Lots of Senior Officials Spilling State Secrets Today
Last year, Director of National Intelligence James Clapper said the following:
I am asserting privilege over classified intelligence information, assessments, and analysis prepared, obtained, or under the control of any entity within the U.S. Intelligence Community concerning al-Qaeda, AQAP or Anwar al-Aulaqi that may be implicated by [Awlaki’s father’s attempt to sue for information about why Awlaki was on the CIA’s assassination list]. This includes information that relates to the terrorist threat posed by Anwar al-Aulaqi, including information related to whether this threat may be “concrete,” “specific,” or “imminent.”
Then Secretary of Defense Robert Gates said the following:
DOD cannot reveal to a foreign terrorist organization or its leaders what it knows about their activities and how it obtained that information.
The disclosure of any operational information concerning actions U.S. armed forces have or may plan to take against a terrorist organization overseas would risk serious harm to national security and foreign relations. Official confirmation or denial of any operations could tend to reveal information concerning operational capabilities that could be used by adversaries to evade or counter any future strikes.
Finally, as discussed below, public confirmation or denial of either prior or planned operations could seriously harm U.S. foreign relations.
The disclosure of information concerning cooperation between the United States and a foreign state, and specifically regarding any possible military operations in that foreign country, could lead to serious harm to national security, including by disrupting any confidential relations with a foreign government. [my emphasis]
Then CIA Director and current Secretary of Defense Leon Panetta said the following:
I am invoking the [state secrets] privilege over any information, if it exists, that would tend to confirm or deny any allegations in the Complaint [about CIA targeting Awlaki for assassination] pertaining to the CIA.
Yet in spite of the fact that these top government officials swore to a judge that revealing operational details about the CIA’s assassination operations, US counterterrorist cooperation with Yemen, and confirmation of prior or planned military operations would harm foreign relations and national security, we’re seeing details like this in reporting on Anwar al-Awlaki’s death:
An American-born cleric killed in Yemen played a “significant operational role” in plotting and inspiring attacks on the United States, U.S. officials said Friday, as they disclosed detailed intelligence to justify the killing of a U.S. citizen.
Anwar al-Awlaki, an American-born radical Islamic preacher who rose to the highest level of al Qaeda’s franchise in Yemen, was killed in a CIA-directed strike upon his convoy, carried out with the U.S. Joint Special Operations Command’s firepower, according to a counterterrorist official, speaking on condition of anonymity to discuss intelligence.
Four individuals were killed in Friday’s attack, according to U.S. officials.
Al-Awlaki had been under observation for three weeks while they waited for the right opportunity to strike, one U.S. official said.
U.S. counterterrorism officials said that counterterrorism cooperation between the U.S. and Yemen has improved in recent weeks, allowing the U.S. to gather better intelligence on al-Awlaki’s movements. The ability to better track him was a key factor the successful strike, U.S. officials said.
Or details like this, including John Brennan’s comments on the record:
Fox News has learned that two Predator drones hovering above al-Awlaki’s convoy fired the Hellfire missiles which killed the terror leader. According to a senior U.S. official, the operation was carried out by Joint Special Operations Command, under the direction of the CIA.
But American sources confirmed the CIA and U.S. military were behind the strike on al-Awlaki, whom one official described as a “big fish.”
The strike hit a vehicle with three or four suspected Al Qaeda members inside, in addition to al-Awlaki. According to a U.S. senior official, the other American militant killed in the strike was Samir Khan, the co-editor of an English-language Al Qaeda web magazine called “Inspire.”
Top U.S. counter terrorism adviser John Brennan says such cooperation with Yemen has improved since the political unrest there. Brennan said the Yemenis have been more willing to share information about the location of Al Qaeda targets, as a way to fight the Yemeni branch challenging them for power. Other U.S. officials say the Yemenis have also allowed the U.S. to fly more armed drone and aircraft missions over its territory than ever previously, trying to use U.S. military power to stay in power. [my emphasis]
Judge Bates, if I were you, I’d haul Clapper, Gates, and Panetta into your courtroom to find out whether they lied their ass off to you last year so as to deprive a US citizen of due process, and if they didn’t, then how long it will be until John Brennan and some other counterterrorism officials get charged with Espionage.
EW (and please feel free to chime in any other Emptywheeler), something really, really bothers me about the deliberateness of the reports purportedly by US officials that the CIA lead this operation as opposed to the US military (even in the form of JSOC).
And it is not just the issue presented by Title 10 (military) versus Title 50 (intelligence/CIA) authorities, notification, etc.
And it finds itself a kindred soul to the Osama Bin Laden operation for the same reason.
Where I’m heading in this “more than rhetorical” question, is why does the US government find it necessary to cloak this operation (and OBL’s) in CIA leadership?
Is there something within the CIA’s charter, or the various Congressional statutes and laws that give it sway, or in Executive office memoranda such as Presidential Findings or Executive Orders that cancel out or supersede obligations under either domestic or international laws and treaties?
