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Assume Obama Drone Rules Dead

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There’s been a series of moves and trial balloons among Obama’s national security lawyers that lead me to assume that any effort to apply some regularity and the patina of legality to the drone program is dead.

First, after some reporting that he might replace Eric Holder as Attorney General, DOD General Counsel Jeh Johnson instead announced his resignation, effective the moment the New Year’s ball drops.

Mr. Johnson, who was general counsel to the Air Force during the Clinton administration, was a key legal adviser and fund-raiser for then-Senator Obama during his run for the presidency in the 2008 campaign. On Thursday, he sent Mr. Obama a letter saying that he would resign effective midnight on Dec. 31.

“Thank you for the opportunity to be part of your campaign, your transition, and your Administration,” Mr. Johnson wrote. “Thank you also for the best clients I will ever have: Robert Gates, Leon Panetta, and the men and women of the U.S. military.”

Mr. Johnson, a former prosecutor, has been mentioned as a potential attorney general should Eric H. Holder Jr. step down in Mr. Obama’s second term. That speculation has been centered more among his colleagues in the Pentagon rather than among civilian law enforcement officials, however.

In his current job, Mr. Johnson worked closely on internal debates about the scope and limits of the government’s power to hold terrorism suspects in indefinite detention and to target them with drone strikes in places like Yemen and Somalia. In those debates he generally sought broader latitude for the government than some others, notably State Department officials.

But Mr. Johnson took a more restrained position than some colleagues during the NATO-led air war in Libya. As American participation in the effort neared an apparent 60-day limit imposed by the War Powers Resolution for hostilities that had not been authorized by Congress, he urged pulling back on direct combat activities – like missile strikes – but was overruled by the White House.

Now, as Charlie Savage notes, the reports that Johnson might be named Attorney General seemed to come from Johnson’s backers, not the White House. And as Savage reports, Johnson’s role has been mixed. While he pushed for more flexibility–particularly with drones themselves–he did try to hew to rule of law in other areas. And he recently suggested that the AUMF the government has operated under will one day (I would argue, already has) effectively been vacated because core al Qaeda has been disrupted so thoroughly.

I do believe that on the present course, there will come a tipping point – a tipping point at which so many of the leaders and operatives of al Qaeda and its affiliates have been killed or captured, and the group is no longer able to attempt or launch a strategic attack against the United States, such that al Qaeda as we know it, the organization that our Congress authorized the military to pursue in 2001, has been effectively destroyed.

At that point, we must be able to say to ourselves that our efforts should no longer be considered an “armed conflict” against al Qaeda and its associated forces; rather, a counterterrorism effort against individuals who are the scattered remnants of al Qaeda, or are parts of groups unaffiliated with al Qaeda, for which the law enforcement and intelligence resources of our government are principally responsible, in cooperation with the international community – with our military assets available in reserve to address continuing and imminent terrorist threats.

Once core al Qaeda has been decimated (which they have been), Johnson said, the military must become solely a reserve force, with intelligence and law enforcement leading the fight.

In many ways, the speech reads, in hindsight, like a valedictory, listing Johnson’s personal accomplishments at DOD (notably, the repeal of Don’t Ask Don’t Tell). But it also calls for conventional legal limits to the war on terror.

And then, days after delivering that speech, Johnson was not only not named to replace Holder, but was himself on the way out the door.

Then the day after Johnson’s departure announcement, came State Department Counselor Harold Koh’s.

That one I find more troubling. While it might just be tied to Yale’s desire to have Koh do his job again (though those transitions usually happen in August, not December), and while Hillary’s departure may explain Koh’s departure (though Hillary isn’t leaving for some time yet), Koh’s departure comes just weeks after Scott Shane’s report that the attempt to put order to the drone program–which had first been reported before the election–had stalled after the election. I suggested then that the Shane report might be an effort from those trying to put more legal regularity to the drone program–an effort undoubtedly led by Koh–to force John Brennan to carry through on his earlier plans. Matthew Aid confirmed that the drone rules, at least, if not the leak to Shane, came from those in State (again, this must be Koh) and DOJ who recognized the drone program didn’t really fly under international law.

A State Department official who recently left his post for a better paying job in the private sector admitted that there is deep concern at State and Justice that sooner or later, a court in the U.S. or in The Hague will issue a ruling on the question of the legality of these missions, which many in Washington fear will go against the U.S. government position that these strikes are legal.

