krebscycle

First I want to summarize the argument that the Department of Justice made to the court about Anwar al-Aulaqui and the lawsuit brought against the government by his father and the ACLU. Then I want to show you Glenn Greenwalds “summary” of the same argument. I’m going to provide links to the documents so you can judge for yourself.

The Obama administration told a court that

• It will neither confirm nor deny that it has targeted Mr. Aulaqui for attack of any kind.
• Anwar al-Aulaqui is senior commander in al Qa’ida,
•  he had organized terrorist attacks on the United States including the Christmas Day Shoe Bomber,
• that he had increasing operational role in organizing attacks,
• that the United States is conducting a war with al Qa’ida,
• that Judges have no business supervising the day to day conduct of that war.
• that Mr. Aulaqui could at any time lay down arms and be granted the protections of the Geneva Convention and any other protections he might have as a US Citizen

The government also provided the court with secret testimony from the heads of the intelligence agencies presumably to document their case about Mr. Aulaqui’s role as a belligerent. Here’s what the Government said about the case against them.

Plaintiff does not seek to challenge the Government’s determination that his son is an operational leader of AQAP and does not seek to categorically stop the United States from using lethal force against his son under all circumstances. Rather, plaintiff seeks to enjoin the President of the United States, the Secretary of Defense, and the Director of the Central Intelligence Agency, from “intentionally killing U.S. citizen Anwar Al-Aulaqi” outside an armed conflict “unless he is found to present a concrete, specific, and imminent threat to life or physical safety, and there are no means other than lethal force that could reasonably be employed to neutralize the threat[.]”

The government is saying that (a) Mr. Aulaqi is conducting war against the United States from an area of Yemen that is known to not be under the control of the Yemeni government and (b) that the plaintiffs are asking that the court set the conditions under which the US can intentionally kill Mr. Aulaqi.  If the government is accurately describing the Plaintiff’s demands, then it is describing a demand for a Judge to evaluate the appropriateness of specific military actions. If the US government has plans to attack Mr. Aulaqi’s camp and to target the commanders quarters in hopes of killing Mr. Aulaqi, they would only be permitted to execute these plans if  there was clear evidence of an imminent threat that would be foiled by such an attack there were no alternative actions to be taken to foil that threat.  If there are special forces near Mr. Aulaqi’s camp, the Plaintiffs, according to the government, want to forbid them from using snipers to kill the camp officers unless Mr Aulaqi “is found to present a concrete, specific, and imminent threat to life or physical safety, and there are no means other than lethal force that could reasonably be employed to neutralize the threat[.]” The Government argues that such decisions about military actions are not the province of the Judiciary. Essentially they argue that Mr. Aulaqi’s citizenship does not protect him against the actions of the US government while he acts as a belligerent. If he chooses to be at war with the USA, then his life is at risk. Furthermore they argue that Mr. Aulaqi’s father is not in a position to sue the government, if Mr. Aulaqi wants to demand his rights as a citizen, he must do so in court himself, while he is a belligerent, nobody else can make such arguments for him.

Furthermore, the government states that for a Judge to evaluate whether such an attack met these conditions  he or she would need to force the government to reveal detailed operational orders that are "state secrets”.

Without admitting or denying plaintiff’s allegations (and indeed regardless of whether any particular allegations are true), the Complaint puts directly at issue the existence and operational details of alleged military and intelligence activities directed at combating the terrorist threat to the United States. Notably, plaintiff demands the disclosure of any “secret” criteria governing the use of lethal force against operational leaders of enemy forces overseas.[…]

Plaintiff also repeatedly concedes that resolution of his other claims on the merits would require discovery into the “totality” of the factual circumstances concerning whether or not and, if so, how the United States may plan to use lethal force, including whether, when and how the Government evaluates if a threat to national security is imminent, whether such force would be a last resort, and what the government is or is not actually doing to counter the ongoing and dangerous threat posed by al Qa’ida and its associated forces.

http://static1.firedoglake.com/28/files/2010/09/100925-Al-Aulaqi-USG-PI-Opp-MTD-Brief-FILED.pdf

So agree or not, and I think there is a big hole in it, that’s the government’s case. Here is how Glenn Greenwald summarizes this argument under the headline

Obama argues his assassination program is a “state secret”

 not only does the President have the right to sentence Americans to death with no due process or charges of any kind, but his decisions as to who will be killed and why he wants them dead are “state secrets," and thus no court may adjudicate their legality.

http://www.salon.com/news/opinion/glenn_greenwald/index.html

According to Greenwald, the President is asserting the right to "sentence Americans to death” – actually the President is asserting that AQ commanders in a state of war against the US do not qualify for Court protection. And according to Greenwald, the President says that “why he wants them dead” is a “state secret”. But the Government is quite clear about “why” it may want to kill Mr. Aulaqi – he is organizing terrorist attacks on the United States.  The state secrets the government describes in this document are not “why” but  “when and how the Government evaluates if a threat to national security is imminent, whether such force would be a last resort, and what the government is or is not actually doing”.  The orders given to operational units, the ways that the military and intelligence agencies react to and decide how to counter threats are “state secrets”. That’s a very different argument – and I think it’s a pretty strong one.

The idea that the government argument opens the doors to arbitrary assassination of Americans is ridiculous. The government argument is that if an American joins a military force that is at war with the United States, until they surrender or otherwise stop being an active belligerent, the government will consider them to be just another enemy with no special rights. I think that’s a reasonable argument. If you join a military force at war with the USA, you are, to me, fair game. Greenwalds “summary” seems to me to be far from accurate. Substituting “why” for “when and where” looks like a deliberate deception.

The problem with the governments argument is that the USA has no credibility in its offer of Geneva Convention rights and full judicial rights to citizens who are incarcerated. The use of solitary confinement/sleep-deprivation as torture makes the US a non-credible actor in this whole saga. But none of that saves Greenwald’s credibility.