The Pentagon’s former top lawyer said on Wednesday that the death of a 16-year old American in a drone strike in Yemen was effectively an accident, the first time any current or former Obama administration official has made such an admission.

On Wednesday afternoon, Attorney General Eric Holder sent a letter to members of Congress for the first time publicly acknowledging that U.S. drones had killed four American citizens. One of those citizens was Abdulrahman al-Awlaki, the 16 year-old son of radical Muslim cleric Anwar al-Awlaki, who on Wednesday the government also for the first time admitted was killed in a U.S. drone strike for his role in al Qaeda in the Arab Peninsula and alleged participation in attempted terror attacks on the United States.

Jeh Johson, who served as the Department of Defense’s general counsel during President Obama’s first term, appeared on MSNBC last night to discuss Holder’s letter, speaking with host Rachel Maddow. In Holder’s letter, Abdulrahman and two other U.S. citizens are described as not “specifically targeted” in the strikes that took their lives — suggesting that perhaps they were killed in a so-called “signature strike” that targets behavior. But Johnson said he thought Holder’s letter could have been more explicit:

JOHNSON: I think you could remove the word specifically from that sentence.

MADDOW: Not targeted at all?

JOHNSON: Not targeted.

MADDOW: They are effectively saying it was an accident.

JOHNSON: We are effectively saying that they were not targeted as part of those specific operations.

MADDOW: But killed anyway.

JOHNSON: But they were, obviously, killed.

Maddow wondered whether Johnson believed that U.S. culpability meant the family of those killed deserved recourse. “That is a very good question,” Johnson said, “I think you should put that to the Department of Justice.”

Nassar al-Awlaki, the father of Anwar and grandfather Abdulrahman, is in the midst of a lawsuit against the U.S. government, alleging that the killing of his son and grandson was unconstitutional. After yesterday’s revelation, a federal judge asked that government lawyers within the next week file a memo on how Holder’s acknowledgement affects the lawsuit.

Prior to Johnson’s statement, the assumption was that Abdulrahman and his friends were killed in what is known as a “signature strike” or “profile strike.” Under the practice, groups of men between 16-55 who meet a certain profile are often considered legitimate targets, often with the U.S. having no concrete knowledge of their identities. There are indications that the practice will be sharply curtailed moving forward, however, as it seems that the same standards applied to the targeted killing of American citizens will be applied to suspected terrorists writ large.

In a letter to Congress, Attorney General Eric Holder confirmed that a set of rules codifying the administration’s counterterrorism policies, including its targeted killing program, have been completed and President Obama has approved it.

The letter also confirms for the first time that the United States killed four American citizens in drone strikes since President Obama took office in 2009.

But the completion of the Obama administration’s codification of how it conducts targeted killings and other counterterrorism policies — or the “playbook” as it has been called — has much further reaching implications for future U.S. policy. Begun as a project of then-White House Counterterrorism Director John Brennan, and accelerated due to fears of Obama not serving a second term, the playbook was meant to put into writing many of the ad hoc processes the administration had developed to facilitate the targeted killing of suspected terrorists.

A Washington Post article on Brennan from 2012 revealed that the playbook is meant to “cover the selection and approval of targets from the ‘disposition matrix,’ the designation of who should pull the trigger when a killing is warranted, and the legal authorities the administration thinks sanction its actions in Pakistan, Yemen, Somalia and beyond.” The “disposition matrix” is the benign-sounding name for the process used to approve targets for strikes. Far from being limited to drones, these strikes include the use of missiles fired from Naval warships and manned aircraft, and special operations forces.

According to Holder’s letter to Congressional leaders, the playbook has been completed, though it won’t be available to the public anytime soon:

This week the President approved and relevant congressional committees will be notified and briefed on a document that institutionalizes the Administration’s exacting standards and processes for reviewing and approving operations to capture or use lethal force against terrorist targets outside the United States and areas of active hostilities; these standards and processes are already in place or are to be transitioned into place. While that document remains classified, it makes clear that a cornerstone of the Administration’s policy is one of the principles I noted in my speech at Northwester: that lethal force should not be used when it is feasible to capture a terrorist suspect.

Among the changes rumored to be put into place in the playbook is the shifting of authority for agencies to use drones in carrying out lethal strikes. Reports indicate that while the CIA will retain control of the drone program in Pakistan, other theaters will see drones placed under the sole purview of the Department of Defense.

