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How Good Are DOJ’s Reasons for Burying Its Case against Anwar al-Awlaki?

Today’s the day Eric Holder explains how his Department decided it was okay to kill a US citizen with no independent legal review, even while he says we should use civilian courts to, uh, give terrorists due process.

Now, at least as of late January, the Administration still planned not to include any real information about its case against Anwar al-Awlaki in Holder’s speech.

As currently written, the speech makes no overt mention of the Awlaki operation, and reveals none of the intelligence the administration relied on in carrying out his killing.

Since much of the evidence that has been used to implicate Awlaki came from Umar Farouk Abdulmutallab, I’m going to return to a question I first raised several weeks ago, why DOJ sat on the information it got from Abdulmutallab implicating Awlaki so long.

In this post, I considered why DOJ published a narrative explicitly describing Anwar al-Awlaki’s role in Umar Farouk Abdulmutallab’s terror plot last month, rather than when it learned the information from Abdulmutallab sometime in 2010. The reason is likely evidentiary. It appears the government never persuaded Abdulmutallab to testify against Awlaki even while he was implicating Awlaki during “plea negotiations,” meaning it’s unclear Abdulmutallab would have repeated the information implicating Awlaki in court. Note, since that post, Abdulmutallab prosecutor Jonathan Tukel confirmed in court that the UndieBomber was offered–but did not accept–a plea agreement.

In this post, I will consider other reasons why DOJ may have buried (and presumably will continue to bury) their case against Awlaki: a desire to hide its signals intelligence, its informants, as well as a desire to win legal cases.

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Government Finally Releases Narrative of Anwar al-Awlaki’s Role in UndieBombing Plot

As part of its sentencing memo asking for multiple counts of life imprisonment against Umar Farouk Abdulmutallab, the government has finally officially laid out how it claims Anwar al-Awlaki was involved in Abdulmutallab’s plot. I’ve included the entirety of the account below the rule.

I agree with Evan Perez. Now that they’ve made this narrative available, surely they can make the OLC memo authorizing Awlaki’s death available (note, the narrative says only that Awlaki and Samir Khan died, not that we killed them).

One more thing I’m interested in. I assume that Abdulmutallab, in this response to this filing, will object if he finds any of this inaccurate (so I assume it is accurate). He appears to have objected to this narrative in the presentencing report (and therefore, here), but he doesn’t say they were inaccurate.

Defendant states that the objected-to paragraphs contain “information obtained during plea negotiations in this matter and can not at this stage be used against him, for sentencing purposes.”

But given certain vague aspects of the narrative, I’m wondering how much corroborating evidence they have (particularly since several of the people mentioned in it are dead–and even Ibrahim al-Asiri, the bombmaker, was rumored to be). For example, the initial communication with Awlaki would involve data evidence. Did they get that after the fact? Or were they tracing it in real time and missed that too? Some of it might depend on other witnesses who have since returned to Saudi Arabia. And I wonder if the government has tracked down (for example) the unnamed middle man who put Abdulmutallab in touch with Awlaki? We know they have physical proof of Asiri’s involvement. What other evidence is out there?

Anyway, it’s high time the government release this information officially. And now that it’s released, they should do more and release the OLC memo.


In August 2009, defendant left Dubai, where he had been taking graduate classes, and traveled to Yemen. For several years, defendant had been following the online teachings of Anwar Awlaki, and he went to Yemen to try to meet him in order to discuss the possibility of becoming involved in jihad. Defendant by that time had become committed in his own mind to carrying out an act of jihad, and was contemplating “martyrdom;” i.e., a suicide operation in which he and others would be killed.

Once in Yemen, defendant visited mosques and asked people he met if they knew how he could meet Awlaki. Eventually, defendant made contact with an individual who in turn made Awlaki aware of defendant’s desire to meet him. Read more

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

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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The Administration’s Many Excuses for Hiding Its Targeted Killing Memo

Remember this article? It describes the debate within the Administration over how readily and extensively to acknowledge the US killing of Anwar al-Awlaki. As it describes, the debate was at least preliminarily resolved at a Situation Room meeting in November.

