I’m actually sympathetic to the notion that if Eric Holder misled Congress about what he knew of the Fast and Furious debacle, he should pay a price for that (though it seems likely he was instead narrowly parsing).

House Republicans are calling for a special counsel to determine whether Attorney General Eric Holder misled Congress during his testimony to the House Judiciary Committee on Operation Fast and Furious, Fox News has learned.

[snip]

The question is whether Holder knowingly made false statements of fact under oath during a Judiciary Committee hearing on May 3. At the time, Holder indicated he was not familiar with the Bureau of Alcohol, Tobacco, Firearms and Explosives program known as Fast and Furious until about April 2011.

“I’m not sure of the exact date, but I probably heard about Fast and Furious for the first time over the last few weeks,” Holder testified.

[snip]

However, newly discovered memos suggest otherwise. For instance, one memo dated July 2010 shows Michael Walther, director of the National Drug Intelligence Center, told Holder that straw buyers in the Fast and Furious operation “are responsible for the purchase of 1,500 firearms that were then supplied to the Mexican drug trafficking cartels.”

Other documents also indicate that Holder began receiving weekly briefings on the program from the National Drug Intelligence Center “beginning, at the latest, on July 5, 2010,” Smith wrote.

A pity for Republicans they applauded when Elliott Abrams paid no price for lying to Congress and have remained silent as the government has made sure that Scott Bloch avoids a mere 30 day sentence for lying to Congress. Because, in effect, the government has decided there will be no consequences for lying to Congress and no one in Congress has objected.

The never-ending twists and turns in the relationship between the US and Pakistan continues, with Afghanistan now entering the picture by signing an agreement with Pakistan’s chief rival India.  Also, it is being reported that earlier this summer, Pakistan’s ISI helped to arrange a meeting between US officials and the Haqqani network.  This is a remarkable development since the relationship between the ISI and the Haqqani network has been the central feature of the latest dispute between the US and Pakistan.

While still in New Delhi after signing the agreement with India, Afghan President Hamid Karzai realized he needed to reassure Pakistan, whose biggest fear is that India will have more influence than Pakistan in Afghanistan after the US exit:

“Pakistan is our twin brother, India is a great friend. The agreement we signed with our friend will not affect our brother,” Karzai said in a foreign policy speech in New Delhi.

“This strategic partnership … is not directed against any country … this strategic partnership is to support Afghanistan.”

The Reuters report goes on to characterize the agreement:

Karzai and Indian Prime Minister Manmohan Singh sealed an agreement on Tuesday that spanned closer political ties to fighting terrorism and allowed India to help train its police and army.

It signals a formal tightening of links that may spark Pakistani concern that India is increasingly competing for leverage in Afghanistan.

In another very remarkable development, the Wall Street Journal is reporting this morning that earlier this summer, Pakistan’s ISI arranged a meeting between the US and the Haqqani network.  That article is behind a paywall, so here is how Pakistan’s Express Tribune reports on the development:

US officials met with leaders of the Haqqani network in a meeting arranged by the Inter-Services Intelligence agency (ISI) earlier this summer, The Wall Street Journal reported on Wednesday.

The meeting was held “in an effort to draw” the group into talks “on winding down the war.”

The fact that the US would meet with the Haqqani network is stunning, given the strong rhetoric the US has used in accusing the ISI of aiding the Haqqani network attack on the US embassy and ISAF headquarters.  As a result, the story of the meeting seems full of internal inconsistencies:

Officials from Pakistan and the US said the initiative did not yield much. Washington had earlier also said that the group was “beyond reconciliation.”

The report states that the US had come to terms with the fact that targeting the group was not the solution and that they would have be drawn into peace talks.

Given the current rhetoric, it is hard to accept that ” the fact that targeting the group was not the solution” is still the operative belief held by the US.  In fact, there are reports this morning of the US taking out a major leader of the Haqqani network in an airstrike near the Pakistan border in Afghanistan.  Despite the overwhelming evidence that the US position now appears to be one of attacking the Haqqani network until it is decimated, the Express Tribune article carries this quote from a US official describing the decision to meet with the Haqqani network:

We’ve got no illusions about what the Haqqanis ultimately are. The war is going to end with a deal. That’s what we’re trying to make inevitable. The more parties involved in talking, that’s probably going to make for a better deal.

It would be interesting to know whether the summer meeting, followed by the enhanced rhetoric this fall, represents evolution in the consensus of US leaders, where an attempt at negotiation was found to be fruitless or, alternatively, whether there are competing camps within US leadership who continue to hold to advocate opposite approaches favoring violent or peaceful solutions.  Only time will tell.