Despite the increased attention they’ve received, the number of drone strikes has reportedly dropped in recent years. President Obama is due to deliver a speech on Thursday at the National Defense University laying out his vision for how counterterrorism goals will be pursued in the second term, including the use of drones and the closure of the military prison at Guantanamo Bay.

Sen. Rand Paul (R-KY) has long demanded a national conversation about President Obama’s claimed power to kill American citizens. On Wednesday, he took a big step towards starting one, using a rare “talking filibuster” to hold up the nomination of John Brennan to head the CIA and deliver an extended critique of the targeted killing of Americans on American soil.

Brennan played a critical role in the development and codification of the Obama Administration’s targeted killing program, so his nomination has become a flashpoint for Paul and others worried about the scope of the powers claimed in it. Publicly released documents, particularly the infamous CIA white paper outlining the legal thinking behind the strike on American citizen Anwar al-Awlaki, have not provided specific guidance on the territorial limits of the Presidential power to kill citizens. A more recent document, submitted to Congress by Attorney General Eric Holder, suggested that under “extraordinary” circumstances, such as Pearl Harbor or 9/11, the president could kill an American citizen on American soil. In testimony before the Senate Judiciary Committee on Wednesday, Holder specifically admitted that killing an American in the United States would be inappropriate and unconstitutional if the individual did not pose an imminent threat.

Throughout his filibuster, Paul repeatedly said that he would be willing to move to a vote on Brennan’s nomination if the Obama administration translated Holder’s reply into a written response and stated that it did not believe that the executive branch could target and kill Americans on American soil in most instances.

Paul acknowledged that it was unlikely that Obama would launch a drone strike against someone sleeping in their bed, but demanded clarification of what criteria the administration had for conducting targeted killing. While he initially questioned the principles behind so-called “signature strikes” against suspected terrorists not currently fighting,” Paul later shifted his focus to whether tactics used overseas could be transferred to American citizens within the U.S.
Read more

The United States District Court for the Southern District of New York has rejected a Freedom of Information Act (FOIA) request to obtain disclosure of a set of memos that describe the use of targeted killings in combating terrorism.

The American Civil Liberties Union and the New York Times intended to secure the release of the criteria used to determine who is and is not eligible to be targeted in the Obama administration’s drone strike program after being rejected by the administration in June.

But in her ruling, Judge Colleen McMahon found that though she agrees that debate on the usage of drone strikes should be made in the open, she is unable to force the government to turn over the documents under FOIA:

However, this Court is constrained by law, and under the law, I can only conclude that the Government has not violated FOIA by refusing to turn over the documents sought in the FOIA requests, and so cannot be compelled by this court of law to explain in detail the reasons why its actions do not violate the Constitution and the laws of the United States. The Alice-in-Wonderland [sic] nature of this pronouncement is not lost on me; but after careful and extensive consideration, I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules — a veritable Catch-22. I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reason for their conclusion a secret.

White House top counterterrorism adviser John Brennan said the program, part of which was first revealed in May 2012, has a very strict set of limits on who is targeted for drone strikes. However, those limits have never been clearly put forward in public, as the CIA’s drone strikes program remains classified.

In putting forward their suits, the ACLU and New York Times were focused on determining the decision-making process behind the choice to target and kill American-born cleric Anwar al-Awlaki. Al-Awlaki, a leading figure in al Qaeda in the Arabian Peninsula, was killed in a drone strike in Yemen in 2011. Since then, policymakers and scholars have debated over the legality of the strike that killed al-Awlaki.

The Republican candidates for president haven’t talked about foreign policy too much. Given that economic issues have been dominating the campaign narrative, it’s perhaps understandable that national security is largely absent from the debate. But also, the Republicans don’t really have much to criticize. Indeed, foreign policy has received scant attention during the televised GOP presidential debates. But that’s about to change. This Saturday, Nov. 12, CBS News and the National Journal will host the first debate focused solely on foreign policy at Wofford College in Spartanburg, SC. (CNN, Heritage and AEI will host another one on Nov. 22).