The issue came to a head at a Situation Room meeting in November. At lower-level interagency meetings, Obama officials had already begun moving toward a compromise. David Petraeus, the new CIA director whose agency had been wary of too much disclosure, came out in support of revealing the legal reasoning behind the Awlaki killing so long as the case was not explicitly discussed. Petraeus, according to administration officials, was backed up by James Clapper, the director of national intelligence. (The CIA declined to comment.) The State Department, meanwhile, continued to push for fuller disclosure. One senior Obama official who continued to raise questions about the wisdom of coming out publicly at all was Janet Napolitano, the Homeland Security director. She argued that the calls for transparency had quieted down, as one participant characterized her view, so why poke the hornet’s nest? Another senior official expressing caution about the plan was Kathryn Ruemmler, the White House counsel. She cautioned that the disclosures could weaken the government’s stance in pending litigation. The New York Times has filed a lawsuit against the Obama administration under the Freedom of Information Act seeking the release of the Justice Department legal opinion in the Awlaki case. (The department has declined to provide the documents requested.)

It came down to what Denis McDonough, the deputy national-security adviser, cheekily called the “half Monty” versus the “full Monty,” after the British movie about a male striptease act. In the end, the principals settled on the half Monty. As the State Department’s Koh continued to push for the maximum amount of disclosure, McDonough began referring to that position as “the full Harold.”

Note especially the stance of Kathryn Ruemmler, the White House Counsel, who argued that any disclosures on the Awlaki killing “could weaken the government’s stance in pending litigation.”

That is, Ruemmler argued the Administration couldn’t voluntarily provide information about Awlaki’s killing, because it might mean it would have to involuntarily give that information up pursuant to a lawsuit over that information. Huh?

Since November, both the NYT (on December 20, 2011) and the ACLU (yesterday) have sued to get the Awlaki memo under FOIA (the ACLU is also suing to get the underlying evidence, including that relating to Samir Khan and Awlaki’s son Abdulrahman).

So I wanted to compare the different responses different agencies gave the NYT and ACLU around the same time that many top Administration officials were advocating for some kind of transparency even while the White House Counsel was arguing that doing so might lead to transparency. Here’s how the government responded to these FOIAs when (I’ve not noted the ACLU appeals, but all were appealed before the subequent follow-up):

Around June 2010: OLC completes Awlaki memo

June 11, 2010: NYT’s Scott Shane FOIAs DOJ OLC for memos on targeted killings

October 7, 2011: NYT’s Charlie Savage FOIAs OLC for memos on targeting killings

October 19, 2011: ACLU FOIAs Anwar al-Awlaki OLC memo, underlying evidence supporting it, and information relating to Samir Khan and Abdullah al-Awalaki

October 27, 2011: OLC denies both NYT requests under FOIA exemptions (b)(1), (b)(3), and (b)(5), and, in response to Shane’s request, also notes that with regards to other agencies, “neither confirms nor denies the existence of the documents” in the request

October 27, 2011: DOJ Office of Information Policy grants ACLU’s request for expedited processing but determines the request fell within “unusual circumstances” so it could not meet the statutory deadline

October 31, 2011: DOD denies ACLU’s request for expedited processing and also claimed “unusual circumstances”

November 2011, unknown date: Situation Room meeting at which Principals decide to pursue a “half monty” strategy of limited release of information on Awlaki

November 4, 2011: NYT appeals its denial

November 7, 2011: USSOCOM denies ACLU’s request for expedited processing and determined the request fell within “unusual circumstances”

November 14, 2011: OLC denies ACLU’s request under FOIA exemptions (b)(1), (b)(3), and (b)(5)

November 17, 2011: CIA denies ACLU’s FOIA “pursuant to FOIA exemptions (b)(1) and (b)(3)” and claims that the “fact of the existence or nonexistence of requested records is currently and properly classified”

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Inspiring Attorney-Client Crackdowns

Those of us who watch Gitmo legal issues have wondered since late last year why the prison had imposed new clean team processes on communications between lawyers and their clients. We learned the beginnings of an answer today. DOD found a copy of the AQAP propaganda magazine Inspire in a detainee’s cell.