When I recover a bit more from having finished Dick Cheney’s infernal tome, I will have more to say about it.

But I wanted to point to this piece of news in it that no one has yet noted:

I participated in two lengthy sessions with the special counsel. The first was in my West Wing office in May 2004. The second was in Jackson Hole Wyoming, in August 2004. The second session was conducted under oath so that my testimony could be submitted to the grand jury.(408)

That is, Patrick Fitzgerald interviewed Cheney not just the one time we knew about–on May 8, 2004. But he also interviewed Cheney sometime during August 2004 (at least according to Cheney), apparently in anticipation of submitting that testimony to the grand jury.

The timing of this is pretty telling.

On August 12, 2004, Fitzgerald subpoenaed Judy Miller to testify. And on August 27, 2004, he wrote an affidavit justifying his subpoena, focusing closely on Scooter Libby’s claims that he had been ordered by Dick Cheney to leak material to Miller. And we know from Cheney’s first interview that he hung Libby out to dry, denying any knowledge of such things.

The Vice President does not recall any member of his staff, including Scooter Libby, meeting with New York Times reporter Judith Miller during the week of 7/7/03, just after publication of Joe Wilson’s editorial in the New York Times.

[snip]

The Vice President advised that no one ever told him of a desire to share key judgments of the NIE with a news reporter prior to the NIEs declassification on 7/18/03.

[snip]

The Vice President cannot specifically recall having a conversation with Scooter Libby during which Libby advised the Vice President that he wanted to share with the key judgments of the NIE with Judith Miller. Although if it did occur, he would have advised Libby only to use something if it was declassified. He believed Libby would have told him about any attempts to put something out to the media prior to its declassification and the Vice President cannot recall such a discussion.

When asked if he ever had a conversation with Scooter Libby wherein Libby informed the Vice President that certain material within the NIE needed to be declassified before it could be shared externally, Vice President Cheney advised he does not recall.

To a large degree, Cheney’s first answers–assuming they remained substantively the same in the second interview–necessitated Judy Miller’s testimony, since Libby had clear notes about being ordered to leak material to Miller that had been effectively hidden by his lies about Russert. Libby’s notes made it appear like he might have leaked Plame’s identity to Miller (which turned out to be the case). And Cheney’s refusal to claim he had authorized that leak put Libby at real risk of an IIPA indictment.

This interview raises a few more questions. First, in his first interview, Cheney did not release the journalists he had spoken with from their pledge of confidentiality. Bob Novak testified on September 14, 2004; though Fitzgerald’s affidavit makes it clear much of that discussion was about his conversation with Richard Armitage, Novak spoke with someone at OVP on July 7, 2003, so it has always been possible he was hiding a Cheney conversation.

In addition, Judy Miller explained away the “Aspens connected at the roots” comment by relating a chance encounter with Libby in Jackson Hole in August 2003 (not 2004). Though when I asked her if she had seen Cheney on that same trip, she did not answer. Is it possible the reference to Jackson Hole was a coded reference to Cheney?

Finally–and critically importantly–when CREW FOIAed this interview, they asked for “all transcripts, reports, notes and other documents relating to any interviews outside the presence of the grand jury of Vice President Richard B. Cheney that are part of Special Counsel Patrick Fitzgerald’s investigation into the leak of the identity of Valerie Plame Wilson.” In other words, this second interview would have been squarely within the terms of their request. This interview should have been released under their FOIA, but was not.

This previously unreported Cheney interview would appear to go right to the heart of why Patrick Fitzgerald subpoenaed Judy Miller to find out whether Scooter Libby leaked Valerie Plame’s identity to her. And for some reason, it appears the Bush and Obama DOJ didn’t want us to read it.

Raymond Davis is to make a second appearance in a Colorado courtroom today, as prosecutors have upgraded the assault charge against him from misdemeanor to felony level.  The charge arises from an argument and fight over a parking space at a suburban Denver bagel shop on Saturday morning.  While the descriptions that have emerged of the fight suggest that it is appropriate for Davis to face this charge, the appearance of Davis in a criminal proceeding raises a larger question.  Back when Davis was still in Pakistani custody, one of the arguments presented by the US in trying to obtain his release was that Davis would face investigation and potential prosecution for the killing of two Pakistanis once he was back in the US.  Davis was released March 16, but no reports of him facing even an investigation, let alone charges, from the killings in Pakistan have emerged.

