(Reuters) – American militants like Anwar al-Awlaki are placed on a kill or capture list by a secretive panel of senior government officials, which then informs the president of its decisions, according to officials.
There is no public record of the operations or decisions of the panel, which is a subset of the White House’s National Security Council, several current and former officials said. Neither is there any law establishing its existence or setting out the rules by which it is supposed to operate.
The panel was behind the decision to add Awlaki, a U.S.-born militant preacher with alleged al Qaeda connections, to the target list. He was killed by a CIA drone strike in Yemen late last month.
The role of the president in ordering or ratifying a decision to target a citizen is fuzzy. White House spokesman Tommy Vietor declined to discuss anything about the process.
Current and former officials said that to the best of their knowledge, Awlaki, who the White House said was a key figure in al Qaeda in the Arabian Peninsula, al Qaeda’s Yemen-based affiliate, had been the only American put on a government list targeting people for capture or death due to their alleged involvement with militants.
The White House is portraying the killing of Awlaki as a demonstration of President Barack Obama’s toughness toward militants who threaten the United States. But the process that led to Awlaki’s killing has drawn fierce criticism from both the political left and right.
In an ironic turn, Obama, who ran for president denouncing predecessor George W. Bush’s expansive use of executive power in his “war on terrorism,” is being attacked in some quarters for using similar tactics. They include secret legal justifications and undisclosed intelligence assessments.
Liberals criticized the drone attack on an American citizen as extra-judicial murder.
Conservatives criticized Obama for refusing to release a Justice Department legal opinion that reportedly justified killing Awlaki. They accuse Obama of hypocrisy, noting his administration insisted on publishing Bush-era administration legal memos justifying the use of interrogation techniques many equate with torture, but refused to make public its rationale for killing a citizen without due process.
Some details about how the administration went about targeting Awlaki emerged on Tuesday when the top Democrat on the House Intelligence Committee, Representative Dutch Ruppersberger, was asked by reporters about the killing.
The process involves “going through the National Security Council, then it eventually goes to the president, but the National Security Council does the investigation, they have lawyers, they review, they look at the situation, you have input from the military, and also, we make sure that we follow international law,” Ruppersberger said.
Other officials said the role of the president in the process was murkier than what Ruppersberger described.
They said targeting recommendations are drawn up by a committee of mid-level National Security Council and agency officials. Their recommendations are then sent to the panel of NSC “principals,” meaning Cabinet secretaries and intelligence unit chiefs, for approval. The panel of principals could have different memberships when considering different operational issues, they said.
The officials insisted on anonymity to discuss sensitive information.
They confirmed that lawyers, including those in the Justice Department, were consulted before Awlaki’s name was added to the target list.
Two principal legal theories were advanced, an official said: first, that the actions were permitted by Congress when it authorized the use of military forces against militants in the wake of the attacks of September 11, 2001; and they are permitted under international law if a country is defending itself.
Several officials said that when Awlaki became the first American put on the target list, Obama was not required personally to approve the targeting of a person. But one official said Obama would be notified of the principals’ decision. If he objected, the decision would be nullified, the official said.
A former official said one of the reasons for making senior officials principally responsible for nominating Americans for the target list was to “protect” the president.
Officials confirmed that a second American, Samir Khan, was killed in the drone attack that killed Awlaki. Khan had served as editor of Inspire, a glossy English-language magazine used by AQAP as a propaganda and recruitment vehicle.
But rather than being specifically targeted by drone operators, Khan was in the wrong place at the wrong time, officials said. Ruppersberger appeared to confirm that, saying Khan’s death was “collateral,” meaning he was not an intentional target of the drone strike.
When the name of a foreign, rather than American, militant is added to targeting lists, the decision is made within the intelligence community and normally does not require approval by high-level NSC officials.