Blogger Marcy Wheeler discusses new details on the DOJ “white paper” justifying the extrajudicial assassination of American citizens abroad; judge Colleen McMahon’s below-the-radar observation that Anwar al-Awlaki’s killing was illegal; problems with “laws of war” justifications when the CIA is doing the killing; the spotty evidence al-Awlaki was directly involved with the underwear-bomb plot or the Ft. Hood shooting; and why the Obama administration had to know al-Awlaki’s son was a minor when they assassinated him with a drone strike.

Transcript (page all the way down for the audio):

SCOTT HORTON INTERVIEWS MARCY WHEELER

FEBRUARY 18, 2013

TRANSCRIPT

 

SCOTT HORTON:  All right, y’all. Welcome back to the show. I’m Scott Horton and our next guest is Marcy Wheeler, emptywheel as she’s known in the blogosphere, emptywheel.net, and she has been working very hard on getting to the bottom of this mystery of which all presidential powers to kill are being asserted by our current emperor, Barack Obama. Welcome back to the show, Marcy. How are you doing?

MARCY WHEELER:  Hey, Scott. How are you?

SCOTT HORTON:  I’m doing great. Appreciate you joining us here today, and I know, actually I think because of you I know, that they, Jason Leopold I guess, got his hands on a copy of the white paper that doesn’t have NBC News graffiti all over it, that’s you know actually legible, so if there’s actually anything that you were able to dig out of that clean version of the memo that’s worthy of note, maybe we should just start there, since our last discussion.

MARCY WHEELER:  Yeah. So this white paper was leaked right before John Brennan testified and then a couple of days later Jason Leopold got a copy of it. He had originally FOIAed and had been given expedited processing for last August, so all of a sudden it (laughs) became okay to give him the FOIA. And, you know, one of the things that became clear as you were able to read it is that the white paper really tries to play this double game where every step of its legal argument it says, “This is true under the AUMF” – under the Authorization to Use Military Force – “and this is also true under the president’s authority to protect the nation from an imminent threat. So there’s this dual structure to the white paper which becomes clear once you can read it. And that’s actually really interesting because most people commenting publicly are saying, “Oh, Obama did this under the AUMF,” and he actually did it at best under a joint invocation of the AUMF and his Article II power as president. But there are hints that it might have been just the Article II power. And we don’t really know. I mean, that’s I guess one of the reasons why we should get to see the actual memos rather than, you know, this white paper that they’ve produced for public consumption.

SCOTT HORTON:  Right. Of course, yeah, I should have explained that at the beginning here that it’s not the actual memo, it was a white paper to Congress explaining what the memo might say if we were to ever let you see it.

MARCY WHEELER:  Right. And it’s actually an interesting – I mean, one of the things I did is compare what Eric Holder said publicly last year –

SCOTT HORTON:  Actually, wait, hold that for a second. Because, well, I don’t know, maybe this goes on the other end of the thing you’re going to say, but anyway I wonder whether you think the reason that it’s half Article II – that means Article II of the Constitution that creates the presidency – the dual-aspect argument, it’s part Authorization To Use Military Force, it’s part Article II of the Constitution – is that just what George W. Bush used to call disassembling? Trying to distract us and confuse us in order to get away with what’s actually just plainly illegal?

MARCY WHEELER:  Well, yeah, it may well be. I mean, one of the reasons I became really interested in this white paper is because Ron Wyden keeps asking – or kept asking, I don’t know whether he knows the answer to this now or not – but for over a year he was asking, “Did you kill Anwar al-Awlaki based on the AUMF or did you kill him based on basically Article II power, Commander-in-Chief power?” And he didn’t know. And this is a guy on the Senate Intelligence Committee who had been briefed by the administration on what they had done, and he had no idea. And that, you know, that was what got me interested in which it was, once you looked at the white paper. And he had started asking this question before the white paper was actually released to Congress, although after it was written, and then he kept asking and asking and asking. So, you know, for somebody who was purportedly briefed at the highest level about this killing, not to even know? That should – that was alarming to me, and we still don’t know that answer, although a lot of the people who are commenting publicly keep saying, “Oh, yeah, it was the AUMF. No need to worry about it because the AUMF has clear limits and isn’t what George Bush did.” But we don’t know that. I mean, we just don’t know.

