How stupid was Moammar Qaddafi, who reportedly hired the same mercenary firm that tried to take out Equatorial Guinea’s dictator in 2004?

A total of 50 private soldiers, including 19 South Africans, are reported to have travelled to Libya on instructions to smuggle the former dictator from his birthplace of Sirte over the border to Niger.

Among them were said to be members of the team led by former SAS officer Simon Mann on the “Wonga coup” to unseat Equatorial Guinea’s dictator.

I had never heard of Alex Beam before today, but his column in today’s Boston Globe crossed my email (h/t dakine01) and I am still fuming at his cavalier endorsement of war crimes. Perhaps even more infuriating, though, is that Beam’s endorsement of war crimes is an aside tossed in while Beam is making an argument with which I otherwise agree.

Beam’s central point, as he suggests in his title for the column,”A double standard on war crimes?”, is that while John Yoo has been widely vilified for his role in authoring the OLC memos that authorized torture, David Barron and  Martin Lederman haven’t been attacked nearly as aggressively for authoring the OLC memos under which Anwar al-Awlaki, an American citizen, was killed in Yemen.  My only quibble with that point is that Beam’s roster for the torture memos should be expanded to also include at least Jay Bybee and Steven Bradbury.  His argument:

So, which is the greater crime against the Constitution that all three men swore to uphold? Waterboarding Al Qaeda suspects or killing US citizens? Yoo has been vilified from Marin County to Munich for his legal opinion. If the Obama lawyers are facing job loss or tenure revocation, I haven’t heard about it. This is not a subject they care to discuss.

Beam relies on Mary Ellen O’Connell of Notre Dame to further his argument:

“I do think the two cases call for a different level of criticism,’’ she says. “Isn’t killing worse than torture? Even if the arguments to support torture are weaker arguments, it seems to me that the US should err on the side of the strictest compliance of the law when it comes to taking somebody’s life.’’

Where is the outrage, I asked? It won’t come from the right, she pointed out, “because the policies that Obama is pursuing are basically the same policies that Bush pursued.’’ So where are the principled men and women of the left? “Some of the people who criticized Yoo and his colleagues are in the administration,’’ she answered. “Marty Lederman was a critic of John Yoo, and now he’s writing the memos. So he’s not going to criticize himself.’’

I agree that Lederman and Barron should be subjected to the same level of criticism as Yoo (and Bybee and Bradbury), although I’m less inclined to make a distinction between the crimes of murder and torture.  I find both equally heinous and never justified under any conditions.  As O’Connell points out, the torture arguments likely were much farther outside the law than the extrajudicial execution arguments, but I still can’t join her in making killing artificially a higher crime than torturing.

But here is the jaw-dropping problem with Beam’s column.  Just a bit over halfway through the column, we get this paragraph:

Two points. First, I’m all for waterboarding Al Qaeda bad guys, and the disappearance of al-Awlaki and his ilk by whatever means necessary bothers me not a whit. My interest in the civil rights of Arab terrorists took a dive when a bunch of them passed a knife across journalist Daniel Pearl’s neck. Second, you’ve got to be pretty naive if you’re plotting your life course according to the moral compass of lawyers, regardless of their stellar pedigrees. If you’re former deputy attorney general Eric Holder and you need to dream up a reason for Bill Clinton to pardon megacrook Marc Rich, you find one. If you work for current attorney general Holder, as Barron and Lederman did, and you need to gin up a rationalization for killing a US citizen overseas, you do it.

Beam’s second point is standard “Let’s kill all the lawyers”, especially as filtered through a right-wing hatred of Clinton and Obama.  I agree that Holder has prostituted himself for many issues over the years, but I put that squarely on Holder’s shoulders rather than saying that his failings are the result of being associated with Clinton and Obama.

But oh, that first point.  Beam is “all for waterboarding al Qaeda” and “the disappearance of al-Awlaki and his ilk by whatever means necessary”.  His reason for this abandonment of the Constitution and reliance on due process to mete out government “justice”?  It’s not 9/11 and al Qaeda’s attack on the US, as most who hate “Arab terrorists” spout in the “they attacked us first” defense, but Beam’s reasoning is a bit more personal: ” My interest in the civil rights of Arab terrorists took a dive when a bunch of them passed a knife across journalist Daniel Pearl’s neck.”

