ACLU, Obama’s White Whale

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Screen shot 2013-02-28 at 10.47.36 AMNPR’s Carrie Johnson, ACLU’s Jameel Jaffer, and I discussed yesterday whether the Administration decided to blow off the House Judiciary Committee panel on targeted killing because appearing and answering questions might compromise their uncompromising stance in the targeted killing FOIA.

It’s a point Ben Wittes made in a response to my query from yesterday,

I can’t imagine what kind of stupidity drove the decision to blow off the committee.

(Note, thanks to Wittes for displaying my potty-mouth in its well-celebrated glory; MSNBC Lawfare is not.)

In which he suggests both John Brennan’s nomination and ACLU’s FOIA may have driven that decision.

I can imagine two reasons, though I agree with Marcy that it was stupid—and, I will also add, wrong—of the administration to stiff the committee. The first is John Brennan’s pending confirmation. The last thing administration wants right now, prior to a Senate vote on Brennan, is to create a forum in which officials get more questions on targeted killings.

The second reason, as I said at the hearing, is FOIA litigation. Every disclosure prompts more demands for more disclosures and prompts arguments that material is not, in fact, secret. So there’s a hunker-down-and-say-nothing mentality that has kicked in. As I say, it’s wrong. And as the tone of yesterday’s hearing—where Republicans and Democrats alike were clamoring for judicial review of targeting decisions—shows, the administration has a lot of work to do with Congress if it means to maintain confidence in its policies—work that will have to be done, at least in part, in public. But it’s not hard, in my opinion, to imagine what’s behind it.

First, with regards to Brennan’s nomination, I present this:

The Senate intelligence committee on Wednesday postponed until next week a vote on the confirmation of White House aide John Brennan to be CIA director, dashing hopes of Democratic leaders who had hoped to have a vote on Thursday.

[snip]

No explanation for the delay was immediately available. However, the Obama administration has been at odds with members of the committee’s Democratic majority over White House unwillingness to disclose some highly classified legal documents related to “targeted killings,” including the use of lethal drone strikes against suspected militants.

[snip]

On Wednesday, administration officials met with intelligence committee members to discuss the contents of the disputed documents. Copies of the material were not turned over to the committee, however, said a source familiar with the matter.

On Tuesday, the Administration shared the Benghazi emails with the Benghazi Truthers, which had been their plan to move Brennan’s nomination forward without turning over any more memos. And while some Republicans, just moments after they received the emails, made a mild stink about Brennan’s thoroughly predictable involvement in efforts to craft talking points about the attack, by Wednesday, that already proved insufficient to move the nomination.

By Wednesday, the Administration was sharing more information on the memos, not Benghazi. And then, after sharing such information, we learn the Administration has been left to stew over the weekend.

Now, perhaps the leaks to National Journal changed the game:

A senator who sits on the Intelligence Committee and has read some of the memos also said that the still-unreleased memos contain secret protocols with the governments of Yemen and Pakistan on how targeted killings should be conducted. Information about these pacts, however, were not in the OLC opinions the senator has been allowed to see. The senator, who also would speak to National Journal only on condition of anonymity, said the only memos that the committee has been given represent mainly legal analysis justifying the drone strikes, and that the rest contain “case-specific” facts about operations.

In response to which an anonymous official who looks like Tommy Vietor made dickish comments about how unreasonable it would be to let the Senate Intelligence Committee exercise oversight and how mean it is to use confirmations to insist on being able to do so because it just feeds into Republican plots.

An Obama administration official who is familiar with the negotiations with Feinstein’s committee indicated that the White House was miffed at efforts by the senator and her staff to obtain all the memos at once, because such efforts play into the Republican strategy of using the dispute to delay the confirmation of John Brennan, Obama’s nominee to head the CIA and the main architect of the drone program, as well as Chuck Hagel as Defense secretary.

“These guys don’t even know what the hell they’re asking for,” the official said. “They think they can ‘reverse-engineer’ the [drone] program by asking for more memos, but these are not necessarily things that exist or are relevant…. What they’re asking for is to get more people read into very sensitive programs. That’s not a small decision.”

