General Atomics MQ-9 Reaper drone (photo: james_gordon_los_angeles)

The American Civil Liberties Union (ACLU) and Center for Constitutional Rights (CCR) have filed a Freedom of Information Act (FOIA) request for information on the legal basis for a strike that occurred in Yemen on December 17, 2009. The United States had been allegedly targeting Saleh Mohammed al-Anbouri, a “known militant who had allegedly been ‘bringing nationals from different countries to train them to become al Qaeda members. At least one cruise missile with cluster munitions was launched and killed not only Al-Anbouri but also forty-one civilians, including women and children.

The ACLU and CCR specifically seek details on the following:

We seek information about the U.S. government’s legal basis in domestic, foreign, and international law for the U.S. military strike on the al-Majalah community,information about the U.S. government’s decision-making process and factual basis for ordering that strike, and information concerning any investigations or assessments of the strike by or at the behest of the U.S. government. We specifically seek records concerning the U.S. government’s knowledge that civilians, including women and children, were present in the al-Majalah community, the measures taken to fulfill the United States’ legal obligation to limit civilian casualties, and any measures taken by or at the behest of the United States to compensate victims’ surviving family members for the loss of civilian life and property caused by the strike. Finally, we request information concerning U.S. government efforts to conceal its responsibility for the al-Majalah strike.

Weeks ago, the Bureau of Investigative Journalism (TBIJ), based in the United Kingdom, published a study of the US drone war in Yemen and highlighted the massacre. Twenty-two children were killed. A dozen women were killed. Five of the women killed were pregnant. [A complete list of the victims has been published by TBIJ here.]

Yemen’s parliament convened a “Commission of inquiry into the security incidents in the Abyan province.” What the Commission found when visiting the cemetery was “grisly.” The victims were buried in “communal graves” because they could not be identified. “Their bodies had been completely torn into pieces during the attack.” Tribal leader, Sheik Saleh Ben Fareed, told journalist Jeremy Scahill anyone who had a “weak heart” would “collapse” if they saw the remains of those killed. “You see heads of those who were killed here and there. You see children,” Fareed added. “And you cannot tell if this meat belongs to animals or to human beings. Very sad, very sad.”

The US refused to speak about the civilians killed in this drone strike. A State Department spokesperson told TBIJ, “I don’t have any information for you with respect to the December 17, 2009 incident in question. I refer you to the Government of Yemen for additional information on its counterterrorism efforts.” It was a mendacious reference as the  ”counterterrorism efforts” have been and continue to be carried out by the Yemen government under the direction of the US government.

The ACLU and CCR also request information on the State Department’s diplomatic coverup of the massacre, which WikiLeaks exposed in its release of US State Embassy cables.

After the Al-Majalah massacre, US diplomats and military officers worked to cover up the attack. A January 2010 cable detailed a meeting between President Ali Abdullah Saleh and then-CENTCOM commander General David Petraeus. Saleh told Petraeus the Yemen government would continue to say “the bombs are ours, not yours.” The Yemen government would cover up the attacks to help the US keep them covert. And, though Saleh expressed concern about the inaccuracy of the missiles and the number of civilians killed, he promised to help the US avoid an investigation.

The Yemen government apologized to the victims. They “paid out compensation at local levels to affected families.” The US State Department and CENTCOM, which hold responsibility for the covert operation that killed the civilians, did nothing. That is why TBIJ asked the State Department what investigations the US carried out into the December 17 attack, what further investigations were conducted after the commission inquiry by the Yemeni parliament, what disciplinary measures have been taken against US personnel involved, and what compensation, if any, was paid by the US to surviving members of the families attacked on that day.

There is a level of urgency to the request for information. The number of attacks in Yemen has escalated; attacks there now occur more frequently than drone strikes in Pakistan. The US government, however, has withheld legal and factual information that justifies the use of lethal force in a country “with which the United States is not at war.” The secrecy suggests that much of the covert drone war violates international and domestic law. The refusal to address what happened with the al-Majalah strike makes it highly likely that this is another war crime the US has committed in the “war on terrorism.”

The ACLU and CCR have boldly taken on the sisyphean task of forcing the disclosure of information on the US’ covert drone war that is actually not so covert anymore. The two groups (and other organizations) continue to push for the release of information on CIA’s drone program. The CIA has refused to release the documents because “national security” could be harmed if the agency acknowledges the program exists. However, as those working to get the information released make clear in their documents submitted to the court as part of their FOIA lawsuit, much about the drone program is already well documented and known.

Last week, POLITICO‘s Josh Gerstein reported the judge presiding over the lawsuit was losing his patience as government agencies repeatedly delay their responses to the lawsuit. He agreed to permit another delay but left a handwritten note, “OK, but don’t ask for any more time…If government officials can give speeches about this matter without creating security problems, any involved agencies can.”

This has been the main tragedy and farce so far. In order to keep the covert drone war going and not be forced into obtaining declarations of war in the multiple countries where drone attacks occur like Pakistan, Somalia or Yemen, the Obama administration refuses to acknowledge publically that the drone program exists. Pakistan demands the drone attacks end now, but, as I thoroughly detailed last week, the administration displays nothing but apathy and insincerity when these calls are made. It refuses to show empathy and even acknowledge that not all drone strikes kill only “militants.” And, it won’t even say the words “drone” or “strike” when speaking to the press about the outrage people in the world have towards US drone attacks.

However, if there’s a chance to win public support, the Obama administration will pounce on the opportunity as Attorney General Eric Holder did in a speech at Northwestern University in March that laid out the supposed legal justification for drone strikes that kill people extrajudicially and as President Obama did when he participated in a Google event in January.

The fact remains: the Obama administration has engaged in a process of rewriting the definition of “due process” so that the US can wage an unrestrained, lawless and immoral drone war in any sector of the globe. This is being done by the Justice Department in the same insidious way that the Bush Administration worked to rewrite the definition of “torture” so it could justify using torture against any person detained in the fight against “terrorists.”

In truth, this redefining of “due process” is a predictable result of the US government’s perpetual “war on terror.” The despicable and preposterous secrecy aims to further normalize another aspect of the government’s calculated assault on civil liberties. It adds another facade to the new normal, which both the Bush administration and the Obama administration helped to construct in the aftermath of 9/11. And that is why the effort to force the disclosure of information is so critical.

*Here is a powerful clip from the film “America’s Most Dangerous Game,” which was produced by journalist Jeremy Scahill and filmmaker Rick Rowley.