03/06/13 – Marcy Wheeler – The Scott Horton Show

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All right, so Marcy Wheeler's on the phone.
You know her as Empty Wheel in the blogosphere.
Emptywheel.net is her great blog.
And she's been writing about, well, a hell of a lot of different important things.
The president's declared power to kill American citizens, even with drones, in the United States of America.
Welcome back to the show, Marcy.
How are you doing?
I'm doing all right.
How are you?
I'm doing real good.
Appreciate you joining us today.
I'm watching Rand Paul on C-SPAN my favorite way on mute.
I've got him on mute, too.
All right, well, so is he saying anything useful up there?
Or would I be shading my eyes and shaking my head in shame if I could hear him out loud?
At the beginning of his, I mean, he's been filibustering for two hours now.
For about the first hour, he was talking a lot about drones.
He's now talking about limited government more generally.
But he's saying, I mean, particularly on the drone stuff, he's saying a lot of stuff that needs to be said.
Yeah.
Okay, well, that's good.
So this is his filibuster.
He's trying to hold up the nomination of John Brennan for CIA director?
Or at least draw some attention to the claims that the government is making about being able to kill Americans.
And frankly, to his credit, he's not just complaining about that.
He's complaining about things like signature strikes.
He's complaining about a bunch of problematic aspects of the drone program.
Oh, that's good.
Well, I hope to read the transcript later.
I don't mind reading them as much as listening.
Anyway.
The first hour is definitely worth a listen.
Yeah, okay.
So, well, that's good to know.
And now, so John Brennan, of course, he of the signature strike.
And now it's funny because signature strike might sound to someone like, well, they have to take responsibility and put their signature on the strike or something like that.
Maybe it means that if they're doing jumping jacks or playing on monkey bars, that those are things that are the signature activities of terrorists in the world.
And so we get to kill them.
Right.
Anywhere they are.
I mean, that's true of all of these.
And remember that they tried to invent that term TAD once, like the terrorist attack denial system or something.
I don't remember what it stood for.
They gave up after a day because it was so obviously a euphemism.
But, you know, so is signature strike.
They just, you know, you know you're in trouble when you have to invent these words to cover up what you're actually doing.
And that's the case with the drone program.
Yeah.
Or, you know, reinventing words that everybody already knows what they mean.
I saw this clip this morning where Ted Cruz, of all people, has taken on Eric Holder over this question.
And they're arguing about it comes down to, yes, the president can kill you with a drone in America.
But does the threat have to be imminent or immediate?
And so I guess if you're having coffee on the sidewalk, but later Eric Holder thinks you might hijack a plane, that's not quite constitutional.
But if you are walking down the sidewalk on your way to your car to go to the airport to hijack a plane, well, he might be able to go ahead and drone you then, I think was about where they left it.
Yeah.
And we didn't necessarily get, you know, I think the most telling exchange from the hearing today is when Chuck Grassley, and I think your show had already started at this point, Chuck Grassley got up and said, quote, Do you believe Congress has the constitutional authority to pass a law prohibiting the president's authority to use drone aircraft to use lethal force against Americans on U.S. soil?
And if not, why not?
And Holder's response was, I'm not sure that such a bill would be constitutional.
It might run contrary to the Article 2 powers that the president has.
So in other words, Chuck Grassley, and he was actually following up on Cruz's comments, he said, You know, can we pass a law that says you can't use drone strikes against Americans unless they're an imminent threat?
And Holder said, no, that's Article 2.
Well, and Article 2, of course, meaning exactly what?
Does that mean that the commander in chief power overrides all?
Or does that mean that just the words Article 2 say that there is somewhere unlimited authority in the hands of the president of the United States?
Well, I mean, what what the what the government, what the executive branch maintains, because this is this is written up in OLC opinions actually written by John Yoo, but they're still out there.
They maintain that the president that and sort of within the scope of the U.S., they say, well, Congress can't limit that at all.
They can't tell him who's included, who isn't Al-Qaeda.
They can't tell him how he's going after Al-Qaeda.
They can't limit that.
And so it's just as simple as that, that the author is.
So you're saying the authorization to use military force against the people.
What did the attack pass back in 2001?
It the loophole is that they can define the enemy however they want.
And that's it.
That's all they need to say that they can use any of this unlimited.
Right.
Because that authorization to use military force would have covered the Marine Corps, the CIA or anybody else at the at the employee of the executive branch to do their bidding.
Right.
And you're saying this is the loophole that they're driving a Star Destroyer through.
Well, it's the loophole in the AUMF.
