The murder of innocents

by, Alan Gilbert

There are two negative political aspects to the use of drones to murder people halfway across the world. The first which I will illustrate from the New York Times’ front page – vapidly reported in the current pseudo-journalistic style – is that the US government often murders innocent people, including leaders of an unnamed village fighting Al-Qaida, women and children.

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This is not incidental to the policy; it is, as Syed Riffaat Hussain, my student and the leading academic and often military strategic studies specialist in Pakistan describes, its essence.

Rifaat has argued this point to “strategic studies” people at Stanford including his onetime colleague Condi Rice. In public gatherings, they are too ashamed apparently to respond.

They are actors in (Rice) or supporters of a war complex which makes speaking English about drone murders more than they can handle. See Andrew O’Hehir here.

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The second aspect of the policy is that it all takes place in secret: of the government, by the government, for the government. Glenn Greenwald aptly names this process (below), and it is tyrannical, done by Barack Obama or George Bush. It is the policy of a war criminal government, as understood both in international and American law – see here – and not the policy of a decent regime.

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Here are Greenwald’s words:

“But of course, when this memo refers to ‘a Senior Operational Leader of al-Qaida’, what it actually means is this: someone whom the President – in total secrecy and with no due process – has accused of being that. Indeed, the memo itself makes this clear, as it baldly states that presidential assassinations are justified when “an informed, high-level official of the US government has determined that the targeted individual poses an imminent threat of violent attack against the US.”

This is the crucial point: the memo isn’t justifying the due-process-free execution of senior al-Qaida leaders who pose an imminent threat to the US. It is justifying the due-process-free execution of people secretly accused by the president and his underlings, with no due process, of being that. The distinction between (a) government accusations and (b) proof of guilt is central to every free society, by definition, yet this memo – and those who defend Obama’s assassination power – willfully ignore it.”

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This is the distinction between the rule of law in a free society and tyranny…

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It sanctions the murder of innocents, including Americans (the assassination of Awlaki’s 16 year old son and his companion, for example), at the behest of the President.

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Study John Brennan’s face – for instance, here – and you will see a picture of Dorian Gray, what a (war) criminal looks like.

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The report on the Times‘ front page on Tuesday tells a story at the beginning of the article which should stop every reader cold. It was tucked into the article as a somewhat witting tribute to truth in a newspaper uninterested in truth (the standard style or “framing” of corporate reporting: “Jews and Roma have their opinion, Hitler has his opinion/Mitt Romney does not believe in climate change (right now)/ scientists do; the moon is made of green cheese/no, it isn’t…”)

Here are the words:

“SANA, Yemen — Late last August, a 40-year-old cleric named Salem Ahmed bin Ali Jaber stood up to deliver a speech denouncing Al Qaeda in a village mosque in far eastern Yemen. It was a brave gesture by a father of seven who commanded great respect in the community, and it did not go unnoticed. Two days later, three members of Al Qaeda came to the mosque in the tiny village of Khashamir after 9 p.m., saying they merely wanted to talk. Mr. Jaber agreed to meet them, bringing his cousin Waleed Abdullah, a police officer, for protection.

As the five men stood arguing by a cluster of palm trees, a volley of remotely operated American missiles shot down from the night sky and incinerated them all, along with a camel that was tied up nearby.

The killing of Mr. Jaber, just the kind of leader most crucial to American efforts to eradicate Al Qaeda, was a reminder of the inherent hazards of the quasi-secret campaign of targeted killings that the United States is waging against suspected militants not just in Yemen but also in Pakistan and Somalia. Individual strikes by the Predator and Reaper drones are almost never discussed publicly by Obama administration officials. But the clandestine war will receive a rare moment of public scrutiny on Thursday, when its chief architect, John O. Brennan, the White House counterterrorism adviser, faces a Senate confirmation hearing as President Obama’s nominee for C.I.A. director.”

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These are New York Times’ reporters (Mark Mazzetti, Scott Shane, Robert Wort) on the front-page. They are speaking of a case well-known to and not officially denied by (though not talked about publically by) the Obama administration.

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This is not a lone case. This is a case which Brennan who “officially” counts all killings of males near a US government suspected terrorist (sometimes just a person of the Middle East or Africa who breathes) as also a terrorist probably does not “officially” deny (he does not say anything about it).

The Times‘ reporters speak only of the most egregious cases. But the US does not and cannot collect information on this (see Dexter Filkins’ article from the New Yorker below). The actual numbers of innocents killed is much worse.

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Listen again:

“Late last August, a 40-year-old cleric named Salem Ahmed bin Ali Jaber stood up to deliver a speech denouncing Al Qaeda in a village mosque in far eastern Yemen. It was a brave gesture by a father of seven who commanded great respect in the community…”

Do people who respect Jaber and Waleed Abdullah, his cousin and a police officer in this community, admire the United States?

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Remember September 11th, 2001 when terrorists crashed into the World Trade Center? Did we feel good about them?

Did we as a people want to harm those responsible?

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Is the murder of innocents good when the US government does it, bad when someone else does it?

Is it consequence-free when anyone (let alone those hiding half way around the world with drone technology but no heart or courage) does it…?

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The reporters make the point about Mr. Jaber’s importance to fighting Al-Qaida (made the opposite by erasing him), but then blither irrelevantly:

“The killing of Mr. Jaber, just the kind of leader most crucial to American efforts to eradicate Al Qaeda, was a reminder of the inherent hazards of the quasi-secret campaign of targeted killings that the United States is waging against suspected militants not just in Yemen but also in Pakistan and Somalia.”

No, the “targeted killings” of Mr. Jaber and Mr. Waleed were murders by Presdient Obama and the American government.

Circumlocution helps distract the readers of the Times. But murders are not to be fobbed off in the light of supposed “hazards(??!!) of a quasi-secret campaign…against suspected militants” allegedly to protect Americans.

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Because these were acts of pure evil, these murders also – as a side effect – do the opposite: endangering Americans. It gives a just cause to many who would not otherwise join or tolerate striking at American officials, let alone ordinary Americans whom they can reach (the latter is a vile and criminal response).

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It would be wise, ethically and politically, here and abroad, to oppose American crimes with mass nonviolent resistance. But the injustice and bad consequences of what the Obama administration does with drones are gruesome.

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Full stop. The rest of the article is unnecessary.

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No civilized country does such things.

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On the chart accompanying the article here, we learn that 80 civilians have been murdered in Yemen on what has so far been “officially” released. These would be crimes of war against innocents, even were the US officially at war with Yemen; they are, as it stands, just murders. These figures are drawn from official US government accounts and are thus very low.

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The reporters talk around the murderousness of the program as if
when the President murders people in another country, it is not…murder.
(Bobby Jindal named the Republicans the party of stupid, but one might wonder whether this kind of stupid and dishonest reporting – what theTimes‘ cultivates – does not provide the cover for them as well as acquiescent Democrats – i.e. Dianne Feinstein – to sanction murder?)

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The Times‘ story does break the news that Brennan negotiated a secret base in Saudi Arabia – not previously announced in the commercial press because of a request by the administration – because it is obviously relevant to Brennan’s nomination. See Eric Wemple in the Washington Post here. This is a small step toward being a journalistic organization.

But that the administration routinely murders innocent people in Yemen and that the Times has long kept it secret from the American people the editors do not allow, in ordinary English, to be said.

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Ann Wright, an American soldier and diplomat – one of three State Department officials who honorably resigned when President Bush launched the aggression in Iraq – read names of those killed in Pakistan by drones. See here and here. She was not named when Senator Feinstein threw out and had arrested 8 women from Code Pink.

