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If POTUS Can Order Assassination of US Citizen w/No Due Process, Can He Order Torture, Too?

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Glenn Greenwald and Mark Mazzetti tell the story of 19-year old American citizen Gulet Mohamed who was taken into custody by the Kuwaitis after the US, while Mohamed was staying with an uncle in Kuwait, put him on the no-fly list. In the two weeks the Kuwaitis have held him, Mohamed says he was subjected to:

  • Physical beatings of his feet with sticks
  • Stress positions
  • Sleep deprivation
  • Exposure to cold
  • Threats of electrical shock
  • Threats to his mother

In other words, this US citizen, held by a close ally after coming up on a review of the no-fly list, was subjected to some of the worst kinds of torture that President Obama has purportedly ended.

Over the course of his interrogation, an official from the US Embassy and agents from the FBI visited him.

What seems to have happened is that the government, seeing a young Muslim kid from Virginia travel to Yemen (to study for a brief period of time) and Somalia (to stay with family), decided he must have ties to Anwar al-Awlaki (remember that Awlaki once preached at a Virginia mosque). They may have tried to contact him via someone claiming to know Mohamed from his mosque in Virginia. When Mohamed said he didn’t know that person, he was picked up when he went to the airport to renew his Kuwaiti visa. His Kuwaiti interrogators (though some spoke English) asked him whether he had met with Awlaki or other militants.

“Are you a terrorist?” they asked, according to his account.

“No,” he replied.

“Do you know Anwar?” his interrogators asked, referring to Mr. Awlaki.

“I’ve never met him,” Mr. Mohamed recalled saying.

“You are from Virginia, you have to know him,” they responded, according to Mr. Mohamed. From 2001 to 2002, Mr. Awlaki was the imam of a prominent mosque in northern Virginia.

And in response to his answers that he hadn’t met with Awlaki or other militants, they tortured him, accusing him of lying.

I assume when asked whether they ordered up this interrogation, and whether or not they knew it would involve torture, the government will “pretend” they are shocked that a close ally engaged in such treatment. I assume they will disavow any role in the torture, at the hands of our allies, of a US citizen.

Either that, or they’ll just invoke state secrets, as they did when Anwar al-Awlaki’s family sued to find out the authority the President has relied upon to order the assassination of an American citizen.

Hatfill and Wen Ho Lee and Plame and al-Awlaki and Assange

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Last night I appeared on a panel on the Scooter Libby case. It was Judge Reggie Walton, Peter Zeidenberg, Alexandra Walsh from the Libby team, Lee Levine (who represented Andrea Mitchell and Tim Russert), Walter Pincus and I.

The panel itself was good. My high point came after Walsh had explained why the Defense had argued that bloggers might embarrass the nice people who had written leniency letters for Libby. I said, “well I was flattered we were considered such a threat. But there were at least three people who submitted letters who were implicated in the case. And I was shocked that I was one of only two or three people who demonstrated the many conflicts of those who wrote letters.”

But I also had several weird moments when we were talking about reporter’s privilege, when I was acutely aware that I was sitting between Judge Walton–who had forced journalists to reveal who had blamed Steven Hatfill for the anthrax case [see Jim White’s post for an update on the anthrax case]–and Walter Pincus–who said he had had eight or nine sources for his stories implicating Wen Ho Lee in security leaks. Walton made the very good point that if he hadn’t held AP reporter Toni Locy in contempt, then Hatfill might not have gotten the huge settlement he did for having had DOJ ruin his life. Walton’s comment suggested he had had to choose between reporter’s privilege or government impunity for attacking one of its citizens.

The collection of people sitting there had all touched on three major cases recently where the government had ruined civil servant’s lives and then hid behind reporter’s privilege to try to get away with it.

I had that in mind when I read this Jay Rosen piece, in which he suggests the behavior best incarnated by the Judy Miller-Michael Gordon aluminum tubes story created the need for Wikileaks.

The aluminum tube story, Rosen suggests, marks the moment when top journalists came to see their role as simply repeating what the government said.

This was the nadir. This was when the watchdog press fell completely apart: On that Sunday when Bush Administration officials peddling bad information anonymously put the imprimatur of the New York Times on a story that allowed other Bush Administration officials to dissemble about the tubes and manipulate fears of a nuclear nightmare on television, even as they knew they were going to war anyway.