The Los Angeles Times has details on the Saturday fight:

The fight was reported Saturday outside Einstein Bros. Bagels in Highlands Ranch. Authorities have released few details about the fight and did not identify the other person involved, and a Douglas County sheriff’s spokesman did not return calls or email late Monday.

But KUSA-TV in Denver reported that Jeff Maes was the man allegedly assaulted by Davis. Maes told KUSA-TV that the fight began over a parking space in the crowded lot about 9 a.m.

“Instead of going by and saying, ‘Hey that was my spot,’ he goes behind me, rolls his window down and starts cussing me out,” Maes said.

He added that the altercation quickly escalated as his wife and two young daughters watched.

“I said, ‘You need to relax,’ ” Maes said. “I said, ‘This is stupid,’ I turned, and he hit me.”

Just one month before Davis was released, Senator John Kerry traveled to Pakistan to lobby high level Pakistani government figures for Davis’ release.  One of the enticements Kerry offered was that Davis would face investigation for killing the two Pakistanis in Lahore once he returned to the US:

The Guardian described Kerry’s efforts:

Senator John Kerry, the former US presidential candidate, is holding high-level meetings in Pakistan in an attempt to defuse a diplomatic crisis involving a US embassy worker who shot dead two Pakistanis last month.

Kerry has scheduled talks with the prime minister, Yousuf Raza Gilani, and the head of the army, General Ashfaq Parvez Kayani, over the case of Raymond Davis, which has pushed anti-American sentiment in Pakistan to fever pitch.

The article then gives Kerry’s assurance that Davis would face investigation in the US:

Ahead of today’s discussions, Kerry expressed regret over the deaths and promised that Davis would face a US criminal investigation if he were to be released by the Pakistani government.

“It is customary in an incident like this for our government to conduct a criminal investigation. That is our law. And I can give you the full assurance of our government today that that will take place,” Kerry told reporters in the eastern city of Lahore. “So there is no such thing as a suggestion that something is out of law or that America thinks somehow we’re not subject to the law.”

It would appear that Kerry was just blowing smoke and that at least when it comes to Davis killing two people in Pakistan, Davis was indeed “not subject to the law”.  At the very least, if the investigation Kerry promised is ongoing, it is being conducted in utter secrecy. However, it appears that Davis is not above the law when it comes to the local authorities in suburban Denver.

Kill two people in a foreign country, stirring up massive anti-American protests in the process, and the government will spare no expense in freeing you with no further consequences, but punch a man over a parking space in an Einstein Brothers parking lot and face the full fury of the law.  Ain’t justice in the US grand?

While supervisors from the NYPD are pepper-spraying peaceful political protestors, the Department is also coming under scrutiny for its past (and presumably ongoing) civil liberties abuse, the profiling of Muslim and Arab residents of NY.

As the original AP story on the NYPD’s profiling program described, in the 1980s, the city was put under court orders limiting the kind of intelligence-gathering programs it could conduct.

Since 1985, the NYPD had operated under a federal court order limiting the tactics it could use to gather intelligence. During the 1960s and 1970s, the department had used informants and undercover officers to infiltrate anti-war protest groups and other activists without any reason to suspect criminal behavior.

To settle a lawsuit, the department agreed to follow guidelines that required “specific information” of criminal activity before police could monitor political activity.

In September 2002, [NYPD Intelligence Unit Head David] Cohen told a federal judge that those guidelines made it “virtually impossible” to detect terrorist plots. The FBI was changing its rules to respond to 9/11, and Cohen argued that the NYPD must do so, too.

“In the case of terrorism, to wait for an indication of crime before investigating is to wait far too long,” Cohen wrote.

U.S. District Judge Charles S. Haight Jr. agreed, saying the old guidelines “addressed different perils in a different time.” He scrapped the old rules and replaced them with more lenient ones.

As the AP has been exposing the NYPD profiling program, it has never been entirely clear how this agreement simply got put aside, not least because the intelligence department was also involved in the 2004 RNC abuses.

And the question is more pressing given that Anthony Bologna, the pepper sprayer, is part of the NYPD’s counterterrorism group. I

It’s bad enough, after all, that the NYPD is profiling the city’s Moroccan restaurants, but it seems to be abusing the kind of political persecution the court order–Handschu v. Special Services Division–was supposed to prevent.

Today, the NYCLU is asking more questions about what is going on.

