Anwar al-Awlaki

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AQAP Drone Strikes Obama’s Awlaki Drone Story

Shirhi Abdulmutallab KissTwo days before the Administration was due to release a memo laying out its rationale for drone-killing American citizen Anwar al-Awlaki, AQAP released a video that challenges the narrative the Administration has used for doing so.

As Gregory Johnsen reports, the memo shows (see correction below) former Gitmo detainee Said al-Shihri embracing Umar Farouk Abdulmutallab, then whispering in his ear.

In the video, Shihri says he was the head of external operations — the title the US always used to describe Anwar al-Awlaki.

The video says that it was Shihri — not Awlaki — who was “responsible for external operations against America.” For years, the Obama administration has argued the opposite, claiming that Awlaki was directing AQAP’s efforts against the U.S., including the failed underwear bomb on an airliner over Detroit on Christmas Day 2009.

On the day Awlaki was killed, Obama called him “the leader of external operations for al-Qaeda in the Arabian Peninsula” and said he “directed” the 2009 attack. The video appears to refute both claims, giving credit to Shihri, the former Guantanamo Bay detainee.

Halfway through the video there is a clip of Shihri embracing Umar Farouk Abdulmutallab, the underwear bomber in the Christmas Day attack, and whispering in his ear as a narrator reads that the attack was conducted “under the direct supervision of (Shihri) and a number of his brothers in the section in charge of external operations.”

While there may be some disagreement about how best to translate Shihri’s role — “directed” or “supervised” — this video clearly says that Shirhi was in charge, directly to the contrary to the narrative DOJ released purportedly summarizing Abulmutallab’s confession (the one that conflicted in key ways with his two other confessions).

What Johnsen doesn’t say — but is clear from comparison — is that that embrace took place while Abdulmutallab was dressed to make his martyrdom video.

Compare this frame, which appears just after the embrace in the new video (at 21:54),

Abdulmutallab Video Shihri

With this one from Abdulmutallab’s martyrdom video (at 0:52).

Abdulmutallab Video Martyr

That’s important because arranging to make the martyrdom video is one of the tasks DOJ’s narrative says Awlaki did.

Awlaki told defendant that he would create a martyrdom video that would be used after the defendant’s attack. Awlaki arranged for a professional film crew to film the video. Awlaki assisted defendant in writing his martyrdom statement, and it was filmed over a period of two to three days. The full video was approximately five minutes in length.

Shihri’s presence at the making of Abdulmutallab’s martyrdom video doesn’t refute the claim that Awlaki had a role in making it (though none of the experts I have asked has ever given a remotely credible explanation why AQAP’s greatest English-language propagandist and someone formally schooled in English would make a martyrdom video in Arabic). But it does place him there, suggesting Awlaki was not the only one directing the production of the video, if he had a role at all.

This video definitely doesn’t prove that Awlaki didn’t have an operational role in the UndieBomb attack. But it shows that the narrative the government released — which Abdulmutallab’s lawyer said had been made in the context of a plea deal never finalized and which the government agreed not to rely on at the trial, where it could have been challenged — neglects not just the role of Fahd al-Quso, but also Said al-Shihri. It is, at the very least, incomplete in some important ways.

And yet that is the only public “proof” the government has ever released that justified their execution of Anwar al-Awlaki.

Update: Apparently al-Shihri isn’t the one portrayed in this video, in which case this connection is not meaningful.

Sabrina de Sousa and the Drone Memo

Jason Leopold has a long piece on Sabrina de Sousa, the former CIA operative who got screwed over in the aftermath of the Abu Omar rendition.

Leopold’s piece focuses on de Sousa’s efforts to call attention to how stupid the rendition was. He includes her correspondence with a range of people — from Condi Rice to Colin Powell to Hillary to Dianne Feinstein’s staff – she tried to reach out to. As such, Leopold’s piece is yet another case showing the intelligence whistleblowers can’t use “proper channels” to expose wrong-doing they find.

But I wanted to focus on a more narrow point de Sousa makes about Abu Omar’s rendition, one that — in the wake of the release of the Awlaki killing memo – is of particular significance. One problem with Abu Omar’s rendition, de Sousa notes, is that none of the conditions normally present for extraordinary renditions were present. The fact that Italy was already closely watching him meant the US didn’t have to intervene to neutralize him.

There was nothing definitive in the classified cables, De Sousa says, about the threat the CIA said Abu Omar posed to national security as the rendition operation was being planned. “The cable was full of ‘suspected of,’ ‘alleged to.’ Nothing that said ‘he was responsible for.’ Nothing definitive,” De Sousa says.

De Sousa describes her CIA colleagues in Rome and Cairo as acting like keystone cops in the aftermath of Abu Omar’s rendition, trying to figure out who had the evidence against him to present to Egypt so he could be prosecuted.

“The CIA station chief in Cairo said to Jeffrey Castelli [CIA station chief in Rome] ‘Where’s the evidence?’ Castelli said, ‘I thought you had the information.’ And Cairo said, ‘We don’t have it. We thought you had it.’ Castelli says, ‘We don’t have it.’ Then Cairo says, “We issued this arrest warrant on your behalf. So where is the evidence?” The blunder ultimately forced Egypt to set Abu Omar free.

“This is exactly when the whole cover-up started,” she says. “It turns out there was a big miscommunication between Cairo Station and Rome Station. There wasn’t any prosecutable evidence against Abu Omar. It’s why he was never picked up by the Italians. But Castelli decided he wanted a rendition and he got one.”

