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.

89 replies
  1. bmaz says:

    I do not personally know either Lederman or Barron, but I have read both over the years and know people who do know both men and, based on that, am more than a little shocked that either of them, much less both, would sign off on this memo. I have no reason to doubt that both of them worked on the memo, but I wonder if they both truly signed it and, if they did, whether it truly reads exactly as Charlie Savage describes it or, whether, it has been stretched and contorted by the administration to provide it with nominal cover for their acts. It is awfully telling that both men were gone within little more than a month of what appears, at least, to be the effective date.

  2. emptywheel says:

    @bmaz: I sort of wonder whether–adding Hosenball to Savage–they gave Lederman and Barron transparently bad info.

    You’ve got to give an answer. But you can give what is basically an Iraq war case, and there is no check for that.

    • bmaz says:

      See, that is why the calls for “just release the legal reasoning” don’t cut it. Because we have seen that naked legal reasoning, in the absence of meaningful and accurate facts, doesn’t mean squat.

  3. emptywheel says:

    There’s another problem with this collateral damage thing.

    When you ask the CIA, they’ve NEVER killed civilians (or maybe, they’ve killed 9). But they kill a whole lotta people like Khan.

  4. Peterr says:

    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?

    I’d love to see how the OLC defines “civilian.”

    • bmaz says:

      The Northwestern Fighting Journalists appear to have written their own obituary. Death cause by Wolverine….

  5. Don Bacon says:

    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.”

    No, the memo didn’t say that. The memo said: “avoiding the use of disproportionate force that would increase the possibility of civilian deaths”

    on disproportionate force

    Marc Garlasco, who once worked on targeting at the Pentagon, explained the calculus of civilian deaths in high value targeting to the television news program 60 Minutes this way, “Our number was 30. So, for example, Saddam Hussein. If you’re gonna kill up to 29 people in a strike against Saddam Hussein, that’s not a problem. But once you hit that number 30, we actually had to go to either President Bush, or Secretary of Defense Rumsfeld.”

  6. orionATL says:

    “…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…”

    look, the killing of al-awlaki was u.s. sponsered, state-sponsered terrorism.

    there really can be no doubt of that.

    the message in his death was the same as that in the deaths of afghani taliban – “maybe you’d like to find another line of work, huh?”

    al-a was a mouthy muslim preacher. because he spoke (american) english so well, he had appeal for american/european muslim youth.

    as the saying goes: such men are dangerous.

    of course, he has been gov’t “linked” to 5 or so terrorists, at least some of whom were mentally ill.

    but it is clearly irrelevant that “terrorist” “success” in america began and ended on the very same day – ten years ago.

  7. bmaz says:

    @Don Bacon:

    Listen, here is exactly what Charlie’s article said

    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 civilians deaths — would constrain any operation against Mr. Awlaki.

    It says exactly what it says, and the memo is specific as to the Awlaki situation and does not have jack to do with you inapposite Iraq analogy as, again, this is a specific directive and, secondly, this memo covers action off of a designated battlefield, which is completely different than Iraq. You have not thought through this.

  8. MadDog says:

    @bmaz: I don’t know whether this is a) true, b) relevant, but I downloaded a copy of the US Government’s Motion to Dismiss Brief that they filed in opposition to the ACLU’s and Awlaki’s father’s filing. I got my copy from a Bob Chesney post over at Lawfare.

    When I right-click on the Brief and select Document Properties, the Author listed is one “mlederman”.

  9. Don Bacon says:

    Awlaki is simply the tip of an iceberg, a visible representative of the thousands of people the US has wantonly killed in these stupid wars. It’s been done by many means: bombs, rockets, snipers, artillery, tank fire, the larger munitions using various warheads: high explosive, fragmentation, white phosphorous (there’s a hurting thing) including colorful cluster bombs which little kids pick up and then get an arm blown off.

    This is war — not a lawyer’s convention. Wars are messy things, with death, injury, rape, mutilation, torture — the whole nine yards.

    I’m sorry, but focusing on lawyer-ese regarding one or two deaths is an insult to the tens of thousands of dead, not to speak of the debilitating injuries to tens of thousands more, including old men, young men, women, and kids, lots of kids. All the pretties of war that encumber veterans with PTSD when they get home, and drive many of them to homelessness, begging and suicide.

    The lawyers are simple accessories after the fact. They mean nothing.

