Tag: Targeted Assassinations

Three years ago the Unites States on the orders of President Barack Obama assassinated a native born American citizen, Anwar al Awlaki, in Yemen, using the rational that he was an “immanent threat” and, well, because they could. To this day, other than al-Awlaki’s videos and writing, that are covered under the First Amendment, there has been no evidence that this man was an immanent threat to the security of United States. No evidence, no indictment, no trial. Just a clear violation of al-Awlaki’s rights as an American.

One of the memos that was used to justify this murder was released this week after the Obama administration’s loss of a FOIA request by the ACLU and the New York Times. Needless to say, the memo written by Acting Assistant Attorney General of the Office of Legal Counsel, and now United States Circuit Judge, David Barron, is heavily redacted. The memo is, as the New York Times Editorial Board so blithely put it, “a slapdash pastiche of legal theories – some based on obscure interpretations of British and Israeli law – that was clearly tailored to the desired result”.

Citing the Authorization to Use Military Force (AUMF), that started the nebulous “global war on terror,” is hardly a defense for taking a man’s life without due process under our laws and wouldn’t hold water in any legitimate court like the Hague.

From Spencer Ackerman at The Guardian

The redacted version of the memo released Monday does not reveal much of the factual basis for the government’s claims that Awlaki represented an imminent threat to the United States.

In the disclosed portions, Barron’s memo does not explicitly vouch for the government’s case against Awlaki, referring instead to “the facts represented to us”. It refers instead to Awlaki as a “leader” who was “continuously planning attacks” against the US, without providing an evidentiary basis for claims central to the extraordinary circumvention of normal due process procedures. Nor do the public sections explain why capturing Awlaki was not feasible, nor why the Justice Department believes it need not have provided Awlaki with judicial process. [..]

The Justice Department memo “confirms that the government’s drone killing program is built on gross distortions of law”, said Pardiss Kebriaei, a lawyer with the Center for Constitutional Rights who challenged the Awlaki killing, who added that the “forced transparency comes years late”.

Rejecting a government argument that the release of the memorandum would chill attorney-client communications, the court wrote on Monday: “If this contention were upheld, waiver of privileges protecting legal advice would never occur. … We need not fear that OLC will lack for clients.”

The real in depth analysis of the memo comes from Marcy Wheeler, who dissects the memo paragraph by paragraph, here and here.

As Tim cushing at Techdirt writes, the “AUMF trumps all and rights are subject to revocation in times of war.”

The justifications listed below constantly cite 18 USC 1119(b), a law that simply states that it’s illegal for a US citizen to kill another US citizen residing outside US borders, making them subject to the United States’ laws on murder and manslaughter. But what looks simple and solid on the law books is apparently filled with loopholes and things Congress meant to make clear but apparently didn’t. [..]

On page 73, the DOJ notes that there’s actually no federal statute that grants the government the same “rights” (in terms of justified use of deadly force) local law enforcement agencies enjoy, but that doesn’t slow down the rationalizing. The DOJ looks back through legislative to find something that might apply to its drone attacks. But what it quotes here has nothing to do with executions. [..]

Technically, we’re not “at war” anywhere in the world. There’s no declared war, other than the one on terrorism, which the DOJ terms (using the AUMF wording) a “non-international armed conflict.” If this is the justification, terming anything a “war on…” would justify extrajudicial killing, because no one expects murder charges to be brought against them during normal acts of war (i.e., combatants killing other combatants).

Because the AUMF says we can detain a US citizen who is assisting our enemies, it also means we can kill a US citizen who does the same.

The question of what makes it legal to kill an American overseas is still unanswered.  

This week Senator Rand Paul has threatened to filibuster President Barack Obama’s nominee to the 1st Circuit Court of Appeals in Boston. The nomination of David Barron, who was a Justice Department lawyer at the start of the administration and is now a Harvard Law School professor was the author of the contentious memo that authorized the assassination of an American citizen in Yemen, Anwar al-Awlaki.  

(M)embers of both parties say they are disturbed by Mr. Barron’s authorship of legal memos that justified the United States’ killing of an American citizen overseas with a drone.

The American Civil Liberties Union wrote to all 100 senators on Monday urging them to put off a vote on Mr. Barron’s confirmation until the White House allowed them to read all of his writings on the drone program. [..]

The A.C.L.U.’s objections, along with the announcement by Senator Rand Paul, Republican of Kentucky, that he would use his power to slow down the confirmation unless the administration released one of the legal memos written by Mr. Barron, raised fresh questions on Capitol Hill on Monday about whether the nomination would survive. [..]

Two Democrats who are up for re-election in states where Republicans have a political edge – Mark Begich of Alaska and Mary L. Landrieu of Louisiana – are said to be unsure if they will vote yes on Mr. Barron.

A court has ordered the administration to release some of Mr. Barron’s legal work as part of a Freedom of Information Act lawsuit. But White House lawyers have not done so while they weigh whether to appeal. Senator Mark Udall, a Colorado Democrat who is in a tight race, said Monday that he would vote no unless the White House released what the court ordered.