SCOTT HORTON:  Hmm. Okay, so who’s Colleen McMahon?

MARCY WHEELER:  Colleen McMahon is the judge who presided in one of two FOIA suits that the ACLU has taken. In the DC district they asked for basically all the paperwork behind the targeted killing program – the drone program; they didn’t say targeted killing in that one. In New York, in Colleen McMahon’s court, they asked for all of the documentation behind Awlaki’s killing or the authorization to kill Americans. So they had two parallel FOIAs going at once, not exactly the same but they were similar, and at the beginning of January Colleen McMahon basically ruled for the government, saying that ACLU couldn’t get anything, couldn’t get anything more than what they had gotten, which is basically a talking point document and a couple of Vaughn indices.

And that – you know, most people just stopped reading there. Most people just stopped, you know, kind of following what was going on there. And I decided – I mean, her ruling was interesting in any case because she alluded to an earlier ruling in the torture FOIA that ACLU also pursued, and that ruling basically held that the government could hide the fact that the torture program had been authorized on what’s called a memorandum of notification – basically on Article II power, on the president telling the CIA to do something as part of a covert operation and telling Congress – and the government in that earlier FOIA had been successful in hiding even like a few-word mention that made it clear that the president had personally authorized the torture program and that’s all the authority it had at the beginning of the program.

And I think she alludes to that decision, although not in a really obvious way in the unclassified portion of her opinion, but I suspect she discussed it at quite a bit more length in the classified section, which leads me to believe one of the things they’re arguing in this case is that it’s the same memorandum of notification, which we know to be true, and since the circuit court had already said this memorandum of notification can remain secret, therefore this FOIA case will go nowhere. So that’s what we knew at the beginning of January. And I thought, since we’ve seen this white paper, it would be interesting to go back and see what Colleen McMahon actually said and whether it looked like she had seen the white paper or not.

And that’s one thing that’s interesting, because there’s a section of Colleen McMahon’s opinion which really hasn’t gotten a lot of attention, but she basically says, “Oh, it was illegal.”

So she, you know, she kind of interrupts what she’s doing, which is purportedly judging on whether or not the government can withhold these FOIA documents, and she says, “Hold on a second. Due process is the most fundamental part of our Constitutional government. That’s part of what the rebels against King George III were fighting for. And it goes back to the Magna Carta.” And she said, “We also in the Constitution have a treason clause which says before you can deny anybody of their citizenship, you have to go to a judge.” She kind of very astutely pointed out that it’s on Article III, meaning it’s part of the courts, this guarantee that before the executive branch deprives you of your citizenship, you have to go before a judge.

And then she looked at a couple of more pieces that correlate really interestingly with the white paper. In particular, there’s a domestic statute that says you can’t murder an American overseas. And she said, “Wait a second, you can’t murder an American overseas, and even presidents, you know, that should cover the president. And even when he’s authorizing covert operations, as we know this to be, he can’t authorize people to do something that breaks American law.”

So she lays out four reasons why what the administration had done with Awlaki doesn’t adhere to the principles of the Constitution.

SCOTT HORTON:  But then at the same time she’s ruling, “But who am I? I’m just some judge and I don’t have standing to get involved in any of this or to even legalize the pieces of paper that describe why it’s legal.”

MARCY WHEELER:  Right, and I think if I’m right about that earlier precedent, I think that’s why. I mean, to go against such an obviously pertinent precedent would be unheard of, just because it’s actually – I mean, they might have well ruled on this particular issue specifically, because that’s what they did. And this was just last year that they ruled. So in other words, under the way our courts work, I think she probably, her hands probably were tied, but she went out of her way to include this five-page section which then, you know, if I were the ACLU and I’m suing in a wrongful death case in DC for Awlaki and Awlaki’s son and Samir Khan, I would point to this and say, “Look, a judge has reviewed this and found these four reasons why these deaths were wrongful.”

