Killing of Al Awlaki deemed ‘lawful’

Washington: Lifting a veil of official secrecy from President Barack Obama’s decision to authorise the killing of a US citizen without a trial, a federal appeals court on Monday publicly released large portions of a Justice Department memo that deemed it lawful to target Anwar Al Awlaki, a US-born Muslim cleric accused of becoming a terrorist.

The Obama administration completed the memo in July 2010, more than a year before the September 2011 drone strike in Yemen that killed Al Awlaki along with another American near him, Samir Khan, who officials have said was not specifically targeted. The memo was released in response to lawsuits filed by The New York Times and the American Civil Liberties Union under the Freedom of Information Act.

Obama’s decision to authorise the military and the CIA to hunt down and kill Al Awlaki was an extraordinary step that created an important precedent for executive power, civil liberties and the rule of law.

Intelligence officials had concluded that Al Awlaki was an operational terrorist leader who had gone overseas, become part of Al Qaida or an associated force and was “engaged in continual planning and direction of attacks” on Americans. His capture was not feasible, the memo said. Working from that premise, David Barron, then the acting head of the Justice Department’s Office of Legal Counsel, concluded that it would be lawful for the government to kill Al Awlaki, notwithstanding federal statutes against murdering Americans overseas and protections in the Constitution against unreasonable seizures and depriving someone of life without due process of law.

“We do not believe Al Awlaki’s citizenship provides a basis for concluding that he is immune from a use of force abroad” as otherwise congressionally authorised to use against Al Qaida, Barron wrote, addressing the memo to Attorney General Eric Holder.

Barron, who signed the memo, was assisted by Martin Lederman, another attorney in the office. Lederman has since returned to teaching law at Georgetown University, and Barron was confirmed last month to a US appeals court in Boston. The Obama administration, under pressure from senators who threatened to block Barron’s nomination, decided to release the redacted memo rather than appeal a court ruling that said it must be made public. There was some delay, however, as the administration successfully sought permission from the court to redact additional details, including an 11-page section at the front of the memo compiling the evidence to support the intelligence community’s assertion that Al Awlaki was not merely a propagandist but an operational terrorist.

The opinion released on Monday by the appeals court was a new version of one it released in April, and it included passages that were previously redacted. Among those passages were instructions from the court to make related Office of Legal Counsel memos available to a US District Court judge for review and possible release.

The Justice Department’s memo from July 2010 makes reference to an earlier memo, also written by Barron, that focused largely on constitutional issues in targeting Al Awlaki. The New York Times has reported that after the attempted bombing of a Detroit-bound airliner on December 25, 2009, to which Al Awlaki was linked, Barron and Lederman swiftly wrote a short memo approving the targeting of Al Awlaki if he was located.

Later, after seeing a post on an international law blog that raised the statute banning the murder of Americans abroad, which their first memo did not address, they went back and wrote the lengthier July 2010 memo.

The longer memo argues that the killing of a wartime enemy by the military would qualify for a “public authority” exception to the foreign murder statute. A section about the possibility that the C.I.A., a civilian agency, might carry out the killing appears to invoke similar reasoning but is heavily redacted; one portion also argues that it would not be a war crime for the agency to carry out the killing.

Sen. Mark Udall, D-Colo., who had opposed Barron’s confirmation but supported it after the administration promised to release the document, called the release “a victory for government transparency” but said he would continue to press for additional disclosures to related questions, like “how much evidence the government requires in order to make an American a legitimate target.”

Jameel Jaffer, a lawyer for the ACLU, called the release of the memo “an overdue but nonetheless crucial step toward transparency.” He added: “There are few questions more important than the question of when the government has the authority to kill its own citizens. This memo’s release will allow the public to better understand the scope and implications of the authority the government is claiming.”

In October 2011, a week after the strike, The Times reported on the contents and bureaucratic history of the then-classified memo and filed an information act request for it. The paper and the ACLU filed separate lawsuits seeking its public disclosure several months later.

The Obama administration fought the lawsuits, initially refusing to confirm or deny the memo’s existence. In January 2013, a district court judge ruled that it could keep the memo secret. But in April, the Court of Appeals for the 2nd Circuit ruled that portions containing legal analysis — but not those compiling classified evidence against Al Awlaki — must be made public.

Between those two rulings, the Obama administration had made public an unclassified Justice Department “white paper” describing its legal analysis on targeted killings of citizens. The paper had been derived from the Al Awlaki memo for Congress to read and was leaked to NBC News, prompting its official release to at least two reporters who had requested it under the information act.

“The substantial overlap in the legal analyses in the two documents fully establishes that the government may no longer validly claim that the legal analysis in the memorandum is a secret,” Judge Jon O. Newman wrote, in another previously redacted passage of the ruling.

The memo also addresses arguments by some scholars of international law that for legal purposes there is no armed conflict in Yemen. It argues that wartime legal authority to target enemies extends to Yemen given the circumstances of Al Qaida activities there.

Barron cited and expressed disagreement with the work of Mary Ellen O’Connell, a University of Notre Dame law professor who has argued that Yemen was not an armed conflict zone. On Monday, O’Connell criticised the brevity with which Barron addressed her argument as “astonishing” given the issue’s importance as a “linchpin” of his legal rationale.