Photo by The White House (via Flickr)

(update 1 & 2)

Ahead of a major speech on counterterrorism policies tomorrow, the administration of President Barack Obama has officially declassified information related to drone strikes against four American citizens and also acknowledged for the first time that they were killed by the United States.

A letter sent to members of the Senate Judiciary Committee by Attorney General Eric Holder reads, “The President has directed me to disclose certain information that until now has been properly classified. You and other members of your Committee have on numerous occasions expressed a particular interest in the Administration’s use of lethal force against US citizens. In light of this fact, I am writing to disclose to you certain information about the number of US citizens who have been killed by US counterterrorism operations outside of areas of active hostilities.”

“Since 2009,” the letter continues, “the United States, in the conduct of US counterterrorism operations against al Qaeda and its associated forces outside of areas of active hostilities, has specifically targeted and killed one US citizens, Anwar al-Aulaqi. The United States is further aware of three other US citizens who have been killed in such US counterterrorism operations over that same time period: Samir Khan, ‘Abd al-Rahman Anwar al-Aulaqi and Jude Kenan Mohammed. These individuals were not specifically targeted by the United States.”

The letter contains the administration’s justification for the targeted assassination of Awlaki and suggests he is a senior operational leader, however, no proof is provided.

“Al-Aulaqi was a senior operational leader of al Qaeda in the Arabian Peninsula (AQAP), the most dangerous regional affiliate of al Qaeda and a group that has committed numerous terrorist attacks overseas and attempted multiple times to conduct terrorist attacks against the US homeland,” according to the letter. “And al-Aulaqi was not just a senior leader of AQAP – he was the group’s chief of external operations intimately involved in detailed planning and putting in place plots against US persons.”

This contradicts the understanding of former Defense Intelligence Agency analyst Joshua Foust, which appear in Jeremy Scahill’s book Dirty Wars. Foust told Scahill he believed members of the intelligence community were “elevating Awlaki’s status based on the fear he was able to inspire through his words.” His statements were not evidence that he had a “senior operational role” in al Qaeda. In AQAP, he was “middle management.” Foust said, “Even AQAP leadership treats him like he’s just a subordinate, who needs to shut up and do what he’s told.”

“Well-connected Yemenis,” who Scahill spoke to, told him that Anwar al-Awlaki was not an operational member of AQAP. Journalist Abdul Rezzaq al Jamal said he “was not a leader in al Qaeda. He did not hold any official post at all.” What united him with al Qaeda was his “hostility to the US.” He agreed with the “vision, rational and strategies” of al Qaeda,” but he did not hold a leadership position.

Nonetheless, the letter from Holder asserts the decision to kill Awlaki had nothing to do with his “words”—statements he was making that the US thought would inspire Muslims to commit terrorist acts. It declares, “It was al-Aulaqi’s actions—and, in particular, his direct personal involvement in the continued planning and execution of terrorist attacks against the US homeland in the continued planning and execution of terrorist attacks against the US homeland.”

…For example, when Umar Farouk Abdulmutallab—the individual who attempted to blow up an airplane bound for Detroit on Christmas Day 2009—went to Yemen in 2009. al-Aulaqi arranged an introduction via text message. Abdulmutallab told US officials that he stayed at al-Aulaqi’s house for three days, and then spent two weeks at an AQAP training camp. Al-Aulaqi planned a suicide operation for Abdulmutallab, helped Abdulmutallab draft a statement for a martyrdom video to be shown after the attack, and directed him to take down a US airliner. Al-Aulaqi’s last instructions were to blow up the airplane when it was over American soil. Al-Aulaqi also played a key role in the October 2010 plot to detonate explosive devices on two US-bound cargo planes: he not only helped plan and oversee the plot, but was also directly involved in the details of its execution—to the point that he took part in the development and testing of the explosive devices that were placed on the planes. Moreover, information that remains classified to protect sensitive sources and methods evidences al-Aulaqi’s involvement in the planning of numerous other plots against US and Western interests and makes clear he was continuing to plot attacks when he was killed…

According to Jeremy Scahill’s book, Dirty Wars:

…Awlaki’s role in the “underwear plot” was unclear. Awalki later claimed that Abdulmutallab was one of his “students.” Tribal sources in Shabwah told me that al Qaeda operatives reached out to Awlaki to give religious counseling to Abdulumutallab, but that Awlaki was not involved in the plot. While praising the attack, Awlaki said he had not been involved with its conception or planning. “Yes, there was some contact between me and him, but I did not issue a fatwa allowing him ot carry out this operation,” Awlaki told Abdulelah Haider Shaye in an interview for Al Jazeera a few week after the attempted attack…


The letter claims it was not feasible to capture Awlaki and was consistent with law of war principles and Yemeni sovereignty. Awlaki was held in a Yemeni prison at the direction of the United States from mid-2006 to 2007. Yemeni forces have worked with US forces to target AQAP, but the Obama administration has adopted a policy of not working with Yemenis to capture terror suspects because it fears that the government might set them free.