Perhaps senior administration officials leaking information presumably contained in the memos to the NYT didn’t help matters.

And while lofty Senators on Intelligence Committees usually couldn’t give a damn about lowly Congressman on Judiciary Committees, I can’t imagine yesterday’s hearing helped. Because in that hearing, a bunch of very partisan Republicans made a case that will be credible to moderates and civil libertarians like me (not to mention, really feed the Tea Partiers) that the Administration is abusing its power, both in regards to the way it is treating Congress, but also in its claims to potentially unchecked authority. (Note, on that front, I owe HJC Chair Bob Goodlatte an apology: it was a well-run and well-crafted hearing.)

With the Talking Point emails shared, Benghazi is frittering out, and the Republicans will need a new scandal to fundraise off of. And a potential fight over whether or not the President has to say whether he thinks he can kill Americans in America has the distinct advantage over both Fast and Furious (their most successful scandal to date) and Benghazi (which wasn’t nearly as successful) in that people across the political spectrum (save those who think Obama should be trusted with this authority because, well, he’s trustworthy) may think it’s reasonable.

That is, while (some) Republicans may only be picking this up because it demonstrates the Administration’s double standard with respect to the Bush Administration, or because their prerogatives have been slighted, or because they figure this paranoid level of secrecy might be hiding real misconduct, the targeting killing memos are close to reaching a tipping point at which they turn into a real political issue.

And that may be what the Administration will be stewing over this weekend.

In the face of that threat, then, there’s just the FOIA. Mean old ACLU Legal Director Jameel Jaffer, FOIAing for more information on the President’s authority to kill Americans (and also, it should be said, helping the Awlaki and Khan families sue for wrongful death). How dare he do that, even if John Brennan, in one of the Administration’s key counterterrorism speeches, emphasized how important presumptive disclosure on FOIA was?

Our democratic values also include—and our national security demands—open and transparent government. Some information obviously needs to be protected. And since his first days in office, President Obama has worked to strike the proper balance between the security the American people deserve and the openness our democratic society expects.

[snip]

The President also issued a Freedom of Information Act Directive mandating that agencies adopt a presumption of disclosure when processing requests for information.

So what if John Brennan says the terrorists will win if the Administration plays stupid games with FOIA? There are lawsuits to be won, damnit!

Now, I have no doubt that the Administration might delay Congressional oversight solely to gain an advantage over the ACLU. Not only did Daniel Klaidman’s sources reveal such suits were at the forefront of their considerations when deciding not to be as transparent as promised, but it appears the Administration already delayed Congressional oversight so as to gain an advantage in ACLU’s FOIA suit.

So yes, it is likely that is one of the reasons DOJ chose to snub the Committee, thereby making this issue more of a political issue.

But it seems the Administration has lost all perspective about how those FOIAs might play out. That’s true, as Jack Goldsmith pointed out, because even if a judge rules that the Administration has revealed what it has been trying to avoid revealing, it’s not the end of the FOIA world for them.

But what if the Court does rule that the USG has acknowledged CIA’s involvement in drone strikes?  What would the ACLU gain, since the whole world already knows this fact?  Such a ruling would require CIA to file a Vaughn index listing responsive documents to the CIA request.  But at that point the government would have further legal options for non-disclosure.  As I once explained:

Even if the D.C. Circuit concludes that the USG has in effect officially acknowledged CIA involvement in drone strikes, however, it need not follow that the CIA must cough up a list of all responsive documents.  These lists alone – which typically contain document titles, dates, and the like – can disclose quite a lot about what the CIA is doing.  Some of the information in a Vaughn index might reveal or point to sources and methods or other properly classified information that would harm national security.  I see no reason why the D.C. Circuit could not rule that the USG has acknowledged CIA involvement, but then rule that (a) the CIA need not produce a Vaughn index if doing so would disclose properly classified information, or (b) the CIA must produce a Vaughn index but can redact any entries in the index (including all of them) that would, if revealed, disclose properly classified information.  Option (a) was suggested by Judge Easterbrook in Bassiouni v. CIA, 392 F. 3d 244 (7th Cir. 2005) – an approach that, as Easterbrook noted, is entirely consistent with the FOIA statute.  Option (b) is simply a more fine-grained substitute for the Easterbrook approach that would force the government to explain its redactions (and which need be no trickier than the already-tricky process of forcing the government to explain why the documents referenced in a Vaughn index need not be disclosed).

