Court orders Obama to release documents related to Awlaki

[Thanas]

Reuters

(Reuters) - A federal appeals court ordered the U.S. Department of Justice to turn over key portions of a memorandum justifying the government's targeted killing of people linked to terrorism, including Americans.

In a case pitting executive power against the public's right to know what its government does, the 2nd U.S. Circuit Court of Appeals reversed a lower court ruling preserving the secrecy of the legal rationale for the killings, such as the death of U.S. citizen Anwar al-Awlaki in a 2011 drone strike in Yemen.

Ruling for the New York Times, a unanimous three-judge panel said the government waived its right to secrecy by making repeated public statements justifying targeted killings.

These included a Justice Department "white paper," as well as speeches or statements by officials like Attorney General Eric Holder and former Obama administration counterterrorism adviser John Brennan, endorsing the practice.

The Times and two reporters, Charlie Savage and Scott Shane, sought the memorandum under the federal Freedom of Information Act, saying it authorized the targeting of al-Awlaki, a cleric who joined al Qaeda's Yemen affiliate and directed many attacks.

"Whatever protection the legal analysis might once have had has been lost by virtue of public statements of public officials at the highest levels and official disclosure of the DOJ White Paper," Circuit Judge Jon Newman wrote for the appeals court panel in New York.

He said it was no longer logical or plausible to argue that disclosing the legal analysis could jeopardize military plans, intelligence activities or foreign relations.

The court redacted a portion of the memorandum on intelligence gathering, as well as part of its own decision. It is unclear when the memorandum or the full 2nd Circuit decision might be made public, or whether the government will appeal.

Allison Price, a Justice Department spokeswoman, said the department had no comment on the decision.

David McCraw, a lawyer for the Times, said the newspaper is delighted with the decision, saying it encourages public debate on an important foreign policy and national security issue.

"The court reaffirmed a bedrock principle of democracy: The people do not have to accept blindly the government's assurances that it is operating within the bounds of the law; they get to see for themselves the legal justification that the government is working from," McCraw said in a statement.

Senators Patrick Leahy and Charles Grassley, the Democratic chairman and ranking Republican on the Senate Judiciary Committee, have also been seeking the legal rationale, and Grassley on Monday urged the Justice Department to start preparing to turn it over.

ALICE IN WONDERLAND

Monday's decision largely reversed a January 2013 ruling by U.S. District Judge Colleen McMahon in Manhattan.

She ruled for the administration despite skepticism over its antiterrorism program, including whether it could unilaterally authorize killings outside a "hot" field of battle.

"The Alice-in-Wonderland nature of this pronouncement is not lost on me," she wrote.

Civil liberties groups have complained that the drone program, which deploys pilotless aircraft, lets the government kill Americans without constitutionally required due process.

FOIA requests at issue in the 2nd Circuit case also focused on drone strikes that killed two other U.S. citizens: al-Awlaki's teenage son, Abdulrahman al-Awlaki, and Samir Khan, who was an editor of Inspire, an English-language al Qaeda magazine.

McMahon ruled one month before the Justice Department released the white paper, which set out conditions before lethal force in foreign countries against U.S. citizens could be used.

The conditions are that a top U.S. official must decide a target "poses an imminent threat of violent attack" against the United States, the target cannot be captured, and any operation would be "consistent with applicable law of war principles."

In a March 5, 2012 speech at Northwestern University, Holder had said it was "entirely lawful" to target people with senior operational roles in al-Qaeda and associated forces.

The Times has said the strategy of targeted killings had first been contemplated by the Bush administration, soon after the September 11, 2001 attacks.

On April 4, U.S. District Judge Rosemary Collyer in Washington dismissed a lawsuit against the government by the families of those killed in the drone strikes, saying senior officials cannot be personally liable for money damages "for conducting war.

The American Civil Liberties Union, which had filed its own lawsuit over the government's disclosure practices, said it plans in light of Monday's decision to return to the lower court to challenge the withholding of other documents related to targeted killings.

