Holder’s Unproven Claims about Anwar al-Awlaki the AQAP Leader

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Perhaps it’s because of all the dubious reasons the Administration continues to keep its case against Anwar al-Awlaki secret, but Eric Holder gave the impression of not knowing precisely what evidence the government had shown against Awlaki.

Or, deliberately misrepresenting it.

Holder mentioned Awlaki just once–purportedly to summarize Abdulmutallab’s case against Awlaki they released last month.

For example, in October, we secured a conviction against Umar Farouk Abdulmutallab for his role in the attempted bombing of an airplane traveling from Amsterdam to Detroit on Christmas Day 2009.  He was sentenced last month to life in prison without the possibility of parole.  While in custody, he provided significant intelligence during debriefing sessions with the FBI.  He described in detail how he became inspired to carry out an act of jihad, and how he traveled to Yemen and made contact with Anwar al-Aulaqi, a U.S. citizen and a leader of al Qaeda in the Arabian Peninsula.  Abdulmutallab also detailed the training he received, as well as Aulaqi’s specific instructions to wait until the airplane was over the United States before detonating his bomb. [my emphasis]

Note, this misrepresents what Abdulmutallab said, at least as shown by the summary released last month (setting aside the reasons DOJ chose not to test those claims at trial). What the summary did say was that Awlaki gave Abdulmutallab specific instructions to ignite his bomb while over the US. It did not say Awlaki was “a leader of al Qaeda in the Arabian Peninsula.” That’s DOJ’s elaboration, a frankly dishonest one, given the construction (and one that was probably at least significantly challenged by the intelligence Jubeir al-Fayfi delivered ten months after Abdulmutallab gave his testimony).

But once Holder gets to his purportedly generic case for killing US citizens, he does not use what DOJ showed Abdulmutallab to have said–that Awlaki directed his attack–but instead uses the “AQAP leader” claim he has not presented evidence for. He uses six different formulations of the claim over the course of the speech.

But it does mean that the government must take into account all relevant constitutional considerations with respect to United States citizens – even those who are leading efforts to kill innocent Americans.

[snip]

Yet it is imperative for the government to counter threats posed by senior operational leaders of al Qaeda, and to protect the innocent people whose lives could be lost in their attacks.

[snip]

Let me be clear:  an operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances: First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.

[snip]

The evaluation of whether an individual presents an “imminent threat” incorporates considerations of the relevant window of opportunity to act, the possible harm that missing the window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States.  As we learned on 9/11, al Qaeda has demonstrated the ability to strike with little or no notice – and to cause devastating casualties.  Its leaders are continually planning attacks against the United States, and they do not behave like a traditional military – wearing uniforms, carrying arms openly, or massing forces in preparation for an attack.  Given these facts, the Constitution does not require the President to delay action until some theoretical end-stage of planning – when the precise time, place, and manner of an attack become clear.

[snip]

Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces.

[snip]

The Constitution’s guarantee of due process is ironclad, and it is essential – but, as a recent court decision makes clear, it does not require judicial approval before the President may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war – even if that individual happens to be a U.S. citizen. [my emphasis]

Holder’s sleight is all the more problematic given how much of his case relies on it. If the case that Awlaki was an imminent threat rests on his leadership role, but we don’t really have any proof of that fact (or, worse, our double agent undermined it after OLC had already signed off on the killing), then the entire argument collapses.

Moreover, if DOJ doesn’t have that evidence (they might, but they certainly haven’t shown it), then consider how much more awful this argument is. It’s bad enough that the Attorney General just argued that due process does not equal judicial due process. But he argued it by claiming that Awlaki was someone they haven’t attempted to prove he was.

So Holder’s position is that they can kill you by making unsubstantiated claims that you lead an organization with ties to al Qaeda and based on that declaring you an imminent threat not entitled to judicial review.

More posts on Holder’s speech:

Eric Holder’s View on National Security: Three Branches. Except for When the Third becomes Inconvenient.

Congress and Killing Oversight: Eric Holder v. Ron Wyden

39 replies
  1. liberalrob says:

    So Holder’s position is that they can kill you by making unsubstantiated claims that you lead an organization with ties to al Qaeda and based on that declaring you an imminent threat not entitled to judicial review.