Even if ACLU wins on the “official acknowledgment” issue, in short, it has a long way to go to get the records it seeks.  But as we have seen more than once in the last decade, even heavily redacted Vaughn indexes can reveal important information and constitute the basis for further FOIA requests and further disclosures (through FOIA or other means).

I’d add that, at least in the 2nd Circuit, the Administration seems to be protected by overly broad protection for the Memorandum of Notification that authorizes targeted killing and everything else.

And unless there are really big disclosures in there that even I can’t imagine (plus, who besides me is going to look that closely?), there’s simply nothing that will come out in FOIA that will be more damaging than inciting the Republicans to turn this — a real example of abuse of power — into their next political scandal.

Trust me, Obama folks, you made the wrong calculation here, and you’d do well to reverse course before it’s too late.

Though I will make one final caveat.

I don’t think the FOIA could be all that damaging to the Administration.

But I do think the wrongful death suit might. This discussion will make it very hard for the Administration to dismiss of this counterterrorism suit the same way they have every other one, by invoking state secrets (and while there might be standing issues, particularly for Nasser al-Awlaki, Sam Alito won’t be able to suggest the Awlakis and Khans can’t prove their family members were killed in a US drone strike). And having lost the veil of state secrets, there are all sorts of issues that might come out, both about Awlaki’s history, and about why the FBI let Samir Khan leave when every other known radical trying to head to Yemen gets arrested before he boards a plane.

And, quite simply, if they can’t prevent Khan from pursuing this wrongful death suit, some interesting legal conclusions.

So while I think to the extent the Administration is still stalling Congress because of the FOIA, they’re crazy. If that’s the case, they’d be risking giving Republicans a really dangerous issue to politicize next.

All that said, I think the wrongful death suit may present real issues for them, particularly as this information becomes more public. But if it does, then it just serves to prove that the case for killing Awlaki and Khan and Abdulrahman doesn’t withstand legal review.

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The Targeted Killing Memos Shared with NYT, But Not Senate Intelligence Committee

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According to the National Journal, one of the memos the Administration refuses to share with the intelligence committees authorizes the use of force in Algeria and, perhaps also in the same memo, with Mali.

Despite President Obama’s pledge in his State of the Union address to make the drone program “even more transparent to the American people and to the world,” his administration continues to resist efforts by Congress, even from fellow Democrats, to obtain the full range of classified legal memos justifying “targeted killing.”

A key reason for that reticence, according to two sources who have read the memos or are aware of their contents, is that the documents contain secret protocols with foreign governments,

[snip]

Others may have been signed with the leaders of Algeria and Mali, the legal expert said. Given the widespread unpopularity of the drone program, the disclosure of these agreements could prove extremely embarrassing both for the United States and partner governments.

The Senate Intelligence Committee can’t learn the details of what the government is up to, the Administration says, because even sharing information (much less publicizing details) about our agreements with governments like Algeria would be embarrassing for all parties involved.

So who are the former and current government officials and senior administration officials leaking information to the NYT about new efforts — including the use of unarmed drones — to target the Algerian militant Mokhtar Belmokhtar in Algeria and Mali?

The NYT reports that earlier concerns about conducting operations not covered by the 2001 AUMF have recently been allayed.

The idea of taking stronger action in the region has been supported in recent months by Michael Sheehan, the senior counterterrorism official at the Pentagon, and Daniel Benjamin, who until December was the senior State Department counterterrorism official. In the past, State Department lawyers have questioned whether the military action approved by Congress against Al Qaeda after the Sept. 11, 2001, attacks authorized efforts to target extremists who were not clearly linked to the group. But according to some officials, those legal arguments  have recently been overcome.

“Those legal arguments have recently been overcome.” By the adoption of new OLC advice the Administration won’t share with Congress?

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Obama Administration Stokes Embers of GOP Interest in Oversight by Blowing Off Targeted Killing Hearing

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Boy, what fucking idiots run DOJ (and, presumably, the Obama Administration generally).

