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Shorter Neal Katyal: Please Appoint Me Judge!

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If it weren’t for this line, disdaining what judges do,

But judges should be left to what they know.

I would be convinced that this op-ed from Neal Katyal, arguing against a Drone and/or Targeted Killing Court, was a transparent attempt to curry favor with the man who gets to nominate people for lifetime appointments to federal courts.

Because it strikes me as a dishonest argument, one made by someone who almost surely knows better, repeating the AUMF fallacy.

But there is no true precedent for interposing courts into military decisions about who, what and when to strike militarily. Putting aside the serious constitutional implications of such a proposal, courts are simply not institutionally equipped to play such a role.

While the Bush Administration didn’t read Ted Olson into its worst OLC opinions when he was Solicitor General — and so it’s possible (though unlikely) that Katyal was likewise not read into the June 2010 opinion that authorized the CIA to kill Anwar al-Awlaki during the time he was Acting Solicitor General — he was almost certainly part of the legal strategy to respond to the ACLU/CCR suit hoping to enjoin the President from killing Awlaki unless he represented an imminent threat, which also occurred while he was Acting SG.

Neal Katyal almost certainly knows the CIA was cleared to carry out that killing (though he had left the Administration by the time Awlaki was ultimately killed), and that this was a covert op.

To argue for a star chamber within the Executive Branch, he paints the judges who serve on the FISA Court as generalists who have no clue about national security issues.

There are many reasons a drone court composed of generalist federal judges will not work. They lack national security expertise, they are not accustomed to ruling on lightning-fast timetables, they are used to being in absolute control, their primary work is on domestic matters and they usually rule on matters after the fact, not beforehand.

[snip]

What reason does the FISA Court give us to think that judges are better than specialists at keeping executive power in check?

The FISA Court includes judges like Thomas Hogan (who has been a District Court judge in DC since Katyal was 12) and is now led by Reggie Walton (who joined DC District back when President Obama was still a State Senator). While they’ve seen their share of DC drug cases, they’ve also presided over some high profile national security cases (both had a part in the Libby case, both have issued key rulings in Gitmo habeas cases).  But Katyal thinks they’re just not capable of reviewing whether an American should be killed by his government with no due process.

There’s more that’s laugh out loud funny in Katyal’s op-ed, such as the suggestion that targeted killing of an American (as far as I know, no one is even considering using a FISA process with non-citizens) presents no Constitutional issues.

Even the questions placed before the FISA Court aren’t comparable to what a drone court would face; they involve more traditional constitutional issues — not rapidly developing questions about whether to target an individual for assassination by a drone strike.

And the suggestion that the Executive can be trusted to hand over its own analysis on targeted killing to Congress.

The adjudicator would be a panel of the president’s most senior national security advisers, who would issue decisions in writing if at all possible. Those decisions would later be given to the Congressional intelligence committees for review.

Not to mention that a “court” which the President was free to overrule amounts to any kind of due process.

Crucially, the president would be able to overrule this court, and take whatever action he thought appropriate, but would have to explain himself afterward to Congress.

Mind you. I, like Katyal, think the idea of turning FISA into a Drone and/or Targeted Killing court is terrible. But I’m not arguing that’s because an actual court would infringe too much on the President’s claimed authority to kill Americans at will.

The AUMF Fallacy

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There’s a whole strand of commentary on the targeted killing that lets the Obama Administration off easy for what it maintained in the white paper on the targeted killing of Americans.

There’s the argument made by David Cole and Jane Mayer that Obama’s targeted killing isn’t as bad as Bush’s torture because torture is always illegal, whereas killing is legal during war. This is Cole:

Thus, where Bush sought to rationalize a universally proscribed war crime, Obama is seeking to chart an appropriate legal course in a new setting of a well-established and generally lawful military tactic: killing the enemy.

There’s Armando Llorens’ argument that because the AUMF didn’t expressly authorize the military to operate in the US, the President therefore couldn’t target Americans in the US.

Serwer writes:

The question is whether the Authorization for Use of Military Force, which Congress passed in the aftermath of the 9/11 attacks, counts as “express authorization” to carry out a targeted killing on US soil.

Well, let’s read the empowering provisions:

Section 2 – Authorization For Use of United States Armed Forces(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

The argument that Serwer appears to adopt is that this empower the president to “use all necessary and appropriate force against those […] organizations or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001 […]in order to prevent any future acts of international terrorism against the United States” including such persons and organizations located in the United States.

The problem is  the 2001 AUMF does not include the language “in the United Sates.” To wit, the Posse Comitatus Act’s requirement of “express authorization” is not met. There is no express authorization for military targetting in the United States.

And there’s Garrett Epps’ in some ways strong argument that a Drone and/or Targeted Killing Court wouldn’t work that nevertheless problematically includes the claim that Obama has claimed no inherent authority in his use of drone strikes.

