David Barron’s Office of Legal Counsel memo making the case for the drone strike that killed Anwar al-Awlaki in 2011 has been released, with lots of redactions of course. The memo touches on the major controversies surrounding the operation, including Awlaki’s due process rights, the risk of killing innocent civilians, and the CIA’s involvement. Scott Shackford provides the tl;dr version of what the release does and doesn’t tell us:
The Authorization to Use Military Force (AUMF) that gave us wars in Iraq and Afghanistan gave the administration permission to pursue and capture or kill members of Al Qaeda; Al-Awlaki was a member of Al Qaeda; therefore, killing was legal. Al-Awlaki’s Fourth Amendment right to due process is brought up toward the end. The Justice Department argues here that capturing Al-Awlaki was infeasible, yet he presented a threat to the United States as “continued” and “imminent,” therefore lethal force was justified.
What sort of continued and imminent threat did Al-Awlaki present from Yemen? Don’t know. That part is all redacted. The justification of why the CIA pursued this course of action is also almost entirely redacted. Even with the memo, we actually don’t learn anything new from a leak of a similar memo NBC published last year. We don’t know why Al-Awlaki was considered to be an imminent threat and why this drone strike was the only way the Obama administration believed it needed to deal with him.
The portion of the memo dealing with potential Fifth Amendment objections to targeting al-Awlaki remains heavily redacted, though the portion dealing with the Fourth Amendment is largely readable. Attorney General Eric Holder has argued publicly that ”The Constitution guarantees due process, not judicial process,” an argument later mocked by comedian Stephen Colbert, who deadpanned in response, “due process just means there’s a process that you do.”
“To my mind, the most controversial argument we’ve heard from the Administration was Attorney General Holder’s suggestion that due process is not a requirement of judicial process,” said Stephen Vladeck, a professor at American University’s Washington College of Law. “Presumably, that argument turns on the rigor and thoroughness of the internal Executive Branch decision-making that goes into ensuring that the target may legally be attacked, and that we’re absolutely sure the target is who we think it is. But the version of the memo disclosed today offers vanishingly little insight into these critical questions–leaving most of the presumably critical analysis blacked out behind redactions.”
Conor is particularly spooked at Barron’s contention that “a decision-maker could reasonably decide that the threat posed by al-Awlaki’s activities to United States persons is ‘continued’ and ‘imminent.’”:
This passage is alarming for two reasons:
1) It asserts that the executive branch can kill Americans in secret under the standard, “a decision-maker could reasonably decide…” Dick Cheney was “a decision-maker.” So was J. Edgar Hoover. Are we prepared to accept that 5th Amendment protections are null based on a relativistic standard as interpreted in secret by men like them?
2) The memo treats the representation that al-Awlaki posed an “imminent” threat as important. But unless it is hidden in a redaction, the memo does not address how “imminent” is defined, and there is good reason to believe that the Obama Administration has defined it so dubiously as to render the term meaningless. I explored this problem at greater length back on February 5, 2013, when Michael Isikoff published another memo that dealt with extrajudicial killings. It set, as a precondition of such killings, “an imminent threat of violent attack.”
David Kravets focuses on how the memo addresses the question of collateral damage:
“DoD has represented to us that it would make every effort to minimize civilian casualties and that the officer who launches the ordnance would be required to abort a strike if he or she concludes that civilian casualties would be disproportionate or that such a strike will in any other respect violate the laws of war,” according to the “memorandum for the attorney general.”
But that didn’t sit well with [Pardiss] Kebriaei. In a telephone interview, the Center For Constitutional Rights attorney said that “if you accept the idea of a global war and you can follow a target wherever he goes, there is a significant risk of harm to civilians in the area precisely because the laws of war do allow some collateral harm. It’s basically a huge risk of harm to ordinary people and civilians if you accept this premise which can be invoked by other countries.”
And Kevin Jon Heller picks apart the justification for letting the CIA carry out the assassination:
Is it really the case that the CIA is no less entitled to invoke the [public authority justification] than the DoD? There is at least one obvious difference between the two: because international law entitles only the members of a state’s regular armed forces to participate in hostilities, the CIA had no authority under international law to use armed force against al-Awlaki. The CIA is not part of the US’s regular armed forces. …
[T]he AUMF specifically authorizes the President to use the “United States Armed Forces” against AQ; it says nothing about the CIA using force. And, of course, the War Powers Resolution, which the AUMF specifically references, applies only to “the introduction of United States Armed Forces into hostilities.” How, then, can the AUMF provide the domestic authorization necessary for the PAJ to apply to the CIA? Nor is that all. The memo’s own cites strongly suggest that the PAJ applies only to the “lawful conduct of war” by the US’s regular armed forces
This doesn’t quite settle the matter for Drum, whose beef with the Awlaki affair was never the strike itself, “but with the fact that the targeting was based on such a flimsy legal pretext”. He blames Congress for not fixing the AUMF:
The AUMF is now more than a dozen years old, and it’s long past time for Congress to emerge from its fetal crouch and write a new law specifically designed for our present circumstances. Among other things, it should address the president’s ability to target American citizens for killing. If Congress wants to give the president that power, it should debate and pass a law and the courts should rule on its constitutionality. That’s the rule of law. And regardless of whether I liked the law, I’d accept it if Congress passed it, the president signed it, and the Supreme Court declared it constitutional. Instead, as usual, Congress prefers to do nothing. This leaves them free to kibitz if they don’t like what the president is doing, or to simply avoid having to take a stand at all. It’s shameful.
On that, I think, we can all agree. And not just on this question either.
(Photo: Anwar Al-Awlaki at Dar al Hijrah Mosque on October 4 2001 in Falls Church, VA. By Tracy Woodward/The Washington Post via Getty Images.)