The New York Civil Liberties Union and partnering civil rights attorneys today filed papers in federal court seeking information on the NYPD’s surveillance of Muslims in New York City to determine whether the spying operation violates an existing court order. The filing is part of the Handschu v. Special Services Divisionproceedings, a decades-old federal case that has produced a series of court orders regulating NYPD surveillance of political and religious activity.

The filing asks the court to initiate a discovery process pertaining to the NYPD’s surveillance of Muslims to determine whether those efforts have violated a 1985 consent decree in the Handschu case that restricts the Police Department’s ability to conduct surveillance targeting political and religious activity. The filing also asks the court to order the NYPD to preserve any records relating to its surveillance of Muslims while the discovery process takes place.

“The NYPD’s reported surveillance of local Muslim communities raises serious questions concerning whether the Police Department has violated court-ordered restrictions on its ability to spy on and keep dossiers on individuals,” said NYCLU Legal Director Arthur Eisenberg. “In order to know whether the NYPD is violating the court order, we need a more complete explanation of the NYPD’s surveillance practices.”

To be clear, this is a response to the ethnic profiling, not the crack-down on #OccupyWallStreet.

But if the NYCLU effort succeeds, it may succeed in exposing a lot more about how the NYPD became the CIA-on-the-Hudson. Anthony Bologna’s aggression is already being investigated by the NYPD itself and the DA. But with this NYCLU action, other activities of the NYPD may get scrutinized by the courts, too.

In an article published on CNN.com on Saturday and a program aired Sunday evening, CNN does their best to lend credence to DOJ’s shoddy work that resulted in the unsupported conclusion that Bruce Ivins acted alone in the anthrax attacks of 2001.  Remarkably, in their effort to shore up DOJ’s weak evidence, CNN chose to emphasize one of the weakest links used to tie Ivins to the attacks.

The article and program center on Ivins’ apparent fixation on the Kappa Kappa Gamma sorority.  One former object of Ivins’ attentions, researcher Nancy Haigwood, is relied upon almost exclusively for making the leap from Ivins’ obsession with the sorority to his role in the anthrax attacks.  The article relates the early interactions between Haigwood and Ivins:

Haigwood had met Bruce Ivins in the mid-1970s during graduate school at the University of North Carolina at Chapel Hill. She recalled his incessant questions about her sorority, Kappa Kappa Gamma.

Having joined the sorority as an undergraduate, Haigwood stayed involved as the adult adviser at the UNC chapter. Ivins, she says, always asked her for information about Kappa Kappa Gamma.

“Every time I talked to him, nearly, he would mention it,” says Haigwood. “And finally I said, ‘You know, Bruce, that’s enough!’”

As time went on, Ivins continued to contact Haigwood and apparently submitted a false letter to the editor of a newspaper under her name and vandalized her car.  Haigwood began to suspect Ivins in the attacks because of an email he sent to her and others in November, 2001 highlighting his work with the anthrax isolated from the attacks.  In one a photo in the email, he is handling culture plates without gloves, a break of containment protocol for working with such dangerous material.  Haigwood felt that by sending out this photo, Ivins was emphasizing his immunity to anthrax because he had been vaccinated.

In January of 2002, the FBI emailed members of the American Society of Microbiology, asking for help in identifying suspects in the attack.  Only Haigwood replied to this request and she submitted Ivins’ name.

Once the FBI finally got around to concentrating on Ivins as their primary suspect, they had to undergo some very significant contortions in order to incorporate the Kappa Kappa Gamma obsession into the “evidence” of Ivins’ guilt:

Prosecutors were convinced they had solved a crucial aspect of the mystery: why the anthrax letters were mailed from Princeton, New Jersey. The nondescript but heavily contaminated drop box was on Nassau Street — across from Princeton University.

It had taken several years from the time Nancy Haigwood first contacted the FBI about Bruce Ivins for investigators to make what they believe to be the critical connection:

The mailbox on Nassau Street was just a few doors from a building that leased office space to a sorority: Kappa Kappa Gamma.

That’s it: according to the FBI, Ivins has to be the guilty party and his Kappa Kappa Gamma obsession led him to drive about three and a half hours from where he lived and worked, in order to mail the anthrax letters from a mailbox a few doors away from an office space rented by the sorority.

