Drones, secret law and Wyden's push for transparency

PORTLAND, Ore. – It's been nearly a year since Oregon's Sen. Ron Wyden wrote a letter to U.S. Attorney General Eric Holder asking him to provide Congress with the secret legal opinions that reportedly justify the targeted killing of American citizens suspected of terrorism.

He's yet to receive an official response, Wyden said during an interview Sunday after holding a town hall at the Multnomah County Arts Center in Southwest Portland.

"The (Obama) administration has given us very little on this subject," he said.

And because of the administration's continued lack of transparency on when the president of the United States can kill an American citizen, Wyden said he's going to continue to press for more openness from the administration.

"We're going to have something to say about secret law very soon," he said.

Wyden didn't go into any detail about what he'd say or when he'd say it regarding secret law but "we've got the (John) Brennan confirmation hearing coming up so there are going to be some opportunities."

Brennan, the current assistant to the president for Homeland Security and Counterterrorism, is President Obama's nominee for CIA director.

The man at the center of the controversy was an American-born man named Anwar al-Awlaki. He moved his family, including his 16-year-old son, Abdulrahman, also an American citizen, to Yemen after he felt American authorities had put him under surveillance. After he left, he soon began speaking out against America. Eventually, the Obama administration alleged he turned against his country, became a traitor, and plotted to harm and kill Americans.
 
And without capture, charge or trial, the Obama administration put him on a "kill list." Al-Awlaki's father sued to get his son off that list. But he lost. So on Sept. 30, 2011, al-Awlaki and another American, Samir Khan, were in a car in Yemen. A drone took up position high above and somewhere, perhaps thousands of miles away, someone pushed a button or "pulled a trigger," and incinerated the car and its occupants with Hellfire missiles.

While Wyden did not specifically mention al-Awlaki in his Feb. 8, 2012 letter, he demanded to know the Obama administration's legal justification for killing Americans suspected of terrorism. Before his letter, the senior senator from Oregon, who sits on the Senate’s Select Committee on Intelligence, had tried several times to get administration officials to tell him what legal right they had to pull that trigger.
 
Wyden said in his letter the Justice Department gave him "some relevant information," but he had "mistakenly" thought that meant it was going to provide him with the actual legal opinions.

Being on the intelligence committee allows Wyden to see classified documents. The question then is why hasn't he been able to see the administration's full legal analysis justifying the subject of killing an American suspected of terrorism?

"You'll have to ask them that question," he said on Sunday.

In his letter, Wyden did not say the president had no authority to act with deadly force against an American who had disowned his country; in fact, Wyden said there "can undoubtedly be some circumstances" the president can kill a treasonous American.

Instead, Wyden simply wanted to know what the administration's legal justification for pulling that trigger was so it could be ensured "that these questions are asked and answered in a manner consistent with American laws and American values."

The Justification Campaign

Meanwhile, another front had opened up in the battle to force the administration to disclose a Justice Department memo that reportedly contains the secret legal opinions. Two journalists with The New York Times, Charlie Savage and Scott Shane, filed separate Freedom of Information Act requests asking for the memo. The Justice Department denied their requests, citing national security.

The reporters sued and the American Civil Liberties Union joined in the lawsuit. Nearly two weeks ago, U.S. District Judge Colleen McMahon in Manhattan denied the reporters, the ACLU, and thus the public, the memo. The law did not permit her to order the administration to release it, she said. She ruled the administration had not violated the law by not releasing the memo.

For Wyden, the judge's ruling will not deter him from his effort to force the Obama administration to release the secret legal opinions.
 
"We're going to continue to keep pushing and force the administration to disclose its analyses of when the president is allowed to kill an American citizen," he said. "We'll just have to wait and see if the administration is going to be more forthcoming, and I think they ought to be with the Congress and the public. I think it is the right thing to do regardless of whether it's required under FOIA."

Before the judge's ruling and after Wyden's letter, the Obama administration went on a public relations campaign to justify its actions. Several administration officials, including Attorney General Eric Holder, made speeches laying out the administration’s argument that what it is doing is legal and moral.

In his March 5, 2012 speech at Northwestern University School of Law, Holder outlined why he believed the administration has the authority to kill an American suspected of terrorism when that citizen "is a senior operational leader of al-Qaida or associated forces, and who is actively engaged in planning to kill Americans."

First, that citizen must be an "imminent threat" to individual Americans or America. Second, capture of that citizen would not be possible because of that person's location; and lack of immediate action by the U.S. government would mean the death of Americans. Third, the killing would be “conducted in a manner consistent with applicable law of war principles."

Holder expanded on those concepts a bit in his speech, but he also said something else: "'Due process' and 'judicial process' are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process."

Asked to explain the difference between "due process" and "judicial process," U.S. Department of Justice spokesman Dean Boyd simply emailed KATU.com a link to Holder's speech as well as a link to a speech made by Brennan on April 30, 2012 at the Wilson Center.

