I’m pretty fascinated by this attempt by one of John Cole’s readers to defend the Administration’s stance on assassinating US citizens. It’s fascinating and not a little disturbing, but it deserves a response, if only to clarify precisely what the problem with the Administration’s filing last Friday is.

The reader starts with this:

On Al-Awlaki, what’s your response to the argument that targeted killing of him is allowable, under international law, because he’s been designated by the US and the UN as an “active operational member of AQAP” and, as such, if and only if the US determines he presents an imminent threat, the US can take actions to defend itself against an attack (like, say, the Christmas bombing, in which there’s evidence he was involved in planning) by either capturing or killing him?

For starters, this question misrepresents what the suit tries to do. The suit readily admits that the government has the right to kill someone who presents an imminent threat. The plaintiffs are asking for the judge to prevent the government from killing Anwar al-Awlaki unless he is, in fact, an imminent threat.

Plaintiff seeks a declaration from this Court that the Constitution and international law prohibit the government from carrying out targeted killings outside of armed conflict except as a last resort to protect against concrete, specific, and imminent threats of death or serious physical injury; and an injunction prohibiting the targeted killing of U.S. citizen Anwar Al-Aulaqi outside this narrow context. Plaintiff also seeks an injunction requiring the government to disclose the standards under which it determines whether U.S. citizens can be targeted for death. [my emphasis]

Moreover, John’s reader misstates the argument the government is making. They refuse to grant that the only legal basis they’d have for assassinating al-Awlaki would be because they had determined him to be an imminent threat and never once argue that he is an imminent threat, particularly not that he, personally, as opposed to AQAP more generally, is an imminent threat.

For example, even assuming for the sake of argument that plaintiff has appropriately described the legal contours of the President’s authority to use force in a context of the sort described in the Complaint,

In fact, as I have shown, the government refuses to lay out its entire argument for claiming it has the authority to target al-Awlaki.

Accordingly, although it would not be appropriate to make a comprehensive statement as to the circumstances in which he might lawfully do so, it is sufficient to note that, consistent with the AUMF, and other applicable law, including the inherent right to self-defense, the President is authorized to use necessary and appropriate force against AQAP operational leaders, in compliance with applicable domestic and international legal requirements, including the laws of war.

One thing is clear, though: the government is claiming to have the authority not only through international law (the “imminent threat”), but also the AUMF. But it’s not at all clear the AUMF does grant them that authority (and this is one reason why John’s reader’s appeal to the political branches is so problematic). AQAP was not included in the AUMF. No  one has ever claimed it had a role in 9/11, which is how the AUMF defines the opponent. The decisions on habeas cases have been mixed about whether attenuated connections like AQAP’s are strong enough to be included in the AUMF and because of it, legally detainable. John’s reader just ignores that the primary basis for which the government claims authority to kill al-Awlaki is the AUMF (even if they refuse to say whether AQAP is al Qaeda, or only affiliated with al Qaeda). But that basis is contested.

But let’s set aside the problems with the government’s claim to authority under the AUMF for the moment and focus instead on what John’s reader seems comfortable with: the “imminent threat.” John’s reader seems satisfied that al-Awlaki’s role in the Christmas day bombing makes him an imminent threat. There are two problems with that. First, we have a tradition in this country of requiring the government to prove the allegations it makes against people. Here’s how the government presents this allegation, in James Clapper’s public declaration.

Since late 2009, Al-Aulaqi has taken on an increasingly operational role in AQAP, including preparing Umar Farouk Adbulmutallab [sic], who attempted to detonate an explosive device aboard a Northwest Airlines flight from Amsterdam to Detroit on Christmas Day 2009, for his operation. In November 2009, while in Yemen, Abdulmutallab swore allegiance to the emir of AQAP and shortly thereafter received instructions from al-Aulaqi to detonate an explosive device aboard a U.S. airplane over U.S. airspace.

Particularly given the government’s reported belief, before the Nidal Hasan attack, that al-Awlaki’s activities extended only to First Amendment protected speech, we deserve to know how they determined that his activities since then have become operational. If we know that from classified intercepts, then the government can share them with the Court without disclosing them publicly. If we know that solely through Abdulmutallab’s interrogations, then we deserve to know the circumstances surrounding those interrogations, not least whether Abdulmutallab was promised he would not face the death penalty if he implicated al-Awlaki.

More importantly, we have means to do all this–to have a judge weigh the evidence to make sure the government’s allegations are true. That’s a trial. And for some reason, the government has chosen not to charge al-Awlaki with conspiracy in Abdulmutallab’s crime, and therefore chosen not to expose its evidence to the scrutiny of a judge. I wouldn’t necessarily have much reason to doubt the government’s claims about al-Awlaki, but the government loses a great deal of credibility when they choose not to avail themselves of the means to prove those allegations.

If the case against al-Awlaki is strong enough to kill him, then it ought to be strong enough to prove in a court.

And then there’s the other problem with the claim that al-Awlaki is an “imminent” threat: the timing.

