Hijacked Jets Destroy Twin Towers and Hit Pentagon
By SERGE SCHMEMANN
Published: September 12, 2001 NY Times
Hijackers rammed jetliners into each of New York's
World Trade Center towers yesterday, toppling both in a hellish storm of
ash, glass, smoke and leaping victims, while a third jetliner crashed
into the Pentagon in Virginia. There was no official count, but
President Bush said thousands had perished, and in the immediate
aftermath the calamity was already being ranked the worst and most
audacious terror attack in American history.
The attacks seemed carefully coordinated. The
hijacked planes were all en route to California, and therefore gorged
with fuel, and their departures were spaced within an hour and 40
minutes. The first, American Airlines Flight 11, a Boeing 767 out of
Boston for Los Angeles, crashed into the north tower at 8:48 a.m.
Eighteen minutes later, United Airlines Flight 175, also headed from
Boston to Los Angeles, plowed into the south tower.
Then an American Airlines Boeing 757, Flight 77,
left Washington's Dulles International Airport bound for Los Angeles,
but instead hit the western part of the Pentagon, the military
headquarters where 24,000 people work, at 9:40 a.m. Finally, United
Airlines Flight 93, a Boeing 757 flying from Newark to San Francisco,
crashed near Pittsburgh, raising the possibility that its hijackers had
failed in whatever their mission was.
There were indications that the hijackers on at
least two of the planes were armed with knives. Attorney General John
Ashcroft told reporters in the evening that the suspects on Flight 11
were armed that way. And Barbara Olson, a television commentator who was
traveling on American Flight 77, managed to reach her husband,
Solicitor General Theodore Olson, by cell phone and to tell him that the
hijackers were armed with knives and a box cutter.
In all, 266 people perished in the four planes and
several score more were known dead elsewhere. Numerous firefighters,
police officers and other rescue workers who responded to the initial
disaster in Lower Manhattan were killed or injured when the buildings
collapsed. Hundreds were treated for cuts, broken bones, burns and smoke
inhalation.
But the real carnage was concealed for now by the
twisted, smoking, ash-choked carcasses of the twin towers, in which
thousands of people used to work on a weekday. The collapse of the
towers caused another World Trade Center building to fall 10 hours
later, and several other buildings in the area were damaged or aflame.
''I have a sense it's a horrendous number of lives
lost,'' said Mayor Rudolph W. Giuliani. ''Right now we have to focus on
saving as many lives as possible.''
The mayor warned that ''the numbers are going to be very, very high.''
He added that the medical examiner's office will be
ready ''to deal with thousands and thousands of bodies if they have
to.''
For hours after the attacks, rescuers were stymied
by other buildings that threatened to topple. But by 11 p.m., rescuers
had been able to begin serious efforts to locate and remove survivors.
Mr. Giuliani said two Port Authority police officers had been pulled
from the ruins, and he said hope existed that more people could be
saved.
Earlier, police officer volunteers using dogs had
found four bodies in the smoldering, stories-high pile of rubble where
the towers had once stood and had taken them to a makeshift morgue in
the lobby of an office building at Vesey and West Streets.
Within an hour of the attacks, the United States was
on a war footing. The military was put on the highest state of alert,
National Guard units were called out in Washington and New York and two
aircraft carriers were dispatched to New York harbor. President Bush
remained aloft in Air Force One, following a secretive route and making
only brief stopovers at Air Force bases in Louisiana and Nebraska before
finally setting down in Washington at 7 p.m. His wife and daughters
were evacuated to a secure, unidentified location.
The White House, the Pentagon and the Capitol were
evacuated, except for the Situation Room in the White House where Vice
President Cheney remained in charge, giving the eerie impression of a
national capital virtually stripped of its key institutions.
Nobody immediately claimed responsibility for the
attacks. But the scale and sophistication of the operation, the
extraordinary planning required for concerted hijackings by terrorists
who had to be familiar with modern jetliners, and the history of major
attacks on American targets in recent years led many officials and
experts to point to Osama bin Laden, the Islamic militant believed to
operate out of Afghanistan. Afghanistan's hard-line Taliban rulers
rejected such suggestions, but officials took that as a defensive
measure.
Senator Orrin Hatch, Republican of Utah, told
reporters that the United States had some evidence that people
associated with Mr. bin Laden had sent out messages ''actually saying
over the airwaves, private airwaves at that, that they had hit two
targets.''
In the evening, explosions were reported in Kabul,
the Afghan capital. But officials at the Pentagon denied that the United
States had attacked that city.
President Bush, facing his first major crisis in
office, vowed that the United States would hunt down and punish those
responsible for the ''evil, despicable acts of terror'' which, he said,
took thousands of American lives. He said the United States would make
no distinction between those who carried out the hijackings and those
who harbored and supported them
''These acts of mass murder were intended to
frighten our nation into chaos and retreat, but they have failed,'' a
somber president told the nation in an address from the Oval Office
shortly after 8:30 p.m.
''The search is under way for those who are behind
these evil acts,'' Mr. Bush said. ''We will make no distinction between
the terrorists who committed these acts and those who harbor them.''
The repercussions of the attack swiftly spread
across the nation. Air traffic across the United States was halted at
least until today and international flights were diverted to Canada.
Borders with Canada and Mexico were closed. Most federal buildings
across the country were shut down. Major skyscrapers and a variety of
other sites, ranging from Disney theme parks to the Golden Gate Bridge
and United Nations headquarters in New York, were evacuated.
But it was in New York that the calamity achieved
levels of horror and destruction known only in war.
The largest city in the United States, the financial
capital of the world, was virtually closed down. Transportation into
Manhattan was halted, as was much of public transport within the city.
Parts of Lower Manhattan were left without power, compelling Mayor
Giuliani to order Battery Park City to be evacuated. Major stock
exchanges closed. Primary elections for mayor and other city offices
were cancelled. Thousands of workers, released from their offices in
Lower Manhattan but with no way to get home except by foot, set off in
vast streams, down the avenues and across the bridges under a beautiful,
clear sky, accompanied by the unceasing serenade of sirens.
While doctors and nurses at hospitals across the
city tended to hundreds of damaged people, a disquieting sense grew
throughout the day at other triage centers and emergency rooms that
there would, actually, be less work: the morgues were going to be
busiest.
A sense of shock, grief and solidarity spread
rapidly through the city. There was the expectation that friends and
relatives would be revealed among the victims. Schools prepared to let
students stay overnight if they could not get home, or if it emerged
that there was no one to go home to.
There was also the fear that it was not over: stores
reported a run on basic goods. And there was the urge to help.
Thousands of New Yorkers lined up outside hospitals to donate blood.
As in great crises past, people exchanged stories of where they were when they heard the news.
''There is a controlled professionalism, but also a
sense of shock,'' said Mark G. Ackerman, an official at the St. Vincent
Medical Center. ''Obviously New York and all of us have experienced a
trauma that is unparalleled.''
''I invite New Yorkers to join in prayer,'' said
Cardinal Edward M. Egan as he emerged from the emergency room of St.
Vincent's in blue hospital garb. ''This is a tragedy that this great
city can handle. I am amazed at the goodness of our police and our
firefighters and our hospital people.''
All communications creaked under the load of the
sudden emergency. Mobile phones became all but useless, intercity lines
were clogged and major Internet servers reported overloads.
The area around the World Trade Center resembled a
desert after a terrible sandstorm. Parts of buildings, crushed vehicles
and the shoes, purses, umbrellas and baby carriages of those who fled
lay covered with thick, gray ash, through which weeping people wandered
in search of safety, each with a story of pure horror.
Imez Graham, 40, and Dee Howard, 37, both of whom
worked on the 61st floor of the north tower, were walking up Chambers
Street, covered in soot to their gracefully woven dreadlocks caked in
soot, barefoot. They had spent an hour walking down the stairs after the
first explosion. They were taken to an ambulance, when the building
collapsed. They jumped out and began to walk home. ''They need me; I've
got to get home,'' Ms. Howard said. Where was that? ''As far away from
here as possible.''
In Chinatown, a woman offered them a pair of dainty
Chinese sandals. Nearby, construction workers offered to hose the soot
off passing people.
The twin pillars of the World Trade Center were
among the best known landmarks in New York, 110-floor unadorned blocks
that dominated any approach to Manhattan. It is probable that renown,
and the thousands of people who normally work there each weekday, that
led Islamic militants to target the towers for destruction already in
1993, then by parking vans loaded with explosives in the basement.
There is no way to know how many people were at work
shortly before 9 a.m. when the first jetliners sliced into the north
tower, also known as 1 World Trade Center. CNN and other television
networks were quick to focus their cameras on the disaster, enabling
untold numbers of viewers to witness the second jetliner as it banked
into the south tower 18 minutes later, blowing a cloud of flame and
debris out the other side.
Even more viewers were tuned in by 9:50 a.m. when
the south tower suddenly vanished in swirling billows of ash, collapsing
in on itself. Then at 10:29 a.m. the north tower followed. A choking
grey cloud billowed out, blocking out the bright sunshine and chasing
thousands of panicked workers through the canyons of Lower Manhattan.
Plumes continued to rise high over the city late into the night.
''The screaming was just horrendous,'' recalled
Carol Webster, an official of the Nyack College Alliance Seminary who
had just emerged from the PATH trains when the carnage began. ''Every
time there would be another explosion, people would start screaming and
thronging again.''
The scenes of horror were indelible; people who left
from the broken towers, people who fought for pay phones, people white
with soot and red with blood. ''We saw people jumping from the tower as
the fire was going on,'' said Steve Baker, 27. ''The sky went black, all
this stuff came onto us, we ran.''
The timing was murderous for the armada of rescue
vehicles that gathered after the planes crashed, and were caught under
the collapsing buildings. Many rescue workers were reported killed or
injured, and the anticipation that Building 7 would soon follow led to a
suspension of operatios. The firefighters union said that at least 200
of its members had died.
