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How We Read a NYTimes Story on Drone Strikes in Yemen

In this post, we’re trying something new. Below, we present an almost line-by-line annotation of yesterday’s New York Times story on US and Yemeni military operations in Yemen. Among other things, the following is intended to identify legal implications of the news being reported, the significance of some of the revelations, and paths for further investigative reporting.

U.S. Drones and Yemeni Forces Kill Qaeda-Linked Fighters, Officials Say
By Eric Schmitt. Saeed Al Batati contributed reporting from Sana, Yemen, and Mark Mazzetti from Washington.
New York Times

WASHINGTON — American drones and Yemeni counterterrorism forces killed more than three dozen militants[1] linked to Al Qaeda’s affiliate in Yemen over the weekend in one of the largest such attacks there in months[2], officials[3] from both countries said Monday.

[1] Note that the story leads with “militants” instead of “alleged militants.” Technically this difference is solved by the reference to “officials … said” at the end of the sentence. Still, the lede creates an initial impression that the individuals killed were indeed militants, rather than signalling to the reader that the issue might be contested. This kind of formulation — asserting militancy as fact, and later attributing those claims to officials —  occurs frequently throughout this story.  Given the anonymity of the official claims, repeated cases in which official claims have subsequently proven unreliable, the difficulty of determining “militancy,” and what is at stake in the categorization, the NYT could assist its readers by including more nuance in such coverage. In addition to signals such as “alleged,” some stories could place an initial reference to “militants” in scare quotes.

[2] It is a significant understatement to call this one of the largest attacks in “months.” If the reported casualties are accurate, the weekend strikes were one of the largest attacks in the history of US strikes in Yemen.

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Court Decision Supports Broader Disclosures on US Drone War

The Second Circuit Court of Appeals’ decision yesterday that the Obama administration had waived its right to refuse to turn over legal memos justifying the killing of a U.S. citizen has implications far beyond disclosure of the specific documents at issue in that case.  Although the U.S. government is being careful not to talk about it now, the recent spate of U.S. drone attacks in Yemen that’s killed some 55 people since Saturday is the new elephant in the room:  what is the government’s legal justification for lethal attacks in Yemen? Is the United States strictly targeting al Qaeda operatives who pose an imminent threat to Americans, or has the U.S. intervened in a civil war in Yemen on behalf of the Yemeni government?

Congress authorized a war against the al Qaeda that attacked us on 9/11, not a war on Yemenis who don’t care for their government. If the administration is not using war authority, it must operate under international human rights law, which applies outside an armed conflict and, as Jonathan Horowitz explains, more strictly limits who may be targeted than the laws of armed conflict.  So President Obama, which is it?

The reasoning of the Second Circuit panel’s opinion in the case about the Anwar al Awlaki killing suggests the Obama administration is going to have to reveal its legal justification for other drone strikes in Yemen, too. If it wants support for its policy at home and abroad, it should do that now rather than waiting for a court order.

The court’s opinion cites several speeches made by administration officials, including then-State Department Legal Adviser Harold Koh, then-Defense Department General Counsel Jeh Johnson, and Attorney General Eric Holder, who claimed that U.S.…   continue »

The Second Circuit and the Vices of Selective Disclosure

I’ve now had a full day to digest yesterday’s lengthy decision by the Second Circuit in New York Times v. Department of Justice, which, among other things, orders the disclosure of a redacted version of an OLC memo relating to the targeted killing of Anwar al-Aulaqi. As I explain in more detail below the fold, although the ruling has been widely hailed as a victory for transparency, I’m not at all sure that it will be a positive development in that regard, at least in the long term. It may still be preferable to the status quo, but that only underscores far deeper problems with U.S. transparency law.

I.  Selective Disclosure of Secret Legal Rationales Has High Costs

The key to yesterday’s decision from a legal perspective is the government’s “selective disclosure” of the legal rationale for targeted killing operations against U.S. citizens–especially the so-called “white paper” disclosed in February 2013. Although this is a bit of an oversimplification, the crux of the Second Circuit’s analysis focused on the government’s effort to invoke exemptions to FOIA, notwithstanding its selective disclosure of aspects of the very analyses it was seeking to exempt. Indeed, but for the white paper and a series of other disclosures in speeches and other official statements, the government very likely would have prevailed on appeal (as it did in the district court).

The question then becomes why the government engages in selective disclosure. My (admittedly outsider) suspicion is that selective disclosure is attractive almost entirely as a way of splitting the difference–of allowing the Executive Branch to look at least somewhat transparent while satisfying those constituencies within the government that are more adamantly opposed to disclosure of any kind and in any form.…   continue »

Judge Pohl’s order requiring disclosure of details of CIA’s “black sites” now unclassified

As I mentioned last week, in the al Nashiri military commission case, Judge Pohl has issued an order requiring that the prosecution turn over to the defense team the details — including the names, dates, and locations — of the CIA’s secret overseas detention and interrogation of al Nashiri.  Today, that order, AE 120C (full text), was unclassified and released publicly.  In the order, Judge Pohl says that the prosecution has the

“obligation to provide discovery broadly and liberally, especially in light of the capital referral of the charges against the Accused and the Defense’s ethical duty to conduct pre-trial investigation in order to develop the full range of exculpatory, mitigation and, extenuation evidence.”