I’m guessing the thinking must have gone something like this.  Beam didn’t seem to develop specific animosity to al Qaeda from 9/11, perhaps because the United States is a large target and he is just one of hundreds of millions of potential targets, even though they killed a few thousand on 9/11.  But just a few months later, al Qaeda executed journalist Daniel Pearl. Beam must have thought “Uh oh, they kill journalists and I write a column in a major newspaper.  Let’s torture and murder those bastards!”  It’s very surprising that Beam didn’t make the direct connection that it was Khalid Sheikh Mohammed himself, who eventually was waterboarded 183 times, who is said to have been the one who passed that knife across Pearl’s neck.

And yes, Mr. Beam, if you are looking for where the outrage is over the targeting killing of Anwar al-Awlaki, you can certainly find a healthy dose of it among a few of us.  Try looking at posts here at Emptywheel with the tag “Anwar al-Awlaki” for starters.  By golly, if you scroll back far enough among those posts, you’ll find that the discussion started even before al-Awlaki was killed and that there is also the difficult issue of the US killing al-Awlaki’s sixteen year old son in a subsequent attack.  You’ll also find detailed discussion of the narrow conditions under which there could be legal justification for killing a US citizen and how the Anwar al-Awlaki case likely falls outside those conditions.  Branch out a bit from the narrow al-Awlaki case and read few posts on the broad category of drones here, and you will find that a few of us care pretty deeply about the Constitution, due process and even international law as it applies to what you would be likely to disregard as mere “collateral damage” when innocent civilians are killed by drones.

On October 7, Charlie Savage FOIAed the OLC memo authorizing Anwar al-Awlaki’s assassination which he described in detail in this article. DOJ has responded–with a Glomar response.

Pursuant to FOIA Exemptions One, Three and Five, 5 U.S.C. § 552(b)(1), (3) and (5), the Office of Legal Counsel neither confirms nor denies the existence of the documents described in your request. We cannot do so because the very fact of the existence or nonexistence of such documents is itself classified, protected from disclosure by statute, and privileged.

Basically, DOJ is saying that for reasons of National Defense, statute (probably the National Security Act, but I bet they’re also pretending that state secrets is a statute), and interagency process, they can’t even tell Savage whether a memo the existence of which he has reported on page 1 of the NYT exists.

Back in the good old days of the Bush Administration, when a major news outlet reported on the existence of an OLC memo, DOJ generally accepted that reference in support of a FOIA. Through such means, reporters and the NGOs were able to lay out at least the dates and subjects–and ultimately, much of the content–of the OLC memos that authorized rendition, torture, and illegal wiretapping.

But not now, not under the “most transparent Administration ever.” Under this Kafkaesque Administration, the government can kill an American citizen, leak details of the legal justification for doing so, and then boast about the killing, yet still tell FOIA requesters that it won’t even confirm that the government has claimed the ability to kill American citizens.

Mind you, there is some consistency here. Given that the government has claimed all this is a state secret, a Glomar response is the appropriate FOIA response. Or it would be if the government were, at the same time, prosecuting all the Administration officials who have and continue to leak about this assassination.

[youtube]http://www.youtube.com/watch?v=Wf3KgUoBJno[/youtube]

For just over a month, the US and Pakistan have been struggling to deal with tensions created by former Joint Chiefs Chairman Michael Mullen’s testimony to the Senate Armed Services Committee where he stated flatly that Pakistan’s ISI intelligence agency directly aids militants who attack US interests in Afghanistan.  Wednesday night, BBC Two aired part one of its “Secret Pakistan” documentary, providing detailed evidence that supports Mullen’s accusations.

From BBC News, we get some details on the disclosures in the documentary:

Pakistan has repeatedly denied the claims. But the BBC documentary series Secret Pakistan has spoken to a number of middle-ranking – and still active – Taliban commanders who provide detailed evidence of how the Pakistan ISI has rebuilt, trained and supported the Taliban throughout its war on the US in Afghanistan.

“For a fighter there are two important things – supplies and a place to hide,” said one Taliban commander, who fights under the name Mullah Qaseem. “Pakistan plays a significant role. First they support us by providing a place to hide which is really important. Secondly, they provide us with weapons.”

Another commander, Najib, says: “Because Obama put more troops into Afghanistan and increased operations here, so Pakistan’s support for us increased as well.”

He says his militia received a supply truck with “500 landmines with remote controls, 20 rocket-propelled grenade launchers with 2000 to 3000 grenades… AK-47s, machine-guns and rockets”.

