06/23/14 – Marcy Wheeler – The Scott Horton Show

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All right, you guys, welcome back.
I'm Scott Horton.
This is my show, The Scott Horton Show.
And our next guest is Marcy Wheeler.
Empty Wheel, they call her on the internet, EmptyWheel.net.
And also, she's on Twitter, at Empty Wheel.
Welcome back to the show.
How are you doing?
Oh, I'm doing all right.
All right.
Hey, glad to have you here.
It turns out Charlie Savage, over at the New York Times, wrote this thing, court discloses memo approving drone strike on American.
Finally, they've released the memo.
Oh, but it's redacted.
It says here in paragraph one, can you please, ma'am, take us through it, tell us what we've learned, and just how legal is it for the President of the United States to order any of us murdered?
Important background is there were two memos authorizing the killing of Anwar al-Awlaki, one in February of 2010, and one in July of 2010.
This is the July one.
And this one was written largely to refute a blog post written by a lawyer by the name of Kevin John Heller, who's friends with the lawyers involved, who basically said, there's a law in the books which says you can't murder an American overseas.
And his blog post didn't question whether or not DOD could kill people overseas.
That's sort of their job.
He questioned whether the CIA could legally kill somebody overseas.
So the memo itself was written to refute this blog post, which is about whether or not the CIA can kill American citizens overseas.
And the memo, most of the CIA stuff is redacted.
So the stuff we really care about, redacted.
It makes a long argument.
It spends about 10 and a half pages arguing, well, DOD has an official job of killing people overseas, so this law can't be meant to prevent them from killing people overseas, and Anwar al-Awlaki was a bad guy, and at least DOJ has told us he's a bad guy.
So if that's all true, even though there's conflicting information about it, you guys can go ahead and kill him.
And then they turn to the CIA analysis, and it's half the length, not even half the length.
It's probably not much longer than the original blog post it was written to refute.
And it's not clear that it deals...
I mean, it seems to basically say, well, CIA was engaged in either a paramilitary or traditional military activity.
And this is part of a debate that's been going on about CIA for a while anyway.
So CIA involved in something that's different from covert operation, sort of, and therefore it can be treated like DOD, and their job is to kill people, so it's okay for CIA to kill American citizens.
I think that's the logic.
And it doesn't consider important...
Well, the unredacted portion of it doesn't consider the National Security Act, which says CIA can't ignore a law of the United States, and we know it does it all the time, but it's not supposed to...
You know, it's not supposed to ignore laws that protect you and I, but it did so in this case.
Now, is there actually a law that specifically says you can't kill Americans overseas just because they're overseas, the very same protections apply, etc.?
Is that court precedent, or that's a law, or both, or what?
It's a law.
There's two laws that the memo actually deals with.
One, the blog post raised, which was...
It basically meant if an American killed American overseas and then came back here, that person could be convicted here.
That was the circumstances it was written for.
The second one was a 1995 law written to prevent terrorism.
You know, Yemenis would say that our drones are terrorism, but put that aside.
And it says you can't engage in a conspiracy to kill people overseas, because that's what CIA does all the time.
But both of those are laws, and both of those to not apply to CIA requires you to, A, buy off on the fact that it's CIA's job to kill people, just like it's DOD's job to kill people.
And it's not internationally.
I mean, there's this huge long footnote where it says it's not illegal for unprivileged combatants to kill people.
But we're holding a bunch of people in Gitmo for doing just that.
I mean, Omar Khadr was convicted for doing precisely what this footnote says it's not illegal to do.
So he should go free, but he's in Canada right now.
So we probably can't free him based on this.
So that's how it does it.
I mean, it's gimmicky.
One of the things that I love about it is it refers to a State Department justification for bombing Cambodia in arguing that it's cool to bomb in Yemen.
And it relies on an 1984 OLC memo authorizing people like Ali North to raise funds for the Contras in defiance of congressionally passed laws that say you can't do that either.
So it goes back to the best precedents in American history to say, screw it, we're going to do what we want to.
It's sort of like, didn't John Yoo, back when he was, quote unquote, legalizing torture in his memos for George Bush, didn't he resort to finding some definition of pain equivalent to organ failure out of some social security laws or court decision from 30 years before that had absolutely nothing to do with torture, but it had some specific threshold of pain definition in it that he decided he could apply.
In other words, like you say, gimmicky.
They're basically playing like mob lawyers, making up excuses for criminals to carry out criminal behavior.
You know, it's when you write a legal tract in secret, it's very easy to make.
I mean, in this case, I think just the reference to what the, I mean, the two complaints from a legal perspective, and I'm not a lawyer and the international lawyers, the international law lawyers will have a lot to say about this.