So whether Koh left because he lost this fight with Brennan or because of academic schedules and Hillary’s upcoming departure, in his absence, the drone rules Koh pushed for are far less likely to happen.

Then there’s the news–this one, unlike reports of Johnson as Attorney General, sourced to the Administration itself–that Stephen Preston, currently CIA’s General Counsel, may replace Johnson at DOD.

Read more →

The Moral Rectitude Assassination Czar

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[youtube]7MwB2znBZ1g[/youtube]

Back in April and May, when John Brennan seized control of the drone targeting process purportedly in the interest of “showing the American public that al-Qaida targets are chosen only after painstaking and exhaustive debate,” an extensive NYT article—providing a picture of drone targeting as done before Brennan had consolidated control of it–described Brennan in religious terms. Among other descriptions offered of the guy in charge of drone assassinations, Harold Koh described him as a priest.

“If John Brennan is the last guy in the room with the president, I’m comfortable, because Brennan is a person of genuine moral rectitude,” Mr. Koh said. “It’s as though you had a priest with extremely strong moral values who was suddenly charged with leading a war.”

That same formulation–moral rectitude–shows up in Karen DeYoung’s profile of John Brennan today.

Some White House aides describe him as a nearly priest-like presence in their midst, with a moral depth leavened by a dry, Irish wit.

One CIA colleague, former general counsel John Rizzo, recalled his rectitude surfacing in unexpected ways. Brennan once questioned Rizzo’s use of the “BCC” function in the agency’s e-mail system to send a blind copy of a message to a third party without the primary recipient’s knowledge.

“He wasn’t joking,” Rizzo said. “He regarded that as underhanded.”

That’s not all that surprising. After all, DeYoung may have talked to Koh for this article, or “moral rectitude” may just be a well rehearsed line inside the White House.

Having anyone question Rizzo’s ethics, however, is no evidence of moral rectitude.

Indeed, the article–and the last set of similar articles–suggests Brennan does not exercise the moral rectitude the anonymous White House sources claim. Last time around, after all, the articles told how Brennan shut down signature strikes and war in Yemen. But by the time the articles came out, he had approved them.

This time around, the article notes Brennan’s belief CIA shouldn’t be in the paramilitary business, but approved such activities operating out of Djibouti. He is about to approve more drones because Petraeus wants them rather than fixing our HUMINT weaknesses. Similarly, Brennan’s moral rectitude on Mali involvement has faded.

It’s in light of this false myth of Brennan’s moral rectitude that I want to look more closely at the most remarked lines of this story.

In them, an anonymous Administration official seemingly shows regret for the killing of Abdulrahman al-Awlaki (as I noted at the time, the big profiles in May both were utterly silent about Abdulrahman).

Two administration officials said that CIA drones were responsible for two of the most controversial attacks in Yemen in 2011 — one that killed American-born cleric Anwar al-Awlaki, a prominent figure in al-Qaeda in the Arabian Peninsula, and a second a few days later that killed his 16-year-old son, also an American citizen. One of the officials called the second attack “an outrageous mistake. . . . They were going after the guy sitting next to him.”

Note, last year, Greg Miller reported JSOC carried out the Abdulrahman strike.

On Sept. 30, Awlaki was killed in a missile strike carried out by the CIA under Title 50 authorities — which govern covert intelligence operations — even though officials said it was initially unclear whether an agency or JSOC drone had delivered the fatal blow. A second U.S. citizen, an al-Qaeda propagandist who had lived in North Carolina, was among those killed.

The execution was nearly flawless, officials said. Nevertheless, when a similar strike was conducted just two weeks later, the entire protocol had changed. The second attack, which killed Awlaki’s 16-year-old son, was carried out by JSOC under Title 10 authorities that apply to the use of military force.

The detail matters, because ongoing FOIAs for information on Abdulrahman’s death face a higher bar if CIA carried out the attack than if JSOC did (Brennan’s laughable claim to want DOD to carry out these strikes so they will be transparent is another of the instances in the story where his moral rectitude proves infinitely flexible).

But it’s the statement itself–“an outrageous mistake. . . . They were going after the guy sitting next to him”–that I find even more laughable. Partly it’s word choice. Who says “outrageous mistake”? Normally, you’d expect someone to say “horrible mistake,” because if it’s a “mistake” then there’s no intent or poor judgment to get outraged about (unless the targeting here, overseen by Brennan personally, was particularly incompetent–but that’s the kind of thing these Kill List articles assure us could never happen).