But this shaky claim already has been thoroughly destroyed.  In this post from August, 2008, Marcy showed that Ivins’ work records–from data released by the FBI–indicate that it would not have been possible for him to make the round trip to Princeton and put the letters in the mailbox with them getting the appropriate postmark:

It would not be possible for Ivins to have mailed the anthrax. According to my calculations above, the window during which Ivins could have put the letter in the mailbox on September 17 was from 10:25 to 1:35. But here’s what the FBI itself says about the window in which the letter was mailed:

The investigation examined Dr. Ivins’s laboratory activity immediately before and after the window of opportunity for the mailing of the Post and Brokaw letters to New York which began at 5:00 p.m. Monday, September 17,2001 and ended at noon on Tuesday, September 18, 2001. [my emphasis]

In other words, had he mailed the anthrax when they’re arguing he did, the letter would have been picked up at the 5:00 PM pick-up (if not an earlier one–often boxes have a mid-day pick-up as well), and post-marked on September 17, not on September 18.

When DOJ adjusted their claims on the mailing slightly, Marcy was able to point out that adjustment also was faulty.

Also not explained by DOJ or CNN is why Ivins chose to go all the way to Princeton and use a mailbox near an office (where there likely would have been employees of the sorority but few if any undergraduate members) when there are other Kappa Kappa Gamma chapters closer to where Ivins lived:

All of which ought to raise the stakes on the FBI’s really dubious explanation for why Ivins purportedly mailed the anthrax in Princeton. After all, there are Kappa Kappa Gamma chapters at George Washington in DC, at Johns Hopkins in Baltimore, and Washington and Lee in Lexington, VA–all much closer to Ft. Detrick than Princeton. So what’s the explanation for driving to Princeton (twice), when Ivins could have associated the anthrax mailing with KKG which much less effort if he had mailed it from any of a number of other schools.

It’s a real mystery why CNN chose to try to shore up DOJ’s weak case against Ivins.  In their defense, they do include these two paragraphs in the online story:

Ivins denied having anything to do with the anthrax letters. And investigators had no direct evidence linking Ivins to the crime: no DNA on the letters, no fingerprints, no eyewitness.

“How [the anthrax] was made, how it was prepared, where it was done, over what period of time — there’s a total void of evidence,” Ivins’ attorney, Paul Kemp, said in a recent CNN interview.

Those weaknesses, however, were simply brushed aside by CNN as they happily joined DOJ in making the leap from Ivins’ harassment of Haigwood to making the Kappa Kappa Gamma obsession a central part of their “proof” Ivins carried out the anthrax attacks entirely on his own.

Because DOJ has officially closed the Amerithrax investigation, it is highly unlikely that the true culprit or culprits in this attack will ever be known.  CNN, however, is doing its part to make sure the DOJ’s unsupported conclusion is cemented in the minds of the low information public.

Particularly given the questions bmaz raised the other day, I wanted to point to something Dutch Ruppersberger, the Democratic Ranking Member of the House Intelligence Committee, had to say the other day. As part of the assurance he offered that the killing of Anwar al-Awlaki was legal, he admitted he doesn’t know whether Samir Khan, the other American citizen killed, was on the government’s kill list, because he doesn’t have access to the list.

Ruppersberger said al-Awlaki was on a special list of individuals that have attempted to attack the United States and are a severe threat to U.S. citizens.

“There’s a process that goes through the National Security Council, and then after that it goes to the president, and then the president then indicates that these individuals are on this list, and as a result of that process we followed it’s legal,” Ruppersberger said. “It’s legitimate, and we’re taking out someone who has attempted to attack us on numerous occasions, and he was on that list. It was pursuant to a process.”

Ruppersberger said he didn’t know if Khan was on the list.

“But Khan was a collateral damage issue here, and I don’t know because I don’t really have access to that list,” Ruppersberger said.

The Gang of Four (or possibly the full Eight, though only the Four have made comments about the killing) is presumably the only review anyone outside of the Executive Branch gives of its decisions to target people, including American citizens, for killing.

But if the Gang of Four doesn’t have access to the kill list, then the only opportunity they’ll have to review the government’s case that the target is indeed a legal target will come at a time when the government already has the person in their sights, presumably with a great deal of time sensitivity.

Yet another reason why this process is inadequate.

I can think of no stronger indictment of the process by which the Obama Administration killed Anwar al-Awlaki than for Dick Cheney to, first, confirm that the process by which Awlaki was targeted does not constitute due process, and then state that Presidents should have that authority anyway.

Cheney then says Obama should apologize for suggesting, in his Cairo speech, that the Bush Administration’s counterterrorism policies had violated America’s principles.