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Is Dianne Feinstein a more distinguished or honorable servant of the American people than Ann Wright?* Why did the Times not find it possible to get her account of who John Brennan is?

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Dexter Filkins offers a similar report of talking with the maimed survivors about those murdered in Al Mahajalah in the New Yorker. He speaks rightly of the “black hole of ignorance” which is American policy. The CIA just didn’t know, sending in the drones with the most distant and threadbare intelligence, that there would be women there…

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Brennan and Obama engage in a ritual ceremony of baseball cards with potential candidates for assassination at the White House every Tuesday afternoon. They choose targets to avoid even more extensive murders (the blowing up three years of a wedding party in Yemen of over a hundred people, better than half women and children…). Despite Brennan’s grave and “priestly” air, they often do not have the vaguest idea of who they are taking out.

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Also a “national security reporter,” Filkins, as he reveals the horrors they do (see below), apologizes for Brennan and Obama.

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The Emperor’s New Clothes are fancy, woven thread by thread by the New York Times and New Yorker, over the years and even now…

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Andrew Sullivan, a longtime opponent of torture (more foolish about drones) and a wonderful supporter of Obama, asks: where have you gone, Barack Obama? (below) This is, of course, a refrain – “the nation turns its lonely eyes to you” from the Simon and Garfunkel song “Mrs. Robinson” in the movie “The Graduate.”

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It is also a fact that Obama has catered to militarism and the “intelligence” establishment by becoming a war criminal. It is what Presidents do. He has altered some previous criminality for instance waterborading (Brennan oversaw this under President Bush, and now says he is against this, but, master of the dodge, refuses to acknowledge that it is a war crime. Here are some of his testimony and apt comments by former CIA officer Melvin Goodman.

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In the American empire, this is, in fact, a normal matter. See the Open Society Institute’s important report written by Amrit Singh here which discusses renditions, a practice of which Brennan is, in Congressional testimony, the leading advocate.

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Scott Shane, Mark Mazzetti and Robert Worth, with characteristic circumlocution though they know and perhaps even intend, in New York Times-speak, to reveal the truth, also tell of the effect on ordinary people of drones hovering overhead constantly in Yemen:

“Yet even as both Mr. Brennan and Mr. Hadi, the Yemeni president, praise the drone technology for its accuracy, other Yemenis often point out that it can be very difficult to isolate members of Al Qaeda, thanks to the group’s complex ties and long history in Yemen.

This may account for a pattern in many of the drone strikes: a drone hovers over an area for weeks on end before a strike takes place, presumably waiting until identities are confirmed and the targets can be struck without anyone else present.

In the strike that killed Mr. Jaber, the cleric, that was not enough. At least one drone had been overhead every day for about a month, provoking high anxiety among local people, said Aref bin Ali Jaber, a tradesman who is related to the cleric. “After the drone hit, everyone was so frightened it would come back,” Mr. Jaber said. “Children especially were affected; my 15-year-old daughter refuses to be alone and has had to sleep with me and my wife after that.”

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Are the words of Brennan (and Obama and Feinstein and the Times) to be believed, or the actions of this fifteen year old girl?

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Presiding over 1280 military bases, with a secret army, the Joint Special Operations Command, some 60,000, larger than most of the armies of the world and sent on some 12 missions a night, Obama has chosen to make himself safe as a politician – to outflank the crazed “Republican” that is, authoritarian, imperial, patriarchal, racist party which always screams for more war – by becoming a measured killer. He took out Bin Laden, a commendable act – see herehere, and here – without drones, but at Tuesday meetings in the White House with the unctuous Brennan, he selects baseball cards of those who would be murdered and fancies any one else a terrorist.

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Obama and Brennan define any young man killed in the vicinity of a terrorist as a terrorist.

Thus, Mr. Jaber, a father of 7, a leader in and cleric of his village in Yemen (the place is nameless in the Times‘ story) and Waleed Abdullah, a police chief, his cousin, are on the successfully assassinated terrorist list…

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No, John Brennan and Dianne Feinstein and the Times do not need Joanne Lingle reading the names of 198 dead Pakistani children at the “hearing”…

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The Times knows about this false counting (it is where I learned it in the long article on the Tuesday meetings last October) and chooses not to speak English about it…

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Anwar Awlaki, a Coloradoan, was killed on suspicion – secret information – of being a bad guy with no hearings (I heard Randi Rhodes, an ordinarily sensible radio commentator, on Wednesday night, speaking vapidly of Awlaki as if there were something aside from embroidered gossip by John Brennan which proves his involvement in acts of terror – to require such information is why we have, or rather had, the rule of law, after all. She here emulates the “Republicans” whom she often rightly mocks.)

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The rule of law is not one thing for some but unnecessary for others.

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That Cheney and Bush and Rumsfeld and Rice did evil – Cheney the crazed leader, Rice the woman without a moral compass (my student, once upon a time, sadly caught up in wanting at all costs to “rise”) and fostered a police state here – put in place regulations/practices which enable the executive to commit crimes with no review and no real limitations – does not mean that Obama, a better leader in many respects, is not a tyrant when he does similar things.

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America is, once again, a bipartisan police state in which the President can order the killing of Americans, including a 16 year old, and release no information about it, and the Times and the New Yorker will offer such reporting as this. This is the ring of power, Plato’s ring of Gyges…See here.

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Senator Angus King asked a real question of Brennan. He has not yet learned the ways of the Senate, to become merely a sycophant of the powerful in one’s own party and the other party, say a Dianne Feinstein, or for the crimes of one own’s party (John McCain, Lindsay Graham), howling for even more extreme crimes from the other…

“SEN. ANGUS KING: Having the executive being the prosecutor, the judge, the jury and the executioner, all in one, is very contrary to the traditions and the laws of this country, and particularly in a situation where there is time. If—a soldier on a battlefield doesn’t have time to go to court. But if you’re planning a strike over a matter of days, weeks or months, there is an opportunity to at least go to some outside-of-the-executive-branch body, like the FISA court, in a confidential and top-secret way, make the case that this American citizen is an enemy combatant.”

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Brennan evaded the question:

“JOHN BRENNAN: Senator, I think it’s certainly worthy of discussion. Our tradition, our judicial tradition, is that a court of law is used to determine one’s guilt or innocence for past actions, which is very different from the decisions that are made on the battlefield as well as actions that are taken against terrorists, because none of those actions are to determine past guilt for those actions that they took. The decisions that are made are to take action so that we prevent a future action, so we protect American lives. That is an inherently executive branch function.”

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King, sadly, did not press his question.

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Think of a President Romney advised by a Brennan or a Santorum or a Bachman or any of the others – say, a Christie or a Rubio – next perhaps to be elected.

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And then think even of Hillary Clinton, the favorite, in with General Petraeus on many of these policies, supporting “her and Bill’s friends” (her words) the Mubaraks to the last (even when Barack finally defended the people of Arab spring)…

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None of these would-be Presidents are more trustworthy about murdering people with no legal process than Obama. No one is above the law…

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Some are hoping that the Senate will come up with some guidelines. Perhaps a FISA court, which is an independent review committee set up under President Carter, as Feinstein ruminates, and routinely affirmed government requests to spy on Americans (99.9999%) – and was then ignored by the tyrannical Bush-Cheney administration.

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As some judges pointed out, no judge can sit honorably in a “court” in which there is only the prosecution, no defense. And the proposed “court” would be secret.

