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The “Sitting Next to a Baddie” American Death Authorization Has become the “Sitting in a Baddie Compound”

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As Jim laid out, yesterday President Obama admitted that we killed two hostages, including American Warren Weinstein, in a drone operation in the Af-Pak border in January. In that same strike, we killed American citizen Ahmed Faruq, though he was not specifically targeted, Administration sources assure us. We also killed Adam Gadahn in an apparently unrelated strike, though we weren’t targeting him either, Administration sources assure us.

But I want to point to something rather remarkable in the language the Administration used yesterday to discuss this.

For years, the government has used the rationale that if an American is “sitting next to a baddie” then he becomes acceptable collateral damage in a drone strike.

That’s the rationale they gave when they killed Kamal Derwish in 2002: they were not targeting Derwish, they were targeting Abu Ali al-Harethi, but Derwish — far more threatening to the US at that moment because of his presumed role in recruiting Muslims in Lackawanna, NY — just was unlucky enough to be sitting next to him.

That’s the rationale they gave when they first missed Anwar al-Awlaki on December 24, 2009, a day before the government decided he had gone operational but at a time when Pete Hoekstra was making his continued existence an embarrassing issue for the Obama Administration. The Administration hadn’t been targeting Awlaki, they explained, they were instead targeting Nasir al-Wuhayshi and some other AQAP leaders, and Awlaki just happened to be present.

That’s the rationale they gave when they killed Samir Khan. He just happened to be sitting in the car when the CIA finally scorched Awlaki.

And that’s the rationale they gave when they killed Abdulrahman al-Awlaki: They weren’t targeting him, they were targeting Ibrahim al-Banna, though al-Banna turned out not even to be present.

That’s the rationale they gave, years later, when they admitted to killing Jude Kenan Mohammed: he was killed in a signature strike targeting the group he was in as a whole.

Never mind that in a number of these cases — the first Awlaki strike and the one that killed his son — there’s reason to believe they were specifically targeted. Never mind that in the case of Derwish and Khan knowing insiders wink winked that the government knew full well they’d be killing these men too when they struck the other target. The excuse has been — with the exception of the pursuit of Anwar al-Awlaki — that they were targeting another person (another known person, with the exception of the Jude Mohammed strike), and the American just happened to die as collateral damage.

But yesterday, that rationale changed.

Now, the government wasn’t so much targeting a person, but a compound, something that Josh Earnest was quite insistent on in his press conference yesterday.

Q    Thanks, Josh.  Let’s start just with some of the facts of what happened, to the extent that you can discuss them.  How many other people were killed in these two strikes, either local civilians or militants?

EARNEST:  Josh, I won’t be able to provide specific numbers on this.  I can tell you that in the specific strike that resulted in the death of Dr. Weinstein and Mr. Lo Porto, there was one other al Qaeda leader who was among those that was killed.  That is the — Ahmed Faruq, the American citizen al Qaeda leader.  This was a strike against an al Qaeda compound, and the result was the death of at least one al Qaeda leader.

I can tell you that the assessment that we have right now does not raise questions about additional civilian loss of life. Again, the reason for that is that the standard that was in place and, to the best of our knowledge, was closely followed by our counterterrorism professionals was to adhere to this near-certainty standard.  And that near-certainty standard applied to two things.

The first is near certainty that this was an al Qaeda compound that was used by al Qaeda leaders; that turned out to be true.  That assessment did turn out to be correct.  The other near-certainty assessment was that no civilians would be harmed if this operation were carried out.  Unfortunately, that was not correct, and the operation led to this tragic, unintended consequence.
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Government’s Assassination of Anwar al-Awlaki Used “Significantly Different” EO 12333 Analysis

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Jameel Jaffer has a post on the government’s latest crazy-talk in the ongoing ACLU and NYT effort to liberate more drone memos. He describes how — in the government’s response to their appeal of the latest decisions on the Anwar al-Awlaki FOIA — the government claims the Court’s release of an OLC memo does not constitute official release of that memo. (Note, I wouldn’t be surprised if the government is making this claim in anticipation of orders to release torture pictures in ACLU’s torture FOIA suit that’s about to head to the 2nd Circuit.)

