David Barron

Awlaki Really Seems to Have Been Drone-Killed Exclusively on Presidential Authority

Jason Leopold liberated another White Paper — this one dated May 25, 2011 —  on drone killing.

Man. It’s just like they kept throwing legal arguments against the wall in hopes that one saying “You can kill Americans with no due process” would stick. And since this one is not signed, we may never know what lawyer gets rewarded with a lifetime judicial sinecure!

I’ll have a lot more to say on the logistics of all this in a later post.

But I want to comment briefly on a point that Kevin Jon Heller made in his post on the memo (remember, Heller’s the guy who forced David Barron to write more than 7 pages to authorize killing Awlaki by raising a statute Barron hadn’t considered).

Heller still sees absolutely no justification for CIA being granted public authority to kill Americans in this White Paper.

Like the earlier memorandum, the White Paper is largely devoted to establishing that the public-authority justification applies to the foreign-murder statute and that members of the US military would be entitled to the justification. (Two conclusions I agree with.) It then simply says this (pp. 14-15):

Given the assessment that an analogous operation carried out pursuant to the AUMF would fall within the scope of the public-authority justification, there is no reason to reach a different conclusion for a CIA operation.

That’s it. That’s the sum total of the unredacted argument. But there is a reason to reach a different conclusion “for a CIA operation” — as pointed out above, the AUMF does not apply to the CIA. Which means that the source of the public-authority justification must lie elsewhere.

Now let me be clear: I am not saying the CIA cannot be entitled to the public-authority justification. I am simply pointing out that the AUMF does not provide the CIA with the necessary authority. Perhaps there is another source, such as Title 50 of the US Code, as my co-blogger Deb Pearlsteinhas suggested. Indeed, the redaction on page 16 of the new White Paper may well refer to that other source of authority, given that five or six lines of redacted text follow this statement:

Thus, just as Congress would not have intended section 1119 to bar a military attack on the sort of individual described above, neither would it have intended the provision to prohibit an attack on the same target, in the same authorized conflict and in similar compliance with the laws of war, carried out by the CIA in accord with _____.

I don’t understand why the OLC would need to redact a reference to Title 50 (or to some other source of authority). The legal source of the CIA’s authorization to kill Americans overseas — if one exists — hardly seems like a state secret. Until the government reveals that source, however, we remain entitled to conclude that the CIA drone-strike that killed Anwar al-Awlaki violated 18 USC 1119.

I don’t think those redacted lines he points to are a reference directly to statute.

I think it’s a reference to the September 17, 2001 Gloves Come Off Memorandum of Notification which we know authorized killing high value al Qaeda figures with drones.

After all, that’s precisely where Stephen Preston — then CIA’s General Counsel before he moved onto bigger and better General Counseling at DOD — said he’d look to for the authority for CIA to carry out certain operations (and when he gave this speech, it was regarded to be part of the set of drone killing speeches Obama’s top officials gave in 2012, and he discusses assassination, which several of the drone authorizations also do, specifically).

Authority to Act under U.S. Law.

First, we would confirm that the contemplated activity is authorized by the President in the exercise of his powers under Article II of the U.S. Constitution, for example, the President’s responsibility as Chief Executive and Commander-in-Chief to protect the country from an imminent threat of violent attack. This would not be just a one-time check for legal authority at the outset. Our hypothetical program would be engineered so as to ensure that, through careful review and senior-level decision-making, each individual action is linked to the imminent threat justification.

A specific congressional authorization might also provide an independent basis for the use of force under U.S. law.

In addition, we would make sure that the contemplated activity is authorized by the President in accordance with the covert action procedures of the National Security Act of 1947, such that Congress is properly notified by means of a Presidential Finding.

Preston would look to a Finding, and we know there was (still is, as far as we know!) a Finding authorizing precisely the thing the government claimed to have done, kill a top al Qaeda figure.

Remember, too, David Kris — who left DOJ not long before this White Paper explicitly authorizing CIA’s execution of the execution got written — issued this warning about the real secrets behind the National Security Act’s language prohibiting CIA from violating US statute.

For example, the covert action statute could be interpreted and applied in ways that may be extraordinarily important, but about which very, very few Members of Congress, let alone the American People, ever learn. The statute defines covert action to exclude “traditional” military and law-enforcement activities, provides that a covert action finding “may not authorize any action that would violate the Constitution or any statute of the United States,” and specifically warns that “No covert action may be conducted which is intended to influence United States political processes, public opinion, policies, or media.” Without making any comment, express or implied, on any actual or hypothetical covert action, or even acknowledging that any covert action of any kind has ever actually taken place, it is quite obvious that each of those elements of the statute could raise enormously difficult and complex interpretive questions, some of which might affect many Americans. Yet it might be impossible, in many cases, to explain those interpretations without revealing the most sensitive classified information. [60; footnotes removed]

In killing Awlaki, CIA was acting in both a law enforcement (that’s where the Fourth Amendment argument derives from) and Traditional Military capacity (which is how these endless justifications apply the public authority to CIA, by claiming CIA officers are just like soldiers). Kris tells us the statute says CIA can’t, but that the NSA “could be interpreted and applied in ways [that] very few Members of Congress, let alone the American People, ever learn.”