Republicans are not alone in their objections of this nominee. Democrats, who are up for reelection and those who have questioned the administration’s legal right to assassinated American citizens without due process and the drone program, have expressed doubts about voting to confirm Mr. Barron

But with so many Democrats concerned about the administration’s drone policy, sufficient support for Barron is uncertain. Senate leaders have yet to set a vote on his nomination to join the appeals court with jurisdiction over federal cases in Maine, Massachusetts, New Hampshire, Rhode Island and Puerto Rico. He faces opposition from a mix of liberal Democrats and conservative Republicans concerned with his involvement in establishing the administration’s drone policy.

Sen. Ron Wyden (D-Ore.), a member of the Intelligence Committee and a frequent critic of Obama’s counterterrorism policies, said Thursday that “the public has a right to know” the administration’s justification for drone strikes on American citizens.

“To me, the central question has always been on intelligence matters,” Wyden told reporters. “There is a difference between secret operations. They have to be kept secret, because otherwise Americans can die and be hurt. But the rules and the underlying policies — those ought to be public.”

Other Democrats, including Sens. Jeff Merkley (Ore.) and Mark Udall (Colo.), have also expressed concern about Barron’s work and this week called for the public release of Barron’s memos.

Marcy Wheeler of emptywheel, writing for The Week, weighs in on why Sen. Paul’s threat of filibuster should be taken seriously

Eleven years ago, the Senate confirmed Jay Bybee to a lifetime appointment on the 9th Circuit Court of Appeals in San Francisco. At the time, almost no senators knew about – much less had reviewed the contents of – a set of memos authorizing torture that Bybee had signed when he was head of the OLC in 2002. Paul is trying to prevent similarly rewarding Barron before senators can review the legal arguments he made authorizing another troubling executive branch action: killing an American citizen with no due process.

Barron, who is currently a Harvard Law School professor, served as the acting head of the OLC from 2009 until 2010. The office provides legal advice to executive branch agencies that can provide (usually secret) legal sanction for controversial positions.

A July 16, 2010, memo written by Barron authorizing the drone killing of Anwar al-Awlaki, the extremist Yemeni-American cleric, is one such opinion. Awlaki died in a CIA drone strike (along with Samir Khan, another American citizen who had become an extremist propagandist) on Sept. 30, 2011. [..]

Eventually, at least 31 members of Congress made at least 23 attempts to obtain the memo permitting the executive branch to kill an American citizen with no due process. Most of Congress still hasn’t seen it. [..]

Paul may have the courts on his side. He invoked an April 21 decision by New York’s 2nd Circuit Court of Appeals that the government must release a redacted version of the memo to the ACLU and two New York Times reporters who had sued in 2011 to enforce a Freedom of Information Act request for the memo. The court order makes it easier to for Paul to call for a public release, rather than just a release to Congress. [..]

Four years ago, David Barron opened a Pandora’s box, giving presidents an inadequately limited authority to kill Americans outside all normal judicial process. As Paul notes in his letter, it would simply be “irresponsible” for the Senate to confirm his nomination without discovering what the memo could reveal about his views on due process, civil liberties, and international law. In a letter to all 100 senators, the ACLU echoed this language, recalling the precedent of Jay Bybee. “No senator can meaningfully carry out his or her constitutional obligation to provide ‘advice and consent’ on this nomination to a lifetime position as a federal appellate judge without being able to read Mr. Barron’s most important and consequential legal writing.”

The Senate took such an irresponsible step in 2003 with Jay Bybee. It can avoid that mistake here.

Instead of appointing those who justify torture, rendition and assassinations to hight courts, we should be looking into their criminal culpability in the crimes that they are justifying in their legal briefs. Yet those briefs and memos remain classified as our representatives are asked to appoint these people to high positions for life.

In an article posted here by our friend and editor, Edger, reported that a federal court panel ruled on Monday the  U.S. government must publicly disclose secret papers describing its legal justification for using drones to kill citizens suspected of terrorism overseas, because President Barack Obama and senior government officials have publicly commented on the subject.

The 2nd US circuit court of appeals in New York ruled in a Freedom of Information Act case brought by the American Civil Liberties Union and two reporters for the New York Times. In 2011, they sought any documents in which Department of Justice lawyers had discussed the highly classified “targeted-killing” program.

The requests came after a September 2011 drone strike in Yemen killed Anwar al-Awlaki, an al-Qaida leader who had been born in the United States, and another US citizen, Samir Khan, and after an October 2011 strike killed Abdulrahman al-Awlaki, Awlaki’s teenage son and also a US citizen. Some legal scholars and human rights activists complained that it was illegal for the US to kill American citizens away from the battlefield without a trial. [..]

In January 2013, US district court judge Colleen McMahon ruled that she had no authority to order the documents disclosed, although she chided the Obama administration for refusing to release them.

In an opinion written by 2nd circuit judge Jon Newman, a three-judge panel noted that after McMahon ruled, senior government officials spoke about the subject. The panel rejected the government’s claim that the court could not consider official disclosures made after McMahon’s ruling, including a 16-page Justice Department white paper on the subject and public comments by Obama in May in which he acknowledged his role in the Awlaki killing, saying he had “authorized the strike that took him out”.