The government had closed circle on the press, laundering its own manipulated intelligence through the by-lines of two experienced reporters, smuggling the deed past layers of editors, and then marching it like a trained dog onto the Sunday talk shows to perform in a lurid doomsday act.

Rosen argues that the NYT was not only on the wrong side of the facts with that story, but also on the wrong side of secrecy.

But it has never been recognized that secrecy was itself a bad actor in the events that led to the collapse, that it did a lot of damage, and that parts of it might have to go. Our press has never come to terms with the ways in which it got itself on the wrong side of secrecy as the national security state swelled in size after September 11th. (I develop this point in a fuller way in my 14-min video, here.)

The failures of skepticism back then, Rosen argues, creates the need or opportunity for Julian Assange today.

Radical doubt, which is basic to understanding what drives Julian Assange, was impermissible then. One of the consequences of that is the appeal of radical transparency today

Now, I think Rosen actually misses a key step here: from where the press sees itself as the neutral conduit of what the government is thinking, to where the press thinks its leaks from the government can stand-in for due process in the Anwar al-Awlaki case, and from there to Assange. Read more →

As Expected, Judge Bates Punts on Rule of Law

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I almost felt like I was reading Judge John Bates’ ruling on whether or not Valerie Plame could sue those who outed her when I read Judge Bates’ ruling dismissing the suit challenging the government’s ability to assassinate Anwar al-Awlaki with no due process.

He starts by admitting the importance of the issues at hand.

This is a unique and extraordinary case. Both the threshold and merits issues present fundamental questions of separation of powers involving the proper role of the courts in our constitutional structure. Leading Supreme Court decisions from Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), through Justice Jackson’s celebrated concurrence in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), to the more recent cases dealing with Guantanamo detainees have been invoked to guide this Court’s deliberations. Vital considerations of national security and of military and foreign affairs (and hence potentially of state secrets) are at play.

Stark, and perplexing, questions readily come to mind, including the following: How is it that judicial approval is required when the United States decides to target a U.S. citizen overseas for electronic surveillance, but that, according to defendants, judicial scrutiny is prohibited when the United States decides to target a U.S. citizen overseas for death? Can a U.S. citizen — himself or through another — use the U.S. judicial system to vindicate his constitutional rights while simultaneously evading U.S. law enforcement authorities, calling for “jihad against the West,” and engaging in operational planning for an organization that has already carried out numerous terrorist attacks against the United States? Can the Executive order the assassination of a U.S. citizen without first affording him any form of judicial process whatsoever, based on the mere assertion that he is a dangerous member of a terrorist organization? How can the

courts, as plaintiff proposes, make real-time assessments of the nature and severity of alleged threats to national security, determine the imminence of those threats, weigh the benefits and costs of possible diplomatic and military responses, and ultimately decide whether, and under what circumstances, the use of military force against such threats is justified? When would it ever make sense for the United States to disclose in advance to the “target” of contemplated military action the precise standards under which it will take that military action? And how does the evolving AQAP relate to core al Qaeda for purposes of assessing the legality of targeting AQAP (or its principals) under the September 18, 2001 Authorization for the Use of Military Force?

But then he punts entirely on standing grounds.

Although these threshold questions of jurisdiction may seem less significant than the questions posed by the merits of plaintiff’s claims, “[m]uch more than legal niceties are at stake here” — the “constitutional elements of jurisdiction are an essential ingredient of separation and equilibration of powers, restraining the courts from acting at certain times, and even restraining them from acting permanently regarding certain subjects.”

[snip]

Because these questions of justiciability require dismissal of this case at the outset, the serious issues regarding the merits of the alleged authorization of the targeted killing of a U.S. citizen overseas must await another day or another (non-judicial) forum.

But just for good measure, Bates says he would rule in the government’s favor on state secrets, but doesn’t need to.