SCOTT HORTON:  Right. Hey, that’s a very good point. Would you suspect then – I guess there’s no point asking you your suspicion, but it seems like maybe that’s why she did it, so that even though it’s, in a way it’s not exactly relevant to what she’s deciding here, but she’s just putting it on paper so that somebody else can quote her later almost, seems like.

MARCY WHEELER:  Precisely. Yeah. I mean, I think, you know, it doesn’t count as a legal precedent, but it’s the kind of thing that other court cases can point to and say – and nobody else, I mean, it may be that no one else gets to review the exact same documents that she got to review. We don’t even know what she’s gotten to review. We don’t know whether she got a peek at the white paper. She did say in her ruling that she didn’t feel the need to look at the classified OLC memo because, for a variety of reasons. She did also hint that it may not be the OLC memo that the administration relied on when they killed Awlaki, which is interesting, because if they were relying on that earlier memorandum of notification, then, you know, they could hide the OLC memo because it was a draft and it was deliberative and they didn’t rely on it. They could hide the memorandum of notification because in that circuit it is, you know, there is a directly relevant precedent, and then they could hide all of their rationalizations. But they had to say to her – and here’s something else interesting – they had to say to her, “We are withholding not just the document but any description of the document because they’re supersecret.” And they had to give an explanation to her for why they were so supersecret.

And one of the funny things that I also kind of – I mean I sort of knew but I sort of figured out, finally, is that the CIA in this case had said, “We’re going to Glomar. We’re going to tell you we can’t tell you whether we have documents or not.” And then after they did this big press campaign last year when Eric Holder gave a very public speech describing how they killed Awlaki, although not naming Awlaki, they said, “Well, we can tell you that we have documents, but we can’t tell you how many and what they are.” But what’s interesting is they said, “We can tell you that we have the attorney general’s speech, we can tell you that we have John Brennan’s speech, period.” And they didn’t admit what we also know and is obvious, is that they also have a speech made by their own general counsel about what the CIA needs before they get involved in a lethal force covert operation, which is what Awlaki’s killing was. And now one actually says, “We can go just on Article II. We don’t need any AUMF sort of gravy.”

SCOTT HORTON:  Ah. Now I don’t know what to make of –

MARCY WHEELER:  So they’re trying to hide – yeah, they’re trying to hide the fact that this public speech pertains to the question at hand, which is can the administration kill Americans based solely on presidential say-so?

SCOTT HORTON:  Right, well, and the point is, all of this, they’re trying to keep it all secret because they know it’s nonsense, right? Just like when the John Yoo memos finally were published in I guess beginning in 2004 and then finally the rest of them in 2008, everybody said, “Oh, my God, this is ridiculous!”

MARCY WHEELER:  Right. And, you know, there’s a strain of commentary – both Jane Mayer and David Cole wrote articles saying, you know, “This isn’t as bad as what John Yoo did and Bush did because torture’s always illegal, and sometimes killing is legal, and Obama was operating under the AUMF and killing in times of war is legal, and therefore it’s just not as bad as authorizing torture.” But what they ignore is this Article II part. In fact, they sort of suggest that Obama’s not just invoking Article II, when a) we don’t know, and b) there’s a lot of reasons to suspect that’s actually exactly what he’s doing.

SCOTT HORTON:  Right. And – gee, I guess, I’m sorry, it sort of goes without saying but it shouldn’t – for people who maybe don’t remember or weren’t paying attention then, what was so ridiculous from the Yoo memos was his claim that the president has inherent plenary authority under Article II to override any law, any part of the Constitution other than the phrase, “He’s the Commander-in-Chief of it all.”

MARCY WHEELER:  Right. And that’s what at a minimum we know that they had to have done, and they did invoke the – you know, in the white paper at least they sort of, like I said, they used this dual structure and they kept saying, “Under the AUMF, okay. Under Article II, okay. Under the AUMF, okay. Under Article II, okay.” And it’s that domestic statute that says you can’t murder Americans overseas which is, I mean, what the bulk of the white paper spent new time on. Eric Holder didn’t mention it in his public speech, but it’s like four or five pages of the 16-page white paper. So they were clearly pretty worried about it.