It has to have in this case, because CIA acted as both law enforcement and military in violating a slew of statutes to carry out the drone killing of an American citizen as part of a covert op. Kris is basically saying that part of the NSA doesn’t mean what it says. That it means something far more horrible.

Which means he’s also saying — as was Preston — that the drone killing of Anwar al-Awlaki was done on Article II authority.

It is, admittedly, a guess. But I believe that behind that redaction, the White Paper makes it clear this killing was done on Presidential authorization.

Is DOJ Still Hiding Their Logic Behind Use of Drones to Execute American Citizens?

Back in June, I compared the content of Charlie Savage’s account of the Awlaki drone memo with the content of the July 16, 2010 memo released that month. I noted that Savage reported the memo discussed whether killing Awlaki would violate the “ban” on assassinations in EO 12333, but the July memo did not. I suggested the earlier memo probably included that section.

Before Savage’s report turns to the consideration of 18 USC 1119 — which is where the memo starts its analysis — it describes a section considering whether the “ban” (in an unenforceable Executive Order that gets changed from time to time without notice in the actual text) on assassinations would prohibit such a killing.

It then considered possible obstacles and rejected each in turn.

Among them was an executive order that bans assassinations. That order, the lawyers found, blocked unlawful killings of political leaders outside of war, but not the killing of a lawful target in an armed conflict.

No discussion of assassination appears in the memo (unless it appears in a classified section and is not noted by the court opinion, but that seems unlikely as there’s no logical place for it). That said, the “ban” on assassinations did appear prominently in Harold Koh’s justification for drones given in March 2010.

Fourth and finally, some have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.” 

This leads me to suspect the structure of the first memo may parallel the structure of Koh’s speech, with the assassination “ban” figuring prominently in that memo. That is, it seems likely Savage’s sources, in conflating the two memos (if that’s what they did), included that language because it appeared in the first memo.

Voila! The memo released Friday — dated February 19, 2010 — does indeed focus on the assassination “ban,” though much of that discussion, like the entire memo, remains redacted.

[T]he use of lethal force against Aulaqi would not violate the assassination ban in Executive Order 12333.

And if you add the length of the February (7 pages) and July (41 pages) OLC memos and round up, you get the rough page length Savage’s sources provided: 50 pages.

So it does seem that Savage’s sources just synthesized the two memos as one.

That said, comparing Koh’s March 2010 speech presumably incorporating OLC’s assassination discussion with the (overly redacted) memo raises another question.

Several words in the title of the memo remain redacted.

Screen Shot 2014-08-18 at 11.03.13 AM

I wonder — and this is a guess — whether the redacted words pertain to using drones to executive an American citizen?

I ask that because Koh’s speech includes this paragraph about drones and other high tech weapons.

Second, some have challenged the very use of advanced weapons systems, such as unmanned aerial vehicles, for lethal operations. But the rules that govern targeting do not turn on the type of weapon system used, and there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict– such as pilotless aircraft or so-called smart bombs– so long as they are employed in conformity with applicable laws of war. Indeed, using such advanced technologies can ensure both that the best intelligence is available for planning operations, and that civilian casualties are minimized in carrying out such operations.

That is, I wonder whether some significant part of the 7 pages David Barron originally dedicated to weighing Awlaki’s due process free execution pertained to whether using drones to kill him changed the legal question?

Another possibility for the redacted phrase is a reference to Yemen, though the 2nd Circuit has already deemed that unclassified. Or, perhaps, this memo started the discussion of CIA’s involvement in an execution, which would explain the focus on EO 12333, which governs their covert operations.

In any case, it does seem that the Administration self-justification evolved over the first half of 2010, and only later in the year did the Department of Justice consider whether there were laws that might prohibit CIA from executing a US citizen with no due process.

Why Was CIA Assessing Whether They Could Drone-Kill Anwar al-Awlaki?

For years, defenders of the drone killing of Anwar al-Awlaki have always pointed to the second confession Umar Farouk Abdulmutallab made, implicating Awlaki in each and every part of his plot.

