The Secrets They’re Keeping Selectively Leaking about Anwar al-Awlaki
As I noted yesterday (and Glenn has examined at more length), in addition to asserting that the government can target Anwar al-Awlaki … because they said so, the Obama Administration also invoked state secrets in its motion to dismiss the ACLU/CCR suit challenging targeted killings.
The Obama Administration has officially positioned itself to the right of hack lawyer David Rivkin.
But the state secrets invocation is interesting not just because it shows a Democratic Administration out-hacking a noted hack.
For example, I think the invocation shows just how weak they recognize their own argument to be. Consider what Robert Gates (who invoked something newfangled called the “military and state secrets privilege”) and James Clapper described as falling under their invocation of state secrets (Leon Panetta basically said only that CIA could neither confirm nor deny its involvement, which sort of makes me wonder whether CIA really has targeted al-Awlaki or not).
A. Intelligence information DoD possesses concerning AQAP and Anwar al-Aulaqi, including intelligence concerning the threat AQAP or Anwar al-Aulaqi pose to national security, and the sources, methods, and analytic processes on which any such intelligence information is based;
B. Information concerning possibly military operations in Yemen, if any, and including criteria or procedures DoD may utilize in connection with such military operations; and
C. Information concerning relations between the United States and the Government of Yemen, including with respect to security, military, or intelligence cooperation, and that government’s counterterrorism efforts.
A. (U) Intelligence information concerning al-Qaeda and the sources and methods for acquiring that information.
B. (U) Intelligence information concerning AQAP and the sources and methods for acquiring that information.
C. (U) Intelligence information concerning Anwar al-Aulaqi and the sources and methods for acquiring that information.
The Administration is sort of kind of relying on the President’s authority under the AUMF (unless the judge doesn’t buy that argument, in which case the Administration promises to try something else), which states:
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.
In other words, the Administration is relying on some tie between AQAP and the al Qaeda organization that hit us on 9/11 for its authority to kill an American citizen with no due process. Mind you, it can’t say precisely what that tie is–whether AQAP is al Qaeda or whether it is just closely connected enough to be included under the AUMF. But that’s precisely what it has called a state secret: the evidence of ties between the group against which Congress declared war in 2001 and the group we’re targeting in Yemen.
Effectively, the Executive Branch–with no known support from Congress–is saying we’re at war against AQAP. But it’s also saying no one outside of select people within the Executive Branch (and, presumably, a group of four or maybe eight members of Congress who serve in leadership or on the Intelligence Committees) can see the evidence that proves we’re at war against AQAP.
The President has unilaterally declared war against a group but then said no one can see why he has done so.
And then both Gates and Clapper invoke state secrets over the evidence the government has against al-Awlaki.
Rather than prove to a judge that they even have reasonable suspicion to believe al-Awlaki is part of AQAP, much less enough evidence to execute him, the government has instead asserted that all of that is a state secret. They’ve declared everything al-Awlaki would need to challenge his execution a state secret. Even KSM will be able to see the evidence against him; and he has admitted to killing 3,000 Americans. But American citizen al-Awlaki, whom no one has accused of actually killing anyone, can’t see the same kind of information.
Finally, there’s the tired old sources and methods catch all. We can’t know how the government has collected the evidence it has against al-Awlaki.
Except we already do.
Thanks largely to the efforts of Crazy Pete Hoekstra, we know that the government had wiretaps on al-Awlaki going back at least since December 2008. Al-Awlaki himself has challenged the government to release the intercepts they have on him (which public reports say include correspondence with tens of thousands of people). Al-Awlaki has even made some of that correspondence available himself. But the government says all that is a state secret.
Furthermore, some of the evidence against al-Awlaki appears in court documents, from the public testimony of Umar Farouk Abdulmutallab. The alleged recruitment of Abdulmutallab is one of the key issues the government describes al-Awlaki to have been involved in. That information is public. Yet the government also says it is a state secret.
And if all this really is a state secret, then why isn’t Crazy Pete Hoekstra in jail? If letting others know that al-Awlaki has been wiretapped for years–as Hoekstra did–causes grave damage to the national security of the United States, then why hasn’t the government prosecuted Crazy Pete, or at least stripped him of his security clearance?