Most certainly, the Obama administration will appeal this ruling.

Earlier this month, Constitutional lawyer Bruce Fein addressed a panel discussion on government secrecy and overreach at Yale Law School that was arranged by activist and former presidential candidate, Ralph Nader.  He spoke directly about President Barack Obama’s dangerous level of executive power and the lack of congressional oversight.

“And what about Congress? That’s not an impeachable offense, to lie under oath and mislead the American people?!” he asked, referring to testimony by Obama’s Director of National Intelligence, James Clapper. “No. He’s still serving. We have as our Director of National Intelligence, who’s entrusted with secrets about us, a known perjurer, remains in office, untarnished, public reputation there. Where’s all the newspapers calling for his resignation? Silence.”

Clapper confirmed in a letter sent last week to Senator Wyden that U.S. persons have been targeted by the surveillance program – something he had earlier and categorically denied.

Fein, who also worked under the acting attorney general in the early 1970s to write a paper outlining a rationale for impeachment of President Richard Nixon, says Obama is exercising a dangerous level of executive power without adequate checks. “This president has authority to kill anyone on the planet, to play prosecutor, judge, jury and executioner, if he decides, in secret, that the target of the Predator drone – could be another instrument of death, doesn’t have to be a Predator drone – is an imminent threat to U.S. national security.” Fein added the process “is not subject to review by Congress, it’s not subject to review by courts, it’s not subject to review by the American people. It is limitless.”

We apparently still have judges and courts that are willing to rein in the administration, now if we only had the congress we had in the 1970’s.

We have gone down the rabbit hole and through the looking glass.

Joining us now is Michael Ratner. Michael is the president emeritus of the Center for Constitutional Rights in New York, the attorney for Julian Assange, and president of the European Center for Constitutional and Human Rights. He’s also a board member for The Real News. [..]

Michael Ratner: [..] In a chilling ruling this federal judge in this federal district court dismissed the case. And the key language from that opinion is: the government must be trusted. I want to repeat that: the judge said the government must be trusted. And here’s the exact quote: “Defendants must be trusted and expected to act in accordance with the U.S. Constitution when they intentionally target a U.S. citizen abroad at the direction of the president and with the concurrence of Congress. It’s a really outrageous ruling. The president kills whom he pleases, just so Congress is given broad authority for the president to determine who the enemy is.

It’s an utter abdication by the court. It gives up on the so-called checks and balances we all learned as schoolchildren. It ends, actually, a key principle of the Magna Carta, which is the American and British charter of liberties, which was actually ratified or signed by King John in the year 1215. We’re coming up to the 800th anniversary. So what this court ruling does, what the president’s action does do is overturn 800 years of constitutional history.

Courts are supposed to be a buffer between what was the absolute power of kings and the people. We no longer have the rule of law; we have the rule of the king. In other words, we have the syndrome of “off with his head”.

Drone killings case thrown out in US

Judge dismisses lawsuit over death of Anwar al-Awlaki and two others in Yemen, saying it is a matter for Congress

The families of the three – including Anwar al-Awlaki, a New Mexico-born militant Muslim cleric who had joined al-Qaida’s Yemen affiliate, as well as his teenage son – sued over their 2011 deaths in US drone strikes, arguing that the killings were illegal.

Judge Rosemary Collyer of the US district court in Washington threw out the case, which had named as defendants the former defence secretary and CIA chief Leon Panetta, the former senior military commander and CIA chief David Petraeus and two other top military commanders.

“The question presented is whether federal officials can be held personally liable for their roles in drone strikes abroad that target and kill U.S. citizens,” Collyer said in her opinion. “The question raises fundamental issues regarding constitutional principles and it is not easy to answer.”

But the judge said she would grant the government’s motion to dismiss the case.

On September 30, 2011, President Barack Obama authorized the assassination of Anwar al-Awlaki, a U.S. citizen by virtue of his birth in New Mexico in 1971, by an American drone in Yemen along with another U.S. citizen, Samir Khan, who grew up in New York City and Charlotte, North Carolina. Two weeks later, Awlaki’s 16-year-old son, Abdulrahman, was killed by another US strike in Yemen. Jude Kenan Mohammad, alleged to have at one stage been part of an eight-man terror cell in North Carolina, was killed by a US drone strike in Pakistan later in 2011. These assassinations made Barack Obama the first president known president to have authorized the assassination of a US citizen.

Now, as was reported by the Associated Press, Pres. Obama is trying to find a way to legally justify the assassination of another American citizen living in Pakistan. The target has been accused, without evidence, of plotting attacks against America with Al Qaeda:

The CIA drones watching him cannot strike, because he’s a US citizen and the Justice Department must build a case against him, a task it hasn’t completed.

Four US officials said the American suspected terrorist is in a country that refuses US military action on its soil and that has proved unable to go after him. And President Obama’s new policy says American suspected terrorists overseas can only be killed by the military, not the CIA, creating a policy conundrum for the White House. [..]

