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Obama Doesn’t Know Why the Fuck He’s Entitled to Kill Al-Awlaki, He Just Is, Damnit

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The most striking aspect of the government’s motion to dismiss the ACLU/CCR lawsuit challenging the use of targeted killing is that the government does not commit to the basis for its authority to kill an American citizen like Anwar al-Awlaki with no review.

This starts as soon as the filing tries to lay the ground work for unchecked authority under the AUMF. It doesn’t commit to whether Al Qaeda in the Arabian Peninsula is part of al Qaeda itself, or is instead just closely enough associated to count under the AUMF.

The United States has further determined that AQAP is an organized armed group that is either part of al-Qaeda, or is an associated force, or cobelligerent, of al-Qaeda that has directed armed attacks against the United States in the noninternational armed conflict between the United States and al-Qaeda that the Supreme Court recognized in Hamdan v. Rumsfeld, 548 U.S. 557, 628-31 (2006).

[snip]

Furthermore, as noted above, the Executive Branch has determined that AQAP is an organized armed group that is either part of al-Qaeda or, alternatively, is an organized associated force, or cobelligerent, of al-Qaeda that has directed attacks against the United States in the noninternational armed conflict between the United States and al-Qaeda that the Supreme Court has recognized (see Hamdan, 548 U.S. at 628-31). [my emphasis]

Though note the gigantic slip here: the AUMF only declares war against those “those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons” (when AQAP didn’t exist in its current form), not those who have attacked us since. This “either/or” statement only claims that AQAP is part of the same war, not that it had any role in 9/11, so it’s totally bogus in any case, even without the betrayal of their lack of confidence in both of these claims with the either/or construction.

Presumably to tie AQAP more closely to the AUMF, the government then notes that the Treasury declared AQAP a terrorist organization (not noting that that happened eight months after al-Awlaki was first targeted for assassination), which in turn relies upon a Presidential declaration issued roughly around the same time as the AUMF.

Based in part on this information, on July 16, 2010, the U.S. Department of the Treasury issued an order designating Anwar al-Aulaqi a “Specially Designated Global Terrorist” (SDGT) for, inter alia, “acting for or on behalf of al-Qaeda in the Arabian Peninsula (AQAP) . . . and for providing financial, material or technological support for, or other services to or in support of, acts of terrorism[.]” Designation of ANWAR AL–AULAQI Pursuant to Executive Order 13224 and the Global Terrorism Sanctions Regulations, 31 C.F.R. Part 594, 75 Fed. Reg. 43233, 43234 (July 23, 2010).1

1 This designation was issued pursuant to the President’s authority under the International Emergency Economic Powers Act (“IEEPA”), 50 U.S.C. §§ 1701-06. After the terrorist attacks of September 11, 2001, the President issued Executive Order No. 13224 (“E.O. 13224”), 66 Fed. Reg. 49,079 (2001), effective September 24, 2001, declaring a national emergency with respect to the “grave acts of terrorism . . . and the continuing and immediate threat of further attacks on United States nationals or the United States.” See E.O. 13224, Preamble. The Secretary of State previously designated AQAP as a Foreign Terrorist Organization on January 19, 2010, pursuant to her powers under the Antiterrorism and Effective Death Penalty Act, 8 U.S.C. § 1189. (See http://www.state.gov/r/pa/prs/ps/2010/01/135364.htm).

Gosh! That’s almost like AQAP was included in the AUMF back in 2001, the reliance on a declaration made just days after the AUMF itself.

Except it’s not. (And the argument itself presumes that anyone Timmeh Geithner wants to call a terrorist can be killed with no due process, whether or not they have a tie to Al Qaeda.)

You can tell DOJ’s lawyers recognize this to be a gaping hole in their argument, because they repeatedly claim–without providing any evidence–that they have been authorized by “the political branches” to use all means against the threat that Al-Awlaki is part of.

In particular, plaintiff’s requested relief would put at issue the lawfulness of the future use of force overseas that Executive officials might undertake at the direction of the President against a foreign organization as to which the political branches have authorized the use of all necessary and appropriate force.

[snip]

More broadly, the Complaint seeks judicial oversight of the President’s power to use force overseas to protect the Nation from the threat of attacks by an organization against which the political branches have authorized the use of all necessary and appropriate force, in compliance with applicable domestic and international legal requirements, including the laws of war. See Authorization for Use of Military Force (AUMF), Pub. L. No. 107 40, 115 Stat. 224 (2001) (Joint Resolution of Congress signed by the President). [my emphasis]

Last I checked, only one political branch has the authority to declare war, Congress. Not multiple political branches. That the Administration has even invoked political branches, plural, for their authority to use force–basically arguing “we and that rump organization better known as Congress have authorized this, so there!”–demonstrates the audacity of their claim to self-authorize using unlimited power.