I’ve come here to Cairo to seek a new beginning between the United States and Muslims around the world, one based on mutual interest and mutual respect, and one based upon the truth that America and Islam are not exclusive and need not be in competition.  Instead, they overlap, and share common principles — principles of justice and progress; tolerance and the dignity of all human beings.

[snip]

And finally, just as America can never tolerate violence by extremists, we must never alter or forget our principles.  Nine-eleven was an enormous trauma to our country.  The fear and anger that it provoked was understandable, but in some cases, it led us to act contrary to our traditions and our ideals.  We are taking concrete actions to change course.  I have unequivocally prohibited the use of torture by the United States, and I have ordered the prison at Guantanamo Bay closed by early next year.

Cheney’s right: this assassination exhibited the same disdain for our Constitution that Cheney’s torture program did. And Obama does owe an apology: not to Cheney, but to the America people.

Well we are a little late getting started on the trash talk this weekend, I apologize about that. I have been fixated on the Anwar Awlaki scenario and, today, the Occupy Wall Street effort. In honor of the citizens trying to take back the Street in New York, this week’s music is by Jimmy Cliff; you can get it if you really want it. But, you must actually try.

That, folks, is what is meant by the term “a democracy, if you can keep it”. The people still have the power, the people still have the vote; but they must have the information, and they must have the desire to exercise their power. Our friends and colleagues at FDL, via Kevin Gosztola, are doing great work covering the protests. And, if you have seen what I have on Twitter, it really appears to be something significant starting to form in the Big Apple. I am told about 400 people have been arrested; let’s hope they are replaced by 4,000 others.

Quite frankly it is a rather lackluster day in college football, the only 2 games I really had my eye on are Nebraska at Wisconsin, and 13th ranked Clemson at 11th ranked Virginia Tech. The Clemson game is already over, with the Tigers laying an unheard of whipping on Frank Beamer and the Hokies in Blacksburg. Not so for the Badgers however, the Cornfuckers are in Camp Randall right now with the Huskers up by a point 14-13. The rest of the game should be something fun, and the quarterback for Wisconsin, Russell wilson is really a special kid.

On the pro end of things, it is really not a very enticing slate of games on tap. Seriously there are like three games worth watching. The first is the Stillers at the Texans. Normally, this would be an easy call; but Pittsburgh has not settled in yet this season, and Houston has a fine team and is at home. That is a pickem. The second decent tilt, and maybe my most anticipated game, is Deetroit at Dallas. The Kittehs are THE hot team this year, and Suh is gonna be Romo rib hunting. But the ‘Boys are a little tougher than people think, and are at the JerryDome. I am leery of this, but am still going to go with the Lions. The other game tomorrow of interest is the Pats at the Black Hole to visit those nice Raider chaps. Darren McFadden got a bit nicked up in his huge day against the Jets, Jets, Jets last week, but looks good to go tomorrow. Marcy smells a Rayduhs upset here. So do I. Honorable mention to the Jets versus Ravens on NBC’s Sunday Night Football. It’s in Baltimore, gonna go with the home team there.

Lastly, it is October baby. Reggie Jackson time! and playoff baseball is in full swing. Unless the game is at Yankee Stadium, in which case it is in full swim. Tampa Bay just clocked the Rangers behind 22 year old rookie sensation Matt Moore to open the series, but Texas is up 7-3 in the 7th inning tonight. Oops, Eva Longoria just hit a three run tater to bring it to 7-6. Rays are like butter. On a roll. Diamondbacks got freaking smoked by the BrewCrew today in game one of the NLDS. Arizona has the youngest team in baseball and has been on a great run this year, but still may be a year and another starting pitcher away from being serious contenders. Never count out Kirk Gibson though, and the DBacks are Gibby’s team through and through.

Frances Fragos Townsend is distraught that the media are not using the government’s euphemism for the Anwar al-Awlaki assassination.

Awalaki op was NOT assassination; nor a targeted killing; nor a hit job as media keeps describing! Was a legal capture or kill of AQ enemy.

My favorite bit is how that “captureorkill” rolls right into her tweet, a false foundation stone for the shaky logic that there’s a legal distinction between an operation in which there was never any consideration of capture, and an assassination.

But her panic that the media is not using the preferred semantics to describe the Awlaki assassination reflects a seemingly growing concern among all those who have participated in or signed off on this assassination about its perceived legitimacy.