If the government really were justifying its targeting of al-Awlaki because he’s an imminent threat (they don’t commit to that argument, but it is what John’s reader argues), then they’d effectively be arguing that al-Awlaki has been an imminent threat since at least December, when he was on a JSOC kill list. And yet, in that entire period, the only thing the government alleges al-Awlaki personally has done is make a video praising attacks on the US and justifying jihad. (It does note that AQAP claimed responsibility for an attempted assassination of the UK’s Ambassador to Yemen, but does not claim al-Awlaki had an operational role.) That video may be dangerous, but it’s the kind of thing that the government had previously considered protected speech.

Plus, there’s another timing problem. John’s reader points to the designation of al-Awlaki as an operational member of AQAP as justification for the claim that he is an imminent threat.

But that didn’t happen until July 16, 2010, at least seven months after JSOC put al-Awlaki on their kill list, and three months after CIA put him on their kill list. In fact, AQAP as an organization wasn’t even on the UN’s terrorist list until several weeks after al-Awlaki was put on JSOC’s kill list.

So if formal designation as a terrorist is what makes assassination okay, then the government was clearly not justified in targeting al-Awlaki in December, even if they are now. But that would admit the entire point: that the government is targeting people without legal basis to do so.

From his defense of the government by making an argument they don’t make (that al-Awlaki is an imminent threat), John’s reader then accepts an argument the government makes: that al-Awlaki has access to the courts.

How about your argument to rebut the government’s position that, under the Constitution, he has no basis to make a habeas-type argument because he is not being denied access to process, he’s refusing to submit himself to the judicial process in the US?

Setting aside the fact that accused terrorists have fairly routinely been denied the opportunity to challenge their designation as such in court, John’s reader accepts the more troubling implication in the government’s filing: that a citizen who has been formally charged with no crime, but is nonetheless targeted for killing, bears the burden of challenging that targeting in court. That shifts the entire burden from the government to the citizen! That’s the whole point of this suit–to demand that the government give a citizen his due process guaranteed under the Fifth Amendment.

From there, John’s reader argues that the judge will review the government’s claim to state secrets and that al-Awlaki’s father might not have standing. Those are stronger arguments. (And I think one likely outcome of this suit is that Judge John Bates bounces the suit on the standing issue, just as he did with Valerie Plame’s suit, because it is by far the easiest solution for him.)

And if all the government argued in its filing is that al-Awlaki’s father doesn’t have standing, then those of us who are so upset would still be upset, but not so horrified.

But that’s not what the government did. It repeatedly asserted it had the authority to kill al-Awlaki with no due process, even as it didn’t commit to what the basis for that authority is.

John’s reader, apparently, thinks that the government has legitimately described the question of whether it kills American citizens with no due process as a political question.

Last, do you have a rebuttal to the argument that the case itself presents non-justiciable political questions that are outside of the purview of the courts? Do you believe that the Article III courts should be able to override the authority given to the other two branches in Article I and II for pursuit of foreign policy and military actions?

I see only three ways you can argue that this is appropriately a political question over which judges should have no purview.

1. Congress really did pass an AUMF that covers this case.
2. The Executive Branch’s targeting decisions of both groups and individuals are not reviewable by the courts.
3. The Executive Branch really does have the authority to kill its citizens because it says so.

Now, as I have noted, it is not at all clear that the political branch that has the authority to declare war has declared war against AQAP. It may be that a judge would say they have, but in habeas cases, judges have been mixed. And one reason this is critical is because the Administration repeatedly suggests that targeting al-Awlaki is authorized because he is on a battlefield.  He’s not until Congress says he is, and it’s not at all clear they have (though I don’t doubt they would if the Administration asked them to.)

The question of whether the courts can review whether a citizen is an imminent threat is the entire point of this suit. But the government actually refuses the premise, arguing that it can’t be held to the general standard that it only kill someone who is an imminent threat because things like tactical analysis and diplomatic considerations might trump it.

Moreover, the declaratory and injunctive relief plaintiff seeks is extremely abstract and therefore advisory—in effect, simply a command that the United States comply with generalized standards, without regard to any particular set of real or hypothetical facts, and without any realistic means of enforcement as applied to the real-time, heavily fact-dependent decisions made by military and other officials on the basis of complex and sensitive intelligence, tactical analysis and diplomatic considerations.

Aside from reminding, once again, that according to David Ignatius, we first considered targeting al-Awlaki because Yemen asked us to–that is, Ignatius suggest we targeted al-Awlaki entirely out of diplomatic considerations–note what this passage argues. It’s not just that it says a court can’t review whether al-Awlaki is an imminent threat (not even in the nine months al-Awlaki has been targeted). It’s also saying that tactical and analysis and diplomatic considerations may be determinative on whether someone is an imminent threat or not. Effectively, the government is rejecting that it should comply with the “imminent threat” standard because other things might trump it (and, presumably, trump it in such a way that a judge wouldn’t agree or shouldn’t be allowed to judge).

There’s one more thing the government does to support the argument that they alone should be able to determine whether al-Awlaki, the individual, is a threat: they point to case law that says the political branches have the authority to determine what foreign groups are threats.