So, too, defendants have established that the three procedural requirements for invocation of the state secrets privilege — (1) a formal claim of privilege (2) by an appropriate department head (3) after personal consideration — have been satisfied here. See Reynolds, 345 U.S. at 7-8; Jeppesen Dataplan, 614 F.3d at 1080; Defs.’ Mem. at 48-50.[snip]

Under the circumstances, and particularly given both the extraordinary nature of this case and the other clear grounds for resolving it, the Court will not reach defendants’ state secrets privilege claim. That is consistent with the request of the Executive Branch and with the law, and plaintiff does not contest that approach. Indeed, given the nature of the state secrets assessment here based on careful judicial review of classified submissions to which neither plaintiff nor his counsel have access, there is little that plaintiff can offer with respect to this issue.17 But in any event, because plaintiff lacks standing and his claims are non-justiciable, and because the state secrets privilege should not be invoked “more often or extensively than necessary,” see Jeppesen Dataplan, 614 F.3d at 1080, this Court will not reach defendants’ invocation of the state secrets privilege.

It was nice of Bates to save the Obama Administration the embarrassment of invoking state secrets to hide the logic for its tyranny.

All in all, a tremendous victory for unchecked executive powers!

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Government Trying to Fudge on Its Claim to Absolute Power

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I’m working on a post on the news that DOJ will not charge Jose Rodriguez for destroying the torture tapes. But that’s going to take a while (read the NYT on the news in the meantime).

In the meantime, though, I wanted to point to Adam Serwer’s summary of yesterday’s hearing on the Anwar al-Awlaki suit. The most amusing detail in Adam’s story is that the government only wants to rely on its invocation of State Secrets as a fallback position.

Letter explicitly asked Bates to dismiss the lawsuit on state-secrets grounds only as a last resort.

See?!? They have some shame about their abuse of executive power, even if they’re going to rely on it anyway.

The most important issue, IMO, pertains to standing–I have already suggested that Judge Bates might reject the suit for lack of standing, not least because it’s the easiest way to punt. Adam suggests that Bates was thoroughly uninterested in one of two potential ways to establish standing.

The ACLU/CCR contends they have standing under two criteria, “Next Friend” and “Third Party.” Meeting the standard under “Next Friend” requires the ACLU/CCR to show that the younger al-Awlaki would want to sue but can’t, while “Third Party” demands that the elder al-Awlaki show that he would “suffer a concrete, redressable injury” from the government’s actions. Although Ben Wittes, who was also there, would disagree with me, I think Bates was more sympathetic to “Next Friend” than he was to the “Third Party” question, as he warned the latter could lead to a flood of lawsuits based on government action, and an “unprincipled landscape” in which judges arbitrarily decide standing based on the plaintiffs they’re sympathetic to.

But perhaps the most dramatic part of the hearing appears to have been when Jameel Jaffer stood up and stated that this suit was about whether or not the President can order the assassination of a citizen with no review. I actually differ with Adam’s take on some of this.

There was an exchange at the end of arguments that, beyond the legalese, really crystallized what this case is about. Both sides had offered their final rebuttals, but ACLU attorney Jameel Jaffer stood again and stated that the lawsuit was really about whether the president possesses an “unreviewable authority to order the assassination of an American citizen.” It moved Bates to ask Letter if he wanted to respond.

[DOJ Attorney Douglas] Letter rose and called Jaffer’s statement “absurd” and “ridiculous” but what followed was less convincing. He pointed out that the AUMF limits the president to overseas operations, that al-Awlaki was part of an “officially designated” terrorist group who was “attempting to carry out operations” against Americans.The fact that al-Awlaki had just released a new video calling for Muslims to kill Americans probably weighed on reporters in the courtroom.

Only the first of Letter’s statements is beyond dispute. The other two concern unproven — but not necessarily inaccurate — assumptions of fact that go to the heart of the case: whether or not al-Awlaki is actually an “operational leader” of al-Qaeda in the Arabian Peninsula or simply a vicious hatemonger who justifies and exhorts terrorism against Americans. The government is actually saying that its unilateral determination that the latter two assumptions are accurate that allow the government to deprive al-Awlaki of life without due process.

First, note that Letter’s claim that al-Awlaki was part of an “officially designated” terrorist group is a bunch of baloney. He is now part of that group, at least according to the unproven allegations of the government. But the State Department didn’t get around to designating al Qaeda in the Arabian Peninsula as such until several weeks after they had put al-Awlaki on the JSOC kill list (though he was not yet on the CIA kill list), so the suggestion that the President would only target someone formally designated a terrorist for assassination is a lie.

