The Obama administration will be able to keep secret its legal justification for killing without a trial an American suspected of joining al Qaeda after a federal judge on Wednesday dismissed most of a lawsuit filed by the American Civil Liberties Union and The New York Times.
New York Southern District Court Judge Colleen McMahon issued a ruling acknowledging that the government's actions "seem on their face incompatible with our Constitution." Still, she concluded, citing a "veritable Catch-22" of a "thicket of laws and precedents," she could not order disclosure of the Department of Justice memorandum supporting the 2011 drone killing of alleged al Qaeda militant -- and American citizen -- Anwar al-Awlaki in Yemen.
The judge's ruling hinged on the Freedom of Information Act Law, not on the drone program itself.
Jameel Jaffer, the deputy legal director of the ACLU, called it a "disappointment." Still, he noted McMahon's almost woeful tone, along with the fact that she spent "several pages talking about the very troubling questions that relate to the substantive authority itself that the government is claiming to carry out these extrajudicial killings of people who are located far away from any conventional battlefield."
McMahon said there were "legitimate reasons" to question the legality of killings like al-Awlaki's.
The Obama administration has aggressively employed a fleet of robotic drone aircraft to kill people with suspected ties to al Qaeda and other terrorist organizations. President Barack Obama has additionally taken the step of using drones against citizens like al-Awlaki, an American-born Islamist preacher who United States officials accused of being a "regional commander" of al Qaeda. Officials linked him to the 2009 "underwear bomber" plot to blow up a plane over Detroit.
A secret Department of Justice memo justified the strike on Awlaki -- but it has never been made public, despite pleas from members of Congress, including Senate Intelligence Chair Dianne Feinstein (D-Calif.) and Armed Services Chair Carl Levin (D-Mich.). They supported killing al-Awlaki, but thought the administration needed to explain its legal reasoning.
The administration took limited steps toward disclosing information about its drone killing program in an August 2012 speech by John Brennan, chief counterterrorism adviser to the president, about the justification for killing Americans suspected of fighting for al Qaeda, and a February 2012 speech by Department of Defense General Counsel Jeh Johnson.
In court, however, the administration maintained that the targeted killing program is a national security secret not covered by FOIA.
"The way that the judge reads the law, the government can make these selective and self-serving disclosures about the targeted killing program, while at the same time maintaining in court that the program is a secret," said Jaffer. "There's a certain absurdity to that situation."
Both the ACLU and The New York Times plan to appeal the decision.
"Judge McMahon’s decision speaks eloquently and at length to the serious legal questions raised by the targeted-killing program and to why in a democracy the government should be addressing those questions openly and fully … we continue to believe that disclosure is required," said David McCraw, Times vice president and assistant general counsel, in a statement.
The judge delayed ruling on two separate, unclassified memos produced by the Defense Department about the killing program. They also were sought under the FOIAs, but McMahon asked for more information from the government before ruling.
In a different lawsuit, the ACLU is suing the government over the constitutionality of the Awlaki drone strike itself. The government filed a motion to dismiss that case on Dec. 14 in a Washington federal district court. The judge has yet to issue a ruling.
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Abuse Of Prisoners
As the <em>New York Times </em><a href="http://www.nytimes.com/2011/04/25/world/guantanamo-files-lives-in-an-american-limbo.html?pagewanted=2&_r=1" target="_hplink">reports</a>, Mohammed Qahtani -- a Saudi believed to have been an intended participant in the Sept. 11 attacks -- was subject to coercive questioning and other abuses during his interrogation. The cables describe Qahtani as being leashed like a dog, sexually humiliated and forced to urinate on himself. His file says, "Although publicly released records allege detainee was subject to harsh interrogation techniques in the early stages of detention," his confessions "appear to be true and are corroborated in reporting from other sources."
Arbitrary Nature Of Prison System
As <em>Le Monde</em> is <a href="http://www.worldcrunch.com/wikileaks-guantanamo-why-us-declared-iranian-catholic-drug-dealer-enemy-combatant" target="_hplink">reporting</a>, one "low-value" Iranian-Catholic detainee was kept in Guantanamo even after being deemed ready for release -- given his "cooperative nature" and in the interest of "possible financing relations" between Al Qaeda and traffickers. According to the cables, Abdul Majid Muhammed was deemed fit for release in 2002: "The detainee is not affiliated with Al Qaeda or the Taliban. He was involved in drug trafficking. It is unlikely that he represents a risk for the U.S. or its allies."