But in fact, the president signed the memorandum of notification for counterterrorism the day before the AUMF was signed.
He signed it on September 17th, 2001.
And that's actually what first authorized torture, what authorizes targeted killings, what authorizes partnering with dictators in Syria and Libya.
In fact, what what is the primary authorization for a lot of this.
And so when you see the president saying, well, the Constitution and the AUMF authorized this, you know, which was signed first?
Actually, the the the memorandum of notification authorizing covert operation was signed before the AUMF.
And so you've got to imagine.
And the the general counsel, the CIA has as much as said that on the record that for them, it's just the presidential authorization that the AUMF for them is just gravy.
Right.
Yeah, that's like their extra backup argument.
I see.
And well, in a way, they're right, aren't they?
I mean, Washington did it.
I mean, he didn't kill everyone involved in the Whiskey Rebellion, but he was about to kill them all if they hadn't surrendered.
And nobody authorized that.
You know, and I think you can go back and you can say, well, you know, and you can also look at the times that the president has mobilized the military, you know, to to to integrate schools and stuff like that.
So, you know, there's certainly those historical precedents.
And I think what's different in this case and where the administration is clearly overreaching even those prior precedents that we know of is precisely that, that he's operating in secret, that he's not making clear who we're at war against, that he's not making clear the extent of which he would or could use this authority.
And so that and that's, I think, one of the things that Paul has said quite well is that had we used the standard that's being used in the war against terrorism, in which people like al-Awlaki and Samir Khan for writing terrible things about the United States, but Samir Khan in particular was primarily writing against the United States.
And there are cases of people in the United States who've been prosecuted for basically translating jihadist literature.
And he said, and he's right about this, if we had used this standard during the Vietnam War, they could have used a hellfire missile to take out Jane Fonda.
Which, you know, probably a lot of Americans would have supported.
It would have done a lot to help the anti-war movement in the last decade if she wasn't around, if you ask me.
Well, and the other thing he said is, he said, well, you know, and then people were, he's like, people once were really horrified by what happened at Kent State.
Right.
Or at Waco, where let's not pretend that Janet Reno did the Waco massacre.
That was Bill Clinton.
Because Janet Reno doesn't have any authority over the Army Delta Force, the Combat Applications Group Team B.
That's Bill Clinton's private army.
And they can't machine gun and firebomb Americans to death without his say-so.
Right.
All she did was help, you know, with the FBI hostage rescue team.
But it was Bill Clinton and the Army that took the lead on that one, for sure.
Which gets us into the answers.
What Paul did get is answers from Eric Holder and John Brennan on when the president could use lethal force in the United States.
And it was a very curious response between the two of them.
Right.
Well, I mean, for starters, and I'm sure you got much more than this.
But for starters, Holder said, well, you know, if it was a situation like Pearl Harbor 9-11.
Well, those are very different situations.
A bunch of military planes taking off from a military ship out at our conquered territory military base out in the middle of the Pacific Ocean.
Versus hijacked civilian airliners attacking the East Coast at the Pentagon and the World Trade Center.
Those are very different things.
If we're talking about did they have a right to protect Pearl Harbor with drones from the Japanese?
Sure.
Is he saying that they could have shot down the U.S. jumbo jets, the hijacked jets with drones or with fighter jets had they gotten there in time or whatever?
I thought it was already agreed that they had the authority to do that.
Or is he saying that he could have used a drone to kill Mohammed Atta in his car on the way to the airport?
Right.
And that's the thing.
That's what's built into those answers is that it's sort of a three part answer.
He says, well, we could use military force in the United States in a military imminent threat scenario.
And he names two.
One where, you know, we don't know whether they had any such orders, but we know that Dick Cheney, who didn't have the authority, but we know that Dick Cheney ordered a shoot down of any jets coming towards D.C. on 9-11.
Right.
At one point, 11 planes.
But he ordered it.
Yeah.
At one point, he ordered 11 planes to be shot down.
And the Air Force was just like, no.
But the response was more interesting even than that, because then Holder said, well, you know, we tend to think that law enforcement is best.
Here, I'll pull up the exact quote.
Here, we reject the use of military force where well-established law enforcement authorities in this country provide the best means for incapacitating a terrorist threat.
Well, even the white paper uses that the precedent they use for imminence is actually a law enforcement one.
It's actually a cop chase.
And they say because that cop chase has been approved by the Supreme Court, then we can use this notion of imminence and kill people in the United States.
The problem, again, is what you just said.
Does that include shooting down Mohammed Atta on his way to the airport?
