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.

Yesterday, CA Attorney General Kamala Harris announced she was withdrawing from the 50-state foreclosure fraud settlement.

California Atty. Gen. Kamala Harris will no longer take part in a national foreclosure probe of some of the nation’s biggest banks, which are accused of pervasive misconduct in dealing with troubled homeowners.

Harris removed herself from talks by a coalition of state attorneys general and federal agencies investigating abusive foreclosure practices because the nation’s five largest mortgage servicers were not offering California homeowners relief commensurate to what people in the state had suffered, a person familiar with the matter said.

The big banks were also demanding to be granted overly broad immunity from legal claims that could potentially derail further investigations into Wall Street’s role in the mortgage meltdown, the person said.

With CA–the largest state and the one with the greatest foreclosure exposure–this effectively kills the settlement. See DDay for more on why Harris made this decision and what it means going forward.

But Harris’ letter announcing her decision makes something else (which had become increasingly obvious in recent weeks) clear.

Harris gives US Associate Attorney General Thomas Perrelli, not IA Attorney General Tom Miller, top billing on her letter.

This failure has become Perrelli’s baby as much as it is Miller’s.

When they held their last ditch attempt to save this meeting last week, they met in DC, not in IA or some other central location. And the settlement reportedly discussed at that meeting was heavily skewed towards giving the same people who fucked up HAMP another shot at trying to solve the housing situation.

About 80 per cent of the settlement figure, earmarked for the federal government, could be used to fund another round of debt and payment reductions for struggling US homeowners, people with knowledge of the Illinois document said. That would be split between principal reductions on first-lien mortgages and junior liens; payment forbearance for unemployed borrowers; and short sales, blight remediation and transition assistance for homeowners to move into rentals.

The remainder, about $4bn-$4.4bn in cash, could be designated for the states, which then would divide the proceeds to fund a variety of programmes, including assistance to borrowers. About half that amount could be used to pay up to $2,000 to an estimated 1.1m aggrieved borrowers who allege they were harmed by improper practices. [my emphasis]

So when Harris wrote…

California is hurting. We have the most homes and most home borrowers in default. During the period we have been negotiating, more than 560,000 additional homes in California have fallen into the foreclosure process. When we began this process 11 months ago, five of the ten cities hardest hit nationally by foreclosures were in California. Today, eight of those ten hardest-hit cities are here. And, recently, at the same time that we have been negotiating in good faith, foreclosures in California have surged again.

[snip]

Last week, I went to Washington, D.C. in hopes of moving our discussions forward. But it became clear to me that California was being asked for a broader release of claims than we can accept and to excuse conduct that has not been adequately investigated. In return for this broad release of claims, the relief contemplated would allow far too few California homeowners to stay in their homes.

What she was saying, politely but nevertheless saying, is that giving a state like CA that has been devastated by foreclosures perhaps $500 million to deal with the aftermath, and in the process let the banks off the legal hook for abuses beyond just robo-signing just won’t fly.

The Obama Administration may have been offering Harris less than $1,000 per each new homeowner who has fallen into default (to say nothing of all the previous foreclosures), whereas in a state settlement, NV Attorney General Catherine Cortez Masto was able to get about $57,000 per affected homeowner in a Morgan Stanley settlement.

That tells you two things. First, the Obama Administration still doesn’t understand the extent of the damage the banksters they are trying to protect have done. They don’t understand the scale of the challenges facing states and towns and homeowners affected by the banks’ crimes. And second, the “Department of Justice” was ready to sign away justice for scraps with which to fund another ineffectual Treasury-run program without, first, having forced the banks to face the full consequences of what will happen if they don’t offer principal write-downs.

In other words, if you didn’t already know it, DOJ was (and presumably still is) actively looking for ways not just to ignore the banksters’ crimes, but to help them avoid the non-legal consequences of those crimes, too. Which sort of explains the vitriol directed at Eric Schneiderman of late. Two prosecutors, after all, can conduct a national investigation of the banksters’ crimes, DOJ, and the NY Attorney General. And by refusing to go along with the criminally stupid deal Perrelli was negotiating, Schneiderman has made it a lot harder for for DOJ to sponsor yet more injustice.

As I tweeted earlier, I find the timing of the Anwar al-Awlaki assassination to be rather curious. The first time we might hear real evidence supporting the government’s claim that Awlaki was operational, and not just producing propaganda, will be in Umar Farouk Abdulmutallab’s trial, which starts next week.