As the D.C. Circuit stated in El-Shifa —a case that involved the President’s decision to launch a military strike against a facility in Sudan that the United States believed was associated with Osama bin Laden—“[i]f the political question doctrine means anything in the arena of national security and foreign relations, it means the courts cannot assess the merits of the President’s decision to launch an attack on a foreign target.” 607 F.3d at 844. Addressing the Baker standards, the Court in El-Shifa observed that “whether the terrorist activity of foreign organizations constitute threats to the United States” are “political judgments” vested in the political branches. [my emphasis]

There’s a whole bunch of this similar language, showing that courts have supported the political branches–and even the Executive Branch alone–authority to decide what foreign organizations are a threat.

But as far as the reporting goes, this is not about the government deciding that AQAP locations themselves to be legitimate targets. Questions of international law and efficacy aside, I have a lot less problem with al-Awlaki being killed because of his presence at an AQAP site (though that’s precisely how the government “accidentally” killed a Yemeni Deputy Governor in May, not to mention uncounted numbers of civilians in Pakistan). And I’m more comfortable with the way the government killed Kamal Derwish, even if the claim that they were targeting Abu Ali al-Harithi and not Derwish personally is just a legal facade. This is about targeting a named American citizen against whom the government has not proven any allegations justified more generally because of the association the government alleges that citizen has made. And the government’s filing actually doesn’t present legal authorization to do that.

Which leaves just the “I can kill and American citizen because I say so.”

Now, again, that’s not what John’s reader is saying. I guess he’s defending this argument on the grounds number two–that what is an imminent threat is strictly political and so courts shouldn’t be able to review it.

But particularly given the Administration’s refusal to even lay out what it considers its authority for targeting an American citizen, I’m not so sanguine with that. Once something vaguely called a political consideration can trump due process, and once we allow the government to make claims against other citizens without offering any proof, then nothing limits what the government can do to its own citizens.

Anwar al-Awlaki may well be a dire threat to the US (though I question whether he is an imminent one). But before the government kills him, I’d like them to prove it.

In my post on the government’s invocation of state secrets to hide the things national security officials have already leaked to the press, I linked to David Ignatius’ largely-overlooked report that Yemen first asked us to target Anwar al-Awlaki, and only thereafter did we get around to targeting him and telling courts they had no business asking why we had done so.

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?

Keep that in mind as you read this story about a Yemeni woman trying to FOIA information about US involvement in her US citizen husband’s abduction in Yemen. (h/t Political Carnival)

As [Sharif Mobley] drank tea on a Sana’a street, eight masked men burst from two white vans and tried to grab him. Terrified, he ran, but was brought crashing to the ground by two bullets to his legs and bundled into one of the vans.

The method of abduction may have been brutal, but it was not the work of a rebel group or criminal gang. Instead, the armed men were Yemeni security agents, and in a set of legal documents seen by Al Jazeera, Mobley’s lawyers allege they were operating on behalf of the US government.

Now, the story only presents the Mobley’s family’s story, in which they claim that while Mobley had had contact with Anwar al-Awlaki, he never had any dealings or awareness of ties to al Qaeda.

“Sharif openly admits that he had been in limited contact with al-Awlaki,” says Cori Crider, Mobley’s  lawyer. “But he categorically denies that he was involved in or aware of any plot or link to al-Qaeda.”

Perhaps Mobley’s family is just spinning, downplaying more developed ties between Mobley and AQAP. Though note that any contact with al-Awlaki would have happened before Al Qaeda in the Arabian Peninsula was designated a terrorist organization, and even then, the government claims that terrorist designation should not limit others’ First Amendment rights to associate with members of designated terrorist groups.

Whether or not Mobley’s story is correct or not, it doesn’t dismiss the other allegation: that someone apparently tied to the US embassy raided the Mobley family home, all while pretending that Yemen–not the US–had sole custody of Mobley.

When she realised her husband was missing, [Mobley’s wife, Nzinga Saba Islam] immediately reported his disappearance to the embassy, where she was told to file a report with Yemeni police.

That night, at 1am, as she lay worrying about what had happened to her husband, the documents say around 15 men burst into the family home. The family were held at gunpoint and searched, while the house was raided and items confiscated.

Nzinga has told lawyers that the following morning she returned to the US embassy. As she waited to file a report about what had happened, she insists that she saw the man who had led the raid on her home wearing a US embassy pass.

“He was, as far as Nzinga could tell, in charge of the raid on her home,” Crider says. “She asked the embassy about him and what he was doing there, but embassy officials never gave her a straight answer.”

The documents allege that embassy officials listened to what Nzinga had to say, and began to question her about her husband’s activities in Yemen. Amongst the items she says they showed her were photographs taken during the raid on the house.

Mind you, none of this would be new. By all appearances, the US has used Pakistan as a proxy for arresting US citizens to avoid granting those citizens the legal rights they otherwise would have.

But the move is troubling, given the appearance that Yemen pushed this crack-down before the US did, and given the US government’s refusal to make public their larger case against al-Awlaki.

