Arguments Made from Legal Play-Doh

I see where the public relations department for the Obama White House, otherwise known as the New York Times, has published a lengthy, front-page article on the legal basis for the President's decision to kill Anwar al-Awlaki with a missile strike. Such prominent placement in the nation's Newspaper of Record probably reflects some discomfiture in the West Wing about the blowback from civil libertarians and other extremists who thought that
killing an American citizen, even a Muslim troublemaker, in defiance of the Fifth Amendment's Due Process Clause deserved a more thorough legal workout. The White House has refused to discuss the actual evidence against al-Awlaki, other than some very generalized intelligence data about the cleric's "involvement" in terrorist plots, some of which is almost laughably vague and unsubstantiated, such as al-Awlaki's "possible presence" "in the vicinity" of someone (unidentified) who may have been on the phone with the Christmas Day underwear bomber. I'm not kidding about that: that's actually the quality of the evidence, at least to the extent it has been made public, and Jay Carney, Obama's surfer-dude Press Secretary made a point of refusing to answer Jake Tapper's (highly commendable) tenacious questioning at a recent press conference about just what the government had on the guy before they fired a missile at him. Just not something the White House is going to discuss; if we kill you, please rest assured it's for your own good.

Thus, the usual stone wall from the Most Transparent Administration Ever, which never provides any detail, photos or data whatsoever for anything at any time. Their motto is simple, that government is best which operates most in secret. Still, they thought maybe they ought to do something, so they called in the Times and told them to write a story about a 50-page memo in vague, general terms, without the reporter (of course) actually seeing the memo (let alone reading or studying it), but with an outline of what's in it, all as verified by completely anonymous sources who (probably) had seen this memo, and that ought to be good enough. This is what passes for candor and accountability in the Obama White House; they're not even willing to go as far as George W. Bush and the John Yoo torture memo. At least we got to read the damn thing. Now we're reduced to having the New York Times, made to feel special because an anonymous source is giving them the inside dope on why it was okay to whack Awlaki, describe why "precedents" and the "law of war" provided all kinds of exceptions to the Bill of Rights, and so stop worrying, okay? We did the right thing.

From what I could tell (and it's very hard to tell), the legal memo uses the standard connect-the-dots from the September 18, 2001 Authorization for Use of Military Force to the decision to blow up the Muslim from New Mexico. You can see the obvious nexus if I just reproduce the AUMF one more time:

SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

It's a thing of beauty, isn't it? Notice that Congress, moving as far away as it possibly could from its own Constitutional duty of Declaring War, deferred completely to George W. Bush's unilateral right to determine who "planned, authorized, committed, or aided" the attacks of 9-11, which of course were carried out by an Egyptian, two citizens of the UAE, a Lebanese and 15 guys from Saudi Arabia, based on plans they had developed in South Florida and Hamburg, Germany, probably with financial help from the Saudi royal family. If that's not reason enough to invade Afghanistan and stay there for ten years, then I don't know what is.

So anyway, Al Qaeda. That's what we're talking about. An umbrella term for an umbrella organization. If it's kind of Muslim, kind of terroristic, sort of Arab, involves burnooses, robes, that kind of thing, let's call it al-Qaeda, because the President determined (that's for sure) that al-Qaeda was behind the attacks of 9-11. What's the evidence for that? That doesn't need to be discussed, because evidence is not discussed. It's a State Secret. It was al-Qaeda, Bin Laden is definitely "affiliated" with al-Qaeda, and the Lebanese, Egyptian, Saudi etc. guys were affiliated with al-Qaeda, because we think maybe they went to Afghanistan to train on the Jungle Gym Complex there, or maybe not (what's the difference, and where does Dore Gold get off writing in Hatred's Kingdom that there is no evidence any hijacker ever went to Afghanistan before the attacks, and that it was all Saudi money which funded the operation? Dore Gold, born in Hartford, Connecticut, educated in a yeshiva there, yet a prominent member of Israel's foreign policy apparatus? Sounds suspicious.)

Where were we? Okay, so you can see how much fun lawyering at the highest levels can be. It's like molding arguments out of Legal Play-Doh. Getting from the AUMF of September 18, 2001 to whacking Awlaki with a Hellfire missile in September, 2011, is almost too easy. It's not our fault Awlaki got "identified" or "affiliated with" al-Qaeda. Arabic is a resourceful, big language, and there are lots of terms he could have used (maybe he did, but never mind) to identify himself and his "affiliation," but we decided he was part of what we call al-Qaeda, sort of like SMERSH, and that was that. We "determined" that al-Qaeda was behind the attacks of 9-11, and we define al-Qaeda as basically anything sort of Arabic or Muslim that makes hostile noises against the United States. Arab-Americans who want to dissent without getting blown up by a Predator Drone should be careful to designate themselves something not covered by the AUMF, such as the Koran-Krips, or the Mecca Maulers, or even Muslim Brotherhood, since that was probably an actual organization involved in the attacks of 9-11, but the USA apparently never figured that out.