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Posted for research purposes only:


A story breaking in the news recently highlights the difficulty of knowing who-is-who in the murky worlds of intelligence, security, and terrorism. It also shows the difficulty of seeing the future, a core aim of the intelligence analyst. Fox News has reported and other media outlets have confirmed that radical imam Anwar al-Awlaki, dined at the Pentagon in the months after 9/11 as part of the Defense Department’s effort to reach out to American Muslims. Awlaki, of course, some ten years ago preached at a mosque in San Diego and then at the Dar al Hijrah Mosque in Falls Church Virginia. At both of these he came into contact with some of the 9/11 hijackers. More recently, he has been linked to Ft. Hood shooter Major Nidal Hasan, underwear bomber Umar Farouk Abdulmutallab, and Times Square bomber Feisal Shahzad. Awlaki is presently thought to be in Yemen working with al Qaida in the Arabian Peninsula. He has been widely reported to be on a list of Americans whom the CIA can kill abroad without trial. Fox News quotes an anonymous former high-ranking FBI official as criticizing Awlaki’s invitation to the Pentagon by saying that as of 2001 there was a great “arrogance” about the Pentagon’s procedures for vetting who they would allow in the building: “They vetted people politically and showed indifference toward security and intelligence advice of others.” There are two problems with such a criticism. First, in outreach and diplomacy, as in espionage, one often has to deal cooperatively with people with whom one does not fully agree. Given Awlaki’s public persona in 2001, it was not unreasonable to reach out to him. There are many precedents for such a policy. During the Cold War, the CIA conducted an extensive and long-running campaign of reaching out to the “non-Communist left” in Europe as a way of co-opting them from allying with the Soviets. The US Government also made common cause with Communist Yugoslavia, Romania, and China against the Soviet Communists. For their part, case officers often have to deal with unsavory people in their efforts to get information about other even more unsavory people. By the same token, the police routinely work with informants and prison snitches who are not typically nice people themselves. Second, it is important to remember that in 2001 the Pentagon could not know the place that Awlaki would have in the terrorist world in 2010. Forecasting the future is hard and Awlaki has undergone an ideological evolution over time. At the time of 2001 he was sufficiently moderate to head a mainstream mosque and to impress a Pentagon employee who heard him speak. (The FBI documents that Fox News obtained showed that this was the proximate cause of his invitation to the Pentagon.) This is the man who told visitors to his mosque after 9/11 that “we came here to build not to destroy…We are the bridge between Americans and one billion Muslims worldwide.” Awlaki himself at one point was even criticized from within the jihadist movement for being insufficiently radical. Now, however, he is one of the leading lights of the jihadist movement, a radical firebrand if ever there was one. In short, the future is hard to predict, identities can change over time, and deception is an ever present possibility. With 20/20 hindsight we can criticize past analyses and past decisions, but that’s not always helpful…or fair.


The Spy Museum

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Guest Tom Scully

Uhh...Greg? Please help me refresh my memory. What specific violations of the law has Awlaki been charged with?

Isn't this the much more troubling, "security failure"? (If only John Boehner actually took seriously, the Bill of Rights protections and all of the other clauses of the U.S. Constitution, and his own oath to "preserve and to protect", instead of simply playing politics, as he is doing here, I wouldn't be in the position of posting that it seems a far greater threat to our liberty and our security to be forced to endure Obama doing anything he pleases without being held accountable for flagrantly breaking his oath of office, than any threat Awlaki poses to us today in Yemen, or even when he was briefly inside the Pentagon....oh! the horror.....)


...House Speaker John Boehner sent a letter Tuesday to President Barack Obama asking for a "clear explanation of the legal standing" ...

...You took an oath before the American people on January 20, 2009 in which you swore to "faithfully execute the Office of President" and to "preserve, protect and defend the Constitution of the United States." The Constitution requires the President to "take Care that the Laws be faithfully executed," and one of those laws is....


May 7, 2011

U.S. tries to assassinate U.S. citizen Anwar al-Awlaki By Glenn Greenwald

....Who cares? They're mere collateral damage on the glorious road to ending the life of this American citizen without due process (and pointing out that the Fifth Amendment to the U.S. Constitution expressly guarantees that "no person shall be deprived of life without due process of law" -- and provides no exception for war -- is the sort of tedious legalism that shouldn't interfere with the excitement of drone strikes).