As I noted when I first remarked on Bob Goodlatte, the new Chair of the House Judiciary Committee, showing some interest in the targeted killing memo, a perceived slight on Congressional prerogative (and perhaps a suspicion that paranoid levels of secrecy tends to indicate misconduct somewhere) seemed to get mainstream Republicans like Goodlatte interested in the targeted killing program for the first time.

And then HJC decided to hold a hearing on targeted killing, something solidly within their jurisdiction. And then Goodlatte invited a representative from DOJ, something they get to do to conduct oversight.

And then DOJ blew off HJC.

Whoo boy! You had Trey Gowdy, of all people, out there endorsing the idea of killing people in everything from hot pursuit to stand your ground contexts, but still demanding oversight in this case. You had Republican after Republican (and more Republicans did show up, even given the committee imbalance) show an interest in the proper limits to a President’s authority to kill. Republican after Republican (plus a few Democrats, including John Conyers) complained that the Administration had blown off the committee.

I mean, I’ll take it. If the Administration wants to stupidly give the GOP a reason to make this a political issue, I’m happy to finally have someone pushing for oversight in this area.

But I can’t imagine what kind of stupidity drove the decision to blow off the committee.

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Obama Administration Not Meeting Transparency Standard Set by Bush Lawyer Steven Bradbury

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Glenn Greenwald has a great post on the Administration’s refusal to say whether it can kill Americans inside the US. But he misstates how extreme Obama’s refusal to share Office of Legal Counsel memos is. That’s because he equates an Administration sharing OLC memos with the intelligence committee and sharing them with the public.

Critically, the documents that are being concealed by the Obama administration are not operational plans or sensitive secrets. They are legal documents that, like the leaked white paper, simply purport to set forth the president’s legal powers of execution and assassination. As Democratic lawyers relentlessly pointed out when the Bush administration also concealed legal memos authorizing presidential powers, keeping such documents secret is literally tantamount to maintaining “secret law”. These are legal principles governing what the president can and cannot do – purported law – and US citizens are being barred from knowing what those legal claims are.

[snip]

You know who once claimed to understand the grave dangers from maintaining secret law? Barack Obama. On 16 April 2009, it was reported that Obama would announce whether he would declassify and release the Bush-era OLC memos that authorized torture. On that date, I wrote: “today is the most significant test yet determining the sincerity of Barack Obama’s commitment to restore the Constitution, transparency and the rule of law.” When it was announced that Obama would release those memos over the vehement objections of the CIA, I lavished him with praise for that, writing that “the significance of Obama’s decision to release those memos – and the political courage it took – shouldn’t be minimized”. The same lofty reasoning Obama invoked to release those Bush torture memos clearly applies to his own assassination memos, yet his vaunted belief in transparency when it comes to “secret law” obviously applies only to George Bush and not himself.

But it is not the case that Bush always sat on OLC memos. In fact, as Dianne Feinstein noted in John Brennan’s confirmation hearing, at least by the last year of the Bush Administration, Democrats had gotten Steven Bradbury to start turning over even the most sensitive OLC memos to Congress.

I wanted to talk about, just for a moment, the provision of documents. Senator Wyden and others have had much to do about this. But our job is to provide oversight to try to see that the CIA and intelligence communities operate legally.

In order to do that, it is really necessary to understand what the legal — the official legal interpretation is. So the Office of Legal Counsel opinions becomes very important.

We began during the Bush administration with Mr. Bradbury to ask for OLC opinions. Up til last night, when the president called the vice chairman, Senator Wyden and myself and said that they were providing the OLC opinions, we have not been able to get them. It makes our job to interpret what is legal or not legal much more difficult if we do not have those opinions.

Which made it possible to — as DiFi did in an exchange with Michael Mukasey on April 10, 2008 — force the (Bush) Administration to publicly disavow some of the more extreme positions endorsed by John Yoo.  Read more →

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Did Susan Collins Switch Parties? Cause She Wanted OLC Memos, Too

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I hate to waste an entire post on this.