The present administration does not claim that the president has “inherent authority” to attack anyone anywhere. Instead, from the documents and speeches we’ve seen, the administration says it can order drone attacks only as provided by the Authorization for the Use of Military Force passed by Congress after the September 11 attacks—that is, against “those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

Unlike the fictional President Bennett in Tom Clancy’s Clear and Present Danger, then, President Obama can’t suddenly send the drone fleet down to take out, say, Colombian drug lords or the Lord’s Resistance Army in Uganda. [my emphasis]

All of them claim the Administration is operating exclusively within the AUMF, and based on that assumption conclude certain things about what the Administration has done.

There is abundant evidence to refute that. After all, the Administration invokes self-defense about as many times as it does AUMF in the white paper. The white paper actually situates the authority to kill an American in “constitutional responsibility to protect the country” — that is, Article II authority — and inherent right to self-defense even before it lists the AUMF.

The President has authority to respond to the imminent threat posed by al-Qa’ida and its associated forces, arising from his constitutional responsibility to protect the country, the inherent right of the United States to national self defense under international law, Congress’s authorization of the use of all necessary and appropriate military force against this enemy, and the existence of an armed conflict with al-Qa’ida under international law.

(Interestingly, the Holder speech reverses that order, listing AUMF, law of war, Article II, and then self-defense under international law.)

One of the Senators who has actually been briefed on Anwar al-Awlaki’s killing kept asking, for an entire year, “is the President’s authority to kill Americans based on authorization from Congress or his own authority as Commander-in-Chief?” While Wyden didn’t repeat that question in open session at Brennan’s hearing (so it may have been answered in the OLC memos he got the morning of the hearing), if he didn’t know, then how can all these people who haven’t been briefed claim to know?

Similarly, Colleen McMahon — who has been briefed at least on why CIA needed to invoke No Number No List over their own public speech — emphasized the unilateral nature of the decision to kill Awlaki.

And ultimately, we should look to what Stephen Preston — the General Counsel of the agency that actually carried out the Awlaki killing — has to say about where the CIA gets its authorization to engage in lethal covert operations.

Let’s start with the first box: Authority to Act under U.S. Law.

First, we would confirm that the contemplated activity is authorized by the President in the exercise of his powers under Article II of the U.S. Constitution, for example, the President’s responsibility as Chief Executive and Commander-in-Chief to protect the country from an imminent threat of violent attack. This would not be just a one-time check for legal authority at the outset. Our hypothetical program would be engineered so as to ensure that, through careful review and senior-level decision-making, each individual action is linked to the imminent threat justification.

A specific congressional authorization might also provide an independent basis for the use of force under U.S. law.

In addition, we would make sure that the contemplated activity is authorized by the President in accordance with the covert action procedures of the National Security Act of 1947, such that Congress is properly notified by means of a Presidential Finding. [my emphasis]

The CIA, the agency that killed Awlaki, looks to Article II authority before it engages in targeted killing. Congressional authorization might also provide authority, Preston says. But Preston makes it clear that all the CIA needs to conduct lethal covert operations (though he does not specify that this holds with an American citizen) is the President’s Article II say-so.

At best, this record shows that Obama has operated under Article II and AUMF yoked together. There is no conceivable way (except by deliberate misreading) to argue that he is operating exclusively under the AUMF, because these public statements point to both the AUMF and Article II. And the Preston language at least envisions conducting such operations solely under Article II.

Finally, this notion that the President doesn’t think he could shoot drones against the Colombian drug lords or the LRA? It would be a lot more defensible statement if the Administration would share with even the Intelligence Committees — which it has thus far refused to do — the list of all the countries it has operated with lethal force. Add in those 7 OLC memos authorizing targeting killing (though not of Americans) that the Administration also has thus far refused to share, and there’s good reason to believe the Administration is conducting targeted killings — whether by drones or other means — in ways that must stretch the AUMF, because they won’t share that information with the Congress that purportedly authorized it.

These arguments that Obama ordering the death of an American (purportedly under exclusively AUMF authority) isn’t that bad are all very nice. But insofar as they ignore the public record, which shows that Obama is at least partially situating his authority to kill in his Article II authority, the arguments are simply spin on what Obama really did.

Is This Why the Press Finally Revealed the Saudi Drone Base?

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In spite of all the furor over the way the NYT and WaPo sat on news of a Saudi drone base, the only explanation I know of for why they chose to reveal it now was this one.

So, what changed? Why did the New York Times decide to break the silence with a story last night including mention of the Saudi Arabia base? Managing Editor Dean Baquet told news hound-cum-New York Times Public Editor Margaret Sullivan that the decision was connected to the nomination of John O. Brennan to move to the directorship of the CIA; Brennan, after all, was a central figure in establishing the Saudi base.

There’s more to it, notes Leonhardt:

Ultimately, we decided that naming the country did not present enough of a national-security risk to justify withholding the information. There are not many countries on the Arabian peninsula. Some Web reports had already made the connection. We were aware of no specific security risks or threats, and it is widely known that Saudi authorities are aggressively pursuing Qaeda militants in Yemen. The administration continued to object, but we notified them on Monday that we intended to include the location in an upcoming story, which we did.