More importantly, if the information surrounding al-Awlaki’s targeting is a state secret, then why not prosecute the steady stream of national security officials who have leaked details of his targeting to the press going back to January?
The government has deliberately leaked details of al-Awlaki’s targeting to the press when it served its political purpose. No investigation of which officials made those leaks has ever been launched–not even against Crazy Pete. And yet now that al-Awlaki’s family is asking for the information that has been leaked to the press for the last nine months, the government is choosing to declare it all a state secret.
The release of it can’t be causing grave danger to the US–because national security officials have leaked tons of it with no consequences. Which suggests the government invoked state secrets for just two reasons. First, to give plausible deniability to Yemen, which (as officials leaked to David Ignatius months ago, apparently with no consequences to themselves) apparently came to us and asked us to gather intelligence on capture kill al-Awlaki on their behalf back in October.
But more importantly, to hide what is evidenced by the shoddiness of their motion to dismiss itself. The government isn’t really sure whether any of its arguments about al-Awlaki make sense (and that’s reading their filing generously). It’s not even willing to commit to one or another of those arguments to a judge. So using the best way to hide the obvious legal insufficiency of its argument, it has simply declared all the evidence that (doesn’t) support its argument off limits.
Not only has the President declared the authority to target American citizens with no stronger argument than “because I say so.” But it has also declared any of the evidence that would prove the sufficiency or insufficiency of his argument for doing so off limits.
Interesting how Robert Gates’ formulation – “military and state secrets privilege” – sets up the military as separate and apart (superior?) from the state. An analysis of the federal budget would support that, if not Gates’ argument.
That analysis applies to many of the Bush and Obama declarations of state secrecy, as they attempt to forestall court scrutiny of their constitutionally suspect actions.
I agree with that.
But I think this is slightly different.
Take, for example, the al-Haramain case. The government has an existing, current, rationale for the wiretapping they did of al-Haramain: the AUMF. They have committed to it and–by not withdrawing the January 2006 white paper, stuck with one explanation since the program became public (though of course they HAD defended it on Article II grounds; remember that I think they abandoned that bc they had to have a justification for continuing to data mine Americans after doing so was specifically defunded for FY 2004).
But in this case, it’s as if they never came to a consensus about why they could target al-Awlaki (they say they were late filing bc of computer problems, but I rather suspect it’s because they were still uncertain about what their party line was). Indeed, I sort of suspect THEY realize, having been told by David Rivkin, that invoking state secrets when targeting an American citizen for assassination is too much. But given that they STILL don’t know what their party line is, they’ll just avoid havign to come to consensus by invoking state secrets.
Here’s hoping the administration fails to find a federal judge who blithely and blindly agrees to the blanket assertion of state secrets. That may still take some doing, given that the target is an American citizen, entitled to all the rights available under the Constitution, and the “right” this administration seeks to deprive him of without any public or verifiable process is his right to life.
(one typo – midway down: Finally, there’s the
tiedtired old sources and methods catch all.)Oh, I’m sure there are more than that, but thanks for pointing out that one.
And one superseded/superfluous sentence in the third paragraph from the end:
I haven’t read the Ignatius stenography, but does his story imply (or can we deduce from it) that Yemen asked the U.S. to kill (as opposed to spy on, and/or capture) al-Awlaki? That distinction is obviously pretty crucial, in terms of what “permission” the U.S. government has managed to covertly bribe out of the government of Yemen – with which we are at peace – to allow the U.S. to act on the sovereign territory of Yemen.
He starts his article by saying,
But then he says we couldn’t have done so even if we had evidence (which at that point, we didn’t) because it would have involved lethal use of force.
In other words, it seems the “collect intelligence that could be used to target” really meant “collect intelligence and use it to target” though Ignatius never says so directly.
The other really problematic thing about this–which AFAIK I’m the only one who really remarked on–is that it suggests teh Yemeni govt has its own reason to want al-Awlaki dead, which may have very little to do with his threat to us. So are we targeting a US Citizen as a favor to a dictatorial govt?