But the NYT’s report last night that President Obama was going to capitulate to the Benghazi truthers rather than turn over memos revealing who and where he has been killing people — as well as all the secondary reporting on it — has made this claim.

Rather than agreeing to some Democratic senators’ demands for full access to the classified legal memos on the targeted killing program, Obama administration officials are negotiating with Republicans to provide more information on the lethal attack last year on the American diplomatic compound in Benghazi, Libya, according to three Congressional staff members.

The strategy is intended to produce a bipartisan majority vote for Mr. Brennan in the Senate Intelligence Committee without giving its members seven additional legal opinions on targeted killing sought by senators and while protecting what the White House views as the confidentiality of the Justice Department’s legal advice to the president. It would allow Mr. Brennan’s nomination to go to the Senate floor even if one or two Democrats vote no to protest the refusal to share more legal memos. [my emphasis]

On February 4, Susan Collins was among the 11 Senators who signed a letter asking for “any and all legal opinions that lay out the executive branch’s official understanding of the President’s authority to deliberately kill American citizens.”

Perhaps Collins has been satisfied with the brief glimpse at the two memos it shared with the Committee back on February 7. Perhaps she — the Senator on the Intelligence Committee who asked the best questions about targeted killing efficacy — is not all that interested in the other memos the Administration is hiding, presumably along with uses of targeted killing she isn’t being briefed on. Perhaps she no longer supports the hinted hold-up for national security nominees.

But even on the Senate Intelligence Committee, the call for the targeted killing memos was a bipartisan affair (among those not on the committee, Mike Lee and Chuck Grassley also signed the letter, and Rand Paul sent his own demand for the memos). Heck, once upon a time, John Cornyn wanted to legislatively demand the memos.

Demanding that the President reveal what kind of targeted killing programs it supports is no hippie fetish. It is something that members of both parties have supported.

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Targeted Killing Timeline

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A timeline!

I’ve been working on this timeline for almost nine months, trying to pull together the known dates about strikes against Americans, the evidence supporting the strike against Anwar al-Awlaki, the legal cases surrounding both targeted killing and torture, to which targeted killing is linked via the Memorandum of Notification, and Congressional efforts to exercise oversight.

September 17, 2001: George Bush signs Memorandum of Notification (henceforth, Gloves Come Off MON) authorizing a range of counterterrorism techniques, including torture and targeted killing.

September 18, 2001: Congress passes the Authorization to Use Military Force.

November 3, 2002: US citizen Kamal Derwish killed in drone purportedly targeting Abu Ali al-Harithi.

Late 2008: Ruben Shumpert reported killed in Somalia.

June 24, 2009: Leon Panetta gets briefed on assassination squad program.

June 26, 2009: HPSCI passes a funding authorization report expanding the Gang of Eight briefings.

July 8, 2009: The Administration responds with an insulting appeal to a “fundamental compact” between Congress and the President on intelligence matters.

July 8, 2009: Silvestre Reyes announces CIA lied to Congress.

October 26, 2009: British High Court first orders British government to release language on Binyam Mohamed’s treatment.

October 28, 2009: FBI kills Imam Luqman Asmeen Abdullah during Dearborn, MI arrest raid.

October 29, 2009: Hearing on declassifying mention of Gloves Come Off MON before Judge Alvin Hellerstein; in it, Hellerstein reveals NSA James Jones has submitted declaration to keep mention of MON secret.

November 5, 2009: Nidal Hasan attacks Fort Hood, killing 13.

December 24, 2009: JSOC tries but fails to hit Anwar al-Awlaki. On that day, the IC did not yet believe him to be operational.

December 25, 2009: With Umar Farouk Abdulmutallab attack, FBI develops full understanding of Awlaki’s operational goals.

January 2, 2010: In conversation with David Petraeus, Yemeni President Ali Abdullah Saleh http://www.cablegatesearch.net/cable.php?id=10SANAA4“>speaks as if Awlaki, whom he refers to as a cleric, not an AQAP member, was a designated target of December 24 attack.

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White House Capitulates to Benghazi Truthers Rather Than Coming Clean on Targeted Killing

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The other day, I explained that the Administration would be forced either to cede to Republican demands for Benghazi talking points and other truther demands or release a full accounting why and in which countries it has conducted targeted killing.