Under new guidelines Obama addressed in a speech last year to calm anger overseas at the extent of the US drone campaign, lethal force must only be used “to prevent or stop attacks against US persons, and even then, only when capture is not feasible and no other reasonable alternatives exist to address the threat effectively.” The target must also pose “a continuing, imminent threat to US persons” – the legal definition of catching someone in the act of plotting a lethal attack.

Co-founders of the new digital magazine Jeremy Scahill and Glenn Greenwald discuss the issue of another American being targeted for assassination with [Democracy Now! ]’s Amy Goodman.

While the Associated Press had agreed to keep the name and location of Pres. Obama’s latest target, his location was disclosed by the Los Angeles Times.

Why should we, as Americans, accept that the Executive Branch can act as judge, jury and executioner without a trial in a duly recognized court of law? Where is any evidence that this person is a threat or even doing what the Obama administration charges are his alleged crimes? At FDL Dissenter, Kevin Gosztola asks why should a news organization should conceal the target’s identity and location for an administration that has touted greater transparency:

Knowing where he is currently located would help one understand this story appropriately. So, in what country would certain officials like to be able to launch an attack? [..]

It seems reasonable to question this decision by the AP to not publish. The decision bears a distinct similarity to refusing to print that a secret drone base is located in a certain country when covering the issue of drones, which US media organizations have previously done.

If it is illegal to add the person to a list and the government cannot come up with a legal way to launch a US military attack because the country opposes it, why should a media organization play the role of not “interrupting” this “ongoing counterterror operation”?

Just how many alleged American members of al Qaeda are there? This report disseminated on the Internet could now aid an “enemy” in figuring out some details on the extent to which he is being tracked and monitored for assassination in order to stop him from launching more attacks on Americans overseas. So, it would seem if AP really wants to protect counterterror operations from “interruption” they would simply not publish the story at all.

The story was given to Associated Press reporter Kimberly Dozier by four anonymous “US officials,” who were not authorized to speak, and a “senior administration official” possibly from the Department of Justice may have political undertones. Marcy Wheeler suggested that the sources may have been congressional staffers since Dozier mentioned Rep. Mike Rogers (R-MI), the chair of the House Intelligence Committee, who is upset because Obama’s new guidelines would impede the assassination of another American.

Whatever the allegations are against this person, it does not legally justify the use of a drone to target an American in a sovereign country that we are not at war with or without due process. Breaking the law under the guise of protecting America from terrorist attack is not justifiable. Regardless of who is in the Oval Office, the US should be a nation of laws and respect the constitutional rights of its citizens.

In their premier article for the new online magazine, The Intercept, co-founders Jeremy Scahill and Glenn Greenwald take an in-depth look at how the NSA mass surveillance plays an intrinsic role in President Barack Obama’s assassination program. In the article they reveal how the NSA is providing information that targets, not an individual, but a nameless SIM cards that have led to the deaths of innocent civilians:

According to a former drone operator for the military’s Joint Special Operations Command (JSOC) who also worked with the NSA, the agency often identifies targets based on controversial metadata analysis and cell-phone tracking technologies. Rather than confirming a target’s identity with operatives or informants on the ground, the CIA or the U.S. military then orders a strike based on the activity and location of the mobile phone a person is believed to be using. [..]

In one tactic, the NSA “geolocates” the SIM card or handset of a suspected terrorist’s mobile phone, enabling the CIA and U.S. military to conduct night raids and drone strikes to kill or capture the individual in possession of the device. [..]

One problem, he explains, is that targets are increasingly aware of the NSA’s reliance on geolocating, and have moved to thwart the tactic. Some have as many as 16 different SIM cards associated with their identity within the High Value Target system. Others, unaware that their mobile phone is being targeted, lend their phone, with the SIM card in it, to friends, children, spouses and family members.

As a result, even when the agency correctly identifies and targets a SIM card belonging to a terror suspect, the phone may actually be carried by someone else, who is then killed in a strike. According to the former drone operator, the geolocation cells at the NSA that run the tracking program – known as Geo Cell – sometimes facilitate strikes without knowing whether the individual in possession of a tracked cell phone or SIM card is in fact the intended target of the strike. [..]

What’s more, he adds, the NSA often locates drone targets by analyzing the activity of a SIM card, rather than the actual content of the calls. Based on his experience, he has come to believe that the drone program amounts to little more than death by unreliable metadata.

(emphasis mine)

Jeremy and Glenn joined Democracy Now!‘s Amy Goodman to discuss the NSA’s secret role in President Obama’s assassination program and, defying the threats, the launch of The Intercept.

A high up administration official, speaking anonymously, confirmed rumors that former Defense Department general counsel, Jeh Johnson, is President Barack Obama’s nominee to replace Janet Napolitano at the Department of Homeland Security. Secretary Napolitano stepped down in August to become president of the University of California.

In an article at Washington’s blog that outlines Johnson’s career at DoD, it is not surprising that as the top Pentagon lawyer Johnson was the lead apologist for the endless war on terror and the abuses of the Obama administration, including arguing for the justification of targeted assassinations including American citizens, as reported by the Associated Press in 2011.

