All right y'all, welcome back.
It's anti-war radio.
I'm Scott Horton and our first guest on the show today is Marcy Wheeler.
Empty Wheel.
Her blog is EmptyWheel.net and she'll fool you.
She fooled me.
Not on purpose, I don't think, but she does such a good job detailing what, you know, translating legalese into English and keeping up with the scandals of the prior and current presidential administrations especially.
I just thought she was a lawyer.
She's got to be trained as a lawyer to do what she does so well, but no, apparently not.
She's just brilliant and she's been picking apart the bits of the memo leaked to Charlie Savage at the New York Times and drawn up a timeline of who knew what when and who made what decisions and all these incredibly important things that I'd like to go over.
Welcome back to the show, Marcy, how are you?
Hey Scott, great to be here.
I really appreciate you joining us.
Again, it's EmptyWheel.net and I want to start with this one.
How can Samir Khan be, quote, collateral damage if OLC memo restricted civilian deaths?
And now Samir Khan is the Al-Qaeda webmaster who apparently, they say, was killed along with Anwar al-Awlaki in the recent airstrike in Yemen.
Another American citizen, correct?
He, yeah, that's the key part is he's an American citizen and he, I mean, he clearly was a propagandist who was behind the Inspire magazine, but he was not by any account operational.
So he was no different than Glenn Beck or Hal Turner or any number of other propagandists who have inspired violent acts.
And, you know, Hal Turner has gotten criminal trials when he's been accused of inspiring and being responsible for violent acts.
Samir Khan instead got killed.
And the question is, was he killed intentional?
The memo, at least as reported by Charlie Savage in the New York Times, the memo says that because al-Awlaki was an American citizen, you had to be careful about civilian deaths.
And I don't understand how it is that you can be careful about civilian deaths, but at the same time, kill an American citizen who happens to be riding in the same car, especially since the government has a history of this, right?
The first time they tried to take al-Awlaki out with a drone strike, he was going to be the collateral damage.
He was going to be the guy sitting next to the actual target.
And the very first American they killed with a drone strike back in 2002, this guy by the name of Kamal Darwish, who was alleged to have been recruiting Buffalo area men to join terrorist organizations, he too was called collateral damage.
And that case is even weirder, because the guy we took out was supposed to have been the head of the coal bombing.
And yet we're about to put al-Nashiri, a Gitmo detainee, on trial for having been the head of the coal bombing.
So, you know, they keep having these stories about who they're targeting.
And along the way, they keep killing American citizens.
Mm hmm.
Well, now, what does that mean?
Be careful of civilian deaths?
Is that just they put that in there as an aside?
I mean, that doesn't really say, even try not to kill civilians.
It just says, be careful when you do or, you know, don't accidentally blow yourself up, point your gun the right direction, that kind of thing.
Yeah, I mean, we don't have the memo.
So we can't see the logic that that Marty Letterman and David Barron were using.
But they seem to be arguing that in taking al-Awlaki out with a drum strike, the CIA should follow the same kinds of rules that you do as a cop, right?
So if a cop is chasing down a suspect or a criminal in hot pursuit, they're not supposed to just start blowing away everybody in the town square so as to get the criminal or the suspect, right?
And it seemed like they were making a similar kind of argument with al-Awlaki.
And no one, I mean, it's sort of interesting, but no one has thus far leaked whether the CIA that knew the con was in the car, which which seems to be one of the most critical details about this operation.
And conveniently, nobody wants to tell us whether or not they knew the con was there, because if they did, then they basically gave the go ahead to kill two American citizens, even though they were supposedly legally restricted from from killing extra civilians that they shouldn't have killed.
And now with all the classified leaks that have come out since the killing, they haven't leaked any of the actual information about how they supposedly knew that he was an operational this or that, as opposed to just also being guilty of inspiring others to do things.
Is that correct?
You know, the best article on that is one by Mark Hosenbaugh from last, from last Wednesday.
The title of it is secret panel can put Americans on kill list.
And it's interesting, I mean, there are three things that al-Awlaki is alleged to have done.
One is order Abdulmutallab, the underwear bomber.
One is to have given him some very specific orders about how to carry out his attack.
The second one is discussions with somebody who was arrested in the UK for trying to take out trying to launch an attack against planes.
And the third is that toner cartridge bombing.
Remember that they had to that they that they no longer will ship printers on planes because they're afraid that they're going to be loaded with explosives.
So those are the three operations that he is alleged to be involved with.
And Hosenbaugh lays that out.
But he also reveals that on two of those, there are questions to there are reasons to question the validity of the intelligence that the CIA had.
So for example, the evidence tying Abdulmutallab to al-Awlaki himself came from intercepts came from eavesdropping.
And they think that the voice that they picked up with al-Awlaki, but they don't know.
There's another one where the evidence tying al-Awlaki to this is to the UK plot, where they basically have emails between this guy who was arrested in the UK and his brother.
And their, their tie to al-Awlaki is just a claim that al-Awlaki was sitting there next to the brother while he was emailing.
So in other words, it turns out that the intelligence and then the third is this is not something Hosenbaugh points to, but it's something at the point I've made before.