The order’s scope is expansive, with the disclosure requirements copied below. Note in particular that the order includes, as Carol Rosenberg of the Miami Herald points out, the black site interrogations of 9/11 defendant Walid bin Attash:

The Prosecution will provide the Defense the following discovery information:

a. A chronology identifying where the Accused was held in detention between the date of his capture to the date he arrived at Guantanamo Bay, Cuba in September 2006;

b. A description of how the Accused was transported between the various locations including how he was restrained and how he was clothed;

c. All records, photographs, videos and summaries the Government of the United States has in its possession which document the condition of the Accused’s confinement at each location, and the Accused’s conditions during each movement between the various locations;

d. The identities of medical personnel (examining and treating physicians, psychologist, psychiatrists, mental health professionals, dentists, etc.), guard force personnel, and interrogators, whether employees of the United States Government or employees of a contractor hired by the United States Government, who had direct and substantial contact with the Accused at each location and participated in the transport of the Accused between the various locations.

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Consequences of the Fact-Based Armed Conflict Test in Yemen’s Internal Armed Conflict

Ryan’s recent post about ongoing “drone strikes” in Yemen raises an issue that has troubled me for quite some time from a legal, policy, and advocacy perspective.

In the last of his four points, Ryan questions whether the United States is involved in Yemen’s internal armed conflict. The reason this argument can be made (and has been made) is because, as LOAC lawyers know, an assessment of whether an “armed conflict” exists under international law is a fact-based assessment. An armed conflict is based on objective criteria; not on the subjective views of the military, lawmakers, or anyone else (although such views may be strong indicators that an armed conflict does exist).

The reason this rule was codified in LOAC was to combat the practice of States that refused to admit they were in armed conflicts, including internal armed conflict, because they found it politically, economically, or militarily disadvantageous to admit that rebels may have gotten the upper-hand. States have also refused to admit they were in internal armed conflicts to avoid following LOAC rules, a body of law that has expanded over the years through treaty and customary international law.

The fact-based test for armed conflict, at least at first glance appears to bring more, rather than less, regulations into hostilities and ensure greater protection for civilians. These include rules relating to the humane treatment of detainees, authority of humanitarian relief agencies to offer assistance, and strict(ish) rules on who can be killed and under what circumstances.

However, in the context of U.S. strikes in Yemen, the reliance on the fact-based test seems to have different consequences. Saying that the United States is in a LOAC alongside Yemen allows, as a matter of international law, the United States to carry out LOAC targeting operations under a legal justification that, as Ryan pointed out in his previous post, the United States itself may not agree with or publicly admit to.…   continue »

News Roundup and Notes: April 22, 2014

Before the start of business, Just Security provides a curated summary of up-to-the-minute developments at home and abroad. Here’s today’s news.

Drone strikes in Yemen

Three suspected al-Qaeda militants were killed in a further drone strike in southern Yemen on Monday, according to Yemeni officials [AFP]. The Yemeni Ministry has said in a statement that the drone strikes over the weekend killed at least 55 al-Qaeda militants [Associated Press]. For further analysis, check out Ryan Goodman’s post at Just Security.

The New York Times’ Eric Schmitt reports on the U.S. and Yemeni joint operation, but notes that “it [is] unclear how the people targeted in the strike posed a threat to Americans.” White House press secretary Jay Carney has referred all questions about the strikes to the Yemeni government, and the Pentagon and CIA declined to comment. Some American officials said the drones were operated by the CIA, while others said “American Special Operations military personnel had supported the Yemeni operations on the ground with intelligence and possibly logistical assistance.”

The strikes have “brought into sharp relief divisions among [Yemen’s] rulers over how to rein in [the U.S. drones] program that they’ve long supported,” reports McClatchy DC (Adam Baron). A top Yemeni official told McClatchy last week that “[w]hen it comes to the current drone policy, there have been too many mistakes.”

Reuters (Mohamed Ghobari and Yara Bayoumy) reports that drone strikes “are unlikely to eradicate the threat [al-Qaeda] poses” as “[a] weak central government, a rivalry-ridden and poorly equipped security force, endemic poverty and corruption have made Yemen the ideal haven” for the group, according to analysts.