But the other claim–that the AUMF only covers operations overseas–is even sillier.

Consider: the government has not yet withdrawn the White Paper retroactively authorizing the illegal wiretap program under the AUMF. Thus, DOJ still supports claims that the AUMF authorized the President–any President–to conduct operations (in that case, military operations in the form of NSA wiretapping) in the United States.

Mind you, Tom Daschle has made it clear that Congress specifically refused to grant the President authority to operate in the United States. But so long as DOJ supports that White Paper, they stand by a public claim that the AUMF authorized the President to operate within the US.

So Jaffer is right: there’s nothing about Douglas Letter’s claims that rebut Jaffer’s argument that this is about whether the President can unilaterally assassinate an American citizen. As Adam has shown, simply asserting someone is a member of a terrorist organization does not make the assertion any less unilateral. And Letter’s claims that the AUMF does not authorize operations in the United States seems to ignore DOJ policy that supports just such a claim.

CIA and DOJ’s Different Ideas of Accountability on Khost

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I wanted to return to yesterday’s report on the investigation in the Khost bombing. As I noted, the CIA had advance warning that Humam Khalil Abu-Mulal al-Balawi might be a double agent. The report also found a number of other operational problems in al-Balawi’s treatment. But Leon Panetta decided not to hold anyone responsible for the attack.

Now let’s return to another curious detail about the Khost bombing.

The CIA is not holding anyone responsible.

But DOJ is.

As I noted last month, DOJ is using Hakimullah Mehsud’s involvement in the Khost bombing–the DOJ has videos of Mehsud talking about the attack with al-Balawi in advance of the bombing–as its basis for indicting him on conspiracy charges.

It’s not that I mind DOJ indicting Mehsud. They say they’ve got evidence linking him to Faisal Shahzad’s attempted Time Square bombing. And if they do, I’d love to see them indict and try Mehsud on that count.

But it’s a tremendous stretch to argue that Mehsud’s conspiracy with al-Balawi to strike the CIA officers who were targeting Pakistan with drone strikes was illegal. Either the CIA officers must be treated as civilians, in which case they should not be launching drones at people like Mehsud’s brother, whom they killed in a drone attack. Or they are legitimate military targets, in which case any involvement from Mehsud seems to have been a legitimate act of self-defense (hell, regardless of their civilian status, he could probably legitimately claim self-defense in any case).

Mind you, they’ll probably end up taking Mehsud out the same way the took his brother, with a drone, making any indictment moot. But it all seems to suggest that at its higher levels, at least, we’re running this war on terror motivated primarily by our own insecurities, latching onto things that most shame us, rather than any consistent approach. We’ve got to avoid accountability at CIA for some obvious failures because we don’t want to be critical of the dead (or note the mistakes of more senior officers). But we’ve got to use the same event as reason to label the self-defense of an opponent as a crime.

Which seems to be the same thing going on with Fox’s story that Anwar al-Awlaki dined at the Pentagon after 9/11 (at a luncheon in Jim Haynes’ Office of General Counsel!). The fear-mongerers seem to want to suggest this was another big lapse in our vetting system (and maybe it was), as if to suggest that al-Awlaki in 2001 is in the same place he allegedly is now. The FBI was investigating this lunch subsequent to Nidal Hasan’s Fort Hood attack (the 302 is dated November 23, 2009, so at about the time when Yemen asked us to take out al-Awlaki, but probably before he was reportedly put on JSOC’s kill list, which may have happened in December). And leak of this news seems to be part of an effort to suggest the government missed an obvious threat long before Fort Hood. But that’s not at all clear.

Woodward’s Secrets

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Jeebus: Goldsmith may be getting a hang of this blogging thing, but I’m not: John Rizzo, not John Brennan. So the stuff I originally said about Brennan doesn’t make any sense.

I may not always agree with Jack Goldsmith, but he’s getting a hang of this blogging thing. Today, he posts the answer John Brennan gave him to the question of how Bob Woodward got very specific details of a meeting that a number of Obama’s top advisors had to leave because they didn’t have the appropriate clearance.