"This is a resounding rejection of the government's effort to use secrecy and selective disclosure to manipulate public opinion about the targeted killing program," ACLU Deputy Legal Director Jameel Jaffer said in a statement.

The case is New York Times Co et al v. U.S. Department of Justice et al, 2nd U.S. Circuit Court of Appeals, Nos. 13-422, 13-445.

TL, DR: Turns out when you base the killing of a citizen on that he allegedly was involved in hostilities by planning attacks and make public statements that you have evidence for that, then you cannot stand your ground when challenged and proclaim "this super duper secret evidence totally says so but we will not allow you to see it".

[Metahive]

I think even if it turned out the only reason they killed Awlaki is that he was a Tampa Bay Buccaneers fan or something similarly frivolous it wouldn't have any personal or political consequences. Killing people is one of the few things the GOP will not pounce Obama for upon and the US as a whole already allowed the Bush gang to get away with torture and deceitful warmongering completely unscathed.

[Raw Shark]

I think even if it turned out the only reason they killed Awlaki is that he was a Tampa Bay Buccaneers fan or something similarly frivolous it wouldn't have any personal or political consequences. Killing people is one of the few things the GOP will not pounce Obama for upon and the US as a whole already allowed the Bush gang to get away with torture and deceitful warmongering completely unscathed.

Especially killing brown people, but it's still nice to see this administration called out for something it actually did instead of some made-up bullshit for once. I can't even count how many times I've responded to passionate bitching about Obamacare or Benghazi at my job with something along the lines of, "Those are manufactured issues; what really pisses me off is al-Awlaki," and received in return something along the lines of, "Who?"

[Metahive]

I can't even count how many times I've responded to passionate bitching about Obamacare or Benghazi at my job with something along the lines of, "Those are manufactured issues; what really pisses me off is al-Awlaki," and received in return something along the lines of, "Who?"

Which is still better than getting "Well, if the government executed him, he must have earned it", which is an argument I heard frequently, including on this board.

[Raw Shark]

I can't even count how many times I've responded to passionate bitching about Obamacare or Benghazi at my job with something along the lines of, "Those are manufactured issues; what really pisses me off is al-Awlaki," and received in return something along the lines of, "Who?"

Which is still better than getting "Well, if the government executed him, he must have earned it", which is an argument I heard frequently,

Me too, and that's one of the better-case-scenarios compared to, "Well he sounds like an Ay-rab so fuck him even if he was an American citizen..."

including on this board.

Where?

[Metahive]

Like here:

http://bbs.stardestroyer.net/viewtopic. ... 6&start=25

Anwar Al-Awlaki was targeted for writing nasty things online (saying Muslims were justified in attacking the US and gloating over the attacks that succeeded). He did not wield or build weapons (as far as anyone can prove), nor did he give orders for others to do so. He was not even a bystander in a legitimate attack against enemy materiel, and his teenage son didn't do that much. Yet according to Obama and his flacks, writing assholish things or being related to someone who does = "engaged in combat".

Bullshit

We certainly don't need yet another Al-Awlaki thread, but I'm going to call you out on a couple key things: He most certainly DID give others orders to attack and kill Americans, going so far as to say it was there "duty" to do so. I could give a shit with how specific he was in that regard, whether he knew how to shoot a gun or make a bomb. The people he preached too and encouraged to take up these attacks WERE his guns and bombs. The underwear bomber, the fort hood shooter... and while their success wasn't on par with Bin Laden's desciples, it wasn't for lack of effort on his part. He was more than a propogandist. He was a key recruiter for an enemy force. A legitimate military target.

Besides, In the end, Obama simply granted the man his wish. Since, after all, he wanted Americans killed whenever and wherever they could be found.

[Raw Shark]

Like here:

http://bbs.stardestroyer.net/viewtopic. ... 6&start=25

Much appreciated.

[Simon_Jester]

I will say this:

The killing of al-Awlaki was, in my honest opinion, unconstitutional and wrong.