Reuters also describes some of the revelations from the program:

Other Taliban commanders described how they and their fighters were, and are, trained in a network of camps on Pakistani soil.

According to a commander using the name Mullah Azizullah, the experts running the training are either members of the ISI or have close links to it.

“They are all the ISI’s men. They are the ones who run the training. First they train us about bombs; then they give us practical guidance,” he said.

The BBC News article also quotes CIA officer Bruce Riedel, who prepared a review of US intelligence on ISI involvement with militants.  Riedel told BBC that the ISI actively supports Taliban militants that carry out actions in Afghanistan.  Riedel also claimed that US drone attacks are now more successful because Pakistan is not given advance warning:

And the recent drone attacks in Pakistan have become increasingly effective as intelligence has been withheld from the Pakistanis, claims Mr Riedel.

“At the beginning of the drone operations, we gave Pakistan an advance tip-off of where we were going, and every single time the target wasn’t there anymore. You didn’t have to be Sherlock Holmes to put the dots together.”

Riedel’s claim that Pakistani intelligence is excluded from information on US drone strikes is at odds with some of the reporting on today’s drone strike in South Waziristan.  This strike is said to have killed five commanders of the Maulvi Nazir faction of Pakistan’s Taliban.  But Reuters’ article on the strike has this passage:

Pakistani leaders say drone strikes inflame widespread anti-American sentiment in Pakistan and play into the hands of militants.

But analysts say high-profile militants can’t be spotted without help from Pakistani intelligence.

It is hard to reconcile the view that excluding Pakistani intelligence is necessary to prevent tipping off Taliban figures that they are about to be targeted with the claim that Pakistani intelligence is vital to locating Taliban figures for targeting.

At the very least, it appears that either the operator in today’s attack was having difficulty aiming or the driver of the vehicle in which the targets were traveling was good at evasive maneuvers.  From Dawn:

According to initial details, five missiles were fired on a vehicle carrying several passengers.

I guess for drone operators, the fifth time’s the charm.

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.

Okay, I don’t know for a fact that the Senior Administration Official Jake Tapper rather irresponsibly gave anonymity to is John Brennan. After all, Ben Rhodes loves to boast anonymously too.

But given the Administration’s past caution about describing Obama’s role in the Awlaki assassination, I find it interesting that John Brennan this SAO is now claiming credit, in Obama’s name, for Awlaki’s killing, too.

The president emphasized the internationality of the NATO effort, and that’s part of what a senior White House official tells ABC News is the way Obama looks at foreign policy.

“What we’re demonstrating is you can move to a more targeted use of US force and be more successful in achieving our objectives,” a Senior White House official tells ABC News. This means a “smaller footprint, a more targeted use of force. It means less of a cost to taxpayers and troops, and also clearly results in our ability to take care of our interests.”

“With al Qaeda, we’re going after them in a very targeted way,” the Senior White House official says. “With Libya, we identified the unique capabilities the US has to go after Gadhafi,” and then NATO took the lead. The US role from that point on was to be the “glue” of the operation “keeping the coalition together,” providing “targeting, intelligence, refueling, and command and control.”

“Bin laden, Awlaki, Gadhafi have all met their demise in some fashion because of decisions the president made” utilizing this foreign policy view, the senior administration official said. [my emphasis]

Not surprisingly, John Brennan this SAO didn’t boast about the internationality of our effort in Somalia, where al-Shabaab made a grisly display of the bodies of 70 Burundian soldiers serving in AMISOM yesterday; al-Shabaab said they had ambushed the soldiers. John Brennan this SAO only boasts about the victories, you see. Nor did John Brennan this SAO claim credit for killing an American teenager the other day. We’re still pretending that was an accident.

But for the record, John Brennan this SAO can no longer control himself. He’s gonna claim credit not just for Osama bin Laden and Qaddafi–even claim credit for providing the command and control in what was purportedly a kinetic action–but also boast that Obama’s orders resulted in the death of an American citizen.

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.

The family disputes the description the US put out after his death that Anwar al-Awlaki was the head of al-Qaeda external operations:

The family, in its statement, said, “Anwar was never a ‘militant’ ” nor was he “the head of Al Qaeda external operations.”

