On Monday, March 5, 2012, Attorney General Eric Holder gave a speech to law students in Chicago. The speech tried to clothe in a veneer of lawfulness the unchecked Executive Branch killing of American citizens, particularly the long-premeditated killing reported here – this time making the case outside the narrow, credulous confines of the D.C. Circuit appellate court, where federal judges consistently refuse to enforce Constitutional limits on Executive Branch departments (like Holder’s DOJ) when only the pleas of the powerless are at stake.
Holder’s carefully crafted presentation was, of course, a speech that amounts to the police and military powers of the Executive Branch of the government saying to the nation:
“Trust us, citizens. Sure we’ll comply with the requirements of the ‘law of war’ and the broader field of ‘international law,’ in our ‘wartime’ actions at home and abroad – particularly when nobody ever bothers to enforce those requirements….”
To cite just the most glaring, decade-long example of this Holder-promoted Executive Branch ability to opt-out of “law” altogether, in practice, under cover of “the law of war” (as noted in the 3/1 update to my related launch post): If – as claimed by the Executive Branch, whenever the “law of war” threatens to be enforced – “wartime” detainees aren’t detained (in Guantanamo, or Bagram, etc., etc.) pursuant to the 3rd Geneva Convention POW treaty ratified by the U.S. Senate (which mandates proper Article 5/Army Regulation 190-8 screening, and thus, if faithfully observed, adequate “non-judicial” due process) as part of an international armed conflict, then they’re detained pursuant to domestic law and its due process guarantees, and not pursuant to the international law of war.
But then, of course, we have the arguments that are hauled out by the DOJ when domestic law threatens to reassert itself (quoting from the 12/7/2010 Judge John Bates opinion that obligingly echoed government assertions of unchecked presidential power, and sealed Anwar Al-Awlaki’s fate): To hope to prevail against today’s national security state, Judge Bates decrees, a plaintiff (even one on a presidential hit list) must first overcome the “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.”
Meanwhile, our Congress continues to allow itself to be kept in the dark about even the self-serving Executive Branch Office of Legal Counsel’s – or any other – purported legal justification(s) for these armed-conflict-combat-zone-divorced killings.
On Thursday, March 8, 2012, during an unrelated press conference called by the Democratic leaders of the Senate to promote the unfinished Senate version of the reauthorized Surface Transportation Act, one reporter spoke up to ask Senate Majority Leader Harry Reid – the Democratic Boss of the in-the-dark, bystanding Senate – about the Attorney General’s speech, starting at 16:04 of this C-SPAN recording.
My transcription of the reporter’s superb question, and the answer of shameless presidential yes-man Harry Reid of Nevada:
Unidentified Male Reporter (@ 16:04): “Senator Reid?”
Senator Harry Reid: “Yes.”
Reporter: “A non-transportation question, if I might. What did you make of, or what was your reaction to the Attorney General’s speech earlier – to his, his statement that the Authorization for Use of Force that Congress passed [seven(? sic)] years ago justifies the targeting and killing of American citizens overseas who are deemed terrorists, and that due process is not necessarily judicial process?”
Senator Harry Reid (@ 16:32): “I have not studied the decision – the opinion – that he wrote, but in substance I support it 100%.”
- Jeremy Scahill caught this follow-up performance by Senator Reid on Sunday, March 11th, during Reid’s interview with Candy Crowley on her CNN show “State of the Union” (the full interview tape is here, the full transcript here):Abdulrahman Al-Awlaki was the teenage son of New Mexico-born Anwar Al-Awlaki, who, with his family, returned to live in Sana’a, Yemen in 2002. The U.S. government killed Abdulrahman in Yemen (along with his teenage cousin, and six others) for being “in the wrong place at the wrong time” – an anonymous “U.S. official” told TIME (or, in the words of Senate Majority Leader Harry Reid 3/11/12, for being a “terrorist” who “deserved to be killed”) – with an evening U.S. military-operated drone strike on October 14, 2011, two weeks after Abdulrahman’s father was killed (with three others) on September 30, 2011, also in Yemen, by American missiles that targeted and struck their vehicle(s). [The missiles that killed Anwar Al-Awlaki and three men near him (including Samir Khan, another American citizen) on September 30 were reportedly fired by a drone that was operated by the CIA, and by a U.S. military jet.]
The transcript of the Sunday exchange that Scahill witnessed:
STATE OF THE UNION WITH CANDY CROWLEY
Interview With Harry Reid; Interview With Dick Gephardt, Steve Forbes
Aired March 11, 2012 – 09:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
CROWLEY: Right. Let me ask you something about — something the attorney general said recently. He was giving a speech to Northwestern University Law School. And he was suggesting — he said, you know, people are arguing that for some reason the president needs to get permission from a federal court before taking action against a U.S. citizen overseas who’s an operational leader [says who, Candy?? - pow wow] in al Qaeda.