Mayor Giuliani, along with the police and fire
commissioners and the director of emergency management, was forced to
abandon a temporary command center at 75 Barclay Street, a block from
the World Trade Center, and the mayor emerged with his gray suit covered
with ash.
In the evening, officials reported that buildings 5
and 7 of the World Trade Center had also collapsed, and buildings all
around the complex had their windows blown out. The Rector Street subway
station collapsed, and the walkway at West Street was gone.
World leaders hastened to condemn the attacks,
including Palestinian leader Yasir Arafat and Libya's Muammar
el-Qaddafi.
European leaders began quiet discussions last night
about how they might assist the United States in striking back, and
Russia's president, Vladimir Putin, joined in expressing support for a
retaliatory strike.
But in the West Bank city of Nablus, rejoicing
Palestinians, who have been locked in a bitter struggle with Israel for
almost a year, went into the streets to chant, ''God is great!'' and to
distribute candies to celebrate the attacks.
Many governments took their own precautions against
attack. Israel evacuated many of its embassies abroad, and non-essential
staffers at NATO headquarters in Brussels were ordered home.
In Afghanistan, the ruling Taliban argued that Mr.
bin Laden could not have been responsible for the attacks. ''What
happened in the United States was not a job of ordinary people,'' an
official, Abdul Hai Mutmaen, told Reuters. ''It could have been the work
of governments. Osama bin Laden cannot do this work.''
Apart from the major question of who was
responsible, a host of other questions were certain to be at the
forefront in coming days and weeks. One was the timing -- why Sept. 11?
The date seemed to have no obvious meaning. One of
the men convicted in the bombing of the United States Embassy in Nairobi
in 1998, in which 213 were killed, was originally scheduled for
sentencing on Sept. 12. But the sentencing of the man, Mohamed Rasheed
Daoud al-'Owhali, had been put off to mid-October.
It was possible that Mr. Al-'Owhali and the others
convicted with him were close witnesses to the bombings, since terror
suspects typically await sentencing at the Metropolitan Correctional
Center in Lower Manhattan. Officials have not confirmed that the
convicted Nairobi bombers are there.
Many questions would also be raised about how
hijackers managed to seize four jets with all the modern safeguards in
place. Initial information was sketchy, although a passenger on the
United Airlines jetliner that crashed in Pennsylvania managed to make a
cellular phone call from the toilet. ''We are being hijacked, we are
being hijacked,'' the man shouted at 9:58 a.m. As he was speaking, the
plane crashed about eight miles east of Jennerstown, killing all 45
aboard.
For all the questions, what was clear was that the
World Trade Center would take its place among the great calamities of
American history, a day of infamy like Pearl Harbor, Oklahoma City,
Lockerbie.
The very absence of the towers would become a symbol
after their domination of the New York skyline for 25 years. Though
initial reviews were mixed when the towers were dedicated in 1976, they
came into their own as landmarks with passing years. King Kong climbed
one tower in a remake of the movie classic.
In April, the Port Authority of New York and New
Jersey, which ran the World Trade Center through its first 30 years,
leased the complex for $3.2 billion to a group led by Larry A.
Silverstein, a developer, and Westfield America Inc.
In recent years, the complex has filled up with
tenants and revenues have increased. In addition to the towers --
designed by the architect Minoru Yamasaki, each 1,350 feet tall -- the
complex included four other buildings, two of which were also gone, for a
total of 12 million square feet of rentable office space.
Photos: AMERICAN TARGETS -- A ball of fire exploded
outward after the second of two jetliners slammed into the World Trade
Center; less than two hours later, both of the 110-story towers were
gone. Hijackers crashed a third airliner into the Pentagon, setting off a
huge explosion and fire. (Paul Hosefros/The New York Times); (Steve
Ludlum); (Justin Lane for The New York Times); (Ruth Fremsen/The New
York Times); SECOND PLANE -- United Airlines Flight 175 nearing the
trade center's south tower. (Kelly Guenther for The New York Times)(pg.
A1); Firefighters work amid the rubble of Building 7 after the collapse
of the trade center towers. Many emergency vehicles were destroyed as
well. (Ting-Li Wang/The New York Times)(pg. A15); Two women reacting as
the first World Trade Center tower crumbled to the ground. Its twin, and
two other buildings, were to follow. (Angel Franco/The New York
Times)(pg. A14) Chart: ''Morning Of Mayhem'' By 8 a.m. yesterday
morning, a chain of events had been set in motion that, two hours later,
would erase the World Trade Center towers from the New York City
skyline, rip open the west wall of the Pentagon, drop four planes from
the sky and kill an uncounted number of people. Following is a look at
how events unfolded. A.M. 7:55 -- American Airlines Flight 11
leaves Boston bound for Los Angeles. 8:00 -- United Airlines Flight
93 departs Newark bound for San Francisco. 8:10 -- American Airlines
Flight 77 departs Washington bound for Los Angeles. 8:15 -- United
Airlines Flight 175 departs Boston bound for Los Angeles. 8:48 --
Flight 11 hits the north tower of the World Trade Center. 9:00 --
President Bush, who is in Sarasota, Fla., is informed of the attacks.
9:06 -- Flight 175 strikes the south tower of the World Trade Center.
9:15 -- Mr. Bush makes statement condemning terrorist attacks. 9:17
-- The F.A.A. shuts down all New York City airports. 9:21 -- All
bridges and tunnels into Manhattan are closed. 9:40 -- The F.A.A.
grounds all flights. 9:58 -- South tower of the World Trade Center
collapses. 10:00 -- President Bush leaves Sarasota. 10:00 -- White
House is evacuated. 10:10 -- A portion of the Pentagon collapses.
10:10 -- Flight 93 crashes in Somerset County, 80 miles southeast of
Pittsburgh. 10:25 -- All incoming international flights are diverted
to Canada. 10:28 -- North tower of the World Trade Center collapses.
10:50 -- New York City primary elections are canceled. 11:02 --
Mayor Rudolph W. Giuliani orders an evacuation of Manhattan south of
Canal Street. 11:04 -- U.N. head-quarters in New York is fully
evacuated. P.M. 12:04 -- Los Angeles International airport, the
original destination of three of the flights, is closed and evacuated.
12:15 -- San Francisco International airport is evacuated and closed.
1:04 -- President Bush speaks from Barksdale Air Force Base in
Louisiana. 1:44 -- Pentagon announces that warships and aircraft
carriers will take up positions in the New York and Washington areas.
(Sources: Various wire reports; Department of Defense; Flytecomm;
Flight Explorer) (pgs. A14, A15) Maps of the New York City,
Washington, D.C., Pennsylvania and the east coast highlight routes of
the planes and areas of the damaged buildings.
The NY Times has a cool feature where you can click on any artical and it takes you to a print version fromtheir archives.
There is much more inside this edition that can be seen if you have an original newspaper copy.
The following pictures are from my personal copy...
It is interesting to see that Leslie Robertson Associates didn't want to be interviewed until they checked with the NSA, FBI, etc. This would be, of course, to make sure that they would be on the same page as the secretive government of the Bush administration.
The NY Times already had diagrams of collapse causes
How in the world did they get all of this information and have it ready for publication the next morning? Isn't this basically the elements of the official story that is parroted by the powers that be today?
Progressive Collapse
Many people don't understand this, while video evidence plainly shows that the building did not, as named, "collapse", but disintegrated from the top down in a "progressive collapse". The NY Times plainly shows this, but omits any explanation for explosive activity which has come to light by the examination of evidence at Ground Zero.
CGI Computer Generated Image?
From the NY Times 911 morning edition
Flight 175 impact with WTC 2 by photographer Robert Clark from 911 pictorial book "The Giants That Defied The Sky' copyright 2002.
Also from the 911 pictorial book Image by Robert Clark
Note that the plane shown here is dark gray devoid of color or light and shadow, while the rest of the photo shows plenty of detail.
The following courtesy of 911conspiracy.tv
click picture to enlarge
Robert Clark — professional photographer
The photos were shot from the roof of 475 Kent Ave., according to Clark in a phone interview by Jeff Hill. (EDIT: previously this page said "65 S 11th St, Williamsburg, according to researcher YougeneDebs." Coincidentally, UA175 videographer Chris Hopewell (aka Tinacart) has been pinpointed at the same block (building?). (40d 42m 27.90s N, 73d 58m 00.88s W. Ground elevation is 29ft; 6 story building) Again coincidentally, one of three people to capture the first plane "on film" - Wolfgang Staehle - was located also at 475 Kent Ave.
"Robert Clark is a freelance photographer based in New York City and works with the world's leading magazines and major publishing houses, as well as on cutting edge advertising campaigns.
His work has won numerous international awards, graced the covers of several magazines, including more than a dozen covers of National Geographic and 40 book covers. His work has appeared in numerous publications, including Time, Sports Illustrated, French Geo, Vanity Fair, Stern, Der Spiegel.
Clark witnessed the attack on the World Trade Center from his rooftop in the Williamsburg section of Brooklyn. His photos captured the second plane hitting the tower and his four picture series was published in magazines around the world. His coverage on September 11th was recognized at the World Press Awards in Amsterdam. He received a National Magazine Award for Best Essay in his National Geographic cover article, 'Was Darwin Wrong?'
Currently involved with a variety of projects, Clark continues his association with National Geographic as well as a book documenting the birth of the science of evolution. He lives in Brooklyn, New York with his wife Lai Ling."
So I guess that the pod could have been added after the fact as well as a newer and more improved CGI. Or did the original image show a real plane and did it have pod or not?
Martin Indyk, an Australian-trained academic and former deputy director of research for the American Israel Public Affairs Committee (AIPAC), helped found WINEP in 1985. In 1982, following his position as Australian deputy director of current intelligence in the Middle East, Indyk started to set up a research department for AIPAC. Because of his affiliation with AIPAC, Indyk felt his research wasn't being taken seriously and so started WINEP to convey an image that was friendly to Israel but doing credible research on the Middle East in a realistic and balanced way" Indyk would go on to become an American citizen, U.S. diplomat and its ambassador to Israel.