    Awlaki was an American? He was incidentally born in the U.S.? So what. All world citizens are our brothers and sisters, and the state-caused death of anyone diminishes us all, particularly when it is our state doing the wholesale (and retail in this case) killing.

  10. MadDog says:

    “…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…”

    I made the point here when the news of the Awlaki killing broke that not only was it the case that the US government must’ve had “eyes-in-the-sky”, they must’ve also had “eyes-on-the-ground”, and in both instances there was absolutely no credible way these “eyes” weren’t operating in real-time.

    Simply put, the US government watched as the folks got in the Toyota truck(s), that there was a positive identification of Awlaki at that very moment, and that there was no way that the US strike was going to take place unless that ID confirmation came from a US pair of “eyes-on-the-ground”.

  11. orionATL says:


    if there were spies-on-the-ground when al-a left the funeral,
    then they would have known and would have transmitted that info to the cia.

    ergo, the cia knew precisely who it was killing.

  12. Jason Leopold says:

    From a March 26, 2010 David Ignatius column in the WaPo:

    “Last October, the Yemeni government came to the CIA with a request: Could the agency collect intelligence that might help target the network of a U.S.-born al-Qaeda recruiter named Anwar al-Aulaqi?

    “What happened next is haunting, in light of subsequent events: The CIA concluded that it could not assist the Yemenis in locating Aulaqi for a possible capture operation. The primary reason was that the agency lacked specific evidence that he threatened the lives of Americans — which is the threshold for any capture-or-kill operation against a U.S. citizen. The Yemenis also wanted U.S. Special Forces’ help on the ground in pursuing Aulaqi; that, too, was refused.”

  13. bmaz says:

    @Don Bacon: What an ignorant load of crap. Do you understand what the oath is that both the elected leaders and the members of the military of this country swear to? I got news for you, it is the Constitution, and that is what we are talking about here. Well, most of us anyway, clearly you cannot quite climb up to that wavelength.

  14. MadDog says:

    @orionATL: I would further make the case that there was no way that the CIA, the agency purported to be leading the operation, would ever depend on foreign “eyes-on-the-ground” to real-time validate the identification of Awlaki before killing him.

    No fookin’ way!

    I believe that there were US forces on the ground. Probably JSOC folks (US Army Delta Force, Navy Seals, etc.) working in concert with their Yemeni Special Forces counterparts watching in real-time as Awlaki and his colleagues got into the Toyota truck(s).

    I don’t believe that the actual real-time identification of Awlaki was done via Predator or Reaper drone camera. While the camera technology is likely very good, I find it unlikely that it is good enough for positive identification.

  15. MadDog says:

    One additional point that Charle Savage makes, and I think that he makes it his most salient point is this:

    “…The memorandum is said to declare that in the case of a citizen, it is legally required to capture the militant if feasible — raising a question: was capturing Mr. Awlaki in fact feasible?

    It is possible that officials decided last month that it was not feasible to attempt to capture him because of factors like the risk it could pose to American commandos and the diplomatic problems that could arise from putting ground forces on Yemeni soil. Still, the raid on Osama bin Laden’s compound in Pakistan demonstrates that officials have deemed such operations feasible at times…”

    Based on my previous comments on the likelihood that there were indeed US forces on the ground watching Awlaki, the “diplomatic problem” Charlie refers to was less about actually having US forces on the ground (something I believe has been authenticated in previous Yemeni US operations), but instead had more to do with the public perception issues with Americans killing other Americans face-to-face, and that it was judged “cleaner” by the DC policymakers to take Awlaki out with a “surgical” impersonal drone.

  16. MadDog says:

    @bmaz: I thought of that too. Or that perhaps somehow Marty made a copy of the brief for Bob Chesney and somehow Marty’s name inadvertently got put in the PDF as the author.

    But further thought on the matter seems to lead me away from either of those possibilities.

    While there were a number of DOJ folks who professed by name to be submitting the brief for the US government (including our old bugaboo Tony Coppolino), it would seem likely that in this particular case, DOJ Headquarters had to be the authoritative source for this brief, and that in this brief, two OLC-type arguments seem to rise to the top.

    1) States Secret Privilege – an obvious point to be argued by the OLC.

    2) Plaintiff’s Claims Require the Court to Decide Non-Justiciable Political Questions – this seems right down OLC’s alley.