Besides, according to the rules exposed in the last set of Kill List articles, Abdulrahman qualifies as a legitimate target. He’s a military aged male. Therefore, according to the rules of targeting, hitting him wasn’t a mistake at all. He was a militant considered an acceptable target by the moral rectitude Assassination Czar.

And all that’s before you consider that every other American killed by drones–Kamal Derwish, who purportedly died as “collateral damage” in the Abu Ali al-Harithi strike; Anwar al-Awlaki, who was first missed on December 24, 2009 in a strike purportedly targeting someone else, WikiLeaks evidence to the contrary notwithstanding (at a time when the Intelligence Community didn’t consider Awlaki operational); and Samir Khan, who died as collateral damage in the Awlaki strike–were or were going to be collateral damage at one point. That’s a lot of collaterally damaged inconvenient Americans.

Do people at the White House regret that they keep getting questions about the dead American teenager? Do they regret the almost nonexistent political fallout that has resulted? Do they feel a tinge of guilt that their rules make killing a teenager legal? Perhaps.

But the performance of morality in the Abdulrahman statement–like the moral rectitude rehearsed once again in a John Brennan article–is unconvincing.

Angler 2.0: Brennan Wields His Puppet Strings Differently

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As I said earlier, the parallel between the Jo Becker/Scott Shane Angler 2.0 story and the earlier series by Becker and Barton Gellman is hard to miss.

But I’m very interested in how the stories are structured differently. With Angler 1.0, the story was very clearly about Dick Cheney and the methods he used to manipulate Bush into following his advice. Here, the story is really about John Brennan, Obama’s Cheney, portrayed deep in thought and foregrounding Obama in the article’s picture. Indeed, halfway through, the story even gives biographical background on Brennan, the classic “son of Irish immigrants” story, along with Harold Koh’s dubious endorsement of Brennan’s “moral rectitude.”

But instead of telling the story of John Brennan, Obama’s Cheney, the story pitches Obama as the key decision-maker–a storyline Brennan has always been one of the most aggressive pitchmen for, including when he confirmed information on the Anwar al-Awlaki strike he shouldn’t have. In a sense, then, Brennan has done Cheney one better: seed a story of his own power, but sell it as a sign of the President’s steeliness.

The Silent Sources for the Story

I already pointed out how, after presenting unambiguous evidence of Brennan’s past on-the-record lies, the story backed off calling him on it.

But there are other ways in which this story shifts the focus away from Brennan.

A remarkable number of the sources for the story spoke on the record: Tom Donilon, Cameron Munter, Dennis Blair, Bill Daley, Jeh Johnson, Michael Hayden, Jim Jones, Harold Koh, Eric Holder, Michael Leiter, John Rizzo, and John Bellinger. But it’s not until roughly the 3,450th word of a 6,000 word article that Brennan is first quoted–and that’s to largely repeat the pre-emptive lies of his drone speech from last month.

“The purpose of these actions is to mitigate threats to U.S. persons’ lives,” Mr. Brennan said in an interview. “It is the option of last recourse. So the president, and I think all of us here, don’t like the fact that people have to die. And so he wants to make sure that we go through a rigorous checklist: The infeasibility of capture, the certainty of the intelligence base, the imminence of the threat, all of these things.”

That is the only on-the-record direct quote from Brennan in the entire article, in spite of the centrality of Brennan to the story.

And I would bet several of the sources quoted anonymously in the section describing Obama’s method of counting the dead (which still ignores the women and children) are Brennan: “a top White House adviser” describing how sharp Obama was in the face of the first civilian casualties; “a senior administration official” claiming, in the face of credible evidence to the contrary, that the number of civilians killed in drone strikes in Pakistan were in “single digits.”

Note, too, the reference to a memo his campaign national security advisors wrote him.

“Pragmatism over ideology,” his campaign national security team had advised in a memo in March 2008. It was counsel that only reinforced the president’s instincts.

The memo was written not long after Brennan started playing a more central role among Obama’s campaign advisors. But the story makes no mention of his presumed role in it. Further, in describing Jeh Johnson to introduce a quote, the piece notes that he was “a campaign adviser” (it doesn’t say Johnson was also focused on voter protection). But it does not note that Brennan, too, was a key campaign advisor, one with an exclusively national security focus.