Please note: IPS Right Web neither represents nor endorses any of the individuals or groups profiled on this site.
The Washington Institute for Near East Policy (WINEP), a spin-off the American Israel Public Affairs Committee, is an influential beltway think tank whose members have advocated a host of hawkish, “pro-Israel” policies over the years. It is considered a core member of the “Israel lobby,” a constellation of policy shops and advocacy groups devoted to pushing an Israel-centric U.S. agenda in the Middle East. Many of WINEP’s current and former scholars have been closely associated with neoconservatism, and the organization has generally been supportive of the “war on terror” policies pushed by representatives of groups like the American Enterprise Institute (AEI) and the Foundation for Defense of Democracies.
Iran and Syria
Iran and Syria have long been at the center of WINEP’s work, with the group’s scholars promoting a host of aggressive U.S. policies towards these countries, which often dovetail with the goals of other hawkish “pro-Israel” campaigns.
An exemplary WINEP event was its September 2012 briefing advocating U.S.-Israeli cooperation to prevent “an Iranian nuclear breakout.” At the briefing, WINEP research director Patrick Clawson raised eyebrows by appearing to suggest that the United States manufacture a situation that would require Washington to take military action against Iran in the event that negotiations over its nuclear program failed. “I frankly think that crisis initiation is really tough,” Clawson said. “And it’s very hard for me to see how the … president can get us to war with Iran.” He then went on to recount a series of incidents in American history—like the Gulf of Tonkin incident and the attack on Pearl Harbor—that gave U.S. presidents the justification needed to go to war. He ended by saying, with a note of sarcasm in his voice, “So, if in fact the Iranians aren’t going to compromise, it would be best if somebody else started the war.”
Observers noted that Clawson, instead of debating the merits of military intervention or its potential impact, narrowly focused on drumming up ways to force the United States to intervene. Quipped retired colonel and former intelligence officer Patrick Lang: “Isn't this kind of thing somehow a violation of federal law?”
WINEP managing director Michael Singh weighed in on the nuclear standoff between the United States and Iran in an October 2012 op-ed for the Washington Post. Echoing Israeli Prime Minister Benjamin Netanyahu’s 2012 speech to the United Nations—in which the Likud Party prime minister called for the body to set a “red line” that it would not allow Iran’s alleged nuclear weapons program to cross—Singh called for the Obama administration to revise its own “red lines” on Iran, arguing that merely opposing Iran’s acquisition of a nuclear weapon was inadequate. “It is up to the Obama administration to suggest a red line that better meets U.S. objectives as well as the criteria of enforceability and credibility,” Singh wrote. “And when it comes to credibility, the United States has undermined itself on multiple fronts — by rewarding Iranian defiance with better offers at the negotiating table, by enforcing sanctions reluctantly and by allowing senior officials to speak out publicly against the military option that the president insists remains ‘on the table.’”
TRANSCRIPT: On the morning of September 11, 2001, 19 men armed with boxcutters directed by a man on dialysis in a cave fortress halfway around the world using a satellite phone
and a laptop directed the most sophisticated penetration of the most
heavily-defended airspace in the world, overpowering the passengers and
the military combat-trained pilots
on 4 commercial aircraft before flying those planes wildly off course
for over an hour without being molested by a single fighter interceptor.
These 19 hijackers, devout religious fundamentalists who liked to drink alcohol, snort cocaine, and live with pink-haired strippers, managed to knock down 3 buildings with 2 planes in New York, while in Washington a pilot who couldn’t handle a single engine Cessna
was able to fly a 757 in an 8,000 foot descending 270 degree corskscrew
turn to come exactly level with the ground, hitting the Pentagon in the budget analyst office where DoD staffers were working on the mystery of the 2.3 trillion dollars that Defense Secretary Donald Rumsfeld had announced “missing” from the Pentagon’s coffers in a press conference the day before, on September 10, 2001.
Luckily, the news anchors knew who did it within minutes, the pundits knew within hours, the Administration knew within the day, and the evidence literally fell into the FBI’s lap. But for some reason a bunch of crazy conspiracy theorists demanded an investigation into the greatest attack on American soil in history.
The investigation was delayed, underfunded, set up to fail, a conflict of interest and a cover up from start to finish. It was based on testimony extracted through torture, the records of which were destroyed. It failed to mention the existence of WTC7, Able Danger, Ptech, Sibel Edmonds, OBL and the CIA, and the drills
of hijacked aircraft being flown into buildings that were being
simulated at the precise same time that those events were actually
happening. It was lied to by the Pentagon, the CIA, the Bush Administration and as for Bush and Cheney…well, no one knows what they told it because they testified in secret, off the record, not under oath and behind closed doors. It didn’t bother to look at who funded the attacks because that question is of “little practical significance“. Still, the 9/11 Commission did brilliantly, answering all of the questions the public had (except most of the victims’ family members’ questions)
and pinned blame on all the people responsible (although no one so much
as lost their job), determining the attacks were “a failure of
imagination” because “I don’t think anyone could envision flying
airplanes into buildings ” except the Pentagon and FEMA and NORAD and the NRO.
The DIA destroyed 2.5 TB of data on Able Danger, but that’s OK because it probably wasn’t important.
The SEC destroyed their records
on the investigation into the insider trading before the attacks, but
that’s OK because destroying the records of the largest investigation in
SEC history is just part of routine record keeping.
NIST has classified the data
that they used for their model of WTC7′s collapse, but that’s OK
because knowing how they made their model of that collapse would “jeopardize public safety“.
The FBI has argued
that all material related to their investigation of 9/11 should be kept
secret from the public, but that’s OK because the FBI probably has nothing to hide. This man
never existed, nor is anything he had to say worthy of your attention,
and if you say otherwise you are a paranoid conspiracy theorist and
deserve to be shunned by all of humanity. Likewise him, him, him, and her. (and her and her and him).
Osama Bin Laden lived in a cave fortress in the hills of Afghanistan, but somehow got away. Then he was hiding out in Tora Bora but somehow got away. Then he lived in Abottabad for years, taunting the most comprehensive intelligence dragnet
employing the most sophisticated technology in the history of the world
for 10 years, releasing video after video with complete impunity (and
getting younger and younger as he did so), before finally being found in
a daring SEAL team raid which wasn’t recorded on video, in which he didn’t resist or use his wife as a human shield,
and in which these crack special forces operatives panicked and killed
this unarmed man, supposedly the best source of intelligence about those
dastardly terrorists on the planet. Then they dumped his body in the
ocean before telling anyone about it. Then a couple dozen of that team’s
members died in a helicopter crash in Afghanistan.
This is the story of 9/11, brought to you by the media which told you the hard truths about JFK and incubator babies and mobile production facilities and the rescue of Jessica Lynch.
If you have any questions about this story…you are a batshit,
paranoid, tinfoil, dog-abusing baby-hater and will be reviled by
everyone. If you love your country and/or freedom, happiness, rainbows,
rock and roll, puppy dogs, apple pie and your grandma, you will never
ever express doubts about any part of this story to anyone. Ever.
This has been a public service announcement by: the Friends of the FBI, CIA, NSA, DIA, SEC, MSM, White House, NIST, and the 9/11 Commission. Because Ignorance is Strength.
"Information Clearing House" - The pervasive news surrounding the confirmation hearing of John Brennan, Obama’s nominee for CIA director, is paralleled by another, related story that has been largely ignored by the U.S. media. That is the story of the man called Abu Zubaydah, whose alleged torture testimony, obtained by the CIA while Brennan was the head of the agency’s Terrorist Threat Center, built the foundation for the official account of 9/11. This week I spoke to Lee Hamilton, former vice-chairman of the 9/11 Commission, about the serious problems that the government’s new stance on Zubaydah creates for the 9/11 Commission Report.
As stated in my last article on the subject, Zubaydah is at the center of an unraveling of the official account of the 9/11 attacks.[1] His extensive torture at the hands of the CIA during Brennan’s tenure, which included at least 83 water-boarding sessions, hanging the man naked from the ceiling, slamming him against a concrete wall, and other atrocious experimental techniques, was said to produce valuable evidence about al Qaeda. However, the government now claims that Zubaydah was never a member or associate of al Qaeda and therefore he could not have known any of the information that the 9/11 Commission attributed to him.
From the start of our conversation, Hamilton told me that he was having trouble remembering Zubaydah. That was odd considering that an article he and Thomas Kean wrote for the New York Times in 2008, describing how the CIA obstructed the 9/11 investigation, referred several times to Zubaydah specifically.[2] The article claimed that “Beginning in June 2003, we requested all reports of intelligence information on these broad topics that had been gleaned from the interrogations of 118 named individuals, including both Abu Zubaydah and Abd al Rahim al-Nashiri, two senior Qaeda operatives.” Kean and Hamilton further wrote that, “in October 2003, we sent another wave of questions to the C.I.A.’s general counsel. One set posed dozens of specific questions about the reports, including those about Abu Zubaydah.”
Read more...IformationClearingHouse
Following is the transcript of President Bush's speech on terrorism from the White House, as provided by CQ Transcriptions, Inc.
Thank you. Thanks for the warm welcome. Welcome to the White House.
Mr. Vice President, Secretary Rice, Attorney General Gonzales, Ambassador Negroponte, General Hayden, members of the United States Congress, families who lost loved ones in the terrorist attacks on our nation, my fellow citizens, thanks for coming.
On the morning of September the 11th, 2001, our nation awoke to a nightmare attack. Nineteen men armed with box cutters took control of airplanes and turned them into missiles. They used them to kill nearly 3,000 innocent people.
We watched the twin towers collapse before our eyes, and it became instantly clear that we'd entered a new world and a dangerous new war.
Congressman Alan Grayson personally delivered the "Cancel the Sequester" petition to Senator John Boehner's office to day.