BUT, at the same time, it's a pretty much undisputed fact that he was an active participant in a movement engaged in violence against the US. In my mind, the main problem with killing al-Awlaki is the precedent set- the idea that the administration can kill American citizens at will if it thinks it has a good reason.

It is for that reason that I think the release of the documents is so important, because there are two possibilities.

1) The administration may have ample evidence explaining what it did and why. In that case, seeing the evidence gives us a foundation on which we can make things systematic. Perhaps the Department of Justice and the judiciary could get together and work out a way to try terrorists that is consistent with due process, should the issue ever arise again.

If we're going to be in a nebulous War on Terror for the rest of our lives, and as far as I can tell Obama thinks we will... we desperately need such a procedure. Making a one-time decision in a war of limited duration is one thing; making such a decision in a war that has no defined end in time or space is another.

2) On the other hand, the administration may NOT have enough evidence to justify their actions. In this case we at least lay the groundwork for suits against the government and other legal penalties. That would create some hope that a proper legal ruling will (rightly) shut down the assassination of American citizens before this policy can spread and be used by the government against domestic political enemies.

[TheHammer]

Like here:

http://bbs.stardestroyer.net/viewtopic. ... 6&start=25

Anwar Al-Awlaki was targeted for writing nasty things online (saying Muslims were justified in attacking the US and gloating over the attacks that succeeded). He did not wield or build weapons (as far as anyone can prove), nor did he give orders for others to do so. He was not even a bystander in a legitimate attack against enemy materiel, and his teenage son didn't do that much. Yet according to Obama and his flacks, writing assholish things or being related to someone who does = "engaged in combat".

Bullshit

We certainly don't need yet another Al-Awlaki thread, but I'm going to call you out on a couple key things: He most certainly DID give others orders to attack and kill Americans, going so far as to say it was there "duty" to do so. I could give a shit with how specific he was in that regard, whether he knew how to shoot a gun or make a bomb. The people he preached too and encouraged to take up these attacks WERE his guns and bombs. The underwear bomber, the fort hood shooter... and while their success wasn't on par with Bin Laden's desciples, it wasn't for lack of effort on his part. He was more than a propogandist. He was a key recruiter for an enemy force. A legitimate military target.

Besides, In the end, Obama simply granted the man his wish. Since, after all, he wanted Americans killed whenever and wherever they could be found.

There is more than enough publicly available information about Al-Awlaki that justified his killing as a military target - A great deal of it coming from his own mouth or his own hand. He was not a mere "political dissenter", and attempts to soften his image or somehow make him sympathetic quite frankly sicken me.

I do agree there should be a system in place to handle things like this and would like to see one created and incorporated into law. The fact that no such system currently exists should not be a loop hole that allows trash like Al-Awlaki to flaunt American Citizenship as some sort of magical protection, while continuing to fight against the American government from foreign soil. I'm not going to beat this dead horse (yet again), at least not until the legal justification is declassified.

[Metahive]

Look who's still here, how do the Chinese say?

说曹操，曹操就到。Speak of the devil...

MC Hammer, no trial, no evidence, nothing. Yet it earned him a death by presidential decree. And his son too because terror genes or something. You and your Obamapologism sicken me.

[TheHammer]

Look who's still here, how do the Chinese say?

说曹操，曹操就到。Speak of the devil...

MC Hammer, no trial, no evidence, nothing. Yet it earned him a death by presidential decree. And his son too because terror genes or something. You and your Obamapologism sicken me.

Methahive,

We didn't give trials to confederate soldiers killed during the civil war either. The same is true of any military conflict in the history of the United States where a US citizen fought on the side of a foreign power and killed as a result of that. Why should Awlaki be treated any differently? Because we knew his name when we killed him rather than him being an unknown face wearing an enemy uniform?

And there was plenty of evidence that Awlaki was a member of Al Qaeda, including his own public admission to that fact. Google it. To pretend otherwise is to be in fucking denial.

[K. A. Pital]

Look who's still here, how do the Chinese say?

说曹操，曹操就到。Speak of the devil...

MC Hammer, no trial, no evidence, nothing. Yet it earned him a death by presidential decree. And his son too because terror genes or something. You and your Obamapologism sicken me.

