Did Nazi Lawyers Tell Hitler It Was Legal To Kill Jews?

President Obama finds you guilty and sentences you to death!

President Obama finds you guilty and sentences you to death!

From the New York Birdcage Liner:

David Barron and Martin Lederman had a problem. As lawyers in the Justice Department’s Office of Legal Counsel, it had fallen to them to declare whether deliberately killing Mr. Awlaki, despite his citizenship, would be lawful, assuming it was not feasible to capture him. The question raised a complex tangle of potential obstacles under both international and domestic law, and Mr. Awlaki might be located at any moment.

According to officials familiar with the deliberations, the lawyers threw themselves into the project and swiftly completed a short memorandum. It preliminarily concluded, based on the evidence available at the time, that Mr. Awlaki was a lawful target because he was participating in the war with Al Qaeda and also because he was a specific threat to the country. The overlapping reasoning justified a strike either by the Pentagon, which generally operated within the Congressional authorization to use military force against Al Qaeda, or by the C.I.A., a civilian agency which generally operated within a “national self-defense” framework deriving from a president’s security powers.

They also analyzed other bodies of law to see whether they would render a strike impermissible, concluding that they did not. For example, the Yemeni government had granted permission for airstrikes on its soil as long as the United States did not acknowledge its role, so such strikes would not violate Yemeni sovereignty.

And while the Constitution generally requires judicial process before the government may kill an American, the Supreme Court has held that in some contexts — like when the police, in order to protect innocent bystanders, ram a car to stop a high-speed chase — no prior permission from a judge is necessary; the lawyers concluded that the wartime threat posed by Mr. Awlaki qualified as such a context, and so his constitutional rights did not bar the government from killing him without a trial.

But as months passed, Mr. Barron and Mr. Lederman grew uneasy. They told colleagues there were issues they had not adequately addressed, particularly after reading a legal blog that focused on a statute that bars Americans from killing other Americans overseas. In light of the gravity of the question and with more time, they began drafting a second, more comprehensive memo, expanding and refining their legal analysis and, in an unusual step, researching and citing dense thickets of intelligence reports supporting the premise that Mr. Awlaki was plotting attacks.

Their labors played out against the backdrop of how some of their predecessors under President George W. Bush had become defined by their once-secret memos asserting a nearly unlimited view of executive authority, like that a president’s wartime powers allowed him to defy Congressional statutes limiting torture and surveillance.

Indeed, Mr. Barron and Mr. Lederman had produced a definitive denunciation of such reasoning, co-writing a book-length, two-part Harvard Law Review essay in 2008 concluding that the Bush team’s theory of presidential powers that could not be checked by Congress was “an even more radical attempt to remake the constitutional law of war powers than is often recognized.” Then a senator, Mr. Obama had called the Bush theory that a president could bypass a statute requiring warrants for surveillance “illegal and unconstitutional.”

Now, Mr. Barron and Mr. Lederman were being asked whether President Obama’s counterterrorism team could take its own extraordinary step, notwithstanding potential obstacles like the overseas-murder statute. Enacted as part of a 1994 crime bill, it makes no exception on its face for national security threats. By contrast, the main statute banning murder in ordinary, domestic contexts is far more nuanced and covers only “unlawful” killings.

As they researched the rarely invoked overseas-murder statute, Mr. Barron and Mr. Lederman discovered a 1997 district court decision involving a woman who was charged with killing her child in Japan. A judge ruled that the terse overseas-killing law must be interpreted as incorporating the exceptions of its domestic-murder counterpart, writing, “Congress did not intend to criminalize justifiable or excusable killings.”

And by arguing that it is not unlawful “murder” when the government kills an enemy leader in war or national self-defense, Mr. Barron and Mr. Lederman concluded that the foreign-killing statute would not impede a strike. They had not resorted to the Bush-style theories they had once denounced of sweeping presidential war powers to disregard Congressionally imposed limitations.

Due to return to academia in the fall of 2010, the two lawyers finished their second Awlaki memorandum, whose reasoning was widely approved by other administration lawyers, that summer. It had ballooned to about 63 pages but remained narrowly tailored to Mr. Awlaki’s circumstances, blessing lethal force against him without addressing whether it would also be permissible to kill citizens, like low-ranking members of Al Qaeda, in other situations.

Nearly three years later, a version of the legal analysis portions would become public in the “white paper,” which stripped out all references to Mr. Awlaki while retaining echoes, like its discussion of a generic “senior operational leader.” Divorced from its original context and misunderstood as a general statement about the scope and limits of the government’s authority to kill citizens, the free-floating reasoning would lead to widespread confusion.

Did Nazi lawyers tell Hitler is was legal to kill Jews? The reason I ask is I can easily picture some future war crimes tribunal reviewing these memos at the trial of Obama administration officials. If Barron and Lederman were on trial the memos would be introduced by the prosecution to show their complicity with multiple murders.

But I could also imagine them being introduced by other defendants trying to argue that they were “just following orders”. Either way I would not expect the memos to be helpful to the defense. In fact I would consider them to be damning evidence.

Imagine this scenario: Police are looking for a suspected killer. There are warrants for his arrest. They believe they have located him. Under which of the following circumstances can they legally shoot him without warning?

A) He is driving down the road unaware the the police are following him.

B) He is fleeing at high speed from the police.

C) He is sitting in a restaurant eating a meal with friends and family.

D) He is robbing the restaurant at gunpoint.

E) He may have a weapon.

F) He is brandishing a weapon.

Under our laws the police may not shoot someone just because they are wanted for a crime, no matter how strong the evidence might be. They have to attempt to arrest him and if he resists or flees deadly force may be authorized.