That last observation is important. Is this target important to our own security or are we just doing another unfriendly government a favor, concocting a reason beyond that that makes his death somehow important to “US national security”.
It seems to be, to some extent anyway, somewhat of an article of faith at this point that Awlaki really was involved operationally in Abdulmutallab’s plot. My bet is the proof of that may not be so good, maybe effectively not there at all. If you sift through the blather, all I recall being convinced of is that Abdulmutallab had been to lectures or religious sermons or the like several years ago, and considered him a spiritual authority or leader and may have contacted him during the time before the Christmas day plot. That does not necessarily prove Awlaki was involved operationally. The US wanted to do something about Awlaki before he left here, but didn’t because they concluded what he was doing was at least arguably covered by 1st Amendment freedom of speech and religion protections. The allegations now have magically morphed into Awlaki being some kind of Khalid Sheik Mohammed operational general or something. Very convenient for the government, but contra to what Awlaki seems to have always been. I am not sure “the proof” from Abdulmutallab would really stand up to scrutiny and cross examination. Remember, they had Abdulmutallab sequestered away and were leveraging both him and his family. I dunno.
Awlaki is useless, I don’t give a damn about him personally; we would be better off without him; but the principle is far bigger and more important than Awlaki, and it must be protected. With the pitiful and relentlessly consistent record the US government has for dishonesty, fabrication and ginned up air baloney, there is absolutely no reason in the world to give them one iota of credibility or deference on any of this. And that is the thing, if there is nothing with definitive weight or credibility to hang your hat on, and there really just isn’t if you look critically, then the assertion by the Executive that they can unilaterally, without judicial mitigation, execute an American citizen is just stunning.
And that’s not an abstract principle that delights academics and is forever the butt of neocon humor (sic). This is about the president’s assertion that he has the right to kill an American citizen without public process or justification, at any time, because he deems him or her a threat to national security.
That ought to make the vegans of Minneapolis and St. Paul and the peace protesters in Pittsburgh – and anyone else who wants to live in a peaceful society – curious about how far any president would take that authority. Those shocked, shocked that Mr. Obama has adopted many of the worst extra-legal excesses of the Bush regime should analyze skeptically the claim that such power – inherently without oversight or review – could be wielded accurately, let alone justly.
Yeah, but I’m not sure you can separate that. We’ve made a decision, for better or worse, the way to defeat AQAP is to team with the govt against ALL the people opposed to it. So that also means doing their bidding on getting rid of people like Awlaki.
Hell, frankly, I suspect Awlaki IS a bigger threat to us than some of the people we’re targeting on behalf of the Yemeni govt. But we’re also targeting those others–or, probably, whoever the Yemeni govt says we should. And that’s a problem.
Damning post, all the way around, emptywheel. Well said.
Not only has the President declared the authority to target American citizens with no stronger argument than “because I say so.” But it has also declared any of the evidence that would prove the sufficiency or insufficiency of his argument for doing so off limits – based on no stronger authority than “because I say so.”
With a selected US President it might be acceptable, but I wonder if it sticks in Queen Elizabeths’s craw, that an elected US President, a commoner, wields powers beyond her own.
As I indicated on the previous thread, I believe that the reason Obama has a kill order out on Anwar al-Awlaki is that he became associated (or “flipped”) with the FBI, and because of complications from that or perhaps other reasons Awlaki now knows some things that might embarrass some people. So he’s a dead man walking.
In June 2002 the U.S. District Court in Colorado issued a warrant for Awlaki’s arrest. In October 2002 the warrant was surprisingly canceled on orders from the DOJ, specifically an FBI agent, and a day later Awlaki re-entered the USA, later to return to Yemen. This was despite the fact that Awlaki has been linked not only to several 9/11 hijackers (and subsequently to Major Hassan and the Times Square bomber).
It’s all laid out here in a May 2010 expose by Fox (I know) News.
http://blogs.westword.com/latestword/2010/05/john_sutherss_conn
ection_to_am.php
O/T Who can’t handle the truth?