In addition to Townsend, you’ve got DiFi and Saxby Chambliss releasing a joint statement invoking the magic words, “imminent threat,” “recruiting radicals,” and even leaking the state secret that Yemen cooperated with us on it. You’ve got Mike Rogers asserting Awlaki, “actively planned and sought ways to kill Americans.” All of these people who have been briefed and presumably (as members of the Gang of Four) personally signed off on the assassination, citing details that might support the legality of the killing.

In his effort to claim the assassination was just, Jack Goldsmith gets at part of the problem. He makes the expected arguments about what a careful process the Obama Administration uses before approving an assassination:

• Citing Judge John Bates’ punt to the political branches on the issue, all the while claiming what Bates referred to as an “assassination” is not one
• Arguing that killing people outside of an area against which we’ve declared war is legal “because the other country consents to them or is unable or unwilling to check the terrorist threat, thereby bringing America’s right to self-defense into play”
• Asserting that Administration strikes “distinguish civilians from attack and use only proportionate force”

But, as Goldsmith admits,

Such caution, however, does not guarantee legitimacy at home or abroad.

And while his argument self-destructs precisely where he invokes the Administration’s claims over any real proof, Goldsmith at least implicitly admits the reason why having Townsend and Chambliss and DiFi and Rogers and himself assuring us this attack was legal is not enough to make it legitimate: secrecy.

[T]he Obama administration has gone to unusual lengths, consistent with the need to protect intelligence, to explain the basis for and limits on its actions.

[snip]

It can perhaps release a bit more information about the basis for its targeted strikes. It is doubtful, however, that more transparency or more elaborate legal arguments will change many minds, since the goal of drone critics is to end their use altogether (outside of Afghanistan). [my emphasis]

As Goldsmith’s own rationalization for the legality of this attack makes clear, the attack is only legal if Yemen consents OR is unable OR unwilling (leaving aside the question of imminence, which at least DiFi and Chambliss were honest enough to mention). So too must the attack distinguish between a civilian–perhaps someone engaging in First Amendment protected speech, however loathsome–and someone who is truly operational.

And while the government may well have been able to prove all those things with Awlaki (though probably not the imminence bit Goldsmith ignores), it chose not to.

It had the opportunity to do so, and chose not to avail itself of that opportunity.

The Administration very specifically and deliberately told a court that precisely the things needed to prove the operation was legal–whether Yemen was cooperating and precisely what Awlaki had done to amount to operational activity, not to mention what the CIA’s role in this assassination was–were state secrets. Particularly given the growing number of times (with Reynolds, Arar, Horn, al-Haramain, and Jeppesen) when the government has demonstrably invoked state secrets to hide illegal activity, the fact that the government has claimed precisely these critical details to be secret in this case only make its claims the killing was legal that much more dubious.

Critical thinkers must assume, given the government’s use of state secrets in recent years, that it invoked state secrets precisely because its legal case was suspect, at best.

Aside from John Brennan spreading state secrets, the Administration has tried to sustain the fiction that these details are secret in on the record statements, resulting in this kind of buffoonery.

Jake Tapper:    You said that Awlaki was demonstrably and provably involved in operations.  Do you plan on demonstrating —

MR. CARNEY:  I should step back.  He is clearly — I mean “provably” may be a legal term.  I think it has been well established, and it has certainly been the position of this administration and the previous administration that he is a leader in — was a leader in AQAP; that AQAP was a definite threat, was operational, planned and carried out terrorist attacks that, fortunately, did not succeed, but were extremely serious — including the ones specifically that I mentioned, in terms of the would-be Christmas Day bombing in 2009 and the attempt to bomb numerous cargo planes headed for the United States.  And he was obviously also an active recruiter of al Qaeda terrorists.  So I don’t think anybody in the field would dispute any of those assertions.

Q    You don’t think anybody else in the government would dispute that?

MR. CARNEY:  Well, I wouldn’t know of any credible terrorist expert who would dispute the fact that he was a leader in al Qaeda in the Arabian Peninsula, and that he was operationally involved in terrorist attacks against American interests and citizens.

Q    Do you plan on bringing before the public any proof of these charges?

MR. CARNEY:  Again, the question makes us — has embedded within it assumptions about the circumstances of his death that I’m just not going to address.

Q    How on earth does it have — I really don’t understand.  How does — he’s dead.  You are asserting that he had operational control of the cargo plot and the Abdulmutallab plot. He’s now dead.  Can you tell us, or the American people — or has a judge been shown —

MR. CARNEY:  Well, again, Jake, I’m not going to go any further than what I’ve said about the circumstances of his death and —

Q    I don’t even understand how they’re tied.

