The United States Court of Appeals for the Second Circuit has released a secret Obama administration memorandum detailing the legal justification for a 2011 drone strike in Yemen that killed Anwar al-Awlaki, an al-Qaida leader born in the U.S.
The memo concludes that al-Awlaki’s citizenship would not preclude the U.S. from “taking lethal action” against him, based on facts about the case submitted by the CIA, Department of Defense, and intelligence community. This summation of legality is predicated on the U.S. government’s declaration of al-Awlaki as an “operational leader” of an “enemy force” — al Qaeda.
Here’s the rationale, as summarized by Reuters:
The memo, prepared by the Justice Department’s Office of Legal Counsel, says that because the U.S. government considered al Awlaki to be an “operational leader” of an “enemy force,” it would be legal for the CIA to attack him with a drone “as part of the United States’ ongoing non-international armed conflict with al Qaeda,” even though he was a U.S. citizen.
The memo also says the killing of al Awlaki by U.S. military forces would be legal under an authorization for the use of U.S. military force approved by Congress following the Sept. 11, 2001, attacks on New York and Washington, D.C.
According to the memo, a U.S. citizen like al-Awlaki would be protected by the Fifth Amendment’s due-process clause, as well as the Fourth Amendment, even while he is abroad. But the memo states a “decision-maker,” such as President Barack Obama, could “reasonably conclude” that al-Awlaki’s actions posed a “continued” and “imminent” threat to the United States.
“In addition to the nature of the threat posed by al-Aulaqi’s activities, both agencies here have represented that they intend to capture rather than target al-Aulaqi if feasible; yet we also understand that an operation by either agency to capture al-Aulaqi in Yemen would be infeasible at this time,” the memo reads.
Citing from the Supreme Court case Hamdi v. Rumsfeld, Barron wrote that “the realities of combat” render certain uses of force “necessary and appropriate,” including against U.S. citizens who have become part of enemy forces —and that “due process analysis need not blink at those realities.
There is so much wrong in this story I don’t know where to begin.
I guess I should start by pointing out that this memo has no legal authority. It is merely the opinion of one or more White House lawyers. Other lawyers could disagree. As a matter of fact, this lawyer here does, and my opinion has just as much legal authority as theirs (i.e. none).
I can still remember when Democrats were up in arms about the “Torture memos” written by John Yoo. Progressives called the memos evidence of a war crime. I agree with that assessment.
I don’t expect them to react the same way to this “assassination memo” since it was authored by someone in the Obama White House. Lots of Republicans were okay with torture and they are okay with presidential assassination orders too so they won’t say much either.
Having principles and consistently sticking to them often makes you a lone voice howling in the wilderness. That’s okay, I don’t care for crowds anyway.
The easiest way to point out the flaw in the memo’s reasoning is to ask under what scenario would the police be justified in preemptive homicide of a criminal suspect. Under the law there are certain situations where the police could shoot a suspect:
a. Police may use deadly force to protect themselves or others from what they reasonably believe to be an immediate threat of death or serious physical injury.
b. Police may use deadly force to affect the capture or prevent the escape of a suspect where the officer has probable cause to believe that the suspect poses a significant and immediate threat of death or serious physical injury to the officer or others.(Fleeing Felon Rule)
I tried to think of examples where police opened fire without warning on a suspect who was not an imminent threat and the only examples I could come up with were:
1. Pat Garrett shooting Billy the Kid in the back.
2. Melvin Purvis gunning down John Dillinger.
3. Six officers ambushing and killing Bonnie and Clyde.
Compare this to the drone assassination of Anwar al-Awlaki. As far as we know, al-Awlaki was unarmed and not an immediate or imminent threat to anyone. He was having breakfast in Yemen when he was killed. Two weeks later we whacked his 16 year old son too. In both cases other people (“suspected al Qaeda terrorists”) were killed as well.
So what exactly did these people do that deserved their assassinations? Were any of them guilty of one or more capital crimes? Do we kill anyone who says “Death to America” or do we need something more substantial?
Was a warrant ever issued for the arrest of al-Awlaki? If so, what were the charges? What if the Obama administration had announced that al-Awlaki was wanted for certain crimes and gave him a chance to surrender peacefully? Did they try that option?
What is the process for issuing a presidential death warrant? Is there any kind of oversight or review? With this administration there is no point in asking if there is any accountability. The process and the evidence are all top secret. We have to trust that the power of life and death will not be abused.
Quite frankly, I would not trust ANY president with that kind of power – especially Obama. I would rather rely on the rule of law.