8 Things You Should Know About the Shocking Legal Memo That Justified Assassinating a U.S. Citizen

The Obama administration’s extraordinary claims that it has the legal authority to kill an American citizen overseas was finally released on June 23 after years of legal wrangling.  

The memo was made public as the result of a lawsuit filed by the New York Times and the American Civil Liberties Union. Since 2011, the U.S. resisted shedding light on the justification. But a federal court ordered the release of the memo in April, saying that public statements U.S. officials uttered on the killing of an American citizen overseas meant that there was no reason to keep the memo secret.

The Justice Department legal memo is authored by David Barron, who was recently confirmed as a judge on a federal court.  It is an attempt to legalize what was once unthinkable: the extrajudicial assassination of an American citizen caught in the crosshairs of President Obama’s drone war.

The memo, written in July 2010, gave the U.S. government legal cover to fire a drone missile at Anwar al-Awlaki, a U.S.-born Islamic preacher who was once praised as a voice of moderate Islam but grew deeply disillusioned in the wake of the war on terror.  Awlaki moved to Yemen in the mid-2000s and grew to prominence as a preacher who denounced America, his former home, for crimes against Muslims.

While it’s clear Awlaki preached violent jihad and had links with Al Qaeda in the Arabian Peninsula (AQAP), it is less clear what his exact role with the organization was.  U.S. government claims that he was actively involved in plotting attacks against America were called into question in reporting by Jeremy Scahill, whose book Dirty Wars contains the most exhaustive account of Awlaki’s life.  Critics of the government’s decision to try to kill him say that Awlaki’s sermons seemed to be the reason for trying to assassinate him, and that those sermons were protected under the First Amendment.

Nevertheless, despite doubts that Awlaki was a direct threat to the lives of Americans, the U.S. killed him.  On September 30, 2011, a U.S. drone killed the man who was born in New Mexico.   

The legal memo justifying the extrajudicial assassination raises as many questions as it does answers.  Here are 8 things you should know about this extraordinary attempt to justify the killing of an American citizen.

1. The memo is retroactive.  If the U.S. military had its way, Awlaki would have been dead long before the Obama administration crafted a controversial legal argument that his death was justified under U.S. statues.

The first time the Joint Special Operations Command (JSOC) targeted Awlaki for death was in December 2009.  A drone strike was launched on December 24, 2009, aimed at a meeting of AQAP leaders. Awlaki was reportedly there, but he escaped death.  U.S. officials claimed to the New York Times he was not the target of the strike and that he would have been “collateral damage.”  Still, if he was killed then, there would have been no legal gloss to justify it.

2. Israeli law is cited as a precedent.  The U.S. and its number one ally in the Middle East are fond of borrowing from each other when it comes to the most repressive tactics used in the war on terror.  Drones are no exception--and neither is the killing of Awlaki.

Buried in a footnote in the memo is a citation of an Israeli Supreme Court decision on why extrajudicial assassinations are legal if capture is not feasible.  As the Electronic Intifada’s Rania Khalek notes, in 2006, the Israeli Supreme Court ruled that it was legal to extrajudicially target alleged Palestinian militants if an operation to capture the person is impossible or involves high risk to soldiers. That case and reasoning is cited in the Justice Department memo to justify why Awlaki was killed.

It also mirrors what U.S. officials have said in public: that “targeted killings”--the euphemism for assassinations--are justified when capturing the suspect is not feasible. But the memo doesn’t provide reasons why capturing Awlaki was not feasible.  The U.S. is a strong ally of the Yemeni government, which had also been going after Awlaki.  Critics of the operation to kill Awlaki have questioned why Yemeni forces didn’t arrest the man.

3. No evidence is presented. Many portions of Barron’s legal reasoning were released.  But one important part of the U.S. case against Awlaki remains redacted in the legal memo: the actual evidence used to determine Awlaki was “an active, high-level leader of an enemy force who is continually involved in planning and recruiting for terrorist attacks,” as the memo states.

Civil liberties activists and journalists have questioned that assertion.  And the government has not released evidence that backs it up.

4. The administration is judge, jury and executioner. The Justice Department memo sets out to legalize the first time since the Civil War a U.S. administration had specifically targeted a citizen for death without trial.  It’s a unilateral process:  the administration decides to kill a citizen.  The evidence is drawn up by the administration.  The administration then carries out the assassination.

No independent oversight is sought, and no independent court had the chance to weigh in on the evidence.  Civil liberties lawyers have challenged the decision to kill Awlaki on the basis of the Fifth Amendment, which prohibits being deprived of life or liberty without “due process.”  Attorney General Eric Holder infamously claimed that “the Constitution guarantees due process, not judicial process.”

5. CIA’s role is acknowledged.  Despite public speeches made about the drone program, U.S. officials have sought to shield the Central Intelligence Agency’s role in the drone program.  While JSOC tried to kill Awlaki first, it was the CIA that ultimately fired the drone missile that killed Awlaki.

The CIA has taken the lead in the drone program, providing a way for the U.S. to shield details of it, since the CIA is a covert intelligence agency. But in the legal memo, Barron acknowledges the CIA’s role in the drone assassination program.  During the legal wrangling, the Obama administration claimed that disclosing the role of the CIA would reveal classified information.

6. The full justification for Awlaki’s death has not been released.  This legal memo is only one document that civil liberties groups and journalists are seeking.  A Justice Department white paper that laid out legal reasoning was leaked last year.

But an earlier memo than the one just released was written by Barron to justify the killing.  And the ACLU is seeking other documents related to the drone killings of two other Americans: 16-year-old Abdulrahman Awlaki, the son of Anwar, and Samir Khan, an American member of AQAP.

7. The AUMF is used to justify the strike.  After 9/11, Congress hastily passed a law authorizing the use of military forces against Al Qaeda.  Later, the U.S. said that the law also applies to Al Qaeda’s “associated forces,” though that language is not in the legislation.  The law has been used to justify an endless war with no contained battlefield.

The AUMF is the authority the U.S. points to when waging drone wars on Pakistan, Yemen and Somalia.  And now we know that it is the law the U.S. cited to help justify the killing of Awlaki.

8. Release of memo exposes Obama’s secretive administration. The Obama administration fought tooth and nail to avoid releasing this legal memo, only relenting after a federal court ordered it to do so. And even then, the administration successfully sought to redact significant portions of the memo.

The fight against releasing the memo points to the larger problem of the Obama administration's intense secrecy about its drone war. The names of people slain in the drone war have not been released, including the number of civilians dead. There’s also little information on how targets are selected for death.

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