The first Chapter of Bob Woodward’s Obama’s Wars describes Barack Obama’s first post-election intelligence briefing from Director of National Intelligence Mike McConnell, on November 6, 2008.  The chapter shows McConnell, at the direction of President Bush, excluding many Obama aides (including Clinton Chief of Staff John Podesta and former Deputy National Security Advisor James Steinberg) from the briefing.  Because the briefing contained highly classified information about “sources and methods,” McConnell explained, only those “designated to take a top national security cabinet post” could attend.   Woodward then recounts this highly classified intelligence briefing in great detail, including several highly classified CIA and NSA programs, and their code names.

After reading this chapter, I wondered how a meeting involving classified information so sensitive that a close Obama aide and former top national security official could not attend could the following year be recounted in such loving detail in the first chapter of a best-selling book.  Woodward clearly got his information from participants in the meeting or their close aides.  Was it right for these people to speak to Woodward about these matters?  Was it legal?  I sent these questions to John Rizzo, the just-retired thirty-four year veteran CIA lawyer who has seen his share of leaked classified information over the years.

John responded:

Simple.  When a President himself is a key source and directs or at least signals to his Administration to cooperate with the author, that for all intents and purposes means the book becomes one big authorized disclosure. That’s what Obama did for Woodward, and that’s what Bush did for Woodward in his three books during that Administration, which also were packed with hitherto sensitive information.  That’s what is remarkable and unique about Woodward’s standing.

Now, Goldsmith appears offended that Obama and Bush would treat classified information so lightly.

Me, I’m more interested in what this says about Woodward’s (and, while we’re talking about it, Judy Miller’s) position in the information management function.

John Brennan–a guy who oversaw targeting for Cheney’s illegal wiretap program and therefore presumably had the highest clearance in two Administrations–lackadaisically says that if the President wants something leaked, it becomes legal to leak it.

In Judy Miller’s case, we saw how this selective leaking ensured the Administration could declassify its politicized case for war, while ensuring those who disputed the case were kept silent under threat of prosecution.

Woodward is even more interesting. Woodward knew to ask certain pointed questions of Richard Armitage–the same questions, as it turns out, that Bob Novak asked to elicit information about Valerie Plame’s purported role in Joe Wilson’s trip to Niger. But according to John Brennan, at least, even if Richard Armitage leaked Plame’s role intentionally, it would not be illegal. And remember, too, that on July 8 or 9 (this is reflected in notes introduced at trial; you’ll have to take my word for it though, because I don’t have my records with me), the VP’s office did give Woodward detailed information about the Iraq NIE. In other words, we know Woodward was a part of the OVP’s strategy for rebutting Joe Wilson in what was effectively a political hit.

More generally, though, consider what this suggests about the excuse that Cheney was prepared to use for having ordered the leak of Plame’s identity. John Brennan, at least, argues that if the President “signals to his Administration” that he wants certain information out there, it’s legal to leak it. I don’t necessarily buy that, mind you.

But it suggests one of Obama’s key advisors buys off on the idea that it’s cool for the President to selectively declassify information (you know, like leaks to the press about targeting Anwar al-Awlaki, even if you later invoke state secrets about it) for political gain.

A Defense of Tyranny?

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I’m pretty fascinated by this attempt by one of John Cole’s readers to defend the Administration’s stance on assassinating US citizens. It’s fascinating and not a little disturbing, but it deserves a response, if only to clarify precisely what the problem with the Administration’s filing last Friday is.

The reader starts with this:

On Al-Awlaki, what’s your response to the argument that targeted killing of him is allowable, under international law, because he’s been designated by the US and the UN as an “active operational member of AQAP” and, as such, if and only if the US determines he presents an imminent threat, the US can take actions to defend itself against an attack (like, say, the Christmas bombing, in which there’s evidence he was involved in planning) by either capturing or killing him?

For starters, this question misrepresents what the suit tries to do. The suit readily admits that the government has the right to kill someone who presents an imminent threat. The plaintiffs are asking for the judge to prevent the government from killing Anwar al-Awlaki unless he is, in fact, an imminent threat.

Plaintiff seeks 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. Plaintiff also seeks an injunction requiring the government to disclose the standards under which it determines whether U.S. citizens can be targeted for death. [my emphasis]

Moreover, John’s reader misstates the argument the government is making. They refuse to grant that the only legal basis they’d have for assassinating al-Awlaki would be because they had determined him to be an imminent threat and never once argue that he is an imminent threat, particularly not that he, personally, as opposed to AQAP more generally, is 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,

In fact, as I have shown, the government refuses to lay out its entire argument for claiming it has the authority to target al-Awlaki.