I think one of the things that Eric Holder is saying there, and you brought up the FBI hostage rescue team, is that, you know, we're as likely to see it done by the FBI hostage rescue team as anybody else.
More so.
You know, because they're here.
They're out there.
Right.
You know, a bunch of them are former special forces, so they've got the same kind of training, but they operate within a domestic context.
And nine times out of ten, they do shoot somebody, and it's just declared imminent threat.
It's just declared, well, you know, it was a hot car chase, just like the same Supreme Court precedents that they used for imminence.
And we'll never know, you know, how hard they tried to capture, how hard they, you know, as soon as they got a gun, then they will shoot somebody dead, and there you go.
Yeah, right.
It's just a natural evolution of the process.
Our cops already are the soldiers quartered among us.
Look at the LAPD.
You know, they don't have to.
They do dress like soldiers, but they don't have to when they premeditatedly arson fire somebody to death.
They just announced their plan right on an open channel because they know they have complete impunity to murder whoever they want.
Right.
And you're talking about Garner, who was running away, and he was definitely, you know, he had already killed a bunch of LAPD or LAPD family members or associates.
And so, you know, they didn't wait for him to come out running with guns.
They set the building he was in on fire.
And that's a really good recent example of how broad the imminent threat category is, even explicitly here in the United States.
Right, because there's no indication really, right, that they ever said to him, all right, that's it.
We've got you surrounded.
Come out with your hands up.
Right?
That never happened.
They just said, we found him.
Let's all shoot at him and or firebomb him until he's dead.
Right.
So, and that's the thing.
He didn't need a memo.
You know, so in Eric Holder's response to Rand Paul, he said, you know, as a policy matter, we basically like to use law enforcement.
He went on to talk about courts and stuff.
And it is true that, you know, that the government has been able to use courts to put terrorists away and, frankly, grossly expand the authority of courts to put terrorists away.
But implicitly within that is that our law enforcement domestically is a whole lot of lethal force based under those same precedents.
That's what we would expect.
That's who we would expect them to go after a terrorist.
It wouldn't be a drone.
It would be, you know, the FBI hostage rescue team setting up a big bus.
Well, now, when Dick Cheney wanted to use the Army against the Lackawanna Six, was that just to have a show of force?
You know what I want to see on TV is soldiers marching down the street, that kind of thing?
Partly, but he also didn't believe the evidence against them was strong enough for a court trial.
So, in fact, and I think that that's why they took out Al-Aulaqi.
I mean, I think that's one of several reasons why they took out Al-Aulaqi rather than ever indicting him is because I think, you know, while I think there is a lot of evidence against Al-Aulaqi, I think a lot of it would be very problematic in an antagonistic court situation.
So, for example, some of the best evidence against him comes from Umar Farooq Abdulmutallab, the Undie Bombers' confessions.
But I think that there is good question about how, whether when the Undie Bomber implicated Al-Aulaqi, whether he, you know, whether he was speaking of his own will or whether he was trying to get a better deal from the government, in which case, you know, a good lawyer would question how.
I mean, I think it was a willing confession, but a good lawyer would question whether he was just trying to save his own life.
Well, and when it comes to Lackawanna Six, it's a matter of record that they were threatened with being turned over to Donald Rumsfeld and George Tenet to be tortured.
That was their plea bargain was, don't you want to go ahead and plead guilty and stay within the civilian system?
And their lawyers told them, yeah, you want to go along with this now.
You know, that was their plea.
And so, you know, I think the threat was always there.
And, you know, but I think all of them are now free.
I ought to try to see if I can interview them about that or something.
Yeah, I mean, because I mean, I'm sure they don't want to get on the wrong side of the law again, having, you know, now that they're felons and they've got a record.
I don't really either.
But but but, you know, so these are guys that the government was going to use an opinion that does authorize lethal force.
It does make it does make exactly the same argument that the white paper on a lot he did, which is that you don't have a Fourth Amendment right against being deprived of being deprived of your life because there's these imminent threat precedent.
It's in both that you memo that they were going to use against the lock one or six and in the Al-Aqqa memo, almost the exact same argument.
And they were going to go in with military to go after these guys.
And yet here they are.
They've gone through the criminal justice system.
They've served their time and they're out.
And as far as we know, they're not causing any trouble.
And and, you know, I think there are real questions about how many of them really would be convicted if they didn't please.
But that's a lesson of how close we've come already in the United States to misusing this authority, to using this authority with people that we could easily have captured and coerced into a plea deal and, you know, sent through prison and they wouldn't even get that many years.
Right.
Yeah.
I don't know.
I learned as such a young kid.
