The American Bear


Judge 'Troubled' by DOJ Position in Drone Strike Case | The Blog of Legal Times

A Washington federal judge said [on Friday] she was “troubled” by the U.S. Department of Justice’s position that the courts are powerless to hear a challenge of the government’s ability to target and kill U.S. citizens abroad.

The government argued the court should dismiss a lawsuit brought by the families of American citizens killed in Yemen in 2011 by targeted missile strikes. Justice Department lawyers argued the court was barred from hearing a case that would require an assessment of sensitive military and political issues far outside its purview and ability to review.

U.S. District Judge Rosemary Collyer repeatedly expressed concern that the government’s position would essentially strip U.S. citizens abroad of their constitutional rights. Deputy Assistant Attorney General Brian Hauck argued there was a difference between having a constitutional right—which he said could be protected by the executive and legislative branches—and being able to make constitutional claims in court. Collyer countered that not being able to access the courts would deprive citizens of the ability to enforce their rights.

"I’m really troubled…that you cannot explain to me where the end of it is," Collyer said. “That, yes, they have constitutional rights but there is no remedy for those constitutional rights."

The two missile strikes at issue killed suspected terrorist Anwar Al-Aulaqi, an American citizen, along with two other Americans, Al-Aulaqi’s 16-year-old son Abdulrahman Al-Aulaqi and Samir Khan. In a complaint filed by the elder Al-Aulaqi’s father and Khan’s mother last July, they accused the federal government of violating the Americans’ Fourth and Fifth Amendments rights.

Arguing before a standing-room only gallery, Hauck said the legal principle known as the political question doctrine prevented the court from taking up the case. A federal judge, he said, didn’t have the same “apparatus” as the military and the executive and legislative branches to weigh the policy considerations that went into missile strikes. To consider a claim that the strikes were unconstitutional, Hauck said, the court would have to answer “extraordinarily sensitive questions.”

When Hauck said that the “constitutional structure” enabled the executive and legislative branches to protect citizens’ rights, Collyer pointed out that the structure included three branches of government.

"The problem is, how far does your argument take you?" Collyer said, adding that she found it “a little disconcerting" that the government was arguing that there could be no court review of a decision by the executive and Congress to target American citizens abroad.

Pardiss Kebriaei of the Center for Constitutional Rights, arguing for the plaintiffs, said the question of the whether the government violated the Americans’ Fourth and Fifth Amendment rights could be answered by the court, pointing to a legal opinion published by the Justice Department spelling out the standards for deciding whether an attack was constitutional.

Collyer asked Kebriaei to explain how the court would evaluate some of the sensitive security questions at issue, such as whether an imminent threat justified the strikes. Kebriaei replied that that the court had taken up habeas petitions by detainees at Guantanamo Bay, which required the court to delve into national security issues.

The judge asked Hina Shamsi of the American Civil Liberties Union Foundation, also arguing for the plaintiffs, how the case could be brought under a 1971 Supreme Court ruling known as Bivens, which gave individuals the right to sue a federal official for alleged constitutional violations. The government argued that Bivens didn’t apply because it would create a new category of cases that could be brought and raise separation-of-powers concerns.

Shamsi said it was a “quintessential Bivens case” because the plaintiffs had no other remedy. Unlike other terrorism cases cited by the government in which the courts found Bivens didn’t apply, the current case didn’t involve military operations during an immediate conflict and didn’t raise questions of the plaintiffs’ citizenship.

Collyer did not rule from the bench and didn’t say when she expected to issue a decision.

Jeremy Scahill: The Secret Story Behind Obama’s Assassination of Two Americans in Yemen | Democracy Now!

JEREMY SCAHILL: [In] December of 2009, the U.S. started bombing Yemen for the first time in seven years. Bush had bombed Yemen once. It was a drone bombing in 2002, November, and ended up killing a U.S. citizen in that strike, though he wasn’t the target of the strike. So the first time that the U.S. did a targeted strike that killed a U.S. citizen in Yemen that we know of was under Bush in November of 2002. In December of 2009, President Obama authorizes a series of missile strikes, not just drone strikes. The most deadly one that we know of was December 17th, 2009, cruise missile attack on the Yemeni village of al-Majalah, and it killed 46 people, three dozen of whom were women and children, which is stunning and horrifying. And we have video footage in our film of the aftermath of that strike, interviews with the survivors of when the missile hit. But it was in pursuit of one person that they said was an al-Qaeda operative, and they wiped out an entire Bedouin village. And we went there, and the cruise missile parts are still strewn across the desert. They’re there to this day just rusting out there. But the U.S. also used—

AMY GOODMAN: How many people were killed?