There are certain civil liberties debates where, even though I hold strong opinions, I can at least understand the reasoning and impulses of those who disagree; the killing of bin Laden was one such instance. But the notion that the President has the power to order American citizens assassinated without an iota of due process -- far from any battlefield, not during combat -- is an idea so utterly foreign to me, so far beyond the bounds of what is reasonable, that it's hard to convey in words or treat with civility.

How do you even engage someone in rational discussion who is willing to assume that their fellow citizen is guilty of being a Terrorist without seeing evidence for it, without having that evidence tested, without giving that citizen a chance to defend himself -- all because the President declares it to be so? "I know Awlaki, my fellow citizen, is a Terrorist and he deserves to die. Why? Because the President decreed that, and that's good enough for me. Trials are so pre-9/11." If someone is willing to dutifully click their heels and spout definitively authoritarian anthems like that, imagine how impervious to reason they are on these issues.

And if someone is willing to vest in the President the power to assassinate American citizens without a trial far from any battlefield -- if someone believes that the President has that power: the power of unilaterally imposing the death penalty and literally acting as judge, jury and executioner -- what possible limits would they ever impose on the President's power? There cannot be any. Or if someone is willing to declare a citizen to be a "traitor" and demand they be treated as such -- even though the Constitution expressly assigns the power to declare treason to the Judicial Branch and requires what we call "a trial" with stringent evidence requirements before someone is guilty of treason -- how can any appeals to law or the Constitution be made to a person who obviously believes in neither?

What's most striking about this is how it relates to the controversies during the Bush years. One of the most strident attacks from the Democrats on Bush was that he wanted to eavesdrop on Americans without warrants. One of the first signs of Bush/Cheney radicalism was what they did to Jose Padilla: assert the power to imprison this American citizen without charges. Yet here you have Barack Obama asserting the power not to eavesdrop on Americans or detain them without charges -- but to target them for killing without charges -- and that, to many of his followers, is perfectly acceptable. It's a "horrific shredding of the Constitution" and an act of grave lawlessness for Bush to eavesdrop on or detain Americans without any due process; but it's an act of great nobility when Barack Obama ends their lives without any due process.

Not even Antonin Scalia was willing to approve of George Bush's mere attempt to detain (let alone kill) an American citizen accused of Terrorism without a trial. In a dissenting opinion joined by the court's most liberal member, John Paul Stevens, Scalia explained that not even the War on Terror allows the due process clause to be ignored when the President acts against those he claims have joined the Enemy -- and this was for a citizen found on an actual active battlefield in a war zone (Afghanistan) (emphasis added):

The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive. Blackstone stated this principle clearly: "Of great importance to the public is the preservation of this personal liberty: for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper … there would soon be an end of all other rights and immunities. … To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom." . . . .

Subjects accused of levying war against the King were routinely prosecuted for treason. . . . The Founders inherited the understanding that a citizen's levying war against the Government was to be punished criminally. The Constitution provides: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort"; and establishes a heightened proof requirement (two witnesses) in order to "convic[t]" of that offense. Art. III, §3, cl. 1.

There simply is no more basic liberty than the right to be free from Presidential executions without being charged with -- and then convicted of -- a crime: whether it be treason, Terrorism, or anything else. How can someone who objected to Bush's attempt to eavesdrop on or detain citizens without judicial oversight cheer for Obama's attempt to kill them without judicial oversight? Can someone please reconcile those positions?


General Order 100 (the Lieber Code)

Prior to the commencement of hostilities in the Civil War there were no written

Rules for the way in which a army was to conduct war. The First Geneva Convention would not happen until late 1863. President Lincoln directed that Francis Lieber, a professor of law, draft a paper effecting how the Union Army should conduct itself during time of war. Mr. Lieber’s rules of conduct for war became General Order 100, accepted by President Lincoln and issued by the Adjutant General on April 24, 1863. While this General Order affected only the United States, it has become, what some scholars believe, the cornerstone for the internationally accepted Geneva Convention rules....

....Instructions for the Government of Armies of the United States in the

Field, prepared by Francis Lieber, LL.D., Originally Issued as General

Orders No. 100, Adjutant General's Office, 1863, Washington 1898: Government Printing Office.


...Section IX. Assassination 148

....The law of war does not allow proclaiming either an individual belonging to the hostile army, or a citizen, or a subject of the hostile government, an outlaw, who may be slain without trial by any captor, any more than the modern law of peace allows such intentional outlawry; on the contrary, it abhors such outrage. The sternest retaliation should follow the murder committed in consequence of such proclamation, made by whatever authority. Civilized nations look with horror upon offers of rewards for the assassination of enemies as relapses into barbarism.