Army censors photos of Afghan corpses in ‘kill-for-sport’ trial
Army whistleblower ‘beaten within an inch of his life’
“Evidently worried about a repeat of the anger aimed at US forces over photos of torture at Abu Ghraib prison, the US military is restricting access to photos of Afghan corpses in the “kill-for-sport” trial of five US soldiers.”
LINK.
‘Pentagon press secretary Geoff Morrell said the charges represented “an aberration” for an American force of nearly 100,000 in Afghanistan.’
I’d say. Most government employees in and out of uniform are very much aware of the need to avoid photos and other documentation.
http://abcnews.go.com/US/TheLaw/videotaping-cops-arrest/story?id=11179076
Again, why kill al-Awlaki, an American citizen, if it’s not to silence him?
The US doesn’t have a kill order out on Usama Bin Laden, even. The US is offering a reward, not a bullet, in his case.
Speaking of UBL, despite all the rhetoric they apparently haven’t actually linked him to 9/11. He’s only a suspect.
from UBL’s FBI wanted page:
CAUTION
Usama Bin Laden is wanted in connection with the August 7, 1998, bombings of the United States Embassies in Dar es Salaam, Tanzania, and Nairobi, Kenya. These attacks killed over 200 people. In addition, Bin Laden is a suspect in other terrorist attacks throughout the world.
REWARD
The Rewards For Justice Program, United States Department of State, is offering a reward of up to $25 million for information leading directly to the apprehension or conviction of Usama Bin Laden. An additional $2 million is being offered through a program developed and funded by the Airline Pilots Association and the Air Transport Association.
SHOULD BE CONSIDERED ARMED AND DANGEROUS
http://www.fbi.gov/wanted/terrorists/terbinladen.htm
“select people within the Executive Branch (and, presumably, a group of four or maybe eight members of Congress who serve in leadership or on the Intelligence Committees)”
Oh noes. The Gang is all here again. As with torture and illegal wiretapping, I am sure they will feel compelled to not ask, not tell, write some letter or diary note, and strenuously look the other way to facilitate oversight – as in, there will have to be an oversight with respect to checks and balances.
In other news, Bygones Obama is ordering the DOJ to look into prosecuting al-Awlaki for leaking correspondence classified as a state secret.
I miss Mothra and Godzilla.
off-topic, for bmaz:
“We anticipate that there will be a Dinoshark vs. Sharktopus,” Corman said.
http://jack.radio.com/2010/08/11/dinoshark-versus-sharktopus-who-ya-got/
Heh, I saw that on the other thread. I miss Mothra and Godzilla, but I guess the water fights with Sharktopus would be hard for them.
sorry, at 360+ comments (with no dino whatsoever) I thought it had passed on
Mothra and Gozilla – the memories. Better yet, Godzilla’s personal terminator branch-off: Mechagodzilla. If one considers – in passing – nekulturny atrocities like “Aliens vs. Predator” … the classics are simply… classy.
I wish there was a Marvel superhero universe populated instead with past and present presidents and politicians – and Sarah Palin. Now that would be a franchise for the ages. Just think of the superpowers!
The weird thing for me with the Sharktopus is that the head is, in effect, in its ass. The tentacles of an octopus or squid are placed to be able to pull food towards its beak, but the poor sharktopus has to feed its ass instead. The whole thing is backwards. Oh, well, what do I know about sharktopi?
Bob in AZ
There is some good news from Afghanistan — the surge is working!
IEDs show troop surge working, U.S. officers say
MUSA QALA DISTRICT, Afghanistan — From Marine headquarters here, Maj. Robert “Barney” Barnhart ticks off names of comrades killed by roadside bombs, pausing at the mention of a sergeant Barnhart had persuaded to re-enlist for the fight.
His face darkens. This Taliban tactic of lacing the countryside with explosives, he says, is “a more cowardly way to fight.”
In Helmand province, the 1st Battalion, 2nd Marine Regiment led by Marine Lt. Col. Michael Manning had been hit by 240 bombs (an average of more than one a day) and disarmed an additional 331 during a six-month tour that ended this month.