He says that’s just not accurate. That due process and judicial process are not one and the same. Do you have — and this is creating quite a stir. Do you have any problem with that? Do you understand what that means exactly? [Two different questions, so it's unclear which one Reid's first response was answering... - pow wow]
REID: No, I don’t. But I do know this. The non — the American citizens who have been killed overseas who are terrorists, and, frankly, if anyone in the world deserved to be killed, those three did deserve to be killed.
CROWLEY: And these were the three [U.S. citizens - Al-Awlaki father and son, plus one of the men killed with Anwar Al-Awlaki on 9/30/11 - pow wow] that were killed in Yemen. And I understand that. But just — are you slightly uncomfortable with the idea that the United States president, whoever it may be, can decide that this or that U.S. citizen living abroad is a threat to national security and kill them?
REID: Well, I don’t know what the attorney general meant by saying that. I’d have to study it a little bit. I’ve never heard that term [? - pow wow] before. But I think the process is in play. I think it’s one that I think we can live with. And I think with the international war on terror that’s going on now, we’re going to have to make sure that we have the tools to get some of these people who are very bad [says who, Harry Reid?? - pow wow] and comply with American law.
CROWLEY: And you think that the president should be able to make that decision in conjunction with the folks in the administration without going to a court, without going to you all, anything?
REID: There is a war going on. There’s no question about that. He’s the commander-in-chief. And there has been guidelines set. And if he follows those [how will you know if he does, or if he doesn't, "follow" those top-secret, internal "guidelines," Harry Reid? - pow wow], I think he should be able to do it.
CROWLEY: Senator Harry Reid, majority leader in the U.S. Senate, come back and see us again. Thank you so much.
REID: You’re sure welcome, Candy.
(3/14) See also: U.S. Targeted Killings: Official Confusion
(4/21) And see the April 14 report “Drone death in Yemen of an American teenager” by Toronto Star National Security Reporter Michelle Shephard, which includes portions of an interview in Yemen with Nasser Al-Awlaki, the father of Anwar Al-Awlaki and grandfather of Abdulrahman Al-Awlaki:
The family’s guard saw the grade nine student with a mop of curly hair leave the front gate at about 6:30 a.m. that morning on Sept. 4. Abdulrahman then made his way to the gates of Bab al-Yemen to catch a bus to a cousin’s house in Shabwa province in the south.
As he crossed the desert on his six-hour journey, his family awoke to news of his disappearance.
On Sept. 30, CIA-directed hellfire missiles blasted a target in northern Yemen, killing [Abdulrahman's] father and ending the two-year manhunt for the cleric whose preaching [allegedly] encouraged plots in the United States, United Kingdom and Canada.
There has been considerably less talk about what happened two weeks later.
On Oct. 14, U.S. drones pounded targets again, this time hundreds of kilometres away in the southeastern region of Azzan.
Abdulrahman, also born in the U.S., and his 17-year-old cousin were among the seven killed. They were apparently having a barbecue.
But his grandfather, Nasser al Awlaki, a Fulbright scholar, former agricultural minister and prominent figure in Yemen, said Abdulrahman had nothing to do with his father since he had gone into hiding in 2009.
It later emerged, but was not widely reported, that the [October 14, 2011] strike did not kill its purported target, AQAP’s media chief, Egyptian Ibrahim al Bana.
“We just don’t know why they did that,” [Nasser] Awlaki said of the U.S. strike. “Is it because Abdulrahman was there? It’s very possible, but I cannot claim with certainty what happened. Is it a blunder on their side?
“They cannot claim he’s collateral damage.”
“But with the boy,” he says. “It came out of nowhere.”
“It was really, really devastating for all of us.”
(4/22) In related news, on April 17, 2012 the ACLU and CCR announced:
Today the ACLU and the Center for Constitutional Rights filed a Freedom of Information Act request seeking information about a horrific U.S. missile strike that killed dozens of civilians in Yemen.
This was the Obama administration’s first known missile strike in Yemen, carried out with one or more cruise missiles launched from an American warship or submarine on December 17, 2009. The U.S. military reportedly used cluster bombs, killing at least 41 people in the remote mountain village of al-Majalah in Yemen’s Abyan province. The government was purportedly targeting “militants,” but those killed include at least 21 children and 14 women. Entire families were wiped out. It is the worst reported loss of civilian life from a U.S. targeted killing strike in Yemen to date.
A recently released film by journalist Jeremy Scahill and filmmaker Richard Rowley, America’s Dangerous Game, vividly illustrates the human toll of the strike, and describes the backlash against it in Yemen. In the below clip from the film, you’ll see footage taken just after the strike, of child victims, images of missile parts scattered across the landscape, many clearly stamped as made in the U.S., and interviews with the few survivors.
The images are horrifying. Rarely has the American public seen so clearly the human costs of America’s targeted killing campaign.
Government officials repeatedly minimize or deny civilian deaths caused by the targeted killing program, but increasing reports of civilian casualties caused by strikes in Yemen, Pakistan, and elsewhere raise serious questions about whether the government is violating international and domestic law by [among other things...] failing to distinguish between civilians and combatants, and by using lethal force away from active battlefields.