But there’s another interesting aspect of that brief. It provides heavily redacted discussion of the things Judge Colleen McMahon permitted the government to withhold. But it makes it clear that one of those things is a March 2002 OLC memo that offers different analysis about the assassination ban than the analysis used to kill Anwar al-Awlaki.

The district court also upheld the withholding of a March 2002 OLC Memorandum analyzing the assassination ban in Executive Order 12,333 (the “March 2002 Memorandum”). (CA 468-70; see CA 315-29). Although the district court noted that the OLC-DOD Memorandum released by this Court contained a “brief mention” of Executive Order 12,333, the district court concluded that the analysis in the March 2002 Memorandum is significantly different from any legal analysis that this Court held has been officially disclosed and for which privilege has been waived.

The statement here is carefully worded, probably for good reason. That’s because the February 19, 2010 memo McMahon permitted the government to almost entirely redact clearly explains EO 123333 and its purported ban on assassinations in more depth than the July 16, 2010 one; the first paragraph ends,

Under the conditions and factual predicates as represented by the CIA and in the materials provided to us from the Intelligence Community, we believed that a decisionmaker, on the basis of such information, could reasonably conclude that the use of lethal force against Aulaqi would not violate the assassination ban in Executive Order 12333 or any application constitutional limitations due to Aulaqi’s United States citizenship.

I pointed out that there must be more assassination analysis here. It almost certainly resembles what Harold Koh said about a month later, for which activists at NYU are now calling into question his suitability as an international law professor.

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.”

But the government is claiming that because that didn’t get disclosed in the July 2010 memo, it doesn’t have to be disclosed in the February 2010 memo, and the earlier “significantly different” analysis from OLC doesn’t have to be disclosed either.

At a minimum, ACLU and NYT ought to be able to point to the language in the white paper that addresses assassinations that doesn’t appear in the later memo to show that the government has already disclosed it.

But I’m just as interested that OLC had to change its previous stance on assassinations to be able to kill Awlaki.

Of course, the earlier memo was written during a period when John Yoo and others were pixie dusting EO 12333, basically saying the President didn’t have to abide by EO 12333, but could instead violate it and call that modifying it. Perhaps that’s the difference — that David Barron invented a way to say that killing a high ranking leader (whether or not he’s a citizen) didn’t constitute assassination because of the weapons systems involved, as distinct from saying the President could blow off his own EOs in secret and not tell anyone.

I suggested Dick Cheney had likely pixie dusted EO 12333’s ban on assassinations back in 2009.

But there’s also the possibility the government had to reverse the earlier decision in some other fashion. After all, when Kamal Derwish was killed in a drone strike in Yemen on November 9, 2002, the government claimed Abu Ali al-Harithi was the target, a claim the government made about its December 24, 2009 attempt to kill Anwar al-Awlaki, but one they dropped in all subsequent attempts, coincident with the February 2010 memo. That is, while I think it less likely than the alternative, it is possible that the 2010 analysis is “significantly different” because they had to interpret the assassination ban even more permissively. While I do think it less likely, it might explain why Senators Wyden, Udall, and Heinrich keep pushing for more disclosure on this issue.

One thing is clear, however. The fact that the government can conduct “significantly different” analysis of what EO 12333 means, in secret, anytime it wants to wiretap or kill a US citizen makes clear that it is not a meaningful limit on Executive power.

Anwar al-Awlaki Is the New Aluminum Tube

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Mark Mazzetti, Charlie Savage, and Scott Shane team up to provide the government’s best case — and at times, an irresponsibly credulous one — for the killing of Anwar al-Awlaki and the collateral deaths of Samir Khan and Abdulrahman al-Awlaki.

Yet even in a 3,600 word story, they don’t present any evidence against the senior Awlaki that was fresher than a year old — the October 2010 toner cartridge plot — at the time the Yemeni-American was killed. (I’m not saying the government didn’t have more recent intelligence; it just doesn’t appear in this very Administration-friendly case.) Not surprisingly, then, the story completely ignores questions about the definition of “imminent threat” used in the OLC memo and whether Awlaki was an “imminent” threat when he was killed.