Anwar al-Awlaki is very quickly becoming our next surrogate bogeyman in the war on terror (the one designed to distract from the continued freedom of the people who actually targeted us on 9/11). And along with that, the government seems intent on hanging a whole lot more terrorist designations on people–including American citizens–without ever showing the evidence that al-Awlaki himself was operational.

I trust it’s not a coincidence that at the same time David Axelrod is skewering Rahm from within the White House, Greg Craig is getting picked up on a live mike (oops!) skewering him from the outside.

“The great thing about it, if Rahm goes to run for mayor, is that Eric survived,” Craig said, according to an audio recording of the Sept. 21 event.

The National Law Journal requested a copy of the recording from the law school, and the school provided one. The recording includes Craig’s speech and a question-and-answer session, as well as two and a half minutes of pre-speech banter between Craig and Trevor Morrison, a Columbia law professor who introduced Craig to the audience. They touched on Holder’s relationship with Emanuel and on the case of accused terrorist Ahmed Khalfan Ghailani.

As Craig suggests, Emanuel’s departure would mean Holder will have outlasted an internal rival with whom, according to news reports, Holder has repeatedly clashed on subjects like the venue for trying terrorism suspects. And it would mean Emanuel wouldn’t be around to attempt to force Holder out if tensions flared again.

[snip]

A questioner asked Craig why he left. Craig responded that he did so for “a number of different reasons,” and then he focused squarely on Emanuel.

“One of the reasons was that I did not get along with the chief of staff well,” Craig said, “and I think that the coordination between the White House counsel and the chief of staff is vital to the success of the working of the White House.”

Though, I’d challenge Craig: What good has Holder’s outlasting Rahm done after Friday’s audacious claim to unlimited power? There’s no indication at all that Rahm was pushing Holder to submit a motion basically saying, “the President can kill any American, and he doesn’t have to show the Courts any justification for why, which is good because we can’t even make a good argument to support it.” I mean, sure, Rahm had a big hand in pissing away Obama’s bid to moral standing. But Holder’s DOJ has simply embraced the disdain for law that Rahm handed them and run with it, all on their own now.

Michael Hayden has another tired whine at CNN about Obama’s treatment of the torture program. The entire logic of the piece is predictably silly. It goes something like this:

1. ACLU and CCR are suing the government for targeting American citizen Anwar al-Awlaki with no due process.
2. According to Hayden, the targeting of Awlaki was “Authorized by the president, approved as legal, briefed to Congress.”
3. According to unnamed legal scholars, the suit has little chance of success.
4. But Obama’s DOJ released OLC memos on the torture program in response to an ACLU suit and investigated the torture of detainees that exceeded DOJ guidelines and therefore was illegal.
5. This makes Hayden mad because it constitutes “exposing a previously authorized program for apparent political purposes.”
6. Oh, and by the way, the UN rapporteur for extrajudicial killings also has a problem with targeted killings (and not just those of US citizens), though I’m not entirely sure what Hayden thinks Obama should do about that.

I guess this piece is supposed to be a warning to the White House–which has already assured CIA that it won’t be prosecuted for breaking the law on Obama’s orders–that it needs to make triple sure that none of those with the legal means to do so hold the CIA responsible for the illegal things it is doing. The whole thing would just make more sense if Hayden hadn’t personalized it so much (because, after all, he probably ought to be more concerned about a future President trying to distinguish herself from Obama’s abysmal record in this area). But I get it–Hayden lost some arguments with the Obama Administration and so this whole issue is very very personal.

And I wonder, really, does Hayden believe that Presidents really do have unlimited ability to make laws disappear? And if Hayden is so certain those unnamed legal scholars are correct about the legality of the assassination program and the poor chances the ACLU/CCR suit will succeed, then why complain? Or maybe, given the contortions that Obama’s DOJ is going through in contemplation of litigating the ACLU/CCR suit, Hayden’s confidence that the suit won’t succeed is merely bravado?

But the other amusing thing about this screed is its focus on the CIA. Hayden treats this as danger experienced primarily by the CIA.

The CIA is asked to do things no one else is asked — or even allowed — to do. And when CIA officers agree to do these things (after appropriate authorization, judgment with regard to lawfulness and congressional notification), they believe that they have a contract with their government, not a particular administration, that the government will have their back legally, ethically and politically.That belief was shattered by the Obama administration’s actions. Agency officers were shown that those guarantees have the half-life of one election cycle in the American political process. No wonder one astute observer of the agency likened it to a car bomb going off in the driveway at Langley.

But what about JSOC?

After all, Awlaki has been on JSOC’s kill list for longer than he has been on CIA’s. According to reporting, JSOC is as involved in the targeted killing program as CIA (as they were in the torture program). Why isn’t retired General Hayden worried about those killers?

Granted, there is a distinction. When civilians at the CIA target people for assassination, particularly those who pose no imminent threat, the claim that the killing is legal under the law of war is much weaker.

But for some reason, JSOC doesn’t have the need to trot out spokesmen to defend itself every third month, but CIA does.

Go read this entire Charlie Savage article describing the deliberations within the Administration on how to respond to ACLU/CCR’s lawsuit challenging the government’s ability to target American citizens for assassination with no due process. The whole thing makes me want to cry about what our country has become (Congratulations Osama bin Laden! You’ve won!).