Accordingly, although it would not be appropriate to make a comprehensive statement as to the circumstances in which he might lawfully do so, it is sufficient to note that, consistent with the AUMF, and other applicable law, including the inherent right to self-defense, the President is authorized to use necessary and appropriate force against AQAP operational leaders, in compliance with applicable domestic and international legal requirements, including the laws of war.

One thing is clear, though: the government is claiming to have the authority not only through international law (the “imminent threat”), but also the AUMF. But it’s not at all clear the AUMF does grant them that authority (and this is one reason why John’s reader’s appeal to the political branches is so problematic). AQAP was not included in the AUMF. No  one has ever claimed it had a role in 9/11, which is how the AUMF defines the opponent. The decisions on habeas cases have been mixed about whether attenuated connections like AQAP’s are strong enough to be included in the AUMF and because of it, legally detainable. John’s reader just ignores that the primary basis for which the government claims authority to kill al-Awlaki is the AUMF (even if they refuse to say whether AQAP is al Qaeda, or only affiliated with al Qaeda). But that basis is contested.

But let’s set aside the problems with the government’s claim to authority under the AUMF for the moment and focus instead on what John’s reader seems comfortable with: the “imminent threat.” John’s reader seems satisfied that al-Awlaki’s role in the Christmas day bombing makes him an imminent threat. There are two problems with that. First, we have a tradition in this country of requiring the government to prove the allegations it makes against people. Here’s how the government presents this allegation, in James Clapper’s public declaration.

Since late 2009, Al-Aulaqi has taken on an increasingly operational role in AQAP, including preparing Umar Farouk Adbulmutallab [sic], who attempted to detonate an explosive device aboard a Northwest Airlines flight from Amsterdam to Detroit on Christmas Day 2009, for his operation. In November 2009, while in Yemen, Abdulmutallab swore allegiance to the emir of AQAP and shortly thereafter received instructions from al-Aulaqi to detonate an explosive device aboard a U.S. airplane over U.S. airspace.

Particularly given the government’s reported belief, before the Nidal Hasan attack, that al-Awlaki’s activities extended only to First Amendment protected speech, we deserve to know how they determined that his activities since then have become operational. If we know that from classified intercepts, then the government can share them with the Court without disclosing them publicly. If we know that solely through Abdulmutallab’s interrogations, then we deserve to know the circumstances surrounding those interrogations, not least whether Abdulmutallab was promised he would not face the death penalty if he implicated al-Awlaki.

More importantly, we have means to do all this–to have a judge weigh the evidence to make sure the government’s allegations are true. That’s a trial. And for some reason, the government has chosen not to charge al-Awlaki with conspiracy in Abdulmutallab’s crime, and therefore chosen not to expose its evidence to the scrutiny of a judge. I wouldn’t necessarily have much reason to doubt the government’s claims about al-Awlaki, but the government loses a great deal of credibility when they choose not to avail themselves of the means to prove those allegations.

If the case against al-Awlaki is strong enough to kill him, then it ought to be strong enough to prove in a court.

And then there’s the other problem with the claim that al-Awlaki is an “imminent” threat: the timing.

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Is this How the Yemeni-American Partnership Works?

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In my post on the government’s invocation of state secrets to hide the things national security officials have already leaked to the press, I linked to David Ignatius’ largely-overlooked report that Yemen first asked us to target Anwar al-Awlaki, and only thereafter did we get around to targeting him and telling courts they had no business asking why we had done so.

Last October, the Yemeni government came to the CIA with a request: Could the agency collect intelligence that might help target the network of a U.S.-born al-Qaeda recruiter named Anwar al-Aulaqi?

Keep that in mind as you read this story about a Yemeni woman trying to FOIA information about US involvement in her US citizen husband’s abduction in Yemen. (h/t Political Carnival)

As [Sharif Mobley] drank tea on a Sana’a street, eight masked men burst from two white vans and tried to grab him. Terrified, he ran, but was brought crashing to the ground by two bullets to his legs and bundled into one of the vans.