[snip]

“Abu Omar was a nobody,” De Sousa says. “The renditions are meant for imminent, very dangerous threats and [are meant to be used in]countries that are incapable of laws that would allow them to pick up people who pose threats to national security. They’re not meant for a country like Italy already following the guy around.”

Those trying to dismiss the seriousness of the Anwar al-Awlaki memo, after all, say it’s not that big of a deal, given that most Americans of concern would be in places — like, say, Milan — where they could easily be seized by local authorities, and therefore would never need to be drone killed.

And rendition is obviously the step short of drone killing. There’s little risk CIA will start flying drones over Milan (and if they did, Italy has the capability to shoot them down).

Nevertheless, the Abu Omar case is one reason why you can never say the conditions laid out in the memo will always protect Americans from being drone killed — or just as likely, simply killed — based on claims about a country’s ability to arrest and turn over someone.

Those same conditions should have protected Abu Omar. Yet, because some guy was bucking for a promotion, they didn’t.

Whither the Assassination Consideration?

As I noted earlier, I’m doing a fairly detailed comparison of what parts of the white paper don’t show up in the drone memo released Monday. But that’s going to take a while.

Far easier is to compare what Charlie Savage’s sources said the memo included but doesn’t.  I’ve noted before that they told him there was one memo when there were really two. Given these discrepancies, it’s possible they merged the two memos in their descriptions:

  • Savage’s sources said the memo was “roughly 50 pages;” it is 41
  • Savage’s sources said the memo was “completed around June 2010;” it was completed on July 16 (remember, too, that Scott Shane FOIAed the memo in June 2010)

Other than those details, Savage’s story maps the actual memo very closely, down to the caveat that,

The memorandum, which was written more than a year before Mr. Awlaki was killed, does not independently analyze the quality of the evidence against him

Similar caveats appear repeatedly in the memo (most OLC memos start that way, and a redacted footnote in this apparently lays that out, but this one repeated it several times later in the analysis).

Savage’s report of the content of the memo starts — as the memo itself does (though this is redacted; see page 41 for a description of what appears in the redacted sections) — with a description of the claims the Intelligence Community used to claim Awlaki qualified as a target under the AUMF. Significantly, this includes the claim that “a pattern of activities [] counterterrorism officials have said show[] that he had evolved from merely being a propagandist … to playing an operational role.” Later the memo refers to Awlaki recruiting, which I suspect may be an artifact of the argument they made in February 2010, based on what Dennis Blair said publicly at the time. So I find this claim of a progression of particular interest (not least because it’s another reason why this memo simply could not cover the attempt to kill Awlaki on December 24, 2009).

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.

From that deviation, however, the report in Savage’s story returns to its close match of the actual drone content, with one exception and one area where Savage’s report probably reflects something redacted in our version of the memo.

  • Consideration of 18 USC 1119 (though Savage doesn’t talk about the heightened importance of this analysis for CIA)
  • Consideration of War Crimes Act
  • Consideration of the Fifth and Fourth Amendments

The part that Savage includes but doesn’t appear in the declassified memo is this bit:

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. [my emphasis]

That italicized bit doesn’t appear in what we got Monday (though the acknowledgment that CIA officers would not have immunity in footnote 44 addresses precisely the same legal issue), but there is a redacted section on page 38 that may well acknowledge that point.

Finally, there’s the one section of the memo that neither Savage’s sources nor DOJ, in summarizing the memo in the white paper, included: section IV, which considers whether killing Awlaki would violate 18 USC 956(a)‘s prohibition on conspiring within the US to carry out kidnapping or murder overseas. I find that curious and, because they appear to be suppressing it, worthy of more examination. Does the apparently consistent effort not to acknowledge that this might apply reflect some insecurity about the strength of this argument?

The Delayed “Imminence” of Anwar al-Awlaki’s Killing

As a number of people have noted (Jen Daskal is one), the OLC memo released yesterday doesn’t describe what the government considers an imminent threat.

Meanwhile, Ben Wittes is unexpectedly spending his time writing interesting posts about why imminence is in there in the first place, and not mocking the NYT editorial calling for a drone and/or targeted killing court.

Wittes writes.

I think the source of law for imminence in Holder’s speech, in the white paper, and in this memo is a presidential covert action finding. That is, I think the president, in issuing whatever finding gave rise to the killing of Al-Aulaqi, limited the authorization to situations involving imminent threats. This invocation was prudential, not legally required by any other source of law, but it operates as law for the executive branch.

There are a few pieces of evidence—not conclusive, but suggestive—supporting this view:

The most important is that memo—by omission—excludes the other major possibilities. If the imminence requirement is not there because of constitutional separation of powers, international law, or the constitutional rights of the targets, it’s got to be coming from somewhere. Internal executive branch law is one of the few remaining possibilities.

Moreover, it’s the only obvious possibility I can think of that would leave so little footprint in the memo. Indeed, if the imminence discussion is present but redacted, that suggests that the very source of law is classified. That is consistent with its appearance in a finding. Alternatively, if the reason the discussion seems to be missing is that it isn’t there at all, that is also consistent with its originating in a finding. After all, if we assume that imminence is only a requirement because the president said it’s a requirement, it follows that the concept means—at least in this context—whatever the president wants it to mean.

I’m not sure I buy that there is no legal reason for imminence, but I do agree it is relatively absent in what we have of the July 16, 2010 memo.