Methahive,

We didn't give trials to confederate soldiers killed during the civil war either. The same is true of any military conflict in the history of the United States where a US citizen fought on the side of a foreign power and killed as a result of that. Why should Awlaki be treated any differently? Because we knew his name when we killed him rather than him being an unknown face wearing an enemy uniform?

And there was plenty of evidence that Awlaki was a member of Al Qaeda, including his own public admission to that fact. Google it. To pretend otherwise is to be in fucking denial.

Hey what, are you really referring to a XIX century civil war?

[Metahive]

Yes, in TheHammered's twisted mind, Awlaki sitting 6000 miles away and writing nasty things about the US is just like the American Civil War. Awlaki's like the arab Robert E. Lee, bringing ruin and defeat upon the US military with his mighty pen.

You are a fucking idiot.

[TheHammer]

Look who's still here, how do the Chinese say?

说曹操，曹操就到。Speak of the devil...

MC Hammer, no trial, no evidence, nothing. Yet it earned him a death by presidential decree. And his son too because terror genes or something. You and your Obamapologism sicken me.

Methahive,

We didn't give trials to confederate soldiers killed during the civil war either. The same is true of any military conflict in the history of the United States where a US citizen fought on the side of a foreign power and killed as a result of that. Why should Awlaki be treated any differently? Because we knew his name when we killed him rather than him being an unknown face wearing an enemy uniform?

And there was plenty of evidence that Awlaki was a member of Al Qaeda, including his own public admission to that fact. Google it. To pretend otherwise is to be in fucking denial.

Hey what, are you really referring to a XIX century civil war?

Did you stop reading after that sentence? Because I think you missed the point.

Yes, in TheHammered's twisted mind, Awlaki sitting 6000 miles away and writing nasty things about the US is just like the American Civil War. Awlaki's like the arab Robert E. Lee, bringing ruin and defeat upon the US military with his mighty pen.

You are a fucking idiot.

Inciting terrorist attacks and recruiting jihadis is a damn sight more than "writing nasty things about the US". Obama hasn't made any weapons, didn't fire any guns at enemy troops. His "mighty pen" however certainly has had its military impact. That was Awlaki's role with Al Qaeda. Just because their relative capabilities differ doesn't change that fact.

This has already been debated ad nauseam and its clear you're goal is merely flame baiting, so I'm going to simply ignore you from here on out.

[Thanas]

Yes, the "debate" was one side going "secret evidence is totally trustworthy" and the other side going "you are a fucking idiot

• here". In short, idiots (the former) vs people who remmber history (the latter).

[TheHammer]

Yes, the "debate" was one side going "secret evidence is totally trustworthy" and the other side going "you are a fucking idiot

• here". In short, idiots (the former) vs people who remmber history (the latter).

That's actually a mis-characterization. The argument is that there is more than enough publicly known information about Awlaki to justify his killing as a military target. Whatever additional "secret evidence" against Awlaki that does or does not exist doesn't even factor in. Which is why I've repeatedly questioned the wisdom of using Awlaki as the poster child against extrajudicial killings. Find someone where it was at least a little questionable that he had to die and make him your champion.

[Eulogy]

Explain why anyone should believe Obama's side of the story when he refuses to hand over the evidence he says he has.

[TheHammer]

Explain why anyone should believe Obama's side of the story when he refuses to hand over the evidence he says he has.

You don't need to believe Obama's side of the story. There are plenty of non government sources on the life and actions of Awlaki, most prominently Awlaki's own writings and videos that makes it clear what his goals and methods were. He had also been convicted in a Yemeni court (the country he was ultimately killed in) for plotting to kill foreigners, and had a judge order he brought in "dead or alive". Whatever additional evidence that the Obama administration has is above and beyond what would be necessary to justify their actions in this case.

[Eulogy]

Then I suppose the court is simply wasting their time, hmm?