The “linked in various ways” standard for killing Americans

Moreover, the case they do present has various weaknesses.

The story provides a fair amount of space to Awlaki’s celebration of the Nidal Hasan attack (though it does make it clear Awlaki did not respond enthusiastically to Hasan’s queries before the attack).

Investigators quickly discovered that the major had exchanged e-mails with Mr. Awlaki, though the cleric’s replies had been cautious and noncommittal. But four days after the shootings, the cleric removed any doubt about where he stood.

“Nidal Hassan is a hero,” he wrote on his widely read blog. “He is a man of conscience who could not bear living the contradiction of being a Muslim and serving in an army that is fighting against his own people.”

It uses far vaguer language to describe Awlaki’s role in the Faisal Shahzad and toner cartridge plots.

Meanwhile, attacks linked in various ways to Mr. Awlaki continued to mount, including the attempted car bombing of Times Square in May 2010 by Faisal Shahzad, a naturalized American citizen who had reached out to the preacher on the Internet, and the attempted bombing by Al Qaeda in the Arabian Peninsula of cargo planes bound for the United States that October.

“Linked in various ways” seems to be the new standard for killing an American. That, in spite of the fact that Shahzad’s tie to Awlaki seems to be the same Hasan had: an inspiration, but not any involvement in the plot. And while Awlaki is reported to have had some role in the toner cartridge plot, reports from Saudi infiltrator Jabir al-Fayfi apparently fingered others in AQAP as the chief plotters.

I guess that would be too much nuance to include in a 3,600 word article.

NYT doesn’t care about problems with the Abu Tarak explanation

Which leaves the UndieBomb attack as the sole attack in which the NYT presents evidence about Awlaki’s direct role. But there’s a problem with their claims there, too.

The would-be underwear bomber told F.B.I. agents that after he went to Yemen and tracked down Mr. Awlaki, his online hero, the cleric had discussed “martyrdom and jihad” with him, approved him for a suicide mission, helped him prepare a martyrdom video and directed him to detonate his bomb over United States territory, according to court documents.

In his initial 50-minute interrogation on Dec. 25, 2009, before he stopped speaking for a month, Mr. Abdulmutallab said he had been sent by a terrorist named Abu Tarek, although intelligence agencies quickly found indications that Mr. Awlaki was probably involved. When Mr. Abdulmutallab resumed cooperating with interrogators in late January, an official said, he admitted that “Abu Tarek” was Mr. Awlaki. With the Nigerian’s statements, American officials had witness confirmation that Mr. Awlaki was clearly a direct plotter, no longer just a dangerous propagandist.

I don’t doubt that Awlaki was directly involved in this attack in some way. And I got the same explanation about Abu Tarak from “an official” back when I first noted the discrepancy between DOJ’s public claims (thanks for not crediting me on that one, NYT boys). But either Abdulmutallab said something beyond “Abu Tarak was Awlaki,” or the entire explanation is not credible.

That’s because Abdulmutallab’s initial interrogation — according to the version presented by Jonathan Tukel in the opening arguments of Abdulmutallab’s trial — said Abu Tarak did the following:

  1. Spoke daily with Abdulmutallab about jihad and martyrdom
  2. Suggested to Abdulmutallab that he become involved in a plane attack against the United States aircraft
  3. Gave him training in detonating the bomb
  4. Told him to make sure he attacked a U.S. aircraft and make sure the attack takes place over the United States

Yet according to the version of Abdulmutallab’s interrogation presented in his sentencing memo, here’s who did those things:

  1. Awlaki and Abdulmutallab discussed martyrdom and jihad
  2. Defendant and Ibrahim Al Asiri discussed defendant’s desire to commit an act of jihad; Asiri discussed a plan for a martyrdom mission with Awlaki, who gave it final approval
  3. Asiri trained defendant in the use of the bomb
  4. Awlaki instructed defendant that the only requirements were that the attack be on a U.S. airliner, and that the attack take place over U.S. soil

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John Yoo and the Obama White Paper and Killing Americans in America and Yemen