But it was this paragraph that really made me nauseous:

“I’m a huge fan of executive power, but if someone came up to you and said the government wants to target you and you can’t even talk about it in court to try to stop it, that’s too harsh even for me,” [David Rivkin] said.

Rivkin is, of course, the former Reagan and Poppy Bush official that Republicans like to roll out any time they need an absolute unquestioning supporter of unlimited executive power. His job is effectively to put legal lipstick on the power hungry pig that has grown out of 9/11.

But he refuses to endorse the legal approach Obama’s DOJ is reportedly considering: to try to get the Awlaki suit dismissed by invoking state secrets.

And it’s not just Rivkin being contrary for partisan reasons. He endorses another of the approaches the Administration is considering, just telling the judge to butt out because this is a matter of politics.

Mr. Rivkin said he favored a different argument: a declaration that in war who can be targeted — and where — is a “political question” for the executive branch to decide, not judges.

Yup, according to Savage’s report, a Democratic DOJ is actually contemplating arguing to a judge that during wartime, the President can choose to kill anyone he wants to anywhere he wants to.

If the President kills someone, they’re preparing to argue, it’s legal.

Which gives Savage another opportunity to rely on a right wing lawyer to point out just how crazy are the arguments the Obama DOJ is contemplating. In this case, former W Administration official Matthew Waxman notes that even if it were true that the President can choose to kill whoever he wants whereever he wants during war, we’re not at war with Yemen!

Inside the administration, that argument is also seen as attractive. But invoking it could give the court an opportunity to reject the idea that an armed conflict with Al Qaeda exists in Yemen, said Matthew Waxman, who was the Pentagon’s top detainee affairs official under the second President Bush.

“The more forcefully the administration urges a court to stay out because this is warfare, the more it puts itself in the uncomfortable position of arguing we’re at war even in Yemen,” he said. “The worst outcome would be if the court rules that the president is not authorized to wage war against Al Qaeda beyond combat zones like Afghanistan.”

Of course, no one seems to be contemplating actually litigating this case, actually allowing a judge to rule on whether it is legal to assassinate American citizens with no due process.

And these are the lawyers guarding our Constitution.

The day after Obama declared victory (sort of) in Iraq, the Administration announced a whole package of sanctions against the Pakistani Taliban, Tehrik-e Taliban. The sanctions:

• Designate TTP as a Foreign Terrorist Organization
• Designate TTP as a Special Designated Global Terrorist Organization
• Designate TTP’s two leaders, Hakimullah Mehsud and Wali Ur Rehman, as Special Designated Global Terrorists
• Offer of $5 million reward leading to Mehsud or Rehman’s arrest
• Charge Mehsud in connection with the Khost killings

Forgive me if I dismiss what are real measures against a genuinely dangerous organization. But I can’t help but suspect this lays the ground work to ensure we have a war against terror to fight (and with it, expanded executive powers) beyond July 2011.

Charging a formerly dead guy

Perhaps my favorite comment on the criminal charges came from reporter James Gordon Meek:

DOJ charges Pak #Taliban emir Hakimullah Mehsud in absentia for killing 7 CIA officers in #Afghanistan 12/09. Anybody tell CIA’s drone unit?

Presumably, Meek is referring to claims a US drone strike killed Mehsud in January, a claim the CIA once judged to have a 90% likelihood of being correct. There’s not much point in arresting Mehsud if he’s been dead nine months.

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. Here’s how they describe the US presence in Afghanistan:

In an effort to stabilize Afghanistan, the United States has maintained a presence in Afghanistan since the removal of the Taliban at several facilities throughout the country, including bases located along the Afghanistan-Pakistan border.

It’s a convenient description, given as how it might vaguely justify the drone strikes in Pakistan. Yet it doesn’t mention the actual legal purpose for US presence in Afghanistan authorized by the AUMF, which is to get the people who hit us on 9/11. That obviously can’t include the TTP, since even this affidavit said they formed in 2007 in what could fairly be read as a response to US actions in Pakistan tied to the Afghan war.

TTP’s primary purpose is to force withdrawal of Pakistani troops from the FATA of Pakistan–which is located along the Pakistan-Afghanistan border–unite against NATO forces in Afghanistan, and establish Sharia–or Islamic law–in the tribal territories.

It’s not a crime to advocate for sharia. TTP’s other two described goals–to force the withdrawal of Pakistani troops placed there at US behest, and to “unite” against NATO forces “in Afghanistan” which (the affidavit doesn’t say) support drone strikes in Pakistan are responses to US actions. Granted the TTP are dangerous creeps. But even this affidavit is largely describing them as an entity reacting in defensive fashion to US actions.

As to the killing of Baitullah Mehsud? The affidavit simply says he died, without any explanation of the drones that illegally (if their suggestion that al-Balawi targeted civilians is true) or legally (if they concede that al-Balawi struck a military target) struck in Pakistan.

The Tehrik-e-Taliban Pakistan (TTP) is a Taliban-inspired alliance of Pakistan-based Sunni tribal militants formed in or about late 2007 by Baitullah Mehsud, who was killed in August 2009.