  17. Tom Payne says:


    It [the memo authorizing assassination of al-Awlaki] was principally drafted by David Barron and Martin Lederman, who were both lawyers in the Office of Legal Counsel at the time, and was signed by Mr. Barron. The office may have given oral approval for an attack on Mr. Awlaki before completing its detailed memorandum. Several news reports before June 2010 quoted anonymous counterterrorism officials as saying that Mr. Awlaki had been placed on a kill-or-capture list …

    I’m stunned to see Lederman’s name attached to this. He was one of the most eloquent critics of the overreach by the Bush Administration. What happened?

  18. bmaz says:

    @Tom Payne: So was David Barron for that matter. In some regards, although I think both had more nuanced objections than many on the left want to remember. Still, that said, I too am surprised. I suspect there are a lot of moving parts here and they may not be in quite as deep as it appears as Marcy and I discussed above. Or they might. Who knows. It is pretty ugly though, no matter how you look at it.

  19. Tom Payne says:

    @bmaz: I’ve read Barron but don’t recall the flavor of his writing. Lederman, on the other hand, used to post a lot of great stuff at He was very critical of the illegalities of the Bush Administration. I’m stunned if he really approves of such due-process-free executions.

  20. emptywheel says:

    @MadDog: I don’t think that necessarily holds. The drones have the ability to see close details from the sky. The only question is whether they had an angle to do so.

    Which is not to say there weren’t people on the ground (particularly since JSOC was reputed to have had a role). Just that it is not necessarily true.

    And that the larger point sill stands–the level of detail they seem to have had is enough that they probably knew Samir Khan was also in the car.

  21. emptywheel says:

    @bmaz: It may simply be that Marty made a copy then passed it on to Chesney, who didn’t entirely resave it.

    Plus, when did Marty go back to GL? September semester or January?

  22. mls says:

    “Yoo’s critics, such as Georgetown Law professor and fellow Office of Legal Counsel veteran Martin Lederman, went one step further: Because of the Military Commissions Act, the Bush-Cheney legal team’s dubious theories about a president’s vast wartime powers were now completely safe from any further judicial repudiation. And in the future, other presidential legal teams, charged with writing secret Office of Legal Counsel memos telling the president what he can and cannot do, can similarly go down radical paths with the impunity that comes from having no fear of judicial review. Now more than ever before, the law would be simply whatever the president’s handpicked lawyers said it was.” Charlie Savage, Takeover 323.

  23. Don Bacon says:

    I love it when you talk ‘shit’ and ‘crap.’ It always indicates lack of an argument. Specifically, what part of the Constitution were you referring to?

  24. MadDog says:


    “I don’t think that necessarily holds. The drones have the ability to see close details from the sky. The only question is whether they had an angle to do so…”

    Pardon my play on words, but I’m still not seeing it. From what I understand, and I could well be way off base, the Predator/Reaper drone requires Height to maintain its covertness and in order to have a good side angle would require Distance.

    The Height factor of the Predator drone is described as “usually operates around 15,000 feet” and when you add Distance factor in order to have an angle which shows more than the top of a person’s head, seems to make any camera carried have a Focal length too large to provide positive facial recognition.

    I did a little test over at the Lens Focal Length Calculator site and here’s what it produced:

    Object Size: 1828.8 mm (6 Feet)
    Image Size: 24 mm (I left this default in though I tried even bigger numbers which blew the Focal Length beyond comprehension)
    Object Distance: 4572 m (15000 feet – just the Height factor alone without a Distance factor to help with the angle)

    The result was a Focal Length of 4389120 mm. According to the L3 Model 14 Skyball spec sheet, the camera type is a Sony XC-999 1CCD with a Focal Length of 955 mm.

    There is a major difference between needing a camera lense with a Focal Length of 4389120 mm to provide a picture of a 6 foot tall individual and only having camera lense with a Focal Length of 955 mm.

  25. MadDog says:

    @MadDog: Since I ran out of the number of allowed links, this comment has a couple more that were germane:

    The Air Force’s own spec sheet: Predator RQ-1 / MQ-1 / MQ-9 Reaper – Unmanned Aerial Vehicle (UAV), USA which shows the following:

    “…The surveillance and reconnaissance payload capacity is 450lb and the vehicle carries electro-optical and infrared cameras and a synthetic aperture radar. The two-colour DLTV television is equipped with a variable zoom and 955mm Spotter. The high resolution FLIR has six fields of view, 19mm to 560mm…”

    (My Bold)

    The L3 Model 14 Skyball spec sheet which shows the camera type is a Sony XC-999 1CCD with a Focal Length of 955 mm.