As it happens, in my thinking about the absence of a discussion of imminence in this memo, I have started comparing what’s in the white paper but not the OLC memo (I have already noted that the desultory treatment of why Courts couldn’t review the assassination is not in the OLC memo).

Remember, there are two possible explanations for why something would be in the White Paper (dated November 8, 2011, over a month after Awlaki was killed) but not in the July 16, 2010 OLC memo we got yesterday. First, those missing elements could be in the first OLC memo, from February 2010. Section VI of yesterday’s memo cites from and appears to repeat the analysis from that other memo. And that’s precisely where the reference to “imminent” is.

The task before OLC in February 2010 was likely somewhat different than the task in July 2010, because not only did OLC have to come up with an argument for killing an American going forward, but it likely felt some urgency to justify the attack on Awlaki attempted on Christmas Eve 2009, which was by all reports conducted under Article II justification. Dana Priest’s report that Awlaki was on the JSOC kill list probably created real urgency in January and February to provide this justification. Both the fact that that strike was attempted under solely Presidential authority, and that it was done without prior OLC review would raise the importance of arguing that Awlaki, in the wake of early December 2009 revelations that he had been in contact with Nidal Hasan, was an imminent threat.

The other possibility is that the emphasis on imminence came after the OLC memo, and DOJ added it into the white paper either for what was intended to be public (or at least Congressional) consumption, or to deal with developments that occurred between the time David Barron finished the memo in July 2010 and the time the government killed Awlaki 14 months later.

Meanwhile, I’ve been puzzling over something that appears in the white paper that we know can’t appear in either OLC memo: the citation to John Brennan’s September 16, 2011 speech on “Strengthening our Security by Adhering to our Values and Laws.” This sentence of that speech was cited: “The United States does not view our authority to use military force against al-Qa’ida as being restricted solely to ‘hot’ battlefields like Afghanistan.” That is, unless I’m mistaken, the only reference to a source that post-dates the OLC memo that authorized Awlaki’s killing.

As it turns out, that sentence introduces a discussion that leads to a treatment of the government’s definition of “imminence.”

The United States does not view our authority to use military force against al-Qa’ida as being restricted solely to “hot” battlefields like Afghanistan.  Because we are engaged in an armed conflict with al-Qa’ida, the United States takes the legal position that —in accordance with international law—we have the authority to take action against al-Qa’ida and its associated forces without doing a separate self-defense analysis each time.  And as President Obama has stated on numerous occasions, we reserve the right to take unilateral action if or when other governments are unwilling or unable to take the necessary actions themselves.

That does not mean we can use military force whenever we want, wherever we want. International legal principles, including respect for a state’s sovereignty and the laws of war, impose important constraints on our ability to act unilaterally—and on the way in which we can use force—in foreign territories.

Others in the international community—including some of our closest allies and partners—take a different view of the geographic scope of the conflict, limiting it only to the “hot” battlefields.  As such, they argue that, outside of these two active theatres, the United States can only act in self-defense against al-Qa’ida when they are planning, engaging in, or threatening an armed attack against U.S. interests if it amounts to an “imminent” threat.

In practice, the U.S. approach to targeting in the conflict with al-Qa’ida is far more aligned with our allies’ approach than many assume.  This Administration’s counterterrorism efforts outside of Afghanistan and Iraq are focused on those individuals who are a threat to the United States, whose removal would cause a significant – even if only temporary – disruption of the plans and capabilities of al-Qa’ida and its associated forces.  Practically speaking, then, the question turns principally on how you define “imminence.”

We are finding increasing recognition in the international community that a more flexible understanding of “imminence” may be appropriate when dealing with terrorist groups, in part because threats posed by non-state actors do not present themselves in the ways that evidenced imminence in more traditional conflicts.  After all, al-Qa’ida does not follow a traditional command structure, wear uniforms, carry its arms openly, or mass its troops at the borders of the nations it attacks.  Nonetheless, it possesses the demonstrated capability to strike with little notice and cause significant civilian or military casualties.  Over time, an increasing number of our international counterterrorism partners have begun to recognize that the traditional conception of what constitutes an “imminent” attack should be broadened in light of the modern-day capabilities, techniques, and technological innovations of terrorist organizations.

At a minimum, Brennan’s speech might suggest the imminence analysis is in the OLC memos, to the extent it is, because our allies would insist on it. But even while he does that — and purportedly cedes to the international view on the battlefield that would 2 weeks later take Awlaki’s life — he suggests the definition is changing.

Remember, too, that Assassination Drone Czar Brennan would have been the one to conduct the final review of the standards laid out before okaying the killing of Awlaki, the one to decide he was still an imminent threat 21 months after he was first targeted. So Brennan’s depiction of a changing standard of imminence is quite interesting, given that either by this time, or 2 weeks later, he would have signed off on the imminence of the threat Awlaki posed.

I raise Brennan not just because I find it significant that the white paper relied on this as a “source” of authority to kill Awlaki over a year after OLC had judged it. But the reliance on the speech also suggests that the white paper emphasis on imminence might post-date both OLC’s memos on Awlaki.

And there is one obvious thing that emphasized imminence — and the potential role of judges — that post-dated the OLC memo, though not by much. Around July 1, Nasir al-Awlaki’s father retained ACLU and Center for Constitutional Rights to represent him in a challenge to Awlaki’s targeting. The very same day OLC issued its memo, Treasury named Awlaki a Special Designated Terrorist, which required the ACLU and CCR to request permission to represent Awlaki’s father to avoid being charged with material support for terrorism.