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It has less of a relationship to the rule of law than even the Times in this case, to journalism…

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Such a semblance of law is preferable to abject tyranny (the national security state at the moment). But it is no more.

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In 100 years if there is no large movement from below now, historians will write (if there are still humans surviving) of how the US government wantonly murdered people as part of its militarism. Obama and Brennan will perhaps appear as priestly (in some ways murdering fewer than Bush’s aggressions and tortures). Or perhaps historians will take the Jack Goldsmith view (a war criminal about renditions who had difficulties about torture in the previous admonition). Bush, Goldsmith says, captured prisoners (Guantanamo and Bagram). Obama and the latest incarnation of Brennan just murder them.

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The American people reelected Obama, an enormous anti-racist achievement, one which preserved some decency, on balance, of the US government. Consider that America has not bombed Iran, or the inclusiveness about gays and fighting against the war on women…

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John Brennan promises not to do waterboarding – he differs with the Bush administration, during which he participated in, in certain ways, led the torture apparatus.

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But Brennan murders people with drones, every Tuesday afternoon in the White House and soon at the CIA without a second thought. Speaking only with people in the intelligence apparatus and tyrants in Yemen who gain from the murders, he may believe himself (though there is probably a limit to his self deception) a decent man.

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As the credulous W and Condi invoked John Yoo, so Obama, the “priestly” Brennan…

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America will not murder its way to security. Pushing Israel to stop its apartheid in the occupied terrorities would accomplish something positive in diminishing justifiable enmity to the United States.

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In addition a mass movement from below might diminish American militarism (the sequester directed at the Pentagon would be a start) and the internal police state.

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Releasing and clearing the records of all prisoners jailed for marijuana possession, nearly 80% of the increase since the 1970s (see Michelle Alexander, The New Jim Crow), would also be a start.

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Is there really a difference between Bush era torture (also murdering over 100 prisoners in American custody) and the taking out of Mr. Jabar and Mr. Waheed, put on the front page of the Times in an article that discusses at length the possible “merits” of secret drone assassinations even of American citizens?

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Should one be proud to live in a regime where the newspaper of record, often good editorially on important issues, provides, so frank an admission, despite attempts at circumlocution, of murderousness and tyranny and palms it off as, as it were, “enhanced security”?

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Drone Strikes’ Risks to Get Rare Moment in the Public Eye

[the program would not reproduce the photograph}
Khaled Abdullah/Reuters
Tribesmen on the rubble of a building destroyed on Sunday in an American drone strike against suspected militants in Shabwa Province in southeastern Yemen.

By ROBERT F. WORTH, MARK MAZZETTI and SCOTT SHANE
Published: February 5, 2013

SANA, Yemen — Late last August, a 40-year-old cleric named Salem Ahmed bin Ali Jaber stood up to deliver a speech denouncing Al Qaeda in a village mosque in far eastern Yemen.

It was a brave gesture by a father of seven who commanded great respect in the community, and it did not go unnoticed. Two days later, three members of Al Qaeda came to the mosque in the tiny village of Khashamir after 9 p.m., saying they merely wanted to talk. Mr. Jaber agreed to meet them, bringing his cousin Waleed Abdullah, a police officer, for protection.

As the five men stood arguing by a cluster of palm trees, a volley of remotely operated American missiles shot down from the night sky and incinerated them all, along with a camel that was tied up nearby.

The killing of Mr. Jaber, just the kind of leader most crucial to American efforts to eradicate Al Qaeda, was a reminder of the inherent hazards of the quasi-secret campaign of targeted killings that the United States is waging against suspected militants not just in Yemen but also in Pakistan and Somalia. Individual strikes by the Predator and Reaper drones are almost never discussed publicly by Obama administration officials. But the clandestine war will receive a rare moment of public scrutiny on Thursday, when its chief architect, John O. Brennan, the White House counterterrorism adviser, faces a Senate confirmation hearing as President Obama’s nominee for C.I.A. director.

From his basement office in the White House, Mr. Brennan has served as the principal coordinator of a “kill list” of Qaeda operatives marked for death, overseeing drone strikes by the military and the C.I.A., and advising Mr. Obama on which strikes he should approve.

“He’s probably had more power and influence than anyone in a comparable position in the last 20 years,” said Daniel Benjamin, who recently stepped down as the State Department’s top counterterrorism official and now teaches at Dartmouth. “He’s had enormous sway over the intelligence community. He’s had a profound impact on how the military does counterterrorism.”

Mr. Brennan, a former C.I.A. station chief in Riyadh, Saudi Arabia, has taken a particular interest in Yemen, sounding early alarms within the administration about the threat developing there, working closely with neighboring Saudi Arabia to gain approval for a secret C.I.A. drone base there that is used for American strikes, and making the impoverished desert nation a test case for American counterterrorism strategy.

In recent years, both C.I.A. and Pentagon counterterrorism officials have pressed for greater freedom to attack suspected militants, and colleagues say Mr. Brennan has often been a restraining voice. The strikes have killed a number of operatives of Al Qaeda in the Arabian Peninsula, the terrorist network’s affiliate in Yemen, including Said Ali al-Shihri, a deputy leader of the group, and the American-born cleric Anwar al-Awlaki.
But they have also claimed civilians like Mr. Jaber and have raised troubling questions that apply to Pakistan and Somalia as well: Could the targeted killing campaign be creating more militants in Yemen than it is killing? And is it in America’s long-term interest to be waging war against a self-renewing insurgency inside a country about which Washington has at best a hazy understanding?

Several former top military and intelligence officials — including Stanley A. McChrystal, the retired general who led the Joint Special Operations Command, which has responsibility for the military’s drone strikes, and Michael V. Hayden, the former C.I.A. director — have raised concerns that the drone wars in Pakistan and Yemen are increasingly targeting low-level militants who do not pose a direct threat to the United States.

In an interview with Reuters, General McChrystal said that drones could be a useful tool but were “hated on a visceral level” in some of the places where they were used and contributed to a “perception of American arrogance.”

Mr. Brennan has aggressively defended the accuracy of the drone strikes, and the rate of civilian casualties has gone down considerably since the attacks began in Yemen in 2009. He has also largely dismissed criticism that the drone campaign has tarnished America’s image in Yemen and has been an effective recruiting tool for Al Qaeda.
“In fact, we see the opposite,” Mr. Brennan said during a speech last year. “Our Yemeni partners are more eager to work with us. Yemeni citizens who have been freed from the hellish grip of A.Q.A.P. are more eager, not less, to work with the Yemeni government.”

Christopher Swift, a researcher at Georgetown University who spent last summer in Yemen studying the reaction to the strikes, said he thought Mr. Brennan’s comments missed the broader impact.

Robert F. Worth reported from Sana, and Mark Mazzetti and Scott Shane from Washington.

“What Brennan said accurately reflected people in the security apparatus who he speaks to when he goes to Yemen,” Mr. Swift said. “It doesn’t reflect the views of the man in the street, of young human rights activists, of the political opposition.”

Though Mr. Swift said he thought that critics had exaggerated the role of the strikes in generating recruits for Al Qaeda, “in the political sphere, the perception is that the U.S. is colluding with the Yemeni government in a covert war against the Yemeni people.”

“Even if we’re winning in the military domain,” Mr. Swift said, “drones may be undermining our long-term interest in the goal of a stable Yemen with a functional political system and economy.”

A Parallel Campaign

American officials have never explained in public why the C.I.A. and the Pentagon’s Joint Special Operations Command are carrying out parallel drone campaigns in Yemen.