  26. MadDog says:

    @emptywheel: With the US government filing dated 25 September 2010, I also wondered exactly when Marty Lederman actually left the OLC.

    Is the filing his work? Don’t really know and I can’t say that just the Author name is authoritative.

  27. MadDog says:

    @bmaz: That could be in use also, but the Lockheed “Beast of Khandahar” is stealthy to radar and not to visual wavelengths.

    Its value is the highest like all stealth aircraft at night. Daylight operations like the Awlaki kill strike leave it vulnerable to the human eye and that is why all these drones, stealthy or not, try to maintain their covertness by both their height and distance from their target.

  28. Don Bacon says:

    It’s not a constitutional question when a state of war exists. Due process only applies in civil and criminal law, not in military matters.

    The argument is that Awlaki was an enemy combatant, a member of al Qaeda which the US is at war with since 9/11, and his disposition is therefore up to the commander-in-chief and subject to his actions. Put another way, if Obama has the authority to kill any foreigner on the slightest pretext, even ‘suspected insurgents’ against an ally, he certainly has the authority to kill an (AQ) enemy of the US, American or not, and not subject to any lawyering.

    This is how the general situation forms a foundation for the specific situation, a formulation you obviously can’t grasp in your narrow focus on OLC memos. OLC memos!

    In any case, WH lawyers generally do what they’re told to do, which is to back up the boss, or they’re not WH lawyers any longer. Lawyers in government bureaucracies are generally a pain in the ass anyhow, in my experience. Always telling you that something can’t be done because of some picky consideration, so you listen to them and then do it anyhow.

  29. MadDog says:

    @MadDog: Oh btw, I am a total ignoramus when it comes to cameras, imaging, photography and the like. I don’t own a camera (though I once had a video camera) and I don’t want anyone to assume any expertise on my part. I’m utterly dependent upon the Internet to supply my “knowledge”.

    I will gladly defer to the experts and eat any crow they dole out. That said, I’m willing to go out on a limb and speculate that the US government’s “eyes-in-the-sky” via drones would be unlikely to provide a positive visual identification of Awlaki.

    A man with a beard, yes, but that’s too commonplace in the ME to make that a positive Awlaki ID. I’m still wagering that “eyes-on-the-ground” made the positive ID.

  30. emptywheel says:

    @MadDog: The only thing that prevented them from making a visual ID of OBL was he took precautions against it. They are technically capable.

    Again, that’s not to say they didn’t have boots on the ground, just that it might not have been necessary.

  31. emptywheel says:

    @Don Bacon: See, you’re already simplifying.

    A “state of war” doesn’t exist in Yemen, which is part of the problem. And then there’s the point that AQAP probably shouldn’t be included in the AUMF, which means a state of war WRT Awalaki doesn’t exist anywhere in the world (and your labeling of him as AQ, as opposed to AQAP, is problematic).

    So you’re ignoring the general situation entirely.

    The reason OLC memos are relevant is because they at least should take the real general conditions–not the sloppy ones usually adopted by people discussing this–and decide on legal authorization.

  32. bmaz says:

    @emptywheel: My inclination is there were some ground based assets in play base on how long and deeply they had had Awlaki under surveillance and the way the CIA/JSOC teams appear to work. Although, to be sure, this operation was different than OBL, I think there are some hints to be gained. The better question may not be were there people on the ground but rather how close and active in the last second ID and targeting were they?

  33. MadDog says:

    @Don Bacon: I would, and do, argue that whatever “evidence” the Administration says they have, and however strong or weak it may be, the fact remains that the Executive branch advocating for killing Awlaki only consulted with employees of that very same Executive branch.

    That is an inherent conflict of interest! The Constitution’s 5th Amendment requires due process to take a person’s life. This is like the Prosecution in a criminal case also making itself both the Judge and the Jury. That is not due process!

    The “state of war” you so assuredly seem to think exists has not been so declared by Congress. AQAP did not even exist when the 9/11 AUMF that covers Al-Qaeda was passed, and stretching it to cover other groups that did not participate in 9/11 is what the last 2 Administrations have done.