JEREMY SCAHILL: Forty-six people were killed, and I think 35 or 36 of them were women and children. And I was leaked the official parliamentary investigation in Yemen with the names and ages of all of the dead. And I have it—I have it stained in my head, the images that I’ve seen of the videos that people I met there had taken on the scene. You know, one tribal leader, Sheikh Saleh bin Fareed, who’s the head of the Awlak tribe in Yemen, he went there right after the attack. And he said to me, “If someone had weak heart, they would collapse, because you saw meat, and you couldn’t tell if it was goat meat or human meat. And you saw limbs of children.” And he, himself—and he’s this older man—actually found body parts and helped to bury—try to bury people with dignity. And he’s this incredibly wealthy man who went there himself and is the main reason why there still is agitation for justice for the victims of the Majalah bombing, that—because these tribal leaders have said, “We will not forget what you did to this village of nobodies, one of the poorest tribes in all of Yemen.”

Who knows why the U.S. bombed it? It could have been that the Yemeni government was under pressure from Obama’s administration, and they said, “No one will care about these people. Let’s just say this is an al-Qaeda camp, because it’s in the middle of nowhere. No one is going to care about them, and no one’s going to go there to investigate.” But when we went there, we saw it. The cluster bombs, these are flying land mines, they’re banned. And yet the United States continues to use them, and they shred people into meat. I saw it in Yugoslavia in the ’90s, and I’ve seen it again now in Yemen.

AMY GOODMAN: So the weapons used were?

JEREMY SCAHILL: The weapons used? They used a Tomahawk cruise missile, and they used cluster bombs. And the cluster bombs are—they are like flying land mines. And they drop in these parachutes, and they explode, and they can shred people. I mean, it’s their—they’re probably the most horrifying weapon I have ever seen the aftermath of in a war zone.

So, this is the first strike that President Obama authorizes, and it’s unclear who the real target even was. They claimed it was this one man and that he was killed. When I talked to people in Yemen, they said, “That guy is old—that guy is—yeah, he was a mujahideen in Afghanistan, but he had nothing to do with the leadership.”

AMY GOODMAN: Mujahideen, who the U.S. worked with.

JEREMY SCAHILL: Who the U.S. worked with, right. You know, Yemenis went to Afghanistan in the ’80s in huge numbers. And, you know, they have a very serious fighting spirit, and there were a lot of Yemenis that had gone there and fought on the same side as the United States. But the point I’m getting at here is that—so, the Obama administration starts to intensify this bombing in Yemen. They bomb al-Majalah. And then, seven days later, they—but remember that the Yemeni government claimed responsibility for the strike, and Obama’s administration released a statement praising Yemen for this attack. Yemen doesn’t have cruise missiles. Yemen doesn’t have cluster bombs.

So, but for, you know, some brave local journalists going there and photographing it initially, we probably would—never would have been able to prove that it was a U.S. strike. And we could talk about him later, but Obama, President Obama, is directly responsible for the first Yemeni journalist to report on this story, Abdulelah Haider Shaye, continuing to be in prison. He was arrested after he exposed the Majalah bombing, and he remains in prison to this day. In fact, the last line in my book is to say that he’s still in prison, and he should be set free. This was a journalist that had worked with major U.S. media outlets, broke this huge story that the U.S. had bombed Yemen for the first time in seven years, using cluster bombs, and then he ends up in prison on trumped-up terrorism charges, put on trial in a court that was set up specifically to prosecute journalists, and then when he was going to be pardoned, President Obama called Ali Abdullah Saleh and said, “We don’t want him released,” and he remains in prison to this day. So, he was the first journalist to do that. He’s in prison. [watch]