Here is a repost of a post I made in February, 2009
Power Hitter: Rookie Congressman Alan Grayson
Rep. Alan Grayson asked Citigroup CEO Vikram Pandit about the terms of the government assistance his firm received, and read comments from several angry constituents. He is one of the more Progressive Democrats on the Obama team and should prove to be a real asset, especially on issues of accountability.
Grayson also has a record of combatting war protiteering and waste concerning the Defence Industries, as he points out, "the money we have thrown away on war profiteers could go a long way on the domestic front".
Because of his track record suing defense contractors'>, Grayson is completely uninterested and unintimidated by ridiculous arguments about secrecy and national security. He thinks that war crimes have been committed, that people need to be put in prison, and that we absolutely cannot let bygones be bygones with the 2000-2008 era.
I really like this guy. Here he is defending Obama from the attacks of right wing media spin, as Rush Limpballs gets a perspective from the other side of the mirror.
"Rush Limbaugh is a has-been hypocrite loser, who craves attention,His right-wing lunacy sounds like Mikhail Gorbachev, extolling the virtues of communism. Limbaugh actually was more lucid when he was a drug addict. If America ever did 1 percent of what he wanted us to do, then we'd all need pain killers."
February 11th, 2013 by Steven Aftergood
Updated below
Late Friday afternoon, the Department of Justice released an official copy of its White Paper on lethal targeting of Americans to Freedom of Information Act requesters, including FAS and Truthout.org, several days after it had been leaked to the press.
The official version appears to be identical to the document posted by NBC News,
except that it contains a notation on the first page stating “Draft
November 8, 2011.” (It also lacks the heavy-handed NBC watermark.)
“The Department has determined that the document responsive to your
request is appropriate for release as a matter of agency discretion,” wrote Melanie Ann Pustay, director of the Office of Information Policy at the Department of Justice.
This is a surprising statement, because as recently as two or three weeks earlier, the Department had said exactly the opposite.
“The document is protected by the deliberative process privilege, and
is not appropriate for discretionary release at this time,” wrote Paul
Colborn of the DoJ Office of Legal Counsel in a January 23, 2013 denial letter to the New York Times.
What changed in the interim? Obviously, the fact that the document
leaked — and had already been read by most people who cared to do so —
altered DoJ’s calculation. The decision to cease withholding the
document in light of its public availability displays some minimal
capacity for reality-testing. To continue to insist that the document
was protected and exempt from release would have been too absurd.
But the Freedom of Information Act process is supposed to meet a
higher standard than “not absurd,” and in this case it failed to do so.
According to a FOIA policy statement
issued by Attorney General Eric Holder in 2009, “an agency should not
withhold information simply because it may do so legally. I strongly
encourage agencies to make discretionary disclosures of information. An
agency should not withhold records merely because it can demonstrate, as
a technical matter, that the records fall within the scope of a FOIA
exemption.”
DEPARTMENT OF JUSTICE WHITE PAPER Lawfulness of a Lethal Operation Directed Against a U.S. Citizen
Who Is a Senior Operational Leader of Al-Qa'ida or An Associated Force
This white paper sets forth a legal framework for considering the
circumstances in which the U.S. government could use lethal force in a
foreign country outside the area of active hostilities against a U.S.
citizen who is a senior operational leader of al-Qa'ida or an associated
force[1]
of al-Qa'ida—that is, an al-Qa'ida leader actively engaged in planning
operations to kill Americans. The paper does not attempt to determine
the minimum requirements necessary to render such an operation lawful;
nor does it assess what might be required to render a lethal operation
against a U.S. citizen lawful in other circumstances, including an
operation against enemy forces on a traditional battlefield or an
operation against a U.S. citizen who is not a senior operational leader
of such forces. Here the Department of Justice concludes only that where
the following three conditions are met, a U.S. operation using lethal
force in a foreign country against a U.S. citizen who is a senior
operational leader of al-Qa'ida or an associated force would be lawful:
(1) an informed; high level official of the U.S. government has
determined that the targeted individual poses an imminent threat of
violent attack against the United States; (2) capture is infeasible, and
the United States continues to monitor whether capture becomes
feasible; and (3) the operation would be conducted in a manner
consistent with applicable law of war principles. This conclusion is
reached with recognition of the extraordinary seriousness of a lethal
operation by the United States against a U.S. citizen, and also of the
extraordinary seriousness of the threat posed by senior operational
al-Qa'ida members and the loss of life that would result were their
operations successful.
The President has authority to respond to the imminent threat posed
by al-Qa'ida and its associated forces, arising from his constitutional
responsibility to protect the country, the inherent right of the United
States to national self defense under international law, Congress's
authorization of the use of all necessary and appropriate military force
against this enemy, and the existence of an armed conflict with
al-Qa'ida under international law. Based on these authorities, the
President may use force against al-Qa'ida and its associated forces. As
detailed in this white paper, in defined circumstances, a targeted
killing of a U.S. citizen who has joined al-Qa'ida or its associated
forces would be lawful under U.S. and international law. Targeting a
member of an enemy force who poses an imminent threat of violent attack
to the United States is not unlawful. It is a lawful act of national
self defense. Nor would it violate otherwise applicable federal laws
barring unlawful killings in Title 18 or the assassination ban in Executive Order No 12333.
Moreover, a lethal operation in a foreign nation would be consistent
with international legal principles of sovereignty and neutrality if it
were conducted, for example, with the consent of the host nation's
government or after a determination that the host nation is unable or
unwilling to suppress the threat posed by the individual targeted.
Were the target of a lethal operation a U.S. citizen who may have rights under the Due Process Clause and the Fourth Amendment,
that individual's citizenship would not immunize him from a lethal
operation. Under the traditional due process balancing analysis of Mathews v. Eldridge,
we recognize that there is no private interest more weighty than a
person's interest in his life. But that interest must be balanced
against the United States' interest in forestalling the threat of
violence and death to other Americans that arises from an individual who
is a senior operational leader of al-Q'aida or an associated force of
al-Q'aida and who is,engaged in plotting against the United States.
The paper begins with a brief summary of the authority for the use of
force in the situation described here, including the authority to
target a U.S. citizen having the characteristics described above with
lethal force outside the area of active hostilities. It continues with
the constitutional questions, considering first whether a lethal
operation against such a U.S. citizen would be consistent with the Fifth Amendment's
Due Process Clause, U.S. Const, amend. V. As part of the due process
analysis, the paper explains the concepts of "imminence," feasibility of
capture, and compliance with applicable law of war principles. The
paper then discusses whether such an operation would be consistent with
the Fourth Amendment's prohibition on unreasonable seizures,
U.S. Const, amend. IV; It concludes that where certain conditions are
met, a lethal operation against a U.S. citizen who is a senior
operational leader of al-Qa'ida or its associated forces—a terrorist
organization engaged in constant plotting against the United States, as
well as an enemy force with which the United States is in a
congressionally authorized armed conflict—and who himself poses an
imminent threat of violent attack against the United States, would not
violate the Constitution. The paper also includes an analysis concluding
that such an operation would not violate certain criminal provisions
prohibiting the killing of U.S. nationals outside the United States; nor
would it constitute either the commission of a war crime or an
assassination prohibited by Executive Order 12333.
I.
The United States is in an armed conflict with al-Qa'ida and its
associated forces, and Congress has authorized the President to use all
necessary and appropriate force against those entities. SeeAuthorization for Use of Military Force
("AUMF"), Pub. L. No. 107-40, § 2(a), 115 Stat. 224, 224 (2001). In
addition to the authority arising from the AUMF, the President's use of
force against al-Qa'ida and associated forces is lawful under other
principles of U.S. and international law, including the President's
constitutional responsibility to protect the nation and the inherent
right to national self defense recognized in international law (see, e.g.,U.N. Charter art. 51).
It was on these bases that the United States responded to the attacks
of September 11, 2001, and "[t]hese domestic and international legal
authorities continue to this day." Harold Hongju Koh, Legal Adviser,
U.S. Department of State, Address to the Annual Meeting of the American
Society of International Law: The Obama Administration and International
Law (Mar. 25,2010) ("2010 Koh ASIL Speech").
Any operation of the sort discussed here would be conducted in a
foreign country against a senior operational leader of al-Qa'ida or its
associated forces who poses an imminent threat of violent attack against
the United States. A use of force under such circumstances would be
justified as an act of national self-defense. In addition, such a person
would be within the core of individuals against whom Congress has
authorized the use of necessary and appropriate force. The fact that
such a person would also be a U.S. citizen would not alter this
conclusion. The Supreme Court has held that the military may
constitutionally use force against a U.S. citizen who is a part of enemy
forces. SeeHamdi, 542 U.S. 507, 518 (2004) (plurality opinion); id. at 587, 597 (Thomas, J., dissenting); Ex Parte Quirin,
317 U.S. at 37-38. Like the imposition of military detention, the use
of lethal force against such enemy forces is an "important incident of
war." Hamdi, 542 U.S. at 518 (plurality opinion) (quotation omitted). See, e.g., General Orders No. 100: Instructions for the Government of Armies of the United States in the Field
¶ 15 (Apr. 24, 1863) ("[military necessity admits of all direct
destruction of life or limb of armed enemies") (emphasis omitted); International Committee of the Red Cross, Commentary
on the Additional Protocols of 8 June 1977 to the Geneva Conventions of
12 Aug. 1949 and Relating to the Protection of Victims of
Non-International Armed Conflicts (Additional Protocol II) § 4789 (1987) ("Those who belong to armed forces or armed groups may be attacked at any time."); Yoram Dinstein, The Conduct of Hostilities Under the Law of International Armed Conflict
94 (2004) ("When a person takes up arms or merely dons a uniform as a
member of the armed forces, he automatically exposes himself to enemy
attack."). Accordingly, the Department does not believe that U.S.
citizenship would immunize a senior operational leader of al-Qa'ida or
its associated forces from a use of force abroad authorized by the AUMF
or in national self-defense.