Privately, however, they describe an arrangement that has evolved since the frantic, ad hoc early days of America’s war there.

The first strike in Yemen ordered by the Obama administration, in December 2009, was by
all accounts a disaster. American cruise missiles carrying cluster munitions killed dozens of civilians, including many women and children. Another strike, six months later, killed a popular deputy governor, inciting angry demonstrations and an attack that shut down a critical oil pipeline.

Not long afterward, the C.I.A. began quietly building a drone base in Saudi Arabia to carry out strikes in Yemen. American officials said that the first time the C.I.A. used the Saudi base was to kill Mr. Awlaki in September 2011.

Since then, officials said, the C.I.A. has been given the mission of hunting and killing “high-value targets” in Yemen — the leaders of Al Qaeda in the Arabian Peninsula who Obama administration lawyers have determined pose a direct threat to the United States. When the C.I.A. obtains specific intelligence on the whereabouts of someone on its kill list, an American drone can carry out a strike without the permission of Yemen’s government.

There is, however, a tighter leash on the Pentagon’s drones. According to American officials, the Joint Special Operations Command must get the Yemeni government’s approval before launching a drone strike. This restriction is in place, officials said, because the military’s drone campaign is closely tied to counterterrorism operations conducted by Yemeni special operations troops.

Yemen’s military is fighting its own counterinsurgency battle against Islamic militants, who gained and then lost control over large swaths of the country last year. Often, American military strikes in Yemen are masked as Yemeni government operations.
Moreover, Mr. Obama demanded early on that each American military strike in Yemen be approved by a committee in Washington representing the national security agencies. The C.I.A. strikes, by contrast, resulted from a far more closed process inside the agency. Mr. Brennan plays a role in overseeing all the strikes.

There have been at least five drone strikes in Yemen since the start of the year, killing at least 24 people. That continues a remarkable acceleration over the past two years in a program that has carried out at least 63 airstrikes since 2009, according to The Long War Journal, a Web site that collects public data on the strikes, with an estimated death toll in the hundreds. Many of the militants reported killed recently were very young and do not appear to have had any important role with Al Qaeda.
“Even with Al Qaeda, there are degrees — some of these young guys getting killed have just been recruited and barely known what terrorism means,” said Naji al Zaydi, a former governor of Marib Province, who has been a vocal opponent of Al Qaeda and a supporter of Yemen’s president, Abdu Rabbu Mansour Hadi.

Mr. Zaydi, a prominent tribal figure from an area that has long been associated with members of Al Qaeda’s Yemeni affiliate, pointed out that the identity and background of these men were no mystery in Yemen’s interlinked tribal culture.

A Deadly Ride

In one recent case, on Jan. 23, a drone strike in a village east of Sana killed a 21-year-old university student named Saleem Hussein Jamal and his cousin, a 33-year-old teacher named Ali Ali Nasser Jamal, who happened to have been traveling with him. According to relatives and neighbors of the two men, they were driving home from a nearby town called Jahana when five strangers offered to pay them for a ride. The drone-fired missile hit the vehicle, a twin-cab Toyota Hilux, just outside the village of Masnaa at about 9 p.m. The strangers were later identified in Yemeni news reports as members of Al Qaeda, though apparently not high-ranking ones.

[the program would not reproduce the photo; see here]
Brendan Smialowski/Getty Images

“He’s probably had more power and influence than anyone in a comparable position on the last 20 years.” Daniel Benjamin, a former top counterterrorism official at the State Department, speaking about John O. Brennan, President Obama’s choice to lead the C.I.A.

After the strike, villagers were left to identify their two dead relatives from identity cards, scraps of clothing and the license plate of Mr. Jamal’s Toyota; the seven bodies were shredded beyond recognition, as cellphone photos taken at the scene attest. “We found eyes, but there were no faces left,” said Abdullah Faqih, a student who knew both of the dead cousins.

Although most Yemenis are reluctant to admit it publicly, there does appear to be widespread support for the American drone strikes that hit substantial Qaeda figures like Mr. Shihri, a Saudi and the affiliate’s deputy leader, who died in January of wounds received in a drone strike late last year.

Al Qaeda has done far more damage in Yemen than it has in the United States, and one episode reinforced public disgust last May, when a suicide bomber struck a military parade rehearsal in the Yemeni capital, killing more than 100 people.

Moreover, many Yemenis reluctantly admit that there is a need for foreign help: Yemen’s own efforts to strike at the terrorist group have often been compromised by weak, divided military forces; widespread corruption; and even support for Al Qaeda within pockets of the intelligence and security agencies.

Yet even as both Mr. Brennan and Mr. Hadi, the Yemeni president, praise the drone technology for its accuracy, other Yemenis often point out that it can be very difficult to isolate members of Al Qaeda, thanks to the group’s complex ties and long history in Yemen.

This may account for a pattern in many of the drone strikes: a drone hovers over an area for weeks on end before a strike takes place, presumably waiting until identities are confirmed and the targets can be struck without anyone else present.

In the strike that killed Mr. Jaber, the cleric, that was not enough. At least one drone had been overhead every day for about a month, provoking high anxiety among local people, said Aref bin Ali Jaber, a tradesman who is related to the cleric. “After the drone hit, everyone was so frightened it would come back,” Mr. Jaber said. “Children especially were affected; my 15-year-old daughter refuses to be alone and has had to sleep with me and my wife after that.”

Anger at America

In the days afterward, the people of the village vented their fury at the Americans with protests and briefly blocked a road. It is difficult to know what the long-term effects of the deaths will be, though some in the town — as in other areas where drones have killed civilians — say there was an upwelling of support for Al Qaeda, because such a move is seen as the only way to retaliate against the United States.

Innocents aside, even members of Al Qaeda invariably belong to a tribe, and when they are killed in drone strikes, their relatives — whatever their feelings about Al Qaeda — often swear to exact revenge on America.

“Al Qaeda always gives money to the family,” said Hussein Ahmed Othman al Arwali, a tribal sheik from an area south of the capital called Mudhia, where Qaeda militants fought pitched battles with Yemeni soldiers last year. “Al Qaeda’s leaders may be killed by drones, but the group still has its money, and people are still joining. For young men who are poor, the incentives are very strong: they offer you marriage, or money, and the ideological part works for some people.”

In some cases, drones have killed members of Al Qaeda when it seemed that they might easily have been arrested or captured, according to a number of Yemeni officials and tribal figures. One figure in particular has stood out: Adnan al Qadhi, who was killed, apparently in a drone strike, in early November in a town near the capital.

Mr. Qadhi was an avowed supporter of Al Qaeda, but he also had recently served as a mediator for the Yemeni government with other jihadists, and was drawing a government salary at the time of his death. He was not in hiding, and his house is within sight of large houses owned by a former president of Yemen, Ali Abdullah Saleh, and other leading figures.

Whatever the success of the drone strikes, some Yemenis wonder why there is not more reliance on their country’s elite counterterrorism unit, which was trained in the United States as part of the close cooperation between the two countries that Mr. Brennan has engineered. One member of the unit, speaking on the condition of anonymity, expressed great frustration that his unit had not been deployed on such missions, and had in fact been posted to traffic duty in the capital in recent weeks, even as the drone strikes intensified.

“For sure, we could be going after some of these guys,” the officer said. “That’s what we’re trained to do, and the Americans trained us. It doesn’t make sense.”

Robert F. Worth reported from Sana, and Mark Mazzetti and Scott Shane from Washington.