The method of abduction may have been brutal, but it was not the work of a rebel group or criminal gang. Instead, the armed men were Yemeni security agents, and in a set of legal documents seen by Al Jazeera, Mobley’s lawyers allege they were operating on behalf of the US government.

Now, the story only presents the Mobley’s family’s story, in which they claim that while Mobley had had contact with Anwar al-Awlaki, he never had any dealings or awareness of ties to al Qaeda.

“Sharif openly admits that he had been in limited contact with al-Awlaki,” says Cori Crider, Mobley’s  lawyer. “But he categorically denies that he was involved in or aware of any plot or link to al-Qaeda.”

Perhaps Mobley’s family is just spinning, downplaying more developed ties between Mobley and AQAP. Though note that any contact with al-Awlaki would have happened before Al Qaeda in the Arabian Peninsula was designated a terrorist organization, and even then, the government claims that terrorist designation should not limit others’ First Amendment rights to associate with members of designated terrorist groups.

Whether or not Mobley’s story is correct or not, it doesn’t dismiss the other allegation: that someone apparently tied to the US embassy raided the Mobley family home, all while pretending that Yemen–not the US–had sole custody of Mobley.

When she realised her husband was missing, [Mobley’s wife, Nzinga Saba Islam] immediately reported his disappearance to the embassy, where she was told to file a report with Yemeni police.

That night, at 1am, as she lay worrying about what had happened to her husband, the documents say around 15 men burst into the family home. The family were held at gunpoint and searched, while the house was raided and items confiscated.

Nzinga has told lawyers that the following morning she returned to the US embassy. As she waited to file a report about what had happened, she insists that she saw the man who had led the raid on her home wearing a US embassy pass.

“He was, as far as Nzinga could tell, in charge of the raid on her home,” Crider says. “She asked the embassy about him and what he was doing there, but embassy officials never gave her a straight answer.”

The documents allege that embassy officials listened to what Nzinga had to say, and began to question her about her husband’s activities in Yemen. Amongst the items she says they showed her were photographs taken during the raid on the house.

Mind you, none of this would be new. By all appearances, the US has used Pakistan as a proxy for arresting US citizens to avoid granting those citizens the legal rights they otherwise would have.

But the move is troubling, given the appearance that Yemen pushed this crack-down before the US did, and given the US government’s refusal to make public their larger case against al-Awlaki.

Anwar al-Awlaki is very quickly becoming our next surrogate bogeyman in the war on terror (the one designed to distract from the continued freedom of the people who actually targeted us on 9/11). And along with that, the government seems intent on hanging a whole lot more terrorist designations on people–including American citizens–without ever showing the evidence that al-Awlaki himself was operational.

As Axe Slams Rahm from One Side, Greg Craig Slams from the Other

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I trust it’s not a coincidence that at the same time David Axelrod is skewering Rahm from within the White House, Greg Craig is getting picked up on a live mike (oops!) skewering him from the outside.

“The great thing about it, if Rahm goes to run for mayor, is that Eric survived,” Craig said, according to an audio recording of the Sept. 21 event.

The National Law Journal requested a copy of the recording from the law school, and the school provided one. The recording includes Craig’s speech and a question-and-answer session, as well as two and a half minutes of pre-speech banter between Craig and Trevor Morrison, a Columbia law professor who introduced Craig to the audience. They touched on Holder’s relationship with Emanuel and on the case of accused terrorist Ahmed Khalfan Ghailani.

As Craig suggests, Emanuel’s departure would mean Holder will have outlasted an internal rival with whom, according to news reports, Holder has repeatedly clashed on subjects like the venue for trying terrorism suspects. And it would mean Emanuel wouldn’t be around to attempt to force Holder out if tensions flared again.

[snip]

A questioner asked Craig why he left. Craig responded that he did so for “a number of different reasons,” and then he focused squarely on Emanuel.

“One of the reasons was that I did not get along with the chief of staff well,” Craig said, “and I think that the coordination between the White House counsel and the chief of staff is vital to the success of the working of the White House.”

Though, I’d challenge Craig: What good has Holder’s outlasting Rahm done after Friday’s audacious claim to unlimited power? There’s no indication at all that Rahm was pushing Holder to submit a motion basically saying, “the President can kill any American, and he doesn’t have to show the Courts any justification for why, which is good because we can’t even make a good argument to support it.” I mean, sure, Rahm had a big hand in pissing away Obama’s bid to moral standing. But Holder’s DOJ has simply embraced the disdain for law that Rahm handed them and run with it, all on their own now.

