(update below)

Journalists for the New York Times have published a story that purportedly provides an account of what ultimately led the United States government to target and kill Anwar al-Awlaki, a Muslim cleric who had been born in the US. It also provides some details on what happened when US citizen Samir Khan and Awlaki’s son, Abdulrahman al-Awlaki were killed. However, importantly, the story consists primarily of “anonymous assertions” by “current and former Obama administration officials.”

The American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR) have condemned the story:

…In anonymous assertions to The New York Times, current and former Obama administration officials seek to justify the killings of three U.S. citizens even as the administration fights hard to prevent any transparency or accountability for those killings in court. This is the latest in a series of one-sided, selective disclosures that prevent meaningful public debate and legal or even political accountability for the government’s killing program, including its use against citizens…

Though the introduction claims the story “highlights the perils of a war conducted behind a classified veil, relying on missile strikes rarely acknowledged by the American government and complex legal justifications drafted for only a small group of officials to read,” the Times essentially provides a forum for government officials to explain their side of the story and defend the decisions that were made in the process of  killing an American without charge or trial.

It is insidious because, as the ACLU and CCR appropriately points out, “Government officials have made serious allegations against Anwar al-Awlaki, but allegations are not evidence, and the whole point of the Constitution’s due process clause is that a court must distinguish between the two. If the government has evidence that Al-Awlaki posed an imminent threat at the time it killed him, it should present that evidence to a court.”

Now, officials “anonymously assert that Samir Khan’s killing was unintended and that the killing of 16-year-old Abdulrahman al-Aulaqi was a mistake, even though in court filings the Obama administration refuses to acknowledge any role in those killings.  In court filings made just last week, the government in essence argued, wrongly, that it has the authority to kill these three Americans without ever having to justify its actions under the Constitution in any courtroom.”

The secrecy game being played by the Obama administration is a blatant abuse of power, and this story published by the Times only serves to further enable such game-playing.

Reporters write, “While the Constitution generally requires judicial process before the government may kill an American, the Supreme Court has held that in some contexts — like when the police, in order to protect innocent bystanders, ram a car to stop a high-speed chase — no prior permission from a judge is necessary; the lawyers concluded that the wartime threat posed by Mr. Awlaki qualified as such a context, and so his constitutional rights did not bar the government from killing him without a trial.”

The only problem is it should not be up to officials in the Executive Branch to decide when citizens do not deserve to enjoy the continued protection or privilege of constitutional rights. Courts are the only arena capable of determining a person no longer deserves judicial process. As such, the government should have to fully cooperate with a lawsuit filed by the ACLU and CCR that challenges the legality of the drone strike that killed Al-Awlaki and Khan, “as well as the separate strike that killed Al-Awlaki’s 16-year-old son, Abdulrahman, in Yemen in September and October 2011.” It should be required to prove these deaths were not wrongful before a person like a judge.

The story continues and describes Office of Legal Counsel lawyers working for the Justice Department who “grew uneasy.”

…They told colleagues there were issues they had not adequately addressed, particularly after reading a legal blog that focused on a statute that bars Americans from killing other Americans overseas. In light of the gravity of the question and with more time, they began drafting a second, more comprehensive memo, expanding and refining their legal analysis and, in an unusual step, researching and citing dense thickets of intelligence reports supporting the premise that Mr. Awlaki was plotting attacks…

There is not much explanation for what makes it “unusual” to look at “intelligence reports” on Awlaki while putting together the legal justification for killing him, but one can imagine. Think about lawyers sitting around to craft the legal justification for going to war in Iraq (provided this happened) and contemplate how lawyers would feel pressured to give a favorable analysis that endorsed going to war if they saw the bogus or fabricated reports that Iraq’s Saddam Hussein had weapons of mass destruction. Obviously, viewing intelligence reports increases the likelihood the legal analysis produced is less sober and more in favor of whatever objective the administration wanted to achieve when it ordered up the analysis.

Then, there’s the part about how the reporters share how the two OLC lawyers—David Barron and Marty Lederman—”discovered a 1997 district court decision involving a woman who was charged with killing her child in Japan. A judge ruled that the terse overseas-killing law must be interpreted as incorporating the exceptions of its domestic-murder counterpart, writing, ‘Congress did not intend to criminalize justifiable or excusable killings.’”

It’s hard to follow this because it seems like there would be no justification for a mother killing her child. Apparently, they scoured all cases on unlawful killings and found that a judge had made this finding. They pulled it out to conclude, “When the government kills an enemy leader in war or national self-defense…the foreign-killing statute would not impede a strike.”

If that does not seem obscene, the reporters draw this conclusion, “They had not resorted to the Bush-style theories they had once denounced of sweeping presidential war powers to disregard Congressionally imposed limitations.” How so? It seems pretty medieval of the president to be claiming the authority to kill US citizens without charge or trial if they are “wartime enemies” simply on the basis that some judge made a statement in a case where a mother murdered her child.

In any case, there is further manipulation. The ACLU has sought “disclosure of the legal memoranda written by the Department of Justice Office of Legal Counsel that provided justifications for the targeted killing of Al-Aulaqi, as well as records describing the factual basis for the killings of all three Americans, in a separate Freedom of Information Act lawsuit.” The Times fails to mention this case is ongoing.

The administration arguably used the newspaper back in June when officials spoke anonymously to the Times about the administration’s “kill list.” It has more or less regularly made statements to the press about drone programs—one controlled by the CIA, which the Obama administration refuses to acknowledge in court. (ProPublica documented with a graphic here.)

Leaks or unauthorized disclosures can be good and valuable to understanding national security policies but not when they are made in order to shield documents or records from being released to the public and not when they are made to undermine the pursuit of justice by families of victims of abuses of power.

When leaks occur in these instances, they function as propaganda—making it possible for presidential administration to continue to operate controversial programs in secret without any accountability for actions.

Update   

Marcy Wheeler deconstructs the Times‘ story. She writes, “Mark Mazzetti, Charlie Savage, and Scott Shane team up to provide the government’s best case — and at times, an irresponsibly credulous one — for the killing of Anwar al-Awlaki and the collateral deaths of Samir Khan and Abdulrahman al-Awlaki.” She highlights a WikiLeaks cable that is conveniently ignored.