U.S. citizens are legitimate military targets when they take up arms with al-Qaida, top national security lawyers in the Obama administration said Thursday.

***

The government lawyers, CIA counsel Stephen Preston and Pentagon counsel Jeh Johnson … said U.S. citizens do not have immunity when they are at war with the United States.

Johnson said only the executive branch, not the courts, is equipped to make military battlefield targeting decisions about who qualifies as an enemy.

In a speech at Yale Law School in 2012, Johnson said

Belligerents who also happen to be U.S. citizens do not enjoy immunity where non-citizen belligerents are valid military objectives.

Washington Blog also noted a major concern about Johnson’s Yale speech:

[..] Johnson invoked a lawsuit filed by Mr. Awlaki’s father before the killing that had sought an injunction against targeting his son, citing with approval a district judge’s decision to dismiss the case and saying that targeting decisions are not suited to court review because they must be made quickly and based on fast-evolving intelligence.

***

“The legal point is important because, in fact, over the last 10 years Al Qaeda has not only become more decentralized, it has also, for the most part, migrated away from Afghanistan to other places where it can find safe haven,” Mr. Johnson said.

This is particularly concerning since the U.S. wants to expand the assassination program to cover “ASSOCIATES of ASSOCIATES” of Al Qaeda … and blurs the lines between bad guys and average Americans.    This violates a little thing called the Fifth Amendment.

The Washington Post points out:

[A senior administration official] added that Johnson was “responsible for the prior legal review and approval of every military operation approved by the president and secretary of defense” during Obama’s first term.

That presumably includes supporting Al Qaeda in Libya.

This is the Wikipedia summation of Johnson’s tenure at the Defense Deaprtment that began in January of 2009:

As General Counsel of the Defense Department, Johnson was a major player in certain key priorities of the Obama Administration, and he is considered one of the legal architects of the U.S. military’s current counterterrorism policies. In 2009, Johnson was heavily involved in the reform of military commissions, and testified before Congress numerous times in support of the Military Commissions Act of 2009. [..]

In January 2011, Johnson provoked controversy when, according to a Department of Defense news story, he asserted in a speech at the Pentagon that deceased civil rights icon Martin Luther King Jr. would have supported the wars in Afghanistan and Iraq, despite King’s outspoken opposition to American interventionism during his lifetime. Johnson argued that American soldiers fighting in Afghanistan and Iraq were playing the role of the Good Samaritan, consistent with Martin Luther King Jr.’s beliefs, and that they were fighting to establish the peace for which Dr. King hoped. Jeremy Scahill called Johnson’s remarks “one of the most despicable attempts at revisionist use of Martin Luther King Jr. I’ve ever seen,” while Justin Elliott of Salon.com argued that based on Dr. King’s opposition to the Vietnam War, he would likely have opposed the wars in Iraq and Afghanistan, as well as the covert wars in Pakistan and Yemen. Cynthia Kouril has defended Johnson’s remarks, arguing in her blog that his speech has been misinterpreted.

In a February 2011, speech to the New York City Bar Association, Johnson “acknowledged the concerns raised” about the detention of alleged WikiLeaks source Private Bradley Manning and “stated that he had personally traveled to Quantico to conduct an investigation.” Human rights attorney and journalist Scott Horton wrote that “Johnson was remarkably unforthcoming about what he discovered and what conclusions he drew from his visit.”

Johnson’s tenure as General Counsel was also notable for several high-profile speeches he gave on national security. In a speech he delivered at the Heritage Foundation in October 2011, Johnson warned against “over-militarizing” the U.S. government’s approach to counterterrorism: “There is risk in permitting and expecting the U.S. military to extend its powerful reach into areas traditionally reserved for civilian law enforcement in this country.”  

Finally, at the Oxford Union in England in November 2012, shortly before his resignation, Johnson delivered a widely noted address entitled “The conflict against al Qaeda and its affiliates: how will it end?” in which he predicted a “tipping point” at which the U.S. government’s efforts against al Qaeda should no longer be considered an armed conflict, but a more traditional law enforcement effort against individual terrorists.

Johnson’s speech in England was highly praised for the acknowledgment that the war on terror would eventually come to an end but, as Bob Deyfuss noted in his article at The Nation on Johnson’s nomination, actions speak louder that words:

Problem is, of course, until that as-yet-undefined moment when the “war” against Al Qaeda ends and the “counterterrorism effort against individuals” begins has not, it appears, yet occurred-at least in the eyes of the Obama administration. So, as a result, the White House continues to order drone strikes in Pakistan, Afghanistan, Somalia and elsewhere, launch Special Forces raids to kill or capture alleged Al Qaeda officials in Africa and Asia, and, in Afghanistan, insist on the continuing right of U.S. forces to seek and destroy Al Qaeda units in that country, even though experts say only about 75 members of the organization remain there. And, as long as the “war” continues, then everything that goes with it-extra-judicial detention of captured fighters, vast electronic surveillance of U.S. and foreign citizens by the National Security Agency and its partners, the Guantanamo prison, and the rest, continues too. All of that, in his Oxford speech, Johnson-as the then-DOD lawyer-was willing to support, justify and explain, even while admitting, as he did:

Some legal scholars and commentators in our country brand the detention by the military of members of al Qaeda as “indefinite detention without charges.” Some refer to targeted lethal force against known, identified individual members of al Qaeda as “extrajudicial killing.”