THE NEW YORKER

FEBRUARY 7, 2013
WHAT WE DON’T KNOW ABOUT DRONES
POSTED BY DEXTER FILKINS

When I read the news that John Brennan was set to appear before the Senate in hopes of becoming of the C.I.A. director, I thought of the group of villagers I met at a seaside hotel in Yemen two years ago. They had driven many miles to see me, coming from the Yemen countryside in a pair of battered taxis, and they were waiting in the hotel parking lot. There were about a dozen of them in all. It was a beautiful hotel, called the Mercure, with panoramic views of Aden harbor. The villagers, dressed in robes and rags, looked out of place, but they’d come to talk.

I had flown to Yemen to report on the popular uprising that was unfolding against the regime of Ali Abdullah Saleh, but I was also trying to find out about the secret war that the United States was waging there. In December, 2009, the Yemeni government had announced that its Air Force had bombed an Al Qaeda training camp in the village of Al Majalah, in a remote corner of the country, killing thirty-four fighters, and that the U.S. had provided the intelligence for the strike. The reality, as I discovered, was different.

For starters, as American officials confirmed, the attack was not carried out by the Yemeni Air Force but, rather, by the United States. The U.S. had launched a volley of Tomahawk cruise missiles from a ship off the coast. (As far as we know, most of the attacks in Yemen since then have been carried out with drones.) As was later revealed in documents released by Wikileaks, American and Yemeni officials had reached a secret agreement that allowed the U.S. to take action against suspected terrorists. The Yemeni President told General David Petraeus, then the head of CENTCOM, “We’ll continue saying the bombs are ours, not yours.”

As I wrote in a Letter from Yemen, in 2011, the villagers from Al Majalah had come to the hotel parking lot tell me their story:

Hussein Abdullah, a herdsman, told me that he had been tending a herd of goats and camels when Al Majalah was hit. He recalled lying in his tent at sunrise, half-awake, when there was an enormous flash. “The sky turned white,” Abdullah said. “Everything suddenly disappeared.” He was knocked unconscious, and when he came to, he told me, he saw his wife running toward him. “And when she threw her arms around me I felt blood all over me,” he said. She died, as did his daughter; only his infant son survived.

That same evening, I met a fifteen-year-old girl named Fatima Ali, who, when she rolled up the sleeves of her chador, showed me terrible burns. Another girl was missing a finger. Her mother, she said, had been killed by the strike.

Some months after the attack in Al Majalah, Amnesty International released photos showing an American cluster bomb and a propulsion unit from a Tomahawk cruise missile. A subsequent inquiry by the Yemeni parliament found that fourteen Al Qaeda fighters had been killed—along with forty-one civilians, including twenty-three children.

Later, when I spoke to American officials, they seemed genuinely perplexed. They didn’t deny that a large number of civilians had been killed. They felt bad about it. But the aerial surveillance, they said, had clearly showed that a training camp for militants was operating there. “It was a terrible outcome,” an American official told me. “Nobody wanted that.”

None of the above is intended as an attack on Brennan, who has spent the past four years as President Obama’s counterterrorism advisor. He has a hard job. He is almost always forced to act on the basis of incomplete information. His job is to keep Americans safe, and he’s done that. Al Qaeda’s leadership, particularly in the tribal areas of Pakistan, has been decimated. Operating in Yemen, where vast tracts of the country lie beyond anyone’s control, cannot be easy.

But, as the details from the Al Majalah show, even the best-intentioned public servants operating with what appears to be decent intelligence can get things horribly wrong. Maybe Al Majalah was indeed an Al Qaeda training camp—maybe those aerial surveillance images were spot on. But, in retrospect, we know that the cameras missed the women and children.

Indeed, if there is one overriding factor in America’s secret wars—especially in its drone campaign—it’s that the U.S. is operating in an information black hole. Our ignorance is not total, but our information is nowhere near adequate. When an employee of the C.I.A. fires a missile from an unmanned drone into a compound along the Afghan-Pakistani border, he almost certainly doesn’t know for sure whom he’s shooting at. Most drone strikes in Pakistan, as an American official explained to me during my visit there in 2011, are what are known as “signature strikes.” That is, the C.I.A. is shooting at a target that matches a pattern of behavior that they’ve deemed suspicious. Often, they get it right and they kill the bad guys. Sometimes, they get it wrong. When Brennan claimed, as he did in 2011—clearly referring to the drone campaign—that “there hasn’t been a single collateral death,” he was most certainly wrong.

The same is true of opponents of the drone war, who sometimes lay claim to much more knowledge than they actually possess. And so, when a Pakistani newspaper reports that twenty civilians were killed in an attack, it is often taken as gospel truth, even though, as is often the case, the reporting is done over the telephone. For Americans—who are, after all, the ones whose country is firing the drones—it’s more or less impossible to independently verify many details of a drone strike. The reason is obvious: for a Western diplomat or reporter to go to the area where most of the drone strikes have taken place would be reckless in the extreme. (I’ve been to the tribal areas twice on my own. The first time, I was arrested and expelled by the Pakistani government; the second time, I was invited by a Taliban warlord who was killed six weeks later. Each trip took days of preparation and negotiation to arrange.)

The best and most painstaking attempts to get at the truth of the drone war—like one by the New America foundation—acknowledge the difficulty of the enterprise. The New America study found that between 2004 and 2010, the U.S. carried out a hundred and fourteen strikes, which the study’s authors estimated killed between eight hundred and thirty and twelve hundred and ten people. Of those, the study found, between five hundred and fifty and eight hundred and fifty—roughly two-thirds—were probably militants. Included in the dead were many militant leaders. That means that roughly a third of the dead—several hundred—were probably civilians. That’s a lot of bodies.

These may be the best estimates we have, but they are still approximations.

Brennan is likely to face sharp questioning in front of the Senate Intelligence Committee, as well he should. You will hear a lot of claims about militants killed and civilians killed and civilians spared. Most likely, neither side will be entitled to its shrillness. If the Al Majalah strike has any value now, it should be to remind us not just of our knowledge but also of our ignorance.

The Daily Dish
Andrew Sullivan

Where Have You Gone, Barack Obama?
FEB 7 2013

This was going to be the most transparent administration in history. It was going to roll back executive over-reach and put warfare against terrorism within a constitutional framework that could defend the country against Jihadist mass murder without sacrificing our values. And yet on a critical issue – the killing of allegedly treasonous citizens who have joined forces with al Qaeda to kill and threaten Americans – we were first given a memo that isn’t actually the real memo which contains no meaningful due process at all.

Now, the administration has given the Congress the actual memo, which, one hopes, does less damage to the Constitution and the English language. But why can “we the people” not see the actual memo? That phrase came up a lot in his recent Inaugural address.

Funny how in practice in this respect, Obama is showing such contempt for the concept. And the “memo” Mike Isikoff procured is so legally shoddy and its corruption of the English language so perverse it almost demands we all see the real thing. To use the word “imminent” to describe something that is in the indefinite unknowable future is like calling torture “enhanced interrogation.” To lean on the word “infeasible” without any serious definition of what feasible would be is surreal. Underneath its absurd language and twisted rationales, the memo comes perilously close to the equivalent of “Because I said so.” And the core message of the policy is: trust me.

No, Mr president. It is not our job to trust you; it is our duty to distrust you.

This isn’t personal. I don’t doubt that sincere reflection and careful decision-making went behind the decision to kill Anwar al-Awlaki. And I defended the action, and still would. But, with all due respect, that’s irrelevant.