An Al Jazeera journalist was <a href="http://www.huffingtonpost.com/2011/04/25/sami-al-hajj-al-jazeera-j_n_853297.html" target="_hplink">reportedly </a>held at Guantanamo Bay for six years partially so he could be interrogated about the network Sami al-Hajj, a Sudanese national and Al Jazeera cameraman, was captured in Pakistan in late 2001. Though he was never convicted or even tried of any terrorist ties, al-Hajj was held until 2008 because interrogators wanted to find out more about "the al-Jazeera news network's training programme, telecommunications equipment, and newsgathering operations in Chechnya, Kosovo and Afghanistan, including the network's acquisition of a video of UBL [Osama bin Laden] and a subsequent interview with UBL," <a href="http://www.guardian.co.uk/world/guantanamo-files/US9SU-000345DP" target="_hplink">according</a> to the cables.
Violent Threats Against Captors
Some detainees are described as ruthlessly violent in the documents. As the <em>New York Times </em><a href="http://www.nytimes.com/2011/04/25/world/guantanamo-files-lives-in-an-american-limbo.html?pagewanted=2&_r=1" target="_hplink">reports</a>, one detainee said "he would like to tell his friends in Iraq to find the interrogator, slice him up, and make a shwarma (a type of sandwich) out of him, with the interrogator's head sticking out of the end of the shwarma." Another "threatened to kill a U.S. service member by chopping off his head and hands when he gets out," and informed a guard that "he will murder him and drink his blood for lunch. Detainee also stated he would fly planes into houses and prayed that President Bush would die."
New Details On Post-9/11 Al Qaeda Whereabouts
As the<em> Washington Post</em> <a href="http://www.washingtonpost.com/world/wikileaks-discloses-new-details-on-whereabouts-of-al-qaeda-leaders-on-911/2011/04/24/AFvvzIeE_story_2.html" target="_hplink">reports</a>, the documents describe a major gathering of some of Al Qaeda's most senior operatives in early December 2001. They included Khalid Sheik Mohammed, the self-described mastermind of the Sept. 11 attacks; Abd al-Rahim al-Nashiri, the alleged planner of the USS Cole attack; and Abu Faraj al-Libbi, a key facilitator for bin Laden. After returning to Karachi, Mohammed "put together a training program for assassinations and kidnappings as well as pistol and computer training."
"Nuclear Hellstorm' Threat
The leaked files<a href="http://www.google.com/hostednews/afp/article/ALeqM5h9ouUwZB0vhDcEsGB8N2uVcvGFqQ?docId=CNG.e738123e4ccce6019851c695501ca633.9e1" target="_hplink"> indicate</a> Khalid Sheikh Mohammed told Guantanamo Bay interrogators that Al Qaeda had hidden a nuclear bomb in Europe which will unleash a "nuclear hellstorm" if Osama bin Laden is captured or killed. The terror group also planned to make a 9/11 style attack on London's Heathrow airport by crashing a hijacked airliner into one of the terminals, the files showed.
The <em>Washington Post</em><a href="http://www.washingtonpost.com/world/wikileaks-discloses-new-details-on-whereabouts-of-al-qaeda-leaders-on-911/2011/04/24/AFvvzIeE_story_2.html" target="_hplink"> reports</a> Abd al-Rahim al-Nashiri, the alleged planner of the USS Cole attack, "received injections to promote impotence" to avoid being distracted by women, and "recommended the injections to others so more time could be spent on the jihad."
Prisoner Details And Ranking System
Gitmo detainees are <a href="http://www.washingtonpost.com/world/wikileaks-discloses-new-details-on-whereabouts-of-al-qaeda-leaders-on-911/2011/04/24/AFvvzIeE_story.html" target="_hplink">reportedly</a> assessed "high," "medium" or "low" in terms of their intelligence value, the threat they pose while in detention and the continued threat they might pose to the United States if released. As Reuters<a href="http://www.huffingtonpost.com/2011/04/25/guantanamo-files-detainees_n_853309.html" target="_hplink"> reports</a>, most of the 172 remaining prisoners have been rated as a "high risk" of posing a threat to the United States and its allies if released without adequate rehabilitation and supervision.
Gitmo authorities named Pakistan's Inter-Services Intelligence agency a "terrorist organization" along with Hamas and other international militant networks, according to leaked documents. As the Associated Press <a href="http://www.huffingtonpost.com/2011/04/25/pakistan-intelligence-terror-links-guantanamo_n_853274.html" target="_hplink">reports</a>, the ISI is part of a list that includes more than 60 international militant networks, as well as Iran's intelligence services, that are "terrorist" entities or associations and say detainees linked to them "may have provided support to Al Qaeda and the Taliban, or engaged in hostilities against U.S. and coalition forces."