Indeed, The Wall Street Journal, in reporting Johnson’s 2012 speech, noted that in fact it was delivered primarily as a justification to the Europeans for Obama’s widely reviled counterterrorism policies:

Pentagon officials and legal experts also noted that Mr. Johnson chose to deliver the speech in the United Kingdom, in part to reassure European allies about the Obama administration’s legal justification for its continuing war on al Qaeda as well as other counterterrorism operations.

“It’s important that the DOD General Counsel has chosen to give this speech in Britain where many legal experts disagree with the concept that the U.S. is in a war with al Qaeda,” said John Bellinger, a former State Department legal adviser during the George W. Bush administration. “Most of the previous speeches by administration officials have been given inside the U.S.”

Anyone who thought that New York City police commissioner Ray Kelly was a terrible choice for head of DHS was just proven wrong. Don’t let Johnson;s support of the repeal of “Don’t Ask; Don’t Tell” fool you, he makes Kelly look like a good guy.  

The government has killed a 16-year-old American boy. Shouldn’t it at least have to explain why?  

~Nasser al-Awlaki~

While the nation grieves over the senseless death of Trayvon Martin and the missed opportunity to hold his killer responsible for that death, there is another senseless death of an American teenager of color where an attempt is continuing, after previous failures, to hold accountable those responsible for the lawless way in which this life was arbitrarily ended.

Exactly one year ago today, the American Civil Liberties Union and the Center for Constitutional Rights filed a lawsuit (pdf) on behalf of Nasser al-Awlaki (father of Anwar al-Awlaki and grandfather of Abdulrahman al-Awlaki) and Sarah Khan (wife of Samir Khan). The defendants in the case are former Defense Secretary Leon Panetta, Commander of Special Operations Command William McRaven, Commander of Joint Special Operations Command Joseph Votel and former CIA Head David Petraeus. The complaint cites violation of the Fourth and Fifth Amendments as well as violation of the Bill of Attainder Clause in the targeted killings of Anwar al-Awlaki, Abdulrahaman al-Awlaki and Samir Khan. [..]

Given what is known about the role of Barack Obama in these killings and his personal authorization of the “kill list” in his Terror Tuesday meetings, I find it perplexing that he is not also a defendant in this case.

The complaint seeks damages in an amount to be determined at the trial and any other relief the court deems just and proper.

Coincident with the filing of the complaint in the United States District Court for the District of Columbia a year ago, the video above was released.

Sadly, we can state with confidence that even before the proceedings open the government will argue that it does not have to explain why it killed Abdulrahman. Because terror. Even more sadly, it is quite likely that the court will side with this senseless and lawless argument. Because terror.

What has our country become?

A new lawsuit challenges whether counterterrorist officials should be allowed to operate without fear of litigation

Court cases are often cures for insomnia, but every so often a lawsuit is an eye-opening journey through the looking glass. One of those is suddenly upon us – and we should be thankful because it finally provides an unfiltered look at our government.

You may not know about this case, but you should. Called Al-Aulaqi v. Panetta, it illustrates the extremism driving the policies being made in the public’s name. [..]

But perhaps the most important thing to know about this case is what the government is arguing about the law itself. In defending the administration, Hauck asserted that such suits should not be permitted because they “don’t want these counterterrorism officials distracted by the threat of litigation.”

The radical message is obvious: Yes, the government now claims that America should not want public officials to have to consider the constraints of the law.

If this harrowing doctrine sounds familiar, that’s because the sentiment behind it has been creeping into our political dialogue for years. [..]

Consider, though, what’s more dangerous: a government that has to momentarily think about following the law when using violence or a government that gets to use such violence without having to think at all?

Government officials pretend they have the only answer to that question. But Nasser Al-Aulaqi’s dead grandson suggests there is a far more accurate answer than the one those officials are offering.

As if many of us didn’t know that the CIA didn’t always know who they were dropping hellfire missiles on from drones, NBC News’ Richard Engel and Robert Windrem revealed classified documents that confirmed it. The documents were from a 14 month period that began in 2010 listing 114 drone strikes that killed as many as 613 people. However, in some of those strikes, the CIA did not know the identity of the victims.

About one of every four of those killed by drones in Pakistan between Sept. 3, 2010, and Oct. 30, 2011, were classified as “other militants,” the documents detail. The “other militants” label was used when the CIA could not determine the affiliation of those killed, prompting questions about how the agency could conclude they were a threat to U.S. national security.

The uncertainty appears to arise from the use of so-called “signature” strikes to eliminate suspected terrorists — picking targets based in part on their behavior and associates. A former White House official said the U.S. sometimes executes people based on “circumstantial evidence.”

