First Gitmo Habeas Case Makes Way To SCOTUS

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In March of this year, Marcy reported about a Center for Constitutional Rights (CCR) petition to the Supreme Court on behalf of Guantanamo Lawyer Thomas Wilner and cited the CCR press release:

Last night, the Center for Constitutional Rights (CCR) asked the Supreme Court to take up its warrantless surveillance case, Wilner v. National Security Agency (NSA). CCR and co-counsel argue that the Executive Branch must disclose whether or not it has records related to the wiretapping of privileged attorney-client conversations without a warrant. Lawyers for the Guantánamo detainees fit the officially acknowledged profile of those subject to surveillance under the former administration’s program, and the Executive Branch has argued in the past that it has a right to target them.

Yesterday, the petition for cert on behalf of Tom Wilner was denied on the Court’s traditional First Monday announcements.

But the story will not end there for Tom Wilner in this nascent Supreme Court term, in a move that will prove ultimately much more significant than the somewhat weak FOIA case CCR was pursuing, Wilner has petitioned for cert on the Habeas case of his client Fawzi al-Odah. This will be a critical test to see how the Supremes are going to deal with the progeny of their decision in Boumediene v. Bush.

From Andy Worthington:

Last week, two years and three months after the US Supreme Court granted the prisoners held at Guantánamo constitutionally guaranteed habeas corpus rights in Boumediene v. Bush, Fawzi al-Odah, a Kuwaiti prisoner held for nearly nine years, became the first prisoner to appeal to the Supreme Court “to protest federal court interpretations of detainees’ right to contest their detention,” as AFP described it.

Over the last two years, the prisoners have won 38 out of the 55 cases in which the District Court judges in Washington D.C. have made a ruling, but al-Odah is one of the 17 whose appeals have been denied. As I reported when he lost his petition in August 2009:

….

Although the burden of proof is on the government in the habeas cases, the “preponderance of evidence” standard is considerably lower than in criminal cases, for example, where a case must be established beyond reasonable doubt. However, the Circuit Court dismissed al-Odah’s complaint “under binding precedent in this circuit,” and also dismissed his complaint about the use of hearsay evidence, pointing out that the use of hearsay evidence had been approved by the Supreme Court in Hamdi v. Rumsfeld, the 2004 case that approved the detention of prisoners under the Authorization for Use of Military Force, the legislation passed by Congress the week after the 9/11 attacks, which authorized (and still authorizes) the President “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 those who harbored them).

….

In his petition to the Supreme Court, al-Odah argues that the courts have “applied a burden of proof lower than any ever approved by this Court in a case involving prolonged imprisonment, allowing the government to justify indefinite detention by a mere preponderance of the evidence, rather than by clear and convincing evidence.” He also argues that “both the District Court and the Court of Appeals have … allowed the indiscriminate admission of hearsay, denying the detainees any meaningful opportunity to test the reliability of statements made against them.”

Here is the official Petition for Certiorari in al-Odah. al-Odah will be an important bellwether to see if the Court accepts cert and, if so, what they do with the case.

Unconstitutional Surveillance & United States v. U.S. District Court: Who The Winner Is May Be A Secret – Part 1

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[Given the current surveillance state situation in America, the Keith case, formally known as United States v. United States District Court, is one of the most important cases from our recent past. But I don’t really believe you can understand or know the law of a case, without really understanding the facts. The Keith case doesn’t have simple facts, but they are fascinating and instructive. So bear with me – this is going to take awhile, and will be laid out over a series of four posts. What follows today is Part I. – Mary]

It was a time of war. America had been attacked in the Gulf of Tonkin. The National Security Agency (NSA) and our military had reassured us this was true. Our national security apparatus, Congress and press had joined behind the office of the President to lead us into a series of forays (Vietnam, Laos, Cambodia) that would leave tens of thousands of American soldiers dead and many times that wounded physically or mentally, while at the same time decimating over three million Vietnamese and over a 1.5 million Laotians and Cambodians.

At home, we were working our way through the civil rights movement, dealing with the cold war and threats of Russian nuclear weapons and witnessing anti-war protests that left students dead and buildings bombed. Algeria was hosting U.S. fugitives from justice, Eldridge Cleaver and Timothy Leary, while Cuban connections were alleged to be behind much of the organized anti-war movement.