In their suit — filed August 30 — they asked for,

a declaration from this Court that the Constitution and international law prohibit the government from carrying out targeted killings outside of armed conflict except as a last resort to protect against concrete, specific, and imminent threats of death or serious physical injury; and an injunction prohibiting the targeted killing of U.S. citizen Anwar Al-Aulaqi outside this narrow context.

That is, the ACLU/CCR suit emphasizing imminence almost certainly would have raised the stakes for it, if it wasn’t already a government standard.

In September, the government moved to dismiss the suit, arguing (as they did in the white paper but not the July 2010 OLC memo) that the courts had no role in reviewing this issue…

The Judiciary is simply not equipped to manage the President and his national security advisors in their discharge of these most critical and sensitive executive functions and prescribe ex ante whether, where, or in what circumstances such decisions would be lawful. Whatever the limits of the political question doctrine, this case is at its core.

… And arguing that the courts couldn’t determine whether someone was an imminent threat.

For example, even assuming for the sake of argument that plaintiff has appropriately described the legal contours of the President’s authority to use force in a context of the sort described in the Complaint, the questions he would have the court evaluate—such as whether a threat to life or physical safety may be “concrete,” “imminent,” or “specific,” or whether there are “reasonable alternatives” to force—can only be assessed based upon military and foreign policy considerations, intelligence and other sources of sensitive information, and real-time judgments that the Judiciary is not well-suited to evaluate.

See also this post for the choose your own adventure novel the government laid out to cover Awlaki’s killing.

Whatever the government argued in February 2010, its arguments to combat this suit in September 2010 required the government to deal with imminence directly, whether or not they did extensively in February or July 2010. And then, just weeks before they killed Awlaki (it having been a year since the most recent publicly claimed attack the government claimed Awlaki had a role in), the Administration publicly advocated a very flexible notion of imminence.

Clearly, the government nodded to imminence before the Nasir al-Awlaki suit, at least by a few weeks. But certainly, the government’s successful attempt at avoiding court review relied on certain arguments that show up in more prominent form in November 2011 then it does in July 2010.

Again, I’m agnostic whether the government emphasized imminence to explain the (under the standard as written, because the government did not believe Awlaki to be operational on that day) illegal strike against Awlaki from December 24, 2009, or whether they increased their focus on imminence in response to CCR and ACLU. But I think either might be a likely explanation.

Please No Drone and/or Targeted Killing FISA Court!

Last year, after the drone white paper demonstrated how shoddy were the Obama Administration’s claims to be able to kill Anwar al-Awlaki, a group of Senators decided the best way to avoid difficult questions but appear to address the issue would be to have the FISA Court review drone and/or targeted killings before they happened. I did a series of posts laying out what a horrible idea that was. I showed:

  • The FISA Court has a history of  unquestioningly accepting evidence from dubious sources, including torture
  • Certain factual issues a drone and/or targeted killing court would need to judge — including the scope of the AUMF — are not well defined and should not be defined by the Executive in secret
  • The Administration claims the authority to conduct targeted killings for pre-crime, which a court has no way of assessing (and which should not be sanctioned in law)
  • Decisions by the FISC — such as interpreting “relevance” to authorize vast suspicionless collections of data and permitting back door searches of content collected off of programatic orders – prove that the court no longer fulfills its originally intended purpose

As a reminder, I argued the claims in that last bullet in February 2013.

The Fourth Amendment holds that judges must decide whether wiretaps are reasonable or not.

Yet after the FISA Amendments Act, that’s not what happens. Rather, judges are deprived of the ability to do more than review the government’s certifications about targeting and minimization. Once a judge has done so, however, the government can not only bulk collect telecommunications involving someone overseas, but it can later search on those telecommunications to get to the US person’s side of the conversation, apparently without court review on the back side.

Effectively, discretion over this massive system has collapsed back inside the Executive Branch.

And all that’s before the government’s use of the secret law that Mark Udall and Ron Wyden keep complaining about, which probably involves — in part — the bulk collection of geolocation information from cell phones. It’s also before the government has interpreted the word “relevance” to justify other massive collection programs (at a minimum, of things like hydrogen peroxide and acetone purchases) involving US persons.

In short, the FISA Court has become a venue not for judges to exercise individualized discretion about probable cause. Rather, it has become the venue in which the government uses the secrecy offered to develop expansive legal interpretations to support vast new spying programs it won’t even tell Americans about. Not only the promise of individualized judicial discretion has been eliminated, so has the very premise that American should know what laws they are subject to.

In June and August of last year, Snowden disclosures led the rest of the world to recognize that the FISC had authorized back door searches without judicial review of programmatic collection, had authorized the bulk collection of data from cell phones (though more limited collection of location data), and had interpreted the word “relevance” to mean “all.”

That is, my argument that the FISC was broken and therefore couldn’t be trusted with matters of life and death came to be accepted by just about everyone, up to and including Administration officials who agreed to make cosmetic (though not functional) changes to the FISC.

Along the way, we have also learned that the government is not complying with Congressional intent with respect to defendants’ rights, meaning the efficacy of the FISC in protecting constitutional rights has avoided the tests it should have had.

Yet the changes we have made — effectively inviting the FISC to call their existing clerks “advocates” to provide the patina of adversarial review — really are no more than cosmetic, and USA Freedumber has aspects that would weaken the FISC even further.

I thought all this had led people to see the folly in using the FISC to judge drone and/or targeted killings.

Nope.