In addition, the United States retains its authority to use force
against al-Qa'ida and associated forces outside the area of active
hostilities when it targets a senior operational leader of the enemy
forces who is actively engaged in planning operations to kill Americans.
The United States is currently in a non-international armed conflict
with al-Qa'ida and its associated forces. See Hamdan v. Rumsfeld,
548 U.S. 557, 628-31 (2006) (holding that a conflict between a nation
and a transnational non-state actor, occurring outside the nation's
territory, is an armed conflict "not of an international character"
(quoting Common Article 3 of the Geneva Conventions)
because it is not a "clash between nations"). Any U.S. operation would
be part of this non-international armed conflict, even if it were to
take place away from the zone of active hostilities. See John O.
Brennan, Assistant to the President for Homeland Security and
Counterterrorism, Remarks at the Program on Law and Security, Harvard
Law School: Strengthening Our Security by Adhering to Our Values and Laws
(Sept. 16, 2011) ("The United States does not view our authority to use
military force against al-Qa'ida as being restricted solely to 'hot'
battlefields like Afghanistan."). For example, the AUMF itself does not
set forth an express geographic limitation on the use of force it
authorizes. See Hamdan, 548 U.S. at 631 (Kennedy, J., concurring)
(what makes a non-international armed conflict distinct from an
international armed conflict is "the legal status of the entities
opposing each other"). None of the three branches of the U.S. Government
has identified a strict geographical limit on the permissible scope of
the AUMF's authorization. See, e.g.,Letter for the Speaker of the House of Representatives and the President Pro Tempore of the Senate from the President
(June 15, 2010) (reporting that the armed forces, with the assistance
of numerous international partners, continue to conduct operations
"against al-Qa'ida terrorists," and that the United States has "deployed
combat-equipped forces to a number of locations in the U.S. Central...
Command area[] of operation in support of those [overseas
counter-terrorist] operations"); Bensayah v. Obama,
610 F.3d 718, 720, 724-25, 727 (D.C. Cir. 2010) (concluding that an
individual turned over to the United States in Bosnia could be detained
if the government demonstrates he was part of al-Qa'ida); al-Adahi v. Obama,
613 F.3d 1102,1003,11U (D.C. Cir. 2010) (noting authority under AUMF to
detain individual apprehended by Pakistani authorities in Pakistan and
then transferred to U.S. custody)
Claiming that for purposes of international law, an armed conflict
generally exists only when there is "protracted armed violence between
governmental authorities and organized armed groups," Prosecutor v. Tadic, Case No. IT-94-1AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction,
70 (Int'l Crim. Trib. for the Former Yugoslavia, App. Chamber Oct.
2,1995), some commenters have suggested that the conflict between the
United States and al-Qa'ida cannot lawfully extend to nations outside
Afghanistan in which the level of hostilities is less intense or
prolonged than in Afghanistan itself. See e.g., Mary Ellen O'Connell, Combatants and the Combat Zone, 43 U. Rich. L. Rev. 845,857-59 (2009).
There is little judicial or other authoritative precedent that speaks
directly to the question of the geographic scope of a non-international
armed conflict in which one of the parties is a transnational, non-state
actor and where the principal theater of operations is not within the
territory of the nation that is a party to the conflict. Thus, in
considering this potential issue, the Department looks to principles and
statements from analogous contexts.
The Department has not found any authority for the proposition that
when one of the parties to an armed conflict plans and executes
operations from a base in a new nation, an operation to engage the enemy
in that location cannot be part of the original armed conflict, and
thus subject to the laws of war governing that conflict, unless the
hostilities become sufficiently intense and protracted in the new
location. That does not appear to be the rule of the historical
practice, for instance, even in a traditional international conflict.
See John
R. Stevenson, Legal Adviser, Department of State, United States
Military Action in Cambodia: Questions of International Law, Address
before the Hammarskjold Forum of the Association of the Bar of the City
of New York (May 28,1970), in 3 The Vietnam War and International
Law: The Widening Context 23,28-30 (Richard A. Falk, ed. 1972) (arguing
that in an international armed conflict, if a neutral state has been
unable for any reason to prevent violations of its neutrality by the
troops of one belligerent Using its territory as a base of operations,
the other belligerent has historically been justified in attacking those
enemy forces in that state). Particularly in a non-international armed
conflict, where terrorist organizations may move their base of
operations from one country to another, the determination of whether a
particular operation would be part of an ongoing armed conflict would
require consideration of the particular facts and circumstances in each
case, including the fact that transnational non-state organizations such
as al-Qa'ida may have no single site serving as their base of
operations. See also, e.g., Geoffrey
S. Corn & Eric Talbot Jensen, Untying the Gordian Knot: A Proposal
for Determining Applicability of the Laws of War to the War on Terror,
81 Temp. L. Rev. 787, 799 (2008) ("If... the ultimate purpose of the
drafters of the Geneva Conventions was to prevent 'law avoidance' by
developing de facto law triggers—a purpose consistent with the
humanitarian foundation of the treaties—then the myopic focus on the
geographic nature of an armed conflict in the context of transnational
counterterrorist combat operations serves to frustrate that purpose.").[2]
If an operation of the kind discussed in this paper were to occur in a
location where al-Qa'ida or an associated force has a significant and
organized presence and from which al-Qa'ida or an associated force,
including its senior operational leaders, plan attacks against U.S.
persons and interests, the operation would be part of the
non-international armed conflict between the United States and al-Qa'ida
that the Supreme Court recognized in Hamdan. Moreover, such an
operation would be consistent with international legal principles of
sovereignty and neutrality if it were conducted, for example, with the
consent of the host nation's government or after a determination that
the host nation is unable or unwilling to suppress the threat posed by
the individual targeted. In such circumstances, targeting a U.S. citizen
of the kind described in this paper would be authorized under the AUMF
and the inherent right to national self-defense. Given this authority,
the question becomes whether and what further restrictions may limit
its"exercise.
II.
The Department assumes that the rights afforded by Fifth Amendment's
Due Process Clause, as well as the Fourth Amendment, attach to a U.S.
citizen even while he is abroad. See Reid v. Covert, 354 U.S. 1, 5-6 (1957) (plurality opinion); United States v. Verdugo-Urquidez, 494 U.S. 259,269-70 (1990); see also In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 157, 170 n.7 (2d-Cir. 2008).
The U.S. citizenship of a leader of al-Qa'ida or its associated forces,
however, does not give that person constitutional immunity from attack.
This paper next considers whether and in what circumstances a lethal
operation would violate any possible constitutional protections of a
U.S. citizen.
A.
The Due Process Clause would not prohibit a lethal operation of the
sort contemplated here. In Hamdi, a plurality of the Supreme Court used
the Mathews v. Eldridge balancing test to analyze the Fifth Amendment
due process rights of a U.S. citizen who had been captured on the
battlefield in Afghanistan and detained in the United States, and who
wished to challenge the government's assertion that he was part of enemy
forces. The Court explained that the "process due in any given instance
is determined by weighing 'the private interest that will be affected
by the official action' against the Government's asserted interest,
'including the function involved' and the burdens the Government would
face in providing greater process." Hamdi, 542 U.S. at 529 (plurality
opinion) (quoting Mathews v. Eldridge, 424 U.S. 319,335 (1976)). The due
process balancing analysis applied to determine the Fifth Amendment
rights of a U.S. citizen with respect to law-of-war detention supplies
the framework for assessing the process due a U.S. citizen who is a
senior operational leader of an enemy force planning violent attacks
against Americans before he is subjected to lethal targeting.
In the circumstances considered here, the interests on both sides
would be weighty. See Hamdi, 542 U.S. at 529 (plurality opinion) ("It is
beyond question that substantial interests lie on both sides of the
scale in this case."). An individual's interest in avoiding erroneous
deprivation of his life is "uniquely compelling." See Ake v. Oklahoma,
470 U.S. 68, 178 (1985) ("The private interest in the accuracy of a
criminal proceeding that places an individual's life or liberty at risk
is almost uniquely compelling."). No private interest is more
substantial. At the same time, the government's interest in waging war,
protecting its citizens, and removing the threat posed by members of
enemy forces is also compelling. Cf. Hamdi, 542 U.S. at 531 (plurality
opinion) ("On the other side of the scale are the weighty and sensitive
governmental interests in ensuring that those who have in fact fought
with the enemy during a war do not return to battle against the United
States."). As the Hamdi plurality observed, in the "circumstances of
war," "the risk of erroneous deprivation of a citizen's liberty in the
absence of sufficient process ... is very real," id. at 530 (plurality
opinion), and, of course, the risk of an erroneous deprivation of a
citizen's life is even more significant. But, "the realities of combat"
render certain uses of force "necessary and appropriate," including
force against U.S. citizens who have joined enemy forces in the armed
conflict against the United State and whose activities pose an imminent
threat of violent attack against the United States - and "due process
analysis need not blink at those realities." Id. at 531 (plurality
opinion). These same realities must also be considered in assessing "the
burdens the Government would face in providing greater process" to a
member of enemy forces. Id. at 529, 531 (plurality opinion).
In view of these interests and practical considerations, the United
States would be able to use lethal force against a U.S. citizen, who is
located outside the United States and is an operational leader
continually planning attacks against U.S. persons and interests, in at
least the following circumstances: (1) where an informed, high-level
official of the. U.S. government has determined that the targeted
individual poses an imminent threat of violent attack against the United
States; (2) where a capture operation would be infeasible—and where
those conducting the operation continue to monitor whether capture
becomes feasible; and (3) where such an operation would be conducted
consistent with applicable law of war principles. In these
circumstances, the "realities" of the conflict and the weight of the
government's interest in protecting its citizens from an imminent attack
are such that the Constitution would not require the government to
provide further process to such a U.S. citizen before using lethal
force. Cf. Hamdi, 542 U.S. at 535 (plurality opinion) (noting that the
Court "accord[s] the greatest respect and consideration to the judgments
of military authorities in matters relating to the actual prosecution
of war, and... the scope of that discretion necessarily is wide"); id.
at 534 (plurality opinion) ("The parties agree that initial captures on
the battlefield need not receive the process we have discussed here;
that process is due only when the determination is made to continue to
hold those who have been seized.") (emphasis omitted).