Presumably to reinforce the magic power of this strange invocation of the political branches, the filing then argues that judges aren’t equipped “to manage” the Executive Branch.

The Judiciary is simply not equipped to manage the President and his national security advisors in their discharge of these most critical and sensitive executive functions and prescribe ex ante whether, where, or in what circumstances such decisions would be lawful. Whatever the limits of the political question doctrine, this case is at its core.

Of course, that’s not what the suit asks the court to do at all. It asks the court to review the decisions of the Executive Branch, not least to see whether its actions comply with the terms which that other political branch–the one that actually has the authority to declare war–has laid out.

Review … manage.

What’s the difference if an American citizen’s life is at stake?

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But Who Has JSOC’s Back?

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Michael Hayden has another tired whine at CNN about Obama’s treatment of the torture program. The entire logic of the piece is predictably silly. It goes something like this:

  1. ACLU and CCR are suing the government for targeting American citizen Anwar al-Awlaki with no due process.
  2. According to Hayden, the targeting of Awlaki was “Authorized by the president, approved as legal, briefed to Congress.”
  3. According to unnamed legal scholars, the suit has little chance of success.
  4. But Obama’s DOJ released OLC memos on the torture program in response to an ACLU suit and investigated the torture of detainees that exceeded DOJ guidelines and therefore was illegal.
  5. This makes Hayden mad because it constitutes “exposing a previously authorized program for apparent political purposes.”
  6. Oh, and by the way, the UN rapporteur for extrajudicial killings also has a problem with targeted killings (and not just those of US citizens), though I’m not entirely sure what Hayden thinks Obama should do about that.

I guess this piece is supposed to be a warning to the White House–which has already assured CIA that it won’t be prosecuted for breaking the law on Obama’s orders–that it needs to make triple sure that none of those with the legal means to do so hold the CIA responsible for the illegal things it is doing. The whole thing would just make more sense if Hayden hadn’t personalized it so much (because, after all, he probably ought to be more concerned about a future President trying to distinguish herself from Obama’s abysmal record in this area). But I get it–Hayden lost some arguments with the Obama Administration and so this whole issue is very very personal.

And I wonder, really, does Hayden believe that Presidents really do have unlimited ability to make laws disappear? And if Hayden is so certain those unnamed legal scholars are correct about the legality of the assassination program and the poor chances the ACLU/CCR suit will succeed, then why complain? Or maybe, given the contortions that Obama’s DOJ is going through in contemplation of litigating the ACLU/CCR suit, Hayden’s confidence that the suit won’t succeed is merely bravado?

But the other amusing thing about this screed is its focus on the CIA. Hayden treats this as danger experienced primarily by the CIA.

The CIA is asked to do things no one else is asked — or even allowed — to do. And when CIA officers agree to do these things (after appropriate authorization, judgment with regard to lawfulness and congressional notification), they believe that they have a contract with their government, not a particular administration, that the government will have their back legally, ethically and politically.That belief was shattered by the Obama administration’s actions. Agency officers were shown that those guarantees have the half-life of one election cycle in the American political process. No wonder one astute observer of the agency likened it to a car bomb going off in the driveway at Langley.

But what about JSOC?

After all, Awlaki has been on JSOC’s kill list for longer than he has been on CIA’s. According to reporting, JSOC is as involved in the targeted killing program as CIA (as they were in the torture program). Why isn’t retired General Hayden worried about those killers?

Granted, there is a distinction. When civilians at the CIA target people for assassination, particularly those who pose no imminent threat, the claim that the killing is legal under the law of war is much weaker.

But for some reason, JSOC doesn’t have the need to trot out spokesmen to defend itself every third month, but CIA does.

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Obama Administration Deliberates Whether to Tack to the Right of David Rivkin

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Go read this entire Charlie Savage article describing the deliberations within the Administration on how to respond to ACLU/CCR’s lawsuit challenging the government’s ability to target American citizens for assassination with no due process. The whole thing makes me want to cry about what our country has become (Congratulations Osama bin Laden! You’ve won!).

But it was this paragraph that really made me nauseous:

“I’m a huge fan of executive power, but if someone came up to you and said the government wants to target you and you can’t even talk about it in court to try to stop it, that’s too harsh even for me,” [David Rivkin] said.