Bold text added to highlight an interesting wrinkle: Sullivan’s account of the goings-on suggests that toward the end, the government didn’t escalate the matter up the hierarchy at the New York Times:

Mr. Baquet said he had a conversation with a C.I.A. official about a month ago and, at that time, agreed to continue withholding the location, as it had done for many months. More recently, though, one of the reporters working on the story told the government that The Times would reveal the location and said officials should contact Mr. Baquet if they wanted to discuss it further.

“They didn’t call this time,” Mr. Baquet said.

The depiction of continued Administration opposition is a bit rich.

After all, as the NYT presented the story, the Saudi drone base played a role in both Anwar al-Awlaki and Said al-Shihri’s deaths.

The strikes have killed a number of operatives of Al Qaeda in the Arabian Peninsula, the terrorist network’s affiliate in Yemen, including Said Ali al-Shihri, a deputy leader of the group, and the American-born cleric Anwar al-Awlaki.

[snip]

Not long afterward, the C.I.A. began quietly building a drone base in Saudi Arabia to carry out strikes in Yemen. American officials said that the first time the C.I.A. used the Saudi base was to kill Mr. Awlaki in September 2011.

Since then, officials said, the C.I.A. has been given the mission of hunting and killing “high-value targets” in Yemen — the leaders of Al Qaeda in the Arabian Peninsula who Obama administration lawyers have determined pose a direct threat to the United States. When the C.I.A. obtains specific intelligence on the whereabouts of someone on its kill list, an American drone can carry out a strike without the permission of Yemen’s government.

[snip]

Although most Yemenis are reluctant to admit it publicly, there does appear to be widespread support for the American drone strikes that hit substantial Qaeda figures like Mr. Shihri, a Saudi and the affiliate’s deputy leader, who died in January of wounds received in a drone strike late last year.

The claim that Shihri (a former Gitmo detainee who had ties to a Saudi Gitmo deradicalized double agent) was killed by a drone is not at all clear. Read more →

Colleen McMahon: The Covert Op that Killed Anwar al-Awlaki Was Illegal

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A lot of people have discussed this section of Judge Colleen McMahon’s January 2, 2013 ruling dismissing ACLU and NYT’s FOIA for memos and other documents related to the targeted killing of Anwar al-Awlaki, Samir Khan, and Abdulrahman al-Awlaki:

I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret. [my emphasis]

But I’m not aware of anyone commenting at length on the section she titles, “Constitutional and Statutory Concerns about Targeted Killings,” a 5-page discussion of assessing targeted killing in terms of due process, treason, and other laws.

While the section is not entirely off point — she explores some of the legal questions raised in ACLU’s FOIA, though as I’ll show, she expands on the questions ACLU raised — the section is completely extraneous to her task at hand, determining whether or not the government has to turn over its legal justifications for killing Anwar al-Awlaki, Samir Khan, and Abdulrahman al-Awlaki. In other words, McMahon takes a 5-page detour from her work of adjudicating a FOIA dispute and lays out several reasons why the Awlaki killing may not be legal.

She recalls how central due process was to the founding of our nation.

As they gathered to draft a Constitution for their newly liberated country, the Founders – fresh from a war of independence from the rule of a King they styled a tyrant- were fearful of concentrating power in the hands of any single person or institution, and  most particularly in the executive. That concern was described by James Madison in Federalist No. 47 (1788):

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny ….

The magistrate in whom the whole executive power resides cannot of himself … administer justice in person, though he has the appointment of those who do administer it.

She reminds that the Treason Clause appears in Article III of the Constitution, not Article II.

Interestingly, the Treason Clause appears in the Article of the Constitution concerning the Judiciary — not in Article 2, which defines the powers of the Executive Branch. This suggests that the Founders contemplated that traitors would be dealt with by the courts of law, not by unilateral action of the Executive. As no less a constitutional authority than Justice Antonin Scalia noted, in his dissenting opinion in Hamdi, 542 U.S. at 554, “Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime.”

Thus far, she has just made it abundantly clear she meant her earlier comment about “actions that seem on their face incompatible with our Constitution and laws” seriously (and she addresses points — due process and Treason — the ACLU brought up explicitly). She interrupts her work of assessing the FOIA case before her to make it very clear she believes the Awlaki killing violated key principles of our Constitution.

But I’m particularly interested in the last two pieces of law she raises to suggest she thinks the Awlaki killing might be illegal. First, she looks at 18 USC 1119.

Assuming arguendo that in certain circumstances the Executive power extends to killing without trial a citizen who, while not actively engaged in armed combat against the United States, has engaged or is engaging in treasonous acts, it is still subject to any constraints legislated by Congress. One such constraint might be found in 18 U.S.C. § 1119, which is entitled “Foreign murder of United States nationals.” This law, passed in 1994, makes it a crime for a “national of the United States” to “kill[] or attempt[] to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country.” The statute contains no exemption for the President (who is, obviously, a national of the United States) or anyone acting at his direction. At least one commentator has suggested that the targeted killing of Al-Awlaki (assuming it was perpetrated by the Government) constituted a violation of the foreign murder statute. Philip Dore, Greenlighting American Citizens: Proceed with Caution, 72 La. L. Rev. 255 (2011).