Three former senior Obama administration officials also told NBC News that some White House officials were worried that the CIA had painted too rosy a picture of its success and likely ignored or missed mistakes when tallying death totals.

Micah Zenko, a former State Department policy advisor who is now a drone expert at the Council on Foreign Relations, said it was “incredible” to state that only one non-combatant was killed. “It’s just not believable,” he said. “Anyone who knows anything about how airpower is used and deployed, civilians die, and individuals who are engaged in the operations know this.”

Ret. Adm. Dennis Blair, who was Director of National Intelligence from Jan. 2009 to May 2010, declined to discuss the specifics of signature strikes, but said “to use lethal force there has to be a high degree of knowledge of an individual tied to activities, tied to connections.”

This article in McClatchy News, found that fewer of than 2% of those killed were Al Qaeda leaders, which is who the U.S. government says it targets.

Obama’s drone war kills ‘others,’ not just al Qaida leaders

by Jonathan S. Landay, McClatchy Newspapers,  April 9, 2013

“It has to be a threat that is serious and not speculative,” President Barack Obama said in a Sept. 6, 2012, interview with CNN. “It has to be a situation in which we can’t capture the individual before they move forward on some sort of operational plot against the United States.”

Copies of the top-secret U.S. intelligence reports reviewed by McClatchy, however, show that drone strikes in Pakistan over a four-year period didn’t adhere to those standards.

The intelligence reports list killings of alleged Afghan insurgents whose organization wasn’t on the U.S. list of terrorist groups at the time of the 9/11 strikes; of suspected members of a Pakistani extremist group that didn’t exist at the time of 9/11; and of unidentified individuals described as “other militants” and “foreign fighters.” [..]

The documents also show that drone operators weren’t always certain who they were killing despite the administration’s guarantees of the accuracy of the CIA’s targeting intelligence and its assertions that civilian casualties have been “exceedingly rare.” [..]

McClatchy’s review found that:

– At least 265 of up to 482 people who the U.S. intelligence reports estimated the CIA killed during a 12-month period ending in September 2011 were not senior al Qaida leaders but instead were “assessed” as Afghan, Pakistani and unknown extremists. Drones killed only six top al Qaida leaders in those months, according to news media accounts.

Forty-three of 95 drone strikes reviewed for that period hit groups other than al Qaida, including the Haqqani network, several Pakistani Taliban factions and the unidentified individuals described only as “foreign fighters” and “other militants.”

Who’s the US Killing in Pakistan? Even the CIA Doesn’t Know

by Daphne Eviatar, Huffington Post, June 6, 2013

In his speech at the National Defense University in May, President Obama said that his administration “has worked vigorously to establish a framework that governs our use of force against terrorists — insisting upon clear guidelines, oversight and accountability that is now codified in Presidential Policy Guidance” that he had just signed.

Conveniently for the government, that policy guidance remains classified — which pretty much negates the claim about oversight and accountability.

The laws of war allow the United States to kill only members of declared enemy armed forces or civilians directly participating in hostilities. It’s hard to believe the U.S. government is actually following that law if it doesn’t even know who a quarter of the people it’s killing even are.

President Obama’s speech sounded pretty good when he made it, but the more facts trickle out about the drone program the more reason we all have to be skeptical.

What can be done? Human Rights First has set out exactly what steps (pdf) the United States can take to make sure its drone program complies with international law and doesn’t undermine human rights.

The president should start by making public that Presidential Policy Guidance he announced with such pride. Otherwise, neither the American public nor foreign allies or enemies have any reason to believe the U.S. government has reined in its clandestine killing operations at all.

Meanwhile, the White House and the Justice Department says that the assassinations of Americans is constitutional because they said so. At Huffington Post, Ryan J. Reilly reports on the lawsuit,  Al-Aulaqi v. Panetta, filed by the American Civil Liberties Union and the Center for Constitutional Rights on behalf of the estates of Anwwar Al-Aulaqi and his 16-year-old son, Abdulrahman Al-Aulaqi, and Samir Khan. The lawsuit claims that their deaths were unconstitutional because they were denied due process.

The administration’s court filing also claimed that the government deserved qualified immunity because the plaintiffs “failed to allege the violation of any clearly established constitutional rights.” The government maintained that neither Attorney General Eric Holder’s letter to members of Congress nor Obama’s speech on national security had any effect on its legal posture in the case even though it was the first time the government formally acknowledged it had killed the American citizens. The previously classified information disclosed by Obama and Holder is “wholly consistent with Defendants’ showing that Anwar Al-Aulaqi’s due process rights were not violated,” the government said.

The judicial branch, the Obama administration argued, “is ill-suited” to evaluate the myriad “military, intelligence, and foreign policy considerations” that went into the decision to kill the American citizens. The government also argued that because Khan and Abdulrahman Al-Aulaqi were not specifically targeted by the government, they cannot claim they were subjected to an unconstitutional process.

So the Executive Branch is claiming to be judge, jury and executioner because the courts couldn’t possibly understand their reasoning now matter how illegal, unlawful or criminal the actions were because, omg, they were terrorists, maybe. Never mind, that we still don’t know who was targeted that resulted in the killing of Abdulrahman. Maybe if was the cafe owner, one of the other customers or the cousins. No other explanations has been given. That is not acceptable.