It decided to capitulate to the Benghazi truthers rather than tell the Intelligence Committee what kind of targeted killing it has been doing.

Rather than agreeing to some Democratic senators’ demands for full access to the classified legal memos on the targeted killing program, Obama administration officials are negotiating with Republicans to provide more information on the lethal attack last year on the American diplomatic compound in Benghazi, Libya, according to three Congressional staff members.

The strategy is intended to produce a bipartisan majority vote for Mr. Brennan in the Senate Intelligence Committee without giving its members seven additional legal opinions on targeted killing sought by senators and while protecting what the White House views as the confidentiality of the Justice Department’s legal advice to the president.

[snip]

The administration is currently in discussions with Republican members of the Intelligence Committee about providing the trail of e-mails that were the basis of “talking points” from the intelligence agencies regarding the Sept. 11 attack in Benghazi, which killed the American ambassador to Libya, J. Christopher Stevens, and three other Americans. Such a concession would probably win at least some Republican votes for Mr. Brennan.

I get that the Benghazi truther demands are, at this point, pointless. I get that the President would rather cede to a bunch of  nutcases  from the Republican party than Senators from his own party.

But what does it say that this information on targeted killing–which the Administration should provide to the intelligence Committees under the National Security Act, by law, in any case–is more precious than a bunch of partisan hackery the Republicans have been pursuing since September.

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Department of Pre-Crime, Part 4: The NDAA Congress Is Not About to Legislate Targeted Killing

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In three earlier posts, I have discussed the problem with turning the FISA Court into the Drone and/or Targeted Killing Court: As I noted, the existing FISA Court no longer fulfills the already problematic role it was set up to have, ensuring that the government have particularized probable cause before it wiretap someone. On the contrary, the FISA Court now serves as a veil of secrecy behind which the government can invent new legal theories with little check.

In addition, before the FISA Court started rubberstamping Drone Strikes and/or Targeted Killings of Americans, presumably it would need an actual law to guide it. (Though Carrie Cordero, who is opposed to the Drone and/or Targeted Killing FISA Court idea because it might actually restrain the Executive, seems to envision the Court just using the standards the Executive has itself invented.) And there’s a problem with that.

The same Congress that hasn’t been successful passing legislation on detention in the 2012 NDAA is certainly not up to the task of drafting a law describing when targeted killing is okay.

As a reminder, here’s what happened with the NDAA sections on military detention. The effort started with an attempt to restate whom we are at war with, so as to mandate that those we’re at war with be subject to law of war detention. The language attempting to restate whom we’re at war with ended up saying:

(a) IN GENERAL.—Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

(b) COVERED PERSONS.—A covered person under this section is any person as follows:

(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.

(2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

Compare that language with what the actual AUMF says:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Part of the difference arises from the shift to focusing exclusively on persons (you can’t detain a nation, after all, though Palestine might disagree).

Part of the difference comes from the effort — clause 2 above — to extend the AUMF to those associated forces. This was meant to cover groups like AQAP and al-Shabaab, but as we’ll see, it’s one source of the problem with the law.

But part of the problem is that the NDAA language smartly took out the “he determines” and “in order to prevent any future acts of international terrorism” language. The former has long been a giant loophole, allowing the President to define in secret whom we’re at war against. And I increasingly suspect the Administration has been using the latter language to expand the concept of imminent threat.

In other words, in an effort to parrot back its understanding of whom we’re at war against, Congress both introduced some new fuzzy language — associated forces — and took out existing loopholes — the “he determines” and “prevent any future acts.”

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What a Targeted Killing in the US Would Look Like

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Warning: Several minutes into this video, graphic images of a corpse appear. Also, the government may start tracking your online viewing if you view this YouTube, as someone started following my mostly defunct YouTube account after I watched it.

On October 28, 2009, the FBI set out to arrest a man they claimed, in the complaint justifying the arrest, was “a highly placed leader of a … radical fundamentalist Sunni group [the primary purpose of which] is to establish a separate, sovereign Islamic state.” The leader of the group “calls his followers to an offensive jihad.” The complaint states the group trained in the use of firearms and martial arts and explains that “Abdullah is advocating and encouraging his followers to commit violent acts against the United States.”