And the argument they make in the white paper to excuse it is basically to say, “If you are operating under the public authority and you do these things, it doesn’t count as murder.” So in other words – and it sort of makes sense, right? If you’re a soldier and your job is to go kill people, to go kill the enemy, then if you go kill an American overseas, you’re just doing your job. Your public authority says that your job is to go kill an American. And that’s sort of what they argued, except the problem is, that doesn’t work for CIA, because CIA’s not supposed to, in covert ops, be able to do something that’s illegal in the United States.

And then moreover – and there is actually one legal opinion which makes this argument – oh, there’s a number – I mean, the other problem that they had is that the CIA is the one that killed Awlaki, as far as we know, and the CIA, they’re not soldiers. And so all of the rules that apply to soldiers which are invoked in the white paper don’t necessarily or don’t really apply to the CIA. So, you know, you can’t argue that you’re doing this – it introduces all sorts of problems once you have the CIA press the button. And yet, you know, it appears that’s what they did – and that’s why this document and the killing is so much more legally problematic than if they had evidence to prove he was operational, if they had the willingness of the Yemeni government, then they could have just killed him, if DOD had done it. And for some reason they didn’t do it that way and instead used CIA, probably didn’t give the Yemeni government a full heads-up, and then introduced all sorts of legal problems.

SCOTT HORTON:  So, why? Just because Petraeus wanted to do it? It was a bureaucratic turf battle kind of thing? Or what?

MARCY WHEELER:  You know, it’s funny that it worked out that way, because they first tried to kill Awlaki in December of 2009, and what’s really interesting about that, and what everyone should remember, is that according to a report that William Webster released last year – it was an investigation into the Nidal Hasan Fort Hood killing, and they looked at exactly what the FBI knew when, and it shows very clearly the FBI and the intelligence community generally did not consider Awlaki operational until the December 25th underwear bombing. So in other words, they’re very clear that on December 24th when they tried to kill him, they didn’t consider him operational. They didn’t consider him operational until the next day or probably several weeks afterward when they started collecting evidence.

And so in other words, had they actually succeeded in killing him two weeks after they first tried to, it probably would have been legal. I mean, because they probably would have had at least decent evidence that he was operational, ties to Al Qaeda, yada yada. There’s a problem because the U.S. government had not yet declared AQAP a terrorist group at that point, so there are problems, but at least, you know, this whole AUMF argument would have made sense.

But then after they switched course, and after they decided to get a memo authorizing this, and after they decided – you know, after they had the interrogation from the underwear bomber, whatever that said, then they switched course and put CIA in charge of it. And the funny thing is, as you said, David Petraeus was in charge of CENTCOM in December 2009 and then he was in charge of CIA in September 2011. And so it’s sort of David Petraeus all along, although I don’t think that, you know, he was just determined to kill Awlaki, but that’s sort of what happened.

SCOTT HORTON:  Well, now, so what do you make about this, the question of whether Obama can kill Americans with drones or otherwise here in the United States as long as – like say for the case of the Miami Seven, some snitch gets them to say they love Osama into a tape recorder and so – then, what? Just blow em up?  Can they do that? Is the power – the whole world’s a battlefield and all of that sounds like all those same legal theories are continuing here, right?

MARCY WHEELER:  Yeah. Ummm, tune in later this week. Because I think I’m going to make an argument – I’m going to show exactly what a targeted killing in the United States would look like. With an actual killing. Not done by DOD, not done by CIA as far as we know, but of somebody who was alleged to be a leader of a terrorist group and was killed. And, you know, we’ll never know at this point when things like that happen whether they happened because the president ordered them or because some cowboy went nuts with his gun when they were pursuing a criminal.

SCOTT HORTON:  Mmhmm.

MARCY WHEELER:  So we don’t know.

SCOTT HORTON:  Now are we talking about Kennedy brothers or black civil rights leaders or – ?

MARCY WHEELER:  Precisely.

SCOTT HORTON:  Yeah.