So long as the legal arguments for these drone strikes and “targeted” killings remain classified, it makes it damned difficult, if not impossible, to have an open debate in public on the effectiveness and legality of this program and other counter-terrorism programs. The vague statements, filled with nebulous claims are not going to placate the critics of these not so clandestine programs. We need to know what the government is doing in our names.

Time to come clean, Barack.

In a letter to Senate Judiciary Committee Chairman Patrick Leahy (D- VT) (pdf), Attorney General Eric Holder acknowledged for the first time Wednesday that four American citizens have been killed in drone strikes since 2009 in Pakistan and Yemen.

In conducting U.S. counterterrorism operations against al-Qaida and its associated forces, the government has targeted and killed one American citizen, Anwar al-Awlaki, and is aware of the killing by U.S. drones of three others, Attorney General Eric Holder said in a letter to Senate Judiciary Committee Chairman Patrick Leahy.

Al-Awlaki, a radical Muslim cleric, was killed in a drone strike in September 2011 in Yemen. Holder said three other Americans were killed by drones in counterterrorism operations since 2009 but were not targeted. The three are Samir Khan, who was killed in the same drone strike as al-Awlaki; al-Awlaki’s 16-year-old son, Abdulrahman, a native of Denver, who also was killed in Yemen two weeks later; and Jude Kenan Mohammed, who was killed in a drone strike in Pakistan.

Attorney Jesselyn Radack, former Justice Department ethics attorney who blew the whistle in the case of “American Taliban” John Walker Lindh, in a blog post writes:

The biggest revelation in Holder’s letter  – that the U.S. has droned a fourth American, Jude Kenen Mohammed  – is also the greatest of many deficiencies. All Holder says is the U.S. killed but didn’t target these two American men (Mohammed and Samir Kahn) and one American child (al-Awlaki’s 16-year-old son). [..]

Ms. Raddack points out that while the letter includes new and credulous accusations about al-Awlaki posing an “imminent threat”, it tells us nothing about how the other Americans ended up being killed by drones. Good question, that I doubt we’ll ever get an answer.

The other point MS. Raddack makes goes to the public’s right to know the legal justification that was given to the president by the Office of Legal Council:

If Holder wants to draw a distinction between Americans that the U.S. government targets and kills without due process and those Americans that the U.S. government kills without due process but doesn’t target, then the American people are entitled to know the legal basis for when the government finds it acceptable to make Americans collateral damage in the legally-unsustainable, morally-reprehensible unilateral drone drops.

There are lots of questions. If these three Americans were not the targets, then who were they targeting? And why?

In an interview this morning on Democracy Now, author and journalist, Jeremy Scahill say that this admission “raises more questions than it answers“:

“In Eric Holder’s letter,” Scahill stated, “he talks about how Anwar Awlaki was actively involved in imminent plots against the United States, that he had directed the so-called underwear bomber, Umar Farouk Abdulmutallab, who tried to blow up a U.S. airplane over the city of Detroit on Christmas Day 2009. And what’s interesting is that all of these allegations are made by Eric Holder, but no actual evidence has ever been presented against Awlaki to indicate that he played the role that Eric Holder is asserting. His trial was basically just litigated through leaks in the press. He was never indicted on any of these charges. And Holder, in fact, in his letter, says that we have all of this evidence, but it’s too dangerous to be made public. And so, there’s really a continuation of a posthumous trial of Anwar Awlaki through leaks and now through this letter from Eric Holder.”

Scahill notes that the details of the death of Jude Mohammad, who had been indicted, have not been released; that there were no criminal charges against Samir Khan, a Pakistani-American from North Carolina who was killed alongside al-Awlaki; and Holder used an curious phrase, “not specifically targeted,” referencing the death of 16 year old Abdulrahman al-Awlaki.

He goes on:

“You know, what does that phrase mean? It’s almost like an Orwellian statement, ‘not specifically targeted.’ Well, it could mean that these individuals were killed in the signature strikes that you mentioned, which is a sort of form of pre-crime, where the U.S. determines that any military-aged males in a targeted area are in fact terrorists, and their deaths will be registered as having killed terrorists or militants. So, it’s possible that the other Americans that were killed were killed in these so-called signature strikes.

“But in the case of this 16-year-old boy, it’s almost impossible to believe that it’s a coincidence that two weeks after his father is killed, he just happens to be killed in a U.S. drone strike. And there were leaks at the time from U.S. officials telling journalists that, oh, he actually was 21 years old, he was at an al-Qaida meeting. But they’ve never been able to identify who they killed in that strike. And the Obama administration has never publicly taken on the fact that they killed one of their own citizens who was a teenage boy. There are no answers to that question. So, I think that there has to be a far more intense scrutiny of the statements of the attorney general and also what we understand the president is going to say later.”

Yes, the Obama administration assassinated four Americans, but …..

President Barack Obama’s speech on his never ending war on terror.

In short, war for without end anywhere on earth because the president said so.