18 USC 1119 is, of course, the passage of the white paper I focused on here, which the Administration dismisses, in part, this way.

Similarly, under the Constitution and the inherent right to national self-defense recognized in international law, the President may authorize the use of force against a U.S. citizen who is a member of al-Qa’ida or its associated forces who poses an imminent threat of violent attack against the United States.

And I’m such a geek that I actually mapped out what Eric Holder said in his Northwestern Speech and what actually appears in the white paper. The discussion on section 1119 is, by far, the topic explored in greatest length in the white paper but left unmentioned in Holder’s public spin of the legal thinking behind Awlaki’s killing. Section 1119 is something that Administration was very worried about, but didn’t want the public to know how worried they were.

McMahon’s discussion is interesting, too, because it’s somewhat tangential to the list of things ACLU asked about. They ask for “the reasons why domestic-law prohibitions on murder … do not preclude the targeted killing of Al-Awlaki.” And their original FOIA letter cites the same Dore article that McMahon cites. The ACLU never mentions section 1119 by name. But McMahon does, honing in on the statute that — at least given the relative focus of the white paper — the Administration seemed most concerned about. (She did get classified declarations, so it’s possible she got the white paper, though her comments about not needing to see the one OLC memo identified in the Vaughn Indices would seem to suggest she had not seen it.)

Then McMahon brings up something that doesn’t show up in the white paper (but one I’ve brought up).

There are even statutory constraints on the President’s ability to authorize covert activity. 50 U.S.C. §413b, the post-World War II statute that allows the President to authorize covert operations after making certain findings, provides in no uncertain terms that such a finding “may not authorize any action that would violate the Constitution or any statute of the United States.” 50 U.S.C. § 413b(a)(5). Presidential authorization does not and cannot legitimize covert action that violates the constitution and laws of this nation.

McMahon is, by this point, basically arguing that the Article II rationalizations that end up in the white paper (whether or not she had seen it) are invalid. The President cannot authorize something that violates the Constitution and US law, not even for (or especially not for) a covert operation the CIA would conduct.

Mind you, she’s a bit more gentle in her legal condemnation of the argument.

So there are indeed legitimate reasons, historical and legal, to question the legality of killings unilaterally authorized by the Executive that take place otherwise than on a “hot” field of battle. [my emphasis]

But she refutes, in 5 pages, not only what the government argued in the white paper (including its extensive section 1119 argument), but also the Treason Clause question they didn’t address.

And look at what she’s refuting here. She says the Executive “unilaterally authorized” Awlaki’s killing. She suggests they did so via a covert op.

In this section, she doesn’t once mention the Authorization to Use Military Force the Administration tries to yoke CIA actions onto, in spite of her discussion of the AUMF earlier in her ruling. (Update: Though she does introduce her Treason section by saying, “If the War on Terror is indeed a war declared by Congress pursuant to its constitutional power, and if Al-Awlaki was a combatant in that war, then he is a traitor.”)

In Colleen McMahon’s 5-page detour, having read a slew of classified declarations on the legality of the Awlaki killing — including CIA’s rationale for invoking Glomar — she addresses this killing as a covert operation authorized “unilaterally,” with no mention of the AUMF attaching Congressional authorization to the killing.

Perhaps that’s just her skepticism about whether the AUMF applies away from the “hot” battlefield; elsewhere, she notes that Awlaki “was located about 1500 miles from Afghanistan, in Yemen, a country with which the United States is not at war (indeed, which the United States counts as an ally).” That is, perhaps she just doesn’t buy the Administration’s arguments about the global battlefield.

But I find it very telling that a Judge who has read classified declarations from several agencies (and went on to write her own classified ruling, in addition to the public one) assesses the legality of the Awlaki killing as if it were solely based on Article II authority.

The War and Intelligence behind Anwar al-Awlaki’s Targeting

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Believe it or not, there’s a fascinating debate going on over at NRO. First, Charles Krauthammer points to the muddle of the Administration’s white paper, which could have (he argues) just authorized Awlaki’s killing under the laws of war.

Unfortunately, Obama’s Justice Department memos justifying the drone attacks are hopelessly muddled. They imply that the sole justification for drone attack is imminent threat — and since al-Qaeda is plotting all the time, an al-Qaeda honcho sleeping in his bed is therefore a legitimate target.

Nonsense. Slippery nonsense. It gives the impression of an administration making up criteria to fit the president’s kill list. No need to confuse categories. A sleeping Anwar al-Awlaki could lawfully be snuffed not because of imminence but because he was a self-declared al-Qaeda member and thus an enemy combatant as defined by congressional resolution and the laws of war.

Nowhere, unfortunately, does Krauthammer consider why they didn’t do this — or indeed look more closely at the details behind Awlaki’s killing.

Kevin Williamson takes issue with that, reviewing both Awlaki’s lack of indictment after 9/11, but also expressing doubt that Awlaki moved beyond propaganda.

There is a difference between sympathizing with our enemies and taking up arms against the country; there is even a difference between actively aiding our enemies and taking up arms against the country, which is why we have treason trials rather than summary execution.

