That white paper...

Did you get the memo? The public release (via MSNBC) of the Justice Department's official rationale for killing Americans without due process forces us into an awkward moment. Now we all have to act surprised by something we already knew.

Let's start with a sampler of faux-surprise expressed by other bloggers. First, Marc Ambinder:

So here's what that means: Even if the person is not actively planning terrorist attacks against the U.S., because of the nature of terrorist attacks in general, merely his membership in an organization that is planning those attacks meets the requisite definition of imminence.

So, basically, imminence does not mean imminent. And membership in al Qaeda is seen as tantamount to being in a car when someone decides to shoot someone on the street, even if the other occupant had no knowledge beforehand that the drive-by shooter would act. Accessory to murder, drone edition.

Digby:

It never fails to amaze me how people will insist that the Presidency is a powerless office with no ability to do pretty much anything. And then there's this.

Firedoglake:

According to the federal government an informed high-level government official can now kill an American citizen without due process. Yes, for those playing at home, this is what tyranny looks like.

So long constitution we hardly knew ye.

Crooks and Liars argues that this white paper could impact the nominations of Hagel and Brennan. Damn right it could.

Joe Scarborough, on his morning program, discussed the impact of this white paper with Harold Ford:

When dealing with these types of threats, Harold Ford, Jr. argued, “we have to make at times very messy and sometimes uncomfortable and oftentimes questionable decisions.” But now Democrats should look back at how they questioned the Bush administration’s tactics.

“If this was happening, and his name was Bush, I think there’d be a lot of criticism coming at this president,” he said.

“If George Bush had done this, it would have been stopped,” Scarborough added.

Scarborough here sounds the main theme heard on the conservative blogs: If Bush had done this... Here's an example from Newsbusters.

What bugs me about the If-Bush-had-dunnit argument is the intellectual dishonesty. Most left-wing writers have lambasted Obama over this document, as have the right-wing writers. But if the Bush administration had issued the same paper, all conservative bloggers would have defended the thing with all the verbal violence at their command. As they have done on other occasions when Obama enacted his "Republican lite" schtick, the rightist pundits have shown that their loyalty goes not to principle but to party. Shirts vs. skins, not idea vs. idea.

That's why you get Breitbartians saying things like this:

Another problem is that Obama is a liar and I do not trust him. So while I might be OK with what the memo proposes, there is no way for me to be sure he won’t take it further, if he thinks it would benefit him politically.

Yeah, and I never trusted Bush. At least half the country won't trust any given President no matter what his party affiliation. That's why we must be a nation of laws. That's why those laws must bind the politicians we like as well as the politicians we don't like.

And if those laws sometimes make the work of defense difficult -- well, as Charlton Heston says in Touch of Evil, "Police work is easy only in a police state." We were all horrified by 9/11 and we all hope never to see such an enormity repeated. But I'd rather see my every loved one die in another terrorist attack than countenance a "legal" basis for denying fundamental rights to U.S. citizens.

Turns out that memo is not the memo.  Marcy Wheeler points out that the white paper everyone is talking about is not the actual legal justification used by the Obama administration to justify the killing of Awlaki.

NBC suggests and the close tracking appears to support that this white paper is a version of the OLC memo written in June 2010 and reported on — the last time there was clamor to release the targeting killing authorization publicly — by Charlie Savage.

But as Colleen McMahon strongly hinted last month, that doesn’t mean that this white paper — and the OLC memo which it summarizes — describe the legal basis actually used to kill Anwar al-Awlaki.

Indeed, Ron Wyden has been referring to memos, in the plural, for a full year (even before, if Isikoff’s report is correct, this white paper was first provided to the Committees in June 2012).

And there is abundant reason to believe that the members of the Senate committees who got this white paper aren’t convinced it describes the rationale the Administration actually used.

Marcy goes on to note that John Cornyn of the Senate Judiciary Committee complained that he had not yet seen the administration's actual rationale for the extrajudicial killing. He registered that complaint after his committee had seen the white paper currently under discussion.

And so, just as scientists may infer the existence of an unknown moon from its gravitational pull on other bodies, we can infer the existence of a secret white paper that no-one has yet seen.

Why is this point important? Because the memo we can see justifies lethal action under Congress' Authorization for the Use of Military Force, issued in 2001 in response to the 9/11 attacks. Marcy Wheeler outlines her reasons for believing that the secret memo uses a different rationale. She thinks that the secret memo lays out the argument that the Constitution inherently gives the president -- any president -- the power and the right to kill Americans without trial.

...this white paper holds out the possibility that there may be other circumstances, other lesser requirements fulfilled, that would still allow the President to kill an American citizen.

And that, I fear, is what is in the real memos.

Awlaki: In the past, I have argued that Anwar al-Awlaki -- the New Mexico-born American citizen whose killing rests at the heart of this controversy -- may have been America's secret "inside man" within Al Qaeda. I've also posited that the drone strike was a cover for the exfiltration of our agent. See here and here.

The government of Yemen never confirmed Awlaki's death. His stricken car was part of a small convoy, and two of the vehicles sped away unharmed.

Since some people won't hit the links given above, I suppose it would be as well to recapitulate, briefly, my reasons for suspecting that Awlaki was "ours" all along. Very well...

Awlaki attended George Washington University, which has longstanding CIA ties -- and everyone knows that our spooks often try to recruit foreign nationals studying in this country. In 1994, he appears to have used a U.S. Army network in Denver to set up a secure communication system for Osama Bin Laden. He was known to have aided at least three of the 9/11 hijackers, yet was asked to speak at a formal Pentagon luncheon (!) the February after the terror attacks. Even after he provably lied to FBI interrogators, he was allowed to sail in and out of this country with ease -- at a time when moderately left-wing academics routinely found themselves on the "no fly" list.

From the profile on History Commons:

But on October 10, 2002, he makes a surprise return to the US. His name is on a terrorist watch list and he is detained when his plane lands in New York City. Customs agents notify the FBI, but they are told that his name was taken off the watch list just the day before. He is released after only three hours. It has not been explained why he name was taken off the list. Throughout 2002, al-Awlaki is also the subject of an active Customs investigation into money laundering called Operation Greenquest, but he is not arrested for this either, or for the earlier contemplated prostitution charges.

Awlaki's legal problems -- hookers, money laundering -- always went away with astounding rapidity. The Australian, a Murdoch-owned newspaper, once came that close to printing a direct statement that Awlaki worked for American intelligence. During his time in Yemen, while operating under the name Abu Atiq, he seems to have told the authorities all about a gun-running ring he had infiltrated.

There's more, but you now have the gist.

The attack on Awlaki's convoy -- and the later, seemingly inexplicable drone attack on his 16 year-old son -- may have been a cover for getting both man and boy out of Yemen. Or perhaps Awlaki really was killed, but only as a way to shut a mouth which threatened to say things our government did not want uttered. I am willing to entertain both scenarios.

But now we have this white paper. Always keep in mind that this document was written to justify Awlaki's killing. If the true story of that killing remains untold...

...well. What then?