MARCY WHEELER:  I mean, there’s a case I’m going to show actually encapsulates all of that in a remarkable way. So if – and that’s the thing is, in the discussions generally, can the president authorize the killing of an American?, he’s focused – I mean, most people have focused on the AUMF side. And there at least is a strong aspect of Article II in it, given what the white paper says, given what the judge who had looked at this said, given what the general counsel of the CIA says, there’s at least a strong component of Article II, if not only Article II. And then the other thing about whether or not – and this is the problem – I mean, Rand Paul is persisting in threatening a hold on John Brennan’s nomination, and he’s saying, “I want to know whether you can kill with a drone in the United States.” The correct question, and the question that Ron Wyden was asking, was, “I want to know whether the president can order the death of an American.” So it probably won’t be by drone, it’ll be by some other means.

SCOTT HORTON:  Yeah, hit man, single car accident, that kind of thing.

MARCY WHEELER:  Yeah, or – yes. Yes.

SCOTT HORTON:  Or all of a sudden he got cancer.

MARCY WHEELER:  (laughs) I don’t know if they would go to that trouble, but at least not here in the United States. But, you know, I’ve gone back to, remember when Fred Hampton died, the Black Panther leader, right? Totally assassinated. Total overkill. And I keep wondering whether there’s a memo that authorized that somewhere, that said, you know, “Okay, the FBI can go in and kill somebody that we believe to be, you know, a leader of a militant group opposing the United States,” and you know I just think back in those days they didn’t get memos to do everything but, but – we’ve seen it before. It usually is African-Americans. Now it would be Muslims. But they don’t get memos for poor guys who challenge power in this country.

SCOTT HORTON:  Yeah, it seems like that’s more the kind of thing where, like, “Hey, Jimmy, make sure that that guy’s not breathing by tomorrow morning,” kind of a thing rather than an official order.

MARCY WHEELER:  And, well, but the thing is we’ll never know. I mean, the Fred Hampton case is an example where we know that the White House was going nuts about the Black Panthers. We know that the FBI had developed this entire spy network and had infiltrated them and was driving them to increase the violence, so it is very similar to what we see going on with the Al Qaeda network now, it happened in the United States, and it’s precisely that kind of action that led to purportedly putting limits on the CIA so they couldn’t break the law in the United States.

SCOTT HORTON:  Yeah. When John Yoo wrote up his memos and he had it, and I think this one didn’t come out till the end, really, although maybe it was purely consistent with the rest of them, anyway, I don’t know, but it was the one that it broke along with the story that Cheney had pushed to use the Army to go and arrest the Lackawanna Six, so-called Lackawanna Six there from Buffalo.

MARCY WHEELER:  Right.

SCOTT HORTON:  And Bush in his wisdom and calm patience had decided that, “No, we’ll just let that be. I handle it.” But, so, there’s two different –

MARCY WHEELER:  But remember, but remember that the very first American killed in a drone strike –

SCOTT HORTON:  Was their buddy in Yemen.

MARCY WHEELER:  – was Kamal Derwish. Right.

SCOTT HORTON:  Right.

MARCY WHEELER:   Right. And so, so, yes, as far as we know, the military wasn’t involved in Lackawanna outside of Buffalo, but that is an example where – and the argument there, and there was another guy who was killed in Somalia in 2008, and they claimed Awlaki the first time we tried to kill him, although there’s a WikiLeaks cable which makes it pretty clear this isn’t the case – they claim that those three incidences, and probably Samir Khan’s death and probably Abdulrahman al-Awlaki, the 16-year-old son’s death, were all what I call the sitting-next-to-a-baddie logic. Meaning, you know, they weren’t really aiming for Kamal Derwish, they were aiming for the guy sitting next to him and he just happened to be in the wrong place at the wrong time.

SCOTT HORTON:  Wait, wait. You’re saying that they keep claiming this in the case of the son, in the case of the guy in Somalia, in the case of the Lackawanna Six friend, the seventh guy there back in ’02, but that also you caught them lying and claiming that, “Oh, yeah, gee, we only accidentally” – Awlaki himself was only going to be an innocent bystander in one of these things until they missed him.

