearing confirmation questions pertained to the Drone Rule Book.
He was asked about his role in writing the “US Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities.” He replied that he participated in “very initial drafts” of the document in May and June 2012 while at NSC, and then participated in the interagency process before it was approved in May 2013.
He was then asked, “Has the Presidential Policy Guidance made our counterterrorism operations more effective?”
Click through to read his full answer to question 17, but he basically talks a lot about institutionalizing the process, all while emphasizing that the Drone Rule Book simply recorded the swell procedure that was already in place. After several bullets of that, he finally answers what was ultimately a yes or no question.
By refining and documenting the careful and deliberate way in which these operations are approved and conducted and by contributing to greater transparency in our CT operations, I believe the PPG has made it easier for some of our key allies and CT partners to support those operations by sharing intelligence and/or providing other forms of support for our CT operations. I believe PPG had likely contributed to making some of our CT operations more effective by making critical forms of CT cooperation with key partners more sustainable. By standardizing and institutionalizing the considerations and processes that inform our policymaking on direct action operations, we have become more effective in reviewing these operations and ensuring all appropriate national security equities are considered prior to approval.
In response to a question about whether the Drone Rule Book “is a good long term solution for this type of irregular warfare,” Rasmussen talked about how it combined flexibility with a framework to balance many issues.
Obviously, I’m most interested in the benefit Rasmussen says the Drone Rule Book has brought: that it makes it easier for key partners to cooperate with us on drone strikes and other lethal operations.
That’s particularly interesting given the lawsuit by a Yemeni man against British Telecom for its role in a drone strike that killed his brother. He bases his suit on BT’s role in providing cable service between a base in the UK and Djibouti, from where some of the drone strikes are launched.
And here we come to find out that the Drone Rule Book is an effort to make it easier for partners — which probably includes both the UK and Djobouti (because I can’t imagine the Saudis, Yemenis, and Pakistanis much care) — to help out on our drone killing program.
Make sure to read the update below: It’s possible McMahon’s estimate is off and this whole review process has gotten hopeless screwed up.
Update: yes, this memo is actually the February 19, 2010 memo, not an earlier one. The referenced pages refer to the discussion from the February 19 memo. I’m marking out this post, because it appears to be incorrect.
If I’m understanding this heavily redacted memo from Colleen McMahon correctly, the government was reviewing whether it was legal to kill Anwar al-Awlaki before Umar Farouk Abdulmutallab implicated him in his High Value Interrogation Group obtained “confession.” That’s because, in her discussion of what she, at times, calls “the first Barron memo,” she says this:
Bies Exhibits B, which is responsive to both FOIA requests, is a memorandum prepared by OLC six months prior to its preparation of the OLC-DoD memorandum and the Draft White Paper. It pertains specifically to the proposed al-Aulaqi operation that was the subject of the Draft White Paper and the OLC-DoD Memorandum. Written by David J. Barron, it is entitled “Lethal Operation Against Shaykh Anwar Aulaqi.” I will refer to it hereafter as the Bies Exhibit B or as “The First Barron Memorandum.” The “OLC-DoD” memo is the July 16, 2010 memo. McMahon justifies the partial release of “the First Barron Memo” because the July 16, 2010 memo cites it specifically. Apparently, the reference “As we explained in our earlier memorandum, Barron Memorandum at 5-7″ (page 94) refers to that memo, and further discussions on the Fourth and Fifth Amendment and EO 12333 rely on that memo. But McMahon tells us this earlier memo — the first Barron memo considering the drone killing of Anwar al-Awlaki — was “prepared by OLC six months prior” to the July 16, 2010 one. That would date it around January 16, 2010. Before Umar Farouk Abdulmutallab could have implicated Awlaki in his plot. We know that’s true because: That is, unless McMahon’s estimate is off by 2 weeks, there’s no way they could be relying on Abdulmutallab’s confession in their case against Awlaki. And yet that is the one thing the government points to to explain its changed view — from December 24, 2009 — that Awlaki was not operational. The government appears to be aware of this problem. In trying to claim this document was still secret, they claimed “the date, title, and recipient of the analysis provided in the document relate to “entirely separate deliberative processes.” Indeed, it seems likely this was one of the memos the government was trying to bury after the Second Circuit ruled. Because, when this memo gets released with a mid-January release date, it will be clear that the entire story they’ve been telling about Awlaki doesn’t hold up.