The third case, the toner cartridge case, was tipped off by a guy that we had in Gitmo, released to the Saudis, who was reeducated, and then almost certainly sent out as a spy to al-Qaeda.
So he was, he was a double agent for us, presumably.
And I'm not sure whether I, whether I want American citizens to be executed based on the word of somebody who's not just a double agent, but who was exposed to the conditions at Gitmo, which may or may not include a lot of coercion.
Well, and so, yeah, so I mean, the short and long of it is there are three operations they allege al-Awlaki was tied to, but the intelligence on all that is questionable and probably wouldn't have stood up in a court.
Right.
And now this was the thing, I forget if it was Glenn, it must have been Glenn that pointed me toward this Washington Times piece, al-Awlaki would have been difficult to try as a civilian.
And I guess this is just a symptom of the complete and total lack of shame and introspection in Washington, D.C., where they don't even know that they're supposed to be embarrassed in explaining that there is no way in the world we could have got even a federal jury to convict this guy based on the flimsy nothing that we got.
And so it was a much better decision to just go ahead and kill him.
Obviously.
Right.
And so we don't know.
I mean, and we'll never know.
And the government is, you know, is okay discrediting what they've done by working in secrecy.
And yet nobody is really, I mean, there are people, but nobody in the government recognizes what a terrible precedent this is.
I mean, even if we were willing to grant that al-Awlaki was a horrible person, he may well have been, you know, like I said, there are reasons to doubt the intelligence, but even if we grant that, the way in which this was conducted and the way in which it so clearly defies what should be reasonable with American citizens is a horrible precedent.
Because it could, you know, it could happen to anybody.
Well, it seems like there's a little bit, at least, of a pattern of, you know, either, you know, jailing without trial, taking people off to black sites or torturing them or killing them because they don't have something on this or that person, like Jose Padilla, who the FBI said actually was mostly harmless and they wanted to flip him and use him as an informant.
And when he wouldn't do it, they didn't have anything on him about a dirty bomb or apartment complex plot.
And eventually they just convicted him of knowing a guy who knew a guy who supposedly sent some money somewhere or something.
But so they turned him over and kept him in secret prison and tortured him for years.
All right.
I'm sorry.
We'll be right back after this break.
All right, y'all, welcome back to the show.
It's anti-war radio.
I'm Scott Horton.
I'm talking with Marcy Wheeler.
And sorry, mostly talking at her all the way up to the break.
But I was trying to form my rant in Jeopardy question format, which was something to the effect of doesn't it seem like sometimes anyway, the reason they kill and or kidnap and torture these people and keep them outside of the law is because they've got nothing on them, really.
Like the Omar Khadr case, for example.
Yeah, I mean, what is really important to understand is this big push to have military commissions, to have, you know, this ability to assassinate an American citizen.
A lot of that is based on a desire to use intelligence rather than evidence to make these big decisions.
So in other words, they're going to introduce a lot of intelligence.
And then a sherry case that may or may not be really great.
It may or may not be found enough such that you could introduce it at trial.
And I think that's a really disturbing development because, you know, you don't know whether it was developed using torture and therefore is unreliable.
You don't know whether it was used by an illegal wiretap program.
You just don't know.
And that's what getting around civilian court seems to be all about.
You know, it seems to be about acting on intelligence rather than on evidence and and refusing to allow.
And again, that's what the secrecy is all about.
If the government let us see that there were questions about the tie between al-Aulaqi and actual operations, then they wouldn't have been able to kill him.
Right.
But instead, they made sure he never got into court and so never challenged that evidence.
And and we'll never know whether it would have held up in court.
Well, now, at some point they did try to indict al-Aulaqi.
Am I right?
Yeah, they tried to indict him back in, if I remember, 2002.
But it was, you know, they were suspicious of him after 9-11 and investigated him, tried to indict him based on immigration violations.
If I remember correctly, it didn't work.
What they're arguing here, and I'm somewhat sympathetic to this, is they say they didn't know that al-Aulaqi had gone operational until 2009, until the underwear bomber.
So they're saying, you know, they failed to indict him in 2002 or whatever year it was.
And they might have been able to indict him in 2010.
They simply didn't try.
And that's, to my mind, the big problem, that they didn't try and indict him and also that his father and the ACLU sued to find out the basis the government was using to target him.
And they weren't saying, you don't have the ability to target him.
They were saying, we just want to know the justification.
It's the same kind of questions we're asking now.
And the government invoked state secrets.
And they had this opportunity then to make their case in court for why they needed to kill al-Aulaqi.
And they chose not to use it.
They then said, oh, it's all state secrets.
And now all the same information they claim state secrets over, they're leaking out, you know?
So it's like, they only want the information to come out on their terms.
They don't want it to come out with a judge to be able to, you know, say whether or not it should be able to come into evidence.
Well, and it's funny because comparing intelligence to evidence, it really is.
Intelligence is the lowest standard of anything ever.
Lower than an objective, reasonable belief, anything.
Just a cop says so or a government agent says so is it, right?
Yeah.
And what got us into Iraq?
Intelligence.