Excerpt from "Dirty Wars" | Jeremy Scahill

… On the morning of September 30, 2011, [US citizens Anwar] al-Awlaki and [Samir] Khan, a young Pakistani-American from North Carolina who is believed to have been the editor of Inspire, finished their breakfast inside the house. US spy cameras and satellites broadcast images back to Washington and Virginia of the two men and a handful of their cohorts piling into vehicles and driving away. They were headed toward the province of Marib. As the vehicles made their way over the dusty, unpaved roads, US drones, armed with Hellfire missiles, were dispatched to hunt them down. The drones were technically under the command of the CIA, though JSOC aircraft and ground forces were poised to assist. A team of commandos stood at the ready to board V-22 helicopters. As an added measure, Marine Harrier jets scrambled in a backup maneuver.

Six months earlier, Awlaki had narrowly avoided death by US missiles. “This time eleven missiles missed [their] target but the next time, the first rocket may hit it,” he had said. As the cars sped down the road, Awlaki’s prophecy came true. Two of the Predator drones locked onto the car carrying him, while other aircraft hovered as backup. A Hellfire missile fired by a drone slammed into his car, transforming it into a fireball. A second missile hit moments later, ensuring that the men inside would never escape if they had managed to survive. [read]

The Obama Administration’s Latest Anonymous Leaks Aim to Justify Drone Killings of US Citizens | Kevin Gosztola

Journalists for the New York Times have published a story that purportedly provides an account of what ultimately led the United States government to target and kill Anwar al-Awlaki, a Muslim cleric who had been born in the US. It also provides some details on what happened when US citizen Samir Khan and Awlaki’s son, Abdulrahman al-Awlaki were killed. However, importantly, the story consists primarily of “anonymous assertions” by “current and former Obama administration officials.”

The American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR) have condemned the story:

…In anonymous assertions to The New York Times, current and former Obama administration officials seek to justify the killings of three U.S. citizens even as the administration fights hard to prevent any transparency or accountability for those killings in court. This is the latest in a series of one-sided, selective disclosures that prevent meaningful public debate and legal or even political accountability for the government’s killing program, including its use against citizens…

Though the introduction claims the story “highlights the perils of a war conducted behind a classified veil, relying on missile strikes rarely acknowledged by the American government and complex legal justifications drafted for only a small group of officials to read,” the Times essentially provides a forum for government officials to explain their side of the story and defend the decisions that were made in the process of killing an American without charge or trial.

It is insidious because, as the ACLU and CCR appropriately points out, “Government officials have made serious allegations against Anwar al-Awlaki, but allegations are not evidence, and the whole point of the Constitution’s due process clause is that a court must distinguish between the two. If the government has evidence that Al-Awlaki posed an imminent threat at the time it killed him, it should present that evidence to a court.”

Now, officials “anonymously assert that Samir Khan’s killing was unintended and that the killing of 16-year-old Abdulrahman al-Aulaqi was a mistake, even though in court filings the Obama administration refuses to acknowledge any role in those killings. In court filings made just last week, the government in essence argued, wrongly, that it has the authority to kill these three Americans without ever having to justify its actions under the Constitution in any courtroom.”

The secrecy game being played by the Obama administration is a blatant abuse of power, and the story published by the Times only serves to further enable such game-playing.

Read the rest

Here’s the NYT piece Gosztola is referring to: How a U.S. Citizen Came to Be in America’s Cross Hairs (long read, caution: reads like an 8th grader’s term paper).

And in this piece, Marcy Wheeler shreds the legal argument presented in the NYT: The NYT Grants David Barron and Marty Lederman a Mulligan on 18 USC 1119

Rights groups have ongoing efforts to achieve some kind of justice for the Awlaki family, but it could be years before any success. Meanwhile, in the throes of an election, the two presidential candidates from the nation’s most prominent parties campaign for a position that now affords them the power to order US citizens to be killed. And they keep their lips tight about this Executive Branch expansion. Though President Barack Obama and his presidential campaign proudly boast about the assassination of Osama bin Laden and the fact that he is now at the bottom of the ocean, though Obama is completely comfortable with utilizing the tool of state-sanctioned extrajudicial killings, neither Obama nor Romney spend any time publicly mulling over the problems and travesties that arise from drone warfare. Neither wants to draw much attention to the reality that the next president—re-elected or newly elected—will upon inauguration be able to act as Executioner and could be responsible for the death of the next US teenager, who is killed in a ‘secret’ drone strike. Kevin Gosztola, Denver Teen’s Death by Drone Remains Shrouded in Secrecy