The question of whether al-Awlaki in fact took up arms against the United States is unanswered, at least in my mind. The evidence suggests that he was very much the “bin Laden of the Internet” rather than a man at arms. What perplexes me is that so many conservatives trust the same government authorities who got it so spectacularly wrong about al-Awlaki the first time around — feting him at the Pentagon, treating him as an Islamic voice of reason — to get it right the second time around. This is not a libertarian criticism but a conservative one. It is entirely possible that the same unique strain of stupidity that led to al-Awlaki’s being invited to the Pentagon as an honored guest of the U.S. military is alive and well in the Obama administration. This is precisely why we have institutions such as the separation of powers, congressional oversight, and trials. Killing a U.S. citizen in the heat of battle is one thing, but Al-Awlaki was not killed in a battle; he was not at arms, but at breakfast. Enemy? Obviously. Combatant? Not obviously.

And then Andrew McCarthy writes in to suggest that Jane Fonda would have made the Kill List had we had one during Vietnam.

Now aside from McCarthy (who serves here only as a warning in where this is going), both these contributions are worth reading.

But what both are missing are the known details about the development of intelligence on Anwar al-Awlaki between the time he was first targeted, on December 24, 2009, and the time he was killed, on September 30, 2011. And while I can’t claim to know the classified intelligence, there’s enough in the public record that ought to give both men more nuance in their arguments. Three key points I lay out in more detail here:

  • Awlaki was first targeted, by the military and before the OLC memo the white paper is based on was written, at a time when the intelligence community did not consider him operational.
  • During negotiations for a plea agreement that never happened, Umar Farouk Abdulmutallab implicated Awlaki in a clearly operational role, but after plea negotiations fell apart, that testimony was never presented in an antagonistic courtroom (indeed, the government itself told a significantly different story at Abdulmutallab’s trial).
  • By the time Awlaki was killed, the government likely had additional evidence suggesting Awlaki’s role in actual plots — notably the October 2010 toner cartridge plot — was weaker than the “senior operational leader” role they invoked when they killed him.

The one time we presumably did try to kill Awlaki under the Krauthammer standard — even the government now says — he did not fit that standard. There was probably a moment to kill Awlaki under that standard (if you ignore that the government was only at this point formalizing AQAP’s status as a terrorist group) around February 2010, before the white paper was written. But by the time we did kill him, not only were there unidentified reasons to get CIA involved (probably having to do with the unreliability of Ali Abdullah Saleh), but the contorted pre-crime standard of imminence John Brennan described probably was what the government was working with (as well as, I suspect, a theory that made Awlaki’s propaganda into an act of war), because the intelligence implicating Awlaki had gotten weaker over time.

There are probably multiple reasons why the argument in support of Awlaki’s killing is so contorted. But one of them appears to be changes in the intelligence the government had implicating him.

Which is why Williamson is ultimately correct. This is why we have courts and separation of powers.

The CIA Glomared Their Own Public Speech

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I’ve been reading the Colleen McMahon ruling on the ACLU Awlaki FOIA again in light of the release of the white paper. And I realized that the CIA must be treating the public targeted killing speech of CIA General Counsel Stephen Preston with a “No Number, No List” declaration — a modified Glomar invocation that admits the CIA has documents responsive to FOIA, but refuses to say how many or what they entail. That’s interesting, because it demonstrates that the CIA is refusing to admit that the analysis Preston laid out pertaining to lethal covert operations has a tie to Anwar al-Awlaki’s death.

Admittedly, this all should have been clear to me when I first went looking for mentions of Preston’s speech last June. After all, when CIA Clandestine Services Director John Bennett explained why CIA was shifting from a Glomar (not admitting they had any documents) to a No Number No List (admitting they had some, but refusing to list them) declaration last June, he specifically admitted the CIA had Eric Holder and John Brennan’s targeted killing speeches in their files, but did not admit they had the one made by CIA’s own General Counsel.

Several developments have occurred subsequent to the issuance of Plaintiffs’ FOIA requests and the filing of these lawsuits that have caused the CIA to reconsider its response, as described further below. Those events include several speeches by senior U.S. officials that address significant legal and policy issues pertaining to U.S. counterterrorism operations and the potential use of lethal force by the U.S. government against senior operational leaders of al-Qa’ida or associated forces who have U.S. citizenship. In light of these recent speeches and the official disclosures contained therein, the CIA decided to conduct a reasonable search for records responsive to the ACLU’s request. Based on that search, it has determined that it can now publicly acknowledge that it possesses records responsive to the ACLU’s FOIA request. As described below, however, the CIA cannot provide the number, nature, or a categorization of these responsive records without disclosing information that continues to be protected from disclosure by FOIA exemptions (b) (1) and (b) (3).