What’s that you say? Due process does not apply to enemy combatants in war time? That raises a number of issues.

1. Who exactly are we “at war” with?

2. How do you define and/or identify “enemy combatants?”

3. Do the Geneva Conventions apply to enemy combatants?

This whole area is a really scary deal. We are forced to rely completely on the government’s word and they slap a big “Classified” label on everything so they don’t have to tell us anything. Imagine a trial where the jury wasn’t allowed to see the evidence and the defendant was not allowed to participate.

That’s basically what is happening. The administration determines whether the person is an “enemy combatant” as well as their guilt. There is no defense case. Verdict is reached and sentence is passed in secret. There is no appeal. After the sentence is carried out we might be informed of that fact but the evidence remains classified. There is no independent investigation or review.

We’re just supposed to trust our government.

One last question – did anyone in the Obama administration reach any different conclusions? I have a little bit of experience at preparing legal memoranda. This type of memo usually presents arguments both for and against. I find it hard to believe that none of the administration’s lawyers had any legal qualms about targeted assassination.

After all, we’re talking about cold-blooded murder.

BTW – I really don’t understand the distinction between drone targets that are American citizens and those who are not. Murder is murder and any human being can be a victim.

About Myiq2xu - BA, JD, FJB

I was born and raised in a different country - America. I don't know what this place is.
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33 Responses to Did Nazi Lawyers Tell Hitler It Was Legal To Kill Jews?

  1. Here’s the equivalent NYT article discussing the Yoo memo during the Bush years: http://www.nytimes.com/2008/04/02/washington/02terror.html?_r=0

    Tale of two articles… I wonder, d’you think this memo will get to be known as “The Barron & Lederman memo”?

  2. DandyTiger says:

    For the life of me, I don’t see the difference between this and the last administration.

    • myiq2xu says:

      “It’s different when we do it.”

    • leslie says:

      You might want to rethink saying “for the life of me”.
      (There ain’t no difference ‘cept for myiq’s respo)nse

    • elliesmom says:

      From “The Dukes of Hazard” – What happens to a politician when he takes Viagra? He gets taller. Doesn’t matter which party he belongs to.

    • foxyladi14 says:

      According to the Obamedia there is. 🙄

    • swanspirit says:

      This one , Obama’s , is far worse . Obama has grabbed more power , and not only has no oversight from the media , he gets approval from the media for most of what he does and they cover up what they think might not meet public approval. I could go on , there are many other reasons this one is worse , those two reasons are the big ones

      • angienc (D) says:

        The MSM didn’t let SoS Powell’s deputy secretary get away with exposing Plame without tying it to GWB’s VP (and if they could have tied it to GWB directly, they would have — Cheney was a close as they could get). Now, they’ve let Obama get away with the murder of a US Ambassador & 3 others without his even having to release testimony from the 30 survivors to Congress.
        Or how about the coverage of some ADAs getting fired/replaced under Alberto Gonzales v. coverage of Fast & Furious under Eric Holder?
        Or look at the coverage of Katrina & Sandy re: FEMA.
        It isn’t even a contest which administration is worse just on the basis of the treatment by the MSM.

  3. myiq2xu says:

  4. We are in peril of an avalanche on this slippery slope. It concerns me greatly- who decides? Are we bloggers of the loyal opposition enemy combatants?

  5. gumsnapper says:

    What was the legal justification for killing Awlaki’s 16 year old son?

  6. myiq2xu says:

    Jeb Bush is hitting all the morning talk shows plus Univision.

    This is a new record for a single Sunday morning. The previous record was referred to a a “Full Ginsberg”. A Full Ginsburg plus one shall henceforth be known as a “Full Bush”.

    • foxyladi14 says:

      Comes in the same package as the Uniforms. 😆

    • It’s drone day in the media. Must be some sort of Obama offensive. NYT has two, including the one in this blog post. Yahoo has two. I’ve seen a few others.

      Drones, drones, everywhere there’s drones,
      marking up a perfect view, and watching my home.

  7. wmcb says:

    The whole approach to civil liberties and TGWOT has convinced me (were I not already convinced) that the majority of the Left has no principles. Only strategies. Any and every issue is a means to power, and easily discarded if not helpful anymore to that primary goal.

  8. myiq2xu says:


    Paul’s filibuster shows what an emboldened Republican Party can accomplish. Was it political theatre? Of course, but who cares? All of politics is theatre, and for the last decade or so, the Democrats have been better at it. Superior stagecraft gave Obama two Presidential victories and the subsequent policy wins such as Obamacare. Notice in my Fox hit I make allusion to Republican Senators like Sen. Ted Cruz actually showing up to hearings and asking tough questions. This is a serious problem, particularly in high profile hearings with the Attorney General. When Republicans show up and fight, as Cruz and Paul have done, Holder makes mistakes, and the administration retreats in the face of an aggressive opposition. That’s the lesson of the Paul filibuster.

    • angienc (D) says:

      Obots complaining that Rand’s filibuster was just “political theater” have got to be the dumbest idiots on the face of the earth. The phrase “bread and circuses” wasn’t invented yesterday & Obama owes his entire political career to it.

  9. HELENK says:


    this is from the other day. It scares the hell out of me. lawyers find justification for killing and a part of the population sees nothing wrong with it. Germany in the 1930s

    Ben Franklin
    a republic if you can keep it

  10. myiq2xu says:

  11. Propertius says:

    Did Nazi lawyers tell Hitler is was legal to kill Jews?

    In fact, they did. Many of the participants in the infamous Wannsee Conference were attorneys and much of the discussion during the conference concerned establishing a legal framework for the Final Solution. As Heydrich said when he convened the conference:

    All our actions must be predicated on law.

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