So what are the candidates likely to say? When they do talk national security, it’s usually trite and unfounded attacks on President Obama like he has made America weak, thrown Israel “under the bus” or goes around the world apologizing for America. Mitt Romney will probably tell voters that Obama thinks “there is nothing unique about the United States.” Rick Perry will most likely sound off about how “the world has never been as dangerous” because of Obama. Look for Newt Gingrich to oppose whatever the president supports, even if that means the former speaker betrays a position he held as little as 13 seconds prior. And as for Herman Cain, he’s still trying to figure out whether China has nuclear weapons, let alone tackle the president’s foreign policy positions.

Seeing that these GOP candidates aren’t likely to accurately represent the president’s foreign policy during these debates, ThinkProgress has released a new report — “Obama’s Foreign Policy Successes” — detailing key foreign policy victories during the Obama administration, from killing Osama bin Laden and ushering Middle East democracy to ending the war in Iraq and reducing nuclear weapons stockpiles. Read the full report here.

President Obama and his administration have received widespread, bipartisan criticism for the drone strike last week that killed al Qaeda propagandist Anwar al-Awlaki, particularly because Awlaki was an American citizen at the time of his death. While analysts have argued whether Awlaki’s killing was legal because of that fact (CAP’s Ken Gude argues the killing “falls under the scope of the law”), the Justice Department reportedly authorized the killing in a secret memo, the contents of which have yet to be released.

But as ThinkProgress’s Matt Yglesias wrote last week, what’s missing from discussion of the Awlaki case “is the question of why he was still a U.S. citizen up to the day he died.” Had he been fighting for a foreign state’s armed forces or swore allegiance to an enemy state, Awlaki would have been stripped of his American citizenship. “The correct way out of this,” Yglesias argued, “seems to me to amend the relevant section of the Immigration and Nationality Act such that swearing allegiance to al Qaeda can count as an expatriating act in the same way that defecting to North Korea would.”

This is exactly what Rep. Charlie Dent (R-PA) tried to do last year. Dent introduced a bill that would have stripped Awlaki of his American citizenship, arguing that he “voluntarily renounced his citizenship by recruiting terrorists to engage in violent acts of terrorism against United States and by advocating the violent overthrow of the American government.” While the measure failed to get out of committee, Dent announced last week that in intends to introduce “similar” legislation:

Last year, I introduced a measure encouraging the U.S. Department of State to consider al-Awlaki’s actions against America as a voluntary relinquishing of his citizenship. Shortly, I will be reintroducing similar legislation to allow the Department to investigate the actions of American citizens who take up arms against the U.S. and make an administrative determination if the individual intended to renounce his or her citizenship. Following that determination, the individual can challenge the findings in federal court.

In the event that Dent’s legislation, or something similar, passes, “[t]hen you would need a quasi-judicial process through which an evidentiary determination could be made that someone has, in fact, expatriated himself,” Yglesias writes, “It’s less fun than ad hoc determinations by the DOD and the White House staff, but it would sit a heck of a lot easier with me.” Dent’s office did not respond to a request for comment on his bill.

For newly-anointed GOP presidential frontrunner Herman Cain, foreign policy is not a strong suit. He was clueless about a key question in Israel-Palestinian conflict, bumbled a key strategic policy point with China, and strongly believes that Iraq should pay the U.S. back for invading their country.

Thus, it’s not entirely surprising that he couldn’t quite figure out his position on al Qaeda operative Anwar al-Awlaki. The pizza mogul was originally of the mind that al-Awlaki, as an American citizen, “should be tried in our courts.” When asked if it would be legal for the Obama administration to issue a “kill order” for al-Awlaki, Cain replied, “In his case, no, because he’s an American citizen.” But after the administration announced the death of the wanted terrorist, Cain tried to wiggle out of his earlier position by offering two — We should try him in court but we don’t want him alive either:

But now that al-Awlaki has been killed by a drone missile, the 2012 GOP presidential candidate is “pleased that we have one less al Qaeda member that’s threatening us,” according to campaign spokesman JD Gordon.

When pressed on whether Cain’s feelings represent a departure from his earlier views, that al-Awlaki was an American citizen and deserved a trial, Gordon said, “It would be better to try him in court (but) if that’s not feasible, we don’t want him out there.”

Perhaps feeling the heat from the spotlight, Cain has been walking back quite a few of his statements. First calling Rick Perry’s racist rock “insensitive to a lot of black people in this country,” Cain immediately declared “I don’t care” about the slur the next day.