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Just for shits and giggles, compare this paragraph:

In the normal domestic law enforcement context, the use of deadly force is considered a “seizure” under the Fourth Amendment. The Supreme Court has examined the constitutionality of the use of deadly force under an objective “reasonableness” standard. See Tennessee v. Garner, 471 U.S. 1, 7, 11 (1985). The question whether a particular use of deadly force is “reasonable” requires an assessment of “the totality of the circumstances” that balances ‘”the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.'” Id. at 8-9 (quoting United States v. Place, 462 U.S. 696, 703 (1983)). Because “[t]he intrusiveness of a seizure by means of deadly force is unmatched,” id. at 9, the governmental interests in using such force must be powerful. Deadly force, however, may be justified if the danger to the officer’s or an innocent third party’s life or safety is sufficiently great. See Memorandum to Files, from Robert Delahunty, Special Counsel, Office of Legal Counsel, Re: Use of Deadly Force Against Civil Aircraft Threatening to Attack 1996 Summer Olympic Games (Aug. 19, 1996).

With this one:

The Fourth Amendment “reasonableness” test is situation-dependent. Cf Scott, 550 U.S. at 382 (“Garner did not establish a magical on/off switch that triggers rigid preconditions whenever an officer’s actions constitute ‘deadly force.”‘). What would constitute a reasonable use of lethal force for purposes of domestic law enforcement operations differs substantially from what would be reasonable in the situation and circumstances discussed in this white paper. But at least in circumstances where the targeted person is an operational leader of an enemy force and an informed, high-level government official has determined that he poses an imminent threat of violent attack against the United States, and those conducting the operation would carry out the operation only if capture were infeasible, the use of lethal force would not violate the Fourth Amendment. Under such circumstances, the intrusion on any Fourth Amendment interests would be outweighed by the “importance of the governmental interests [that] justify the intrusion,” Garner, 471 U.S. at 8-the interests in protecting the lives of Americans.

The first paragraph comes from this October 23, 2001 Office of Legal Counsel Memo authored by John Yoo. The second comes from the Obama Administration’s November 8, 2011 White Paper on targeted killing.

The Yoo paragraph was a bit of an odd diversion in a memo otherwise laying the groundwork to allow DOD to conduct searches in the US; as far as I know, it was primarily used to enable the National Security Agency (which, after all, is part of DOD) to conduct warrantless searches of US person communications collected within the US. But along the way, Yoo threw in deadly force — within the US — because he had already suspended the Fourth Amendment in the memo and so why not?

The White Paper paragraph would be a relatively uncontroversial paragraph among other more controversial ones authorizing the President to kill an American with no due process. Except that it collapses the distinction between laws that apply to the military and laws that apply to the CIA.

And then, perhaps unsurprisingly, the Fourth Amendment discussion in paragraph 21 (the first in section IIB) only applies to those targeting the US, not members of an AUMF enemy per se.

Similarly, assuming that a lethal operation targeting a U.S. citizen abroad who is planning attacks against the United States would result in a “seizure” under the Fourth Amendment, such an operation would not violate that Amendment in the circumstances posited here.

But wait! The passage goes on to cite two domestic law enforcement cases, Tennessee v. Garner and Scott v. Harris. That’s a problem, because Article II authorities are going to be a covert operation, and therefore the CIA, which is prohibited from serving as a law enforcement agency.

Nevertheless, these respective paragraphs — insofar as they apply domestic law enforcement precedents to purported real threats — are somewhat reasonable expansions of the authority, confirmed in Tennessee v. Garner, to kill an American in hot pursuit, within the context of more controversial memos.

There are two reasons to look further than that, however.

The Posse Comitatus Question

First, there’s Yoo’s analysis, which was treated as law for 7 years, that in the War on Terror, the Posse Comitatus Act did not apply.

Both the express language of the PCA and its history show clearly that it was intended to prevent the use of the military for domestic law enforcement purposes. It does not address the deployment of troops for domestic military operations against potential attacks on the United States. Both the Justice Department and the Defense Department have accordingly interpreted the PCA not to bar military deployments that pursue a military or foreign policy function.