Nor does the story note, when it describes how Obama “deployed his legal skills … to preserve trials in civilian courts” it was John Brennan making that case, not the Attorney General.

In other words, in several places in this story, Brennan plays a key role that is downplayed.

The Pro-Drone Narrator

Given that fact, I’m really interested in the several places where the story adopts a pro-drone viewpoint (it does adopt a more critical stance in the narrative voice at the end).

For example, the story claims, in the first part of the story, that the drone strikes “have eviscerated Al Qaeda” without presenting any basis for that claim. This, in spite of the fact that al Qaeda has expanded in Yemen since we’ve started hitting it with drones.

Later, the article uncritically accepts the claim that the drone–regardless of the targeting that goes into using it–is a “precision weapon” that constitutes a rejection of a “false choice between our safety and our ideals.”

The care that Mr. Obama and his counterterrorism chief take in choosing targets, and their reliance on a precision weapon, the drone, reflect his pledge at the outset of his presidency to reject what he called the Bush administration’s “false choice between our safety and our ideals.”

For fucks sake! This article describes how the White House has adopted a “guilt by association” approach to drone targeting. Read more →

The Guy Who’s Always Right, Harold Koh, Changes His Mind

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In her profile of Harold Koh’s flip-flop on drones (and counterterrorism generally), Tara McKelvey shows that Koh joined the Administration with such certitude about his initial position–that drones were assassinations–he pissed everyone off.

“Everybody hated him,” says Cartwright, describing how Koh would rip into him and other people: “He would say, ‘Oh, you military guys, you’re just so stupid.’ ”

One of Koh’s key objections–and one of the obvious weak points in the Administration’s current justification on drones–had to do with the difficulty in showing that drone targets presented an imminent threat.

Koh referred to President Bush as the nation’s “torturer in chief” and told a New York Times reporter in December 2002 that the policy of targeted killings seemed to violate the government’s longstanding ban on assassination: “The question is, what factual showing will demonstrate that they had warlike intentions against us and who sees that evidence before any action is taken?”

But now, after seeing a bunch of classified information that should not change the broad outlines of the law, Koh has decided they’re not extrajudicial killings and assassinations after all. He denies this is a change in his opinion.

“I have never changed my mind,” he says. “Not from before I was in the government—or after.”

Sure, Koh is just one lawyer reviewing these questions, bureaucratically (though not morally, given Koh’s past comments on counterterrorism) a relatively minor one. But McKelvey’s portrait of Koh shows that what has remained unchanged about Koh are not his legal stances, but his certitude that he is correct, whatever his current legal stance.

Compare that with the thoughts of the guy who used to have Koh’s job, William Taft IV.

I ask Taft, “Why does the law matter when everyone thinks something is OK?”

“That is actually a deep question. When a human life is at stake, there needs to be a process for determining that a person can be executed or shot in an armed conflict,” he says. “Otherwise, we will have an individual just deciding that he wants to kill someone.”

“What if it’s the president?” I ask.

“Especially,” said Taft. “He’s the main person who might possibly have this authority, and you’ve got to watch it.”

We have a system that ensures that someone challenges the opinions of those, like Koh, who may be certain but may also be suffering from the tunnel vision of someone seeing the world of classified information our “democratic” government won’t share.  It’s a process that guarantees all the very smart and unwavering in a belief in their own correctness have someone who challenges their certitude.

It’s called due process.

There’s a reason why the people who are certain they’re already right or the people who have unlimited power should not have the ability to approve the killing of someone else with no review. It’s because those people will be least apt to question their own beliefs.

Osama bin Laden: “The ship of Ali Abdullah Saleh is the only ship we have”

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In May 1999, some Yemeni al Qaeda affiliates planned a series of car thefts to fund a rescue attempt of one of their members who had been sentenced to death. The Yemeni government discovered  the plot and raided an al Qaeda safe house. Osama bin Laden’s sometime bodyguard, Abu Jandal, was one of the men questioned by authorities. As authorities continued to pursue the case, Abu Jandal decided to return to Afghanistan and bin Laden. After he told OBL of the raid and explained it had to do with planned theft, not a crackdown on larger al Qaeda operations, according to Ali Soufan’s Black Banners,

“That is good to hear,” bin Laden said, and a look of calm relief passed over his face as he invoked the president of Yemen: “The ship of Ali Abdullah Saleh is the only ship we have.”