I guess I sort of think everybody must have learned this at some point in their life that, hey, if they can do it to this guy or that guy or Jose Padilla, then they can do it to you.
And so that's why we hold trials for even the worst rapists and murderers, you know, to make sure we got the right guy.
Right.
That's so difficult, you know, to make sure that the that the punishment is proportionate to the actual crime.
But also so that people have a public accounting of why somebody was killed.
I mean, one of the things that was written at Lawfare blog last week or the week before about the way they're using the way that they're doing targeting.
They basically say, yeah, you know, it isn't always the top leader that we tell.
Sometimes it's this like courier or this guy who doesn't even seem to be involved in arms deals and in, you know, in having taken up arms.
But we figured out in secret that through network analysis, we figured out that if we take this guy out, then the rest of the structure is going to crumble.
But he's the he's the central focus guy.
But we don't tell anybody that, you know, there have been many examples, especially in Yemen, because there are such close ties between tribes and outside of their that of people who, you know, somebody got killed and the community looks around and they go, you know, we know he was a sympathizer, but he wasn't he was not taking up arms against either the Yemeni government or the United States.
So why did they pick him?
And that's what pisses people off.
That's what makes more terrorists.
That's what, you know, makes the drone strike program really counterproductive, because if you can't, you know, I think you can make a really good argument that in places where, you know, the Arabs have come into to a Pashto community and taken over and they're running the joints and with violence and imposing their.
You know, in those cases, I think, you know, there are people domestically, I mean, locally who want to have their lives back.
Right.
But not in cases where people are getting killed, like your family members, your neighbor is getting killed and you have no reasonable explanation for why they get killed.
And that's when people turn against the United States.
And, you know, especially I think you mentioned Yemen there.
It's been so obvious for so long that whatever enemies of America there you could count on one hand until all the drone bombings started in the fall of 2009, leading up to the under bomber in the first place.
And then, you know, supposedly as the reaction to that, too.
And there's been quote after quote from The New York Times, The Weekend magazine, I think back in 09 or at least early 2010.
And a hundred other articles and 50 other sources since then.
There's a local Yemeni translated as saying, whoever these Americans are, they're my enemies now.
You know, I never heard of them before.
I never had a problem with them before.
But whatever Al Qaeda is, I'm joining them because of what the Americans have come and done in my neighborhood and or to my family, etc.
I mean, it's not hard for anybody to Google that and you'll find numerous examples just come right up.
And now, however, many of them will actually dedicate their lives to coming to North America or finding an American in Europe somewhere to kill or something like that.
I mean, it probably won't be that way, but the sentiment is enough and it's clearly counterproductive enough.
And and probably actually you kill somebody's entire family.
He might just dedicate his entire life to destroying you.
Right, exactly.
I mean that, you know, it may be that it may be that only one out of 100 of those people respond by getting on a plane and coming to the United States or even training or what have you.
But you've just turned an entire village against the United States and village after village after village are going to be turned against the United States.
And you're just you know, you're just creating more enemies at that point.
And that's I mean, that's part of the point, though, that that that, you know, I don't think many people in the United States care much about Anwar al-Awlaki.
I think there's a lot on the record about why he was killed.
But I think, you know, there are questions about why Abdulrahman al-Awlaki, the 16 year old son, was killed.
And and the government is not making any effort to explain.
They could come out and just say, well, he was in the wrong place at the wrong time.
He looked military age from, you know, 50,000 feet.
And so that there he went, 16 year old American citizen.
But even then, some of that stuff is not credible when we know that they know an American is present, as they did before they first went after al-Awlaki and missed.
Yeah, I mean, they've claimed anonymously that, jeez, we thought he was 20 something and what a terrible mistake that was.
But come on, don't they before they kill an American citizen?
Isn't that a high priority enough thing that they would do an open records database search and verify his age, for example, when they know he's the son of a guy in his early 40s?
Yeah, I mean, I think that it's just not credible to believe they didn't know the details about Abdulrahman al-Awlaki.
I think that they just I mean, I think all of their explanations have come out with a sense of desperation to try and make it OK.
And the first one, as you suggest, was to suggest that they thought he was a military age male.
And that's nonsense.
All right.
Listen, thanks so much for your time and all your great writing.
I really appreciate it, Marcy.
Good to talk to you again.
Great to talk to you.
Bye bye.
OK, everybody, that is Empty Wheel.
Marcy Wheeler, writing at EmptyWheel.net.
And if you read her stuff, you would think she must be a trained lawyer to understand legally so well.
But no, she's just really smart.
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