[snip]

Because using military force to combat terrorist attacks would be for the purpose of protecting the nation’s security, rather than executing the laws, domestic deployment in the current situation would not violate the PCA.

Armando Llorens and Adam Serwer have debated — specifically in the context of whether the President could kill Americans within the US — whether PCA applies in this war. And while they’re staging an interesting argument (I think both are engaging the AUMF fallacy and therefore not discussing how a President would most likely kill Americans in the US), what the Yoo memo shows, at the least, is that the folks running the Executive Branch believed, for 7 years, the PCA did not apply.

To be clear, this memo was withdrawn in October 2008 (though not without some pressure from Congress). While the PCA aspect of the opinion is one of the less controversial aspects in the memo, as far as we know it has not been replaced by similar language in another memo. So while this shows that PCA was, for all intents and purposes, suspended for 7 years (as witnessed by NSA’s wiretapping of Americans), it doesn’t mean PCA remains suspended.

Update: Read this post. Bradbury didn’t withdraw the memo. He urged people to use caution before relying on Yoo’s earlier memo. And while he specifically takes apart Yoo’s language on PCA, he leaves intact the military purpose doctrine, including for the use of military force.

The Lackawanna Six and the First Dead American

The earlier Yoo memo is also interesting to review in light of the debate the Bush Administration had in 2002 about whether they ought to use it to declare the Lackawanna Six enemy combatants.

Some of the advisers to President George W. Bush, including Vice President Dick Cheney, argued that a president had the power to use the military on domestic soil to sweep up the terrorism suspects, who came to be known as the Lackawanna Six, and declare them enemy combatants.

Mr. Bush ultimately decided against the proposal to use military force.

Dick Cheney espoused doing so because, DOJ worried, the government didn’t have a strong enough case against the Six.

Former officials said the 2002 debate arose partly from Justice Department concerns that there might not be enough evidence to arrest and successfully prosecute the suspects in Lackawanna. Mr. Cheney, the officials said, had argued that the administration would need a lower threshold of evidence to declare them enemy combatants and keep them in military custody.

Call me crazy, but there’s reason to believe DOJ believed any case against Anwar al-Awlaki had similar weaknesses.

The Lackawanna Six, under pressure of being named enemy combatants, all plead guilty to material support; all have or are reaching the end of their sentence.

Which is where this comes full circle.

Because just months after Dick Cheney contemplated sending the military to capture 5 guys outside of Buffalo (the sixth was in Bahrain getting married), the US killed the first American in a drone strike in Yemen, Kamal Derwish, purportedly the recruiter for the Six.

The same impetus that first contemplated using military force in the US ended in the first drone death of an American. And now, in discussion of the memo authorizing the death of another American (or three) in Yemen, we’re back to discussing whether the President can authorize targeted killings within the US.

I’m not saying the white paper is as outrageous as the Yoo memo. In some ways it is more defensible. In others–specifically in its application to the CIA–it is more of a stretch.

But, as this relatively reasonable paragraph from less reasonable memos makes clear, we really haven’t moved that far beyond where Dick Cheney was in 2002.

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.

Nashiri Asks for the Targeting Package on the OTHER USS Cole Mastermind

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Things just got interesting in the pre-trial hearing for Abd al Rahim al-Nashiri in Gitmo. According to Charlie Savage and Carol Rosenberg, he has asked for the targeting package used to kill Abu Ali al-Harithi in Yemen in November 2002.

While I have no confidence he’ll get the package, he has very good reason to demand it. Here’s what I wrote about the al-Harithi killing two and half years ago.

I find it rather interesting that that 2002 assassination was rationalized in the name of killing al-Harithi, accused of organizing the USS Cole bombing. That strike happened not long after the US started torturing a guy–Rahim al-Nashiri–whom we’re about to try in military commission for organizing the USS Cole bombing. [10/24/12: Correction, we actually started torturing Nashiri in earnest 13 days later] (And remember, al-Nashiri had been in custody in Dubai for a month by the time the US took custody.) Who was the mastermind of the Cole bombing, then? al-Harithi, who doesn’t even merit a mention in the 9/11 Commission report (though reports from when he was killed said he was among the 12 most senior al Qaeda figures), or al-Nashiri, who does, and is about to be tried for it? Note, too, that the Bush Administration did not announce it had custody of al-Nashiri until several weeks laterin November.