Since that time, of course, Al Qaeda bombed the USS Cole while it was arriving in Yemen. Abd al Rahim al-Nashiri was eventually caught, tortured in a black site, brought to Gitmo, and charged for the Cole bombing.

Saleh, for his part, recently came on his own “ship” to the US for medical treatment (and to escape increasing opposition to his rule).

And so, given the ready accessibility of a witness who might testify to Yemen’s close relations with al Qaeda at the time of the Cole bombing, al-Nashiri’s defense team asked to subpoena Saleh. But the State Department is having none of it.

Yemeni President Ali Abdullah Saleh is in the United States with full diplomatic immunity, Secretary of State Hillary Clinton’s legal advisor has written the Pentagon, and should not be compelled to provide sworn testimony for the Guantánamo war court.
State Department Legal Advisor Harold Hongju Koh wrote the letter Monday to the Pentagon’s chief war crimes prosecutor, Army Brig. Gen. Mark Martins, opposing a request for a subpoena by lawyers for an alleged al Qaida bomber facing a tribunal at the U.S. Navy base in southeast Cuba.

[snip]

But Nashiri defense lawyer Richard Kammen said there’s public evidence that Saleh “sought to limit the investigation of the Cole bombing,” that “he personally handled evidence” and “members of his government are alleged to be complicit in the Cole bombing.”

I presume the government will have their way, here–after all this is a Gitmo military commission, not a civilian court.

But I also imagine this concern for Saleh’s diplomatic immunity comes as much from a desire to hide just how close Saleh has been with al Qaeda, given our subsequent reliance on him as a counterterrorism partner.

The Non-Counterterrorist Drone Loophole: Did Clapper Admit We Targeted Iranian Scientists?

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One of the most interesting exchanges in yesterday’s Threat Assessment hearing occurred between Ron Wyden and James Clapper–with David Petraeus, whom Wyden calls out, observing silently (the exchange starts at 1:01).

Wyden: Let me wrap up with you Director Clapper on an issue that I’ve asked about before at this open hearing. General Petraeus knows about this, this is a question about the use of force and a speech that was given by Mr. Koh, Harold Koh of the State Department, a lawyer. Let me note at the beginning it’s a matter of public record that the intelligence community sometimes takes direct action against terrorists and this direct action sometimes involves the use of lethal force. And as you know Director [sic] Koh gave a speech outlining our policy with respect to various terrorist groups, talked about detention, talked about the use of unmanned drones and noted that under US law, the use of force against terrorist groups is permitted by Congressional authorization, while under international law it is permitted by America’s right to self defense. But in spite of having asked about this on a number of occasions, and General Petraeus, you know that I, too, share the Chair’s view with respect to your working with us here on this committee and your being forthright, I’ve not been able to get an answer to this specific question. And I would like to know whether that speech that Mr. Koh gave contained unstated exceptions for intelligence agencies?

Clapper: With respect to counterterrorism, it does not. So it applies to all components of the government involved in counterterrorism be it military or non-military.

Wyden: Are there other exceptions other than counterterrorist activities?

Clapper: I believe his speech dealt with counterterrorism.

Wyden: So you believe that his speech, the text of the speech–cause this would be important–applies to all agencies. It applies to the intelligence community, his entire speech, the overall thrust of the speech applies to all of the intelligence community.

Clapper: With respect to counterterrorism, yes.

Now, it seems clear that Wyden is referring to the portion of Koh’s speech that deals with drone strikes, which is reproduced in full below the line.

And my impression is that Wyden–who emphasizes targeting terrorists when he asks the question–was asking whether there was an exception to the principles of distinction and proportionality for the CIA when they used drones. Or, to put it more plainly, Wyden seemed to be asking whether the CIA could use drones to target civilians.

My guess is that Petraeus has refused to answer that question not to hide a CIA exception for the use of drones with civilian terrorists (say, with Anwar al-Awlaki) but rather to hide the CIA involvement in targeting of civilians in other contexts.

That’s the implication of Clapper’s response: “with the respect to counterterrorism, yes.” And Wyden’s expression as he delivers the question, “Are there other exceptions other than counterterrorist activities?” is worth watching.