    Basically, what we have here is the Executive branch throwing away the rule book (the Constitution – the Declaration of War function as well as the 5th Amendment) and deciding on its own that it can execute an American citizen without charges, trials, convictions, or recourse from anyone.

    That ought to be a scary prospect for all American citizens.

  34. Don Bacon says:

    According to DOD, Operation Enduring Freedom is taking place in: Afghanistan, Guantanamo Bay (Cuba), Djibouti, Eritrea, Ethiopia, Jordan, Kenya, Kyrgyzstan, Pakistan, Philippines, Seychelles, Sudan, Tajikistan, Turkey, Uzbekistan, and Yemen.

    Operation New Dawn is in the Arabian Sea, Bahrain, Gulf of Aden, Gulf of Oman, Iraq, Kuwait, Oman Persian Gulf, Qatar, Red Sea, Saudi Arabia and United Arab Emirates.

    also Operation Odyssey Dawn in Libya.

  35. emptywheel says:

    @Don Bacon: Ah, that’s why the Constitution actually matters, which you want to ignore.

    Remember that declaring war bit? We didnt’ declare war against those countries, particularly not against our allies Jordan, Turkey, Saudi Arabia, and Kuwait, among others.

    Which is why the law is different.

    And from there you have to prove an affirmative tie to the AUMF, which is AQ, NOT AQAP (though both Admins like to ignore that fact). So while they may have found people w/ties to AQ in, say, Turkey, that doesn’t mean there’s a state of war there (or shouldn’t).

    If the law were really as sloppy as you’re pretending then the govt could kill certain environmentalists anytime they left the US, if even that were necessary.

  36. orionATL says:

    i don’t know or care whether lederman had a hand in writing the “opinion”, read
    “requested rationale”.

    i do care very much that some lawyers working for the united states gov’t could slip and slide and sneak around:

    – a presidential ban on assinations

    – congressional laws on assinations by american officials

    – the 4th amend to the u. s. constitition

    – the 5th amend to the u.s. constitution

    – the 1st amend to the u.s. constitution

    is an indication of just how corrupt american legal thinking has become.

    the obvious, not to mention the just and the legal, solution to the awlaki “problem” was to capture and try him.

    if the u.s. military can fly into pakistan and assasinate o bin-laden, then it can certainly go into the yemini desert and capture al-a (think huey with a giant, winched electromagnet for attaching to the tops of speeding toyotas).

    the obama tough-guys wanted to assasinate al-a.

    they had no interest in capturing and trying him; that would have been noisy and messy and lasted for years with an uncertain outcome (like public, civilian guantanamo trials).

    that some doj lawyers could weasel their way around a set of clear societal decisions for due process and against assasination,

    makes it extremely clear just how dangerous to this society institutional lawyers are – by institutional lawyers i mean lawyers for, e.g., governments or corporations.

    it is hard to exaggerate just how contemptible, morally cowardly, and illegal the olc lawyers were.

    as an aside to this legal farce, the “release” of this olc/doj document to the nytimes by “persons who have read it”

    is standard operating procedure for the obama administration. just as with the economic advice given the president, the realease of this legal advice is used to imply that our prez just did what he was told was ok to do as if he were merely a passive prez.

  37. MadDog says:

    @emptywheel: I’m glad you brought the OBL killing up EW. *g*

    I was thinking earlier this morning of comparing the two kill strikes; OBL versus Awlaki, and what were the differences that lead to the choice of how to do the killing.

    In OBL’s case, the air surveillance (by satellite and perhaps drone) was never able to positively identify the “tall man” who paced about the compound every now and then.

    The “on-the-ground” visual surveillance likewise was not able to positively identify the “tall man” either. Perhaps simply because the “tall man” never left the compound.

    Two other reasons for the “face-to-face” killing verus drone attack choice made in regard to OBL were the presence of innocent women and children, and the need to make positive identification. Bombing and/or a drone strike might destroy the very DNA, fingerprint and/or dental evidence required for the ID.

    In the case of Awlaki, the presence of innocent women and children was apparently not an issue, at least in the latter part of the several weeks of surveillance, and “on-the-ground” positive visual identification meant that DNA, fingerprint and/or dental evidence needed for the ID wouldn’t be required.

    If I’m imagining the secret White House group that met to determine the fate of OBL and Awlaki, I could easily imagine their decision matrices informed them that OBL killing strike had to be “face-to-face” and the Awlaki killing strike could be done more “conveniently” by drone.