[snip]

… 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.

Of course, they have to depict Baitullah Mehsud as just dying, with no further discussion. Because if they included such a discussion, then either the al-Balawi attack would not be a crime, or the CIA civilians killed in it were acting illegally when they committed the act that brought Mehsud to retaliate. (Note, too, that when State Department Counterterrorism Coordinator Daniel Benjamin was asked yesterday about ties between TTP and ISI, he claimed to know nothing.)

But no matter. We now officially have a new, named target, one to match Anwar al-Awlaki in Yemen, and one who (unlike Osama bin Laden, Ayman al-Zawahiri, or Mullah Omar) we might stand a chance of getting. Now the American people have a villain to root against.

Why impose these sanctions now

Which may be why the Administration has taken these steps, up to and including the dubious charges against Mehsud.

To a large degree, this is a reaction to Faisal Shahzad’s attempt to bomb Times Square in May. Yet curiously, the charges are not related to that strike, even though if the TTP was genuinely involved, it would be more clearly terrorism than the Khost strike. Though  a YouTube initially had the TTP claiming credit for the strike, shortly after Shahzad’s arrest, the TTP said it did not train him. Video later surfaced showing Shahzad and Mehsud together. And Shahzad himself said he had been trained by the TTP before his strike. The affidavit against Mehsud says that TTP has claimed responsibility for the attack, but makes no charges relating to it.

(Note, the government’s claims about TTP also repeatedly mention the Benazir Bhutto assassination, though they very carefully couch that claim in terms of what Pakistani authorities have claimed about TTP, not what TTP has claimed or the US has evidence to support.)

It may be tied to General Petraeus’ assumption of the command in Pakistan–though he has pushed for the listing of the Haqqani network more strongly than the TTP.

Ultimately, though, I suspect this is an effort to establish ties between the al Qaeda–those covered in the AUMF in Afghanistan–and the Pakistani Taliban not legally included in the AUMF before the justification for remaining in Afghanistan to fight the dozen al Qaeda members still in the country begins to look utterly ridiculous.

The TTP is very much part of the most dangerous terrorist threat the United States faces. The TTP and al-Qaida have a symbiotic relationship. TTP draws ideological guidance from al-Qaida while al-Qaida relies on the TTP for safe haven in the Pashtun areas along the Afghan-Pakistani border.This mutual cooperation gives TTP access to both al-Qaida’s global terrorist network and the operational experience of its members. Given the proximity of the two groups and the nature of their relationship, TTP is a force multiplier for al-Qaida.

While the terrorist designations undeniably gives law enforcement agencies the ability to prosecute anyone knowingly working with the TTP going forward (thus making it easier to try any Americans seeking out ties with them), it also seems to point to a lot of the problems with our hybrid legal-military strategy.

The ACLU and CCR just had a conference call to talk about their suit challenging the licensing scheme the Treasury Department’s Office of Foreign Asset Control uses to prevent lawyers from representing those on OFAC’s designated terrorist list. Much of the discussion pertained to whether Anwar al-Awlaki could be legitimately considered an enemy combatant given his alleged incitement of attacks on the US.

But I was most interested in the timing. As the CCR summary notes, Awlaki’s father, Nasser al-Awlaki, first retained the ACLU and CCR in “early July” to challenge the assassination order on his son on due process grounds. Within weeks, on July 16, 2010, the government designated Anwar al-Awlaki a specially designated global terrorist. At that point, ACLU and CCR had to stop their work on suing the government and apply for a license allowing them to represent the Awlakis. As ACLU Executive Director Anthony Romero noted, listing Awlaki put lawyers in neutral, “while we were in 3rd or 4th gear a few weeks ago” as they wait for the bureaucratic process of getting a license play out.

I asked whether they thought this was intentional–that is, whether they thought the government had designated Awlaki a terrorist so as to make it harder for the ACLU and CCR to represent him. Romero admitted the timing of the listing “did raise our eyebrows.” He said the timing raises the question of “whether OFA is being used to impede lawyers’ ability to challenge” programs like the kill list. And ACLU Attorney Ben Wizner noted how long after the government put Awlaki on the kill list it was before they started to designate him a terrorist and freeze his assets.

Implicit in my question was how the government knew the ACLU and CCR were representing the Awlakis. I will work to clarify that, though Romero did say that the lawyers on the case had traveled to Yemen and started meeting with the family.

In any case, add the timing of the government’s designation of Anwar al-Awlaki as a terrorist to the list of other things that already stink about the government’s efforts to kill him with no due process.

Note: The quotes in this are my transcriptions of the call itself. Since I’m mid-move, I didn’t manage to record the call, but will check the quotes for attribution and accuracy later this PM.

Don’t get me wrong. I’m happy that–after all these years–someone on the right is calling out Presidents Bush and Obama on their abuse of power (watch the video to hear Andrew Napolitano complain about Obama’s targeting of Anwar al-Awlaki).

Nader: Is that what you mean also about throwing people in jail without charges violating habeas corpus?