Abdulrahman became the second American citizen killed in Yemen as “collateral damage” in an attack targeted at someone else, as al Qaeda propagandist Samir Khan was killed in the attack on Anwar al-Awlaki.  However, since virtually all attacks carried out by the US, including the two discussed here,  are initially characterized by US spokespeople as only killing “militants”, a big question becomes whether the intent all along was to kill the two additional Americans, even though there is no indication that either of them had been put on Obama’s “hit list”.

There are several key questions in the case of Abdulrahman.  Did the US know he was only 16?  Did the US know there were additional teenagers at the cookout?  Was there a conscious decision to kill Abdulrahman under the belief that he was a militant?

New technology that is in development has the potential to reduce the number of collateral damage deaths, if there is indeed a desire to reduce them.  AFP reported yesterday on the development of “kamikaze drones”:

A miniature “kamikaze” drone designed to quietly hover in the sky before dive-bombing and slamming into a human target will soon be part of the US Army’s arsenal, officials say.

The article notes the issues that have developed in Pakistan with the killing of innocent civilians in drone strikes that employ the larger Hellfire missiles and points out how the new drones are intended to improve that situation:

The Switchblade, however, is touted as a way to avoid killing bystanders.

“Flying quietly at high speed the Switchblade delivers its onboard explosive payload with precision while minimizing collateral damage,” the company said.

The US has a $4.9 million contract with the developer, AeroVironment, to supply the new drones “as soon as possible”.  It will be interesting to see just how popular the new drones become with their CIA and JSOC operators.  Will there be an effort to hit individuals with Switchblades when they are isolated and perhaps even in the open, or will the lure of killing a larger number of “militants” at one time (with attendant collateral damage likely) maintain the current status quo of most drone attacks hitting small gatherings?

Several days ago, I finished listening to Joby Warrick’s The Triple Agent. It’s quite good, both in terms of readability and news value. But since I have the Audible, not the dead tree, version I wasn’t able to transcribe what I found to be one of the most interesting passages in it.

Luckily, that incident is precisely what he told Tom Ricks he wished people had noticed, so now Ricks has basically transcribed it for me!

BD: What is the one question you’d like to answer about the book that nobody has asked you?

JW: Some of the events in the book have never been described elsewhere, and I’ve been surprised that few reviewers or interviewers have asked about them. One favorite: a description in the book of a dirty-bomb threat that emanated from Pakistan mid-2009 and raised alarms at the highest levels of the U.S. government. Information gleaned through SIGINT intercepts suggested strongly that the Pakistani Taliban (TTP) had acquired “nuclear” material-presumably radioactive sources useable in a dirty bomb–and were trying to decide what to do with it. Concerns over a possible dirty-bomb attack directly factored into the decision to take out TTP leader Baitullah Mehsud, who was killed in a drone strike on Aug. 5 of that year. No radioactive material was subsequently found, and to this day, no one knows what happened to it, or indeed, whether it ever existed.

As Warrick revealed, the reason we were so intent on taking out Mehsud is because of intelligence that he might have the radioactive material for a dirty bomb (IIRC, the CIA was responding to SIGINT they deemed to be code). As tends to happen when we use uranium to justify war, no nukes were found.

A pity for Mehsud’s young wife, who also died in that attack (Warrick describes how they died on their rooftop in some detail).

I raise this not just to recommend Warrick’s book. But to remind you how our government decided to claim the retaliation for this drone strike by Mehsud’s brother was a crime, presumably because the escalating series of revenge ended in Humam al-Bawali’s Khost attack.

But the mention of CIA’s drone campaign in Pakistan raises a bunch more problems with DOJ’s charges. For starters, Mehsud’s wife–a civilian–was reportedly killed in that January drone strike too. Both the uncertainty the CIA has about its purportedly scalpel-like use of drones and the civilian deaths they’ve caused illustrate the problem with drones in the first place. Civilians–CIA officers–are using them in circumstances with significant collateral damage. It would be generous to call the use of drones in such situations an act of war; some legal experts have said the CIA officers targeting the drones are as much illegal combatants as al Qaeda fighters themselves.

The affidavit describing the evidence to charge Mehsud doesn’t say it, but underlying his alleged crime is the potential US crime of having civilians target non-combatants in situations that cannot be described as imminently defensive.

Charging someone for revenge on CIA’s illegal killing

Which leads us to the crimes for which they’re charging Mehsud: conspiracy to murder and conspiracy to use a WMD (bombs) against a US national while outside of the United States. Basically, DOJ is charging Mehsud with conspiring with Humam Khalil Mulal al-Balawi, the Jordanian doctor who committed the suicide bombing at Khost that killed 7 CIA officers and contractors.