  38. Don Bacon says:

    Declaring war is an anachronism, I don’t think we should go there on this issue (although it’s a great constitutional issue in itself–including the unconstitutional war powers act, which isn’t obeyed either as in Libya).

    Regarding AQ not being a monolithic organization, it isn’t even an organization at all. If I were to start a ‘blowback’ team in any country, I too would name it al-Qaeda XXX and thereby get some great funding from a Saudi prince or two. But we must admit that the standard, accepted rhetoric that has been successfully promoted by the US is that al Qaeda is a strong world-wide terrist organization that is determined to turn us all into Islamic zombies if we don’t kill them first. Environmentalists are in a different category (so far). Terrific bloggers like EW, too.

    I really don’t want to ignore the Constitution. I’m trying to recognize reality, which includes a full appreciation for the depth of the swamp we’re in with all this war. Frittering around the edges is a tacit acceptance of the greater situation, which is why I have to be a little hard on you, which I don’t enjoy. All’s fair in love and war?

    Are you going back to Holder? :-)

  39. MadDog says:

    @Don Bacon:

    “Declaring war is an anachronism, I don’t think we should go there on this issue…I really don’t want to ignore the Constitution…”

    I can understand the visceral underpinning of your thoughts. Still, if the Rule of Law, the Constitution, and perhaps even more basic, human decency, are but some ephemeral conceptual thingies that don’t matter in in the “real world”, what does matter? Mere survival where anything goes?

    Many human beings over the course of the entire history of our species have sacrificed their very lives for these ephemeral conceptual thingies. We ignore them at our own peril.

  40. bmaz says:

    @Don Bacon: The ease with which you pull poo out of your rear legal conclusions is far the other side of amazing. Does somebody pay you to troll this ignorance, or is it just a hobby? Please tell the legal basis for the declaration the War Powers Resolution is unconstitutional. And please be mindful that while people blithely like to spew that meme, NO administration has EVER formally made that assertion, and, in fact the current one has done just the opposite and has stated the WPR IS Constitutional.

  41. Don Bacon says:

    I love the Constitution but I can also recognize, and not deny, reality when I see it. We can’t realistically demand that the US end Operation Enduring Freedom in all its locales simply because it wasn’t constitutionally declared, can we. The US leaders still use 9/11(and AUMF with it) as a rationale for whatever they do, and it certainly doesn’t get any push-back, does it. Even when the citizens in the polls declare that OEF is unpopular, it goes on and on and on. Ten years and counting, with no end in sight. 2014 depends upon the Afghan army, which is a joke. OEF even includes 600 US forces in the Philippines! There seems to be no limit.

  42. Don Bacon says:

    I love it when you talk dirty, and I swear your bacon joke is a scream, probably the best I’ve ever heard and believe me I’ve hear a lot. Being anonymous gives you a real advantage in that department, and I’m happy to see you taking advantage of it. You need all the breaks you can get.

    I like the ‘troll’ charge too — it shows that old FDL strain where if someone isn’t in the amen chorus he’s a ‘troll.’ Phoenix woman used it once on me. Shows a complete lack of having anything substantial to say. ‘Course she got real human after that, I’ll give her credit for that.

    That’s the problem with many liberals — they’re illiberal. Now run along, I hear your mother calling.

  43. emptywheel says:

    @Don Bacon: One way to attack the war is to get the elite to understand just how dangerous the ideas at its center–such as, that you can kill an American citizen w no due process–are.

    I believe I was the first to ask for the evidence and, then, to call attention to the secrecy hypocrisy the Admin is relying on to hide their justification here. And elites on both the right and left have since joined me.

    That won’t get us to withdrawal immediately. But it will chip away at the legitimacy of the tactics.

  44. MadDog says:

    @Don Bacon: I’ve been polite in responding to your previous commentary. Your last comment sounds rather desperate. That too is polite considering the circumstance.

  45. MadDog says:

    To Kill or to Capture?

    I wanted to return to one of the more important points that Charlie Savage raised in his piece that I referred to earlier.

    Namely the “myth” that the US could not have attempted to capture al-Awlaki. There have been numerous pieces propagating this “myth” by a number of folks including Lawfare bloggers such as this one by Ben Wittes:

    “…(2) no option for capture plausibly exists without undue risk to forces or civilians…”

    Let’s deconstruct Ben’s statement of belief pretending to be fact, shall we?