Navy Cmdr. Andrea Lockhart blurted out the embarrassing disclosure in defending the prison camps commander’s plan to give greater scrutiny to legal mail bound for alleged terrorists. She was discussing a system used by civilian lawyers to send materials to Guantánamo captives who are suing the U.S. for their freedom through habeas corpus petitions in Washington, D.C.

But the government either didn’t offer or doesn’t know why and how the magazine got there.

Pentagon and prison spokesman could not immediately provide details about which edition of the magazine reached the camps, whether a captive had actually seen one and how prison camp personnel discovered it.

And that’s all the more significant given a detail Spencer Ackerman noted on Twitter: Inspire is English.

Most of the detainees left at Gitmo are Arabs.

Granted, it’s a very glossy magazine. The picture above–the most innocuous I could find in the most recent edition [note, Inspire downloads are tracked by DHS and DOJ, so think twice before you download]–appears in a discussion of torture; perhaps it represents waterboarding.

But for detainees with limited English skills, even quotes like this one, which appeared in the same edition and was attributed to Human Rights lawyer Clive Stafford Smith, appearing among a bunch of self-criticisms of our conduct on the war on terror, would be of interest to detainees, but not necessarily great reading material.

It would be absurd to say that torture never gets a result that’s true; of course it does. I mean I could torture you and get your name very quickly. But the first question you always have to ask is this: is torturing someone making the world safer or is it actually inspiring people, that we’re such hypocrites about democracy and the rule of law, that they hate us more? Now you cannot look at the last ten years and say that what we did in Guantanamo Bay and the torture that we’ve done elsewhere has made the world safer; that’s just an untenable position.

That is, there surely would be topics of interest in the magazine, but Gitmo detainees aren’t the audience. (In this issue, there’s one more mention of Gitmo.)

So why did a detainee have one in his cell?

Maybe the magazine was (remember, it wasn’t necessarily this edition) given to detainees to show what others were saying about the detainees or the torture. Maybe the folks running Gitmo believe whoever got the magazine is still trying to exert operational control, which would be a legitimate, serious concern (though would still not implicate the lawyers).

And I find it rather interesting that this happened some time after Samir Khan, the producer of Inspire, got killed in the Anwar al-Awlaki drone strike.

Or it could be something else, as Shayana Kadidal noted:

“Detainees have in the past received books, truck magazines, chewing tobacco, personal electronics, and fancy underwear as perks of cooperating with interrogators,” said attorney Shayana Kadidal of The Center for Constitutional Rights.

“If this magazine was provided to a detainee by an interrogator, it would not mark the first time that sort of thing has happened,” he said, “nor the first time the government had implied that the detainee’s attorneys must have brought him the item.”

Frankly, I don’t know what to make of it. It could mean anything from KSM exercising operational influence again–which would be a genuine concern–to a guard being nice to a detainee.

But the same magazine that justified the killing of American citizens now serves to justify the infringement of attorney-client privilege.

“Oddly Passive” in the World of Drone Killing

The WaPo has an important piece on the use of drones. One thing bmaz noted about it on Twitter, for example, is that CIA had Anwar al-Awlaki under such multi-drone surveillance before they killed him, it is not credible that they killed Samir Khan, also an American, out of ignorance of his presence. Particularly given their claim they had made sure no “civilians wandered in the cross hairs.”

Two Predators pointed lasers at Awlaki’s vehicle, and a third circled to make sure that no civilians wandered into the cross hairs.

So the article makes it clear that the Administration doesn’t consider non-operational American citizen propagandists “civilians.”

But I’m particularly interested in what a “former official who served in both [the Bush and Obama] administrations and was supportive of the [drone] program” had to say about who was promoting increased use of drones. The official starts by pointing to Hillary Clinton, Leon Panetta, and John Brennan as the program’s champions.