Napolitano: Well that is so obviously a violation of the natural law, the natural right to be brought before a neutral arbiter within moments of the government taking your freedom away from you. And the Constitution itself, as the Supreme Court in the Boumediene case pretty much said, wherever the government goes, the Constitution goes with it and wherever the Constitution goes are the rights of the Constitution as a guarantee and habeas corpus cannot be suspended by the president ever. It can only be suspended by the Congress in times of rebellion which in read Milligan says meaning rebellion of such magnitude that judges can’t get into their court houses. That has not happened in American history.

So what President Bush did with the suspension of habeas corpus, with the whole concept of Guantanamo Bay, with the whole idea that he could avoid and evade federal laws, treaties, federal judges and the Constitution was blatantly unconstitutional and is some cases criminal.

Nader: What’s the sanction for President Bush and Vice President Cheney?

Napolitano: There’s been no sanction except what history will say about them.

Nader: What should be the sanctions?

Napolitano: They should have been indicted. They absolutely should have been indicted for torturing, for spying, for arresting without warrants.

I agree with everything Napolitano says and I’m glad he’s pitching a book saying it. Welcome to the lonely battle of fighting for the rule of law.

But the time for the right wing to make these arguments was probably 2004, not 2010.

Call me crazy, but this is probably not exactly the kind of treatment Thomas Jefferson was thinking the Declaration of Independence would receive 234 years after he wrote it.

Many nights an item prompts a call to wake the NCTC director, Michael Leiter, 41, the junior member of the nighthawks. He displays a copy of the Declaration of Independence, next to a deck of baseball-style cards of high-value terrorist targets: “I keep the ones who are dead on top. It’s a little macabre, but that’s the world we live in.” When the NCTC calls in the middle of the night, he is often half-awake.

Among those cards, after all, is probably the one that signifies that the President has approved, with no due process, an order to assassinate US citizen Anwar al-Awlaki. That’s the kind of thing that Jefferson objected to when he called the following “Despotism”:

He has affected to render the Military independent of and superior to the Civil power.

[snip]

For Quartering large bodies of armed troops among us:

For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:

[snip]

For depriving us in many cases, of the benefits of Trial by Jury:

[snip]

For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:

While I’m making wildarsed Fourth of July guesses, let me also suggest that this kind of security porn–a 24-style terror play in 9 acts–is probably not exactly what Thomas Jefferson imagined as the role of the free press when he so furiously defended it.

David Kris gave a speech at the Brookings Institute last week, largely intended to make the case for civilian trials. Here’s the main framework of the speech:

Today, however, the consensus that developed in the aftermath of 9/11 shows some signs of unraveling.  In particular, there are some who say that law enforcement can’t – or shouldn’t – be used for counterterrorism.  They appear to believe that we should treat all terrorists exclusively as targets for other parts of the Intelligence Community or the Defense Department.

The argument, as I understand it, is basically the following:

1. We are at war.
2. Our enemies in this war are not common criminals.
3. Therefore we should fight them using military and intelligence methods, not law enforcement methods.

This is a simple and rhetorically powerful argument, and precisely for that reason it may be attractive.

In my view, however, and with all due respect, it is not correct.  And it will, if adopted, make us less safe.  Of course, it’s not that law enforcement is always the right tool for combating terrorism.  But it’s also not the case that it’s never the right tool.  The reality, I think, is that it’s sometimes the right tool.  And whether it’s the right tool in any given case depends on the specific facts of that case.

Here’s my version of the argument:

1. We’re at war.  The President has said this many times, as has the Attorney General.
2. In war you must try to win – no other goal is acceptable.
3. To win the war, we need to use all available tools that are consistent with the law and our values, selecting in any case the tool that is best under the circumstances.

We must, in other words, be relentlessly pragmatic and empirical.  We can’t afford to limit our options artificially, or yield to pre-conceived notions of suitability or “correctness.”  We have to look dispassionately at the facts, and then respond to those facts using whatever methods will best lead us to victory.

Put in more concrete terms, we should use the tool that’s designed best for the problem we face.  When the problem looks like a nail, we need to use a hammer.  But when it looks like a bolt, we need to use a wrench.  Hitting a bolt with a hammer makes a loud noise, and it can be satisfying in some visceral way, but it’s not effective and it’s not smart.  If we want to win, we can’t afford that.

If you take this idea seriously, it complicates strategic planning, because it requires a detailed understanding of our various counterterrorism tools.  If you’re a pragmatist, focused relentlessly on winning, you can’t make policy or operational decisions at 30,000 feet.  You have to come down, and get into the weeds, and understand the details of our counterterrorism tools at the operational level.

And that leads me to this question:  as compared to the viable alternatives, what is the value of law enforcement in this war?  Does it in fact help us win?  Or is it categorically the wrong tool for the job – at best a distraction, and at worst an affirmative impediment?

It really summarizes the Obama Administration’s embrace of man-ego-driven “pragmatism” and wonkiness in all things. The response to outright demagoguery (the “we are at war so we must torture and kill kill kill” perspective), the Obama Administration presents an alternative, purportedly pragmatic formulation that suffers from its own problems.

