Secret Panel Draws up "Targeting Recommendations," Secret Memo Justifies Assassinating Them

Over the weekend New York Times reporter Charlie Savage nailed down new details about the "secret memo" that justified the assassination of U.S. citizen and al Qaeda operative Anwar al-Awlaki

The secret document provided the justification for acting despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war, according to people familiar with the analysis. The memo, however, was narrowly drawn to the specifics of Mr. Awlaki’s case and did not establish a broad new legal doctrine to permit the targeted killing of any Americans believed to pose a terrorist threat.

The legal analysis, in essence, concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him.

The memo concluded that what was reasonable, and the process that was due, was different for Mr. Awlaki than for an ordinary criminal. It cited court cases allowing American citizens who had joined an enemy’s forces to be detained or prosecuted in a military court just like noncitizen enemies.

It also cited several other Supreme Court precedents, like a 2007 case involving a high-speed chase and a 1985 case involving the shooting of a fleeing suspect, finding that it was constitutional for the police to take actions that put a suspect in serious risk of death in order to curtail an imminent risk to innocent people.

Note those two wonderful SCOTUS precedents! A related piece from Reuters by Mark Hosenball reveals the process by which Awlaki was targeted for assassination:

They said targeting recommendations are drawn up by a committee of mid-level National Security Council and agency officials. Their recommendations are then sent to the panel of NSC "principals," meaning Cabinet secretaries and intelligence unit chiefs, for approval. The panel of principals could have different memberships when considering different operational issues, they said.

The officials insisted on anonymity to discuss sensitive information.

They confirmed that lawyers, including those in the Justice Department, were consulted before Awlaki's name was added to the target list.

Two principal legal theories were advanced, an official said: first, that the actions were permitted by Congress when it authorized the use of military forces against militants in the wake of the attacks of September 11, 2001; and they are permitted under international law if a country is defending itself.

Several officials said that when Awlaki became the first American put on the target list, Obama was not required personally to approve the targeting of a person. But one official said Obama would be notified of the principals' decision. If he objected, the decision would be nullified, the official said.

A former official said one of the reasons for making senior officials principally responsible for nominating Americans for the target list was to "protect" the president.

The above information is classified. More classified than, say, the State Department cables allegedly released to Wikileaks by Army intelligence analyst Bradley Manning, who has been imprisoned without trial for 17 months now. Yet, what are the odds that the White House will conduct a witch hunt to root out Savage's leaker?

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  • ||

    The above information is classified.

    Which is why the official insisted on anonymity. He/she - an officer of the Obama Administration - broke the law, just like Bradley Manning only, I guess, for the "greater good" so it's, uh... not criminal?

    Yeah - no one's gonna be digging in to find the source of this leak.

  • ||

    I was thinking the same thing. Somebody is looking at a long haul at Leavenworth is the Administration wants to pursue this.

  • Just Following Orders||

    Nuremberg or Leavenworth, take your pick. The more morally refined and civilized amongst us, old soldier, knows which carries the heavier burden of shame.

  • Cowboy||

    Nah, they'll just put his name in a secret memo...

  • ||

    This "leak" is just a convenient means for the administration to get out its spin without having officially admitted anything. The leaker is probably known to the prez and will get a promotion.

  • Apatheist||

    "finding that it was constitutional for the police to take actions that put a suspect in serious risk of death in order to curtail an imminent risk to innocent people."

    Even by there own standards its a bunch of bullshit. Where was the "imminent risk?"

    "Serious risk of death?" How could that possibly apply here? Isn't there a difference between laying down spikes that could lead to a crash and deliberately targting someone with a missile?

  • ||

    "imminent risk"

    Un huh.

    I am sure the definition of "imminent risk" will never expand to cover other situations.

    /snark

  • Apatheist||

    There/their, how the fuck does that work?

  • ||

    An Administration breaking an Executive Order is like a fatty breaking his New Year's Resolution.

    I do wonder why they didn't go through State and document the fact that al-Awlaki had renounced his U.S. citizenship. It would have been a much cleaner legal case.

  • ||

    Yup.

  • Anonymous Coward||

    Because there is an official process for renouncing US citizenship and I'll lay 5:1 that al-Awlaki didn't go through it.