Now compare al-Harithi, with his loosely accused role in the Cole, with Kamal Derwish, whom the US accused of recruiting a number of Lackawanna youth into al Qaeda. Not only was Derwish accused of being an ongoing threat–the standard purportedly used to put Americans on kill lists now. But he was accused of training Americans in al Qaeda. Which is not all that different than what the government is accusing al-Awlaki of now.

And note, too, that Priest and maybe Miller [ed. changed per MD’s comment] both now report that the CIA knew Derwish was in the car when they targeted (they say) al-Harithi. When Miller first reported this in 2002, he didn’t mention Derwish’s presence (nor did Pincus). When Priest broke the story of Derwish’s presence in the car, she stated it was unclear whether CIA knew he was there or not.

It was unclear whether the CIA operatives who fired the missile from hundreds of miles away knew that an American citizen was among their targets. It also was unclear whether that would have made any difference.

I guess I’m suggesting that, first of all, it would seem unnecessary to kill a guy for planning the Cole bombing if you knew you had the guy who–you say–planned the Cole bombing in custody. But that claiming a tie between him and the Cole bombing might provide the excuse to target a car carrying your real target, Derwish.

Basically, one of two things is likely true: al-Harithi is the mastermind of the Cole strike, and we knew that before we started torturing Nashiri, in the name of his role as the USS Cole mastermind, in earnest. Or, Nashiri is the real mastermind of the Cole bombing, in which case the al-Harithi story was probably a cover story so we could kill an American citizen, Kamal Derwish, with no due process.

I suspect the second is true (though Nashiri has also asked for the FBI investigative file on the attack; it’s rather stunning he hasn’t gotten it yet–maybe this is the reason he’s being inappropriately tried in a military commission?). In which case this is a kind of graymail, the knowledge that the US can’t turn over the targeting package for al-Harithi because it would show Derwish was the real target.

In any case, it was an interesting legal move.

One-Third of Americans Known to Have Been Killed in Drone Strikes Were US Servicemen

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I agree with Greg Sargent. It is depressing (though I find it unsurprising) that a majority of Democrats support drone strikes on American terrorist suspects overseas.

The Post has just released some new polling that demonstrates very strong support for Obama’s counterterrorism policies, including 83 percent of Americans approving of his use of drone strikes against terror suspects overseas.

This finding, however, is particularly startling:

What if those suspected terrorists are American citizens living in other countries? In that case do you approve or disapprove of the use of drones?

Approve: 65
Disapprove: 26

[snip]

And get this: Depressingly, Democrats approve of the drone strikes on American citizens by 58-33, and even liberals approve of them, 55-35.

The Democratic Party has, under Obama, significantly abandoned a commitment to civil liberties and rule of law, so I’m unsurprised by these results.

But I wonder how Americans would vote if they learned that one-third of Americans known to have died in US drone strikes were servicemen? Here’s the list:

Kamal Derwish, killed November 5, 2002, purportedly as collateral damage on a strike against Abu Ali al-Harithi; Derwish is alleged to have recruited the Lackawanna Six

Marine Staff Sgt. Jeremy Smith, killed in friendly fire incident on April 6, 2011

Navy Medic Benjamin Rast, killed in same friendly fire incident on April 6, 2011

Anwar al-Awlaki, killed September 30, 2011; Awlaki had ties to AQAP, though the Administration has never released evidence to support their claim he was “operational”

Samir Khan, killed in same September 30 drone strike, purportedly as collateral damage; Khan was a propagandist for AQAP

Abdulrahman al-Awlaki, aged 16, killed in drone strike on October 14, 2011, purportedly collateral damage in a strike aimed at Fahd al-Quso, who was indicted in the Cole bombing

Civil libertarians have long noted that the government’s lack of transparency undermines their (possibly entirely legitimate) claims that Awlaki was an imminent threat and the others really were just in the wrong place at the wrong time.

