krebscycle

[Greenwald] What Andrew says Obama has a “duty” to do – “explain in court why he believes this person must be treated as an active enemy at war with the US” – is precisely that which Obama is steadfastly refusing to do. cite

This is totally false. We’re not here arguing about what’s right or wrong, but about simple fact.  What “precisely” is the government refusing to do? Is it “precisely” refusing to “explain in court why he believes this person must be treated as an active enemy at war with the US”? No. The core of Greenwalds claim is a slick substitution of “why” for “when and how”. The US government is totally open about why it may want to kill Mr. Aulaqi. What it does not want to reveal is “when and how”. Here’s Greenwald’s claim with added bold.

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

Not true. The state secrets argument the Department of Justice made is entirely based on the operational details of US military missions

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

As to why:

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[.]”

Or see Clapper’s submission.

http://www.aclu.org/files/assets/exhibits.pdf

The Government has also provided secret data to the court.

http://www.aclu.org/files/assets/declaration_filings.pdf

The court is free to request additional information.