There may be further confusion stemming from the language of Koh’s speech. While he was, in this section, specifically addressing “the Law of 9/11,” he does claim that his comments apply to “all of our operations involving the use of force.” Clapper’s caveat seems to belie that claim.

Koh’s language also addressed the use of force generally, not just those dealing with drones. We do use drones for missions outside of counterterrorism–including in drug operations, so Clapper’s caveat might suggest the CIA can target civilians in such context.

But if I had to guess, I’d say this had to deal with non-drone use of lethal force, possibly the assassinations of Iranian nuclear scientists. Was Clapper suggesting CIA targeted civilian nuclear scientists?

And while we may not have attached the bombs to Iranian civilian scientists’ cars (though our surrogates did), remember the suggestions that our drone surveillance of Iran was involved in those assassinations.

Read more →

State Department, DoD Argue Over “Rules” for Drone Targets Outside Pakistan

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Fire away!

Predator drone firing Hellfire missile. (Wikimedia Commons)

Ed: Now that he’s on the mend from heart surgery, Jim is going to do some posting at EW. Welcome, Jim!

Charlie Savage notes in today’s New York Times that the Departments of State and Defense are engaged in an argument over the choosing of targets for drone attacks outside Pakistan. The primary point of contention centers on whether only high level al Qaeda figures in places like Yemen and Somalia can be targeted or if even low level operatives in these areas can be targeted there, just as they are in Pakistan.

Arguing for a more constrained approach is Harold Koh at the State Department:

The State Department’s top lawyer, Harold H. Koh, has agreed that the armed conflict with Al Qaeda is not limited to the battlefield theater of Afghanistan and adjoining parts of Pakistan. But, officials say, he has also contended that international law imposes additional constraints on the use of force elsewhere. To kill people elsewhere, he has said, the United States must be able to justify the act as necessary for its self-defense — meaning it should focus only on individuals plotting to attack the United States.

A more wide open approach is favored by Jeh Johnson at the Pentagon:

The Defense Department’s general counsel, Jeh C. Johnson, has argued that the United States could significantly widen its targeting, officials said. His view, they explained, is that if a group has aligned itself with Al Qaeda against Americans, the United States can take aim at any of its combatants, especially in a country that is unable or unwilling to suppress them.

Sensing an opportunity to add to his “tough on terrorism” credentials, Senator Lindsey Graham (R-SC) can’t help but join in the DoD’s line of argument: Read more →

What shall we condone?

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Abd al Rahim al-Nashiri’s lawyers end their letter to Navy Vice Admiral Bruce MacDonald–who will decide whether al-Nashiri will face the death penalty–with an appeal to his role in deciding what we as a nation will condone:

One pivotal and constant question has been–what shall we condone? Shall we condone a trial that allows evidence obtained from torture? Shall we condone a trial for a detainee who has been tortured?

Indeed, one of their most surprising arguments was a reminder that his predecessor, Judge Susan Crawford, refused to refer charges against Mohammed al-Qahtani because he had been tortured.

Your predecessor, Judge Susan Crawford, did not refer charges against Mohammed Al-Qahtani for his direct role in the September 11th Attacks because he was tortured. Judge Crawford stated, “His treatment met the legal definition of torture. And that’s why I did not refer the case[.]” Here, the government’s treatment of Mr. Al-Nashiri undoubtedly meets the legal definition of torture and cruel, inhuman and degrading treatment. Judge Crawford was able to review the interrogation records and other documents of Mr. Al-Qahtani’s abuse before making her decision. In this case, we assume the CIA has not provided those records to you. Even without the cooperation of the CIA, sufficient evidence has been publicly released to prove that Mr. Al-Nashiri was tortured.

[snip]

In essence, the United States has lost its moral authority to seek the death penalty. Accordingly, you should not refer charges–or authorize the detah penalty–against Mr. Al-Nashiri.

I find a few things surprising. First, the suggestion that MacDonald has probably not officially been informed of al-Nashiri’s treatment. While I suppose that’s possible (it’s clear, for example, that the CIA limited how much Gitmo personnel learned of former CIA detainees), that would still be surprising.Though of course, at the very least, MacDonald has not seen the video tapes that were destroyed.

Also note that in this passage, at least, al-Nashiri’s lawyers are calling on the government to drop charges entirely against al-Nashiri, based on the Crawford precedent. Not that the appeal will work (because, particularly given that KSM is now slotted for a Gitmo Military Commission, it would take charges and the death penalty for him off the table, too). But it is notable that they asked.