Secretary of State Hillary Rodham Clinton, former CIA director and current Defense Secretary Leon E. Panetta, and counterterrorism adviser John O. Brennan seemed always ready to step on the accelerator, said a former official who served in both administrations and was supportive of the program. Current administration officials did not dispute the former official’s characterization of the internal dynamics.

And then calls the Commander-in-Chief “oddly passive” when it comes to drones.

Obama himself was “oddly passive in this world,” the former official said, tending to defer on drone policy to senior aides whose instincts often dovetailed with the institutional agendas of the CIA and JSOC.

The senior administration official [who also disputed that the drones were driving our counterterrorism policy and not vice versa] disputed that characterization, saying that Obama doesn’t weigh in on every operation but has been deeply involved in setting the criteria for strikes and emphasizing the need to minimize collateral damage.

“Everything about our counterterrorism operations is about carrying out the guidance that he’s given,” the official said. “I don’t think you could have the president any more involved.”

The description of a passive Obama accords with other descriptions of Obama’s role in the drone war. As I noted in October, even Obama’s “approval” of the Anwar al-Awlaki targeting, according to Mark Hosenball, consisted only of not rejecting the recommendations of the Principals Committee’s recommendation (and therefore people like Hillary, Brennan, and Panetta).

The role of the president in ordering or ratifying a decision to target a citizen is fuzzy. White House spokesman Tommy Vietor declined to discuss anything about the process.

[snip]

Other officials said the role of the president in the process was murkier than what Ruppersberger described.

They said targeting recommendations are drawn up by a committee of mid-level National Security Council and agency officials. Their recommendations are then sent to the panel of NSC “principals,” meaning Cabinet secretaries and intelligence unit chiefs, for approval. The panel of principals could have different memberships when considering different operational issues, they said.

[snip]

Several officials said that when Awlaki became the first American put on the target list, Obama was not required personally to approve the targeting of a person. But one official said Obama would be notified of the principals’ decision. If he objected, the decision would be nullified, the official said.

A former official said one of the reasons for making senior officials principally responsible for nominating Americans for the target list was to “protect” the president.

In addition, Joby Warrick’s description of the targeting approval process used before we killed Baitullah Mehsud and his young wife shows just the Director of the CIA signing off on the killing.

So it’s not news, exactly, that Obama has been given plausible deniability about the out-of-control backlash-creating program. Nor that the Administration wants to sustain that plausible deniability while still pursuing political advantage from the drone strikes.

But I am interested in the implication Greg Miller leaves as a result. Obama is passive, and so his senior aides control the program (perhaps one of the aides denying that Obama is passive?), and they, in turn, basically support the “the institutional agendas of the CIA and JSOC.”

Here’s what that senior aide had to say to try to deny that we’re letting a fondness for drones drive our counterterrorism policy.

“People think we start with the drone and go from there, but that’s not it at all,” said a senior administration official involved with the program. “We’re not constructing a campaign around the drone. We’re not seeking to create some worldwide basing network so we have drone capabilities in every corner of the globe.”

It seems there’s a third option, an alternative to “we’re building so many drone bases because we like drones” and “we have so many drones because there are so many possible targets for them.”

That third option is that JSOC and CIA have certain “institutional agendas” that center on wielding the power of drones anywhere in the world to implement a policy they’ve dreamt up rather than their civilian Commander-in-Chief. There’s a hint, at least, that drones not only take the human out of the cockpit, but also take the Commander-in-Chief out of the cockpit as well.

The Waffle House Terrorists “Citizens Who Threaten Our Safety and Security”

When the Waffle House Plot broke last week, I joked that maybe the FBI will start profiling Waffle Houses rather than mosques; they’d probably have more luck finding terrorists there.

But I wanted to make a few points about the plot in addition to what Jim already said.