There were always problems with that. Several pieces of evidence indicate the drone attack on December 24, 2009 that missed Awalaki had specifically targeted him; at that point, the government did not consider Awlaki operational. Abdulmutallab made 3 confessions, and only the one made to the High Value Interrogation Group (HIG) after a month of isolation and in the context of a (I’ve heard second-hand, unbelievably generous) plea deal that was never finalized implicated Awlaki in planning his attack. Claims Awlaki helped Abdulmutallab make his martyrdom video don’t explain why AQAP’s best English language propagandist would make a video with a man schooled in English in Arabic. Subsequent evidence suggests actions attributed to Awlaki in that confession were probably taken by Fahd al-Quso and Nasir al-Wuhayshi.

In other words, there are a lot of holes in the confession always used to justify Awlaki’s drone killing. Abdulmutallab’s second confession should be treated the same as his first and third ones: a narrative crafted by someone who has a big incentive to shade the truth, and therefore of dubious reliability.

The release of yesterday’s ridiculously cursory OLC memo authorizing the drone killing of Anwar al-Awlaki introduces one more reason to doubt the narrative that claims Abdulmutallab’s second confession provided justification for Awlaki’s killing.

CIA Assesses

 

The memo relies not on what FBI has told OLC. It relies on CIA’s assessment that Awlaki is “a senior leader of al-Qa’ida in the Arabian Peninsula” based on “factual predicates as represented by the CIA and in the materials provided to use from the Intelligence Community.”Abdulmutallab’s second confession might be included in those materials provided from the IC. Even though the confession was obtained as part of a criminal investigation, the FBI is part of the IC, so broadly speaking that second confession would qualify, I guess.

But the assessment came not from FBI, which had the lead investigating the Undiebomb attack, but from the CIA. Which ought to give you pause, given that just months before this memo was written, the intelligence community’s partners had convinced the US that they hadn’t killed a Bedouin clan in the al-Majala strike. Indeed, the intelligence relating to Awlaki seemed to be consistently stinky until such time as the CIA set up its own drone base in Saudi Arabia in mid-2011.

Besides, what are we executing American citizens based on the CIA’s assessment for anyway?

At least according to David Barron, the case against Awlaki came not from FBI, but from CIA. That doesn’t mean CIA didn’t have evidence supporting its claims (and remember, CIA has a role in HIG, as does JSOC). But it does suggest Abdulmutallab’s second confession may not have the role the defenders of Awlaki’s execution like to cling to.

7 Pages to Drone Kill an American Citizen

7 pages.

That’s all that current 1st Circuit Court Judge and then acting OLC head David Barron needed — in February 2010 — to dispense with niceties like the Constitution and Rule of Law before he okayed the drone killing of Anwar al-Awlaki.

Lucky for Barron — and President Obama — International Law scholar Kevin Jon Heller, never having seen that 7 page memo, raised some things Barron hadn’t considered. Which led Barron to write a still totally laughable but nevertheless less ridiculous 41-page memo 5 months later, which Barron’s friends insist is not-so-bad if you want to rationalize drone killing an American with no due process.

I wonder how they’ll defend Barron’s much more circumspect drone killing justification (especially since DOJ has redacted it beyond any legibility)?

I’ll have more to say about this latter — I suspect that it shows that DOJ actually tried on 3 different theories for drone-killing Awlaki.

But for the moment, know that if you ever come before Judge Barron, he believes he legitimize drone killing you in 7 pages or less.

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.)

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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?

Emptywheel Twitterverse
bmaz I defy any sentient human to explain how a Horse_eBooks style football bullshit generator would not be better commentary than Jon Gruden.
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bmaz Davids, Bowie and Gilmour, together Cold and Comfortably Numb: https://t.co/kSMKMbCcNF
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JimWhiteGNV So is the 2001 AUMF being used to justify the fight against Ebola, or will Obama need to get Congressional approval for it?
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emptywheel @TiredMemeCat Both appear to be terrible parents.
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emptywheel RT @charlie_savage: Key figure in Bush-era DOJ scandals - profile: http://t.co/3ftNs8Glza RT @rickhasen Schlozman's back (in #KSSEN) http:/…
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bmaz Anybody know an Exec, GC or other corp atty for American Family Ins in either Madison WI or Denver CO offices? Off record fine but need name
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emptywheel @cannedhiss I'm glad you did, honestly. I meant to comment on Peterson's past irresponsibility, not kids. But your point is absolutely fair
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emptywheel @cannedhiss Agree. Probably shouldn't have put it like that.
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emptywheel Colts offense channeling last year's Squawks offense today.
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emptywheel @cannedhiss actually, it's not married-non I care about. It's involvement in a kid's life.
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emptywheel @erniesfo Adding: and living in different states from them.
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