    In other words, Greenwald is proven right once again:

    …Panetta’s whole case rests on simply asserting, without proving, that Awlaki was a Terrorist trying to “kill Americans.” That, of course, is precisely what is in dispute: actual Yemen experts have long questioned whether Awlaki had any operational role at all in Al Qaeda (as opposed to a role as its advocate, which is clearly protected free speech). No evidence has been publicly presented that Awlaki had any such role. We simply have the untested, unverified accusations of government officials, such as Leon Panetta, that he is guilty: in other words, we have nothing but decrees of guilt. The U.S. Constitution, first and foremost, was designed to prohibit the doling out of punishments based on government accusations untested and unproven in a court of law; for those who doubt that, just read the relevant provisions (“No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court“; “No person shall be deprived of life, liberty, or property, without due process of law”).

    But as I wrote the other day, “the U.S. really is a society that simply no longer believes in due process: once the defining feature of American freedom that is now scorned as some sort of fringe, radical, academic doctrine.”
    […]
    Here we have the U.S. Defense Secretary, life-long Democrat Leon Panetta, telling you as clearly as he can that this is exactly the operating premise of the administration in which he serves: once the President accuses you of being a Terrorist, a decision made in secert and with no checks or due process, we can do anything we want to you, including executing you wherever we find you. It’s hard to know what’s more extraordinary: that he feels so comfortable saying this right out in the open, or that so few people seem to mind.

    * * * * *

    ABC News‘ Jake Tapper pressed White House spokesman Jay Carney back in October about the evidence the administration possesses showing Awlaki’s guilt, and the same authoritarian decree issued: we have said he’s a Terrorist and that is all that is necessary.

    And now we have the Attorney General, “the chief law enforcement officer in the land,” saying that very same thing.

  2. MadDog says:

    Abdulmutallab was on the US government’s radar far earlier than most folks are aware of. From 2010:

    “The Detroit Christmas bomber was deliberately and intentionally allowed to keep his US entry visa as the result of a national security override issued by an as yet unknown US intelligence or law-enforcement agency with the goal of blocking the State Department’s planned revocation of that visa. This is the result of hearings held on January 27 before the House Homeland Security Committee, and in particular of the testimony of Patrick F. Kennedy, Undersecretary of State for Management…

    [snip]

    The January 27 hearings of the House Homeland Security Committee were also addressed by Michael Leiter, the AWOL Director of the National Counterterrorism Center, along with Jane Holl Lute, the Deputy Secretary of Homeland Security, who was sent in place of HHS Secretary Janet Napolitano, who boycotted the hearings. But the important testimony came from Kennedy, whose responsibilities include Consular Services, and therefore visas. In his opening statement, Kennedy offered a tortured circumlocution to describe what had happened. Attempting to head off the question of why the State Department had not revoked Mutallab’s visa, Kennedy stated:

    “We will use revocation authority prior to interagency consultation in circumstances where we believe there is an immediate threat. Revocation is an important tool in our border security arsenal. At the same time, expeditious coordination with our national security partners is not to be underestimated. There have been numerous cases where our unilateral and uncoordinated revocation would have disrupted important investigations that were underway by one of our national security partners. They had the individual under investigation and our revocation action would have disclosed the U.S. Government’s interest in the individual and ended our colleagues’ ability to quietly pursue the case and identify terrorists’ plans and co-conspirators.” 4

    Undersecretary Kennedy: An Agency Objected to Revoking Visa

    Not surprisingly, House Homeland Security Chairman Bennie Thompson (D-MS) wanted to know what that really meant. Here is his exchange with Undersecretary Kennedy:

    REP. THOMPSON: Okay. So — all right. So he has a visa. So what does that do? In the process, does it revoke the visa? Does it —

    MR. KENNEDY: We — as I mentioned in my statement, Mr. Chairman, if we unilaterally revoked a visa — and there was a case recently up — we have a request from a law enforcement agency to not revoke the visa. We came across information; we said this is a dangerous person. We were ready to revoke the visa. We then went to the community and said, should we revoke this visa? And one of the members — and we’d be glad to give you that out of — in private — said, please do not revoke this visa. We have eyes on this person. We are following this person who has the visa for the purpose of trying roll up an entire network, not just stop one person. So we will revoke the visa of any individual who is a threat to the United States, but we do take one preliminary step. We ask our law enforcement and intelligence community partners, do you have eyes on this person, and so you want us to let this person proceed under your surveillance so that you may potentially break a larger plot?

    REP. THOMPSON: Well, I think that the point that I’m trying to get at is, is this just another box you’re checking, or is that some security value to add in that box, to the list?