Manning and Brig. Gen. Joseph Osterman, who commands all Marine ground combat forces in Helmand province, say the increase in IEDs is proof the military’s surge is working. “The more you disrupt, the more he tries to find ways to disrupt what you’re doing” Manning said.
http://www.usatoday.com/news/world/afghanistan/2010-09-27-surge27_ST_N.htm?csp=34news
O/T
UK guidance on torture challenged by watchdog
New guidance for UK intelligence staff on how to deal with suspects facing torture overseas may breach human rights law, a watchdog has warned.
“As a result officers may wrongly believe they were “protected” from court action, the Equality and Human Rights Commission says.”
LINK.
Questions that arise:
1) What did the government of Yemen ask for? Their main enemy is not Al Qaeda, but the Southern secessionists and the Houthi in the North. Saleh has agreed to play the Americans’ “war on terror” game, and I am not so sure that they may have asked, but only after being asked themselves to do so. — I think donbacon is raising some interesting questions about Awlaki’s background. How coincidental that in 2002, when Awlaki is due to come to the U.S. from Saudi Arabia (!), a warrant for his arrest in withdrawn by the U.S. Attorney’s office, especially after they had more to suspect re Awlaki than, say, they had on Jose Padilla, or others even more innocuous arrested by the U.S. in the year after 9/11.
The ABC article on this story is worth pursuing. I hadn’t known, for instance that U.S. Attorney Daive Gaouette’s office did not reply to an ABC request for a copy of the Awlaki arrest warrant.
And then how coincidental that Awlaki would later, after 2 years in the UK, show up in Yemen in 2004, and is now associated with the new terror cases in the U.S. — Now the U.S. asserts “state secrets” in order to kill Awlaki, or rather, to spike a suit by ACLU and CCR challenging the government’s supposed authority to carry out “targeted killings” of U.S. citizens located far from any war zone. Something in this particular case seems weird, beyond the outrageous claims made by the government. Something they are covering up.
2) Who is in control of the Executive Branch? The claims of executive fiat, resting upon the twin pillars of “state secrets” (or “military and state secrets”) and “national security,” harken back to the claims for executive powers of John Yoo and David Addington. This is the triumph not of the neocons (as the Rivkin quote makes clear), but of something worse… of raw, naked, military might, of the rule of generals and spymasters.
3) Regardless of who was briefed, where is Congress on this issue anyway? Where is Pelosi, Whitehouse, Levin, the “Progressive Caucus”, etc.?
What does one expect? The failure to sever oneself from the Democratic Party, who had shown on the crucial issues of war and torture that it was toothless at best, and complicit at worst, has meant that down this road the American liberals must drive, like lambs led to the slaughter.
By the way, who remembers now that during the crackdown against the South Yemen left, the Northern forces were happy to accept Al Qaeda help? Or that Saleh courts the Salafists even now to attack the Shiites up north, just as they used them to attack the “Marxists” in the South 15 years ago? I recently pointed out the double game the U.S. is playing in Sudan. There is only one ideology that united all this, and is the U.S. expanding its military influence over the globe. As I’ve said (and this is not my unique analysis by any means), lawlessness and a crackdown on civil liberties at home goes hand-in-hand with the spread of Empire abroad.
We need a strong political movement that is anti-imperialist. Lacking that, we drift along with the strongest currents, carrying us towards something terrible.
Jeff,
I agree with much of what your comment (as usual.) Further grist for the mill is provided by Woodward’s new book, being serialized in advance by the WaPo, and by the recent rumors that Petraus is already dragging his feet on withdrawal. Obama faces a bitch of a problem, made worse by a poorly defined mission (despite lengthy efforts to develop a credible mission last year.) I applauded Obama’s determination to define a workable mission, but what he came up with, IMHO, was poorly defined and not ultimately workable. The strategy for Marjah and Kandahar is not going well, and there is a lot of double-speak being generated.
Bob in AZ
Couldn’t have said it better. The “Kill al-Awlaki” movement in the White House is out of proportions in every sense, and the acquiescence from Congress on downwards is staggering.
Thanks ew
Any President, Bush or Obama or anyone else, who directs the execution of a US citizen and claim state secret privilege to do so ought to be impeached and removed from office.