On 30 September 2011, a joint CIA-JSOC drone strike killed Anwar al-Awlaqi and another US citizen, Samir Khan, along with two others. As he had done after the killing of bin Laden, Obama made a public address declaring that the attack had dealt a ‘major blow’ to al-Qaeda. On 14 October, another drone attack killed al-Awlaqi’s sixteen-year old son ‘Abd al-Rahman, his seventeen-year old cousin and five others while they were dining in an open-air restaurant. In the aftermath of that attack, officials claimed that ‘Abd al-Rahman was a twenty one-year old militant. His grandfather produced the boy’s birth certificate proving the lie, at which point the administration reverted to its default position of asserting that CIA operations are classified and cannot be commented upon. Anatomy of the US Targeted Killing Policy

Litigating the New Frontier in the War on Terror | Lisa Hajjar

… The killing of [Samir] Khan and Abdulrahman [al-Awlaki, 16], who were not alleged to be participating in hostilities, would bring the issue of “collateral damage” into the courtroom. If the case is goes forward, the government will be forced to answer questions about decision making and operational compliance with international humanitarian law rules on proportionality and distinction. Did the government kill them—and, by implication, other untargeted civilians—by “mistake”? And if so, is the whole clandestine kill process mistake-prone?

So far, the government has not had to answer such questions, at least not in a court of law. To the extent that any answers have been provided about targeted killing in general and the killing of citizens in particular, they have come mostly in the form of leaks from unnamed sources and carefully scripted public remarks by top officials.

The targeted killing policy is the latest incarnation of unfettered executive superpower discretion. The policy has been criticized for violating international law, including from European allies and the UN Special Rapporteur on Extrajudicial, Arbitrary or Summary Executions. Popular opinion in the US, however, runs strongly in favor of this policy; target killing is one of the very few things the Obama administration does that enjoys strong bipartisan support. For this reason, litigation is so important because it is the only available means of challenging the policy, and the killing of three citizens provided the opportunity to do so.

If this case is not dismissed on state secrets grounds, as the government is likely to argue in its response to the complaint which is due in the fall, it will expose a new horizon for litigating the conduct of war. Even if the case is dismissed, CCR and the ACLU deserve commendation for once again pioneering into the murky landscape of the “war on terror” to press for governmental transparency, accountability and adherence to the law.

See also:
Pentagon, CIA Sued for Lethal Drone Attacks on U.S. Citizens

Pentagon, CIA Sued for Lethal Drone Attacks on U.S. Citizens | Threat Level

Survivors of three Americans killed by targeted drone attacks in Yemen last year sued top-ranking members of the United States government, alleging Wednesday they illegally killed the three, including a 16-year-old boy, in violation of international human rights law and the U.S. Constitution.

“The government has killed three Americans. It should account for its actions. This case gives us an opportunity to do that,” Jameel Jaffer, deputy legal director with the American Civil Liberties Union, said in a press call.

The suit, (.pdf) is being litigated by the Center for Constitutional Rights and the ACLU. It seeks unspecified damages and highlights the government’s so-called unmanned “targeted killing” program. The ACLU and the Center maintain the drone attacks have killed thousands, including hundreds of innocent bystanders overseas. (Other estimates of the campaign come to widely different conclusions.)

The suit, the first of its kind, alleges the United States was not engaged in an armed conflict with or within Yemen, prohibiting the use of lethal force unless “at the time it is applied, lethal force is a last resort to protect against a concrete, specific, and imminent threat of death or serious physical injury.” The case directly challenges the government’s decision to kill Americans without judicial scrutiny.

At bottom, Jaffer said, “the question is whether the government is justified in killing without charging them or trying them for anything.”

Which hadn’t really been a question since the Magna Carta and guarantee of Habeas Corpus entered our civilization several hundreds of years ago. But, you know, 9/11.