MARCY WHEELER:  Right. I mean, that’s one of the other underlying tensions. We know, because William Webster has told us in no uncertain terms that the day they tried to kill Awlaki in 2009 he was not considered operational. So the entire white paper doesn’t apply because it’s only supposed to apply to operational – senior operational leaders. They didn’t believe him to be that. But we also know that after they missed, Ali Abdullah Saleh, the then-president of Yemen, went to David Petraeus and said, “Oops, we missed Wuhayshi and Awlaki,” and made it very clear that Awlaki was one of the two targets. And also referred to him as the “cleric” – he didn’t refer to him as having any tie to AQAP, and so that memo makes it very clear that Awlaki was a named target of that strike.

SCOTT HORTON:  Hmm. And now, can we rewind a little bit to the evidence implicating Awlaki? Everybody knows that the Pentagon invited him to breakfast or something like that after September 11th, it was later on that he became a problem, but the best I can tell – and we talked about this before – the Washington Post at least at one point, the worst thing that they were willing to say anonymously about Awlaki in the Washington Post was that “we believe he may have ties to.” And then later, I think it was after that, that well he wrote an article for their magazine and he did a bunch of YouTubes, you know, denouncing American foreign policy – I didn’t watch them, perhaps he encourages people to attack the United States, something like that – but what is the actual evidence that he was really operational rather than an opinion columnist or, you know, a YouTuber? And after all, because not only is he just using his American-born natural right of free speech, but he’s actually a religious cleric, so he’s got a First Amendment double whammy on his side, it sounds like. And plus the Brandenburg vs. Ohio case too.

MARCY WHEELER:  Right. Right. And he – I mean, and he definitely, you know, he definitely has incited people to violence, or he has called for violence against the United States. So that much is clear. And I don’t think there’s – you know, he’s not a nice guy. He’s not, you know, looking out for you and I. But the best evidence against him comes from the underwear bombing case.

And when Abdulmutallab was sentenced, the government presented a paper that said Abdulmutallab testified that Awlaki told him to wait to ignite the bomb until he was over the United States, and it says that Awlaki gave him other kinds of directions. So if that document is to be believed, then Awlaki clearly had a directional role in the underwear bombing case.

The problem with that is, Abdulmutallab immediately confessed after he was caught on Christmas Day 2009 and he said somebody else gave him the orders. You know, for some things he said Ibrahim al-Asiri, who is Al Qaeda in the Arabian Peninsula’s bombmaker. For another he said this guy Abu Tarak, who no one has ever heard of, ordered him to do a couple of key things. And in that first confession, Abdulmutallab said only that Awlaki told him to make a martyr video.

And what’s interesting about that is, is the later confession that tied to Awlaki came in the course of plea negotiation. So basically the FBI appears to have been saying, “If you say that Awlaki did it, we’ll give you an easier time in prison.” And for a long time when they thought that they were going to get Abdulmutallab to plea, they were at the same time thinking of actually charging Awlaki. But then in September of 2010 Abdulmutallab fired his lawyers, said that, you know, there was a conflict of interest between what they wanted and what he wanted, and after that DOJ as far as we know stopped its efforts to indict Awlaki.

So in other words, the best piece of evidence they have is what Abdulmutallab confessed to, but the government went on to agree with Abdulmutallab not to enter any of that into the primary case against him, and in fact when they made their opening argument in the Abdulmutallab case in 2011, after, just in the days as it happened, in the days after Awlaki was killed, they gave the old story, this Abu Tarak story, that al-Asiri had a bigger role, that Abu Tarak was the guy who told him to wait until he was over the United States. And so that is easily the best evidence that they have, but even there there’s this big question about whether Abdulmutallab was saying that it was Awlaki just because the FBI was going to give him easier time to do that.

SCOTT HORTON:  Hmm. Well, and what about the Fort Hood shooter? They say he was tied to him, but what does that mean?

MARCY WHEELER:  No, he wasn’t. I mean, he was tied to him, he had conversations with him, but there were 16 or 18 e-mails, most of which were Nidal Hasan writing to Awlaki and making veiled requests for help, and for the most part Awlaki was totally unresponsive, just blew them off, and the one that he replied most to was when Nidal Hasan basically fed his ego and said, “Oh, you know, there’s a lot of people here who worship you. Do you want to come and be hailed as a hero?” And he’s like, “Oh, yeah! Now I’m listening.” You know, “Now I’m listening if you’re going to give me money to make public appearances.” And so while those e-mails and things that Nidal Hasan said to Awlaki should have led the FBI to look more closely at Nidal Hasan, there’s no indication at all that Awlaki was directing Nidal Hasan to move towards violence, and in fact their exchanges stopped I think in June and the attack was I think November.