Now, there’s not much doubt that Mehsud did conspire with al-Balawi. I just doubt whether it could be fairly called a crime. The affidavit describes two videos in which Mehsud stands side by side with al-Bawali. In one, both al-Balawi and Mehsud describe the upcoming attack as revenge for killings in the drone program–most importantly, of Mehsud’s brother Baitullah Mehsud from a CIA drone strike in August 2009.

Al-Balawi then continues alone: “This itishhadi [martyrdom-seeking attack] will be the first of the revenge against the Americans.” After additional declarations of revenge by al-Balawi, MEHSUD resumes speaking in Pashtu, explaining the motive for the upcoming suicide attack by al-Balawi, that is the death of the former emir of the TTP, Baitullah Meshud [sic] which MESHUD [sic] attributes to the Americans.

Remember, too, that al-Balawi was a double agent. The Americans believed he was helping them target people, people just like Mehsud. That means al-Balawi (and presumably through him, Mehsud) knew he was specifically targeting those behind the earlier killings in Pakistan when he killed them.

So al-Balawi successfully killed people who were either civilians, in which case their own strikes at Baitullah Mehsud and others may be illegal, or people who were acting as soldiers, in which case the attack on their base was presumably legal under the law of war. And for helping al-Balawi, DOJ is now charging Mehsud with conspiracy.

The affidavit, of course, neglects to mention any of these details.

Let me be clear: the Administration’s stupid attempt to apply this double standard doesn’t make the Khost bombing any less tragic. But it did strike me as a pathetic attempt to cloak a disastrous blood feud, for all sides, in legal niceties to somehow make it seem like something else.

But I find it all the more ironic that the whole blood feud was triggered with yet another nuke claim that may have been wrong.

As MadDog alerted us this morning, there were multiple strikes against alleged terrorist targets in southern Yemen Friday night.  What stands out to me in scanning the various media reports about these attacks is that even though it is crystal clear that these attacks are carried out by US drones firing missiles, Yemeni defense officials try to claim that the attacks are carried out by the Yemeni air force.  This is an interesting contrast to the approach taken by Pakistani officials, where even though the official position of Pakistan’s government is that US missile strikes are not allowed, Pakistani officials make no efforts to claim the strikes as their own, allowing the assumption that the strikes are carried out by the US to go unchallenged.

The most recent report on the strikes in Yemen that I can find is this brief update from Reuters [Note: the Reuters article was revised and expanded significantly while this post was being written; the passage quoted is from the earlier version and no longer appears directly as quoted, but the drone death toll of 24 and government claim of responsibility survives.]:

The death toll from air strikes that killed a senior al Qaeda official in southern Yemen has risen to 24, local officials said on Saturday.

The Defense Ministry said Yemeni aircraft had carried out the attack on Friday night.

This report has the highest death toll I’ve seen on the story and includes the note that Yemeni officials claim they carried out the attacks.  By contrast, the CNN report on the attacks puts the death toll at only 7 and reports that there were three drone attacks.  This report, although it quotes Yemeni officials, is silent on responsibility for this attack, although it does reference the earlier attack that killed Anwar al-Awlaki as having been carried out by the US [Note: this article also was updated, with the death toll up to 9 now.]:

The son of U.S.-born militant cleric Anwar Al-Awlaki was among those killed in a trio of drone attacks in southern Yemen on Friday night, a security official said.

The attacks, carried out in the Shabwa district, killed seven suspected militants, the defense ministry said. It would not confirm that Abdul Rahman Anwar Awlaki was among them.

The senior security official in Shabwa, who did not want to be named because he is not authorized to speak to the media, said the younger Awlaki had been hiding in the mountains of Shabwa for more than eight months. He had first-hand knowledge of the death, he said.

As also mentioned in a number of other reports, the CNN story goes on to mention that Ibrahim al-Banna, the head media officer for AQAP, was killed.  They cite Yemeni defense officials as the source of this information.

The same AP article that MadDog cited also is carried by the Washington Post.  Note that this article opens by flatly stating that the attacks were carried out by US drones and later actually cites confirmation by Yemeni “security officials”, with no reference to Yemeni defense officials trying to claim responsibility, even though the Defense Ministry is cited in identifying the key figures killed:

 An American drone strike in southern Yemen has killed seven al-Qaida-linked militants, including the media chief for the group’s Yemeni branch and the son of a prominent U.S.-born cleric slain in a similar attack last month, government officials and tribal elders said Saturday.