Which is why I’m curious about the government’s motion for a protective order submitted last Friday, seeking to have one item withheld from Abdulmutallab (who, remember, is technically defending himself; Judge Edmunds granted the motion on Monday).

The United States of America respectfully moves pursuant to [Criminal Procedure and CIPA] for a second protective order precluding the discovery of a particular item which contains classified information. The classified information is not exculpatory, is privileged, and is otherwise not discoverable.

A page and a half of the seven page filing (which includes a half page redacted description of the item in question) is background which I don’t believe to be boilerplate; that is, I think it is background specific to this filing. And that background includes a close focus on Abdulmutallab’s ties to Awlaki.

The defendant told the [FBI] agents that he was inspired to commit jihad against the United States as a result of regular visits to the web sites of Anwar Awlaki, a member and leader of Al Qaeda in the Arabian Peninsula (“AQAP”), which has been designated by the United States government as a foreign terrorist organization. The defendant stated that while in Yemen, he was able to make contact with members of Al Qaeda, who subsequently provided the defendant with the bomb and gave him training on its components. The defendant and other members of Al Qaeda discussed plans to attack the United States.

Now, I have no real suspicions about what this item is and I’m not suggesting the government is withholding it improperly.

But I find it curious that the government is, at this late date (and at a time when they were already watching Awlaki for their opportunity to kill him) finding items that must be withheld from Abdulmutallab. And I find the particular focus in this filing on his time with Awlaki–precisely the stuff that supports the claim Awlaki had given Abdulmutallab operational instructions–to be interesting.

Is there any reason why the government might be obliged to protect the assassination approval, which we know to be based in part on Abdulmutallab’s own testimony, from him?

Update: I’ve got just a few more major filings left, and thus far, I haven’t found one that mentions Awlaki. This is how the superseding indictment referred to Abdulmutallab’s time in Yemen, which is some of the most detail given on this front.

Defendant Umar Farouk Abdulmutallab is a Nigerian national. In August 2009, defendant Abdulmutallab traveled to Yemen for the purpose of becoming involved in violent “jihad” on behalf of Al Qaeda.

[snip]

In preparation for a suicide attack, defendant Abdulmutallab practiced detonating explosive devices similar to one which he later received for an attack on a U.S. airliner.

The government moved for an earlier protective order in August. That motion doesn’t mention Yemen at all.

Update: This request for expert testimony again mentions Yemen.

The First Superseding Indictment, on which defendant will be tried, alleges that he traveled to Yemen to become involved in violent jihad on behalf of Al Qaeda, a designated terrorist organization, as part of a conspiracy to commit an act of terrorism transcending national boundaries.

And it describes the importance of English-language propaganda.

Finally, the government seeks to admit three minutes and forty two seconds of the Al Qaeda produced video, America and the Final Trap1 and portions of the Al Qaeda in the Arabian Peninsula publication Inspire. Through testimony by the Al Qaeda expert, see Argument A, supra, the government will establish that America and the Final Trap and Inspire are produced by Al Malahem media, an Al Qaeda production company, that products of Al Malahem media serve as official statements by Al Qaeda, and thus are unquestionably authentic. The Al Qaeda expert will explain the reasons Al Qaeda produces Arabic language videos with accurate English language subtitles, as is the case with America and the Final Trap. The expert also will establish that such productions are created by terrorist organizations as part of and in furtherance of their criminal conspiracies, for a number of reasons. Those reasons include the goals of terrorizing their targets into fearing that additional attacks will be forthcoming, and to convince their own supporters and possible recruits that the terrorists are successful and are gaining the upper hand.

And it mentions the toner cartridge plot.

The conspiracy to commit aircraft attacks against the United States had not ended, as demonstrated, at a minimum, by the contents of America And the Final Trap and the 2010 toner cartridge conspiracy by Al Qaeda in the Arabian Peninsula.

Yet in none of these discussions–all of which involve actions in which Awlaki was central–does the filing mention the cleric.

By this time in the day, the early morning report of the killing of Anwar Awlaki is old news. From ABC News:

Senior administration officials say that the U.S. has been targeting Awlaki for months, though in recent weeks officials were able to pin down his location.

“They were waiting for the right opportunity to get him away from any civilians,” a senior administration official tells ABC News.