First, there are actually two sub-plots: one attempt to acquire silencers and explosives to attack federal buildings and employees; just Frederick Thomas and Dan Roberts are implicated in that plot. The other was a half-baked discussion to manufacture ricin. Ray Adams and Samuel Crump are primarily implicated in that plot, with Roberts and Thomas goading them on. That’s significant because while the weapons plot advanced steadily over time culminating in a purchase, the ricin “plot” consisted of some bragging in March, and some taped conversations in September and October, showing not only that the alleged attackers were largely ignorant about ricin, but also appearing to show them coaching the confidential informant in the case how to make ricin, not necessarily making it themselves.

If you’re gonna do this (unintelligible), it’s gotta be built, a hood. There can be no air, can’t be no disturbance.

[snip]

I can get ya seed (castor beans). I know where the seeds is at right now.

[snip]

You take a pound of that (unintelligible), get upwind, up around Washington, DC, get about 20,000 feet (in an airplane), and turn that shit loose, it’d cover the whole (unintelligible) of Washington.

That’s particularly significant because the last two conversations laying out the ricin plot–separate conversations October 29 with both Crump and Adams–were not recorded by the informant. And that informant? He’s a liar.

CHS1 is currently on bond for pending felony state charges. The FBI administered a polygraph test to CHS1 during the investigation of a militia group. The FBI polygrapher determined that CHS1 gave less than truthful responses concerning the activities of the militia group.

In short, the whole ricin plot seems like a bad advertisement for Red Devil lye, since Crump appeared to put off making the ricin because he couldn’t find that brand of lye; Adams, for his part, claimed he’d make lye himself by leaching wood ashes.

Given the lack of seriousness of the ricin plot, it appears to have been incited at the end in time for the bust in the other plot, to use guns and explosives to kill federal workers. That plot started back in March, included a surveillance trip in May, and discussions with an undercover FBI employee about buying weapons on June and July. On September 20, Thomas agreed to trade weapons 30 days later and also to pay $1000 for explosives. In late October, Thomas, Roberts, and the informant put together money to make the purchase. On November 1, Thomas and Roberts bought a silencer and what they believed to be explosives from an undercover FBI agent.

There’s just one weird thing about the evidence presented in the Thomas and Roberts affidavits. They describe planning for the final meeting–at which they’d pool their money to buy the silencers and explosives–to be held on October 29. The affidavits were signed on November 1. The indictment describes them buying a silencer and what they believed were explosives on November 1. But there’s no discussion about what happened at the October 29 meeting. Particularly given that the two ricin conversations on October 29 were not taped, I wonder whether the informant in this case got cold feet?

In any case, that’s what passes for a terrorist plot propagated by a bunch of senior citizen wingnuts.

Now, the plot is interesting for the way US Attorney Sally Quillian Yates used this FBI-abetted sting to warn about the risks posed by [senior] “citizens within our own borders who threaten our safety and security.”

While many are focused on the threat posed by international violent extremists, this case demonstrates that we must also remain vigilant in protecting our country from citizens within our own borders who threaten our safety and security.

I’m grateful that the FBI is finally focusing on domestic terrorists, even if they’re fluffing up the risk just as they do with aspirational Muslim terrorists. But note that, in spite of the involvement of the Joint Terrorism Task Force, it seems Yates can’t force herself to call these dudes terrorists.  Perhaps they should rename the JTTF the JCWOOBWTOSASTF?

And of course there’s another difference between this and the crimes those brown people called terrorists commit. As Manssor Arbabsiar was alleged to have done, these militia members allegedly discussed assassinations. As Arbabsiar was alleged to have done, these plotters allegedly discussed explosives. Whereas with Arbabsiar, there is zero public evidence he affirmatively sought to use explosives to commit assassination, there is here. Unlike Arbabsiar, these militia members actually bought what they believed to be explosives.

And yet, unlike Arbabsiar, these alleged terrorists did not get charged with a WMD charge–not even for their alleged attempt to make ricin. Once again, it seems almost impossible for white terrorists to be charged with the FBI’s favorite charge for brown terrorists.