[snip]

These records include, for example, the speech that the Attorney General gave at Northwestern University Law School on 5 March 2012 in which he discussed a wide variety of issues pertaining to U.S. counterterrorism operations, including legal issues pertaining to the potential use of lethal force against senior operational leaders of al-Qa’ida or associated forces who have U.S. citizenship. The Attorney General explained that under certain circumstances, the use of lethal force against such persons in a foreign country would be lawful when, among other things, “the U.S. government . . determined, after a thorough and careful review, that the individual pose[d] an imminent threat of violent attack against the United States.” These records also include the speech that the Assistant to the President for Homeland Security and Counterterrorism gave on 30 April 2012, in which he addressed similar legal and policy issues related to the U.S. Government’s counterterrorism operations. Because the CIA is a critical component of the national security apparatus of the United States and because these speeches covered a wide variety of issues relating to U.S. counterterrorism efforts, it does not harm national security to reveal that copies of the speeches exist in the CIA’s files. And because these speeches refer to both the “legal basis” for the potential use of lethal force against U.S. citizens and a review “process” related thereto, the speeches are responsive to these two categories. [my emphasis]

By comparison, DOD (which also invoked No Number No List) did admit that Jeh Johnson’s speech was responsive to ACLU’s FOIA in their declaration.

Now, of all the reasons Bennett lists why CIA must use a No Number No List invocation –whether CIA was involved in Awlaki’s death and whether they can use drones — only one really seems to describe why could not acknowledge that Preston’s speech is responsive to ACLU’s FOIA. CIA doesn’t want you to know that CIA can kill US citizens.

Although it has been acknowledged in the Attorney General’s speech and elsewhere that, as a legal matter, a terrorist’s status as a citizen does not make him or her immune from being targeted by the U.S. military, there has been no acknowledgement with respect to whether or not the CIA (with its unique and distinct roles, capabilities, and authorities as compared to the U.S. military) has been granted similar authority to be directly involved in or carry out such operations.

[snip]

In this case, if it were revealed that responsive OLC opinions pertaining to CIA operations existed, it would tend to reveal that the CIA had the authority to directly participate in targeted lethal operations against terrorists generally, and that this authority may extend more specifically to terrorists who are U.S. citizens.

But I think it’s more than that. After all, Preston used a hypothetical that definitely admitted the possibility CIA would be asked to kill on covert operations, if not Americans specifically.

Suppose that the CIA is directed to engage in activities to influence conditions abroad, in which the hand of the U.S. Government is to remain hidden, – in other words covert action – and suppose that those activities may include the use of force, including lethal force.

I keep coming back to what makes Preston’s speech different from all the others given at the time (which were invoked in FOIA responses, even while they also didn’t mention Awlaki by name).

Preston makes it clear that this lethal authority can come exclusively from Article II power.

Let’s start with the first box: Authority to Act under U.S. Law.

First, we would confirm that the contemplated activity is authorized by the President in the exercise of his powers under Article II of the U.S. Constitution, for example, the President’s responsibility as Chief Executive and Commander-in-Chief to protect the country from an imminent threat of violent attack. This would not be just a one-time check for legal authority at the outset. Our hypothetical program would be engineered so as to ensure that, through careful review and senior-level decision-making, each individual action is linked to the imminent threat justification.

A specific congressional authorization might also provide an independent basis for the use of force under U.S. law.

In addition, we would make sure that the contemplated activity is authorized by the President in accordance with the covert action procedures of the National Security Act of 1947, such that Congress is properly notified by means of a Presidential Finding.

Sure, he mentions that a congressional authorization — like the AUMF — might also provide such authority. But it’s just gravy on top of a steaming pile of biscuits, a little extra flavor, but not the main course.

Preston also doesn’t mention a key part of the National Security Act — the purported prohibition on covert ops violating US law. On the contrary, Preston’s “box” suggests the only analysis needed to decide whether a lethal covert mission is legal under US law is that Presidential order.

So it’s not just that CIA doesn’t want Americans to know the CIA can kill you. It also doesn’t want to know that CIA believes it can kill you solely on the say-so of the President.

The “Darker Side” to Dual Citizenship

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A central thrust to Peter Schuck’s argument that it should be easier to deny citizens of judicial due process is that there are so many dual citizens. And dual citizenship, he says, has a darker side.

Dual citizenship has proliferated as easier travel and cosmopolitan mobility have fostered international relationships, which lead to more naturalizations and more marriages between people of different nationalities, who in turn can often transmit their different citizenships to their U.S.-born children. Government policies, both here and abroad, have also increased dual citizenship, mostly for good reasons. Traditionally, the State Department opposed dual citizenship out of concern about conflicted loyalties, military service requirements, diplomatic protection burdens and the like. Today the government no longer resists it, recognizing the legitimate causes of dual citizenship, the practical obstacles to preventing it and the fact that, in practice, it causes little harm.

But there remains a darker side to dual citizenship: Some citizens who spend most of their lives abroad now have only notional ties to the United States rather than a genuine communal or emotional connection. Al Qaeda will surely focus recruitment efforts on this group, even though only a few will turn on their country.

Which brings us to the case of Awlaki, a dual citizen of the United States and Yemen. The government claimed there was hard, actionable intelligence that he had plotted to kill Americans, and that he was our citizen in name only. He refused to return to the U.S. and could not be captured for interrogation and trial without putting troops on the ground and in danger (and perhaps not even then).