Over two paragraphs describe the legal reviews of which Aulaqi’s targeted assassination was subjected, but it does not change the reality that the administration was acting as judge, jury and executioner. They were engaging in a process of killing by committee and Aulaqi, as well as his father Nasser Al-Awlaki, who tried to challenge his inclusion on a kill list in a court of law, was denied the right to due process. There was no opportunity to rebut the claims of the government before the Obama administration made the decision to use a drone to mete out capital punishment.

There are no details about the circumstances around the deaths of Abdulrahman al-Awlaki, Samir Khan or Jude Kenan Mohammed. The letter was an opportunity to come clean on what led to Awlaki’s sixteen-year-old son being killed by a drone. The Obama administration chose to continue to conceal the full story of how the US government ended up killing him.

Mohammed’s death is far less known. He traveled to Pakistan around 2008, according to a federal indictment, “to engage in violent jihad.” He was from North Carolina and was accused of “plotting” attacks overseas and securing weapons and training in North Carolina. A friend told WRAL in February 2012 that Mohammed had been killed in a drone strike, but the US government would not confirm it was true.

As with Abdulrahman’s killing, the circumstances around the operation that led to Mohammed’s death is not described. The administration could have come clean fully yet they chose to keep key details secret.

Samir Khan’s death is not addressed either. He is just a part of the “proportionality” of the strike on al-Awlaki, “anticipated collateral damage of an action” that the US would not consider “excessive in relation to the anticipated concrete and direct military advantage” of eliminating al-Awlaki.

Finally, the letter from Holder suggests, “The Department of Justice and other departments and agencies have continuall worked with the appropriate oversight committees in the Congress to ensure that those committees are fully informed of the legal basis for our actions,” which could not be further from the truth.

Members of Congress, as Marcy Wheeler has shown, asked to see copies of the legal justification for “targeted killings” at least twenty times. Sen. Ron Wyden said in January in a letter to now-CIA director John Brennan that he had “asked repeatedly over the past two years to see the secret legal opinions that contain the executive branch’s understanding of the President’s authority to kill American citizens in the course of counterterrorism operations.” The Justice Department was unresponsive to his requests.

Holder claims that speeches officials have given in the past couple year, including the address he delivered at Northwestern University in March 2012, were a part of providing an “unprecedented level of transparency into how sensitive counterterrorism operations are conducted.” The truth is that such speeches have been cheap attempts at transparency.

The Obama administration has fought efforts by the American Civil Liberties Union and Center for Constitutional Rights to force transparency. They have argued against disclosing documents containing details on the legal basis for targeting and killing people in Freedom of Information Act lawsuits.

In fact, the letter does not indicate whether Joint Special Operations Command (JSOC) or the CIA was responsible for the deaths of these people. The significance of this, presuming the CIA had a role in the killings of at least one of these Americans, is that it continues a policy of officially refusing to acknowledge that the CIA is actually carrying out drone strikes, which a judge opposed in March, that has helped them conceal key details around drone operations abroad.

This letter is a wholly disingenuous attempt by the Obama administration to make it seem they have a record of transparency on drone operations. It does nothing to allay concerns among those concerned with how the executive claiming the authority to carry out a global assassination policy violates human rights and infringes upon due process and the rule of law. And, instead, the administration regurgitates claims about adhering to the law that have been previously made, without bothering to address key criticism.

Update 

Jeremy Scahill’s statement on Holder’s letter here. He crucially points out, “Perhaps most disturbing about the Attorney General’s letter is that it leaves totally unexplained why the United States has killed so many innocent non-American citizens in its strikes in Pakistan and Yemen.”

Update 2 

Center for Constitutional Rights’ statement:

The Justice Department’s acknowledgement of what we already know is a welcome step.  But it is only the first step that is needed.  Just as DOJ has now reversed its long-held position that it could not acknowledge these strikes – the position it took in its motion to dismiss our lawsuit – it can and should reverse course on its position against judicial review.  A letter to Congress is no substitute for judicial process.  The government should defend the legality of its actions on the merits in a court of law, including its decision to authorize the strike that resulted in the death of 16-year-old Abdulrahman, about whom Mr. Holder’s letter had almost nothing to say.

 Hina Shamsi, director of the ACLU’s National Security Project:
This is a small step towards transparency, and we welcome the government’s recognition that it must publicly explain its actions when it decides to kill an American citizen. Much more openness is still needed. The government must disclose its still-secret targeted killing memos so the public can determine if they contain criteria as vague and elastic as its definitions of ‘imminence’ and ‘feasibility of capture…The letter also underscores how little the public still knows about this unlawful program and its consequences, including the previously unknown killing of a fourth American citizen more than a year ago. It does nothing to shed light on the government’s legal criteria and factual basis for the killings of thousands of non-citizens – including reportedly hundreds of civilians – in a program that is unlawful, dangerous, and unwise.

When the U.S. government kills its own citizens far from any battlefield, it is not enough to describe its decision and partial reasoning in a letter – the lawfulness of such killings must be evaluated in court. We assume this new step towards transparency means the government will change its litigation stance in our lawsuits seeking information about the targeted killing program, and hope the government will respond on the merits in our lawsuit seeking due process for the killings of three Americans in Yemen. [emphasis added]