    MR. KENNEDY: The intelligence and law enforcement community tell us that they believe in certain cases that there’s a higher value of them following this person so they can find his or her co-conspirators and roll up an entire plot against the United States, rather than simply knock out one soldier in that effort.5…”

  4. What Constitution? says:

    @Teddy Partridge: The kid was, well, related to a guy we decided needed to be killed. Oh, and if I recall the stories, he actually had attended a photography training course, which might have provided information useful in documenting drone strikes by taking “photographs”, which is “material support for Terraism”, too, unless the display of the “photographs” can be interdicted as state secrets. So, kid dead.

    Oh, wait — you mean you wanted Holder to provide some sort of “credible” justification for that? Now I get it — trapped him. Clever the way that worked, in theory. And in a Nation of Laws, Holder would be mighty embarassed, that’s for sure. Thank you for trying, though.

  5. emptywheel says:

    @Teddy Partridge: I’m sorry, one of the reasons we scheduled this dog of a speech at Northwestern Law is so almost none of the DC journalits would come. And also bc NU lets speakers not take questions.

    So while your question is an interesting hypothetical, you see, we’re not answering any questions.

  6. MadDog says:

    @emptywheel: Via Reuters:

    “…Holder received a standing ovation when he entered the crowded auditorium but departed to perfunctory applause as some in the audience expressed surprise by his remarks. A question and answer session was canceled, the event organizers said…”

  7. MadDog says:

    @MadDog: And more from that Reuters article:

    “…Civil liberties groups have decried the program as effectively a green light to assassinate Americans without due process in the courts under the U.S. Constitution, a charge that Holder flatly rejected.

    Court approval for such strikes was unnecessary, he said, adding “the president may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war – even if that individual happens to be a U.S. citizen.”

    That drew sharp criticism from some in the audience. A third-year law school student, Russell Sherman, called such strikes “assassination”. Scott Hiley, a language professor at Northwestern University, said Holder employed “endlessly circular reasoning” to try to explain the policy…”

  9. GKJames says:

    And on it goes … law enforcement through silly speechifying. They simply don’t dare do the one thing that matters: a testing of their allegations through cross-examination in a public courtroom in front of an Article III judge. We’ll have another ten years of government pronouncements characterized as “evidence” when they’re no such thing. And half the country, including countless members of the Bar, plays along. Amazing.

    In eternal gratitude to emptywheel et al for having the stomach to deal up close with the excrescence spewed by that paragon of republican government, the one of the people, by the people, and for the people.

  10. MadDog says:

    The WaPo’s editorial on Holder’s speech:

    It’s time to release the drone memos

    A couple of thoughts on WaPo’s editorial:

    1) The WaPo claims that Holder didn’t mention al-Awlaki. Wrong! Try reading paragraph 19 WaPo.

    2) Don’t be fooled by WaPo’s seeming support for transparency. While the WaPo does ask for the release of the OLC memo, for the most part their editorial is that of a cheerleader.

  11. rugger9 says:

    It’s bad enough under Obama, what’ll it be like under someone Koch- and Limbaugh-approved? The sad things are that Obama does know better and he had the opportunity to stop this.

    To the Hague!!!

  13. orionATL says:

    what does all this holder speech blather mean?

    it means the administration has no careful legal reasoning and its has no proven chain of action and association to justify non-court-sanctioned governmental killing of an american citizen.

    it means the admin can argue neither the facts nor the law to justify its killing of al-awlaki.

    it means this is yet another instance of deceit and misdirection from the obama administration – another instance of lying to cover up illegal conduct.

    the speech/argument is just pre-campaign coverup – an empty suit, a scarecrow, designed to convince any voterwho might care that there really is substance inside, when, in truth, there is nothing but suit-covered wire mesh and air.

  14. Bob Schacht says:

    The underlying issue in this entire thread is the AUMF. The government’s flimsy defense is based entirely, ultimately, on the damned AUMF. It is time for Congress to pass a resolution closing the AUMF, and rendering it null and void.

    Bob in AZ

  15. MadDog says:

    @Bob Schacht: Though I agree with your sentiment, neither Congress or any President for the foreseeable future will likely extinguish the AUMFs (note the plural) anytime soon. Carte blanche is a treasure that governments rarely relinquish.

  17. orionATL says:

    i am always interested in the use (usually exploitation) of the word “innocents” in recent american political rhetoric.

    i believe it has its origins in the emotionally manipulative, morally specious rhetoric of the “anti-abortion” business, founded in the 1970’s by the late reverend jerry falwell of lynchburg, virginia.

    but it also seems to serve well in the context of “terrorism” politics .

