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Memo Justifying Drone Killing Of American al-Qaida Leader Is Released

Memo Justifying Drone Killing Of American al-Qaida Leader Is Released

By David Lauter, Tribune Washington Bureau

WASHINGTON — A previously secret Justice Department memo, released by a federal appeals court Monday, justified the targeted killing of Anwar al-Awlaki, an American citizen who was killed by a drone strike in Yemen in 2011, on the grounds that as a leader of an al-Qaida affiliate, he was actively “engaged in hostilities against the United States.”

The 2010 memo was written by David Barron, the acting head of the Justice Department’s Office of Legal Counsel at the time, and concluded that neither the Constitution nor several federal statutes would prevent the President from ordering the killing of someone in al-Awlaki’s circumstances.

“At least where, as here, the target’s activities pose a ‘continued and imminent threat of violence or death’ to U.S. persons, ‘the highest officers in the Intelligence Community have reviewed the factual basis’ for the lethal operation, and a capture operation would be infeasible,” the killing would be considered a lawful act of war, the memo concluded.

The existence of the memo and the outline of its legal argument for why the government had authority to kill al-Awlaki, who was born in New Mexico, has been known for some time. But the release of a redacted copy by a federal appeals court in New York provided the first public view of the specifics.

The Obama administration had resisted efforts to release the document to the public, but lost that fight in the appeals court and decided against appealing further.

Barron, who wrote at least three memos on the subject, was recently confirmed as a federal judge after the Obama administration agreed to a demand from several Senators that they be allowed to read the documents.

“In the present circumstances, as we understand the facts, the U.S. citizen in question has gone overseas and become part of the forces of an enemy with which the United States is engaged in an armed conflict; that person is engaged in continual planning and direction of attacks upon U.S. persons from one of the enemy’s overseas bases of operations; the U.S. government does not know precisely when such attacks will occur; and a capture operation would be infeasible,” Barron wrote.

In those circumstances, “the Constitution would not require the government to provide further process” such as advance notice or a court hearing before carrying out a deadly strike, he wrote.

In a statement, a lawyer representing al-Awlaki’s family criticized the legal reasoning in the memo.

“The DOJ memo confirms that the government’s drone killing program is built on gross distortions of law,” said Pardiss Kebriaei of the New York-based Center for Constitutional Rights.

The memo authorized either the U.S. military or the CIA to carry out a strike against al-Awlaki. The drone strike in which he was killed, which also took the life of another U.S. citizen who was traveling with him, was carried out by the military. The second victim was not a target, U.S. officials said later.

Photo via WikiCommons

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Obama Team’s Al-Awlaki Memo Furthered Bush Legacy

Oct. 17 (Bloomberg) — Killing terrorists with drones is great politics. To the question, “Is it legal?” a natural answer might well be, “Who cares?”

But the legal justifications in the war on terrorism do matter — and not just to people who care about civil liberties. They end up structuring policy. As it turns out, targeted killing, now the hallmark of the Barack Obama administration’s war on terrorism, has its roots in rejection of the legal justifications once offered for waterboarding prisoners.

The leaking of the basic content (but not the text) of an Obama administration memo authorizing the drone strike that killed U.S. citizen Anwar Al-Awlaki therefore calls for serious reflection about where the war on terrorists has been — and where it is headed next.

The George W. Bush administration’s signature anti-terror policy after the Sept. 11 attacks (apart from invading countries) was to capture suspected terrorists, detain them, and question them aggressively in the hopes of gaining actionable intelligence to prevent more attacks.

In the Bush years, after the CIA and other agencies balked at the interrogation techniques being urged by Vice President Dick Cheney, the White House asked the Department of Justice to explain why the most aggressive questioning tactics were legal. Lawyers at the Office of Legal Counsel — especially John Yoo, now a professor at the University of California at Berkeley — produced secret memos arguing that waterboarding wasn’t torture.

