As originally posted in the reader-diary section of Firedoglake.com; the post’s 2010 comment thread is available at that link. A January 4, 2010 U.S. State Department cable, sent from the American embassy in Sanaa, Yemen to multiple Executive Branch recipients – entitled “SUBJECT: GENERAL PETRAEUS’ [1/2/2010] MEETING WITH [PRESIDENT] SALEH ON SECURITY ASSISTANCE, AQAP STRIKES” – was leaked to WikiLeaks.org, which released it to the public domain on August 30, 2011 (with similar versions apparently previously released in November/December 2010); that cable confirms the CNN & AFP/Amnesty International reporting below about Yemeni/U.S. cooperation in the “successful” 12/17/2009 & 12/24/2009 U.S. missile-strike “operations” in Yemen. Subsequently, on September 30, 2011, the Executive Branch of the United States government deployed a CIA-operated, missile-armed drone (and one or more military-operated, missile-armed jets) inside the sovereign territory of Yemen, and deliberately killed American-born Anwar Al-Awlaki and three companions (one of whom was also a U.S. citizen), as they traveled together on a public road. Ten months earlier, on December 7, 2010, federal district Judge John Bates had thrown the plea of Al-Awlaki’s father (quoted below), for due process for his hit-listed American citizen son, out of court as non-justiciable by the American judiciary, without bothering to rule on the merits of Mr. Al-Awlaki’s life-and-death case. [Specifically, wrote Judge Bates: “Because these questions of justiciability require dismissal of this case at the outset, the serious issues regarding the merits of the alleged authorization of the targeted killing of a U.S. citizen overseas must await another day or another (non-judicial) forum.” It was a typical perversion of his solemn judicial role by Judge Bates, to avoid his duty to mete out justice, even, and especially, for the powerless and demonized, and even when it would displease the powerful – which he cloaked behind 83 pages of spurious claims about lack of jurisdictional authority. The reasons for that supposed lack of authority were chillingly described (by an Executive Branch eager to continue its abuse of power, obligingly parroted by Bates) as the justice-foreclosing – and, as it predictably turned out for Anwar Al-Awlaki and his companions, life-foreclosing – “threshold” hurdles of “standing, the [judiciary-concocted, so-called] political question doctrine, the Court’s exercise of its ‘equitable discretion,’ the absence of a cause of action under the Alien Tort Statute (‘ATS’), and the [judiciary-concocted, so-called] state secrets privilege.”]
Yemen’s “neutral” territory, that is, given the explicit target(s) that the United States Congress (alone among nations in this regard, as far as I know) selected and authorized the President to attack with armed force under the law of war, by passing the never-revisited 9/18/2001 Authorization for Use of Military Force (AUMF):
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 what way did Yemen, or Anwar Al-Aulaqi (aka Anwar Al-Awlaki), “plan, authorize, commit, or aid the terrorist attacks that occurred on September 11, 2001, or harbor such organizations or persons”??
Especially given that Anwar Al-Awlaki was a resident of the United States at the time of the 9/11 attacks, and for the decade that preceded them:
Plaintiff’s son, Anwar Al-Aulaqi, was born in New Mexico in 1971. Plaintiff remained in the United States with his family for the next seven years, until 1978, when they moved back to Yemen.
[…]
In 1991, Plaintiff’s son Anwar Al-Aulaqi returned to the United States to attend college at Colorado State University. Anwar Al-Aulaqi went on to obtain his master’s degree at San Diego State University and later enrolled in a Ph.D. program at George Washington University, which he attended through December 2001. He married and had three children while living in the United States. He moved to the United Kingdom in 2003, and to Yemen in 2004.
At this point, given the public information that’s available, Yemen seems very much within its neutral-state rights to question any characterization of Al-Awlaki as an “enemy belligerent” fighting us under the 2001 AUMF-authorized armed conflict (as defined by the law of war), or as any “part of” the enemy forces against which Congress in 2001 authorized hostilities (and related detention, under the law of war) by our military. Neutral-state law of nation rights of Yemen that conflict, no doubt, with the asserted, but fraudulent, interpretations of the law of nations, and its subsidiary law of war, with which the Executive Branch (and the media, in the absence of judicial or congressional checks) is now thoroughly contaminated.