Random stuff:
I don’t buy that the gov in Yemen just suddenly out of the blue asked us to come in and kill Awlaki. My money would be on some kind of scenario where their intel or bought politicians were told by US actors with a vested interest (whether it was State or CIA and whether it was Hilary or Panetta or not) that the US wants to come in and kill him, but we need diplomatic cover. If they want abc, or if they want us to keep providing the xyz we are already providing, they might want to consider giving us that diplomatic cover by making a request to us that we help them out with Awlaki. The US actors involved might have really thought that – i.e., that we needed some additional diplomatic cover – or might have thought that nudging that kind of request from the Yemenis would help with an internal admin argument.
My other guess is that Saudi Arabia might well have at least as much, if not more, interest in Awlaki as Yemen does. And they have just finished up their “Friends of Yemen” initiative too. Interesting that this report, from the global arab network, doesn’t mention the US, just the UK.
Saudi Arabi and UK agree package of support with Yemen government
NO mention of the US – or the US control of the IMF which is central to what “the friends” are doing.
Since Awlaki has dual Yemeni citizenship, this part of the report is interesting too:
I’m guessing the Human Rights Council probably didn’t include “ask America to murder your citizens for your” in its recommendations, but who knows?
A bit more about The Friends.
The AP does mention the US involvement in “the friends.” A 3 bill package for a country like Yemen could be a nifty lever to make people very friendly.
But I guess you just can’t trust friends to spend money wisely – although somehow we didn’t have problems with penning a 60 bill arms deal with the Saudis (bc if there’s one thing the ME needs, its more weapons and diverting more money from education and healthcare to dicatorially directed militaries) for a weapons panoply that most are saying they can’t absorb and utilize. OTOH, all the more reason for lots of US military in Saudi Arabia to coordinate that weapons deal. Close a base, open an arms deal.
Something else interesting was the reference by Iglesias to, “Special Forces had been authorized for a capture operation.” @10.
So Yemen has authorized US military operations on its soil – actions including military capture for a foreign gov of its citizen at the same time it is promising to extend the rule of law to all citizens.
To give context to that ‘capture’ authorization, you have to connect it to the fact that Obama is pro-kidnapping for delivery to foreign torture govs as a way of disappearing his troubles. He had no problems with the rendition of al-Libi to Egypt to be tortured and then to Libya to finish off the problem and he and Diane Feinstein were hugely good to go with Kappes, who seems one of the most likely coordinators of the delivery to Libya scenario.
So a capture authorization for Awlaki isn’t really that different from a kill authorization, just not necessarily as immediate on the kill front and not as nifty for first getting intel and propaganda extracted from him.
Re: his threat – words are always a threat in a war of ideology. In particular, words that expose rhetoric. Awlaki is definitely an ideological threat, bc he both speaks the language well and is familiar with the US culture to know how to structure his arguments. He is also a threat bc he can give info that isn’t otherwise available on US media and bc it isn’t covered at all he can give it whatever slant he wants/needs.
But while he may or may not have originally been all about the “speech” aspect, so that Obama was a little squeamish on putting his own name (with maybe a pretty pony sticker from his daughter next to it) on the assassination order for a US citizen engaged only in propagandizing, think about the effect of putting that US citizen on a military capture list. A military action in a foreign country to capture by force a US citizen, who can then be handled in accord with the field manual & appendices, and who could be held forever under the Goldsmith Doctrine of Imperial Detention, and who – very importantly – could be handed over to a foreign country and either abandoned there or have their *questioning* directed by the US but through that foreign proxy.
Ok – so what might likely drive someone who has been just a talker to seek out the operational guys more so than finding out that he’s now being targeted by the US military for capture – esp with the Saudis on the border and the US history of what it does with those it captures? It seems like a pretty classic effort to force someone who hasn’t stepped all the way over the line to go that next step.
OT – MI5 weighs in on the party of Palin in a Financial Times piece.
Oops – sorry – my mistake – he was talking about N. Ireland, not Southern US.
Kind of insulting to the Irish, no?
At least they haven’t sent a missive to the US, asking for it’s help in assassinating guys named Sean and Patrick and radical priests who harbor them.