    Dozens of times every night for years now, US Special Operations forces have carried out raids against far more skilled and experience insurgent warriors in Afghanistan at far greater risk to themselves with far less reward than would have been the case with US Special Operations forces attempting to capture (or kill) al-Awlaki & Co.

    I would hazard a guess that if one asked any of the tens of thousands of enlisted US Special Operations forces whether:

    1) They thought trying to capture al-Awlaki & Co. would be difficult, they’d answer “Are you kidding? Piece of cake!”
    2) They would be willing to undertake such a mission? They’d again answer “Duh! We do this every single fookin’ day!”

    Another purported US rationale against US boots on the ground attempting to capture al-Awlaki & Co. was there might be a diplomatic kerfluffle.

    Hah! In Yemen? Don’t make us all laugh! The US chose to put US boots on the ground in Pakistan to kill OBL, and there was a whole lot more potential and real diplomatic consequences to our relationship than in the nearly failed state of Yemen.

    Additionally, the purported US diplomatic rationale against US boots on the ground in Yemen to capture (or kill) al-Awlaki & Co. is purely fiction.

    News reports sourced from US government officials have stated quite clearly that not only were Marine Harrier jets prepared to violate Yemen sovereignty (though they probably had Yemen’s approval), but that there was a Special Operations CV-22 Osprey loaded with JSOC forces ready and waiting to accomplish the mission to capture (or kill) al-Awlaki & Co.

    So now that we’ve disposed of these two tissue-paper thin arguments, let’s also deal with the issue of value of capturing al-Awlaki.

    If al-Awlaki was as important to the operations of AQAP as the US government would have us all believe, why then would the US government not want to capture and interrogate him to obtain all of this purported valuable operational intel?

    Could it be the case that al-Awlaki really wasn’t of any operational importance to AQAP, but that he was instead valuable to them as a propaganda and recruiting tool? One does wonder, doesn’t one?

    I think that based on evidence it is quite clear that the US government chose to kill rather than to capture Awlaki & Co.

    Their rationale may have been simply nothing more than expediency. It may have been the US’s National Security State bureaucratic laziness. It might have been, paraphrasing Bill Clinton, simply because they could.

  46. orionATL says:


    nice argument.

    i’d add an odd little point.

    if al-awlaki was that important to aqap, why was he riding around in the desert without much of, or any, military escort.

    i doubt the u.s. will ever find ayman zwahiri in similar casual security circumstances.

  47. rhgreen says:

    @MadDog: Interesting comment. Points raised bring to mind the “debate” as to whether David Koresch (sp?) could have been arrested when he was out jogging alone; further the lack of concern about the fate of collateral civilians. Also too, I note that Greenwald has a blistering take on Savage’s article, and on the role of … lets say, St. Marty in the OLC opinion. This last point should be of special interest to Don Bacon and his low opinion of lawyers.

  48. orionATL says:

    anorher odd thought:

    the u.s. seems to have a fetish for gathering dna to be sure they’ve killed who they think they have.

    did they confirm al-a’s death thru dna evidence? if so, how’d they come by it.

  49. rg says:

    @MadDog: Interesting comment. Points raised bring to mind the discussion about whether David Koresch (sp?) could have been arrested while jogging alone. Also too, Glenn Greenwald has a blistering post on Savage’s article and the role of, shall I say, St. Marty in the OLC opinion. This should be of interest to Don Bacon and his low opinion of lawyers.

    With regard to previous remarks concerning visual identification of Awlaki, and the issue of innocents, it would seem unlikely that Awlaki drove himself to and from a formal occasion, such as a funeral, given his status. He must have had a driver and that must have been known. That driver could have been Khan or anyone. One wonders if the slaughter of innocents was ok as long as there 29 or fewer, especialy if one of them is also “an inconvenience”.

  50. earlofhuntingdon says:

    I fail to see, still, how even as great a statute as the AUMF can override constitutional protections. It is, or was, constitutional law 101 that the Constitution is the supreme law of the land, its final meaning is the exclusive prerogative of the Supreme Court, and it can be amended only according to its terms. Neither Mr. Bush nor Mr. Obama have proposed or managed its amendment. So what they have and are doing in this regard would seem blatantly illegal.

    As George Smiley said more than twenty years ago, we have given up too many freedoms for security and it’s time to take them back. Pregnant thoughts for a once and future spymaster.