And yet, the United States military has apparently already killed at least 41 innocent civilians in Yemen, with the permission of the government of Yemen, in an attempt to kill native-born U.S. citizen Anwar Al-Awlaki, who left this nation more than a year after 9/11, and has been charged with no crimes:
In January 2010, the Washington Post reported that Anwar Al-Aulaqi had been added to “a shortlist of U.S. citizens” that JSOC was specifically authorized to kill. The same article reported that Anwar Al-Aulaqi had survived a JSOC-assisted strike in Yemen in late December 2009. That strike reportedly killed 41 civilians, mostly children and women.
This is how the Agence France-Presse, in June, 2010, reported that December, 2009 “strike” in Yemen, drawing on the investigative work of Amnesty International:
(AFP) – Jun 6, 2010
LONDON — A US cruise missile carrying cluster bombs was behind a December attack in Yemen that killed 55 people, most of them civilians, Amnesty International (AI) said on Monday.
The London-based rights group released photographs that it said showed the remains of a US-made Tomahawk missile and unexploded cluster bombs that were apparently used in the December 17, 2009 attack on the rural community of Al-Maajala in Yemen’s southern Abyan province.
[…]
A military strike of this kind against alleged militants without an attempt to detain them is at the very least unlawful,” said Philip Luther, deputy director of AI’s Middle East and North Africa Programme.
Yemen’s defence ministry had claimed responsibility for the attack without mentioning a US role, saying between 24 and 30 militants had been killed at an alleged Al-Qaeda training camp.
[…]
“The fact that so many of the victims were actually women and children indicates that the attack was in fact grossly irresponsible, particularly given the likely use of cluster munitions,” Luther said.
[…]
[Amnesty International] said photographs it had obtained showed damaged remains of the BGM-109D Tomahawk land-attack cruise missile.
As of yesterday, September 30th, thanks to reporting by CNN’s Mohammed Jamjoom, we now appear to have official, on-the-record confirmation from the government of Yemen of the evidence unearthed by Amnesty International:
Sanaa, Yemen (CNN) — The United States has carried out airstrikes in Yemen, Yemen’s foreign minister told a pan-Arab newspaper in an interview published Thursday, marking that government’s first official confirmation of a U.S. military role in its fight against terrorism.
Foreign Minister Abu Bakr al-Qirbi told the Saudi-owned Al-Hayat newspaper that the air strikes ended in December because the “Yemeni government ascertained they weren’t achieving results.”
Al-Qirbi also told the newspaper that combating al Qaeda “is the responsibility of the security and counterterrorism forces in Yemen.”
Yes, combating international criminals is “the responsibility” of a nation’s government, when that nation is sovereign, governed, and not in a state of external war…
Just as it is that government’s responsibility to cease and desist “unlawful” attacks against its own citizens – euphemistically “because they weren’t achieving results,” or otherwise – by withdrawing the permission to bomb its territory that had been granted to a more powerful, heavily-militarized nation with which Yemen is at peace.
CNN’s Jamjoom on September 23rd further documented the evidence of a state of peace between Yemen and the U.S., as well as active efforts by Yemen to apprehend international and domestic outlaws residing in Yemen:
Yemeni forces have laid siege to a southern town believed to be a militant stronghold in what amounts to an intensified effort to combat terrorism, a senior defense official said Thursday.
[…]
In an exclusive interview with CNN, Rashad al-Alimi, Yemen’s deputy prime minister for defense and security, said Yemeni forces have surrounded the village of Hawta in southern Shabwa province, a stronghold for the offshoot terrorist group al Qaeda in the Arabian Peninsula [apparently a group that emerged after 9/11 – pow wow].
