The U.S. government is justified in taking lethal force against American citizens abroad if it determines that the Americans in question have joined an enemy force, a secret Justice Department memo made public Monday argues.
“[J]ust as the [2001 Authorization to Use Military Force] allows the military detention of a U.S. citizen captured abroad who is part of an armed force within the scope of the AUMF, it also authorizes the use of ‘necessary and appropriate’ lethal force against a U.S. citizen who has joined such an armed force,” the memo states.
The heavily redacted version of the long-sought after memo was released as part of a Freedom of Information Act lawsuit filed by the American Civil Liberties Union and The New York Times. The memo concludes that it would not violate domestic or international law, or the U.S. Constitution, for the U.S. government to use lethal force against Anwar al-Awlaki, the extremist preacher who was killed in an American drone strike in 2011.
The former Justice Department official whose signature lies at the bottom of the memo, David Barron, was confirmed as a judge to the U.S. Court of Appeals for the First Circuit last month. The Obama administration agreed to comply with a federal court order to release the document as part of an effort to clear his path for confirmation. This is the first time the memo has been made available to the public.
The U.S. government has acknowledged that four American citizens have been killed in drone attacks aimed at suspected terrorists abroad, mostly in Pakistan, Yemen and Somalia. The brunt of the targeted killing program has been borne by non-Americans – third-party estimates of civilian casualties range from hundreds to thousands.
“Because al-Awlaki is a U.S. citizen, the Fifth Amendment’s due process clause, as well as the Fourth Amendment, likely protects him in some respects even while he is abroad,” the memo reads. Nevertheless, it concludes that “we do not believe that al-Awlaki’s U.S. citizenship imposes constitutional limitations that would preclude the contemplated lethal action under the facts represented to us by DoD, the CIA and the Intelligence Community.”
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.”
The memo is dated July 16 2010. Media reports discuss Awlaki being targeted in drone strikes as early as December 2009. According to a 2011 article in The New York Times, oral approval may have been given by the Justice Department’s Office of Legal Counsel before a written legal opinion had been drafted.
Jameel Jaffer of the ACLU said in a statement that the release of the memo was “an overdue but nonetheless crucial step towards transparency. There are few questions more important than the question of when the government has the authority to kill its own citizens.”
The logic of the memo, that the U.S. government was justified in killing al-Awlaki because it believed him to be terrorist allied with al-Qaida, is unlikely to persuade human rights and civil liberties groups that have until now maintained that taking his life violated al-Awlaki’s constitutional right to due process.
Pardiss Kebriaei, an attorney with the Center for Constitutional Rights, a plaintiff in previous lawsuits involving the U.S. government’s targeted killing program, said in a statement that the memo was ”built on gross distortions of law” and that “The United States loosening and redefining international rules governing the use of force and war is ultimately not going to make anyone any safer.”
The Congressional Progressive Caucus, a group made up of liberal House Democrats, also offered cheeky criticism of the White House, sending out a press release praising the disclosure of the memo that was highly redacted, much like the memo itself.
Although the administrations’ most prominent critics on civil liberties matters have chided the White House for lack of transparency, most have agreed with the memo’s underlying conclusion that killing al-Awlaki was lawful. In November of last year, Wyden, Udall, and New Mexico Democratic Senator Martin Heinrich wrote a letter stating that ”the decision to use lethal force against Anwar al-Awlaki was a legitimate use of authority granted to the president.”
Only Senator Rand Paul, a Kentucky Republican, objected to the underlying conclusion. Speaking on the Senate floor in May shortly before Barron’s nomination was approved, Paul said, “I believe the Barron memos, at their very core, disrespect the Bill of Rights.”