Finally, one more difference between the treatment of these scary white terrorists and scary brown ones. As TP’s Lee Fang notes (piggybacking off this GAPolitico post), Thomas was a commenter at RedState, where Erick Erickson has called for violence in the past.

Thomas blogged on RedState.com, the website edited by CNN’s Erick Erickson. The Thomas blog post highlighted by Baker and AJC revealed that at one point, he did not “advocate a general rebellion against the U.S. Government for cause,” but seemed conflicted about the idea of violent revolution. Something apparently changed between that unpromoted post, published in July of 2008 and this year, when the alleged plot began taking shape.

A ThinkProgress examination of Thomas’s online writing in the following years shows that the alleged terrorist grew more and more upset, and expressed sympathy with the anti-Obama conspiracies posted on RedState. Last year, he posted a comment to a popular RedState post about the evils of health reform. Thomas claimed that the “ObummerCare Bill” not only “won’t be forgiven,” but will lead to “TYRANNY of the worst order” and “civil war.” (view a screenshot of the comment here)

And as the affidavits make clear, the plot was inspired by a Mike Vanderboegh novel; Fang notes that Thomas has also commented on Vanderboegh’s blog. Last year, Vanderboegh claimed credit for coordinated attacks in protest of the health insurance reform–one of them targeted at Gabby Giffords–in three states.

On Friday, former militia leader Mike Vanderboegh called for anti-Democratic vandalism across the country to protest the health care bill.

Vanderboegh posted the call for action Friday on his blog, “Sipsey Street Irregulars.” Referring to the health care reform bill as “Nancy Pelosi’s Intolerable Act,” he told followers to send a message to Democrats.

“We can break their windows,” he said. “Break them NOW. And if we do a proper job, if we break the windows of hundreds, thousands, of Democrat party headquarters across this country, we might just wake up enough of them to make defending ourselves at the muzzle of a rifle unnecessary.”

And, apparently in response, there were attacks in–at least–Wichita, KS, Tucson, AZ,  Rochester, NY, Niagara Falls, NY.  Vanderboegh has proudly claimed credit for the coordinated attacks.

Now maybe Vanderboegh and Erickson are just the FBI’s latest incarnation of Hal Turner, wingnut bloggers they pay to inspire other wingnuts whom they can arrest in Waffle House plots; maybe the FBI hasn’t tracked their calls for violence at all. But if Vanderboegh and Erickson were Muslim propagandists advocating violence–like Anwar al-Awlaki or Samir Khan–they’d probably be worried about a drone raining down from the sky. I’m definitely not advocating that for any propagandists, whether Muslim or wingnut, being killed for their protected, albeit vile, speech.

But maybe now that the government is using stings to warn of the danger of domestic terrorists, those inciting them ought to think more seriously about how our government combats terrorists.

Feigned Ignorance Means Never Having to Say You’re Sorry

A portion of a photo of Abdulrahman al-Awlaki from his Facebook memorial page.

After the US killed AQAP propagandist Samir Khan in a drone strike, the State Department made two calls to his family to express condolences. Doing so was probably the only way they could maintain the fiction his death was an accident, while still boasting about having killed Anwar al-Awlaki in the same strike. Nevertheless, the right wing has predictably gone apeshit over the apology.

Perhaps it’s because the US has seen no propaganda value in boasting about killing an American teenager. Perhaps they want to avoid similar bitching from the right.

But State appears to be adopting a different approach in the case of Abdulrahman al-Awlaki, the 16-year old son of Anwar al-Awlaki we killed last week. With Abdulrahman, State is feigning ignorance. (h/t JL)

We are aware of media reports that Abdulrahman al-Awlaki has been killed; however, we have not received confirmation of his death from the government of Yemen.

You see, the folks at State apparently don’t read the WaPo, much less FaceBook, and instead have to rely on getting this information from the Yemeni government we’ve surely instructed not to tell us this information. As a result, they have no way of knowing whether they’ve “accidentally” killed an American citizen too young to vote or even enlist without his dead father’s permission.

But hey! Their feigned ignorance means never having to say they’re sorry.

