Frances Fragos Townsend is distraught that the media are not using the government’s euphemism for the Anwar al-Awlaki assassination.
Awalaki op was NOT assassination; nor a targeted killing; nor a hit job as media keeps describing! Was a legal capture or kill of AQ enemy.
My favorite bit is how that “captureorkill” rolls right into her tweet, a false foundation stone for the shaky logic that there’s a legal distinction between an operation in which there was never any consideration of capture, and an assassination.
But her panic that the media is not using the preferred semantics to describe the Awlaki assassination reflects a seemingly growing concern among all those who have participated in or signed off on this assassination about its perceived legitimacy.
In addition to Townsend, you’ve got DiFi and Saxby Chambliss releasing a joint statement invoking the magic words, “imminent threat,” “recruiting radicals,” and even leaking the state secret that Yemen cooperated with us on it. You’ve got Mike Rogers asserting Awlaki, “actively planned and sought ways to kill Americans.” All of these people who have been briefed and presumably (as members of the Gang of Four) personally signed off on the assassination, citing details that might support the legality of the killing.
In his effort to claim the assassination was just, Jack Goldsmith gets at part of the problem. He makes the expected arguments about what a careful process the Obama Administration uses before approving an assassination:
- Citing Judge John Bates’ punt to the political branches on the issue, all the while claiming what Bates referred to as an “assassination” is not one
- Arguing that killing people outside of an area against which we’ve declared war is legal “because the other country consents to them or is unable or unwilling to check the terrorist threat, thereby bringing America’s right to self-defense into play”
- Asserting that Administration strikes “distinguish civilians from attack and use only proportionate force”
But, as Goldsmith admits,
Such caution, however, does not guarantee legitimacy at home or abroad.
And while his argument self-destructs precisely where he invokes the Administration’s claims over any real proof, Goldsmith at least implicitly admits the reason why having Townsend and Chambliss and DiFi and Rogers and himself assuring us this attack was legal is not enough to make it legitimate: secrecy.
[T]he Obama administration has gone to unusual lengths, consistent with the need to protect intelligence, to explain the basis for and limits on its actions.
It can perhaps release a bit more information about the basis for its targeted strikes. It is doubtful, however, that more transparency or more elaborate legal arguments will change many minds, since the goal of drone critics is to end their use altogether (outside of Afghanistan). [my emphasis]
As Goldsmith’s own rationalization for the legality of this attack makes clear, the attack is only legal if Yemen consents OR is unable OR unwilling (leaving aside the question of imminence, which at least DiFi and Chambliss were honest enough to mention). So too must the attack distinguish between a civilian–perhaps someone engaging in First Amendment protected speech, however loathsome–and someone who is truly operational.
And while the government may well have been able to prove all those things with Awlaki (though probably not the imminence bit Goldsmith ignores), it chose not to.
It had the opportunity to do so, and chose not to avail itself of that opportunity.
The Administration very specifically and deliberately told a court that precisely the things needed to prove the operation was legal–whether Yemen was cooperating and precisely what Awlaki had done to amount to operational activity, not to mention what the CIA’s role in this assassination was–were state secrets. Particularly given the growing number of times (with Reynolds, Arar, Horn, al-Haramain, and Jeppesen) when the government has demonstrably invoked state secrets to hide illegal activity, the fact that the government has claimed precisely these critical details to be secret in this case only make its claims the killing was legal that much more dubious.
Critical thinkers must assume, given the government’s use of state secrets in recent years, that it invoked state secrets precisely because its legal case was suspect, at best.
Jake Tapper: You said that Awlaki was demonstrably and provably involved in operations. Do you plan on demonstrating —
MR. CARNEY: I should step back. He is clearly — I mean “provably” may be a legal term. Read more