Rivkin is, of course, the former Reagan and Poppy Bush official that Republicans like to roll out any time they need an absolute unquestioning supporter of unlimited executive power. His job is effectively to put legal lipstick on the power hungry pig that has grown out of 9/11.

But he refuses to endorse the legal approach Obama’s DOJ is reportedly considering: to try to get the Awlaki suit dismissed by invoking state secrets.

And it’s not just Rivkin being contrary for partisan reasons. He endorses another of the approaches the Administration is considering, just telling the judge to butt out because this is a matter of politics.

Mr. Rivkin said he favored a different argument: a declaration that in war who can be targeted — and where — is a “political question” for the executive branch to decide, not judges.

Yup, according to Savage’s report, a Democratic DOJ is actually contemplating arguing to a judge that during wartime, the President can choose to kill anyone he wants to anywhere he wants to.

If the President kills someone, they’re preparing to argue, it’s legal.

Which gives Savage another opportunity to rely on a right wing lawyer to point out just how crazy are the arguments the Obama DOJ is contemplating. In this case, former W Administration official Matthew Waxman notes that even if it were true that the President can choose to kill whoever he wants whereever he wants during war, we’re not at war with Yemen!

Inside the administration, that argument is also seen as attractive. But invoking it could give the court an opportunity to reject the idea that an armed conflict with Al Qaeda exists in Yemen, said Matthew Waxman, who was the Pentagon’s top detainee affairs official under the second President Bush.

“The more forcefully the administration urges a court to stay out because this is warfare, the more it puts itself in the uncomfortable position of arguing we’re at war even in Yemen,” he said. “The worst outcome would be if the court rules that the president is not authorized to wage war against Al Qaeda beyond combat zones like Afghanistan.”

Of course, no one seems to be contemplating actually litigating this case, actually allowing a judge to rule on whether it is legal to assassinate American citizens with no due process.

And these are the lawyers guarding our Constitution.

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Eight Months after Putting Anwar al-Awlaki on Kill List, DOJ Considers Charges

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Back in January, Dana Priest first revealed that Anwar al-Awlaki was on a JSOC kill list and was being considered for a CIA kill list. Now, eight months later, DOJ is considering charging him.

The Obama administration is considering filing the first criminal charges against radical cleric Anwar al-Awlaki in case the CIA fails to kill him and he’s is captured alive in Yemen.

[snip]

Such charges, however, would come with political and intelligence-gathering risks. Counterterrorism officials regard al-Awlaki as a terrorist operative, not just a preacher, but they have revealed few specifics. Charging al-Awlaki with having direct involvement in terrorism could require the U.S. to reveal evidence gleaned from foreign wiretaps or confidential informants.

Now, it appears DOJ sources are throwing some baloney in with this news. For example, the claim that criminal charges might require the US to reveal evidence collected using wiretaps doesn’t sound all that awful, given that the contents of some of the wiretaps of al-Awlaki’s communications with Nidal Hasan have already been published. The government didn’t seem to have a problem leaking these intercepts earlier this year…

And the claim that they’re charging al-Awlaki just in case they happen to capture him alive rather than dead (opps!)? I’d suggest it probably has a lot more to do with the suit CCR and ACLU have taken against the government. I’m guessing that following shortly on formal charges, DOJ will tell the courts they can’t litigate the al-Awlaki suit because it pertains to an ongoing criminal investigation. Voila! No discovery in the lawsuit!!

Particularly given this detail:

If the Justice Department decides to charge al-Awlaki, it’s likely he would not be indicted. Rather, charges are more likely to take the form of an FBI complaint. That’s because an indicted suspect automatically gets the right to an attorney if he is captured, making it harder for authorities to question him.

In other words, this doesn’t appear to be an effort to finally use due process before targeting an American citizen with assassination. Rather, it seems to be more about closing off legal options to that American citizen.

Update: Here’s the joint ACLU/CCR statement on this:

Our organizations have long stated that if the government has evidence that Anwar Al-Aulaqi is involved in terrorist activity, it should present that evidence to a court – not authorize his execution without charge or trial. Now, months after the government announced its intent to kill Al-Aulaqi, it may finally bring charges against him. This would be a step in the right direction. The constitutional guarantee of due process relies on the critical distinction between allegations and evidence. If the reports that charges may be brought against Al-Aulaqi are true, the fact that it has taken the government this long – months after having announced his death sentence – suggests that, in this case, the government’s allegations were far ahead of its evidence.