MR. CARNEY:  — the case against him, which, again, you’re linking.  And I think that —

Q    You said that he was responsible for these things.

MR. CARNEY:  Yes, but again —

Q    Is there going to be any evidence presented?

MR. CARNEY:  I don’t have anything for you on that.

Q    Do you not see at all — does the administration not see at all how a President asserting that he has the right to kill an American citizen without due process, and that he’s not going to even explain why he thinks he has that right is troublesome to some people?

MR. CARNEY:  I wasn’t aware of any of those things that you said actually happening.  And again, I’m not going to address the circumstances of Awlaki’s death.  I think, again, it is an important fact that this terrorist, who was actively plotting — had plotted in the past, and was actively plotting to attack Americans and American interests, is dead.  But I’m not going to — from any angle — discuss the circumstances of his death.

Obama, too, tried to sustain the fiction that the government (aside from John Brennan) can’t share these details, though his discussion of cooperation with Yemen seems to violate the terms of Robert Gates’ state secrets invocation.

Michael Smerconish: Now comes the news that we’ve taken out Anwar al-Awlaki. Did you give that order?

Obama: I can’t talk about the operational details, Michael. This is something that we had been working with the Yemeni government on for quite some time. There’s been significant cooperation at the intelligence levels with a lot of countries in the region. We are very pleased that Mr. Awlaki is no longer going to be in a position to directly threaten the United States homeland as well as our allies around the world. This is the guy who was at the forefront of ordering the Christmas Day bomber to carry out his plan. They had put bombs in cartridges, printer cartridges, that were set to go off in US cargo planes and had it not been for outstanding intelligence work and cooperation with some of our partners that could have been a catastrophe. So this was a guy who was operationally involved in trying to kill Americans and the fact that he is now no longer around to initiate the kind of propaganda that also was recruiting people all around the world to [aid?] that murderous cause is I think very good for American security. [my emphasis]

Not only Obama’s elision between Awlaki and the “they” who tried to use cartridges to bomb planes discredit his claim, so does the proliferation of executive branch officials providing these details behind the veil of anonymity. That anonymity serves not only to hide the Administration’s obvious selective prosecution of just some leaks, but also deploys reporters’ reinforcement of the secrecy system as stand-in for any real scrutiny of the case.

You know, just the way the government used secrecy to lie us into the Iraq War?

The whole charade is made the more ridiculous given the counter-example of the Osama bin Laden killing. Sure, in that case, too, John Brennan led the brigade of boastful blabberers, both on and off the record. In that case, revealing the secrets of an uncontroversial but operationally more sensitive killing have had real repercussions for our relations with Pakistan (though perhaps useful ones, in that it forces us to deal with their duplicity) and may hurt the SEALs’ effectiveness. By contrast, the Administration is trying much harder to pretend it’s not leaking the details of the Awlaki death, in spite of the fact that Yemen leaked the details even before we did (President Saleh has obvious reasons to want to own this operation).

I guess it’s a lot easier to transparently leak real details when only a very few people challenge the legal legitimacy of an operation, even if doing so does more damage to national security.

And finally there’s the other lesson gleaned from comparing this to the OBL killing. I may not approve of the way they’ve gone about killing Anwar al-Awlaki. But a lot of voters do. And if the Administration were able to stop this charade of secrecy, then it could more loudly boast that Obama has a much bigger dick than even Dick Cheney (or whatever it is that killing terrorists proves). But because they’ve invested in this secrecy charade rather than making a public case for the legitimacy of this killing, they can’t even get maximum political benefit from it, at a time when Obama badly needs some political wins. With the OBL killing, the White House fostered a narrative of Obama making the hard decision; here, Obama makes a weaselly non-answer about that decision to preserve the charade of secrecy.

Again, the legitimacy problems of the Awlaki killing are either self-inflicted (in that the Administration has solid proof but has created unnecessary legal reasons why it won’t share that proof) or there’s a real reason why they’re engaging in this secrecy charade: because they don’t have the proof.

This Administration has long reveled in the power their asymmetric invocation of secrecy grants them. But in this instance, that asymmetry works against them, because every effort they’ve made to defend the Awlaki assassination has instead undermined its legitimacy.

Update: I originally asked why the fourth Gang of Four member, who I misstated was Silvestre Reyes, hadn’t commented. That is now Dutch Ruppersberger. He has made public statements (including stating that Samir Khan was “collateral damage”), but not issued a formal press release.