Developed by the same intelligence organizations that developed the intelligence on al-Aulaqi.
I mean, we know that intelligence can be badly, badly flawed, can be badly politicized, can be kind of crafted for career purposes that spin the most dangerous view on something.
And so, I mean, that's why it's so dangerous to use intelligence without actually having somebody really check the intelligence, which is what our court system is supposed to do.
Well, and, you know, maybe it's worth noting that our government kills foreigners on these standards and less on a daily basis all over the world.
Yeah, absolutely.
All right.
Now, you're also, you have a blog entry here, Marcy, called, If the legal case for killing al-Aulaqi is so sound, then why maintain presidential plausible deniability?
And you point out here that someone who seems to be a very top administration official said at first that, oh, yeah, Obama ordered the hit, but that now they're trying to undo that and pretend that it's not clear whether he was involved or whether he delegated the authority to order this hit to Hillary Clinton and them.
Yeah, well, actually, I was making a comparison between the Osama bin Laden killing and the al-Aulaqi killing.
With the Osama bin Laden killing, they were going on and on about what a brave decision Obama made, and he made the decision to go after Osama bin Laden.
But in the al-Aulaqi killing, they're trying very hard to obscure what role Obama had in the decision.
And I find the comparison really instructive, because if it really was such a good legal case, you and I may not approve of the way al-Aulaqi was killed, but a lot of voters do, right?
And if it really was such a good legal case, Obama should be going out there saying, ah, I killed the guy.
You know, I keep killing terrorists.
Dick Cheney could never kill terrorists.
Mitt Romney won't be able to kill terrorists.
And he's silent on his role in the al-Aulaqi thing.
And again, I think that that's an indication of this need to separate him from the actual decision.
And also, frankly, I mean, you said that we should be aware of the fact that they're using these systems to go after people who aren't American citizens.
The normal targeting process, and we know this both from that Huffingball article I talked about, but also from a Newsweek article that came out last year that talked about John Rizzo's role in it.
The normal targeting process doesn't go to the president.
So when they drop all these drones on Pakistan, that doesn't go through the president.
It usually stays at the level of a David Petraeus now, or Leon Panetta stays at the CIA director level.
And again, how do we know these are good decisions?
I mean, we're creating a whole lot of enemies in Pakistan right now because of our drone strikes and because we tend to not always hit the targets we want.
And it's not clear that the review process there is all that sound.
Now, how unprecedented is this legal wise?
I mean, certainly presidents have had people murdered in the past, but what about claiming the right to do it this way and claiming a secret law basically invented by the executive branch that justifies it and all that?
You know, one of the things, I mean, I think it's all about the way they've crafted the war on terror, right?
And I think that it is a very important development and troubling development in the way that they've crafted the war on terror.
I mean, one of the things that came out in the Charlie Savage article that we knew, but Savage confirmed it, is that when there was discussion earlier about whether or not you could target al-Awlaki, everyone said, well, of course you can.
You know, he's tied to AQAP outside in the Arabian Peninsula.
Yet, if you go back to the authorization to use military force, it says it's targeted at the people who caused 9-11, right?
So 2001, it's saying we're going after the people who caused 9-11.
Well, AQAP didn't even exist at that point.
And there's been legitimate contention about whether we should even be at war against AQAP based on what Congress has approved.
And we now learn, which is not that surprising, but we now learn that last year, some lawyers secretly basically expanded the war.
They expanded what the definition of the war from basically al-Qaeda and the Taliban, and expanded to include another country, another group, and they did that with no review.
Since then, Congress has come in and said, we'd like to write a new AUMF to include Yemen, to include AQAP in the administration.
But, oh, we don't need to.
We have the authority already.
And we now know the reason they think they have that authority is because their lawyers secretly told them they have the authority, not because Congress has approved it.
That, to me, is a really important part of what Savage's article showed, although I don't think anyone's talking about it because we're so used to the fact that, oh, yeah, the war on terror is kind of morphing over time and slowly expanding.
But that's what's happening.
The president is basically, oh, I'll just change the terms of the AUMF and expand the war doing that.
Well, I wonder about is there any substantive difference between that and the way George Bush and his lawyers just said, well, the only part of the Constitution that's operative in any of this is that George Bush is the commander in chief and he can do whatever he wants and no one can review his actions.
And he has this inherent plenary authority.
Obama, at least, is citing this law passed by Congress, but then he's secretly reinterpreting it to say that he can do whatever he wants, wherever he wants.
So is but is there any substance in there of improvement at all?
Really?
Well, but that's precisely what what the what the Bush administration did with their illegal wiretap program.
They said, oh, the AUMF authorizes this, which is completely bogus.
I mean, it was clear that wasn't the case.
So, you know, the difference is.
It's not there's not that much difference.
I think you I mean, certainly if John, you were in charge today, he would have authorized this in worse in worse manners.
But if that goldsmith were in charge today, he probably wouldn't would have written the same exact memo.
Yeah.
All right.
Well, we'll have to leave it there.
But everybody, I direct your attention, please, to empty wheel dot net, the blog of the great Marcy Wheeler.
Thank you very much for your time.
Thanks, Pat.
Bye bye.