Certain aspects of this legal framework require additional
explication. First, the condition that an operational leader present an
"imminent" threat of violent attack against the United States does not
require the United States to have clear evidence that a specific attack
on U.S. persons and interests will take place in the immediate future.
Given the nature of, for example, the terrorist attacks on September 11,
in which civilian airliners were hijacked to strike the World Trade
Center and the Pentagon, this definition of imminence, which would
require the United States to refrain from action until preparations for
an attack are concluded, would not allow the United States sufficient
time to defend itself. The defensive options available to the United
States may be reduced or eliminated if al-Qa'ida operatives disappear
and cannot be found when the time of their attack approaches.
Consequently, with respect to al-Qa'ida leaders who are continually
planning attacks, the United States is likely to have only a limited
window of opportunity within which to defend Americans in a manner that
has both a high likelihood of success and sufficiently reduces the
probabilities of civilian casualties. See Michael N. Schmitt, State-Sponsored Assassination in International and Domestic Law, 17. Yale J. Int'l L. 609, 648 (1992).
Furthermore, a "terrorist 'war' does not consist of a massive attack
across an international border, nor does it consist of one isolated
incident that occurs and is then past. It is a drawn out, patient,
sporadic pattern of attacks. It is very difficult to know when or where
the next incident will occur." Gregory M. Travalio, Terrorism, International Law, and the Use of Military Force, 18 Wis. Int'l L.J. 145, 173 (2000); see also Testimony of Attorney-General Lord Goldsmith, 660 Hansard. H.L. (April 21, 2004) 370 (U.K.), available at http://www.publications.parliament.uk/pa/ld200304/ldhansrd/vo040421/text/40421-07.htm
(what constitutes an imminent threat "will develop to meet new
circumstances and new threats .... It must be right that states are able
to act in self-defense in circumstances where there is evidence of
further imminent attacks by terrorist groups, even if there is no
specific evidence of where such an attack will take place or of the
precise nature of the attack."). Delaying action against individuals
continually planning to kill Americans until some theoretical end stage
of the planning for a particular plot would create an unacceptably high
risk that the action would fail and that American casualties would
result.
By its nature, therefore, the threat posed by al-Qa'ida and its
associated forces demands a broader concept of imminence in judging when
a person continually planning terror attacks presents an imminent
threat, making the use of force appropriate. In this context, imminence
must incorporate considerations of the relevant window of opportunity,
the possibility of reducing collateral damage to civilians, and the
likelihood of heading off future disastrous attacks on Americans. Thus, a
decision maker determining whether an al-Qa'ida operational leader
presents an imminent threat of violent attack against the United States
must take into account that certain members of al-Qa'ida (including any
potential target of lethal force) are continually plotting attacks
against the United States; that al-Qa'ida would engage in such attacks
regularly to the extent it were able to do so; that the U.S. government
may not be aware of all al-Qa'ida plots as they are developing and thus
cannot be confident that none is about to occur; and that, in light of
these predicates, the nation may have a limited window of opportunity
within which to strike in a manner that both has a high likelihood of
success and reduces the probability of American casualties.
With this understanding, a high-level official could conclude, for
example, that an individual poses an"imminent threat of violent attack
against the United States where he is an operational leader of al-Qa'ida
or an associated force and is personally and continually involved in
planning terrorist attacks against the United States. Moreover, where
the al-Qa'ida member in question has recently been involved in
activities posing an imminent threat of violent attack against the
United States, and there is no evidence suggesting that he has renounced
or abandoned such activities, that member's involvement in al-Qa'ida's
continuing terrorist campaign against the United States would. support
the conclusion that the member poses an imminent threat.
Second, regarding the feasibility of capture, capture would not be
feasible if it could not be physically effectuated during the relevant
window of opportunity or if the relevant country were to decline to
consent to a capture operation. Other factors such as undue risk to U.S.
personnel conducting a potential capture operation also could be
relevant. Feasibility would be a highly fact-specific and potentially
time-sensitive inquiry.
Third, it is a premise here that any such lethal operation by the
United States would comply with the four fundamental law-of-war
principles governing the use of force: necessity, distinction,
proportionality, and humanity (the avoidance of unnecessary suffering).
See, e.g., United States Air Force, Targeting, Air Force Doctrine Document 2-1.9, at 88 (June 8, 2006); Dinstein, Conduct of Hostilities
at 16-20, 115-16, 119-23; see also 2010 Koh ASIL Speech. For example,
it would not be consistent with those principles to continue an
operation if anticipated civilian casualties would be excessive in
relation to the anticipated military advantage. Chairman of the Joint Chiefs of Staff Instruction 5810.01D, Implementation of the DoD Law of War Program
^ 4.a, at 1 (Apr. 30,2010). An operation consistent with the laws of
war could not violate the prohibitions against treachery and perfidy,
which address a breach of confidence by the assailant. See, e.g., Hague Convention IV,
Annex, art. 23(b), Oct. 18, 1907, 36 stat 2277,2301-02 ("[I]t is
especially forbidden ... [t]o kill or wound treacherously individuals
belonging to the hostile nation or army ...."). These prohibitions do
not, however, categorically forbid the use of stealth or surprise, nor
forbid attacks on identified individual soldiers or officers. See U.S. Army Field Manual 27-10, The Law of Land Warfare, ¶ 31 (1956)
(article 23(b) of the Annex to the Hague Convention IV does not
"preclude attacks on individual soldiers or officers of the enemy
whether in the zone of hostilities, occupied territory, or else-where").
And the Department is not aware of any other law-of-war grounds
precluding use of such tactics. See Dinstein, Conduct of Hostilities at
94-95, 199; Abraham D. Sofaer, Terrorism, the Law, and the National Defense, 126 Mil. L. Rev. 89, 120-21 (1989).
Relatedly, "there is no prohibition under the laws of war on the use of
technologically advanced weapons systems in armed conflict—such as
pilotless aircraft or so-called smart bombs—as long as they are employed
in conformity with applicable laws of war." 2010 Koh ASIL Speech.
Further, under this framework, the United States would also be required
to accept a surrender if it were feasible to do so.
In sum, an operation in the circumstances and under the constraints
described above would not result in a violation of any due process
rights.
B.
Similarly, assuming that a lethal operation targeting a U.S. citizen
abroad who is planning attacks against the United States would result in
a "seizure" under the Fourth Amendment, such an operation would not
violate that Amendment in the circumstances posited here. The Supreme
Court has made clear that the constitutionality of a seizure is
determined by "balanc[ing] the nature and quality of the intrusion on
the individual's Fourth Amendment interests against the importance of
the governmental interests alleged to justify the intrusion." Tennessee v. Garner, 471 US. 1, 8 (1985) (internal quotation marks omitted); accord Scott v. Harris,
550 U.S. 372, 383 (2007). Even in domestic law enforcement operations,
the Court has noted that "[w]here the officer has probable cause to
believe that the suspect poses a threat of serious physical harm, either
to the officer or to others, it is not constitutionally unreasonable to
prevent escape by using deadly force." Garner, 471 U.S. at 11. Thus,
"if the suspect threatens the officer with a weapon or there is probable
cause to believe that he has committed a crime involving the infliction
or threatened infliction of serious physical harm, deadly force may be
used if necessary to prevent escape, and if, where feasible, some
warning has been given." Id. at 11-12.
The Fourth Amendment "reasonableness" test is situation-dependent.
Cf. Scott, 550 U.S. at 382 ("Garner did not establish a magical on/off
switch that triggers rigid preconditions whenever an officer's actions
constitute 'deadly force.'"). What would constitute a reasonable use of
lethal force for purposes of domestic law enforcement operations differs
substantially from what would be reasonable in the situation and
circumstances discussed in this white paper. But at least in
circumstances where the targeted person is an operational leader of an
enemy force and an informed, high-level government official has
determined that he poses an imminent threat of violent attack, against
the United States, and those conducting the operation would carry out
the operation only if capture were infeasible, the use of lethal force
would not violate the Fourth Amendment. Under such circumstances, the
intrusion on any Fourth Amendment interests would be outweighed by the
"importance of the governmental interests [that] justify the intrusion,"
Garner, 471 U.S. at 8—the interests in protecting the lives of
Americans.
C.
Finally, the Department notes that under the circumstances described
in this paper, there exists no appropriate judicial forum to evaluate
these constitutional consideration. It is well established that
"[matters intimately related to foreign policy and national security are
rarely proper subjects for judicial intervention," Haig v. Agee,
453 U.S. 280,292 (1981), because such matters "frequently turn on
standards that defy judicial application," or "involve the exercise of a
discretion demonstrably committed to the executive or legislature," Baker v. Can,
369 U.S. 186,211 (1962). Were a court to intervene here, it might be
required inappropriately to issue an ex ante command to the President
and officials responsible for operations with respect to their specific
tactical judgment to mount a potential lethal operation against a senior
operational leader of al-Qa'ida or its associated forces. And judicial
enforcement of such orders would require the Court to supervise
inherently predictive judgments by the President and his national
security advisors as to when and how to use force against a member of an
enemy force against which Congress has authorized the use of force.
III.