  18. MadDog says:

    @MadDog: More OT – And also not to be missed in the glare of the Holder speech, from the Times of Israel:

    “Entire US intelligence community ‘sure Israel has already decided to attack Iran’

    The entire American intelligence community is convinced that Israel’s leadership has already decided in principle to attack Iran, Israel’s Channel 2 news reported on Monday, quoting an unnamed senior American intelligence official…

    …The Channel 2 report claimed that the US and Israel are deeply at odds over the consequences of the purportedly planned Israeli attack. The Americans are warning that an Israeli strike at Iran’s nuclear facilities will trigger a regional war and possibly even World War III. Their assessment is that the Arab states will join the war against Israel, under pressure from the Arab “street.”…

    …The Israeli public is unaware of the catastrophic consequences of a decision to attack, the report quoted the unnamed senior American official as saying. “It’s tantamount to suicide,” he was said to have warned…”

  20. emptywheel says:

    @MadDog: Well of course, after this, what could they expect?

    Israeli Prime Minister Benjamin Netanyahu gave President Barack Obama a Purim Megillah scroll, which tells the story of how Jews prevailed over a plot to kill them in ancient Persia, which is present-day Iran.

    Netanyahu gave Obama the gift today during a White House meeting, two days before the Jewish holiday of Purim begins.

  21. orionATL says:

    @MadDog:

    precisely!

    “……The Americans are warning that an Israeli strike at Iran’s nuclear facilities will trigger a regional war and possibly even World War III. Their assessment is that the Arab states will join the war against Israel, under pressure from the Arab “street.”…

    …The Israeli public is unaware of the catastrophic consequences of a decision to attack, the report quoted the unnamed senior American official as saying. “It’s tantamount to suicide,” he was said to have warned…” …”

    and oil prices for guess what – plastics and fertilizer, as well as gasoline, heating oil, jet fuel, etc., etc., etc. – will go where?

    in europe?

    in north and south america?

    the israeli gov’t under netanyahoo is just a foreign policy bankster -“support us or we’ll destroy the pillars of your temple”.

    it’s all a game of bluff, but games of bluff can end badly, can’t they.

  23. MadDog says:

    @orionATL: I’ll throw in another wrinkle regarding Israel’s neighbors.

    Given the changing of the guard in Egypt, another possible consequence to an attack on Iran, by either Israel and/or the US, might be the revocation of the the Israeli/Egyptian peace accords. Jordan too might be on shaky grounds as a result of the Arab Spring, and its relationship with Israel could also go up in flames should Iran get attacked.

    Bottomline is that there is little upside to an Iran attack and mucho downside.

  24. MadDog says:

    Totally OT, but I was refreshing my Firedoglake tab and I got this displayed via my Chrome browser:

    Warning: Something’s Not Right Here!

    firedoglake.com contains content from my.firedoglake.com, a site known to distribute malware. Your computer might catch a virus if you visit this site.

    Google has found malicious software may be installed onto your computer if you proceed. If you’ve visited this site in the past or you trust this site, it’s possible that it has just recently been compromised by a hacker. You should not proceed, and perhaps try again tomorrow or go somewhere else.

    We have already notified my.firedoglake.com that we found malware on the site. For more about the problems found on my.firedoglake.com, visit the Google Safe Browsing diagnostic page.

    If you understand that visiting this site may harm your computer, proceed anyway.

    Anybody else seeing this?

  25. orionATL says:

    @MadDog:

    and turkey?

    that’s my big question.

    the turks have a reputation as very good, even ferocious, fighters.

    israel burned its bridges to turkey for a matter of trivial consequence, and they tricked the turkish military while doing so.

    how many nations and peoples can you spit on before “saving the israeli nation” comes to be seen as an excuse for misconduct, rather than an acceptable justification.

  26. orionATL says:

    @MadDog:

    not me.

    but this from kelley canfield:

    “…And oh-by-the-way-a-tech-note:

    There were earlier complaints today of a redscreen warning from google about my.fdl being a malware site. Not to worry. The tech crew identified the offending image, had it removed and are in the hassle-icious process of getting google to restore my.fdl to the previous good ranking my.fdl had. So the redscreen warning should subside quickly and permanently by tomorrow, latest.

    Can I tell ya, I lurves me the tech crew, what with the most excellent comment upgrade and the johnny-on-the-spot fix today?…”

  28. Bob Schacht says:

    @MadDog:
    Then Ben Franklin’s warning was “right on.” The damned AUMF is killing our Republic. I’m glad that I have lived most of my life in a real Democracy, which reached its zenith in the years between Judge Jackson’s remarkable statements during the Nuremberg trials to Richard Nixon’s resignation. The Twentieth Century was our glory era. Our democracy has been in decline ever since. I mourn for the mess we are leaving for our grandchildren, nieces, and nephews.