And today they got him. Awlaki was killed by a drone delivered Hellfire missile, via a joint CIA and JSOC operation, in the town of Kashef, in Yemen’s Jawf province, approximately 140 kilometres east of Sanaa, Yemen’s capital. But not only Awlaki was killed, at least three others, including yet another American citizen, Samir Khan, were killed in the strike.

That’s right, not just one, but two, Americans were summarily and extrajudicially executed by their own government today, at the direct order of the President of the United States. No trial, no verdict, just off with their heads. Heck, there were not even charges filed against either Awlaki or Khan. And it is not that the government did not try either, there was a grand jury convened on Khan, but no charges. Awlaki too was investigated for charges at least twice by the DOJ, but non were found.

But at least Awlaki was on Barrack Obama’s “Americans That Are Cool to Kill List”. Not so with Samir Khan. Not only is there no evidence whatsoever Khan is on the classified list for killing (actually two different lists) my survey of people knowledgeable in the field today revealed not one who believed khan was on any such list, either by DOD or CIA.

So, the US has been tracking scrupulously Awlaki for an extended period and knew with certainty where he was and when, and knew with certainty immediately they had killed Awlaki and Khan. This means the US also knew, with certainty, they were going to execute Samir Khan.

How did the US then make the kill order knowing they were executing a US citizen, not only extrajudicially, but not even with the patina of being on the designated kill list (which would at least presuppose some consideration and Yoo-like pseudo-legal cover)?

Did Barack Obama magically auto-pixie dust Khan onto the list with a wave of his wand on the spot? Even under the various law of war theories, which are not particularly compelling justification to start with as we are not at war with Yemen and it is not a “battlefield”, the taking of Khan would appear clearly prohibited under both American and International law. As Mary Ellen O’Connell, vice chairman of the American Society of International Law, relates, via Spencer Ackerman at Wired’s Dangerroom:

“The United States is not involved in any armed conflict in Yemen,” O’Connell tells Danger Room, “so to use military force to carry out these killings violates international law.”

O’Connell’s argument turns on the question of whether the U.S. is legally at war in Yemen. And for the administration, that’s a dicey proposition. The Obama administration relies on the vague Authorization to Use Military Force, passed in the days after 9/11, to justify its Shadow Wars against terrorists. Under its broad definition, the Authorization’s writ makes Planet Earth a battlefield, legally speaking.

But the Authorization authorizes war against “nations, organizations, or persons [the president] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” It’s a stretch to apply that to al-Qaida’s Yemen affiliate, which didn’t exist on 9/11. But when House Republicans tried to re-up the Authorization to explicitly bless the new contours of the war against al-Qaida, the Obama administration balked, fearing the GOP was actually tying its hands on the separate question of terrorist detentions.

“It is only during the intense fighting of an armed conflict that international law permits the taking of human life on a basis other than the immediate need to save life,” O’Connell continues. “In armed conflict, a privileged belligerent may use lethal force on the basis of reasonable necessity. Outside armed conflict, the relevant standard is absolute necessity.”

So did al-Awlaki represent an “absolute” danger to the United States? President Obama, in acknowledging Awlaki’s death on Friday morning, didn’t present any evidence that he did.

And therein lies lies the reason the US killing of Samir Khan may be even more troubling than the already troubling killing of al-Awlaki. There is no satisfactory legal basis for either one, but as to Khan there was NO process whatsoever, even the joke “listing” process utilized for Awlaki. The US says it took care to not harm “civilians”, apparently that would mean Yemeni civilians. American citizens are fair game for Mr. Obama, list or no list, crime or no crime, charges or no charges. Off with their heads!

People should not just be evaluating today’s fresh kills as to Awlaki, Samir Khan should be at the tip of the discussion spear too.

Last year, Director of National Intelligence James Clapper said the following:

I am asserting privilege over classified intelligence information, assessments, and analysis prepared, obtained, or under the control of any entity within the U.S. Intelligence Community concerning al-Qaeda, AQAP or Anwar al-Aulaqi that may be implicated by [Awlaki’s father’s attempt to sue for information about why Awlaki was on the CIA’s assassination list]. This includes information that relates to the terrorist threat posed by Anwar al-Aulaqi, including information related to whether this threat may be “concrete,” “specific,” or “imminent.”

Then Secretary of Defense Robert Gates said the following:

DOD cannot reveal to a foreign terrorist organization or its leaders what it knows about their activities and how it obtained that information.