While bringing charges against Al-Aulaqi based on credible evidence would be a step in the right direction, it would not mean that he could now be targeted for killing without trial. It is well established that the government cannot use extrajudicial killing to punish people for past acts, but only to prevent grave and imminent threats. A criminal charge for past crimes does not provide a license to kill.

We continue to believe that the courts must play a role in establishing legal standards for when the government can take the life of one of its own citizens without charge or trial. For that reason, we will continue with our litigation.”

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ACLU and CCR Sue to Stop Targeted Killings

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From a joint press release:

The American Civil Liberties Union and the Center for Constitutional Rights (CCR) today filed a lawsuit challenging the government’s asserted authority to carry out “targeted killings” of U.S. citizens located far from any armed conflict zone.

The authority contemplated by the Obama administration is far broader than what the Constitution and international law allow, the groups charge. Outside of armed conflict, both the Constitution and international law prohibit targeted killing except as a last resort to protect against concrete, specific and imminent threats of death or serious physical injury. An extrajudicial killing policy under which names are added to CIA and military “kill lists” through a secret executive process and stay there for months at a time is plainly not limited to imminent threats.

“The United States cannot simply execute people, including its own citizens, anywhere in the world based on its own say-so,” said Vince Warren, Executive Director of CCR. “The law prohibits the government from killing without trial or conviction other than in the face of an imminent threat that leaves no time for deliberation or due process. That the government adds people to kill lists after a bureaucratic process and leaves them on the lists for months at a time flies in the face of the Constitution and international law.”

The groups charge that targeting individuals for execution who are suspected of terrorism but have not been convicted or even charged – without oversight, judicial process or disclosed standards for placement on kill lists – also poses the risk that the government will erroneously target the wrong people. In recent years, the U.S. government has detained many men as terrorists, only for courts or the government itself to discover later that the evidence was wrong or unreliable.

According to today’s legal complaint, the government has not disclosed the standards it uses for authorizing the premeditated and deliberate killing of U.S. citizens located far from any battlefield. The groups argue that the American people are entitled to know the standards being used for these life and death decisions.

“A program that authorizes killing U.S. citizens, without judicial oversight, due process or disclosed standards is unconstitutional, unlawful and un-American,” said Anthony D. Romero, Executive Director of the ACLU. “We don’t sentence people to prison on the basis of secret criteria, and we certainly shouldn’t sentence them to death that way. It is not enough for the executive branch to say ‘trust us’ – we have seen that backfire in the past and we should learn from those mistakes.”

CCR and the ACLU were retained by Nasser Al-Aulaqi to bring a lawsuit in connection with the government’s decision to authorize the targeted killing of his son, U.S. citizen Anwar Al-Aulaqi, whom the CIA and Defense Department have targeted for death. The complaint asks a court to rule that using lethal force far from any battlefield and without judicial process is illegal in all but the narrowest circumstances and to prohibit the government from carrying out targeted killings except in compliance with these standards. It also asks the court to order the government to disclose the standards it uses to place U.S. citizens on government kill lists. [my emphasis]

For the backup documentation, go here or here.

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Is the Government Using OFAC to Prevent Due Process?

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The ACLU and CCR just had a conference call to talk about their suit challenging the licensing scheme the Treasury Department’s Office of Foreign Asset Control uses to prevent lawyers from representing those on OFAC’s designated terrorist list. Much of the discussion pertained to whether Anwar al-Awlaki could be legitimately considered an enemy combatant given his alleged incitement of attacks on the US.

But I was most interested in the timing. As the CCR summary notes, Awlaki’s father, Nasser al-Awlaki, first retained the ACLU and CCR in “early July” to challenge the assassination order on his son on due process grounds. Within weeks, on July 16, 2010, the government designated Anwar al-Awlaki a specially designated global terrorist. At that point, ACLU and CCR had to stop their work on suing the government and apply for a license allowing them to represent the Awlakis. As ACLU Executive Director Anthony Romero noted, listing Awlaki put lawyers in neutral, “while we were in 3rd or 4th gear a few weeks ago” as they wait for the bureaucratic process of getting a license play out.

I asked whether they thought this was intentional–that is, whether they thought the government had designated Awlaki a terrorist so as to make it harder for the ACLU and CCR to represent him. Romero admitted the timing of the listing “did raise our eyebrows.” He said the timing raises the question of “whether OFA is being used to impede lawyers’ ability to challenge” programs like the kill list. And ACLU Attorney Ben Wizner noted how long after the government put Awlaki on the kill list it was before they started to designate him a terrorist and freeze his assets.