[…]
“The government is insisting on finding these terrorists and bringing them to justice, because we will never allow Yemen to be a safe haven for al Qaeda,” al-Alimi said.
[…]
The Yemen Red Crescent Society estimated that 12,000 local residents have fled their homes in Shabwa province. And Amnesty International urged officials to take urgent measures to protect citizens.
“The Yemeni authorities must ensure as a matter of urgency that what amounts to a shocking number of people displaced in the space of a few days are adequately provided for,” said Philip Luther, Amnesty International’s deputy director for the Middle East and North Africa.
Surely Yemen is not required, under the law of nations, in its search for any international criminals in its territory, to “displace thousands” of its own people in the process, just to demonstrate its good faith to the United States military, “or else”?
Furthermore, from yesterday’s reporting:
The U.S. Defense Department would not confirm the [2009] strikes.
“We applaud the efforts of Yemen and other countries in the region for addressing the terror threat within their borders,” said Pentagon spokesman Col. David Lapan. “DoD provides a broad range of support to Yemen to include training and equipment, but the nature of operations there are such that we are not always able to talk about them in detail.”
And then there’s this, from Al Jazeera’s Andrew Wander on September 26th:
The method of abduction [in January, 2010, from a sidewalk cafe on a street in Yemen, of American citizen Sharif Mobley] may have been brutal, but it was not the work of a rebel group or criminal gang. Instead, the armed men were Yemeni security agents, and in a set of legal documents seen by Al Jazeera, Mobley’s lawyers allege they were operating on behalf of the US government.
The documents, part of a freedom of information request submitted by Mobley’s legal team to US authorities, paint a disturbing picture of shadowy security cooperation between the US and Yemen in the wake of an alleged attempt by an al-Qaeda group based in the country to blow up an airliner over Detriot in December last year.
In the weeks that followed, Yemen shot up the priority list for US counter-terrorism planners. This year alone, military aid from Washington to Sana’a has reached $155mn, more than 30 times the amount given in 2006, and American special forces are known to be training Yemeni troops to fight armed groups.
[…]
Meanwhile, Mobley says he was chained, blindfolded, to a hospital bed, being interrogated by two men who introduced themselves as “Matt and Khan” and said they worked for the US government. His lawyers say the two men told him that he would never see his family again and would be raped in Yemeni prison.
The lawyers say he was interrogated repeatedly over the coming weeks, and that he was badly beaten by Yemeni security forces while being moved between detention facilities.
Eventually he says he was taken to another hospital, where Matt and Khan continued to question him over his links to al-Awlaki. His lawyers say that at no point was he offered consular assistance, and that he was desperate for news of his family, who he was told would be arrested.
[…]
“There are incidents where we see high level cooperation, and others where that cooperation breaks down,” says Abdul Ghani al-Aryani, a Yemeni political analyst. “If the government of Yemen cooperated in this case, it would be a risk free opportunity to gain credit with the Americans, given the individual in question is an American.”
Sound like any kind of “war” between the United States and Yemen? Or like any kind of an “imminent threat” that can’t be dealt with by the questioning or detention of Al-Awlaki by authorities of the nation of which he’s a citizen and resident? [“Imminent threat” exceptions to peacetime judicial process under the law of nations amount to the need to act as “a last resort to protect against concrete, specific, and imminent threats of death or serious physical injury,” or – in the words of American Secretary of State Daniel Webster, in a letter to the British Empire critical of an abuse of its power, in 1841 – from “a necessity of self-defense, instant, overwhelming, leaving no choice of means and no moment for deliberation.”]
According to CNN’s Jamjoom, the government of Yemen is now rightly asserting its sovereignty with regard to the fate of Anwar Al-Awlaki:
[Yemen’s Foreign Minister] Al-Qirbi further said that Yemen would not extradite U.S.-born radical Islamic cleric Anwar al-Awlaki to the United States if he were captured. “The U.S. has requested the extradition of other Yemeni citizens, but we refused to turn them over because our constitution prohibits the extradition of Yemeni citizen[s] to another country — and this would apply to al-Awlaki,” he said.