As al-Awlaki Family Mourns Abdulrahman, 16, US Develops “Kamikaze Drones” Targeting Single Humans

A portion of a photo of Abdulrahman al-Awlaki from his Facebook memorial page.

On Saturday, I wrote about a series of Friday drone attacks in southern Yemen.  The most prominent of these attacks killed Ibrahim al-Bana, who is described as the media chief for al-Qaeda in the Arabian Peninsula.  This same attack, however, also killed Abdulrahman al-Awlaki, the son of Anwar al-Awlaki, the American cleric targeted and killed last month in Yemen in another US drone attack.

Yesterday, the al-Awlaki family spoke out for the first time since the deaths, granting interviews with the Washington Post.  Notably, it turns out that Adbulrahman was only 16 years old, despite many media reports (including the AP report as carried in the Post that I quoted Saturday) that he was 21.  Here is how Abdulrahman’s grandfather (Anwar’s father) described the killing:

“To kill a teenager is just unbelievable, really, and they claim that he is an al-Qaeda militant. It’s nonsense,” said Nasser al-Awlaki, a former Yemeni agriculture minister who was Anwar al-Awlaki’s father and the boy’s grandfather, speaking in a phone interview from Sanaa on Monday. “They want to justify his killing, that’s all.”

And Abdulrahman wasn’t the only teenager killed in this attack.  His 17 year old Yemeni cousin also died.  In fact, the family claims the attack took place at a nighttime barbecue and several teenagers were killed:

In a separate statement Monday, the Awlaki family said that Abdulrahman “along with some of his tribe’s youth have gone barbecuing under the moonlight. A drone missile hit their congregation killing Abdulrahman and several other teenagers.”

The Post article also has a link to a Facebook page memorializing Abdulrahman. Read more

How Can Samir Khan Be “Collateral Damage” If OLC Memo Restricted Civilian Death?

Here’s the 32nd of 33 paragraphs in a Charlie Savage story describing the state secrets-protected explanation that justifies the killing of Anwar al-Awlaki.

The memorandum did assert that other limitations on the use of force under the laws of war — like avoiding the use of disproportionate force that would increase the possibility of civilian deaths — would constrain any operation against Mr. Awlaki.

That is, among the other restrictions on the assassination of Anwar al-Awlaki, the memo also said the government had to make efforts to avoid “civilian deaths.”

You know? Civilians? Like Samir Khan, the other American citizen killed in the strike? A propagandist, but not–according to any claim–an operational terrorist?

Yet in spite of the fact they had been following Awlaki for weeks–presumably gathering a good deal of detail in the process–they still killed him in such a way that they didn’t avoid killing an American citizen.

As Savage describes, the memo also says they can only kill someone like Awlaki if they can’t take him alive. But we’ve already seen a stream of articles saying the government simply avoids capture now because it’s … well … inconvenient. Did the David Barron memo prohibit the killing of Americans if capture was inconvenient?

Two more important details of this. First, as seemingly always happens, OLC simply trusted the Executive Branch agency to give it credible intelligence.

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.

I presume the memo says, “you’ve given us this information; if it proves to be otherwise, our advice might be different.”

And then there’s the timing:

December 24, 2009: Administration tries unsuccessfully to kill Awlaki as collateral damage

Before January 26, 2010: Awlaki may or may not be placed on CIA (or JSOC) kill list

April 2010: Awlaki put on kill list

June 2010: OLC opinion authorizing Awlaki assassination

June 2010: David Barron announces his departure

July 2010: Marty Lederman announces his departure

August 2010: ACLU and CCR sue on Awlaki targeting

September 2010: Administration considers charging Awlaki

September 2010: After not charging Awlaki, the government declares the material just leaked to Charlie Savage a state secret

April 2011: The Administration tries, but fails, to kill Awlaki

September 2011: The Administration assassinates Awlaki and Khan

In other words–as Savage suggests–they had Awlaki on the kill list before they had actually done the review whether or not he should be there.

I can see why I’d want to leave the department if that had happened to me in OLC.