In any case, McMahon is having none of that claim.
The Government’s arguments are demonstrably untrue. There were no “separate deliberative processes” here; rather, the Government deliberated about whether or not it could and should kill al-Aulaqi over the course of many months, during which time it asked OLC to render advice on a number of occasions.
The deliberation process is the same process. And it started before such time as the government had what it claims is first-hand evidence against Awlaki.
Update: There is one more possibility. That this memo–released in August and dated February 19, 2010–is the memo in question. That would mean 1) That McMahon was off in her estimate by a month and 2) that she’s very confused about what she’s reviewing, given that her opinion dates to a month and a half after the memo was released. But the content and the title would match up. So it seems possible that’s the memo, at which point they had their first “confession” implicating Awlaki.
McClatchy reports today that the Senate Intelligence Report will include no details on the White House role in torture.
The Senate Intelligence Committee report also didn’t examine the responsibility of top Bush administration lawyers in crafting the legal framework that permitted the CIA to use simulated drowning called waterboarding and other interrogation methods widely described as torture, McClatchy has learned.
“It does not look at the Bush administration’s lawyers to see if they were trying to literally do an end run around justice and the law,” the person said.
McClatchy’s story is interesting, in part, because I had heard that the report was going to admit what has been in the public domain for years: the torture program, contrary to almost all reporting, was authorized by Presidential finding, not primarily by the memos that garner all the attention.
If the Torture Report is no longer going to confirm that, it is far bigger news than McClatchy has conveyed. It would mean someone — presumably the White House! (though remember the Finding’s author, Cofer Black, was involved in reviewing the document) — had won concessions in the declassification discussions to hide the role of President Bush in personally authorizing torture.
That would be consistent with President Obama’s rather remarkable efforts to keep a short mention of the September 17, 2001 Gloves Come Off Memorandum of Notification suppressed in ACLU’s torture FOIA (something that’s in the public record, but which I have been the only one to report).
But if President Obama’s White House has, a second time, intervened to prevent public confirmation that the President authorized torture, we really ought to start demanding to know why that’s the case. Remember when the 2nd Circuit backed White House efforts to keep mention of the MON suppressed, the White House said it was still using the MON.
The other reason I find McClatchy’s report curious is because it leaves something utterly central out of its narrative.
As Katherine Hawkins noted yesterday, McClatchy missed a key detail in the chronology of when and how Republicans backed out of the torture review.
Obama DOJ investigation into torture is not “prior” to SSCI report. Launched after SSCI, & is reason GOP withdraws
But there’s one more part of that chronology — one McClatchy might actually review if it wants the things it says it wants: the Office of Public Responsibility report into OLC lawyers’ role in the torture memos. Reporting in 2009 made it clear that Eric Holder launched the John Durham investigation in response to reading the OPR Report. So the chronology goes OPR Report, Durham investigation, GOP withdraws from SSCI Torture Report which (McClatchy argues) is when the Democrats could have turned and pushed to get documents implicating Bush White House figures.
While both David Addington and Tim Flanigan refused to be interviewed for the OPR report, it made it clear (especially Jay Bybee and John Yoo’s rebuttals) that both had had a direct role in setting up the legal loopholes CIA used to conduct torture. Between that and other public (largely unreported by anyone but me) documents, it is fairly clear that in response to concerns raised around July 10, 2002, CIA tried to get DOJ to give “advance” declination of prosecution (though for conduct that surely had already occurred). On July 13, Michael Chertoff refused, probably because Ali Soufan had already raised concerns about the conduct (his concerns probably relate to the use of mock burial) to give advance declination for torture. This led John Yoo to freelance a July 13, 2002 fax laying out how CIA could avoid accountability; that appears to be what Jonathan Fredman relied on in his advice to the torturers, not the more famous Bybee Memos. Nevertheless, at a July 16, 2002 meeting at the White House, it was decided (Yoo and Addington differ, it appears, on who did the deciding, but it is a rock solid bet that Addington did) that the Bybee Memo would include Commander of Chief language on how to avoid prosecution.