The arrest was staged at a warehouse controlled by the FBI, outfitted with 5 closed circuit video cameras that gave the FBI full visibility into anyone entering and leaving the warehouse, as well as pallets loaded with sandbags to provide cover. Altogether 66 FBI Agents participated in the arrest, with 29 Agents, including a K-9 team and snipers, inside the warehouse itself, along with helicopter cover, another K-9 team, and a control room nearby. Members of the FBI’s Hostage Rescue and SWAT teams participated, with Agents flying in from Columbia, South Carolina and DC via a previous operation in Los Angeles. The team had practiced the arrest scenario up to 10 times before the actual arrest.

The arrest started when the FBI detonated 3 pre-positioned diversionary explosives in the room in which the leader, 4 accomplices, two undercover officers and an informant had been moving boxes (the FBI insiders had already left the scene). That allowed the FBI team, wearing bullet proof gear and helmets, to move into place.

On orders, “FBI, show me your hands, on the ground!” the leader’s four accomplices put their hands up and got down on the ground (for a variety of reasons, the FBI doesn’t have recordings of the audio of the event). The leader hesitated, but then got face down on the ground, though the FBI claims his hands were not visible.

At that point, 62 seconds after the diversionary explosions, the K-9 handler, who had been briefed that the leader was the main target of the investigation, released the dog and gave the “bite” command, the first time he had ever done so in the year he had been a K-9 handler; the dog lunged at the leader’s arm or face. The FBI claims the leader raised a gun and shot the dog three times. One accomplice disagrees, describing that the leader had both hands on the dog, trying to keep him away from his face. Two FBI Agents who admitted shooting their rifles also had Glocks, though of a different caliber than the one allegedly used by the leader. There was no gunpowder residue found on the leader and no fingerprints found on the Glock.

In the next 4 seconds, 4 different FBI officers shot the leader with their Colt M4 rifles (3 were from the Hostage Rescue Team that had flown in for this arrest), set on semiautomatic. He was hit a total of 21 times. He died within a minute.

This was the culmination of a 3-year counterterrorism investigation into Imam Luqman Abdullah, a black Muslim who led a mosque in Detroit. The investigation intensified in 2007 as Abdullah and his associates reacted against the transfer of H. Rap Brown (now Jamil Abdullah al-Amin), who had been convicted of killing two police officers in Georgia in 2002, to Florence SuperMax Prison.

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The AUMF Fallacy

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There’s a whole strand of commentary on the targeted killing that lets the Obama Administration off easy for what it maintained in the white paper on the targeted killing of Americans.

There’s the argument made by David Cole and Jane Mayer that Obama’s targeted killing isn’t as bad as Bush’s torture because torture is always illegal, whereas killing is legal during war. This is Cole:

Thus, where Bush sought to rationalize a universally proscribed war crime, Obama is seeking to chart an appropriate legal course in a new setting of a well-established and generally lawful military tactic: killing the enemy.

There’s Armando Llorens’ argument that because the AUMF didn’t expressly authorize the military to operate in the US, the President therefore couldn’t target Americans in the US.

Serwer writes:

The question is whether the Authorization for Use of Military Force, which Congress passed in the aftermath of the 9/11 attacks, counts as “express authorization” to carry out a targeted killing on US soil.

Well, let’s read the empowering provisions:

Section 2 – Authorization For Use of United States Armed Forces(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

The argument that Serwer appears to adopt is that this empower the president to “use all necessary and appropriate force against those […] organizations or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001 […]in order to prevent any future acts of international terrorism against the United States” including such persons and organizations located in the United States.

The problem is  the 2001 AUMF does not include the language “in the United Sates.” To wit, the Posse Comitatus Act’s requirement of “express authorization” is not met. There is no express authorization for military targetting in the United States.

And there’s Garrett Epps’ in some ways strong argument that a Drone and/or Targeted Killing Court wouldn’t work that nevertheless problematically includes the claim that Obama has claimed no inherent authority in his use of drone strikes.