The issue here could not be more profound in principle, or more basic to American democracy. It is about the government having the right to kill a citizen without any due process even in America. (Before I go any further, may I just rebut the phony comparison with the Bush policy of torture of terror suspects? Killing an enemy in wartime is permissible and legal under the laws of war. Torture is illegal and immoral in all circumstances under every law of war.) More to the point, it is utterly uncontroversial that the military can kill a US citizen abroad if he is waging a treasonous war against the United States (see: Ex parte Quirin [1942]). Killing an enemy is routine on a battlefield in wartime or, domestically, in a hostage situation.

If a cop had had a chance to kill Adam Lanza in the middle of his rampage, not only could he have done so; he should have. And if an American traitor is embedded in an al Qaeda terror training camp and that camp is targeted, there’s no way to read him his Miranda rights separately before we engage the enemy. Treason, in other words, is not the government’s fault. It is the traitor’s. And make no mistake: Anwar al-Awlaki was a traitor.

And I do believe that in a global war against Jihadists, like Awlaki, who have made clear threats of death against other Americans, are in al Qaeda camps, and propagating enemy propaganda to encourage even more violence, the executive branch does need to kill our enemies. I believe, for example, that the US had every right to invade another country’s airspace and kill Osama bin Laden as swiftly as possible. He posed no “imminent threat”. But he was an integral, central part of a network actively planning such attacks. Moreover, capturing him was entirely feasible. But we killed him in cold blood in his own home. Were we wrong to do so? Of course not. If we are at war with al Qaeda, which wears no uniform and treats homes and sky-scrapers as the battlefield, and if US soldiers are in a compound/bunker at night full of unforeseen dangers, they have to retain a capacity to defend themselves – and the right to approve that is assigned, especially in urgent, emergency, narrow-window opportunities, to the executive branch.
But the equation obviously shifts when it comes to an American citizen fighting for the enemy and not in an emergency. And it shifts again when the battlefield remains defined as anywhere in the world, including the US, and when the window of opportunity is much, much wider because the war has been defined as permanent. This means that there is no time-limit on this power – say, the conclusion of hostilities with a treaty. And look: treasonous citizens can and have been executed (the Communist traitors, the Rosenbergs rightly were [this is genuinely creepy on Sullivan's part]. But even suspected traitors are entitled to due process. And due process seems to have gone out the window in this case.

One way to improve this power would be to limit it legislatively, by the Congress passing a new version of the 2001 AUMF in 2001 to mean merely al Qaeda in Afghanistan and its neighbors. It may, in other words, be time to declare an end to formal hostilities when the last troops return home in 2014, and return to a more criminal-based campaign against terrorism with less blowback. I have long felt that a permanent state of war against an amorphous enemy – anyone who wants to call himself a member of al Qaeda – is incompatible with the survival of a democratic republic. At the very least – now that bin Laden and much of the operational leadership of al Qaeda in Afghanistan and Pakistan have been eliminated – the Congress could narrow the boundaries of this war-without-end.

But more vital, it seems to me, is the establishment of a genuine judicial check on the selection of terror suspect targets – a secret FISA-type court that has real power to veto, and real access to the intelligence being used. The awesome power to kill an American citizen cannot be entrusted to one person alone, with no constitutional check, and no legal transparency. If we are defining “imminent threat” as the existence of a terror cell that could at some point in the future attack Americans, then at the very least, there must be a check on how that definition is implemented, and push-back against the rationale for killing a US citizen without any due process of law.
Obama always promised to fight the war against al Qaeda with energy, vigor and relentlessness. In my view, his policies have been immensely more successful than his predecessor’s clumsy, crude and incompetent management of national security. But Obama also promised real change in the war on terror, especially with respect to Iraq, torture and the laws of warfare. He promised much more transparency. He promised to unravel the unlimited powers granted to the executive by the legal hacks who did Cheney’s criminal bidding.

If this Obama still resides in the White House, he must release the full memo to the full public, now. Just as DiFi should release the full Senate Intelligence Committee’s report on torture now. We have a right to know and see what our government is doing and has done with respect to core constitutional rights and the rule of law. Yes, we have to fight a war that was initiated by an enemy. But we have to fight that war as Americans, under our Constitution, with prudence and as much transparency as possible.
Come back, Mr Obama. The nation turns its lonely eyes to you.
(Photo: Brendan Smialowski/Getty.)

The Guardian

Chilling legal memo from Obama DOJ justifies assassination of US citizens
The president’s partisan lawyers purport to vest him with the most extreme power a political leader can seize

Glenn Greenwald
guardian.co.uk, Tuesday 5 February 2013

The most extremist power any political leader can assert is the power to target his own citizens for execution without any charges or due process, far from any battlefield. The Obama administration has not only asserted exactly that power in theory, but has exercised it in practice. In September 2011, it killed US citizen Anwar Awlaki in a drone strike in Yemen, along with US citizen Samir Khan, and then, in circumstances that are still unexplained, two weeks later killed Awlaki’s 16-year-old American son Abdulrahman with a separate drone strike in Yemen.

Since then, senior Obama officials including Attorney General Eric Holder and John Brennan, Obama’s top terrorism adviser and his current nominee to lead the CIA, have explicitly argued that the president is and should be vested with this power. Meanwhile, a Washington Post article from October reported that the administration is formally institutionalizing this president’s power to decide who dies under the Orwellian title “disposition matrix”.

When the New York Times back in April, 2010 first confirmed the existence of Obama’s hit list, it made clear just what an extremist power this is, noting: “It is extremely rare, if not unprecedented, for an American to be approved for targeted killing.” The NYT quoted a Bush intelligence official as saying “he did not know of any American who was approved for targeted killing under the former president”. When the existence of Obama’s hit list was first reported several months earlier by the Washington Post’s Dana Priest, she wrote that the “list includes three Americans”.

What has made these actions all the more radical is the absolute secrecy with which Obama has draped all of this. Not only is the entire process carried out solely within the Executive branch – with no checks or oversight of any kind – but there is zero transparency and zero accountability. The president’s underlings compile their proposed lists of who should be executed, and the president – at a charming weekly event dubbed by White House aides as “Terror Tuesday” – then chooses from “baseball cards” and decrees in total secrecy who should die. The power of accuser, prosecutor, judge, jury, and executioner are all consolidated in this one man, and those powers are exercised in the dark.

In fact, The Most Transparent Administration Ever™ has been so fixated on secrecy that they have refused even to disclose the legal memoranda prepared by Obama lawyers setting forth their legal rationale for why the president has this power. During the Bush years, when Bush refused to disclose the memoranda from his Office of Legal Counsel (OLC) that legally authorized torture, rendition, warrantless eavesdropping and the like, leading Democratic lawyers such as Dawn Johnsen (Obama’s first choice to lead the OLC) vehemently denounced this practice as a grave threat, warning that “the Bush Administration’s excessive reliance on ‘secret law’ threatens the effective functioning of American democracy” and “the withholding from Congress and the public of legal interpretations by the [OLC] upsets the system of checks and balances between the executive and legislative branches of government.”

But when it comes to Obama’s assassination power, this is exactly what his administration has done. It has repeatedly refused to disclose the principal legal memoranda prepared by Obama OLC lawyers that justified his kill list. It is, right now, vigorously resisting lawsuits from the New York Times and the ACLU to obtain that OLC memorandum. In sum, Obama not only claims he has the power to order US citizens killed with no transparency, but that even the documents explaining the legal rationale for this power are to be concealed. He’s maintaining secret law on the most extremist power he can assert.