There are a number of other moments in the history of the program where White House responsibility is clear. But at that moment on July 16, 2002, David Addington got John Yoo to provide legal cover for anything the President ordered CIA do; he did so, of course, after CIA had been torturing for months on Presidential orders.
The answers to many of the questions McClatchy says have gone unanswered are sitting right there in the OPR report. And those answers are crucial to understanding the dance over declassification going on right now.
Aside from whatever else the Torture Report is, it is also a report that dodges the underlying power structure, in which the President orders the CIA to break the law and later ensures CIA avoids any accountability for doing so. At some point in this Torture Report process — fairly recently too! — Democrats seemed interested in exposing that dynamic, a dynamic President Obama has benefitted from at least as much as Bush did, going so far as to permit him to have CIA kill a US citizen with no due process. (That’s probably why Leon Panetta told some fibs in his memoir on this point.)
Ultimately, we’re never going to rein in CIA until we expose the mutual embrace of complicity the White House and CIA repeatedly rely on. Now it looks like the Senate Intelligence Committee has — in bipartisan fashion — decided to back off doing so here.
As I noted in discussing the first reports of the explosion at Parchin, early September saw a larger than usual incident along the Iran-Pakistan border, with a force of over 70 militants and a truck packed with over 1000 pounds of explosives attacking an Iranian border station. Thomas Erdbrink then noted last week that two separate incidents along the border resulted in the deaths of “a senior officer” and “three police officers” in two separate incidents in the same region.
Iran is quite upset by these events and no less than the second in command of the IRGC is speaking out today, warning Pakistan that if they can’t control the terrorists in the border region, then Iran will have no alternative but to chase them, even in Pakistani territory:
Iran will step in to contain terrorists if Pakistan refuses to take measures in order to secure its borders to keep terrorists from slipping into the Islamic Republic, a senior Iranian military commander says.
“We believe that every country should respect its commitments vis-à-vis its own internal security as well as that of neighboring countries. Border security is a common and pressing need for neighboring countries. We are, in principle, against intervening in the affairs of any country, but if they fail to abide by their obligations we will have [no choice but] to act,” the second-in-command of the Islamic Revolution Guards Corps (IRGC), Brigadier General Hossein Salami, said on Thursday.
“Terrorists, wherever they may be, even on the soil of neighboring countries, we will find them, and if they do not give up acts of terrorism, we will deal with them without reservation,” the senior commander added.
Gosh, maybe the US should go to the UN or the ICC to complain about such a blatant violation of Pakistani sovereignty if such an attack takes place. Just as soon as the US stops violating Pakistani sovereignty with drones, that is.
The article goes on to quote Salami that Iran has very good intelligence on the terrorist groups in the border region and then notes that “Iranian security forces have apprehended a number of perpetrators behind the recent killings” regarding the incidents described in the Erdbrink report.
Gosh, with intelligence that good on the border zone terrorists, maybe Iran will start using drones in Pakistan, too. I can only imagine the chaos that would sow among the chattering classes inside the Beltway.
A tweet yesterday by Arif Rafiq noted that there was a US drone strike in North Waziristan yesterday just a few hours before Pakistani Prime Minister Nawaz Sharif would visit a spot only 20 miles away. At the New York Times article Rafiq linked:
Prime Minister Nawaz Sharif of Pakistan visited a military camp in the tribal district of North Waziristan on Thursday in what was seen as a pointed show of support and an attempt to bolster his troubled relationship with the country’s top generals.
The rare visit by Mr. Sharif to the tribal belt came three months after the military launched a sweeping offensive against the Taliban in North Waziristan, a hub of Taliban and Qaeda activity.
His visit to Miram Shah, the main town in North Waziristan, on Thursday showed Mr. Sharif standing staunchly behind the country’s generals. “Our courageous troops are fighting a difficult war against an invisible enemy,” he told soldiers. “This is a war for the survival of Pakistan.”
Pakistan’s military claims that 80 percent of North Waziristan has been wrested from the militants and that at least 1,000 militants have been killed in the offensive, known as Zarb-e-Azb, which started on June 15. The figures are impossible to independently verify because the area is out of bounds for most reporters.