Court martial proceedings had begun for the My Lai killings with polls showing most of America objected to the trial. President Nixon would later pardon Lt. Calley for his role. A trial had also, briefly, seemed to be in the works for the “Green Beret Affair,” the killing of Thai Khac Chuyen by Green Berets running an intelligence program called Project GAMMA. The investigation began after one of the soldiers assigned to the Project became convinced that he was also being scheduled for termination. Charges in the Green Beret Affair would be dropped after the CIA refused to make personnel available, claiming national security privileges.

Against this backdrop, Nixon and his campaign manager – attorney general, John Mitchell (the only Read more →

A Defense of Tyranny?

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I’m pretty fascinated by this attempt by one of John Cole’s readers to defend the Administration’s stance on assassinating US citizens. It’s fascinating and not a little disturbing, but it deserves a response, if only to clarify precisely what the problem with the Administration’s filing last Friday is.

The reader starts with this:

On Al-Awlaki, what’s your response to the argument that targeted killing of him is allowable, under international law, because he’s been designated by the US and the UN as an “active operational member of AQAP” and, as such, if and only if the US determines he presents an imminent threat, the US can take actions to defend itself against an attack (like, say, the Christmas bombing, in which there’s evidence he was involved in planning) by either capturing or killing him?

For starters, this question misrepresents what the suit tries to do. The suit readily admits that the government has the right to kill someone who presents an imminent threat. The plaintiffs are asking for the judge to prevent the government from killing Anwar al-Awlaki unless he is, in fact, an imminent threat.

Plaintiff seeks a declaration from this Court that the Constitution and international law prohibit the government from carrying out targeted killings outside of armed conflict except as a last resort to protect against concrete, specific, and imminent threats of death or serious physical injury; and an injunction prohibiting the targeted killing of U.S. citizen Anwar Al-Aulaqi outside this narrow context. Plaintiff also seeks an injunction requiring the government to disclose the standards under which it determines whether U.S. citizens can be targeted for death. [my emphasis]

Moreover, John’s reader misstates the argument the government is making. They refuse to grant that the only legal basis they’d have for assassinating al-Awlaki would be because they had determined him to be an imminent threat and never once argue that he is an imminent threat, particularly not that he, personally, as opposed to AQAP more generally, is an imminent threat.

For example, even assuming for the sake of argument that plaintiff has appropriately described the legal contours of the President’s authority to use force in a context of the sort described in the Complaint,

In fact, as I have shown, the government refuses to lay out its entire argument for claiming it has the authority to target al-Awlaki.

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.

One thing is clear, though: the government is claiming to have the authority not only through international law (the “imminent threat”), but also the AUMF. But it’s not at all clear the AUMF does grant them that authority (and this is one reason why John’s reader’s appeal to the political branches is so problematic). AQAP was not included in the AUMF. No  one has ever claimed it had a role in 9/11, which is how the AUMF defines the opponent. The decisions on habeas cases have been mixed about whether attenuated connections like AQAP’s are strong enough to be included in the AUMF and because of it, legally detainable. John’s reader just ignores that the primary basis for which the government claims authority to kill al-Awlaki is the AUMF (even if they refuse to say whether AQAP is al Qaeda, or only affiliated with al Qaeda). But that basis is contested.

But let’s set aside the problems with the government’s claim to authority under the AUMF for the moment and focus instead on what John’s reader seems comfortable with: the “imminent threat.” John’s reader seems satisfied that al-Awlaki’s role in the Christmas day bombing makes him an imminent threat. There are two problems with that. First, we have a tradition in this country of requiring the government to prove the allegations it makes against people. Here’s how the government presents this allegation, in James Clapper’s public declaration.

Since late 2009, Al-Aulaqi has taken on an increasingly operational role in AQAP, including preparing Umar Farouk Adbulmutallab [sic], who attempted to detonate an explosive device aboard a Northwest Airlines flight from Amsterdam to Detroit on Christmas Day 2009, for his operation. In November 2009, while in Yemen, Abdulmutallab swore allegiance to the emir of AQAP and shortly thereafter received instructions from al-Aulaqi to detonate an explosive device aboard a U.S. airplane over U.S. airspace.