Last night, NBC News’ Michael Isikoff released a 16-page “white paper” prepared by the Obama DOJ that purports to justify Obama’s power to target even Americans for assassination without due process (the memo is embedded in full below). This is not the primary OLC memo justifying Obama’s kill list – that is still concealed – but it appears to track the reasoning of that memo as anonymously described to the New York Times in October 2011.

This new memo is entitled: “Lawfulness of a Lethal Operation Directed Against a US Citizen Who is a Senior Operational Leader of Al-Qa’ida or An Associated Force”. It claims its conclusion is “reached with recognition of the extraordinary seriousness of a lethal operation by the United States against a US citizen”. Yet it is every bit as chilling as the Bush OLC torture memos in how its clinical, legalistic tone completely sanitizes the radical and dangerous power it purports to authorize.

I’ve written many times at length about why the Obama assassination program is such an extreme and radical threat – see here for one of the most comprehensive discussions, with documentation of how completely all of this violates Obama and Holder’s statements before obtaining power – and won’t repeat those arguments here. Instead, there are numerous points that should be emphasized about the fundamentally misleading nature of this new memo:

1. Equating government accusations with guilt

The core distortion of the War on Terror under both Bush and Obama is the Orwellian practice of equating government accusations of terrorism with proof of guilt. One constantly hears US government defenders referring to “terrorists” when what they actually mean is: those accused by the government of terrorism. This entire memo is grounded in this deceit.

Time and again, it emphasizes that the authorized assassinations are carried out “against a senior operational leader of al-Qaida or its associated forces who poses an imminent threat of violent attack against the United States.” Undoubtedly fearing that this document would one day be public, Obama lawyers made certain to incorporate this deceit into the title itself: “Lawfulness of a Lethal Operation Directed Against a US Citizen Who is a Senior Operational Leader of al-Qaida or An Associated Force.”

This ensures that huge numbers of citizens – those who spend little time thinking about such things and/or authoritarians who assume all government claims are true – will instinctively justify what is being done here on the ground that we must kill the Terrorists or joining al-Qaida means you should be killed. That’s the “reasoning” process that has driven the War on Terror since it commenced: if the US government simply asserts without evidence or trial that someone is a terrorist, then they are assumed to be, and they can then be punished as such – with indefinite imprisonment or death.

But of course, when this memo refers to “a Senior Operational Leader of al-Qaida”, what it actually means is this: someone whom the President – in total secrecy and with no due process – has accused of being that. Indeed, the memo itself makes this clear, as it baldly states that presidential assassinations are justified when “an informed, high-level official of the US government has determined that the targeted individual poses an imminent threat of violent attack against the US”.

This is the crucial point: the memo isn’t justifying the due-process-free execution of senior al-Qaida leaders who pose an imminent threat to the US. It is justifying the due-process-free execution of people secretly accused by the president and his underlings, with no due process, of being that. The distinction between (a) government accusations and (b) proof of guilt is central to every free society, by definition, yet this memo – and those who defend Obama’s assassination power – willfully ignore it.
Those who justify all of this by arguing that Obama can and should kill al-Qaida leaders who are trying to kill Americans are engaged in supreme question-begging. Without any due process, transparency or oversight, there is no way to know who is a “senior al-Qaida leader” and who is posing an “imminent threat” to Americans. All that can be known is who Obama, in total secrecy, accuses of this.

(Indeed, membership in al-Qaida is not even required to be assassinated, as one can be a member of a group deemed to be an “associated force” of al-Qaida, whatever that might mean: a formulation so broad and ill-defined that, as Law Professor Kevin Jon Heller argues, it means the memo “authorizes the use of lethal force against individuals whose targeting is, without more, prohibited by international law”.)

The definition of an extreme authoritarian is one who is willing blindly to assume that government accusations are true without any evidence presented or opportunity to contest those accusations. This memo – and the entire theory justifying Obama’s kill list – centrally relies on this authoritarian conflation of government accusations and valid proof of guilt.

They are not the same and never have been. Political leaders who decree guilt in secret and with no oversight inevitably succumb to error and/or abuse of power. Such unchecked accusatory decrees are inherently untrustworthy (indeed, Yemen experts have vehemently contested the claim that Awlaki himself was a senior al-Qaida leader posing an imminent threat to the US). That’s why due process is guaranteed in the Constitution and why judicial review of government accusations has been a staple of western justice since the Magna Carta: because leaders can’t be trusted to decree guilt and punish citizens without evidence and an adversarial process. That is the age-old basic right on which this memo, and the Obama presidency, is waging war.

2. Creating a ceiling, not a floor

The most vital fact to note about this memorandum is that it is not purporting to impose requirements on the president’s power to assassinate US citizens. When it concludes that the president has the authority to assassinate “a Senior Operational Leader of al-Qaida” who “poses an imminent threat of violent attack against the US” where capture is “infeasible”, it is not concluding that assassinations are permissible only in those circumstances. To the contrary, the memo expressly makes clear that presidential assassinations may be permitted even when none of those circumstances prevail: “This paper does not attempt to determine the minimum requirements necessary to render such an operation lawful.” Instead, as the last line of the memo states: “it concludes only that the stated conditions would be sufficient to make lawful a lethal operation” – not that such conditions are necessary to find these assassinations legal. The memo explicitly leaves open the possibility that presidential assassinations of US citizens may be permissible even when the target is not a senior al-Qaida leader posing an imminent threat and/or when capture is feasible.

Critically, the rationale of the memo – that the US is engaged in a global war against al-Qaida and “associated forces” – can be easily used to justify presidential assassinations of US citizens in circumstances far beyond the ones described in this memo. If you believe the president has the power to execute US citizens based on the accusation that the citizen has joined al-Qaida, what possible limiting principle can you cite as to why that shouldn’t apply to a low-level al-Qaida member, including ones found in places where capture may be feasible (including US soil)? The purported limitations on this power set forth in this memo, aside from being incredibly vague, can be easily discarded once the central theory of presidential power is embraced.

3. Relies on the core Bush/Cheney theory of a global battlefield

The primary theory embraced by the Bush administration to justify its War on Terror policies was that the “battlefield” is no longer confined to identifiable geographical areas, but instead, the entire globe is now one big, unlimited “battlefield”. That theory is both radical and dangerous because a president’s powers are basically omnipotent on a “battlefield”. There, state power is shielded from law, from courts, from constitutional guarantees, from all forms of accountability: anyone on a battlefield can be killed or imprisoned without charges. Thus, to posit the world as a battlefield is, by definition, to create an imperial, omnipotent presidency. That is the radical theory that unleashed all the rest of the controversial and lawless Bush/Cheney policies.

This “world-is-a-battlefield” theory was once highly controversial among Democrats. John Kerry famously denounced it when running for president, arguing instead that the effort against terrorism is “primarily an intelligence and law enforcement operation that requires cooperation around the world”.

But this global-war theory is exactly what lies at heart of the Obama approach to Terrorism generally and this memo specifically. It is impossible to defend Obama’s assassination powers without embracing it (which is why key Obama officials have consistently done so). That’s because these assassinations are taking place in countries far from any war zone, such as Yemen and Somalia. You can’t defend the application of “war powers” in these countries without embracing the once-very-controversial Bush/Cheney view that the whole is now a “battlefield” and the president’s war powers thus exist without geographic limits.