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The CIA’s [redacted] Operations

As you read the Awlaki memo, it’s worth remembering why it was written, after David Barron had already written a memo authorizing Anwar al-Awlaki’s killing 5 months earlier. In April 2010, as newspapers reported that Awlaki had been added to the CIA Kill List (having been added to the JSOC one either in December 2009, before they tried to kill him on Christmas Eve, or in January 2010, when Dana Priest reported it), international law scholar Kevin Jon Heller wrote a blog post arguing that it would be murder for CIA to kill Awlaki.

The Obama administration has been savagely criticized for authorizing the CIA to use lethal forceagainst Anwar al-Awlaki, a US citizen who is allegedly a member of al-Qaeda in Yemen.  Glenn Greewald, for example, has described the decision — justifiably — as “unbelievably Orwellian and tyrannical.”  To date, however, critics have ignored what I think is perhaps the most important point:An American who kills an American outside of the United States is guilty of murder.  Not political murder.  Not figurative murder.  Legal murder.

18 USC 1119:

(a)Definition.— In this section, “national of the United States” has the meaning stated in section 101(a)(22) of the Immigration and Nationality Act (8U.S.C. 1101 (a)(22)).

(b)Offense.— A person who, being a national of the United States, kills or attempts to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country shall be punished as provided under sections 11111112, and 1113.

The foreign-murder statute has to be the starting point of any analysis of the Obama adminstration’s decision to authorize the CIA to kill al-Awlaki.  If the CIA does kill him — and even if it doesn’t; see below — any CIA operative involved in the killing who is American is presumptively a murderer.  The only questions would be (1) whether for some reason 18 USC 1119 would not apply, and (2) whether the CIA operative would have a plausible defense if he was charged with murder in federal court.

In response to this post, David Barron felt the need to reconsider the question.

The main point was to determine whether the CIA — not the government generally — could kill Awlaki.

And the memo seems to betray uncertainty about whether they’ve really proved their case.

Consider the length. Barron takes 10.5 pages to consider whether DOD could kill Awlaki, and somewhat unsurprisingly finds that soldiers whose job it is to kill the country’s enemies can kill someone who has been deemed an enemy to his country.

Barron spends just 5 pages considering the far more controversial question whether CIA can kill Awlaki. As was pretty clear Barron would do from the White Paper, he does so by collapsing the difference between soldiers (whose job is to kill our enemies) and CIA (who are prohibited from breaking US law and whose job is not, primarily, to kill our enemies). That is, the argument in favor of soldiers killing stands in for a considered argument for spies killing.

It seems to accomplish this by classifying CIA’s actions as military — though the classification is redacted. See this passage from page 18:

Screen shot 2014-06-23 at 4.24.44 PM

And this passage from page 32:

Screen shot 2014-06-23 at 4.28.11 PM

Given debates that took place afterwards, I think the redacted language may either describe CIA’s actions as Traditional Military Activities or paramilitary activities. It appears by labeling the CIA’s job as such, Barron disappeared the other rules that govern CIA action. But his language in this footnote, doesn’t reflect great confidence his argument is very strong.

We note, in addition, that the “lawful conduct of war” variant of the public authority justification, although often described with specific reference to operations conducted by the armed forces, is not necessarily limited to operations by such forces; some descriptions of that variant of the justification, for example, do not imply such a limitation. See, e.g., Frye, 10 Cal. Rptr. 2d at 221 n.2 (“homicide done under a valid public authority, such as execution of a death sentence of killing an enemy in a time of war”); Perkins & Boyce, Criminal Law at 1093 (“the killing of an enemy as an act of war and within the rules of war.”)

Barron’s confidence in footnote 44 — especially where he argues that the US doesn’t think that unprivileged combatants (which include both CIA and al Qaeda members operating not in uniform) engaging in killing violates the law — appears even more shaky. If that’s true, then someone should go free Omar Khadr, because we argued that his self-defense attempted killing of Americans was illegal solely because he was unprivileged.

That is, it doesn’t appear even Barron believes his own argument.

One other thing that appears to be redacted is the authority for CIA’s actions, in the redacted language following “the CIA would carry out in accord with” …

That language probably refer to the Presidential Finding required before CIA engages in covert operations. That is, critical to this argument appears to be the formula that if the President deems the CIA a military force (and gives them drones) then they get treated — at least according to US law — just like soldiers, even when they’re killing Americans. 

That involves an extra step to the formula “if the President authorizes it,” requiring also that he call CIA spies soldiers. But it still amounts to the same argument.

 

Working Thread: The Awlaki Memo

The Awlaki Memo has just been released. This post will be a working thread. Note, page numbers will be off the page numbers of the memo itself (starting at PDF 61).

Pages 1-11: Barron takes 11 pages to lay out both the claims the government made about Anwar al-Awlaki and the request for an opinion. All of that is redacted.

Page 12: This memo is particularly focused on 18 USC 1119, which OLC only treated because Kevin Jon Heller raised it in a blog post. Note that OLC splits its consideration of whether DOD could kill Awlaki (which it probably could) from its consideration whether CIA could (which is far more controversial). The memo seems to have been written so as to authorize both DOD and CIA to carry out the operation, whichever got around to it. Also note the memo assumes the earlier Barron memo that authorizes this secret due process gimmick.

Page 13: OLC’s analysis is closely tied to legislative history, which is fine. Except that DOJ routinely ignores legislative history when it doesn’t serve its purposes.