Particularly given the government’s reported belief, before the Nidal Hasan attack, that al-Awlaki’s activities extended only to First Amendment protected speech, we deserve to know how they determined that his activities since then have become operational. If we know that from classified intercepts, then the government can share them with the Court without disclosing them publicly. If we know that solely through Abdulmutallab’s interrogations, then we deserve to know the circumstances surrounding those interrogations, not least whether Abdulmutallab was promised he would not face the death penalty if he implicated al-Awlaki.

More importantly, we have means to do all this–to have a judge weigh the evidence to make sure the government’s allegations are true. That’s a trial. And for some reason, the government has chosen not to charge al-Awlaki with conspiracy in Abdulmutallab’s crime, and therefore chosen not to expose its evidence to the scrutiny of a judge. I wouldn’t necessarily have much reason to doubt the government’s claims about al-Awlaki, but the government loses a great deal of credibility when they choose not to avail themselves of the means to prove those allegations.

If the case against al-Awlaki is strong enough to kill him, then it ought to be strong enough to prove in a court.

And then there’s the other problem with the claim that al-Awlaki is an “imminent” threat: the timing.

Read more →

As Axe Slams Rahm from One Side, Greg Craig Slams from the Other

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I trust it’s not a coincidence that at the same time David Axelrod is skewering Rahm from within the White House, Greg Craig is getting picked up on a live mike (oops!) skewering him from the outside.

“The great thing about it, if Rahm goes to run for mayor, is that Eric survived,” Craig said, according to an audio recording of the Sept. 21 event.

The National Law Journal requested a copy of the recording from the law school, and the school provided one. The recording includes Craig’s speech and a question-and-answer session, as well as two and a half minutes of pre-speech banter between Craig and Trevor Morrison, a Columbia law professor who introduced Craig to the audience. They touched on Holder’s relationship with Emanuel and on the case of accused terrorist Ahmed Khalfan Ghailani.

As Craig suggests, Emanuel’s departure would mean Holder will have outlasted an internal rival with whom, according to news reports, Holder has repeatedly clashed on subjects like the venue for trying terrorism suspects. And it would mean Emanuel wouldn’t be around to attempt to force Holder out if tensions flared again.

[snip]

A questioner asked Craig why he left. Craig responded that he did so for “a number of different reasons,” and then he focused squarely on Emanuel.

“One of the reasons was that I did not get along with the chief of staff well,” Craig said, “and I think that the coordination between the White House counsel and the chief of staff is vital to the success of the working of the White House.”

Though, I’d challenge Craig: What good has Holder’s outlasting Rahm done after Friday’s audacious claim to unlimited power? There’s no indication at all that Rahm was pushing Holder to submit a motion basically saying, “the President can kill any American, and he doesn’t have to show the Courts any justification for why, which is good because we can’t even make a good argument to support it.” I mean, sure, Rahm had a big hand in pissing away Obama’s bid to moral standing. But Holder’s DOJ has simply embraced the disdain for law that Rahm handed them and run with it, all on their own now.

The Secrets They’re Keeping Selectively Leaking about Anwar al-Awlaki

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As I noted yesterday (and Glenn has examined at more length), in addition to asserting that the government can target Anwar al-Awlaki … because they said so, the Obama Administration also invoked state secrets in its motion to dismiss the ACLU/CCR suit challenging targeted killings.

The Obama Administration has officially positioned itself to the right of hack lawyer David Rivkin.

But the state secrets invocation is interesting not just because it shows a Democratic Administration out-hacking a noted hack.

For example, I think the invocation shows just how weak they recognize their own argument to be. Consider what Robert Gates (who invoked something newfangled called the “military and state secrets privilege”) and James Clapper described as falling under their invocation of state secrets (Leon Panetta basically said only that CIA could neither confirm nor deny its involvement, which sort of makes me wonder whether CIA really has targeted al-Awlaki or not).

Robert Gates:

A. Intelligence information DoD possesses concerning AQAP and Anwar al-Aulaqi, including intelligence concerning the threat AQAP or Anwar al-Aulaqi pose to national security, and the sources, methods, and analytic processes on which any such intelligence information is based;

B. Information concerning possibly military operations in Yemen, if any, and including criteria or procedures DoD may utilize in connection with such military operations; and

C. Information concerning relations between the United States and the Government of Yemen, including with respect to security, military, or intelligence cooperation, and that government’s counterterrorism efforts.