This new memo makes clear that this Bush/Cheney worldview is at the heart of the Obama presidency. The president, it claims, “retains authority to use force against al-Qaida and associated forces outside the area of active hostilities”. In other words: there are, subject to the entirely optional “feasibility of capture” element, no geographic limits to the president’s authority to kill anyone he wants. This power applies not only to war zones, but everywhere in the world that he claims a member of al-Qaida is found. This memo embraces and institutionalizes the core Bush/Cheney theory that justified the entire panoply of policies Democrats back then pretended to find so objectionable.

4. Expanding the concept of “imminence” beyond recognition

The memo claims that the president’s assassination power applies to a senior al-Qaida member who “poses an imminent threat of violent attack against the United States”. That is designed to convince citizens to accept this power by leading them to believe it’s similar to common and familiar domestic uses of lethal force on US soil: if, for instance, an armed criminal is in the process of robbing a bank or is about to shoot hostages, then the “imminence” of the threat he poses justifies the use of lethal force against him by the police.

But this rhetorical tactic is totally misleading. The memo is authorizing assassinations against citizens in circumstances far beyond this understanding of “imminence”. Indeed, the memo expressly states that it is inventing “a broader concept of imminence” than is typically used in domestic law. Specifically, the president’s assassination power “does not require that the US have clear evidence that a specific attack . . . will take place in the immediate future”. The US routinely assassinates its targets not when they are engaged in or plotting attacks but when they are at home, with family members, riding in a car, at work, at funerals, rescuing other drone victims, etc.

Many of the early objections to this new memo have focused on this warped and incredibly broad definition of “imminence”. The ACLU’s Jameel Jaffer told Isikoff that the memo “redefines the word imminence in a way that deprives the word of its ordinary meaning”. Law Professor Kevin Jon Heller called Jaffer’s objection “an understatement”, noting that the memo’s understanding of “imminence” is “wildly overbroad” under international law.

Crucially, Heller points out what I noted above: once you accept the memo’s reasoning – that the US is engaged in a global war, that the world is a battlefield, and the president has the power to assassinate any member of al-Qaida or associated forces – then there is no way coherent way to limit this power to places where capture is infeasible or to persons posing an “imminent” threat. The legal framework adopted by the memo means the president can kill anyone he claims is a member of al-Qaida regardless of where they are found or what they are doing.

The only reason to add these limitations of “imminence” and “feasibility of capture” is, as Heller said, purely political: to make the theories more politically palatable. But the definitions for these terms are so vague and broad that they provide no real limits on the president’s assassination power. As the ACLU’s Jaffer says: “This is a chilling document” because “it argues that the government has the right to carry out the extrajudicial killing of an American citizen” and the purported limits “are elastic and vaguely defined, and it’s easy to see how they could be manipulated.”

5. Converting Obama underlings into objective courts

This memo is not a judicial opinion. It was not written by anyone independent of the president. To the contrary, it was written by life-long partisan lackeys: lawyers whose careerist interests depend upon staying in the good graces of Obama and the Democrats, almost certainly Marty Lederman and David Barron. Treating this document as though it confers any authority on Obama is like treating the statements of one’s lawyer as a judicial finding or jury verdict.

Indeed, recall the primary excuse used to shield Bush officials from prosecution for their crimes of torture and illegal eavesdropping: namely, they got Bush-appointed lawyers in the DOJ to say that their conduct was legal, and therefore, it should be treated as such. This tactic – getting partisan lawyers and underlings of the president to say that the president’s conduct is legal – was appropriately treated with scorn when invoked by Bush officials to justify their radical programs. As Digby wrote about Bush officials who pointed to the OLC memos it got its lawyers to issue about torture and eavesdropping, such a practice amounts to:

“validating the idea that obscure Justice Department officials can be granted the authority to essentially immunize officials at all levels of the government, from the president down to the lowest field officer, by issuing a secret memo. This is a very important new development in western jurisprudence and one that surely requires more study and consideration. If Richard Nixon and Ronald Reagan had known about this, they could have saved themselves a lot of trouble.”

Life-long Democratic Party lawyers are not going to oppose the terrorism policies of the president who appointed them. A president can always find underlings and political appointees to endorse whatever he wants to do. That’s all this memo is: the by-product of obsequious lawyers telling their Party’s leader that he is (of course) free to do exactly that which he wants to do, in exactly the same way that Bush got John Yoo to tell him that torture was not torture, and that even it if were, it was legal.
That’s why courts, not the president’s partisan lawyers, should be making these determinations. But when the ACLU tried to obtain a judicial determination as to whether Obama is actually authorized to assassinate US citizens, the Obama DOJ went to extreme lengths to block the court from ruling on that question. They didn’t want independent judges to determine the law. They wanted their own lawyers to do so.

That’s all this memo is: Obama-loyal appointees telling their leader that he has the authority to do what he wants. But in the warped world of US politics, this – secret memos from partisan lackeys – has replaced judicial review as the means to determine the legality of the president’s conduct.

6. Making a mockery of “due process”

The core freedom most under attack by the War on Terror is the Fifth Amendment’s guarantee of due process. It provides that “no person shall be . . . deprived of life . . . without due process of law”. Like putting people in cages for life on island prisons with no trial, claiming that the president has the right to assassinate US citizens far from any battlefield without any charges or trial is the supreme evisceration of this right.

The memo pays lip service to the right it is destroying: “Under the traditional due process balancing analysis . . . . we recognize that there is no private interest more weighty than a person’s interest in his life.” But it nonetheless argues that a “balancing test” is necessary to determine the extent of the process that is due before the president can deprive someone of their life, and further argues that, as the New York Times put it when this theory was first unveiled: “while the Fifth Amendment’s guarantee of due process applied, it could be satisfied by internal deliberations in the executive branch.”

Stephen Colbert perfectly mocked this theory when Eric Holder first unveiled it to defend the president’s assassination program. At the time, Holder actually said: “due process and judicial process are not one and the same.” Colbert interpreted that claim as follows:

“Trial by jury, trial by fire, rock, paper scissors, who cares? Due process just means that there is a process that you do. The current process is apparently, first the president meets with his advisers and decides who he can kill. Then he kills them.”

It is fitting indeed that the memo expressly embraces two core Bush/Cheney theories to justify this view of what “due process” requires. First, it cites the Bush DOJ’s core view, as enunciated by John Yoo, that courts have no role to play in what the president does in the War on Terror because judicial review constitutes “judicial encroachment” on the “judgments by the President and his national security advisers as to when and how to use force”. And then it cites the Bush DOJ’s mostly successful arguments in the 2004 Hamdi case that the president has the authority even to imprison US citizens without trial provided that he accuses them of being a terrorist.

The reason this is so fitting is because, as I’ve detailed many times, it was these same early Bush/Cheney theories that made me want to begin writing about politics, all driven by my perception that the US government was becoming extremist and dangerous. During the early Bush years, the very idea that the US government asserted the power to imprison US citizens without charges and due process (or to eavesdrop on them) was so radical that, at the time, I could hardly believe they were being asserted out in the open.

Yet here we are almost a full decade later. And we have the current president asserting the power not merely to imprison or eavesdrop on US citizens without charges or trial, but to order them executed – and to do so in total secrecy, with no checks or oversight. If you believe the president has the power to order US citizens executed far from any battlefield with no charges or trial, then it’s truly hard to conceive of any asserted power you would find objectionable.

For the DOJ White Paper, see here.

***

*After a week of covering events including the leaked and dopey memo about “imminence” (in the war on terror, everyone everywhere might be deemed an “imminent” threat to Americans), Peter Baker’s front page column in the Times today here at least has a photo of the protestors and does – within it’s “he said, she said” framework – a better job of pointing to the “problem” of the drone strikes.

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