[Simon_Jester]

Yes, the "debate" was one side going "secret evidence is totally trustworthy" and the other side going "you are a fucking idiot

• here". In short, idiots (the former) vs people who remmber history (the latter).

That's actually a mis-characterization. The argument is that there is more than enough publicly known information about Awlaki to justify his killing as a military target.

Then why not hold some kind of actual legal proceeding?

The decision to kill Awlaki is problematic because it was both calculated and extrajudicial.

We have a name for the part of our government responsible for sitting down in a comfortable chair and deciding who is an evildoer and how to punish them. They are called the judiciary.

Conversely, we have a name for the part of our government responsible for dealing with truly, immediately dangerous enemies in the heat of combat. They are called the military.

The killing of al-Awlaki was neither a military action* nor a judicial action.** While you may assert that publicly available evidence convicts al-Awlaki of acts that are punishable by death, it is not the role of the general public to make that decision. If al-Awlaki is a immediately dangerous enemy then he should be a problem for the military, like any other invading army would be. If he is not an immediately dangerous enemy, then he should be a problem for the judiciary.

The problem is that the administration wanted to have it both ways. They wanted to be able to make the decision to kill him in cold blood while not under any immediate threat from him (like a judicial decision), but to operate under very loose rules of engagement (like the military decision).

That is what presents the legal problem.
_____________________

*(unlike, say, an American citizen found fighting for the German army in WWII being killed in battle)
**(unlike, say, an actual trial and conviction carrying the death sentence)

Explain why anyone should believe Obama's side of the story when he refuses to hand over the evidence he says he has.

You don't need to believe Obama's side of the story. There are plenty of non government sources on the life and actions of Awlaki, most prominently Awlaki's own writings and videos that makes it clear what his goals and methods were. He had also been convicted in a Yemeni court (the country he was ultimately killed in) for plotting to kill foreigners, and had a judge order he brought in "dead or alive". Whatever additional evidence that the Obama administration has is above and beyond what would be necessary to justify their actions in this case.

If all this is true, why is our government so opposed to having a degree of glasnost in their decision to put him on a hit list? You'd think they'd have made a very solid case out of trivially available, non-secret information, and simply presented it to all and sundry saying "this is why we deem him an enemy."

And you'd think they would welcome the idea of some kind of actual, meaningful procedure for identifying and convicting American citizens identified as enemy combatants, because it would save them a hell of a lot of flak from civil rights advocates.

Their actions only make sense in the context of a government that thinks "we reserve the right to kill you for looking at us funny," in which case we really shouldn't humor them.

[TheHammer]

Then I suppose the court is simply wasting their time, hmm?

The court is merely ruling on a FOIA request from the NYT, which I believe covers more than just the Awlaki killing, but other extrajudicial killings as well. They would certainly get enough material to write a compelling story, as well as spark debate and editorials for weeks to come.

[Grumman]

He had also been convicted in a Yemeni court...

So when do we start firing Hellfire missiles at gay people? I mean, if Yemen says they need to die, then obviously they're right, and we don't need to worry about little things like constitutionally protected human rights, right?

[TheHammer]

Yes, the "debate" was one side going "secret evidence is totally trustworthy" and the other side going "you are a fucking idiot

• here". In short, idiots (the former) vs people who remmber history (the latter).

That's actually a mis-characterization. The argument is that there is more than enough publicly known information about Awlaki to justify his killing as a military target.

Then why not hold some kind of actual legal proceeding?

I don't disagree with the premise, the problem is we have no such laws to cover a situation like this. No way to "strip" awlaki of his citizenship, nor a way to try him in absentia. It would be negligent of the executive to merely sit on its hands because congress has failed to act. That being said, I still feel like killing Awlaki was legal under existing law, and did not need a judicial review to begin with. I will explain further below.

The decision to kill Awlaki is problematic because it was both calculated and extrajudicial.

We have a name for the part of our government responsible for sitting down in a comfortable chair and deciding who is an evildoer and how to punish them. They are called the judiciary.

Conversely, we have a name for the part of our government responsible for dealing with truly, immediately dangerous enemies in the heat of combat. They are called the military.