Page 15: Footnote 12 argues that after invoking public authority jurisdiction the government doesn’t have to say what happened to the law:

There is no need to examine whether the criminal prohibition has been repeated, impliedly or otherwise, by some other statute that might potentially authorize the governmental conduct, including teh authorizing statute that might supply the predicate for the assertion of the public authority justification itself.

Nothing is cited to defend this proposition. It seems like a giant hole in the opinion, though I await the lawyers to tell me whether that’s the case.

Page 15: Note the government has redacted all the other memos listed in Fn14 where it has exempted itself from criminal law.

Page 16: The government only leaves Nardone unredacted in FN15 among laws where Congress has limited Congressional action. That seems … odd.

Page 17: Note that part of FN 20 is redacted. This seems to justify other claims OLC made that something wasn’t illegal.

Page 18: Note the redaction describing the kind of CIA operation here. I’d be curious whether it used Traditional Military Activities or paramilitary, as the distinction is a crucial one but one that often gets ignored.

Page 19: Note how the language on “jettison[ing] public authority justification” as if it existed prior to 1119 for both DOD and CIA.

Page 19: This is likely one reason why Ron Wyden keeps asking for more specifics:

Instead, we emphasize the sufficiency of the facts that have been represented to us here, without determining whether such facts would be necessary to the conclusion we reach.

Page 21: Note that one of the things OLC concludes — rather than restates — in the redacted 11 pages that start the opinion is the AUMF language. It appears by reference in this form.

And, as we have explained, supra at 9, a decision-maker could reasonably conclude that this leader of AQAP forces is part of al-Qaida forces. Alternatively, and as we have further explained, supra at 10 n 5, the AUMF applies with respect to forces “associated with” al-Qaida that are engaged in hostilities against the U.S. or its coalition partners, and a decision-maker could reasonably conclude that the AQAP forces of which al-Aulaqi is a leader are “associated with” Al Qaeda forces for purposes of the AUMF.

Two things about this: by this point (July 2010), the government had already gotten away with this “associated forces” claim in Gitmo habeas filings. But if that’s what they rely on, why not leave it unredacted? (Note, they do cite it on the next page, but not in this discussion.)

Continue reading

Government Appears to Be Trying to Hide 3 Other OLC Memos in the Awlaki Memo

The Government is trying to quasi appeal the 2nd Circuit’s order to turn over information on the Awlaki killing (in part, it appears, to claim the CIA was not involved in the killing after all!). It appears to be hiding a number of references to other OLC memos (and one memorandum that may not be from OLC and another to OLC). Among the other things it lists that the 2nd Circuit said should be released but which the government would like censored are the following:

  • the citation to and description of an OLC memorandum cited at page [redacted]
  • the citation to and description of an OLC memorandum cited at pages [redacted]
  • a citation to a memorandum to OLC at page [redacted]
  • the citation and description of a memorandum at page [redacted]

[snip]

  • the citation to and description of an OLC memorandum at pages 16 nn. 14 & 16

Admittedly it’s possible the three references to the memos are to the same memo, but from the syntax it doesn’t sound like it. The thing is, the government gets to hide OLC memos by claiming they weren’t finalized. But if the government is citing them in a finalized memo, then it is relying on them. Then they’re finalized, aren’t they?

Obama to Release OLC Memo after Only 24 Congressional Requests from 31 Members of Congress

Congratulations to Rand Paul, who, having made request number 24, has finally gotten the Administration to agree to publicly release the OLC memo authorizing the drone killing of Anwar al-Awlaki.

Here, for posterity, is a record of the at least 24 requests from at least 31 members of Congress for this memo.


 

February 2011: Ron Wyden asks the Director of National Intelligence for the legal analysis behind the targeted killing program; the letter references “similar requests to other officials.” (1) 

April 2011: Ron Wyden calls Eric Holder to ask for legal analysis on targeted killing. (2)

May 2011: DOJ responds to Wyden’s request, yet doesn’t answer key questions.

May 18-20, 2011: DOJ (including Office of Legislative Affairs) discusses “draft legal analysis regarding the application of domestic and international law to the use of lethal force in a foreign country against U.S. citizens” (this may be the DOJ response to Ron Wyden).

October 5, 2011: Chuck Grassley sends Eric Holder a letter requesting the OLC memo by October 27, 2011. (3)

November 8, 2011: Pat Leahy complains about past Administration refusal to share targeted killing OLC memo. Administration drafts white paper, but does not share with Congress yet. (4) 

February 8, 2012: Ron Wyden follows up on his earlier requests for information on the targeted killing memo with Eric Holder. (5)

March 7, 2012: Tom Graves (R-GA) asks Robert Mueller whether Eric Holder’s criteria for the targeted killing of Americans applies in the US; Mueller replies he’d have to ask DOJ. Per his office today, DOJ has not yet provided Graves with an answer. (6) 

March 8, 2012: Pat Leahy renews his request for the OLC memo at DOJ appropriations hearing.(7)

June 7, 2012: After Jerry Nadler requests the memo, Eric Holder commits to providing the House Judiciary a briefing–but not the OLC memo–within a month. (8)

June 12, 2012: Pat Leahy renews his request for the OLC memo at DOJ oversight hearing. (9)

June 22, 2012: DOJ provides Intelligence and Judiciary Committees with white paper dated November 8, 2011.