@MadDog: Two words come to mind for me: David Petraeus (although he hadn’t yet taken office for the OBL operation, you can bet he was in the loop)
@Jim White: Probably fingerprints all over both.
Ron Paul condems the assassination. Perry and Romney send out Obama love.
“Nobody knows if he ever killed anybody,” Paul said, according to the Wall Street Journal. “If the American people accept this blindly and casually…I think that’s sad.” ********
CNN has a piece up that touches on, but goes a little different direction, the thing that struck me. Saleh’s return to Yemen. There was the faintest of press that half-heartedly asserted that the US was against that return, but it all sounded stupid and empty at the time. He was cushy in Saudi Arabia and waltzing back to Yemen, even when he had promised to step downt his fall and with the Muhbarak trial ongoing – – no way he would go back with the US and Saudi Arabia against it. But without him there, the US operational authorizations gets a bit dicier. Still, in essence the US basically said to Saleh – we’ll trade you a lot of dead Yemeni citizens for our dead US citizen. You kill yours unimpeded, while we promise to keep funneling you money and do nothing to interfere, and you give us the operational care blanche to kill US citizens in Yemen.
And it shouldn’t be forgottent that it is citizens, not just Alwaki. How was editorial staff for a propaganda magazine “operational?” The operational tag is important because they are basically trying to use a “not hot” battlefield “self defense” rationale, based on a version of “imminent” harm that no one will really cough up, much less toss into a cour pleading to defend. Just send Brennan (and before that Hayden) around to wave hands mysteriously when they invoke it as a basis.
So, if it’s ok to kill in him Yemen, what about the US? Isn’t it still “self defense?” Because in the end, that’s their real basis – you can see it in what Hayden and Brennan have tossed around, and a bit from Koh as well. Obama can now rally his crew to applause with his execution/assasination brags too. Both parties have become so frickin creepy and so committed to making every US instituion they can touch creepy as well – it’s way beyond sad.
@Mary: @Mary: Totally agree on the Saleh take, Mary, that’s been way underplayed.
We just sacrificed a shitload of Yemeni people to get Awlaki.
Now that they’ve killed him, he gets a new designation:
“U.S. officials have given Anwar al-Aulaqi a newly elevated designation on the day of his death by drone strike, describing him as ‘chief of external operations’ for al-Qaeda’s affiliate in Yemen.
The new title, cited by officials at the White House and the CIA, reflects Aulaqi’s evolution from Muslim cleric to alleged terrorist plotter, as well as a desire by American officials to persuade the public that the extraordinary killing of a U.S. citizen overseas was warranted.”
The folks over at the Lawfare blog (specifically Ben Wittes and Bob Chesney) attempt to make the case that 5th Amendment “due process” right can be obviated by the locale where a US citizen exists.
In short, their argument is that it was too hard for the US government to arrest al-Awlaki in the location where he was, and for 5th Amendment “due process” purposes, that locale meant killing al-Awlaki would not infringe on his 5th Amendment rights.
Of course, what is really obviated is both Wittes’ and Chesney’s argument by the ABC News information that bmaz linked to that said the following:
In my reading “between the lines”, this is an admission that the US had ample time and opportunity, as well as likely US boots on the ground, to apprehend al-Awlaki.
The issue was not a matter of locale, but a choice by the US government to kill al-Awlaki rather than capture him. This seems to be the very same US government choice made in regard to Osama Bin Laden.
I hope EW isn’t away enjoying lunch, ’cause I’m stuck in moderation on my previous comment (seems like if there are more than 2 links in a comment, that’s where you go).
I’m just teasing you EW. *g*
@MadDog: Ta EW!
@emptywheel: I think so too. And now Saleh is sounding very confident about taking Yemen into civil war.
He’s not going to sign on to the Gulf States supported accord to give him immunity in exchange for stepping down (apparently the best road to immunity is and remains, being a US assassination conspirator). He’s just helped us pull off some murders of US citizens, he don’t need no stinkin immunity.
And he’s now spelled out what he meant by stepping down to allow elections – – that would be, elections in which none of his rivals are allowed to participate. Kind of like the Democratic v. Republican races these days – one party, different chief assassination “Deciders.” Now, he “has officially stated that he will not give up power, as he had first appeared to have promised, if his opponents are allowed to participate in elections ” I think that’s the same deal K Street cut for 2012.
Letters of Marque, Executive Action, Operational Necessity, a re-run of NCIS, take your pick out on Highway 61.
Michael Smerconish interview with President Obama on MSNBC right now and Smerconish asks him whether he “ordered this action” against al-Awlaki, (my paraphrase), and Obama demurs that “he can’t comment on operational details”.
Huh? Did you or did you not order the killing of al-Awlaki? Simple fookin’ question and doesn’t implicate operational details.
What it does implicate is the US President ordering the death of a US citizen, which if I understand just a wee bit of legalese is called “an admission against interests”.