According to Pakistan Today, Sharif was emphatic in claiming victory by Pakistan over the militants they were attacking in North Waziristan:
Praising Pakistan Army for the success of Operation Zarb-e-Azb, the prime minister said he visited areas of North Waziristan which used to be havens for terrorists but now the army had purged all anti-state elements from there.
Despite Sharif’s claim of total victory over the terrorists, the US obviously feels the job is not complete, as drone strikes this week have been heavy, including the strike Rafiq notes in the Times article as only 20 miles from where Sharif would visit a few hours later.
The beginning of this week was marked by observance of Eid-ul-Azha, but the religious holiday had no bearing on the timing of drone strikes by the CIA. This Express Tribune article notes that US drone strikes in North Waziristan killed five in the pre-dawn hours Monday, another five later on Monday, six early Tuesday, and another eight also on Tuesday.
And then as AP recounts, there were two separate attacks overnight Wednesday and Thursday that killed five more. Near the end of the Times article linked by Rafiq, we get the observation of how close in location and timing it was to Sharif’s visit:
In an unexpected turn, Mr. Sharif’s visit also had an unusual dimension in terms of his relationship with the United States. Hours before he arrived, an American drone fired a missile at a vehicle in Datta Khel, 20 miles west of the camp where Mr. Sharif visited. Four people were killed and two were wounded, a Pakistani security official said on the condition of anonymity.
Clearly, when it comes to drone strikes in Pakistan, John Brennan is a honey badger. He don’t care about religious holidays. He don’t care about the Pakistani military claiming to have established control of North Waziristan. He don’t care about the Prime Minister entering the area. John Brennan just don’t care.
Who ever heard of a honey badger with moral rectitude?
Jason Leopold liberated another White Paper — this one dated May 25, 2011 — on drone killing.
Man. It’s just like they kept throwing legal arguments against the wall in hopes that one saying “You can kill Americans with no due process” would stick. And since this one is not signed, we may never know what lawyer gets rewarded with a lifetime judicial sinecure!
I’ll have a lot more to say on the logistics of all this in a later post.
But I want to comment briefly on a point that Kevin Jon Heller made in his post on the memo (remember, Heller’s the guy who forced David Barron to write more than 7 pages to authorize killing Awlaki by raising a statute Barron hadn’t considered).
Heller still sees absolutely no justification for CIA being granted public authority to kill Americans in this White Paper.
Like the earlier memorandum, the White Paper is largely devoted to establishing that the public-authority justification applies to the foreign-murder statute and that members of the US military would be entitled to the justification. (Two conclusions I agree with.) It then simply says this (pp. 14-15):
Given the assessment that an analogous operation carried out pursuant to the AUMF would fall within the scope of the public-authority justification, there is no reason to reach a different conclusion for a CIA operation.
That’s it. That’s the sum total of the unredacted argument. But there is a reason to reach a different conclusion “for a CIA operation” — as pointed out above, the AUMF does not apply to the CIA. Which means that the source of the public-authority justification must lie elsewhere.
Now let me be clear: I am not saying the CIA cannot be entitled to the public-authority justification. I am simply pointing out that the AUMF does not provide the CIA with the necessary authority. Perhaps there is another source, such as Title 50 of the US Code, as my co-blogger Deb Pearlsteinhas suggested. Indeed, the redaction on page 16 of the new White Paper may well refer to that other source of authority, given that five or six lines of redacted text follow this statement:
Thus, just as Congress would not have intended section 1119 to bar a military attack on the sort of individual described above, neither would it have intended the provision to prohibit an attack on the same target, in the same authorized conflict and in similar compliance with the laws of war, carried out by the CIA in accord with _____.
I don’t understand why the OLC would need to redact a reference to Title 50 (or to some other source of authority). The legal source of the CIA’s authorization to kill Americans overseas — if one exists — hardly seems like a state secret. Until the government reveals that source, however, we remain entitled to conclude that the CIA drone-strike that killed Anwar al-Awlaki violated 18 USC 1119.
I don’t think those redacted lines he points to are a reference directly to statute.
I think it’s a reference to the September 17, 2001 Gloves Come Off Memorandum of Notification which we know authorized killing high value al Qaeda figures with drones.