The Torture Memos

What was more, the memos maintained, it didn’t matter if it was torture or not, because the president had the inherent constitutional authority to do whatever was needed to protect the country.

Some of the documents were leaked and quickly dubbed “the torture memos.” A firestorm of legal criticism followed. One of the most astute and outraged critics was Marty Lederman, who had served in the Office of Legal Counsel under President Bill Clinton. With David Barron, a colleague of mine at Harvard, Lederman went on to write two academic articles attacking the Bush administration’s theories of expansive presidential power. Eventually, Jack Goldsmith, who led the Office of Legal Council in 2003-04 (and is now also at Harvard), retracted the most extreme of Yoo’s arguments about the president’s inherent power.

In the years leading to the 2008 election, all this technical criticism of the Bush team’s legal strategy merged with domestic and global condemnation of the administration’s detention policies. The Supreme Court weighed in, finding that detainees were entitled to hearings and better tribunals than were being offered. As a candidate, Obama joined the bandwagon, promising to close the prison at Guantanamo Bay, Cuba, within a year of taking office.

Guantanamo is still open, in part because Congress put obstacles in the way. Instead of detaining new terror suspects there, however, Obama vastly expanded the tactic of targeting them, with eight times more drone strikes in his first year than in all of Bush’s time in office. Barron and Lederman, the erstwhile Bush critics, were appointed to senior positions in the Office of Legal Counsel — where they wrote the recent memo authorizing the Al-Awlaki killing.

What explains these startling developments? If it’s illegal and wrong to capture suspected terrorists and detain them indefinitely without a hearing, how exactly did the Obama administration decide it was desirable and lawful to target and kill them?

The politics were straightforward. Obama’s team observed that holding terror suspects exposed the Bush administration to harsh criticism (including their own). They wanted to avoid adding detainees at Guantanamo or elsewhere.

A Father’s Appeal

Dead terrorists tell no tales — and they also have no lawyers shouting about their human rights. Before Al-Awlaki was killed, his father sued the government for putting the son on its target list. The Obama Justice Department asked the court to dismiss the claim as being too closely related to government secrets. The court agreed — a result never reached in all the Guantanamo litigation. Anwar Al-Awlaki now has no posthumous recourse.

In the bigger picture, Obama also wanted to show measurable success in the war on terrorism while withdrawing troops from Iraq and Afghanistan. But even here the means were influenced by legal concerns.

Osama bin Laden is the best example. One suspects that the U.S. forces who led the fatal raid in Abbottabad almost certainly could have taken him alive. But detaining and trying him would probably have been a political disaster. So they shot him on sight, as the international law of war allows for enemies unless they surrender.

The authority for targeted killing — as expressed in the Lederman-Barron memo — offers the legal counterpart to the political advantages of the Obama targeting policy. According to the leaks, the memo holds that the U.S. can kill suspected terrorists from the air not because the president has inherent power, but because Congress declared war on Al-Qaeda the week after the Sept. 11 attacks.

The logic is that once Congress declares war, the president can determine whom we are fighting. The president found that Yemen-based Al-Qaeda in the Arabian Peninsula, which didn’t exist on Sept. 11, had joined the war in progress. He determined that Al-Awlaki was an active member of the Yemeni groups with some role in planning attacks. And, the memo says, it’s not unlawful assassination or murder if the targets are wartime enemies.

From a formal legal standpoint, Lederman and Barron can claim consistency with their attacks on the Bush administration. They relied on Congress and international law; Yoo’s “torture memos” didn’t.

But this argument misses the more basic point: Most critics rejected Bush’s policies not on technical grounds based on the Constitution, but because they thought there was something wrong with the president acting as judge and jury in the war on terrorism.

No Defense Allowed

Anwar al-Awlaki was killed because the president decided he was an enemy. Like the Bush-era Guantanamo detainees, he had no chance to deny this — even when his father tried to go to court while he was still alive.