  • pmains||

    Thank you. Why does everyone seem to think that renouncing your citizenship is something you can do by standing in a crowd of witnesses and yelling, "I ... RENOUNCE ... MY ... CITIZENSHIP!" ?

  • Cliché Bandit||

    If those witnesses are a foreign soil US Embassy then yeah it works pretty well...also, serving in a foreign military will do it too in most cases (not all however as dual citizen drafted by their otehr country can claim they were unwilling draftees etc.)

  • ||

    Joining a foreign military (which AQ arguably is) can be considered a reunification and grounds for stripping him of U.S. citizenship.

  • ! ||

    1) AQ is not a sovereign, so it would be difficult to apply the term "foreign army", especially as it relates to citizenship

    2) Stripping him is not renouncing

    You pretty much added nothing.

  • Fuck off||

    I also don't recall the due-process clause mentioning citizenship anywhere. Like everything else in the Bill of Rights, it's (supposed to be) a constraint on the government, not a benefit conferred upon US citizens.

  • ||

    An Administration breaking an Executive Order is like a fatty breaking his New Year's Resolution.

    I do wonder why they didn't go through State and document the fact that al-Awlaki had renounced his U.S. citizenship. It would have been a much cleaner legal case.

  • ||

    did not establish a broad new legal doctrine to permit the targeted killing of any Americans believed to pose a terrorist threat.

    "He needed killin'" has a long and illustrious history in American jurisprudence.

  • romulus augustus||

    This was the attitude of a Frenchman I spoke to last week. I then said, "Suppose President Bush had done this?" His reply was that would be unacceptable "cowboy justice" of which the French don't approve while acknowledging their nation, like most others, is cognitively dissonant depending of whether or not they "like" or "dislike" the leader.

  • John Dilinger||

    Tell me about it.

  • rather ||

    The memo concluded that what was reasonable, and the process that was due, was different for Mr. Awlaki than for an ordinary criminal.

    The Catch-22 logic is interesting: He's a criminal because we say so but based the legality of the decision on actual prosecutions....


    It cited court cases allowing American citizens who had joined an enemy’s forces to be detained or prosecuted in a military court just like noncitizen enemies.


    Methinks the administration needs an episodic TV writer to clean up this script.

  • rsi||

    This is the basis for a good reality show.

  • rather||

    Well, Mr. Awlaki love the street hookers, and I'm sure some of them need to age into a new career

    Awlaki's Angels ?

  • juris imprudent||

    needs an episodic TV writer

    This Admin would probably hire someone who wrote Lost.

  • MattN||

    That legal rationale is interesting.... Hasn't the Obama administration gone out of its way to make the issue of terrorism (a.k.a. man-made disasters) a criminal one rather than one of war? Does that effort make this rationale invalid? Or does this rationale expose the lie?

  • Scruffy Nerfherder||

    Exposes the lie.

    Additionally, the President is not protected if he was notified. The opportunity to nullify has the same weight as an approval. If it was presented and he chose not to act, that is still a choice.

  • T||

    If he chooses not to decide, he still has made a choice? I think I heard that somewhere once.

  • rather||

    from Sophie

  • ||

    This is just an elaborate question beg. Any halfway serious attempt at due process would require presentation of actual evidence in front of some kind of judge.

  • T||

    Any halfway serious attempt at due process

    This wasn't serious. They decided what they were going to do, and found a legal pretext to do it.

    Can I interest you in a fig leaf? They're coming back in fashion.

  • Clerk from Abbott & Costello||

    As Adam said to Eve, "quit ribbing me."

  • juris imprudent||

    Can I interest you in a fig leaf?

    Do you have one that is a little larger?

  • Anonymous Coward||

    The memo, however, was narrowly drawn to the specifics of Mr. Awlaki’s case and did not establish a broad new legal doctrine to permit the targeted killing of any Americans believed to pose a terrorist threat.

    Of course it doesn't. Now pull the other leg.

    The legal analysis, in essence, concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him.

    So Saddam Hussein can be captured, Manuel Noriega can be captured, John Walker Lindh can be captured, but some knucklehead from the desert can't be captured because...why?