[snip]

The disclosure of any operational information concerning actions U.S. armed forces have or may plan to take against a terrorist organization overseas would risk serious harm to national security and foreign relations. Official confirmation or denial of any operations could tend to reveal information concerning operational capabilities that could be used by adversaries to evade or counter any future strikes.

[snip]

Finally, as discussed below, public confirmation or denial of either prior or planned operations could seriously harm U.S. foreign relations.

[snip]

The disclosure of information concerning cooperation between the United States and a foreign state, and specifically regarding any possible military operations in that foreign country, could lead to serious harm to national security, including by disrupting any confidential relations with a foreign government. [my emphasis]

Then CIA Director and current Secretary of Defense Leon Panetta said the following:

I am invoking the [state secrets] privilege over any information, if it exists, that would tend to confirm or deny any allegations in the Complaint [about CIA targeting Awlaki for assassination] pertaining to the CIA.

Yet in spite of the fact that these top government officials swore to a judge that revealing operational details about the CIA’s assassination operations, US counterterrorist cooperation with Yemen, and confirmation of prior or planned military operations would harm foreign relations and national security, we’re seeing details like this in reporting on Anwar al-Awlaki’s death:

An American-born cleric killed in Yemen played a “significant operational role” in plotting and inspiring attacks on the United States, U.S. officials said Friday, as they disclosed detailed intelligence to justify the killing of a U.S. citizen.

Anwar al-Awlaki, an American-born radical Islamic preacher who rose to the highest level of al Qaeda’s franchise in Yemen, was killed in a CIA-directed strike upon his convoy, carried out with the U.S. Joint Special Operations Command’s firepower, according to a counterterrorist official, speaking on condition of anonymity to discuss intelligence.

[snip]

Four individuals were killed in Friday’s attack, according to U.S. officials.

[snip]

Al-Awlaki had been under observation for three weeks while they waited for the right opportunity to strike, one U.S. official said.

[snip]

U.S. counterterrorism officials said that counterterrorism cooperation between the U.S. and Yemen has improved in recent weeks, allowing the U.S. to gather better intelligence on al-Awlaki’s movements. The ability to better track him was a key factor the successful strike, U.S. officials said.

Or details like this, including John Brennan’s comments on the record:

Fox News has learned that two Predator drones hovering above al-Awlaki’s convoy fired the Hellfire missiles which killed the terror leader. According to a senior U.S. official, the operation was carried out by Joint Special Operations Command, under the direction of the CIA.

[snip]

But American sources confirmed the CIA and U.S. military were behind the strike on al-Awlaki, whom one official described as a “big fish.”

The strike hit a vehicle with three or four suspected Al Qaeda members inside, in addition to al-Awlaki. According to a U.S. senior official, the other American militant killed in the strike was Samir Khan, the co-editor of an English-language Al Qaeda web magazine called “Inspire.”

[snip]

Top U.S. counter terrorism adviser John Brennan says such cooperation with Yemen has improved since the political unrest there. Brennan said the Yemenis have been more willing to share information about the location of Al Qaeda targets, as a way to fight the Yemeni branch challenging them for power. Other U.S. officials say the Yemenis have also allowed the U.S. to fly more armed drone and aircraft missions over its territory than ever previously, trying to use U.S. military power to stay in power. [my emphasis]

Judge Bates, if I were you, I’d haul Clapper, Gates, and Panetta into your courtroom to find out whether they lied their ass off to you last year so as to deprive a US citizen of due process, and if they didn’t, then how long it will be until John Brennan and some other counterterrorism officials get charged with Espionage.

Ding dong Awlaki’s dead, says the government.

While everyone’s talking about having “got” this latest bogeyman, I just wanted to remind folks the kind of language the Administration used to explain why it could kill an American citizen with no due process.

Accordingly, although it would not be appropriate to make a comprehensive statement as to the circumstances in which he might lawfully do so, it is sufficient to note that, consistent with the AUMF, and other applicable law, including the inherent right to self-defense, the President is authorized to use necessary and appropriate force against AQAP operational leaders, in compliance with applicable domestic and international legal requirements, including the laws of war. [my emphasis]

As to the actual evidence that Anwar al-Awlaki was a terrorist? That’s a state secret.

Incidentally, last week the 9th Circuit said there should be some due process and proof of probable cause before the government acts on claims that someone or something (in this case, al-Haramain) is a terrorist. Lucky for the government they managed to kill Awlaki before anyone asked again for due process for him.