/snip/

The Yemeni Defense Ministry identified the slain media chief as Egyptian-born Ibrahim al-Bana. Tribal elders in the area also said the dead included Abdul-Rahman al-Awlaki, the 21-year-old son of Anwar al-Awlaki, a gifted Muslim preacher and savvy Internet operator who became a powerful al-Qaida recruiting tool in the West. He, along with another propagandist, Pakistani-American Samir Khan, were killed in a Sept. 30 U.S. drone attack.

/snip/

Security officials said the strike that killed them was one of five carried out over night by an American drones on suspected al-Qaida positions in Shabwa and the neighboring province of Abyan in Yemen’s largely lawless south.

Interestingly, this report indicates that there were five separate drone attacks Friday night, but reports only the death toll of seven from the most prominent single attack, rather than summing the toll from all five attacks to the higher level of 24 reported by Reuters.

Pakistan’s Dawn.com carries AFP’s report on the attacks in Yemen.  This report is noteworthy both because the Dawn headline puts both “US air” and “Qaeda militants” in quotation marks and because it does the best job of any of the media reports I’ve seen in adding some perspective to Yemen trying to claim responsibility for the attacks:

Apparent US air strikes killed seven suspected al Qaeda militants in southern Yemen, one of them the media chief of the jihadist network’s regional affiliate, a local official said on Saturday.

The Yemeni defence ministry confirmed the deaths but insisted that Friday evening’s strikes in Shabwa province, a militant stronghold east of the main southern city of Aden, were carried out by its own forces.

“Three strikes, apparently American, which were launched against positions held by al Qaeda militants in Azzan, one of the group’s bastions, killed seven of them, including the Egyptian, Ibrahim al-Banna’a,” the local official said.

The article conclude with this helpful explanation:

Yemen routinely denies that the United States carries out offensive operations on its territory, insisting that it plays a purely logistic and intelligence role in support of Yemen’s own counter-terror operations.

Accounts of drone attacks in Pakistan, by contrast, do not hesitate in noting that the drones are American, even though the official Pakistani position is that they do not approve of these actions.  Here is Pakistan’s Express Tribune carrying an AFP report on drone attacks there on Friday:

A US drone strike targeting a militant compound in a Pakistani tribal region killed four rebels in the fourth attack in two days near the Afghan border, security officials said Saturday.

The drones fired eight missiles Friday night at the compound in Baghar, 40 kilometres west of Wana, the main town of South Waziristan tribal district, where the military launched a ground offensive two years ago.

“The strike killed four militants and wounded three others,” a senior security official told AFP on condition of anonymity.

The delicate dance relating to attribution of the drone strikes does not stop here, however. Despite the report leading with identifying the drones as American and no claims to the contrary coming from either Pakistan government officials or local officials at the attack site, this article concludes by noting that the US doesn’t officially admit to the use of drones:

Defense Secretary Leon Panetta has said for the first time that the United States was waging “war” in Pakistan against militants, referring to the covert CIA drone campaign that Washington refuses to discuss publicly.

And there we have the lovely circumstances regarding the US reliance on drones to carry out attacks that in some cases are described as amounting to illegal extrajudicial executions.  The US refuses to publicly acknowledge these actions, citing their “covert” nature in a convenient dodge from accepting responsibility for controversial (or possibly illegal) measures.  Yemen is quick to falsely claim responsibility, perhaps to curry favor with the US and perhaps as an attempt to enhance the posture of a government facing a very popular citizen uprising that appears to be poised on ousting the President.  By contrast, Pakistan does not fear public disagreements with the US.  Its government has a stronger grip on power.  That allows it to maintain its public position that Pakistani forces alone should be in charge of attacking militants in Waziristan, and allows the Pakistani government to object to US drone strikes as a breach of sovereignty, especially when innocent civilians are killed.

Whatever the posturing by the host countries, however, the US drones on, determined to strike “enemies” wherever they are to be found.

Glenn Greenwald has a typically provocative post on the news that Marty Lederman and David Barron wrote the authorization to kill Anwar al-Awlaki. He uses Dawn Johnsen’s comments on the way secret OLC memos create secret law that undermine democracy.