So there definitely was conversation, and I think when you look at the first explanations that Dennis Blair gave in February of 2010 to why Awlaki was a legitimate target, he basically said, “People are a legitimate target if their actions led to actions that threatened the American people.” So, in other words, he wasn’t saying that people are a legitimate target if their actions threaten the American people, but instead saying that they’re a legitimate target if their actions led to actions that threaten the American people. Which could describe what happened with Nidal Hasan. I mean, he certainly inspired Nidal Hasan, Hasan turned to violence, but he didn’t tell him to do what he did. He just was good at inspiring other people to violence.

SCOTT HORTON:  Hmm. And I’m sorry for keeping you so long, but I want to ask you about Awlaki’s son. It seemed like to me that maybe they believed their own nonsense about how old he was and that they really were trying to kill him because, well, he’s a terrorist too and he’s 20-something years old, which means he’s fair game, and then they found out that, oops, he was 16. Or am I reading that wrong? Were they trying to kill somebody else and he was just a bystander? Or how does that work, Marcy?

MARCY WHEELER:  You know, no matter how you assess the government’s actions, their actions in the Abdulrahman case I think are particularly bad. Because he was born in the United States, and to suggest that we don’t know everything about the Awlaki immediate family, including the age of his son who was born here in the United States, is just farcical. Utterly farcical. And so it may be that once we killed him we got worried, or the government got worried and said, “Oh! Well, he was 21,” and tried to hide the fact that they knew he was 16. But I see absolutely no way to believe that the government didn’t know he was 16 when they claimed he was 20. And so –

SCOTT HORTON:  Well, I mean, it was pretty clear, wasn’t it, that he was no ideological follower of his father. He went there to get him.

MARCY WHEELER:  Right. And there’s no evi– I mean, there’s no, no one – I think some people off the record in very hesitant ways have said, “Oh, yeah, you know, he was a legitimate target,” but no one who has come close to making a public statement has ever implicated him in being a member of Al Qaeda in the Arabian Peninsula, in sharing his father’s ideological views, and so, you know, the best case to be made is that he fell under – you know, John Brennan works under what is now called the “military-age male” standard, which means that they believe any military-age male in the vicinity of a known target is a legitimate target himself and must be a militant, and from this guy – or their military-age-male standards actually include children. I mean, you know, for all we know – and in fact the government just reauthorized, as they do – I think it’s been a bunch of years in a row – just reauthorized – there’s a rule that says you can’t give aid to a country that uses child soldiers, and if you want to give aid to a country in spite of that, you have to, the department has to issue a waiver. Well, that waiver for Yemen was just signed yesterday or the day before, or something. So in other words, you know, one of the things that is true is that the United States gives funding to Yemen knowing that the official government of Yemen uses kids of the age of 16 to fight their wars as well, and so I guess –

SCOTT HORTON:  Right. Well, and you know it was their perfect – it was their perfect test case, or their model for how to handle the Arab Spring as best they could – “Oh, you really, really hate this guy? Well, here. Here’s his cousin. We’ll put him in a one-man election and hail it as the triumph of democracy.”

MARCY WHEELER:  Right. Yeah. Exactly.

SCOTT HORTON:  All right. Listen, thank you so much. You teach me so much stuff. I’m going to be thinking about it all afternoon trying to figure it all out too. Thanks very much for your time, Marcy.

MARCY WHEELER:  Take care, Scott.

SCOTT HORTON:  All right, everybody, that is the great Marcy Wheeler, emptywheel.net. Go and read all of the brilliant stuff she wrote including “The War and Intelligence Behind Anwar al-Awlaki’s Targeting,” and “Colleen McMahon:  The Covert Op that Killed Anwar al-Awlaki was Illegal.”

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