Noteworthy as well was that Obama would not state for the public record that al-Awlaki had been “operational”, but instead quibbled that al-Awlaki had exhorted others to be “operational”.
@MadDog: So the 10th Anniversary gift is now flayed 5th Amendment?
@MaryCh: And nary a best wishes card in sight.
@MadDog: I think it had a lot to do with Saleh’s presence, as well. I think they are partly relying on Saleh’s authorization to operate in Yemen and from June though the last week or so, he’s been in Saudi Arabia and de facto deposed.
Sounds as if the lawelfarians are basically saying that, for example, it wouldn’t violate due process for the US government to just pay a foreign government to assassinate an american citizen in their jurisdiction – or to engage in acts of belligerence that would constitute acts of war (having the US military bomb targets in a foreigh country) to take out a US citizen. That’s crap. The assassination isn’t dependent on any real theory of sufficient due process for the executions – it’s based on a bizarro world self defense rationale. I keep returning to this, but the Executive branch does not have bill of attainder powers to extra-judicially execute citizens, because it’s “too hard” to use the judicial process.
If the can justify based on laws of war – then do that, but the AUMF doesn’t cover Awlaki with AQAP in Yemen who enters the fray pretty damn late. So the “due process” argument that the US PResident can issues kill orders for US citizens that it suspects of wrongdoing because rendition and extradition are too hard in some foreign countries is bull. It’s why we have a constitutional prohibition on bills of attainder – there are always situations where operating judicially is “hard” but the Executive branch and the Executive branch and Legislative branch combined are prohibited from sidestepping the judicial process to enact pains, penalties and punishments an suspected wrongdoers. That’s a prohibition on the power, period. Not a recognition that the power springs from emptiness anyplace where extradition and rendition are “hard.” Some rights are situationally compromised – but the ability of the Executive to subject a citizen to death isn’t. There’s a constitutional prohibition – an express statement that the power does not exist in the Executive or in the Executive and the Legislature combined. argh.
Someone could try to have created some kind of way to wrap the judicial branch into the proces to get around that prohibition, but they haven’t. Maybe it would be even creepier if they had.
Anyway – someone in a foreign country doen’t have a different “due process” analysis when it comes to being made the subject of a bill of attainder to execute them – that’s not a due process analysis, it’s an Executive power analysis; bombing a suspected US wrongdoer in a foreigh country by the military is not a “process” function – it’s nt a judicial function – it’s a function that is constitutionally prohibited from being exercised by the Executive, even with Legislative support. It’s always going to be ‘too hard’ for the Executive to kill its enemies judicially. That’s not a “gee, this is a situation like no other” situation. Yes, you might have to submit to a border search upon re-entry and there are situations like that where some constitutional rights are situational – but the constitutional prohibition of the Exec branch powers of suspect assassination isn’t situational, it’s a full fledged neutering.
I think J. Bates would have been pissed off if they killed Awlaki while the suit was pending. However I don’t think he will stick his neck out now that he is dead.
@Mary: Both Jeremy Scahill:
And Gregory Johnsen (who’s an expert on Yemen) are asking this same question.
@hcgorman: Bates isn’t exactly the stick his neck out kind of guy. He might write a ruling saying that it’s a very serious issue but he doesn’t want to get involved.
What scares me is that Obama is creating precedent after precedent for subsequent presidents to commit acts that should be illegal.
But it may be all due to the G** D*** AUMF. After all, we can’t tie our President’s hands while we are at WAR WAR WAR, can we? [/s]
Sometimes I wonder if he really knows what he’s doing.
Bob in AZ
P.S. HOORAY for the return of the editing bar!
@MadDog: that argument is taken directly out of John Yoo’s book “War By Other Means,” specifically his chapter on assassination in explaining why Derwish and six others were killed also with a Hellfire missile. You’d think Wittes, et al, would try to be a bit more original.
Also, Khan was another US citizen assassinated in the drone strike
@Mary: For some reason I can never remember what a bill of attainder specifically is and I always have to look it up again in Wiki. *g*
@Jason Leopold: They do drone on about it don’t they? Pardon my pun. *g*
@MadDog: You and Hahvard law profs. ;) Except they don’t bother so much with the look it up part. fwiw.
@17 – I’m glad you and they are all over that part of it. I get out of the loop like I’ve been for awhile now and don’t catch up with everyone else who’s already ahead of me before I start rambling.
@Bob Schacht: The scarier thing is that he does know what he is doing; and what he is doing is just not on the radar screen of everyday Joe citizen or the history of the US for that matter. Otherwise none of his actions make any sense, particularly for a democrat president. The concentration of power into a few hands, swathed in a halo of intelligence agencies and corporate media, becomes more evident every day; as does the dwindling power of the people to have any control whatsoever.
The obvious next step is to declare himself president for life, but that might be too obvious even for Mr Alleged Constitutional Lawyer.