Section 1119(b) of title 18
provides that a "person who, being a national of the United States or
attempts to kill a national of the United States while such national is
outside the United States but within the jurisdiction of another country
shall be punished as provided under sections 1111,1112, and 1113." 18
U.S.C. § 1119(b) (2006).[3]
Because the person who would be the target of the kind of operation
discussed here would be a U.S. citizen, it might be suggested that
section 1119(b) would prohibit such an operation. Section 1119, however,
incorporates the federal murder and manslaughter statutes, and thus its
prohibition extends only to "unlawful killing[s]," 18 U.S.C. §§ 1111(a), 1112(a)
(2006). Section 1119 is best construed to incorporate the "public
authority" justification, which renders lethal action carried out by a
government official lawful in some circumstances. As this paper explains
below, a lethal operation of the kind discussed here would fall within
the public authority exception under the circumstances and conditions
posited because it would be conducted in a manner consistent with
applicable law of war principles governing the non-intemational conflict
between the United States and al-Qa'ida and its associated forces. It
therefore would not result in an unlawful killing.[4]
A.
Although section 1119(b) refers only to the "punishments]" provided
under sections 1111, 1112, and 1113, courts have held that section
1119(b) incorporates the substantive elements of those cross-referenced
provisions of title 18. See, e.g., United States v. Wharton, 320 F.3d 526, 533 (5th Cir. 2003); United States v. White,
51 F. Supp. 2d 1008,1013-14 (E.D. Cal. 1997). Section 1111 of title 18
sets forth criminal penalties for "murder," and provides that "[m]urder
is the unlawful killing of a human being with malice aforethought." 18
U.S.C. § 1111(a). Section 1112 similarly provides criminal sanctions for
"[m]anslaughter," and states that "[mjanslaughter is the unlawful
killing of a human being without malice:" Id.§ 112(a). Section 1113
provides criminal penalties for "attempts to commit murder or
manslaughter." Id. § 1113. It is therefore clear that section 1119(b)
bars only "unlawful killing."
Guidance as to the meaning of the phrase "unlawful killing" in
sections 1111 and 1112—and thus for purposes of section 1119(b)—can be
found in the historical understandings of murder and manslaughter. That
history shows that states have long recognized justifications and
excuses to statutes criminalizing "unlawful" killings.[5]
One state court, for example, in construing that state's murder
statute, explained that "the word 'unlawful' is a term of art" that
"connotes a homicide with the absence of factors of excuse or
justification." People v. Frye, 10 Cal. Rptr. 2d 217,221 (Cal. Ct. App. 1992).
That court further explained that the factors of excuse or
justification in question include those that have traditionally been
recognized. Id. at 221 n.2. Other authorities support the same
conclusion. See, e.g., Mullaney v. Wilbur, 421 U.S. 684, 685 (1975)
(requirement of "unlawful" killing in Maine murder statute meant that
killing was "neither justifiable nor excusable"); cf. also Rollin M. Perkins & Ronald N. Boyce, Criminal Law 56 (3d ed. 1982)
("Innocent homicide is of two kinds, (1) justifiable and (2)
excusable."). Accordingly, section 1119 does not proscribe killings
covered by a justification traditionally recognized under the common law
or state and federal murder statutes. "Congress did not intend [section
1119] to criminalize justifiable or excusable killings." White, 51 F.
Supp. 2d at 1013.
B.
The public authority justification is well-accepted, and it may be
available even in cases where the particular criminal statute at issue
does not expressly refer to a public authority justification.
Prosecutions where such a "public authority" justification is invoked
are understandably rare, see American Law Institute Model Penal Code and
Commentaries § 3.03 Comment 1, at 23-24 (1985); cf. Visa Fraud
Investigation, 8 Op. O.L.C. 284, 285 n.2, 286 (1984), and thus there is
little case law in which courts have^ analyzed the scope of the
justification with respect to the conduct of government officials.
Nonetheless, discussions in the leading treatises and in the Model Penal
Code demonstrate its legitimacy. See 2 Wayne R. LaFave, Substantive
Criminal Law § 10.2(b), at 135 (2d ed. 2003); Perkins & Boyce,
Criminal Law at 1093 ("Deeds which otherwise would be criminal, such as
taking or destroying property, taking hold of a person by force and
against his will, placing him in confinement, or even taking his life,
are not crimes if done with proper public authority."); see also Model
Penal Code § 3.03(l)(a), (d), (e), at 22-23 (proposing codification of
justification where conduct is "required or authorized by," inter alia,
"the law defining the duties or functions of a public officer," "the law
governing the armed services or the lawful conduct of war," or "any
other provision of law imposing a public duty"); National Commission on
Reform of Federal Criminal Laws, A Proposed New Federal Criminal Code §
602(1) (1971) ("Conduct engaged in by a public servant in the course of
his official duties is justified when it is required or authorized by
law."). And the Department's Office of Legal Counsel ("OLC") has invoked
analogous rationales when it has analyzed whether Congress intended a
particular criminal statute to prohibit specific conduct that otherwise
falls within a government agency's authorities. See, e.g., Visa Fraud
Investigation, 8 Op. O.L.C. at 287-88 (concluding that a civil statute
prohibiting issuance of visa to an alien known to be ineligible did not
prohibit State Department from issuing such a visa where "necessary" to
facilitate an important Immigration and Naturalization Service
undercover operation carried out in a "reasonable" fashion).
The public authority justification would not excuse all conduct of
public officials from all criminal prohibitions. The legislature may
design some criminal prohibitions to place bounds on the kinds of
governmental conduct that can be authorized by the Executive. Or the
legislature may enact a criminal prohibition in order to limit the scope
of the conduct that the legislature has otherwise authorized the
Executive to undertake pursuant to another statute. See, e.g., Nardone
v. United States, 302 U.S. 379, 384 (1937) (federal statute proscribed
government wiretapping). But the generally recognized public authority
justification reflects that it would not make sense to attribute to
Congress the intent to criminalize all covered activities undertaken by
public officials in the legitimate exercise of their otherwise lawful
authorities, even if Congress clearly intends to make those same actions
a crime when committed by persons not acting pursuant to public
authority. In some instances, therefore, the best interpretation of a
criminal prohibition is that Congress intended to distinguish persons
who are acting pursuant to public authority from those Who are not, even
if the statute does not make that distinction express. Cf. id. at 384
(federal criminal statutes should be construed to exclude authorized
conduct of public officers where such a reading "would work obvious
absurdity as, for example, the application of a speed law to a policeman
pursuing a criminal or the driver of a fire engine responding to an
alarm").[6]
The touchstone for the analysis whether section 1119 incorporates not
only justifications generally, but also the public authority
justification in particular, is the legislative intent underlying this
statute. Here, the statute should be read to exclude from its
prohibitory scope killings that are encompassed by traditional
justifications, which include the public authority justification. The
statutory incorporation of two other criminal statutes expressly
referencing "unlawful" killings is one indication. See supra at 10-11.
Moreover, there are no indications that Congress had a contrary
intention. Nothing in the text or legislative history of sections
1111-1113 of title 18 suggests that Congress intended to exclude the
established public authority justification from those justifications
that Congress otherwise must be understood to have imported through the
use of the modifier "unlawful" in those statutes. Nor is there anything
in the text or legislative history of section 1119 itself to suggest
that Congress intended to abrogate or otherwise affect the availability
of this traditional justification for killings. On the contrary, the
relevant legislative materials indicate that, in enacting section 1119,
Congress was merely closing a gap in a field dealing with entirely
different kinds of conduct from that at issue here.[7]
The Department thus concludes that section 1119 incorporates the public authority justification.[8]
This paper turns next to the question whether a lethal operation could
be encompassed by that justification and, in particular, whether that
justification would apply when the target is a U.S. citizen. The
analysis here leads to the conclusion that it would.
C.
A lethal operation against an enemy leader undertaken in national
self-defense or during an armed conflict that is authorized by an
informed, high-level official and carried out in a manner that accords
with applicable law of war principles would fall within a well
established variant of the public authority justification and therefore
would not be murder. See, e.g., 2 Paul H. Robinson,[Criminal Law
Defenses § 148(a), at 208 (1984) (conduct that would violate a criminal
statute is justified and thus not unlawful "[where the exercise of
military authority relies upon the law governing the armed forces or
upon the conduct of war"); 2 LaFave, Substantive Criminal Law § 10.2(c)
at 136 ("another aspect of the public duty defense is where the conduct
was required or authorized by 'the law governing the armed services or
the lawful conduct of war'"); Perkins & Boyce, Criminal Law at 1093
(noting that a "typical instanceQ in which even the extreme act of
taking human life is done by public authority" involves "the killing of
an enemy as an act of war and within the rules of war").[9]
The United States is currently in the midst of a congressionally
authorized armed conflict with al-Qa'ida and associated forces, and may
act in national self-defense to protect U.S. persons and interests who
are under continual threat of violent attack by certain al-Q'aida
operatives planning operations against them. The public authority
justification would apply to a lethal operation of the kind discussed in
this paper if it were conducted in accord with applicable law of war
principles. As one legal commentator has explained, "if a soldier
intentionally kills an enemy combatant in time of war and within the
rules of warfare, he is not guilty of murder," whereas, for example, if
that soldier intentionally kills a prisoner of war - a violation of the
laws of war—"then he commits murder." 2 LaFave, Substantive Criminal Law
§ 10.2(c), at 136; see also State v. Gut, 13 Minn. 341, 357 (1868)
("That it is legal to kill an alien enemy in the heat and exercise of
war, is undeniable; but to kill such an enemy after he has laid down his
arms, and especially when he is confined in prison, is murder.");
Perkins & Boyce, Criminal Law at 1093 ("Even in time of war an alien
enemy may not be killed needlessly after he has been disarmed and
securely imprisoned...."). Moreover, without invoking the public
authority justification by its terms, this Department's OLC has relied
on the same notion in an opinion addressing the intended scope of a
federal criminal statute that concerned the use of potentially lethal
force. See United States Assistance to Countries that Shoot Down Civil
Aircraft Involved in Drug Trafficking, 18 Op. O.L.C. 148, 164 (1994)
(concluding that the Aircraft Sabotage Act of 1984, 18 U.S.C. § 32(b)(2)
(2006), which prohibits the willful destruction of a civil aircraft and
otherwise applies to U.S. government conduct, should not be construed
to have "the surprising and almost certainly unintended effect of
criminalizing actions by military personnel that are lawful under
international law and the laws of armed conflict").