After all, that’s precisely where Stephen Preston — then CIA’s General Counsel before he moved onto bigger and better General Counseling at DOD — said he’d look to for the authority for CIA to carry out certain operations (and when he gave this speech, it was regarded to be part of the set of drone killing speeches Obama’s top officials gave in 2012, and he discusses assassination, which several of the drone authorizations also do, specifically).
Authority to Act under U.S. Law.
First, we would confirm that the contemplated activity is authorized by the President in the exercise of his powers under Article II of the U.S. Constitution, for example, the President’s responsibility as Chief Executive and Commander-in-Chief to protect the country from an imminent threat of violent attack. This would not be just a one-time check for legal authority at the outset. Our hypothetical program would be engineered so as to ensure that, through careful review and senior-level decision-making, each individual action is linked to the imminent threat justification.
A specific congressional authorization might also provide an independent basis for the use of force under U.S. law.
In addition, we would make sure that the contemplated activity is authorized by the President in accordance with the covert action procedures of the National Security Act of 1947, such that Congress is properly notified by means of a Presidential Finding.
Preston would look to a Finding, and we know there was (still is, as far as we know!) a Finding authorizing precisely the thing the government claimed to have done, kill a top al Qaeda figure.
Remember, too, David Kris — who left DOJ not long before this White Paper explicitly authorizing CIA’s execution of the execution got written — issued this warning about the real secrets behind the National Security Act’s language prohibiting CIA from violating US statute.
For example, the covert action statute could be interpreted and applied in ways that may be extraordinarily important, but about which very, very few Members of Congress, let alone the American People, ever learn. The statute defines covert action to exclude “traditional” military and law-enforcement activities, provides that a covert action finding “may not authorize any action that would violate the Constitution or any statute of the United States,” and specifically warns that “No covert action may be conducted which is intended to influence United States political processes, public opinion, policies, or media.” Without making any comment, express or implied, on any actual or hypothetical covert action, or even acknowledging that any covert action of any kind has ever actually taken place, it is quite obvious that each of those elements of the statute could raise enormously difficult and complex interpretive questions, some of which might affect many Americans. Yet it might be impossible, in many cases, to explain those interpretations without revealing the most sensitive classified information. [60; footnotes removed]
In killing Awlaki, CIA was acting in both a law enforcement (that’s where the Fourth Amendment argument derives from) and Traditional Military capacity (which is how these endless justifications apply the public authority to CIA, by claiming CIA officers are just like soldiers). Kris tells us the statute says CIA can’t, but that the NSA “could be interpreted and applied in ways [that] very few Members of Congress, let alone the American People, ever learn.”
It has to have in this case, because CIA acted as both law enforcement and military in violating a slew of statutes to carry out the drone killing of an American citizen as part of a covert op. Kris is basically saying that part of the NSA doesn’t mean what it says. That it means something far more horrible.
Which means he’s also saying — as was Preston — that the drone killing of Anwar al-Awlaki was done on Article II authority.
It is, admittedly, a guess. But I believe that behind that redaction, the White Paper makes it clear this killing was done on Presidential authorization.
John Kerry has made not one, but two trips to Afghanistan to pursue his extra-constitutional “power sharing” agreement between Ashraf Ghani and Abdullah Abdullah that creates the completely new position of chief executive within the Afghan government. As was easily predicted, that plan now teeters near total failure. Clearly, Afghanistan’s constitution means nothing to John Kerry in his pursuit of US goals in that country.
In the daily press briefing yesterday at Kerry’s State Department headquarters, spokesperson Marie Harf had this remarkable exchange with a reporter, where we suddenly see that next door, in Pakistan, the constitution is of prime importance*:
QUESTION: One more quickly. What Imran Khan is saying and others in the country, including hundreds of thousands or millions of people in Pakistan, they are not happy with the current government, and Imran Khan is saying that those elections by Prime Minister Nawaz Sharif were fraud and fake and they were not legitimate or he’s calling that he should step down. That’s what I’m asking. I’m saying –
MS. HARF: He’s the prime minister, period.
QUESTION: Thank you.
QUESTION: So you’re not calling for Prime Minister Sharif to step down?
MS. HARF: I in no way am calling on that.
QUESTION: Does the United States support regime change in Pakistan?