The Secrets They’re Keeping Selectively Leaking about Anwar al-Awlaki

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As I noted yesterday (and Glenn has examined at more length), in addition to asserting that the government can target Anwar al-Awlaki … because they said so, the Obama Administration also invoked state secrets in its motion to dismiss the ACLU/CCR suit challenging targeted killings.

The Obama Administration has officially positioned itself to the right of hack lawyer David Rivkin.

But the state secrets invocation is interesting not just because it shows a Democratic Administration out-hacking a noted hack.

For example, I think the invocation shows just how weak they recognize their own argument to be. Consider what Robert Gates (who invoked something newfangled called the “military and state secrets privilege”) and James Clapper described as falling under their invocation of state secrets (Leon Panetta basically said only that CIA could neither confirm nor deny its involvement, which sort of makes me wonder whether CIA really has targeted al-Awlaki or not).

Robert Gates:

A. Intelligence information DoD possesses concerning AQAP and Anwar al-Aulaqi, including intelligence concerning the threat AQAP or Anwar al-Aulaqi pose to national security, and the sources, methods, and analytic processes on which any such intelligence information is based;

B. Information concerning possibly military operations in Yemen, if any, and including criteria or procedures DoD may utilize in connection with such military operations; and

C. Information concerning relations between the United States and the Government of Yemen, including with respect to security, military, or intelligence cooperation, and that government’s counterterrorism efforts.

James Clapper:

A. (U) Intelligence information concerning al-Qaeda and the sources and methods for acquiring that information.

B. (U) Intelligence information concerning AQAP and the sources and methods for acquiring that information.

C. (U) Intelligence information concerning Anwar al-Aulaqi and the sources and methods for acquiring that information.

The Administration is sort of kind of relying on the President’s authority under the AUMF (unless the judge doesn’t buy that argument, in which case the Administration promises to try something else), which states:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

In other words, the Administration is relying on some tie between AQAP and the al Qaeda organization that hit us on 9/11 for its authority to kill an American citizen with no due process. Mind you, it can’t say precisely what that tie is–whether AQAP is al Qaeda or whether it is just closely connected enough to be included under the AUMF. But that’s precisely what it has called a state secret: the evidence of ties between the group against which Congress declared war in 2001 and the group we’re targeting in Yemen.

Effectively, the Executive Branch–with no known support from Congress–is saying we’re at war against AQAP. But it’s also saying no one outside of select people within the Executive Branch (and, presumably, a group of four or maybe eight members of Congress who serve in leadership or on the Intelligence Committees) can see the evidence that proves we’re at war against AQAP.

The President has unilaterally declared war against a group but then said no one can see why he has done so.

And then both Gates and Clapper invoke state secrets over the evidence the government has against al-Awlaki.

Rather than prove to a judge that they even have reasonable suspicion to believe al-Awlaki is part of AQAP, much less enough evidence to execute him, the government has instead asserted that all of that is a state secret. They’ve declared everything al-Awlaki would need to challenge his execution a state secret. Even KSM will be able to see the evidence against him; and he has admitted to killing 3,000 Americans. But American citizen al-Awlaki, whom no one has accused of actually killing anyone, can’t see the same kind of information.

Finally, there’s the tired old sources and methods catch all. We can’t know how the government has collected the evidence it has against al-Awlaki.

Except we already do.

Thanks largely to the efforts of Crazy Pete Hoekstra, we know that the government had wiretaps on al-Awlaki going back at least since December 2008. Al-Awlaki himself has challenged the government to release the intercepts they have on him (which public reports say include correspondence with tens of thousands of people). Al-Awlaki has even made some of that correspondence available himself. But the government says all that is a state secret.

Furthermore, some of the evidence against al-Awlaki appears in court documents, from the public testimony of Umar Farouk Abdulmutallab. The alleged recruitment of Abdulmutallab is one of the key issues the government describes al-Awlaki to have been involved in. That information is public. Yet the government also says it is a state secret.

And if all this really is a state secret, then why isn’t Crazy Pete Hoekstra in jail? Read more →