But the case of Smith and Rast points to the other real problem with Obama’s drone program: targeting is prone to analytical errors and Americans may shoot before they’ve confirmed that targets are enemy forces.

A Marine and a Navy medic killed by a U.S. drone airstrike were targeted when Marine commanders in Afghanistan mistook them for Taliban fighters, even though analysts watching the Predator’s video feed were uncertain whether the men were part of an enemy force.

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Revisiting the al-Harithi/Derwish Assassination

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I wanted to expand on this comment, because the discussion of whether Anwar al-Awlaki is on both the JSOC and CIA kill lists or not has focused new attention on the assassination, on November 3, 2002, of Abu Ali al-Harithi and Kamal Derwish.

Greg Miller mentions the assassination in his story today.

The CIA has carried out Predator attacks in Yemen since at least 2002, when a drone strike killed six suspected Al Qaeda operatives traveling in a vehicle across desert terrain.

The agency knew that one of the operatives was an American, Kamal Derwish, who was among those killed. Derwish was never on the CIA’s target list, officials said, and the strike was aimed at a senior Al Qaeda operative, Qaed Sinan Harithi, accused of orchestrating the 2000 attack on the U.S. destroyer Cole.

Dana Priest mentions the assassination in her story on escalated operations in Yemen.

In November 2002, a CIA missile strike killed six al-Qaeda operatives driving through the desert. The target was Abu Ali al-Harithi, organizer of the 2000 attack on the USS Cole. Killed with him was a U.S. citizen, Kamal Derwish, who the CIA knew was in the car.

And ABC mentions it as well.

An American citizen with suspected al Qaeda ties was killed in Nov. 2002 in Yemen in a CIA predator strike that was aimed at non-American leaders of al Qaeda. The death of the American citizen, Ahmed Hijazi of Lackawanna, NY, was justified as “collateral damage” at the time because he “was just in the wrong place at the wrong time,” said a former U.S. official familiar with the case.

Now, all of these articles were written by journalists with long experience in intelligence reporting, so all must know this detail. Still, I find the inclusion of it in all three stories (including Priest’s, in which the focus is on Yemen, rather than assassination) rather notable. Is it possible that all the guys leaking this story have pointed the journalists to the earlier assassination?

I ask because–for starters–I find it rather interesting that that 2002 assassination was rationalized in the name of killing al-Harithi, accused of organizing the USS Cole bombing. That strike happened not long after the US started torturing a guy–Rahim al-Nashiri–whom we’re about to try in military commission for organizing the USS Cole bombing. (And remember, al-Nashiri had been in custody in Dubai for a month by the time the US took custody.) Who was the mastermind of the Cole bombing, then? al-Harithi, who doesn’t even merit a mention in the 9/11 Commission report (though reports from when he was killed said he was among the 12 most senior al Qaeda figures), or al-Nashiri, who does, and is about to be tried for it? Note, too, that the Bush Administration did not announce it had custody of al-Nashiri until several weeks later in November.

Now compare al-Harithi, with his loosely accused role in the Cole, with Kamal Derwish, whom the US accused of recruiting a number of Lackawanna youth into al Qaeda. Not only was Derwish accused of being an ongoing threat–the standard purportedly used to put Americans on kill lists now. But he was accused of training Americans in al Qaeda. Which is not all that different than what the government is accusing al-Awlaki of now.

And note, too, that Priest and maybe Miller [ed. changed per MD’s comment] both now report that the CIA knew Derwish was in the car when they targeted (they say) al-Harithi. When Miller first reported this in 2002, he didn’t mention Derwish’s presence (nor did Pincus). When Priest broke the story of Derwish’s presence in the car, she stated it was unclear whether CIA knew he was there or not.

It was unclear whether the CIA operatives who fired the missile from hundreds of miles away knew that an American citizen was among their targets. It also was unclear whether that would have made any difference.

I guess I’m suggesting that, first of all, it would seem unnecessary to kill a guy for planning the Cole bombing if you knew you had the guy who–you say–planned the Cole bombing in custody. But that claiming a tie between him and the Cole bombing might provide the excuse to target a car carrying your real target, Derwish.