But from my perspective, the two big lawyering complaints I have is one, the notion that we don't believe unprivileged combatants, so enemy combatants, like the people we call terrorists, we don't believe that it's illegal for them to kill.
Of course we believe that.
But this memo argues that we don't believe that.
That's completely inconsistent with the arguments we make at Gitmo.
The other complaint I would have is it doesn't appear to, although it could in the redacted section, it doesn't appear to deal with the National Security Act provision that says you can't, you can't ignore the law.
And then, I mean, and there's other problems.
I mean, this memo was written in July, 2010, and said, well, al-Awlaki can't be captured.
It was 15 months before we actually killed him.
And the notion that he could never be captured over that entire 15 month period, it sort of throws the notion of imminence, of capture, all of those kinds of justifications out the window.
But a lot of that's redacted too, so we can't make a really good argument against it.
Well, I guess, so I'm being sloppy, and you're being careful there, that you're saying that they could get it this wrong without it just being simple dishonesty.
Because I'm thinking, the other Scott Horton always talks about how the Justice Department prosecutes mob lawyers, and says, you know, helping conspire with mafia members how to get away with committing crimes is not lawyering, and you're going to prison.
And I just wonder, it always seemed to me like that was what John Yoo did, and this seems blatantly preposterous enough, never even mind a law, a court decision, or anything else.
The plain language of the Fifth Amendment forbids the U.S. government from any such authority.
Well, and it doesn't appear to deal with the Fifth Amendment that much, although, again, there's this prior memo.
Does that rise to the level of a joke of a memo that couldn't possibly be taken seriously, or not?
I think it makes a better faith attempt to lay out the actual law, and it gets a few things right, according to the international law lawyers who I've seen read it.
I think the bad faith moves that it makes, and it does make bad faith moves, in my opinion, although I'm sure other people would disagree with me, the bad faith moves it makes are more tactical, whereas John Yoo's bad faith move was strategic.
The whole thing was bad faith.
And I think, I mean, ultimately, I think that the memo couldn't and did not fully legitimize CIA conducting this operation.
I think that the memo probably made a compelling argument that DOD could conduct this operation.
But therein lies the problem.
They wrote the memo to refute an argument that CIA could not legally do so, and it doesn't appear that they've answered all the questions of their critics there.
And I mean, there's other things like they say, as John Yoo always did, given the facts you've given us.
And we know that DOJ was working from an inconsistent record.
We know, you know, you and I have talked about this a bunch, we know that Umar Farouk Abdulmutallab was key to this argument.
The undie bomber.
Yet, we also know that his three different confessions, two of which had taken place by the time of this memo, are inconsistent on the matter at hand of al-Awlaki's role in the undie bomb.
They also seem to be relying, we had an informant in JQAP at the time this memo was written, Jabir al-Faisi, who ended up coming out with the toner cartridge bomb three or four months later.
And, you know, they appear to be at least using his, it may be that he was reporting back to the Saudis saying, oh, yeah, they're still plotting.
But reports in Arabic say that, I'm hearing the second hand, I don't read Arabic, I think, attributed the toner cartridge bombing to other people in JQAP much more significantly than they did to al-Awlaki.
So, you know, again, I think the record, the facts that DOJ presented to OLC are probably contestable.
And that's why we don't let the executive branch kill people in secret, because if you contest, if you have an opportunity to contest these facts, there's going to be reasonable doubt.
I mean, I don't think they had a strong enough case against al-Awlaki, particularly in 2010, and definitely not on Christmas Eve 2009, when the first time they tried to kill him, they didn't have a strong enough case.
And so I think part of the reason this is, you know, they're still so squeamish about this memo is because you can look at the timeline, and you can be quite certain that the executive branch was not operating under the law at particular times.
I mean, maybe by 2011, they had made the case that al-Awlaki was the worst guy in creation.
But the evidence they had at hand, at least that we know about when they wrote this memo is pretty dicey.
And that's what you get.
Yeah, it's always seen that way to me, too.
Yeah.
Well, and I'm sorry, because I would like to talk with you further about, you know, the power of the DOD to kill somebody like al-Awlaki, him or someone else like him in current circumstances.
But I've already kept you over time.
And you got to go and I got to go.
But maybe we can talk soon.
I'm certainly going to be keeping my eye on your blog all week and learn as much as I can about this.
All right.
Take care.
So thank you very much for your time, Marcy.
Good to talk to you again.
Yeah, great to be on.
Take care.
All right, y'all.
That's the great Marcy Wheeler, Empty Wheel.
That's EmptyWheel.net.
That's her great blog.
And there's a couple other great writers there, too.
But yeah, the brilliant Marcy Wheeler, EmptyWheel.net, at Empty Wheel on Twitter as well.
And we'll be right back in a sec.
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