Does the Constitution really require that he receive the judicial process owed to a citizen who lives in our society and is charged with a serious crime? I think not.

I’m a dual citizen, having gotten Irish citizenship through my spouse. Does that mean I should forgo judicial process because I’m a suspect Irish terrorist? Was Peter King? Are Israeli-American dual citizens — a pretty common dual citizenship — suspect of being terrorists as well?

Of course, Schock doesn’t actually connect dual citizenship with increased likelihood that person will declare himself an enemy of the state (he even suggests that native-born Nidal Hasan was just dual-citizens Awlaki’s cat’s paw, all the evidence in the Webster report notwithstanding). He just uses it — and the prospect of all these dark scary people wandering around with US passports — to invoke fear before he proposes limiting due process to citizens.

Maybe his fear is what has led him, in the very same piece, to be so confused. He applauds our rigid treason laws, a stance utterly at odds with his suggestion suspect dual citizens should get different judicial due process.

The court has also held that the government may not take away one’s citizenship against one’s will, regardless of one’s actions, except for treason, which the Constitution properly makes hard to prove if, like Awlaki, you are not under a U.S. court’s jurisdiction.

How do you applaud the necessity of a court judgement, with rules about the standard of evidence, before someone gets labeled a traitor, and at the same time suggest that citizens (he really doesn’t limit it to dual citizens) should not have judicial process before they’re killed?

Apparently we now have Yale law professors so terrified by dual citizens he has decided American citizens — dual citizen or not — should have a lower standard of due process to be killed than to retain their citizenship.

Has the Government Left Minh Quang Pham “Languishing Forever”?

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Screen shot 2013-02-13 at 3.55.43 PMJohn Brennan made two interesting comments about FBI interrogation at his hearing last week. First, in response to a Martin Heinrich question, he suggested that the Army Field Manual shouldn’t be the interrogation standard for the entire government because the FBI “has its own processes and procedures.”

HEINRICH: Thank you. Do you believe that all agencies of the United States government should be held to the interrogation standards that are laid out in the Army Field Manual as it — as currently required by Executive Order 13491? And do you support efforts to codify those requirements into law?

BRENNAN: The Army Field Manual certainly should govern the U.S. military’s detention and interrogation of individuals.

The FBI has its own processes and procedures and laws that govern its activities. So what I wanted to do is to make sure that, you know, appropriate sort of attention is paid to FBI as opposed to the military.

Then, when Brennan was very patiently explaining to Marco Rubio that his ideas about detention and interrogation are erroneous and stupid (my words), he said this about FBI interrogations.

BRENNAN: No. Again, it’s tailored to the circumstances. Sometimes an individual will be Mirandized. Sometimes they will not be Mirandized right away. Mirandizing an individual means only that the information that they give before then cannot be used in Article III court.

But, in fact, the FBI do a great job as far as eliciting information after they’re Mirandizing them, and so they can get information as part of that type of negotiation with them, let them know they can in fact languish forever, or we can in fact have a dialogue about it intelligently.

“They can languish forever”? I didn’t think the Sixth Amendment had a “languish forever” exception.

But Brennan’s apparent belief there is one got me thinking about Minh Quang Pham, whom I wrote about here.

Pham is a Vietnamese immigrant to the UK who traveled to Yemen in December 2010 and went on to help Samir Khan produce Inspire magazine. He was arrested to great fanfare last June, when his May 24 indictment was purportedly unsealed. Though his docket shows no sign of that unsealing; rather, it says the indictment was unsealed two months later. He returned to the UK in December 2011, where he was held in immigration detention. It’s unclear whether he’s still there — the Brits can hold someone in detention indefinitely and extradition to the US has been taking a lot of time of late — or whether he was moved here either in June when DOJ had a big dog and pony show over his arrest or in August when the docket says his previously unsealed indictment was unsealed. That’s the last thing that appears in Pham’s docket. I’ve asked SDNY for a status report but have not yet gotten an answer.

In any case, one of the last people with ties to the UK or US to spend time with Anwar al-Awlaki and, especially, Samir Khan is languishing … somewhere.

Setting Up a Department of Pre-Crime, Part One: Why Are We Doing This?

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I’m going to have a series of posts on the proposed FISA Drone (and/or Targeted Killing) Court, starting with a description of why I think there’s movement to do this now.

There are, as I see it, three different motivations among those now backing a FISA Drone (and/or Targeted Killing) Court.

First, there’s Dianne Feinstein. Now that the white paper has been released — and the actual OLC memos to the other members of her committee — it has been made clear that the program she has been assuring Americans, based on her Gang of Four review, is lawful is not the slam dunk she made it out to be. And while Mike Rogers’ constituents may not object to his continued reassurances that it is okay for the President to kill an American based on his sole authority (though they may; we shall see), DiFi’s are likely to. (Saxby Chambliss, of course, is not running for re-election; Dutch Ruppersberger has been rather quiet in the last few days). So to the degree that DiFi takes a lead on this issue, it is an effort to put a palatable spin on something she has been spinning as legal for years.