  51. bmaz says:

    @earlofhuntingdon: Right. A government that actually cared about maintaining the figleaf of the rule of law could, as one example simply enact a minimal process for the relatively quick and orderly stripping of citizenship for those it wishes to kill list. There are several paths by which at least some due process and adherence to the ideals and dictates of the Constitution could be upheld.

  52. pdaly says:


    I agree.

    I know many conservatives (and probably similarly misguided democrats) keep murmuring the mantra “we are at war” and “the Constitution is not a suicide pact.” I miss the Cold War.

  53. orionATL says:

    american citizen anwar al-awlaki was preceeded in death in the yemini desert by another american citizen – kemal derwish.

    i was reminded of this by this comment which appeared in ew’s article on lady gaga and dod computer security, a post immediately preceeding this one.

    here is the comment by “allan”:

    “allan on October 8, 2011 at 6:51 pm said:

    “That would mean a key piece of evidence about whether or not the US knowingly executed an American engaging in speech might be completely eliminated…”

    It should be remembered that the Lackawanna Five (or Buffalo Six, depending on who you ask)
    lost their only chance at exculpatory testimony when Kamal Derwish was Hellfired.”

    so the cia has prior experience murdering american citizens in the yemeni desert, citizens as it happens who were devout muslim believers.

    derwish was assasinated in 2002; i wonder who, if anyone, in the olc of the u.s. doj wrote the “cover memo” for that operation?

    or whether any legal eagle even bothered to pick a fig leaf for commander codpiece to wear?

  54. orionATL says:

    on the matter of a highly religious american citizenn being burned at the stake by the u.s. gov’t:

    “…Yemeni government officials immediately traveled to the scene with armed guards and a criminal laboratory. They found Derwish’s body, as well as those of his companions, still burning. A United States passport found nearby was later used to identify Derwish, according to news reports…”

    the quote is from a pbs frontline program:

  55. emptywheel says:

    @orionATL: Yeah, and note what I pointed out above. The FIRST time we tried to kill Awlaki w/a drone, he was going to be collateral damage.

  56. Acharn says:

    @MadDog: The camera technology may not be good enough for you, but for the dozen or so guys sitting at consoles in Arizona they might very well be good enough. We’ve had descriptions of the back-and -forth between console operators and “intelligence analysts” from cases in Afghanistan where they took out pick-up trucks full of unarmed civilians or a group of kids gathering firewood. “Is that a weapon?” “I can’t tell yet — I sure hope it’s a weapon.” “Wait a minute, did I see a kid there?” “Don’t worry about it, they wouldn’t take a kid on an operation.” To them it’s not people they see on their screens, it’s images from a video game.

  57. GKJames says:


    I was struck by, “Administration tries unsuccessfully to kill Awlaki as collateral damage.” What, exactly, does that mean? Isn’t “collateral” by definition unintended? And how, practically, does one go about this?

  58. emptywheel says:

    @GKJames: That’s my skepticism that Awlaki’s presence was not just an incidental part of their targeting. Legally, collateral means, “someone standing next to the legally described target.” In the case of Awlaki, Derwish, and Khan, I think it means something else.

  59. GKJames says:

    @emptywheel: If I were the juror applying the reasonable person test, I’d say what it means is that the government decided to kill people, then contrived arguments to sell the decision as lawful. Who can resist three for the price of one? And, given the court’s (misguided, in my view) deference to the Executive Branch on these issues, who can argue that the administration isn’t right in its calculation that no effective substantive legal challenge can/will be mounted to stop it? Grim stuff.

  60. Michael Murry says:

    @Don Bacon:

    Well said, Don. Like John Donne wrote in Meditation XVII:

    “No man is an island, entire of itself. Every man is a piece of the continent, a part of the main. If a clod be washed away by the sea, Europe is the less, as well as if a promontory were, as well as if a manor of thy friends or of thine own were. Any man’s death diminishes me, because I am involved in mankind and therefore never send to know for whom the bell tolls, it tolls for thee.”

    When I read your comments on the dainty legal parsing of syllogistic propositions — as compared with the lifelong nightmares of those who have seen and done things in war that they never want to see or do again — I heard the bell tolling for Anwar Al-Maliki and Samir Khan and understood that it tolled for me — and for near-defunct United States of America, as well. When life means nothing, then nothing means anything.

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