Last year, I tracked how TSA head (and former FBI Deputy Director) John Pistole used an FBI entrapment plot targeted at the Metro to justify increased TSA surveillance of the Metro.

Which is why I’m intrigued that the FBI’s latest entrapment product, Rezwan Ferdaus, is alleged to have wanted to strike the Pentagon with, effectively, a drone (with what Julian Sanchez, in a great post, calls a comic book plot). I wondered whether Ferdaus came up with his comic book plot himself, whether this was projection, or whether the FBI wanted us to fear being struck via the same means we’re striking others.

In the affidavit supporting Ferdaus’ arrest, the FBI emphasizes that Ferdaus came up with the idea of a drone himself (if you can call replicating our own tactics an original idea). They describe, for example, a March 29, 2011 meeting with two FBI undercover officers at which Ferdaus,

explained that he had this idea of attacking the Pentagon long before he met the [cooperating witness] (and by implication before he met the [FBI undercover officers–UCEs]). FERDAUS advised the UCEs that he had initially discussed his remote controlled aircraft plans with a friend from Dorchester. FERDAUS told the UCEs that his Dorchester friend had a “less complicated idea” — his friend’s idea was to “just get weapons and go after … a recruitment center.” The UCEs asked FERDAUS what was wrong with that idea, to which FERDAUS responded: “nothing.” FERDAUS indicated, however, that he wanted “to go bigger.”

But they don’t say how the FBI–rather, their cooperating witness–came to find Ferdaus.

Particularly given the FBI’s past misrepresentations about when one of their entrapments began, this seems relevant. All the more so in this case, given that the affidavit appears to support its claim that “FERDAUS told the UCEs that he realized more than a year ago from viewing jihadi websites and videos ‘how evil’ America is” based on an August 1, 2011 conversation with the UCEs (but again, not the cooperating witness) that his jihad,

started last year. I realized I should try to do something to attack them here. I should try to go down to Washington or something like that. I should try to get them here. That is the best thing.

There’s nothing in this quote that says it happened more than a year ago–only that it happened before January 2011. Given that the cooperating witness shows up in the narrative “last year” (in December), the seemingly unsupported claim about how long Ferdaus has been pursuing his comic book plot seems relevant–or perhaps an indication the FBI has reason to know his surfing on jihadi sites happened more than a year ago.

So what about that cooperating witness, who, the affidavit admits, “has a criminal record and has served time in prison”? The affidavit describes his involvement this way:

Initially, FERDAUS met and engaged in conversations with an FBI CW regarding his planned attacks against the United States. These conversations occurred between December 2010 and April 2011; the majority of them were consensually recorded. [my emphasis]

Yet the affidavit doesn’t say anything about what transpired between Ferdaus and the CW in December, neither how they met nor how many times they conversed or met before January 7, 2011, the first meeting described in the affidavit.

Nor do they tell us the circumstances surrounding that minority of conversations that weren’t recorded. There always seems to be a conversation that doesn’t get recorded, doesn’t there?

Nor does the affidavit explain how long they were monitoring Ferdaus’ participation in jihad chat rooms. They describe him saying that’s what radicalized him. But they don’t admit the obvious, that that’s probably what led them to send an informant out to cultivate him to the point where trained FBI agents would take over (assuming, of course, that Ferdaus’ friend from Dorchester wasn’t another informant, but who knows?).

One more point. The only times the affidavit describes Ferdaus accessing the Internet, he does so via public computers, at a library and internet cafe, though the affidavit also describes him using his own computer to show the UCEs his plan.

It looks very tidy, wrapped up in this affidavit, if you ignore the fact that when the FBI told Ferdaus not to play with chemicals he complied. But this is yet another entrapment that seems to obscure where the plot came from.

I take that back. I wasn’t really a trust fund kid. But my grandfather was an Ag Scientist who shared the royalties from an erosion control plant he developed with his grandkids, so I did get a modest quarterly “weed money” check while I was a teenager, which was sort of like a trust fund. And as is likely for people with a PhD scientist in the family, I was affluent, a great student. And, when I was 14, a supermarket checker.

Which is why I find this pompous Peter Frase discussion, responding to these posts (and seconding Yglesias), about the relative value of grocery self-checkout lines so annoying. And since Frase says the supermarket checker I once was doesn’t exist–“You don’t see a lot of trust-fund kids or lottery winners working as supermarket checkers.”–I feel obliged to weigh in, not with all the PhD babble I’m credentialed to throw around, but with some real details.