James Clapper:

A. (U) Intelligence information concerning al-Qaeda and the sources and methods for acquiring that information.

B. (U) Intelligence information concerning AQAP and the sources and methods for acquiring that information.

C. (U) Intelligence information concerning Anwar al-Aulaqi and the sources and methods for acquiring that information.

The Administration is sort of kind of relying on the President’s authority under the AUMF (unless the judge doesn’t buy that argument, in which case the Administration promises to try something else), which states:

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.

In other words, the Administration is relying on some tie between AQAP and the al Qaeda organization that hit us on 9/11 for its authority to kill an American citizen with no due process. Mind you, it can’t say precisely what that tie is–whether AQAP is al Qaeda or whether it is just closely connected enough to be included under the AUMF. But that’s precisely what it has called a state secret: the evidence of ties between the group against which Congress declared war in 2001 and the group we’re targeting in Yemen.

Effectively, the Executive Branch–with no known support from Congress–is saying we’re at war against AQAP. But it’s also saying no one outside of select people within the Executive Branch (and, presumably, a group of four or maybe eight members of Congress who serve in leadership or on the Intelligence Committees) can see the evidence that proves we’re at war against AQAP.

The President has unilaterally declared war against a group but then said no one can see why he has done so.

And then both Gates and Clapper invoke state secrets over the evidence the government has against al-Awlaki.

Rather than prove to a judge that they even have reasonable suspicion to believe al-Awlaki is part of AQAP, much less enough evidence to execute him, the government has instead asserted that all of that is a state secret. They’ve declared everything al-Awlaki would need to challenge his execution a state secret. Even KSM will be able to see the evidence against him; and he has admitted to killing 3,000 Americans. But American citizen al-Awlaki, whom no one has accused of actually killing anyone, can’t see the same kind of information.

Finally, there’s the tired old sources and methods catch all. We can’t know how the government has collected the evidence it has against al-Awlaki.

Except we already do.

Thanks largely to the efforts of Crazy Pete Hoekstra, we know that the government had wiretaps on al-Awlaki going back at least since December 2008. Al-Awlaki himself has challenged the government to release the intercepts they have on him (which public reports say include correspondence with tens of thousands of people). Al-Awlaki has even made some of that correspondence available himself. But the government says all that is a state secret.

Furthermore, some of the evidence against al-Awlaki appears in court documents, from the public testimony of Umar Farouk Abdulmutallab. The alleged recruitment of Abdulmutallab is one of the key issues the government describes al-Awlaki to have been involved in. That information is public. Yet the government also says it is a state secret.

And if all this really is a state secret, then why isn’t Crazy Pete Hoekstra in jail? Read more →

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?

Read more →

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.

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.

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.”

What Bush and Ashcroft Meant By “If al-Qaida Is Calling”

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Remember when George W. Bush defended his illegal warrantless surveillance program with these lines:

We are at war with an enemy who wants to hurt us again …. If somebody from Al Qaeda is calling you, we’d like to know why,” he said. “We’re at war with a bunch of coldblooded killers.

…when we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so … We’re at war, and as commander in chief, I’ve got to use the resources at my disposal, within the law, to protect the American people

That statement was made on January 2, 2006 in direct response to a question Bush got about Jim Risen and Eric Lichtblau’s blockbuster article in the New York Times exposing the illegal program that went to print just two weeks prior.

Since those early days of realizing the United States government was running an illegal and unconstitutional spy surveillance operation on its own citizens, we have learned an awful lot. For too many citizens, it does not even seem to hold interest. Today, the Center for Constitutional Rights reminds us what the Bush Administration was really up to, how patently absurd it was and just how big of a lie George Bush fostered on the American public. Turns out “If al-Qaida is calling” meant random government searches of phone books for Muslim sounding names and taking crank phone calls.

From a CCR press release I just received:

Today, the Center for Constitutional Rights (CCR) announced that six new plaintiffs have joined a federal, class action lawsuit, Turkmen v. Ashcroft, challenging their detention and mistreatment by prison guards and high level Bush administration officials in the wake of 9/11. In papers filed in Federal Court in Brooklyn, CCR details new allegations linking former Attorney General Ashcroft and other top Bush administration officials to the illegal roundups and abuse of the detainees.

Five of the plaintiffs in the original lawsuit won a $1.26 million settlement in November 2009. Read more →