Implicit in my question was how the government knew the ACLU and CCR were representing the Awlakis. I will work to clarify that, though Romero did say that the lawyers on the case had traveled to Yemen and started meeting with the family.

In any case, add the timing of the government’s designation of Anwar al-Awlaki as a terrorist to the list of other things that already stink about the government’s efforts to kill him with no due process.

Note: The quotes in this are my transcriptions of the call itself. Since I’m mid-move, I didn’t manage to record the call, but will check the quotes for attribution and accuracy later this PM.

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ACLU, CCR Sue to Protect Anwar al-Awlaki’s Right to a Lawyer

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Some weeks ago, the ACLU and Center for Constitutional Rights had planned to sue the government on behalf of Anwar al-Awlaki’s father. But in remarkable bit of timing, the government designated Awlaki a specially designated terrorist, meaning ACLU and CCR would have to get a “license” before they could engage in a transaction like legal representation on behalf of Awlaki. So now, the two groups are suing to make such licensing illegal.

Glenn Greenwald has the full story:

Early last month, the ACLU and the Center for Constitutional Rights were retained by Nasser al-Awlaki, the father of Obama assassination target (and U.S. citizen) Anwar al-Awlaki, to seek a federal court order restraining the Obama administration from killing his son without due process of law.  But then, a significant and extraordinary problem arose:   regulations promulgated several years ago by the Treasury Department prohibit U.S. persons from engaging in any transactions with individuals labeled by the Government as a “Specially Designated Global Terrorist,” and those regulations specifically bar lawyers from providing legal services to such individuals without a special “license” from the Treasury Department specifically allowing such representation.On July 16 — roughly two weeks after Awlaki’s father retained the ACLU and CCR to file suit — the Treasury Department slapped that label on Awlaki.  That action would have made it a criminal offense for those organizations to file suit on behalf of Awlaki or otherwise provide legal representation to him without express permission from the U.S. Government.  On July 23, the two groups submitted a request for such a license with the Treasury Department, and when doing so, conveyed the extreme time-urgency involved:  namely, that there is an ongoing governmental effort to kill Awlaki and any delay in granting this “license” could cause him to be killed without these claims being heard by a court.  Despite that, the Treasury Department failed even to respond to the request.

Left with no choice, the ACLU and CCR this morning filed a lawsuit on their own behalf against Timothy Geithner and the Treasury Department.  The suit argues that Treasury has no statutory authority under the law it invokes — The International Emergency Economic Powers Act — to bar American lawyers from representing American citizens on an uncompensated basis.  It further argues what ought to be a completely uncontroversial point:  that even if Congress had vested Treasury with this authority, it is blatantly unconstitutional to deny American citizens the right to have a lawyer, and to deny American lawyers the right to represent clients, without first obtaining a permission slip from Executive Branch officials.

Click through for much more.

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Keep Your Declaration of Independence Right Next to Your Assassination Cards

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Call me crazy, but this is probably not exactly the kind of treatment Thomas Jefferson was thinking the Declaration of Independence would receive 234 years after he wrote it.

Many nights an item prompts a call to wake the NCTC director, Michael Leiter, 41, the junior member of the nighthawks. He displays a copy of the Declaration of Independence, next to a deck of baseball-style cards of high-value terrorist targets: “I keep the ones who are dead on top. It’s a little macabre, but that’s the world we live in.” When the NCTC calls in the middle of the night, he is often half-awake.

Among those cards, after all, is probably the one that signifies that the President has approved, with no due process, an order to assassinate US citizen Anwar al-Awlaki. That’s the kind of thing that Jefferson objected to when he called the following “Despotism”:

He has affected to render the Military independent of and superior to the Civil power.

[snip]

For Quartering large bodies of armed troops among us:

For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:

[snip]

For depriving us in many cases, of the benefits of Trial by Jury:

[snip]

For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:

While I’m making wildarsed Fourth of July guesses, let me also suggest that this kind of security porn–a 24-style terror play in 9 acts–is probably not exactly what Thomas Jefferson imagined as the role of the free press when he so furiously defended it.

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“It’d be easier to launch a Hellfire missile at a non-citizen than a citizen”

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The whole point of Joe Lieberman’s tea-bagger bait Terrorist Expatriation Act, according to his Republican House co-sponsor Charlie Dent, is to make it easier to launch Hellfire missiles at people. And Lieberman, too, ties his citizenship-stripping measure to Obama’s targeting of an American citizen with a predator drone.