Al-Qirbi added that al-Awlaki “is in an area where we are conducting operations against al Qaeda, and he is one of the people targeted for capture in those operations.”
The 2001 AUMF-authorized armed conflict is evidently the Obama administration’s pretense for targeting Al-Awlaki, rather than any need to imminently act “in self-defense, with no moment for deliberation” inside a nation with which we are at peace (which the leisurely targeting of Al-Awlaki, on its own, clearly exposes). But even if the target language of that AUMF can somehow be stretched to fit its “armed conflict” over areas where there’s no actual fighting underway against U.S. forces a decade after 9/11 – a dangerous stretching that’s enabled by the continued absence of Congressional or meaningful judicial check on Executive action – so as to declare Al-Awlaki (but not Yemen) involved in the attacks of 9/11, it would mean that the rules of neutrality under the law of nations come into play. In which case, the identifying features of both our legitimate 9/11 enemy and evidence of Al-Awlaki’s membership in that enemy force or its “associated forces” should determine any responsibility that Yemen has, as a neutral state under the law of nations, at peace with the United States, to act on our behalf to mitigate any genuine threat that Al-Awlaki poses.
As the lawsuit filed by ACLU/CCR on behalf of Anwar Al-Awlaki and his father a month ago notes:
The right to life is the most fundamental of all rights. Outside the context of armed conflict, the intentional use of lethal force without prior judicial process is an abridgement of this right except in the narrowest and most extraordinary circumstances.
The United States is not at war with Yemen, or within it.
[…]
A targeted killing policy under which individuals are added to kill lists after a bureaucratic process and remain on these lists for months at a time plainly goes beyond the use of lethal force as a last resort to address imminent threats, and accordingly goes beyond what the Constitution and international law permit.
[…]
The first reported post-2001 targeted killing by the U.S. government outside Afghanistan occurred in Yemen in November 2002, when a CIA-operated Predator drone fired a missile at a suspected terrorist traveling in a car with other passengers. The strike killed all passengers in the vehicle, including a U.S. citizen. The United Nations Special Rapporteur on Extrajudicial Killings later stated that the strike constituted “a clear case of extrajudicial killing” and set an “alarming precedent.”
[…]
Executive officials have condemned Anwar Al-Aulaqi’s public statements and sermons; they have also alleged that he has “cast his lot” with terrorist groups and taken on an “operational” role in a terrorist organization. The U.S. government has not, however, publicly indicted Anwar Al-Aulaqi for any terrorism-related crime.
[…]
The Yemeni government has prosecuted other residents of Yemen for terrorism-related crimes, and the Yemeni government is currently prosecuting at least one U.S. citizen who is alleged to be a member of a terrorist organization. Anwar Al-Aulaqi has in the past been detained by the Yemeni government and was imprisoned for 18 months in 2006 and 2007.
Is the U.S. government’s sprawling “security” complex threatening/bribing/cajoling Yemen to kill (or to let be killed) an American (and Yemeni) citizen simply because it doesn’t trust Yemen’s justice system to bring Al-Awlaki to justice, won’t let the American justice system indict him, and/or won’t trust Yemen enough to share any American evidence of criminal acts that Al-Awlaki has committed? Or, in the absence of any independent check exerted by Congress and in the near term by federal district Judge John Bates, just because it can?
Volokh.com commenter David Schwartz, September 26, 2010:
It’s not that our enemies don’t deserve a day in court, it’s not that we don’t trust our courts to get things right. It’s simply that there is no other way to fight a war. Where there is not [such a war-driven] level of military necessity, there is no moral justification for bypassing the legal process. The power cannot legitimately extend beyond its moral justification.
[…]
We violate people’s rights not to be killed, bombed, and otherwise punished absent judicial conviction *only* when absolutely required to do so. Otherwise, we are lawless murderers.