Naturally, a uniformed soldier in a regular war also wouldn’t get a hearing. But like the Guantanamo detainees, Al- Awlaki wore no uniform. Nor was he on a battlefield, except according to the view that anywhere in the world can be the battlefield in the war on terrorism.

Al-Awlaki might have maintained that he was merely a jihadi propagandist exercising his free speech rights as a U.S. citizen. Which might well have been a lie. Yet we have only the president’s word that he was an active terrorist — and that is all we will ever have. The future direction of the policy is therefore clear: Killing is safer, easier and legally superior to catching and detaining.

Sitting beside Al-Awlaki when he was killed was another U.S. citizen, Samir Khan, who was apparently a full-time propagandist, not an operational terrorist. Khan was, we are told, not the target, but collateral damage — a good kill under the laws of war.

Legal memos are weapons of combat — no matter who is writing them.

(Noah Feldman, a law professor at Harvard University and the author of “Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices,” is a Bloomberg View columnist. The opinions expressed are his own.)

Secret Justice Department Memo Justifies Assassination of Anwar al-Awlaki

A secret memo, written by Justice Department lawyers David Barron and Martin Lederman, provides a legal rationale for the assassination of Al-Qaeda propagandist Anwar al-Awlaki, according to the New York Times.

Al-Awlaki was killed in Yemen last month in an attack carried out by an unmanned CIA drone. His death was controversial, since unlike other suspected terrorists killed in Afghanistan, Pakistan, and Yemen, al-Awlaki was an American citizen born in New Mexico. Republican presidential candidate Ron Paul seemed particularly upset that the government was, in his words, “assassinating American citizens without charges.”

In fact, there are many laws and regulations that suggest al-Awlaki’s assassination would be illegal if he were not considered an Al-Qaeda operative fighting a war against the United States. These include Executive Order 12333 (which bans assassinations), 18 U.S.C. 1119 (which prohibits Americans from killing other Americans abroad), international rules of war, and the Fourth and Fifth Amendments to the Constitution. According to the Times, the memo considers all of these legal constraints, and finds that the assassination of al-Awlaki does not violate any of them.

That [executive] order, the lawyers found, blocked unlawful killings of political leaders outside of war, but not the killing of a lawful target in an armed conflict.

A federal statute that prohibits Americans from murdering other Americans abroad, the lawyers wrote, did not apply either, because it is not “murder” to kill a wartime enemy in compliance with the laws of war.

But that raised another pressing question: would it comply with the laws of war if the drone operator who fired the missile was a Central Intelligence Agency official, who, unlike a soldier, wore no uniform? The memorandum concluded that such a case would not be a war crime, although the operator might be in theoretical jeopardy of being prosecuted in a Yemeni court for violating Yemen’s domestic laws against murder, a highly unlikely possibility.

Then there was the Bill of Rights: the Fourth Amendment’s guarantee that a “person” cannot be seized by the government unreasonably, and the Fifth Amendment’s guarantee that the government may not deprive a person of life “without due process of law.”

The memo concluded that what was reasonable, and the process that was due, was different for Mr. Awlaki than for an ordinary criminal.

Hillary Clinton Pleased With Killing Of Key Al-Qaida Leader

Al-Qaida cleric Anwar al-Awlaki, and a second American, Samir Khan, were killed by a joint CIA-U.S. military air strike on their convoy in Yemen early Friday. Secretary of State Hillary Clinton spoke at the Clinton Presidential Library in Little Rock, AR:

“There was a momentous event today when we learned of the death of Anwar al-Awlaki,” leader of the “most dangerous affiliate of Al-Qaida,” responsible for several terrorist acts and attempts in the U.S. and for “spreading an ideology of hate and violence.”

“He can no longer threaten America, our allies and peace-loving people around the world. … But our continued vigilance is required. We will ratchet up the pressure and maintain a comprehensive strategy to deny Al-Qaida or its affiliates safe haven anywhere in the world.”