Obama’s original choice to head the OLC, Dawn Johnsen, repeatedly railed against this Bush practice of concealing OLC memos as “secret law,” writing that “the Bush Administration’s excessive reliance on ‘secret law’ threatens the effective functioning of American democracy” and “the withholding from Congress and the public of legal interpretations by the Justice Department Office of Legal Counsel (OLC) upsets the system of checks and balances between the executive and legislative branches of government.”  In her April, 2008 testimony before the Senate Judiciary Committee, she was nothing short of scathing on the practice of concealing OLC memos. [Glenn’s emphasis]

From there, he notes that Lederman and Barron used the same justification–the AUMF–that John Yoo used to justify the detention without due process of Jose Padilla.

So the AUMF allowed the President to designate Awlaki an “enemy combatant” without a shred of due process, and then to act against him using the powers of war, because we are at war with an entity for which Awlaki had become a combatant.

There are many problems with that reasoning, but one in particular that deserves attention now is this: that was exactly the theory repeatedly offered by the Bush DOJ for far less draconian acts than assassinating a U.S. citizen, and it was one that the very same Marty Lederman categorically rejected.  As I’ve noted many times, one of the most controversial Bush/Cheney acts was its claimed power to detain U.S. citizen Jose Padilla without charges or due process — not to kill him, but merely detain him — on the theory that the AUMF authorized the President to designate him as an “enemy combatant” and treat him accordingly. [Glenn’s emphasis]

I’m not sure I buy this comparison. There are times when the US might legally wage war against one of its citizens, but because of its own secrecy, the Administration has simply not made the case that that is true in this case.

One of the big problems with Lederman and Barron’s interpretation of the AUMF, though–one Glenn doesn’t treat closely but which perfectly exemplifies Johnsen’s point–is the extension of the AUMF to apply to AQAP, an entity that simply didn’t exist when the AUMF authorized war against groups that had launched 9/11.

Other assertions about Mr. Awlaki included that he was a leader of [AQAP], which had become a “cobelligerent” with Al Qaeda, and he was pushing it to focus on trying to attack the United States again. The lawyers were also told that capturing him alive among hostile armed allies might not be feasible if and when he were located.

Based on those premises, the Justice Department concluded that Mr. Awlaki was covered by the authorization to use military force against Al Qaeda that Congress enacted shortly after the terrorist attacks of Sept. 11, 2001 — meaning that he was a lawful target in the armed conflict unless some other legal prohibition trumped that authority.

One area where Lederman’s reported memo is particularly dangerous, IMO, is in the extension of the AUMF to groups clearly not included in the congressional authorization.

All the more so given events that have transpired since the memo was written in June 2010. One of the first things the new Chair of the House Armed Services Committee, Buck McKeon, did after last year’s election was to call for a new AUMF. Notably, he wanted to include Yemen (and AQAP) in the new AUMF. The Administration was disinterested in that new AUMF, stating they believed already had the authority to do what they need to.

They claim to have that authority, of course, because Marty Lederman said they have it.

No wonder they discouraged a new AUMF! An open debate over the new terms of the AUMF might interpret AQAP more restrictively than Lederman did in secret, which might have challenged the OLC memo authorizing the Awlaki killing (yeah, I know, the chances of that are almost nonexistent).

Furthermore, I wonder whether the Administration told Congress they had already effectively legally expanded the AUMF? McKeon counterpart Carl Levin’s call for the Administration to release the memo makes me wonder whether he has seen it, and if not whether he knows the Administration legally expanded the AUMF by secret fiat.

Which is why Glenn’s point that the Administration avoided not just Article III oversight, during the ACLU/CCR suit, on this killing, but also Congressional oversight is so important. I don’t support McKeon’s effort to write a new AUMF. But it is undeniable that Congress proposed changing the law in such a way that would have given the Awlaki killing more–though probably not adequate–sanction. Rather than embracing the opportunity by working with Congress to formally extend the war to Yemen and AQAP, the Administration instead operated with the secret self-sanction Lederman had already given it.

The Administration chose not to avail itself of the opportunity to explain in the context of an Article III court why it had the authority to kill Awlaki. So, too, it chose not to avail itself of the opportunity to negotiate with Congress to give the Awlaki killing more (though not adequate) legal sanction. Instead, it used its own secret law-making power to do what the other two branches of government could have done with transparency and legitimacy.

Update: Meanwhile, McKeon is holding the Defense Authorization hostage to his bigotry.