MS. HARF: We support the constitutional and electoral process in Pakistan, which produced the Prime Minister of Nawaz Sharif. That was a process they followed, an election they had, and we are focused on working with Pakistan. And we do not support any extra-constitutional changes to that democratic system or people attempting to impose them.
How about that? In Pakistan, the State Department does “not support any extra-constitutional changes to that democratic system or people attempting to impose them”, while just across the border in Afghanistan, the Cabinet member in charge of the State Department is putting a huge amount of his own energy into an extra-constitutional change to the democratic system there.
Just three days ago, Kerry included this snippet in his letter of congratulations to Afghanistan on their independence day:
With millions of Afghans across your great nation braving violence and intimidation to cast their ballots, it is critical that all parties honor those voters’ aspiration for a democratic, peaceful transfer of power that unifies the country. We will continue to strongly support the democratic process and the agreement reached between the two candidates concerning the formation of a national unity government.
So Kerry claims he supports the democratic process and yet he wants it to produce a “national unity government” that is described nowhere in the constitution that enabled the voting. His real aim appears near the end of the letter:
With a timely resolution of the election and the signing of a Bilateral Security Agreement, I am confident that the next year will open an important new era in U.S.-Afghan relations.
For John Kerry, as well as the rest of the US government, it always has been and always will be about keeping those troops going (and those military contracts running).
Postscript: Did you notice the *asterisk above? I felt compelled to add it when I said that for the US, the constitution in Pakistan is of prime importance. There is a huge exception to that statement. The democratically elected government of Pakistan, whose constitutionality Harf is praising in her briefing, means absolutely nothing to the US when the US wishes to carry out a drone strike inside Pakistan’s borders, even when that same democratically elected government has made it clear that such actions are a violation of sovereignty.
Back in June, I compared the content of Charlie Savage’s account of the Awlaki drone memo with the content of the July 16, 2010 memo released that month. I noted that Savage reported the memo discussed whether killing Awlaki would violate the “ban” on assassinations in EO 12333, but the July memo did not. I suggested the earlier memo probably included that section.
Before Savage’s report turns to the consideration of 18 USC 1119 — which is where the memo starts its analysis — it describes a section considering whether the “ban” (in an unenforceable Executive Order that gets changed from time to time without notice in the actual text) on assassinations would prohibit such a killing.
It then considered possible obstacles and rejected each in turn.
Among them was an executive order that bans assassinations. That order, the lawyers found, blocked unlawful killings of political leaders outside of war, but not the killing of a lawful target in an armed conflict.
No discussion of assassination appears in the memo (unless it appears in a classified section and is not noted by the court opinion, but that seems unlikely as there’s no logical place for it). That said, the “ban” on assassinations did appear prominently in Harold Koh’s justification for drones given in March 2010.
Fourth and finally, some have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.”
This leads me to suspect the structure of the first memo may parallel the structure of Koh’s speech, with the assassination “ban” figuring prominently in that memo. That is, it seems likely Savage’s sources, in conflating the two memos (if that’s what they did), included that language because it appeared in the first memo.
Voila! The memo released Friday — dated February 19, 2010 — does indeed focus on the assassination “ban,” though much of that discussion, like the entire memo, remains redacted.
[T]he use of lethal force against Aulaqi would not violate the assassination ban in Executive Order 12333.
And if you add the length of the February (7 pages) and July (41 pages) OLC memos and round up, you get the rough page length Savage’s sources provided: 50 pages.
So it does seem that Savage’s sources just synthesized the two memos as one.
That said, comparing Koh’s March 2010 speech presumably incorporating OLC’s assassination discussion with the (overly redacted) memo raises another question.
Several words in the title of the memo remain redacted.
I wonder — and this is a guess — whether the redacted words pertain to using drones to executive an American citizen?
I ask that because Koh’s speech includes this paragraph about drones and other high tech weapons.
Second, some have challenged the very use of advanced weapons systems, such as unmanned aerial vehicles, for lethal operations. But the rules that govern targeting do not turn on the type of weapon system used, and there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict– such as pilotless aircraft or so-called smart bombs– so long as they are employed in conformity with applicable laws of war. Indeed, using such advanced technologies can ensure both that the best intelligence is available for planning operations, and that civilian casualties are minimized in carrying out such operations.