June 27, 2012: In Questions for the Record following a June 7 hearing, Jerry Nadler notes that DOJ has sought dismissal of court challenges to targeted killing by claiming “the appropriate check on executive branch conduct here is the Congress and that information is being shared with Congress to make that check a meaningful one,” but “we have yet to get any response” to “several requests” for the OLC memo authorizing targeted killing. He also renews his request for the briefing Holder had promised. (10)

July 19, 2012: Both Pat Leahy and Chuck Grassley complain about past unanswered requests for OLC memo. (Grassley prepared an amendment as well, but withdrew it in favor of Cornyn’s.) Leahy (but not Grassley) votes to table John Cornyn amendment to require Administration to release the memo.

July 24, 2012: SSCI passes Intelligence Authorization that requires DOJ to make all post-9/11 OLC memos available to the Senate Intelligence Committee, albeit with two big loopholes.

December 4, 2012: Jerry Nadler, John Conyers, and Bobby Scott ask for finalized white paper, all opinions on broader drone program (or at least a briefing), including signature strikes, an update on the drone rule book, and public release of the white paper.

December 19, 2012: Ted Poe and Tredy Gowdy send Eric Holder a letter asking specific questions about targeted killing (not limited to the killing of an American), including “Where is the legal authority for the President (or US intelligence agencies acting under his direction) to target and kill a US citizen abroad?”

January 14, 2013: Wyden writes John Brennan letter in anticipation of his confirmation hearing, renewing his request for targeted killing memos. (11)

January 25, 2013: Rand Paul asks John Brennan if he’ll release past and future OLC memos on targeting Americans. (12)

February 4, 2013: 11 Senators ask for any and all memos authorizing the killing of American citizens, hinting at filibuster of national security nominees. (13)

February 6, 2013: John McCain asks Brennan a number of questions about targeted killing, including whether he would make sure the memos are provided to Congress. (14)

February 7, 2013Pat Leahy and Chuck Grassley ask that SJC be able to get the memos that SSCI had just gotten. (15)

February 7, 2013: In John Brennan’s confirmation hearing, Dianne Feinstein and Ron Wyden reveal there are still outstanding memos pertaining to killing Americans, and renew their demand for those memos. (16)

February 8, 2013: Poe and Gowdy follow up on their December 19 letter, adding several questions, particularly regarding what “informed, high level” officials make determinations on targeted killing criteria.

February 8, 2013: Bob Goodlatte, Trent Franks, and James Sensenbrenner join their Democratic colleagues to renew the December 4, 2012 request. (17)

February 12, 2013: Rand Paul sends second letter asking not just about white paper standards, but also about how National Security Act, Posse Commitatus, and Insurrection Acts would limit targeting Americans within the US.

February 13, 2013: In statement on targeted killings oversight, DiFi describes writing 3 previous letters to the Administration asking for targeted killing memos. (18, 19, 20)

February 20, 2013: Paul sends third letter, repeating his question about whether the President can have American killed inside the US.

February 27, 2013: At hearing on targeted killing of Americans, HJC Chair Bob Goodlatte — and several other members of the Committee — renews request for OLC memos. (21)

March 11, 2013: Barbara Lee and 7 other progressives ask Obama to release “in an unclassified form, the full legal basis of executive branch claims” about targeted killing, as well as the “architecture” of the drone program generally. (22)

April 10, 2013: Bob Goodlatte and John Conyers send Obama a letter threatening a subpoena if they don’t get to see the drone killing memos. (23)

March 27, 2014: Alan Grayson holds hearing with drone victim, calls for more transparency over decision making.

April 21, 2014: 2nd Circuit orders Administration to release redacted version of OLC memo to ACLU and NYT.

May 5, 2014: Rand Paul issues veto threat for David Barron’s confirmation unless Administration releases OLC memo (already ordered for release by 2nd Circuit). (24)

May 20, 2014: The Most Transparent Administration Evah™ announces it will release (what is certain to be a highly redacted version of) the OLC memo.


Members of Congress who requested the memo:

  1. Ron Wyden
  2. Dianne Feinstein
  3. Saxby Chambliss
  4. Chuck Grassley
  5. Pat Leahy
  6. Tom Graves
  7. Jerry Nadler
  8. John Conyers
  9. Bobby Scott
  10. Ted Poe
  11. Trey Gowdy
  12. Rand Paul
  13. Mark Udall
  14. Dick Durbin
  15. Tom Udall
  16. Jeff Merkley
  17. Mike Lee
  18. Al Franken
  19. Mark Begich
  20. Susan Collins
  21. John McCain
  22. Bob Goodlatte
  23. Trent Franks
  24. James Sensenbrenner
  25. Barbara Lee
  26. Keith Ellison
  27. Raul Grijalva
  28. Donna Edwards
  29. Mike Honda
  30. Rush Holt
  31. James McGovern

How David Barron Played Judge and Jury for Anwar al-Awlaki

Rand Paul has gone and united drone apologists and opponents with an op-ed explaining his opposition to David Barron’s confirmation without full transparency on the drone memos Barron wrote. It’s a good op-ed, though the only new addition from what he has said before is that any other drone memos Barron has written ought to be on the table as well.

It’s Ben Wittes’ and David Cole’s responses that I’m reluctantly interested in.

In addition to a lot of “trust me I know the man” defenses from Cole that I find utterly inappropriate for a lifetime appointment, both Cole and Wittes argue we’ve already seen the “Administration’s” logic on drone killing, so we have no need to see the memo itself. Cole cautiously doesn’t characterize what that standard is in his defense.

