Memo on lethal drone strike is released

Provides most detailed explanation to date for legal reasoning behind Awlaki killing


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WASHINGTON — A fed­eral court on Mon­day re­leased a pre­vi­ously se­cret gov­ern­ment memo out­lin­ing the le­gal jus­ti­fi­ca­tion for the 2011 kill­ing of An­war al-Aw­laki, a U.S. cit­i­zen and ac­cused al-Qaida op­er­a­tive, in a drone strike in Yemen.

The doc­u­ment was re­leased un­der or­der of the 2nd U.S. Cir­cuit Court of Ap­peals in New York and pro­vides the most de­tailed ex­pla­na­tion to date for the le­gal rea­son­ing be­hind Aw­laki’s kill­ing. Its dis­clo­sure also rep­resents a sig­nifi­cant ca­pit­u­la­tion by the Obama ad­min­is­tra­tion, which fought for years to keep the memo — as well as many other as­pects of its tar­geted-kill­ing pro­gram — se­cret from the pub­lic.

“We do not be­lieve that [Aw­laki‘‍s] U.S. cit­i­zen­ship im­poses con­sti­tu­tional lim­ita­tions that would pre­clude the con­tem­plated le­thal ac­tion” by the U.S. mil­i­tary or CIA, the memo con­cluded, clear­ing the way for a drone strike that would trig­ger in­tense le­gal and po­lit­i­cal de­bate.

Civil lib­er­ties groups wel­comed the dis­clo­sure of the 41-page memo. “The re­lease of this memo rep­resents an over­due but none­the­less cru­cial step to­wards trans­par­ency,” said Jameel Jaffer, dep­uty le­gal di­rec­tor of the Amer­i­can Civil Lib­er­ties Union, which along with The New York Times had filed Free­dom of In­for­ma­tion Act law­suits to com­pel the gov­ern­ment to re­lease the July 2010 doc­u­ment. “The re­lease of this memo will al­low the pub­lic to bet­ter un­der­stand the scope and im­pli­ca­tions of the au­thor­ity the gov­ern­ment is claim­ing,” he said.

Im­por­tant sec­tions of the Justice Depart­ment’s le­gal anal­y­sis were stripped from the ver­sion of the doc­u­ment re­leased to the pub­lic. Among the de­leted por­tions were para­graphs that pre­sum­ably ex­plained why the Justice Depart­ment’s Of­fice of Legal Coun­sel de­ter­mined that kill­ing Aw­laki in a drone strike would not vi­o­late the Fourth Amend­ment, which guar­an­tees due pro­cess to U.S. cit­i­zens ac­cused of crimes. Still, the memo pro­vides pre­vi­ously un­known de­tails about the rea­son­ing be­hind one of the most con­tro­ver­sial counter-ter­ror­ism op­er­a­tions car­ried out by the U.S. gov­ern­ment since the Sept. 11, 2001, at­tacks.

Aw­laki’s re­la­tion­ship with al-Qaida “brings him within the scope” of the 2001 con­gres­sio­nal au­tho­ri­za­tion of the use of mil­i­tary force, ac­cord­ing to the doc­u­ment. Cit­ing in­for­ma­tion pro­vided by the CIA and Pen­ta­gon, the memo said Aw­laki has “op­er­a­tional and leader­ship roles” with al-Qaida and “con­tin­ues to plot at­tacks in­tended to kill Amer­i­cans.” In part be­cause that au­tho­ri­za­tion spec­i­fied no geo­graphic bound­aries, it did not mat­ter that Aw­laki was based in Yemen rather than Af­ghan­istan, where the bulk of the U.S. war ef­fort against al-Qaida was fo­cused.

The memo ex­plores a range of other po­ten­tial le­gal is­sues, find­ing for ex­am­ple that fed­eral laws de­signed to pre­vent U.S. na­tion­als from get­ting away with mur­der over­seas “had noth­ing to do with the con­duct of an au­tho­rized mil­i­tary op­er­a­tion by U.S. armed forces.”

The doc­u­ment makes no spe­cific men­tion of armed U.S. drone air­craft, re­fer­ring only to “con­tem­plated le­thal op­er­a­tions.” But the memo was drafted at a time when drone at­tacks and other U.S. air­strikes had be­gun to surge in Yemen, from two in 2009 to 41 in 2012, ac­cord­ing to the Long War Jour­nal web­site. Even be­fore the Justice Depart­ment memo was signed, Aw­laki had been added to U.S. “kill lists.”

A Muslim cleric born in New Mex­ico, Aw­laki was killed in a CIA drone at­tack in Sep­tem­ber 2011, af­ter be­ing linked to an al-Qaida af­fil­i­ate in Yemen that had mounted a se­ries of ter­ror­ist plots against the United States. Among them was the at­tempted bomb­ing of a Detroit-bound air­liner on Christ­mas Day in 2009.

The ad­min­is­tra­tion has ac­knowl­edged kill­ing three other U.S. cit­i­zens in Yemen, in­clud­ing Aw­laki’s teen­age son in a sep­a­rate strike a month af­ter his father was killed. But only the el­der Aw­laki was tar­geted in­ten­tion­ally, ac­cord­ing to U.S. of­fi­cials, who have said the oth­ers were killed in­ci­den­tally in strikes against other tar­gets.

The memo in­cludes a sec­tion de­voted spe­cif­i­cally to the le­gal­ity of le­thal op­er­a­tions car­ried out by the CIA, mark­ing a rare in­stance in which the agency’s role in the drone pro­gram has been so for­mally ac­knowl­edged.

The broad out­lines of the memo have been dis­closed pre­vi­ously, in­clud­ing in a let­ter that At­tor­ney Gen­eral Eric Holder sent to the Senate Ju­di­ciary Com­mit­tee say­ing that tar­get­ing a U.S. cit­i­zen was seen as a last re­sort but per­mis­si­ble as long as the per­son posed “an im­mi­nent threat of vi­o­lent at­tack against the United States” and that cap­ture was “not fea­si­ble.”

The newly re­leased doc­u­ment in­di­cates that both the U.S. mil­i­tary and the CIA had as­sured the Justice Depart­ment that “they in­tend to cap­ture” Aw­laki but had made clear that do­ing so “would be in­fea­si­ble at this time.”

While ac­knowl­edg­ing that kill­ing a U.S. cit­i­zen car­ries “the risk of er­ro­ne­ous depri­va­tion of a cit­i­zen’s lib­erty in the ab­sence of suf­fi­cient pro­cess,” the memo ar­gued that those con­sid­er­ations are over­whelmed when the tar­get poses “a con­tin­ued and im­mi­nent threat of vi­o­lence or death” to other Amer­i­cans.

The memo was signed by David Bar­ron, who later left the Of­fice of Legal Coun­sel to re­turn to his po­si­tion at Har­vard Law School. Mr. Bar­ron has since been con­firmed to a po­si­tion on a fed­eral ap­peals court. Mem­ber of Con­gress threat­ened to block his nom­i­na­tion un­less the Aw­laki memo was re­leased.

United States - North America - United States military - United States government - Middle East - United States Congress - Yemen - Al-Qaida - United States Senate - Eric Holder - Ron Wyden - U.S. Department of Justice - Anwar al-Awlaki


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