Afghans oppose U.S. hit list of drug traffickers

PUBLIC OUTRAGE FEARED Justice system will be undermined, officials say

By Craig Whitlock

Saturday, October 24, 2009

KABUL -- A U.S. military hit list of about 50 suspected drug kingpins is drawing fierce opposition from Afghan officials, who say it could undermine their fragile justice system and trigger a backlash against foreign troops.

The U.S. military and NATO officials have authorized their forces to kill or capture individuals on the list, which was drafted within the past year as part of NATO's new strategy to combat drug operations that finance the Taliban. The list is thought to include people with close ties to the Afghan government and others who have served as intelligence assets for the CIA and the U.S. military, according to current and former U.S. and Afghan officials. ....

....Gen. Mohammad Daud Daud, Afghanistan's deputy interior minister for counternarcotics efforts, praised U.S. and British special forces for their help recently in destroying drug labs and stashes of opium. But he said he worried that foreign troops would now act on their own to kill suspected drug lords, based on secret evidence, instead of handing them over for trial.

"They should respect our law, our constitution and our legal codes," Daud said. "We have a commitment to arrest these people on our own." ....

...Ali Ahmad Jalali, a former Afghan interior minister, ...But he said foreign troops needed to avoid the temptation to hunt down and kill traffickers on their own.

"There is a constitutional problem here. A person is innocent unless proven guilty," he said. "If you go off to kill or capture them, how do you prove that they are really guilty in terms of legal process?"....


Wednesday, Apr 7, 2010 07:08 ET

Confirmed: Obama authorizes assassination of U.S. citizen By Glenn Greenwald

....Even more strikingly, Antonin Scalia, in the 2004 case of Hamdi v. Rumsfeld, wrote an Opinion (joined by Justice Stevens) arguing that it was unconstitutional for the U.S. Government merely to imprison (let alone kill) American citizens as "enemy combatants"; instead, they argued, the Constitution required that Americans be charged with crimes (such as treason) and be given a trial before being punished. The full Hamdi Courtheld that at least some due process was required before Americans could be imprisoned as "enemy combatants." Yet now, Barack Obama is claiming the right not merely to imprison, but to assassinate far from any battlefield, American citizens with no due process of any kind. Even GOP Congressman Pete Hoekstra, when questioning Adm. Blair, recognized the severe dangers raised by this asserted power.....


U.S. military teams, intelligence deeply involved in aiding Yemen on strikes

By Dana Priest

Washington Post Staff Writer

Wednesday, January 27, 2010

After the Sept. 11 attacks, Bush gave the CIA, and later the military, authority to kill U.S. citizens abroad if strong evidence existed that an American was involved in organizing or carrying out terrorist actions against the United States or U.S. interests, military and intelligence officials said. . . .

The Obama administration has adopted the same stance. If a U.S. citizen joins al-Qaeda, "it doesn't really change anything from the standpoint of whether we can target them," a senior administration official said. "They are then part of the enemy."

Both the CIA and the JSOC maintain lists of individuals, called "High Value Targets" and "High Value Individuals," whom they seek to kill or capture. The JSOC list includes three Americans, including [New Mexico-born Islamic cleric Anwar] Aulaqi, whose name was added late last year. As of several months ago, the CIA list included three U.S. citizens, and an intelligence official said that Aulaqi's name has now been added. ...


U.S. Approves Targeted Killing of American Cleric


Published: April 6, 2010

WASHINGTON — The Obama administration has taken the extraordinary step of authorizing the targeted killing of an American citizen, the radical Muslim cleric Anwar al-Awlaki, who is believed to have shifted from encouraging attacks on the United States to directly participating in them, intelligence and counterterrorism officials said Tuesday. ....

...It is extremely rare, if not unprecedented, for an American to be approved for targeted killing, officials said. A former senior legal official in the administration of George W. Bush said he did not know of any American who was approved for targeted killing under the former president. . ....

...The possibility that Mr. Awlaki might be added to the target list was reported by The Los Angeles Times in January, and Reuters reported on Tuesday that he was approved for capture or killing. ...

...As a general principle, international law permits the use of lethal force against individuals and groups that pose an imminent threat to a country, and officials said that was the standard used in adding names to the list of targets....

Edited by Tom Scully
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