This whole debate started when Atrios suggested supermarkets had implemented self-checkouts to eliminate jobs.

It isn’t possible for me to know, but I’ve long been puzzled by the widespread adoption of self-service checkouts in supermarkets and other places. It didn’t seem to me that the additional capital costs would really be offset by labor cost reductions. They still require at least one hovering employee to deal with problems and card people for alcohol purchases. In addition, people aren’t very fast at using the machines so you need a higher number of machines/user to speed people through the line. We may not see “supermarket cashier” as a super high skilled position, but the fact remains that doing it well, as with most things, does in fact require skill. A good cashier is fast and accurate, checking people out more quickly and more efficiently.

So I’m not totally surprised that they’re pulling back a bit, though I’m sure the next scheme promising a reduction in personnel will be embraced as soon as it comes along… [my emphasis]

At which point, as the debate wore on, his central point–backed by the article he linked–was increasingly ignored: checkout machines end up not being the great deal for supermarkets they once thought they’d be.

So let me say this.

I was a damn good supermarket checker. I took great pride in what a good supermarket checker I was. It involved knowing all the codes for vegetables cold, knowing where the buttons for large items were. It involved being physically fit–with a lot of standing and bending and twisting–as well as the ability to get in a zone where you’re consistently scanning an item in one movement without breaking the rhythm of that movement, passing the item from one hand to another, left hand right hand left hand right hand. Since I was quick and consistently got the busiest registers, being a damn good supermarket checker also involved chumming up to the bagboys to make sure I always had someone bagging to keep up with my checkout pace (and, frankly, I was a pretty crummy bagger, which tended to piss off the rich ladies we served in that store when I did do their bagging). And in spite of the fact that machines are supposed to do the math for you, you do end up having to do math when the rich ladies throw weird amounts of money at you.

So I come to these self-checkout machines with a bit of expertise on how they compare to a trained supermarket checker. I was curious to use them when they first came out–I admit I wanted to see whether I still had that old touch. And now, I buy so little in big grocery stores that I’ve consistently got just a few items when I do check out in a store with self-checkout lanes, so I use the machines to avoid the long lines of people with very full carts.

Even as someone who once was a damn good supermarket checker, the machines are much less efficient. Partly, that’s because I don’t know all the codes now, and I tend to buy odd fruits and vegetables–things like key limes and nopales–that aren’t loaded into the machine properly. Partly, that’s because those self-checkout machines aren’t built to allow you to get into that Tayloresque rhythm. Partly, that’s because you’ve got a suboptimal bagging set-up (and, no, I’m still not a very good bagger, but luckily I’ve just got myself to blame now).

The point being, at least from my somewhat informed position, Atrios’ guess is correct. Those machines aren’t very efficient. And while I wasn’t unionized as a grocery checker (so my labor was really really cheap), I would imagine even union supermarket checker wages are less than these inefficient machines, to say nothing of consumer satisfaction.

Which is another way of seconding Atrios’ supposition that these machines, in spite of the fact that they replaced workers with machines, were not productivity improvements.

But that point–that replacing a worker with a machine does not always result in productivity gains–appears to have been entirely lost in the debate. djw ignored it when he accepted the terms of the debate as a choice between menial jobs or greater productivity through machines. Yglesias ignored it when he blathered about whether productivity growth was good or bad for workers. Frase ignored it when he called others conservative for exulting in the disappearance of machines that didn’t improve productivity.

So let me make the issue clear: We are talking about whether we should have machines (which lead to lower customer satisfaction) for machines sake or whether we should, in cases where people end up being more efficient and better for business than the machines, employ the people.

Choosing the first option–as Frase and Yglesias seem to do–is stupid for their cherished productivity and stupid for workers. (Note, the productivity battle they’re fighting is likely an earlier one, on whether to shift to scanning machines in the first place.)

Now, the simple return to employing real people instead of self-service machines will not make these great jobs. I didn’t have to keep up that standing and bending and twisting for a lifetime, and unlike my workmates who faced a lifetime of this work, I didn’t opt to sleep with the sexually harassing boss to get better work conditions. And even the bosses in that grocery store worked night jobs, mostly as cops, to survive on the low wages.

But rather than taking an example where machines turned out not to equate to productivity gains as an opportunity to establish new lefty litmus tests on whether machines are good or bad, the lesson here ought to be that not all claims that fewer workers equal more productivity turn out to be true.