Taking on critics who say his proposal goes too far, Lieberman pointed to news reports that President Barack Obama signed an order enabling the US military to kill US citizens like radical US-Yemeni cleric Anwar al-Awlaki.

“If the president can authorize the killing of a United States citizen because he is fighting for a foreign terrorist organization,” he said, “we can also have a law that allows the US government to revoke Awlaki’s citizenship.”

Lieberman said his proposal would make it harder for US nationals who cast their lot in with extremists, and train overseas, to return and carry out an attack, and if they do would make it possible to try them in military court.

“They will not enjoy the rights and privileges of American citizenship in the legal proceedings against them. That, I believe, will make America safer,” he said at a press conference with three other lawmakers.

“The US military may have more options to use necessary force to neutralize the threat, such as Anwar al-Awlaki, without the concerns associated with targeting an American citizen,” said Republican Representative Charlie Dent.

“I suspect it’d be easier to launch a Hellfire missile at a non-citizen than a citizen,” said Dent, referring to a weapon sometimes fired from US aerial drones at suspected terrorists.

Now, there’s a lot to loathe about this bill. Shane Kadidal describes the many ways in which it is illegal here.

But what I find most astounding about it is that Lieberman ties this not to actual military preparations against the United States (as he claims in his comments to Andrea Mitchell) but simply to “providing material support or resources to a foreign terrorist organization.” And while I’d be willing to consider the merits of deporting Congressman Peter King or former top Chiquita executives like Carl Lindner and Roderick Hills (though following the logic of Elena Kagan, we’d also have to deport Attorney General Holder), I’m also cognizant that the way the government currently uses material support charges, it is prone to ensnare people who donate socks or money, sometimes in the name of charity.

The logical endpoint of this, then, in the addled little brains of Joe Lieberman and Charlie Dent, is that we should consider drone strikes on brown people who might have a good faith belief that they’re engaging in charity. And not just that we should consider drone strikes, but we should try to make it easier to execute those drone strikes.

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Al-Awlaki Family: Let’s Make a Deal

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Glenn Greenwald just tweeted this fairly unsurprising article reporting that Anwar al-Awlaki’s family would like the US to take him off their kill lists.

His father, Nasser al-Awlaki, a former minister of agriculture and rector at the University of Sanaa, called on the US on Sunday to end the hunt for his son.

“If Washington stops targeting [him] by threatening to abduct, capture, or kill him, Anwar will cease his statements and speeches against it,” he told Al Jazeera.

Somehow, I think a lawsuit challenging the legal basis under which the US would kill a US citizen with no due process would be a lot more effective than this sort of offer.

What’s even more interesting about the story, however, is the claim from Yemen that there is not sufficient evidence to target al-Awlaki.

But Yemeni authorities said on Saturday that they had not received any evidence from the US to support allegations that the US-born al-Awlaki is recruiting for an al-Qaeda offshoot in Yemen.

“Anwar al-Awlaki has always been looked at as a preacher rather than a terrorist and shouldn’t be considered as a terrorist unless the Americans have evidence that he has been involved in terrorism,” Abu Bakr al-Qirbi, the Yemeni foreign minister, said.

His announcement came after a powerful Yemeni tribe threatened to use violence against anyone trying to harm al-Awlaki.

Recall that David Ignatius reported last month that the idea of targeting al-Awlaki first came from Yemen, not DC. Yemen requested that the US government conduct an intelligence collection-capture-kill operation against al-Awlaki last October.

Last October, the Yemeni government came to the CIA with a request: Could the agency collect intelligence that might help target the network of a U.S.-born al-Qaeda recruiter named Anwar al-Aulaqi?

What happened next is haunting, in light of subsequent events: The CIA concluded that it could not assist the Yemenis in locating Aulaqi for a possible capture operation. The primary reason was that the agency lacked specific evidence that he threatened the lives of Americans — which is the threshold for any capture-or-kill operation against a U.S. citizen. The Yemenis also wanted U.S. Special Forces’ help on the ground in pursuing Aulaqi; that, too, was refused.

Now, if powerful tribes are promising violence if al-Awlaki is targeted, I can imagine that Yemen might want to deny not only making this request, but also that sufficient intelligence exists to kill al-Awlaki.

But it raises the question of whether there really is any intelligence justifying al-Awlaki’s targeting. If Yemen, who first asked for us to move against al-Awlaki, now claims it has no justification to do so, then who does have intelligence justifying such an act?

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