Much of the rest of the letter lays out reasons I expected: al-Nashiri’s torture itself, the CIA’s destruction of exonerating evidence, the dicey appellate record for MCs, the length of time since the alleged crimes and the delay in charging, and the safety restrictions on travel to Yemen now.

And then there’s the predictable objection on legal grounds: al-Nashiri’s lawyers argue that since we weren’t at war when most of his alleged crimes occurred, an MC is an improper venue to try him. Powerfully, they cite Presidents Clinton and Bush to prove we were not at war.

When convened outside areas under martial law or military occupation, military commissions are strictly limited to the punishment of enemy forces for violations of the laws of war committed in the context of and associated with hostilities.

The limitation was affirmatively recognized and enacted by Congress into the Military Commissions Act, when it mandated that “An offense specified in this subchapter is triable by military commission under this chapter only if the offense is committed in the context of and associated with hostilities.

Mind you, the government will cite Osama bin Laden’s declaration of war against the US in 1996, but it’s hard to see how that refutes President Clinton’s assertion that “America is not at war” delivered in his eulogy to those lost on the USS Cole.

If that’s not enough, though, al-Nashiri’s lawyers now have the legal opinion of Harold Koh’s conditions that define hostilities for Libya.

The question this letter asks–whether we as a country ought to impose the death penalty on someone we tortured–is a key question. But the legal argument may well be just as compelling.

The Charlie-Savage-Used-to-Be-Richard-Lugar’s-Intern SFRC Libya Hearing

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Boy has Charlie Savage caused a headache for Barack Obama and Harold Koh.

The Senate Foreign Relations Committee had a hearing to grill Koh today, in part, because of Savage’s report that Obama overrode OLC, DOJ, and DOD lawyers in deciding that we are not engaged in “hostilities” with Libya and therefore he can blow off the requirements of the War Powers Resolution. Granted, the Obama Administration limited the headache by having just Koh, who sided with Obama in the dispute, and not those lawyers who were overridden, appear at the hearing. Committee Chair John Kerry admitted they had been invited, but declined to attend.

The issue of how Obama came to claim Libya did not involve “hostilities,” by itself, had Koh speaking in circles worthy of his former student, John Yoo.

But what really made things difficult was Savage’s 2007 report on what candidate Barack Obama believed about a President’s war powers. In response to Savage’s question about whether or not the President could unilaterally bomb Iran, the constitutional professor presidential candidate responded,

The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.

Richard Lugar–who by partnering with Senator Obama on a key foreign relations law gave him some credibility in the area–started the hearing by citing both Savage’s article citing the wisdom of candidate Obama and the one depicting President Obama overriding key lawyers on this issue.

It was about that point of the hearing where Charlie Savage revealed, via Twitter, that 15 years ago he served as an intern in Lugar’s office.

When Jim Risch raised the same quote from candidate Obama (Savage said nothing about interning for Risch), the lawyer now sanctioning Obama’s curious definition of hostilities said that candidate Obama’s 2007 stance on presidential war powers was legally incorrect.

So we’ve learned today that 2007 Harold Koh didn’t agree with what 2007 Charlie Savage reported 2007 Barack Obama believed about the law. But in 2011, Savage’s report made clear, 2011 Koh is the key administration lawyer who agrees with 2011 Obama’s views on the law.

Jim Webb: We Are Endorsing Assassination of Leaders of Countries We Recognize

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I’m watching the Senate Foreign Relation Committee’s grilling of Harold Koh–either bmaz or I will post on that later.

But Jim Webb just made a really important point. He noted that we have suspended, but not severed, our relations with Libya. After cornering Koh on that issue (and finally getting Koh to acknowledge that point), Webb then asked “What is the constitutional limitation on the assassination of a head of state?” Koh replied that the ban on assassinations is an Executive Order, not a law (a point I make all the time, given that it means the ban can be pixie dusted at will by Presidents).

Webb then said that Nobody up here wants Qaddafi to remain. But moral standard we set is one we should expect.

In other words, Webb notes, if we actively work to assassinate the leader of a country we recognize, we are implicitly endorsing such actions against us.

Silly Webb doesn’t get yet that the US operates under one giant double standard, I guess.