The fact that an operation may target a U.S. citizen does not alter
this conclusion. As explained above, see supra at 3, the Supreme Court
has held that the military may constitutionally use force against a U.S.
citizen who is part of enemy forces. See Hamdi, 542 U.S. at 518
(plurality opinion); id. at 587, 597 (Thomas, J. dissenting); Ex parte
Quirin, 317 U.S. at 37-38 ("Citizens who associate themselves with the
military arm of the enemy government, and with its aid, guidance and
direction enter [the United States] bent on hostile acts," may be
treated as "enemy belligerents" under the law of war.). Similarly, under
the Constitution and the inherent right to national self-defense
recognized in international law, the President may authorize the use of
force against a U.S. citizen who is a member of al-Qa'ida or its
associated forces and who poses an imminent threat of violent attack
against the United States.
In light of these precedents, the Department believes that the use of
lethal force addressed in this white paper would constitute a lawful
killing under the public authority doctrine if conducted in a manner
consistent with the fundamental law of war principles governing the use
of force in a non-intemational armed conflict. Such an operation would
not violate the assassination ban in Executive Order No. 12333. Section
2.11 of Executive Order No. 12333 provides that "[n]o person employed by
or acting on behalf of the United States Government shall engage in, or
conspire to engage in, assassination." 46 Fed. Reg. 59,941,59, 952
(Dec. 4,1981). A lawful killing in self-defense is not an assassination.
In the Department's view, a lethal operation conducted against a U.S.
citizen whose conduct poses an imminent threat of violent attack against
the United States would be a legitimate act of national self-defense
that would not violate the assassination ban. Similarly, the use of
lethal force, consistent with the laws of war, against an individual who
is a legitimate military target would be lawful and would not violate
the assassination ban.
IV.
The War Crimes Act, 18 U.S.C. § 2441 (2006) makes it a federal crime
for a member of the Armed Forces or a national of the United States to
"commit[] a war crime." Id. § 2441(a). The only potentially applicable
provision of section 2441 to operations of the type discussed herein
makes it a war crime to commit a "grave breach" of Common Article 3 of
the Geneva Conventions when that breach is committed "in the context of
and in association with an armed conflict not of an international
character."[10]
Id. § 2441(c)(3). As defined by the statute, a "grave breach" of Common
Article 3 includes "[m]urder," described in pertinent part as "[t]he
act of a person who intentionally kills, or conspires or attempts to
kill... one or more persons taking no active part in the hostilities,
including those placed out of combat by sickness, wounds, detention, or
any other cause." Id. § 2441(d)(1)(D).
Whatever might be the outer bounds of this category of covered
persons, Common Article 3 does not alter the fundamental law of war
principle concerning a belligerent party's right in an armed conflict to
target individuals who are part of an enemy's armed forces or eliminate
a nation's authority to take legitimate action in national
self-defense. The language of Common Article 3 "makes clear that members
of such armed forces [of both the state and non-state parties to the
conflict]... are considered as 'taking no active part in the
hostilities' only once they have disengaged from their fighting function
('have laid down their arms') or are placed hors de combat; mere
suspension of combat is insufficient." International Committee of the
Red Cross, Interpretive Guidance on the Notion of Direct Participation
in Hostilities Under International Humanitarian Law 28 (2009). An
operation against a senior operational leader of al-Qa'ida or its
associated forces who poses an imminent threat of violent attack against
the United States would target a person who is taking "an active part
in hostilities" and therefore would not constitute a "grave breach" of
Common Article 3
V.
In conclusion, it would be lawful for the United States to conduct a
lethal operation outside the United States against a U.S. citizen who is
a senior, operational leader of al-Qa'ida or an associated force of
al-Qa'ida without violating the Constitution or the federal statutes
discussed in this white paper under the following conditions: (1) an
informed, high-level official of the U.S. government has determined that
the targeted individual poses an imminent threat of violent attack
against the United States; (2) capture is infeasible, and the United
States continues to monitor whether capture becomes feasible; and (3)
the operation is conducted in a manner consistent with the four
fundamental principles of the laws of war governing the use of force. As
stated earlier, this paper does not attempt to determine the minimum
requirements necessary to render such an operation lawful, nor does it
assess what might be required to render a lethal operation against a
U.S. citizen lawful in other circumstances. It concludes only that the
stated conditions would be sufficient to make lawful a lethal operation
in a foreign country directed against a U.S. citizen with the
characteristics described above.
References
^1 An associated force of al-Qa'ida includes a group that would qualify as a co-belligerent under the laws of war. See Hamlily v. Obama, 616 F. Supp. 2d 63, 74-75 (D.D.C. 2009)
(authority to detain extends to "'associated forces,"' which "mean
'co-belligerents' as that term is understood under the laws of war").
^2
See Prosecutor v. Tadic, Case No. IT-94-1AR72, Submission of the
Government of the United States of America Concerning Certain Arguments
Made by Counsel for the Accused, at 27-28 (Int'I Crim. Trib. For the
Former Yugoslavia, App. Chamber July 17, 1995) (in determining which
body of law applies in a particular conflict, "the conflict must be
considered as a whole, and "it is artificial and improper to attempt to
divide it into isolated segments, either geographically or
chronologically").
^3
See also 18 U.S.C. § 1119(a) (2006) (providing that '"national of the
United States' has the meaning stated in section 101(a)(22) of the
Immigration and Nationality Act," 8 U.S.C. § 1101(aX22) (2006)).
^4
In light of the conclusion that section 1119 and the statutes it
cross-references incorporate this justification, and that the
justification would cover an operation of the sort discussed here, this
discussion does not address whether an operation of this sort could be
lawful on any other grounds.
^5
The same is true with respect to other statutes, including federal
laws, that modify a prohibited act other than murder or manslaughter
with the term "unlawfully." See, e.g., Territory v. Gonzales
89P 250,252 (N.M. 1907) (construing the term "unlawful" in statute
criminalizing assault with a deadly weapon as "clearly equivalent" to
"without excuse or justification"). For example, 18 U.S.C. § 2339C(a)(1) (2006)
makes it unlawful, inter alia, to "unlawfully and willfully provide[]
or collect[] funds" with the intention that they may be used (or
knowledge they are to be used) to carry out an act that is an offense
within certain specified treaties, or to engage in certain other
terrorist acts. The legislative history of section 2339C makes clear
that "[t]he term 'unlawfully' is intended to embody common law
defenses." H.R. Rep. No. 107-307, at 12 (2001).
^6
Each potentially applicable statute must be carefully and separately
examined to discern Congress's intent in this respect. See generally,
e.g., Nardone, 302 U.S. 379; United States Assistance to Countries that
Shoot Down Civil Aircraft Involved in Drug Trafficking, 18 Op. O.L.C.
148 (1994); Application of Neutrality Act to Official Government
Activities, 8 Op. O.L.C. 58 (1984).
^7
Section 1119 was designed to close a jurisdictional loophole—exposed by
a murder that had been committed abroad by a private individual—to
ensure the possibility of prosecuting U.S. nationals who murdered other
U.S. nationals in certain foreign countries that lacked the ability to
lawfully secure the perpetrator's appearance at trial. See 137 Cong.
Rec. 8675-76 (1991) (statement of Sen. Thurmond). This loophole is
unrelated to the sort of authorized operation at issue here. Indeed,
prior to the enactment of section 1119, the only federal statute
expressly making it a crime to kill U.S. nationals abroad (outside the
United States' special and maritime jurisdiction) reflected what appears
to have been a particular concern with the protection of Americans from
terrorist attacks. See 18 U.S.C. § 2332(a), (d) (2006) (criminalizing
unlawful killings of U.S. nationals abroad where the Attorney General or
his subordinate certifies that the "offense was intended to coerce,
intimidate, or retaliate against a government or a civilian
population").
^8
18 U.S.C. § 956(a)(1) (2006) makes it a crime to conspire within the
jurisdiction of the United States "to commifcat any place;outside the
United States an act that would constitute, the offense of murder,
kidnapping, or maiming if committed in the special maritime and
territorial jurisdiction of the United States" if any conspirator acts
within the United States to effect any object of the conspiracy. Like
section 1119(b), section 956(a) incorporates the public authority
justification. In addition, the legislative history of section 956(a)
indicates that the provision was "not intended to apply to duly
authorized actions undertaken on behalf of the United States
Government." 141 Cong. Rec. 4491, 4507 (1995) (section-by-section
analysis of bill submitted by Sen. Biden, who introduced the provision
at the behest of the President); see also id. at 11,960
(section-by-section analysis of bill submitted by Sen. Daschle, who
introduced the identical provision in a different version of the
anti-terrorism legislation a few months later). Thus, for the reasons
that section 1119(b) does not prohibit the United States from conducting
a lethal operation against a U.S. citizen, section 956(a) also does not
prohibit such an operation.
^9
See also Frye, 10 Cal. Rptr. 2d at 221 n.2 (identifying "homicide done
under a valid public authority, such as execution of a death sentence or
killing an enemy in a time of war," as examples of justifiable killing
that would not be "unlawful" under the California statute describing
murder as an "unlawful" killing); Model Penal Code § 3.03(2)(b), at 22
(proposing that criminal statutes expressly recognize a public authority
justification for a killing that "occurs in the lawful conduct of war"
notwithstanding the Code recommendation that the use of deadly force
generally should be justified only if expressly prescribed by law).
^10
The statute also defines "war crime" to include any conduct that is
defined as a grave breach in any of the Geneva Conventions (or any
Geneva protocol to which the United States is a party); that is
prohibited by four specified articles of the Fourth Hague Convention of
1907; or that is a willful killing or infliction of serious injury in
violation of the 1996 Protocol on Prohibitions or Restrictions on the
Use of Mines, Booby-Traps and Other Devices. 18 U.S.C. § 2441(c).
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