    Bob in AZ

  29. orionATL says:

    @Bob Schacht:

    ” The damned AUMF is killing our Republic…”

    you are right-on bob.

    i would love to know, and all of the american people deserve to know, just what congressional agreements and compromises shaped the final aumf.

    furthermore, what specific steps would be required to repeal, or nullify, it.

  30. orionATL says:

    @orionATL:

    the congress needs to repeal the aumf.

    but it needs to do more than simply repeal that foolish, hasty legislation.

    in its repeal, the congress need to explicitly state that:

    – the executive branch – both r’s and d’s – have misinterpreted the aumf to authorize broad executive powers the congress never intended.

    – the executive branch – both r’s and d’s – have exploited the aumf to legitimize unconstitutional executive branch behavior, including retaining as “enemy combatants without constitutional rights” american citizens charged with no specific, detailed allegations.

    – the executive branch have improperly interpreted the aumf relating only to iraq as legitimizing broad executive power to execute an american citizen anywhere in the world.

    – the aumf may not be used to cover up improper conduct of any portion of the executive branch of gov’t – most specifically the office of the president, the dept of defense, and the central i agency.

  31. Bob Schacht says:

    One of the more offensive things Holder said in his speech was to the effect that “due process does not require a judge.” What kind of due process is this? It is our courts that decide what is due process, and what isn’t. Who are the fake judges Holder wants to rely on? Next, he’ll be claiming that due process does not mean that the defendant has to have a lawyer. Or a writ of habeas corpus. Or be able to challenge evidence. Or call witnesses. And oh, btw, that wasn’t “cruel and unusual punishment,” it was “enhanced punishment techniques”. Holder is shredding the Constitution as much as Michael Mukasey or AGAG.

    This should get slammed, and hard. It is positively Orwellian.

    Bob in AZ

  34. a m says:

    @MadDog:

    To you, and this is as to FDL / malware,
    I’ve multiple ID’s w/ them.

    I support them though with the orig. I’m banned as a spammer.
    (I don’t spam though long ago did link utterly original ideas.
    I don’t resent that and only support them.)

    Indeed, it appears FDL’s been hacked by creeps.
    I got the same message and of course it can not be due
    to their own self-damaging purpose.

    There was another telling, progressive venue w/ a similar issue,
    but I didn’t think anything of it when I visited, did mush prior
    to visiting FDL, and now can’t remember where.

    Frankly, I DO believe FDL’s compromised due to a nefarious
    operator.

    I don’t think it’s a self-important run-of-the-mill ego-dork, really
    because of the prior site difficulty referenced.

    I DO think it’s nefarious / dark-recesses-agency-like.

    We’re too diverse, varied, good-natured to notice, to care, to do
    anything about it.

    Except, you COULD go to OCC and say FDL’s been hacked and if it’s
    malware is not removed you will tell Mr. Obama to stop being a
    fraud and to bug off.

  35. bmaz says:

    @MadDog: and @a m: Nothing nearly so sinister and spooky at all. It was an inappropriate image upload at MyFDL that, even though removed quickly, caused an unfortunate series of events that are hard to sort through completely. But they are well into doing that and it will all be fine. Orion’s quote at 26 above from Kelly Canfield gives the basic rundown.

  36. Bill Michtom says:

    Bob in AZ: It is time for Congress to pass a resolution closing the AUMF, and rendering it null and void.

    Congress just overwhelmingly passed the NDAA. They’re going to overturn the AUMF?

  37. Bob Schacht says:

    @Bill Michtom: What they could do is pass a bill revising and replacing the AUMF with a much more limited and well-defined set of goals and conditions. For example, the AUMF is directed not only at Al Qaeda, but against anyone anywhere who helps them in any way, which can be stretched to include just about anyone. For example, it can cover anyone who donates to an Islamic charity that, say, helps refugees from Afghanistan in Pakistan. Because, you know, some of those refugees MIGHT be AQ. Oh, heck, just use a real example like their justification for droning Awlaki. But you’re right– the NDAA shows that Congress remains craven and obedient to the Military Industrial Complex.

    Bob in AZ

  39. Kim Hanson says:

    I think one could reasonably argue that one would qualify as a “senior operational leader” if one told a bomber when and where to set off a bomb. Not that I believe that assassination of US citizens absent judicial review is legal, just saying the simpler explanation might rest on the above.

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