The present administration does not claim that the president has “inherent authority” to attack anyone anywhere. Instead, from the documents and speeches we’ve seen, the administration says it can order drone attacks only as provided by the Authorization for the Use of Military Force passed by Congress after the September 11 attacks—that is, against “those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

Unlike the fictional President Bennett in Tom Clancy’s Clear and Present Danger, then, President Obama can’t suddenly send the drone fleet down to take out, say, Colombian drug lords or the Lord’s Resistance Army in Uganda. [my emphasis]

All of them claim the Administration is operating exclusively within the AUMF, and based on that assumption conclude certain things about what the Administration has done.

There is abundant evidence to refute that. After all, the Administration invokes self-defense about as many times as it does AUMF in the white paper. The white paper actually situates the authority to kill an American in “constitutional responsibility to protect the country” — that is, Article II authority — and inherent right to self-defense even before it lists the AUMF.

The President has authority to respond to the imminent threat posed by al-Qa’ida and its associated forces, arising from his constitutional responsibility to protect the country, the inherent right of the United States to national self defense under international law, Congress’s authorization of the use of all necessary and appropriate military force against this enemy, and the existence of an armed conflict with al-Qa’ida under international law.

(Interestingly, the Holder speech reverses that order, listing AUMF, law of war, Article II, and then self-defense under international law.)

One of the Senators who has actually been briefed on Anwar al-Awlaki’s killing kept asking, for an entire year, “is the President’s authority to kill Americans based on authorization from Congress or his own authority as Commander-in-Chief?” While Wyden didn’t repeat that question in open session at Brennan’s hearing (so it may have been answered in the OLC memos he got the morning of the hearing), if he didn’t know, then how can all these people who haven’t been briefed claim to know?

Similarly, Colleen McMahon — who has been briefed at least on why CIA needed to invoke No Number No List over their own public speech — emphasized the unilateral nature of the decision to kill Awlaki.

And ultimately, we should look to what Stephen Preston — the General Counsel of the agency that actually carried out the Awlaki killing — has to say about where the CIA gets its authorization to engage in lethal covert operations.

Let’s start with the first box: Authority to Act under U.S. Law.

First, we would confirm that the contemplated activity is authorized by the President in the exercise of his powers under Article II of the U.S. Constitution, for example, the President’s responsibility as Chief Executive and Commander-in-Chief to protect the country from an imminent threat of violent attack. This would not be just a one-time check for legal authority at the outset. Our hypothetical program would be engineered so as to ensure that, through careful review and senior-level decision-making, each individual action is linked to the imminent threat justification.

A specific congressional authorization might also provide an independent basis for the use of force under U.S. law.

In addition, we would make sure that the contemplated activity is authorized by the President in accordance with the covert action procedures of the National Security Act of 1947, such that Congress is properly notified by means of a Presidential Finding. [my emphasis]

The CIA, the agency that killed Awlaki, looks to Article II authority before it engages in targeted killing. Congressional authorization might also provide authority, Preston says. But Preston makes it clear that all the CIA needs to conduct lethal covert operations (though he does not specify that this holds with an American citizen) is the President’s Article II say-so.

At best, this record shows that Obama has operated under Article II and AUMF yoked together. There is no conceivable way (except by deliberate misreading) to argue that he is operating exclusively under the AUMF, because these public statements point to both the AUMF and Article II. And the Preston language at least envisions conducting such operations solely under Article II.

Finally, this notion that the President doesn’t think he could shoot drones against the Colombian drug lords or the LRA? It would be a lot more defensible statement if the Administration would share with even the Intelligence Committees — which it has thus far refused to do — the list of all the countries it has operated with lethal force. Add in those 7 OLC memos authorizing targeting killing (though not of Americans) that the Administration also has thus far refused to share, and there’s good reason to believe the Administration is conducting targeted killings — whether by drones or other means — in ways that must stretch the AUMF, because they won’t share that information with the Congress that purportedly authorized it.

These arguments that Obama ordering the death of an American (purportedly under exclusively AUMF authority) isn’t that bad are all very nice. But insofar as they ignore the public record, which shows that Obama is at least partially situating his authority to kill in his Article II authority, the arguments are simply spin on what Obama really did.

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