After Holder's speech Wyden said in a press release he agreed with many things the attorney general had said, but he was still not satisfied, saying many important questions were left unanswered. In the press release, he outlined exactly what he wanted answered.

He wanted to know how much evidence was needed to determine a citizen was part of a terrorist group. He wanted to know if a U.S. citizen should be given the chance to surrender before being killed.

Wyden also said the speech and what he knew about the targeted killing program still didn't clear up for him whether the president could order the killing of an American inside America.

"These questions should not be a matter of 'secret law,' settled behind closed doors by a small number of government lawyers – every American has a right to understand when their government believes it is allowed to kill them," he said in the press release.

The Case Against Anwar Al-Awlaki

Outside the United States Anwar al-Awlaki made speeches to inspire people to hate America. And on Christmas Day 2009 a man named Umar Farouk Abdulmutallab tried to ignite a bomb sewn into his underwear on Northwest Flight 253 as it headed for Detroit. The bomb failed to explode and the passengers tackled him.

During his interrogation, he admitted to U.S. authorities he had been in contact with Anwar al-Awlaki. He told the authorities he'd received specific instructions from al-Awlaki about when to detonate the bomb.

Army psychiatrist Maj. Nidal Hasan corresponded with al-Awlaki via email before he opened fire at a soldier-readiness center in Fort Hood Texas, killing 13 and injuring 32 on Nov. 5, 2009. After the shooting, al-Awlaki praised Hasan for what he'd done.

There have been other allegations as well. Obama, during a speech at the "Change of Office" Chairman of the Joint Chiefs of Staff ceremony the same day Awlaki was killed, said Awlaki "directed the failed attempt to blow up U.S. cargo planes in 2010."

After al-Awlaki was killed, his family sued, naming individually those they believed were responsible for ordering their family member's death: Secretary of Defense Leon C. Panetta, Cmdr. William H. McRaven, Cmdr. Joseph Votel and then-CIA Director David H. Petraeus.

The lawsuit was filed on their behalf by the ACLU. The family believed al-Awlaki was not granted "due process" afforded him by the U.S. Constitution and that the aforementioned individuals had violated U.S. and international laws.

In an interview with KATU.com via phone from his office in Washington, D.C., Arthur Spitzer, a lawyer with the ACLU representing the families, did not dispute the allegations.

"The question is not so much what kind of information is needed but who makes the decisions. And what kind of measures are taken to assure that there are other ways of capturing a person, for example. And what kind of measures are taken to be sure that you don't kill other innocent people at the same time," he said. "Under principles of international law, even if you assume all these facts about Mr. Awlaki, you're still not supposed to kill someone unless they present an imminent threat of death or serious physical injury to you or the United States."

He said a big part of the lawsuit is really about holding the government accountable and trying to bring the targeted killing program "under the rule of law rather than under the unilateral control of the president."

The Killing of the Son

Two weeks after Anwar al-Awlaki was killed, his 16-year-old son, Abdulrahman, was eating dinner with his friends at an open-air restaurant in Yemen 200 miles from where his father was killed. Reportedly a drone, although it may have also been a fighter jet, flew overhead and fired.

Abdulrahman was killed. Abdulrahman's cousin, also a minor, was killed. In all, at least seven people were killed. It was reported that the target was supposed to be al-Qaida leader Ibrahim al-Banna. It was first reported he was killed in the strike, but it turned out he was not killed.

An unnamed senior Obama administration official without permission to speak on the record told the Los Angeles Times that Abdulrahman was "a military-aged male traveling with a high-value target."

However, Abdulrahman's family released the boy's birth certificate and, according to the ACLU lawsuit, U.S. officials, cloaked in anonymity, admitted Abdulrahman was a minor.

In a Washington Post article, a U.S. official said "the U.S. government did not know that Mr. Awlaki's son was there" before the strike.

Obama has never spoken of the boy publicly. There is almost nothing publicly known about the incident.
 
And so within the family's lawsuit in the name of the father, so is the name of the son.

Wyden said he was "troubled by the press reports about the American teenager with no personal involvement in terrorism being killed by an alleged covert airstrike in Yemen. And we've been reviewing those in classified sessions, too."

Wyden, however, couldn't speak about what was said in those sessions.

"Under classification rules you're not allowed to," he said.

He also can't speak about any briefings he may have received about Anwar al-Awlaki. In fact, on Sunday, Wyden wouldn't even confirm whether he'd been briefed on al-Awlaki's killing.

"These things are classified at the highest level, but we wanted to give you the best answers we could," he said.

Further reading on this subject and other sources consulted for this story:

The New York Times, September 30, 2011: "Two-year manhunt led to killing of Awlaki in Yemen"

The New York Times, May 29, 2012: "Secret 'kill list' proves a test of Obama's principles and will"

Esquire, July 9, 2012: "The Lethal Presidency of Barack Obama"

The New York Times, July 18, 2012: "Relatives sue officials over U.S. citizens killed by drone strikes in Yemen"