The killing of al-Awlaki was neither a military action* nor a judicial action.** While you may assert that publicly available evidence convicts al-Awlaki of acts that are punishable by death, it is not the role of the general public to make that decision. If al-Awlaki is a immediately dangerous enemy then he should be a problem for the military, like any other invading army would be. If he is not an immediately dangerous enemy, then he should be a problem for the judiciary.

It seems that you are viewing his targeting as "punishment" rather than what it really ways, an effort to deny a valuable resource to the enemy. He wasn't "sentenced" he was targeted. Targeting enemy leadership is a tried and true military tactic. The concept of "imminent danger" is one that depends upon your point of view. Even if he never built a bomb, never fired a gun, In his role as a recruiter and leader of external operations, at any moment he could have ordered one of his followers to carry out an attack. In that sense as long as he was alive and free he was always an immediate threat, and a legitimate military target.

The problem is that the administration wanted to have it both ways. They wanted to be able to make the decision to kill him in cold blood while not under any immediate threat from him (like a judicial decision), but to operate under very loose rules of engagement (like the military decision).

That is what presents the legal problem.
_____________________

*(unlike, say, an American citizen found fighting for the German army in WWII being killed in battle)
**(unlike, say, an actual trial and conviction carrying the death sentence)

I believe the fact that he had any sort of internal review to determine if it was "legal" to kill Awlaki was actually unnecessary to begin with. And again, while he was free and operating in a leadership role in Al Qaeda, he was ALWAYS an immediate threat. To use your WWII scenario, Imagine you had an American Citizen flying around in an airplane with "Don't shoot me I'm an American" painted on the side, while directing the Germans to attack. The idea that you couldn't kill him would be laughable. Same concept here.

Explain why anyone should believe Obama's side of the story when he refuses to hand over the evidence he says he has.

You don't need to believe Obama's side of the story. There are plenty of non government sources on the life and actions of Awlaki, most prominently Awlaki's own writings and videos that makes it clear what his goals and methods were. He had also been convicted in a Yemeni court (the country he was ultimately killed in) for plotting to kill foreigners, and had a judge order he brought in "dead or alive". Whatever additional evidence that the Obama administration has is above and beyond what would be necessary to justify their actions in this case.

If all this is true, why is our government so opposed to having a degree of glasnost in their decision to put him on a hit list? You'd think they'd have made a very solid case out of trivially available, non-secret information, and simply presented it to all and sundry saying "this is why we deem him an enemy."

And you'd think they would welcome the idea of some kind of actual, meaningful procedure for identifying and convicting American citizens identified as enemy combatants, because it would save them a hell of a lot of flak from civil rights advocates.

Their actions only make sense in the context of a government that thinks "we reserve the right to kill you for looking at us funny," in which case we really shouldn't humor them.

I'd say they have had a degree of glasnost in their decision to put Awlaki on the list that essentially lays out the public knowledge portions, without revealing additional sources of information. The justification memo, if released, will no doubt contain additional information.

I would like to see some sort of codefied system to handle situations that aren't clear cut military actions, that would include some sort of judicial review. Obama has said as much in various interviews that he would like the same. But in the interim, since Congress has deemed to not take action, the executive is left in the position of filling in those grey areas of law, such as the "legal review process" they currently utilize.

[TheHammer]

He had also been convicted in a Yemeni court...

So when do we start firing Hellfire missiles at gay people? I mean, if Yemen says they need to die, then obviously they're right, and we don't need to worry about little things like constitutionally protected human rights, right?

Except he wasn't convicted of being gay he was convicted of conspiring to kill people, which I'm pretty sure is a crime just about everywhere in the world. Do you even think before you post?

If you want to make the case that the charge against him were trumped up, and the evidence presented in the Yemeni court was fake, then feel free to do the research. Besides, its only one piece of the puzzle, the most damning evidence still comes from Awlaki's own words. Unless you want to try and convince everyone that the various videos and writings attributed to him were also fake.

[K. A. Pital]

Why can't you try him in absentia, though?