Brian Williams - Predators

Alston subsequently issued a rebuttal to Koh’s statement: “I don’t think we can ask for full transparency. I don’t think the United States is ever going to provide access to all of the information relating to these killings. But until it starts to provide at least some access, we will not be able to conclude that the United States is in fact complying with the law, as Harold Koh insisted.” 63

Koh did not respond to Alston’s continued requests for the release of further details. But the Washington Post published an article in support of Koh’s statement, which said, “[Koh] rightly rejected the absurd notion that enemy targets must be provided ‘adequate process’ before the strike occurs…. Mr. Koh’s reaffirmation of the right to self-defense—even outside the confines of an existing armed conflict—is particularly important…. The right of self-defense is inherent and may be exercised against current and future enemies that pose an imminent threat, including those operating outside of traditional combat zones.” 64

Regardless of the criticisms from Alston, the Obama administration has continued to refer to the 2001 AUMF signed by President George Bush, which gave the president the authority “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.”

There have been several other interesting legal cases involving drones as well. One of them concerns a forty-year-old Yemeni American named Anwar al Awlaki. Awlaki grew up in Las Cruces, New Mexico, but became devoted to jihad against the United States after 9/11. He moved to Yemen, linked up with al Qaeda in the Arabian Peninsula (AQAP), and became an outspoken supporter of jihad against his former American homeland. His emails and online sermons in Arabic, in which he called Americans “devils,” proved to be inspiration for Nidal Hasan, another American Muslim who went on a shooting spree at the U.S. army base at Fort Hood, Texas, that left thirteen dead. After Hasan’s attack Awlaki said, “Nidal Hasan is a hero.” 65

Awlaki’s fiery preaching was also said to have inspired Faisal Shahzad, the failed Times Square bomber. 66In the online jihad magazine Inspire , Awlaki called for the killing of American civilians: “The ideal location [for a bombing] is a place where there are a maximum number of pedestrians and the least number of vehicles. In fact if you can get through to ‘pedestrian only’ locations that exist in some downtown [city center] areas, that would be fabulous.”

Awlaki’s fluent American English and knowledge of the culture and idioms of the West made him an ideal recruiter for disaffected Muslims, like Nidal Hasan, who were living in America. He was called the “bin Laden of the Internet.” But Awlaki proved to be more than just an inspiration. President Obama called him the “leader of external operations for Al Qaeda in the Arabian Peninsula.” 67On another occasion he said that Awlaki “took the lead in planning and directing efforts to murder innocent Americans.” 68Specifically, he was actively involved in the December 25, 2009, “underwear bomber” plot to blow up an airliner flying from Amsterdam to Detroit. 69He was also accused of involvement in an attempt to blow up a United Parcel Service (UPS) plane flying from Yemen using bombs triggered by a cell phone. If this were not enough, he was found to have been plotting with a British Muslim of Bangladeshi decent to blow up a British airliner. 70

In response to his increasingly dangerous operational role, the CIA announced that it had added Awlaki to a terrorist hit list; he was the first American to earn this distinction. At the time a secret memo that stated that it would be lawful to kill Awlaki only if he could not be taken alive was written. This memorandum was written after meetings in the White House Situation Room involving lawyers from the State Department, Pentagon, National Security Council, and various intelligence agencies. The secret document provided the justification for killing Awlaki, despite an executive order banning assassinations and a federal law against murder. The Justice Department decided that the killing of Awlaki, who was a member of a “cobelligerent” group (AQAP), was covered by the AUMF. The New York Times called the memo, which legitimized the killing U.S. citizen without a trial, “one of the most significant decisions made by President Obama.” 71

In February 2013 a Justice Department memo to the Senate Intelligence and Judiciary Committees that outlined the legal argument for the strikes against U.S. citizens, such as Awlaki, was leaked to NBC. The sixteen-page memo provided guidelines for killing Americans abroad if they were senior members of a terrorist organization and involved in operations against the United States. The memo stated that it is “lawful for the US to target al-Qaeda-linked US citizens if they pose an ‘imminent’ threat of violent attack against other US citizens, and that delaying action against such people would create an unacceptably high risk.” 72The memo required that the capture of American citizens involved in terrorism had to be deemed unfeasible before lethal operations could be carried out against them. Awlaki, who was involved in ongoing terrorist operations against U.S. citizens and guarded by pro–al Qaeda tribesmen in a remote corner of Yemen, certainly fit the criteria covered in the memo.

The United States subsequently pressured the Yemenis to arrest this major al Qaeda recruiter and planner. On one occasion Yemeni troops surrounded a village where Awlaki was hiding out with tanks, but he managed to escape. The JSOC subsequently made several well-publicized attempts to kill him with drones in Yemen. 73

These developments caused considerable controversy in the United States. The idea that the U.S. government could execute a U.S. citizen with no judicial process based on secret intelligence made many uneasy. 74One counterterrorism official, however, responded to criticism by saying, “American citizenship doesn’t give you carte blanche to wage war against your own country. If you cast your lot with its enemies, you may well share their fate.” 75The Wall Street Journal similarly opined, “Perhaps al-Awlaki’s U.S. citizenship gave U.S. officials pause, but after he joined the jihad he became an enemy and his passport irrelevant.” 76

In response to these extraordinary developments, Awlaki’s father, Naseer Awlaki, sued CIA director Leon Panetta and Defense Secretary Robert Gates with the support of the ACLU. The senior Awlaki described his son somewhat implausibly as an “all-American boy.” The ACLU lawsuit claimed that the Obama administration had given itself “sweeping authority to impose death sentences on American citizens.” 77In December 2010, however, a federal judge threw out the lawsuit claiming that Gates and Panetta were immune from lawsuits and that Awlaki’s father did not have the standing to file the suit. 78In essence the judge ruled that the court did not have the right to overrule President Obama (the executive branch) in wartime on matters involving war.

In March 2010 the ACLU filed a Freedom of Information of Act lawsuit that demanded that the CIA release information on the drone strikes. According to the ACLU website,

The public has a right to know whether the targeted killings being carried out in its name are consistent with international law and with the country’s interests and values. The Obama administration should disclose basic information about the program, including its legal basis and limits, and the civilian casualty toll thus far….

Recent reports, including public statements from the director of national intelligence, indicate that U.S. citizens have been placed on the list of targets who can be hunted and killed with drones. 79