That is, I wonder whether some significant part of the 7 pages David Barron originally dedicated to weighing Awlaki’s due process free execution pertained to whether using drones to kill him changed the legal question?
Another possibility for the redacted phrase is a reference to Yemen, though the 2nd Circuit has already deemed that unclassified. Or, perhaps, this memo started the discussion of CIA’s involvement in an execution, which would explain the focus on EO 12333, which governs their covert operations.
In any case, it does seem that the Administration self-justification evolved over the first half of 2010, and only later in the year did the Department of Justice consider whether there were laws that might prohibit CIA from executing a US citizen with no due process.
For years, defenders of the drone killing of Anwar al-Awlaki have always pointed to the second confession Umar Farouk Abdulmutallab made, implicating Awlaki in each and every part of his plot.
There were always problems with that. Several pieces of evidence indicate the drone attack on December 24, 2009 that missed Awalaki had specifically targeted him; at that point, the government did not consider Awlaki operational. Abdulmutallab made 3 confessions, and only the one made to the High Value Interrogation Group (HIG) after a month of isolation and in the context of a (I’ve heard second-hand, unbelievably generous) plea deal that was never finalized implicated Awlaki in planning his attack. Claims Awlaki helped Abdulmutallab make his martyrdom video don’t explain why AQAP’s best English language propagandist would make a video with a man schooled in English in Arabic. Subsequent evidence suggests actions attributed to Awlaki in that confession were probably taken by Fahd al-Quso and Nasir al-Wuhayshi.
In other words, there are a lot of holes in the confession always used to justify Awlaki’s drone killing. Abdulmutallab’s second confession should be treated the same as his first and third ones: a narrative crafted by someone who has a big incentive to shade the truth, and therefore of dubious reliability.
The release of yesterday’s ridiculously cursory OLC memo authorizing the drone killing of Anwar al-Awlaki introduces one more reason to doubt the narrative that claims Abdulmutallab’s second confession provided justification for Awlaki’s killing.
The memo relies not on what FBI has told OLC. It relies on CIA’s assessment that Awlaki is “a senior leader of al-Qa’ida in the Arabian Peninsula” based on “factual predicates as represented by the CIA and in the materials provided to use from the Intelligence Community.”Abdulmutallab’s second confession might be included in those materials provided from the IC. Even though the confession was obtained as part of a criminal investigation, the FBI is part of the IC, so broadly speaking that second confession would qualify, I guess.
But the assessment came not from FBI, which had the lead investigating the Undiebomb attack, but from the CIA. Which ought to give you pause, given that just months before this memo was written, the intelligence community’s partners had convinced the US that they hadn’t killed a Bedouin clan in the al-Majala strike. Indeed, the intelligence relating to Awlaki seemed to be consistently stinky until such time as the CIA set up its own drone base in Saudi Arabia in mid-2011.
Besides, what are we executing American citizens based on the CIA’s assessment for anyway?
At least according to David Barron, the case against Awlaki came not from FBI, but from CIA. That doesn’t mean CIA didn’t have evidence supporting its claims (and remember, CIA has a role in HIG, as does JSOC). But it does suggest Abdulmutallab’s second confession may not have the role the defenders of Awlaki’s execution like to cling to.
That’s all that current 1st Circuit Court Judge and then acting OLC head David Barron needed — in February 2010 — to dispense with niceties like the Constitution and Rule of Law before he okayed the drone killing of Anwar al-Awlaki.
Lucky for Barron — and President Obama — International Law scholar Kevin Jon Heller, never having seen that 7 page memo, raised some things Barron hadn’t considered. Which led Barron to write a still totally laughable but nevertheless less ridiculous 41-page memo 5 months later, which Barron’s friends insist is not-so-bad if you want to rationalize drone killing an American with no due process.
I wonder how they’ll defend Barron’s much more circumspect drone killing justification (especially since DOJ has redacted it beyond any legibility)?
I’ll have more to say about this latter — I suspect that it shows that DOJ actually tried on 3 different theories for drone-killing Awlaki.
But for the moment, know that if you ever come before Judge Barron, he believes he legitimize drone killing you in 7 pages or less.