  • ! ||

    They knew where he was when they killed him...

  • T||

    No shit. We launched an full-scale invasion of a country to catch Noriega. Some guy who we obviously can find is so far out in the boonies we can't go get him? Bullshit.

  • ||

    Noriega and Hussein were heads of state; capturing them necessarily meant overthrowing the govt. We have reason to want the current Yemen govt to remain in place.

  • T||

    If they're allies, they'll let us send in a snatch team, right, Tulpa? Even if they do it with a wink and a nod, like the speculation about Pakistan and the Bin Laden operation.

  • ||

    I thought that the Osama operation made it rather clear that your Pakistani "allies" were a little less "allied" that you thought.

    But what's a little 'aid and comfort to the enemy' between friends?

  • ||

    Nope, Aresen, the US government was entirely aware of exactly how less than allied the Pakistanis were. Absolutely zero people in or around the government were surprised with any of that. The entire calling them allies and suffering their bullshit was in order to preserve the one secret treaty for them not to interfere with the raid.

    The people who were confused about the Pakistanis were entirely people not in the government, who thought that the government didn't see what was going on.

  • ||

    The US government was completely aware of all the shit that the Pakistanis were doing. However, the US government didn't want to call them on it until after the Osama raid, in order to try to keep the agreement alive. Same reason that the US didn't push against Musharraf.

    But the US Government's critics were the ones who really believed that Pakistan was "either with us or against us" in fact, instead of that phrase simply being a negotiating tactic used by the US to try to pressure Pakistan.

  • ||

    The Osama operation can easily be taken as demonstrating that the US government was correct in its ambiguous attitude towards the Pakistani government.

    Surely you wouldn't support actually going to war against Pakistan, would you?

  • ||

    I agree with your points. My point was that the fact that the killing of Bin Laden blew the whole masquerade apart, at least for anyone who was paying attention.

  • John Yoo||

    I should have worked for a Democratic administration. Much less stress coming from the press.

  • ||

    I was going to say, yesterday you were a war criminal, today you are a role model.

  • ||

    Conspiracy to commit murder, Mister President?

    CB

  • ||

    As we know, technology tends to get cheaper over time and, once one country, corporation or group develops something, others will eventually learn how to do the same thing.

    So, how will the people who support the killing of Awlaki feel when China starts using Killer Drones to take out dissidents living in the US? Or Al Queda starts using drones on people in the US who have "insulted Islam"?

  • ||

    Credit for the idea here:

    http://feralgenius.blogspot.com/

  • kinnath||

    Forget Tricky Dick; Obama is starting to make Vlad Putin look good.

  • The Art-P.O.G.||

    Not until he gets some radiation poisonings in.

  • NL_||

    I've heard of Garner, the 1985 precedent case. A cop shot an unarmed kid in the back of the head and killed him while he tried to flee a house with $10 he stole. There was no reason to shoot him. The cop admitted he knew the kid was unarmed.

    It's a little aggressive to connect the Garner case to the Awlaki killing. It was not an affirmation of the power to kill dangerous people. It was a rejection of the police power to use force against people who are not likely to be dangerous. Garner is an anti-police holding, setting greater space for protection from state violence. I think it's a little forward to flip it around and say it creates some sort of safe harbor for extrajudicial state-ordered killings.

  • ||

    Without charges that al-Awlaki was actually dangerous and directly involved with planning violent attacks, using the premise of a fleeing and potentially dangerous criminal as basis for assassination is stretching the justifications.

    I'd like proof that al-Awlaki was more that a cheerleader. I'm sure there was justification for conspiracy and treason charges, but we don't simply kill people with disgusting political beliefs and affiliations. The Nazis declared war on the US, yet we do not hunt down neo-Nazis who praise the Holocaust and might be affiliated with violent gangs unless they are charged with an actual crime - and they always get a trial, provided they don't go out guns blazing.

  • ||

    WTF? So al-Awlaki was killed to purportedly prevent attacks on American safety, but the family of his fellow al-Qaeda propagandist US citizen also killed in the attack gets a formal apology? Sounds like even the government is confused.

    I'm convinced this is grounds for impeachment. Of course, it won't happen because most Americans will agree with the ends and give the means a pass.

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