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.