Meanwhile, a federal appeals court has ordered the release of parts of a Justice Department memorandum providing the Obama administration’s legal justification for the 2011 drone strike in Yemen, which killed U.S.…   continue »

Letter to the Editor from Gabor Rona, On Justice Breyer’s Concurrence in Hussain

If Justice Breyer’s statement is a sign that the Supreme Court may now be willing to wrest its “war on terror” role back from the DC Circuit, it may be due not just to concerns about detention policy, but also about the scope of US targeted killings. Even if that’s not the case, whether someone can be deprived of their right to life merely because they were “part of” Al Qaeda or the Taliban, as distinct from having “engaged in armed conflict against the United States” is even more urgent than whether they can be deprived of their liberty.

This is welcome news for those of us who have long argued that mere “membership” in an amorphous non-State entity is hard to define, and can hardly be a sufficient basis for extrajudicial killing. Others have asked pointedly: “Does Al Qaeda even have a ‘non-military’ or ‘political wing,’ like the Irish Republican Army?” That’s a question than needs to be answered before any more people are either detained or targeted.

Gabor Rona is the International Legal Director of Human Rights First and teaches International Humanitarian Law at Columbia Law School.

Ongoing “Drone Strikes” in Yemen Raise Four Questions

From Saturday to Monday morning, the US has reportedly been carrying out a series of air strikes in Yemen, delivering multiple blows to Al Qaeda in the Arabian Peninsula (AQAP). According to a Yemeni official who spoke with CNN, the strikes are “massive and unprecedented.” Shrouded in secrecy, the actions raise questions about the consistency of US operations with the “New Rules” that the White House announced on May 23, 2013 for lethal operations. The actions also raise a profound question about whether US involvement in Yemen (a) has slid into fighting an insurgency (i.e., an internal armed conflict) on the side of the Yemeni government rather than (b) combating AQAP as part of the transnational armed conflict with Al Qaeda pursuant to Congress’s Authorization to Use Military Force.

On Saturday, air strikes reportedly killed 10 AQAP militants in a vehicle but also resulted in killing 3 civilians and wounding 2 civilians in an approaching car. On Sunday and early Monday morning, a series of air strikes reportedly killed another 25 people suspected of being AQAP members. Initial news reports have conflicted over some of the details, and access to the remote mountainous areas, where the strikes occurred, create difficulties for journalists to report. Accordingly, some of the information is sparse, and relies significantly on statements by Yemeni officials. That said, what information is available raises the following questions.

1. Civilian Deaths

The President’s New Rules for kill or capture operations outside of areas of active hostilities forbid strikes that present even a marginal risk of civilian casualties. According to the rules, one of the “criteria [that] must be met before lethal action may be taken” is:

“Near certainty that non-combatants will not be injured or killed.”

Saturday’s attack, however, resulted in 3 civilians dead and 2 wounded.…   continue »

Second Circuit Orders Release of Redacted OLC Aulaqi Memo

A big morning for courts and national security… next up is this immensely significant decision from the Second Circuit in New York Times v. Department of Justice, which, among other things, orders the public release of a redacted version of the OLC’s legal memorandum that apparently provides the legal rationale for the targeted killing of Anwar al-Aulaqi. The panel also rejected the government’s Glomar responses and required the production of a Vaughn index to the court, along with public disclosure of a redacted Vaughn index.

There will be lots to say about this major opinion going forward, including whether the government will pursue en banc (given the unanimous and balanced panel–Newman, Cabranes, and Pooler, JJ., seems like a stretch), and or Supreme Court review. I’ll hope to have some thoughts of my own later today.

Justice Breyer’s Concurrence in Hussain

As Marty predicted back in March, the Supreme Court’s denial of certiorari this morning in the latest Guantánamo case to reach the Court–Hussain v. Obama–came with a one-Justice statement concurring in the denial, penned by Justice Breyer (see the last two pages of this PDF). Specifically, Justice Breyer wrote separately to note that:

The Court has not directly addressed whether the AUMF authorizes, and the Constitution permits, detention on the basis that an individual was part of al Qaeda,or part of the Taliban, but was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture. Nor have we considered whether, assuming detention on these bases is permissible, either the AUMF or the Constitution limits the duration of detention.

Nevertheless, although “[t]he circumstances of Hussain’s detention may involve these unanswered questions,” Breyer demurred because “his petition does not ask us to answer them.”

Both Marty and I have explained at some length previously just how little is actually resolved by the Supreme Court’s interpretation of the AUMF in Hamdi, and how much has instead been filled in by the D.C. Circuit–including the answers to both of Justice Breyer’s questions in Hussain. (In a nutshell, “yes,” and “no”.)  And the Court has seemed content, thus far, to leave virtually all of those decisions intact, notwithstanding fairly compelling arguments to the contrary. But perhaps Justice Breyer’s statement today is a sign of shifting winds–and the very real possibility that the Court is not in fact done passing upon the complex legal questions arising out of the continuing detentions at Guantánamo…