“We are at war either because of or as evidenced by the fact that the two big men keep saying we are.” Sure, Kris’ speechwriter might just have been trying to rebut the nutters who like to score points by claiming that Obama doesn’t agree with Dick Cheney that This Is War. But note what it does for this entire “pragmatic” argument: it presents the fact–“we are at war” with no examination of either the statement itself or the nuance covered up by it. It avoids questions like, “Against whom are we at war?” “Are we just at war against formal members of al Qaeda, or are we also at war against American losers who read Anwar al-Awlaki on the interToobz and go on to buy a GPS but never actually succeed at contacting anyone from al Qaeda?” “Why are we at war against some terrorism but not other terrorism and, at this point, are we even targeting the most effective and dangerous terrorists?” “What is the objective of this war?” “If we’ve embraced the concept of war, have we also embraced the legal concepts of war?” The Obama Administration has, like the Bush Administration, actually picked and chosen when it wants to claim to be at war and when that’s inconvenient; with a little more examination of the premise itself, we might be able to find a more reasonable way to resolve these inconsistencies. But “pragmatic” claim notwithstanding, this entire thought exercise starts by refusing to examine the foundational premise.

“We’re at war and so we must win!” Here’s where unexamined first principles, driven by man-ego, really introduce problems into this formula. Sure, if you’re at war, you want to win it (though it helps to define what winning looks like). But it assumes certain sorts of acts in its definition: “We must crush those Islamic extremists in our bare hands and eat them for breakfast!” (If you’re John Yoo, you must crush the testicles of Islamic extremists’ children…)It assumes an ego victory against our nominal opponent. And that, to some degree, rules out the more logical objective: “We must make our country and our allies safe from preventable terrorist attacks and minimize the damage any one attack can cause.” That’s the difference between focusing on infrastructure and persuasion rather than arresting losers with an internet connection and a fondness for extremist speech, of whatever type. It’s also a perspective that allows you, at the same time, to address other, larger threats, such as that a deep water oil drilling platform will blow up and destroy one of your most important ecosystems. It’s the difference between single-minded myopia and protecting the country against all threats, including international terrorists, domestic terrorists, environmental disaster, and financial disaster using means that are adequate to the relative danger of the threat.

“We must use the best tools available to win this war.” I don’t so much have a problem with using the best tool available, but if doing so is not tied to the most logical objective because you’ve injected unexamined man-ego into the equation, the “best tool” may not in fact be the best tool. Pragmatism is no good if it serves an unexamined goal that may not, in fact, be the “pragmatic” solution to our problem. Obama has said that persuasion needs to be an important goal, but once you’ve declared a fight to the death with your “enemies”–particularly given the expansive definition of enemy–then you radically undercut the effectiveness of persuasion.

All this discussion about unexamined assumptions is just background to this paragraph, which I find to be the most fascinating (in a car wreck way) paragraph in the speech. In the middle of list of advantages civilian trials offer over military commissions, Kris lays out the critical issue of incentives for cooperation.

Incentives for Cooperation.  The criminal justice system has more reliable and more extensive mechanisms to encourage cooperation.  While the military commissions have borrowed a plea and sentencing agreement mechanism from the courts-martial system which could be used for cooperation – Rule 705 – this system has not yet been tested in military commissions and its effectiveness is as yet unclear.  In law of war detention, interrogators can offer detainees improvements in their conditions of confinement, but there is no “sentence” over which to negotiate, and no judge to enforce an agreement.  Detainees may have little incentive to provide information in those circumstances.  On the other hand, in some circumstances law of war detainees may lawfully be held in conditions that many believe are helpful to effective interrogation.

Kris makes an absolutely critical point: everything about the nature of our military commissions system precludes making deals with suspects (though Kris doesn’t get into some of the biggest impediments to cooperation, such as the embrace of inaccurate information if it feeds the man-ego war narrative, and the sheer arbitrary nature of the system). We got Reid and Abdulmutallab and Shahzad to cooperate because they faced worse punishment if they didn’t. But thus far, the most successful way we’ve had to convince military detainees to cooperate is to kidnap and threaten the innocent family members of those detainees, which whether we’re at war or just fighting terrorism is patently illegal. So it’s a slam-dunk that civilian trials offer more tools to get detainees to cooperate, right?

Which is when Kris throws in his last sentence: “On the other hand, in some circumstances law of war detainees may lawfully be held in conditions that many believe are helpful to effective interrogation.” He sounds like a bad DC journalist here, with his “many believe” qualifier to the claim that certain “conditions” used “in some circumstances [with] law of war detainees” “are helpful to effective interrogation.” This feels like another sentence–even more than the “we’re at war sentence”–that Kris’ speech-writer put into this speech for him. It effectively turns the paragraph from, “only civilian detention offers real incentives to get detainees to cooperate” to “plea agreements work like a charm, but we’ve got to keep Appendix M’s abusive techniques around because ‘many believe’ that they can be ‘helpful’ to interrogation.”

We are at war, the big men have told us, so we must win this war. And that means keeping detainee abuse around as a tool because it’s the only thing that can replace the very effective plea bargain in the Kafkaesque detention system we’ve created because we are at war.