The Administration’s Many Excuses for Hiding Its Targeted Killing Memo | emptywheel

One senior Obama official who continued to raise questions about the wisdom of coming out publicly at all was Janet Napolitano, the Homeland Security director. She argued that the calls for transparency had quieted down, as one participant characterized her view, so why poke the hornet’s nest? Another senior official expressing caution about the plan was Kathryn Ruemmler, the White House counsel. She cautioned that the disclosures could weaken the government’s stance in pending litigation. The New York Times has filed a lawsuit against the Obama administration under the Freedom of Information Act seeking the release of the Justice Department legal opinion in the Awlaki case. (The department has declined to provide the documents requested.)

Interesting, isn’t it, that Napolitano is basically saying “people have almost forgotten they were angry about these extrajudicial murders. Let’s wait longer and see if they completely forget”. Why poke the hornet’s nest?

Wheeler adds:

Note especially the stance of Kathryn Ruemmler, the White House Counsel, who argued that any disclosures on the Awlaki killing “could weaken the government’s stance in pending litigation.”

That is, Ruemmler argued the Administration couldn’t voluntarily provide information about Awlaki’s killing, because it might mean it would have to involuntarily give that information up pursuant to a lawsuit over that information. Huh?

ACLU Sues U.S. for Information on Targeted Killing Program | ACLU Blog of Rights

Today we filed a lawsuit under the Freedom of Information Act to demand that the government release basic — and accurate — information about the government’s targeted killing program.

Our government’s deliberate and premeditated killing of American terrorism suspects raises profound questions that ought to be the subject of public debate. Unfortunately the Obama administration has released very little information about the practice — its official position is that the targeted killing program is a state secret — and some of the information it has released has been misleading.

Our suit overlaps with the one recently filed by The New York Times insofar as it seeks the legal memos on which the targeted killing program is based. But our suit is broader. We’re seeking, in addition to the legal memos, the government’s evidentiary basis for strikes that killed three Americans in Yemen in the fall of 2011. We’re also seeking information about the process by which the administration adds Americans to secret government “kill lists.” We think it’s crucial that the administration release the legal memos, but we don’t think the memos alone will allow the public to evaluate the lawfulness and wisdom of the program.

We know something about the fall 2011 strikes from media reports. On September 30, the CIA and the military’s Joint Special Operations Command (JSOC) jointly carried out the targeted killing of Anwar al-Awlaki, a U.S. citizen born in New Mexico, using missiles fired from unmanned drones in Yemen. A second U.S. citizen, Samir Khan, was killed in the same attack. Two weeks later, Anwar al-Awlaki’s son, Abdulrahman, a 16-year-old U.S. citizen born in Colorado, was killed in another U.S. drone strike elsewhere in Yemen. The administration has not adequately explained the legal basis for these strikes, and it has not explained the factual basis, either.


Family of al Qaida blogger Samir Khan ‘appalled’ by U.S. actions | McClatchy

“We, the family of Samir Khan, in our time of grief and mourning, request that the media let us have our peace and privacy during this difficult time. It has been stated in the media that Samir was not the target of the attack; however no U.S. official has contacted us with any news about the recovery of our son’s remains, nor offered us any condolences. As a result, we feel appalled by the indifference shown to us by our government.

“Being a law abiding citizen of the United States our late son Samir Khan never broke any law and was never implicated of any crime. The Fifth Amendment states that no citizen shall be ‘deprived of life, liberty, or property, without due process of law’ yet our government assassinated two of its citizens. Was this style of execution the only solution? Why couldn’t there have been a capture and trial? Where is the justice? As we mourn our son, we must ask these questions.”

A thought experiment: The Government of Norway

If the government of Norway decided, after just the accusation (without evidence reviewed in a court of law) that they were involved in or incited the violent acts of terrorist Anders Breivik, to pilot a drone aircraft into the United States, in violation of state sovereignty, to assassinate Pam Gellar or Frank Gaffney, would this be acceptable?

Please disregard your personal feelings for either Gellar or Gaffney when considering an answer.

Yemen Defense Ministry: another American in al-Qaida, Samir Khan, was killed with al-Awlaki | The Washington Post

Another violation of the fifth amendment and assassination of an American citizen.

Note to everyone who is fine with this: these were accused criminals and should have been treated as such. There aren’t “sides”. There is justice and law.