Second, the administration has in fact made available to all Senators any and all memos Barron wrote concerning the targeting of al-Awlaki – the core of the issue Sen. Paul is concerned about.  So if Sen. Paul and any other Senator want to review Barron’s reasoning in full, they are free to do so.  Moreover, the administration also made available to the Senate, and ultimately to the public, a “White Paper” said to be drawn from the Barron memo (though written long after he left office).  Thus, no Senator need be in the dark about the Administration’s reasoning, and the public also has a pretty good idea as well.

Wittes, less wisely, does.

This idea of a trial in absentia followed by drone strike as a means of effectuating a death sentence is novel—and very eccentric. Paul never seeks to explain why wartime authorities are inappropriate for dealing with a senior operational leader of an enemy force who is actively plotting attacks on the United States. 

[snip]

The legal standard for targeting a U.S. citizen the administration has embraced is limited to U.S. citizens (1) who are operational leaders of AUMF-covered groups, (2) who pose an imminent threat, (3) whose capture is not feasible, and (4) whose targeting is consistent with the law of armed conflict. Suspects in Germany or Canada or any other governed space would almost surely be feasible to capture and if not, because in a hostage-like situation, would be dealt with by law enforcement, including using law enforcement’s powers at times to use lethal force. The definition of the group of citizens covered is so narrow, in reality, that it has so far described a universe of exactly one person—Al Awlaki—whom the administration has claimed the authority to target.

Wittes, you see, is certain that not only did the Administration have evidence Anwar al-Awlaki was a “senior operational leader” of AQAP by the time they executed him, but they had that evidence by July 2010 when Barron signed a memo saying that the specific circumstances at hand justified killing Awlaki. But even if he’s seen it via some magic leak, the public has not.

As I’ve noted repeatedly — and as Lawfare has been sloppy about in the past — at the time Barron signed off on Awlaki’s execution, one of the chief pieces of evidence against Awlaki — a confession Umar Farouk Abdulmutallab had given as a proffer in a plea deal that never got consummated – was undermined by Abdulmutallab’s previous confession and other evidence (and would be undermined further, just days after Awlaki’s execution, when Abdulmutallab pled guilty without endorsing the claims about Awlaki included in that confession).

Now, I suspect the government didn’t present that nuance to Barron when he wrote his memo (just as the government lied to John Yoo and a series of other OLC lawyers as they wrote torture memos). I imagine the memo starts with a caveat that says, “Assuming the facts are as you present them and no other facts exist,” absolving Barron in case the government presented only partial evidence or worse, as it appears to often do in the case of OLC memos.

But it is possible that the government gave Barron really nuanced information, and he nevertheless rubber stamped this execution, in spite of the possibility that the case Awlaki was a senior operational official of AQAP by that point was overstated. It’s possible too that there’s a great deal of evidence to counterweigh the very contradictory information on the chief claim in the public record and absent any contrary evidence Barron thought it was a conservative legal decision.

One way or another, Barron participated in a tautological exercise in which the government presented unchallenged evidence showing that Awlaki was a senior operational leader that then served as justification for setting aside due process and instead having OLC — Barron – weigh whether or not Awlaki was a senior operational leader who could be executed with no due process.

This is why (egads) Paul is right and Wittes is wrong. Because the idea of a trial before you execute an American citizen is in fact the rule, and the idea of having an OLC lawyer judge all this in secret is in fact the novelty. It doesn’t matter whether the case laid out against Awlaki applies to him and him alone (though I doubt it does; I doubt it applies as well as supporters say, and complaints about the lack of specificity of it makes it clear it could too easily be applied for others).

But the big underlying point — and the reason why Cole and Wittes’ claim that Barron can’t be held to account here, only the Administration whose policy he reviewed can be, is wrong — is that tautology. What the memo shows and the white paper does not is that Barron was provided evidence against Awlaki and he willingly played the role of both saying that the underlying legal logic (what we see in the white paper) was sound but that the evidence in this case (what we haven’t seen in the memo) made this departure from due process sound. Barron signed off on both the logic and the evidence justifying that logic itself.

And for me, that’s enough. That’s enough to disqualify him — no matter how liberal or brilliant he is, both qualities I’d like to see on a bench — as a judge.

That’s enough for me. But those who want to push Barron through anyway ought to consider what they would need to show to prove that Barron’s decision was reasonable: the evidence Barron saw that he believed sufficient (and unquestionable, given the absence of rebuttal) to authorize a due-process free execution. It’s unlikely we’ll ever get that evidence, because the government won’t declassify it.

That’s the problem with this nomination, one way or another. No matter how sound the underlying logic, Barron played another role in Awlaki’s execution, certifying that the evidence merited getting to the underlying logic of denying a US citizen due process. Barron both approved an entirely parallel system to replace due process, and played the judge in that system.

Update: Katherine Hawkins reminds me that when David Cole wrote about the white paper shortly after it got released, he had trouble with precisely the thing he has no trouble now.

The white paper addresses the legality of killing a US citizen “who is a senior operational leader of al-Qaeda or an associated force.” Such a person may be killed, the document concludes, if an “informed, high-level official” finds (1) that he poses “an imminent threat of violent attack against the United States;” (2) that his capture is not feasible; and (3) the operation is conducted consistent with law-of-war principles, such as the need to minimize collateral damage.  However, the paper offers no guidance as to what level of proof is necessary: does the official have to be satisfied beyond a reasonable doubt, by a preponderance of the evidence, or is reasonable suspicion sufficient? We are not told.

Nor does the paper describe what procedural safeguards are to be employed. It only tells us what is not required: having a court determine whether the criteria are in fact met.

What determines whether that standard has been met is the same OLC lawyer who determined that such a standard would be appropriate.

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