If a FISA Drone (and/or Targeted Killing) Court is necessary and justified, it should have been in 2009, when she took over the Chair at Senate Intelligence Committee (or at the very least, by January 2010, when it became clear the Obama Administration was targeted Anwar al-Awlaki). But somehow, DiFi is only backing the idea now that her poor judgment in letting the killings continue without oversight is being exposed. To some degree, I’d put Patrick Leahy (who doesn’t want to be tough with Obama) and Chuck Grassley in this position, as well.

Then there’s John Brennan, who in response to Angus King’s suggestion of a FISA Drone (and/or Targeted Killing) Court said,

And that’s why I do think it’s worthy of discussion. And the point particularly about due process really needs to be taken into account because there’s not a different standard as far as if a U.S. citizen joins Al Qaida, you know, in terms of the intelligence base or whatever. But American citizens by definition are due much greater due process than anybody else by dint of their citizenship.

I think this is a very worthwhile discussion. I look forward to talking to the committee and others about it. What’s that appropriate balance between executive, legislative and judicial branch responsibilities in this area?

I think Brennan’s motivation is far better summed up in the response he gave Jello Jay Rockefeller, who basically used his second round question to deliver a very sloppy blow job to Brennan. In response, Brennan got firey.

I want every member of this committee to be an ardent advocate, proponent, and defender of the men and women of the Central Intelligence Agency.

And I see it as my obligation to represent them to you on their behalf, so that when times get tough and when people are going to be criticizing and complaining about the CIA, I have all of you to say you knew about what the CIA was doing, you supported it, and you will defend it.

My impression is that, contrary to the moral rectitude myth, Brennan is a pretty amoral guy. It’s not right and wrong that motivates him; it’s allegiance, and as CIA Director (and, probably, even now) his allegiance is going to be to the institution.

And as he said in no uncertain terms to Jello Jay, he believes it is the role of the Intelligence Committee to support and defend the illegal actions the CIA does.

Brennan likely also knows that the easiest way to give the Committee cover for ardently defending what is, at its core, indefensible, and the only way to do so without affecting the flexibility accorded to the Executive Branch, is to let them pawn off the moral questions to a court operating in secret. Read more →

They Knew the Evidence against Anwar al-Awlaki Was Weak When They Killed Him

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In case you don’t want to read these two long posts, I want to point to two passages from the white paper that show, on two key points, the government wasn’t even claiming Anwar al-Awlaki was the “senior operational leader of Al Qaeda or associated forces” they keep saying he was when they killed him.

First, on the issue of whether someone is an imminent threat or not, the white paper says a person is an imminent threat if he has “recently been involved in activities posing an imminent threat against the US” and has not renounced those activities.

Moreover, where the al-Qa’ida member in question has recently been involved in activities posing an imminent threat of violent attack against the United States, and there is no evidence suggesting that he has renounced or abandoned such activities, that member’s involvement in al-Qa’ida’s continuing terrorist campaign against the United States would support the conclusion that the member is an imminent threat.

And this part of the definition requires only that the target be an al Qaeda member, not a “senior operational leader.”

And then, when examining whether killing an American overseas counts as murder, the white paper says the President can order the murder of an al Qaeda member who poses an imminent threat to the US.

Similarly, under the Constitution and the inherent right to national self-defense recognized in international law, the President may authorize the use of force against a U.S. citizen who is a member of al-Qa’ida or its associated forces who poses an imminent threat of violent attack against the United States.

Again, the American need only be a member, not a senior operational leader.

These are, to be sure, two short passages in a much longer memo. But consider how they work with the 3-part criteria laid out in the memo, which requires only that 1) John Brennan determines that someone is an imminent threat,  2) John Brennan determines that capture is not feasible, and 3) that the killing be consistent with applicable law of war principles.

Once you get to that “imminence” designation, you can kill the American, based on John Brennan’s say so. And “imminence,” for these purposes, can be as weak as past involvement (not leadership — and remember they once said that actions that lead to actions that pose a threat can get you killed, too) in activities that pose an imminent threat of violent attack on the US, so long as you haven’t formally renounced those activities.

This, I strongly suspect, is why Ron Wyden keeps asking “Does the President have to provide individual Americans with an opportunity to surrender before using lethal force against them?” Because as the white paper stands, being uninvolved with any attack for at least a year and perhaps as long as 20 months — which may well be the case with Awlaki — doesn’t count as renunciation.

I have suggested this language may have gotten introduced in a second memo, not long before they killed Awlaki in September 2011, at a point when all the evidence against him was very stale and had gotten weaker over time (the government moved to protect something under CIPA in the UndieBomber case just a week before Awlaki was killed, though that could have been the first memo).

Whether that’s what happened, though, it seems highly unlikely the language would be in the white paper if it weren’t in some document somewhere authorizing Awlaki’s killing.

Which seems to suggest they couldn’t prove — even if they once had been able to — that Awlaki was the senior operational leader they have insisted him to be. And so they wrote the memo to authorize the killing anyway.