Though we don’t necessarily know incredibly much more about the US government’s factual basis for the targeted killing in September 2011 of Anwar al-Awlaki, a US citizen, the release of an Obama administration memo earlier today by a federal appeals court sheds new light on the administration’s legal rationale:
A federal appeals court in New York on Monday made public a redacted version of a 2010 Justice Department memo that signed off on the targeted killing of an American citizen, Anwar al-Awlaki, without a trial, following Freedom of Information Act lawsuits. The memo, signed by David Barron, who was then the acting head of the department’s Office of Legal Counsel and is now a federal appeals court judge in Boston, concluded that it would be lawful to target Mr. Awlaki for killing if his capture was not feasible. Intelligence analysts had concluded that Mr. Awlaki was an operational terrorist.
The Obama administration fought the disclosure, initially refusing to confirm or deny the memo’s existence. In January 2013, a Federal District Court judge ruled that it could keep the memo secret. But in April, the United States Court of Appeals for the Second Circuit ruled that portions of the memo containing legal analysis — but not those compiling the evidence against Mr. Awlaki — must be made public.
The memo argues that 18 U.S.C. § 1119, which addresses the foreign killing of US nationals, must incorporate the public authority exception, and it further argues that the exception permits either the US Department of Defense and/or the US Central Intelligence Agency to carry out the contemplated operation against Awlaki.
The memo also argues that Awlaki’s US citizenship doesn’t preclude DoD or CIA action, citing Hamdi v. Rumsfeld, the 2004 Supreme Court ruling that, subject to certain due process requirements, permits the detention of a US citizen as an ‘enemy combatant.’
Sharper legal minds will parse the contents of the memo, parts of which were redacted, and it presents many obviously difficult questions:
- Even if the US military is justified in killing Awlaki under the public authority exception, the CIA’s justification is a lot more controversial because it’s a US government agency, not the military. The heavy redactions in the memo, as it relates to the CIA, make the Justice Department’s rationale unclear.
- The US government’s statutory basis for targeting Awlaki lies in the Authorization to Use Military Force Against Terrorists (AUMF), originally enacted in 2001, which authorizes efforts not only against al-Qaeda, but also against forces ‘associated with’ al-Qaeda, including Al Qaeda in the Arabian Peninsula (AQAP). The argument is that this as true in Yemen (which, the Justice Department attorneys admit, is ‘far from the most active theater of combat’ between the United States and al-Qaeda.’) as it is in Afghanistan or anywhere in the world that al-Qaeda and ‘associated forces’ operate. But that broad global-battlefield interpretation isn’t universally accepted, even among many members of the US Congress that enacted the AUMF.
- The memo contemplates that Awlaki’s US citizenship bestows some protections, even in Yemen, under the Fifth Amendment’s Due Process Clause and the Fourth Amendment. As regards the Fifth Amendment, the memo again points to Hamdi, which uses a Mathews v. Eldridge balancing test. In a scenario where a US citizen/enemy combatant poses a continued and imminent threat, the Justice Department attorneys argue that the public interest far outweighs the private interest of guaranteeing due process. Though the memo also acknowledges that Awlaki’s targeting constitutes a ‘seizure’ under the Fourth Amendment, the memo again points to the ‘reasonableness’ balancing tests elucidated by the Supreme Court in prior rulings on the constitutionality of seizures.
Nevertheless, the true heart of this case isn’t necessarily the black-letter legal reasoning, fascinating and controversial though it may be. Throughout the memo, the Justice Department attorneys essentially assume Awlaki’s guilt as fact. That’s fine, because no one was asking the Office of Legal Counsel to assess Awlaki’s guilt. But it’s one thing to argue that the AUMF applies in full force to the US government’s ability to target enemy combatants who are US citizens, and it’s quite another thing to argue that Awlaki was an enemy combatant in the first place.
Even if you are willing to defer to the Obama administration’s interpretation on all of the issues of the law involved — the applicability of the AUMF, the applicability of the public authority exception, the non-applicability of the Fifth Amendment, the Fourth Amendment or any mitigating factors that accrue on the basis of US citizenship — we still don’t know how the US government determines how a US citizen can be lawfully targeted for legal force.
The most relevant question, still unanswered, is how the US government concluded that Awlaki crossed the line from ‘preacher spewing noxious opinions’ to ‘operational al-Qaeda militant.’
First, what specific actions did Awlaki take that caused him to be enemy combatant?
Secondly, on the basis of what evidence did the US government determine that Awlaki was an enemy combatant?
Finally, does anything about the process that the US government deployed in targeting Awlaki meet any kind of standards for due process, let alone those typically granted to US citizens under the Fifth Amendment?
On all three questions, we don’t know the answer because the Obama administration won’t release any information. Until and unless it does, the evidentiary standard for assassinating a US citizen abroad seems to be ‘when high-level government officials conclude it.’
Note the factual conclusion that the memo incorporates:
High-level government officials have concluded, on the basis of al-Aulaqi’s activities in Yemen, that al-Aulaqi is a leader of AQAP whose activities in Yemen pose a ‘continued and imminent threat’ of violence to United States persons and interests. Indeed, the facts represented to us indicate that al-Aulaqi has been involved, through his operational and leadership roles within AQAP, in an abortive attack within the United States and continues to plot attacks intended to kill Americans from his base of operations in Yemen. The contemplated DoD operation, therefore, would be carried out against someone who is within the core of individuals against whom Congress has authorized the use of necessary and appropriate force.
But as Jeremy Scahill and other reporters have documented, there’s nothing in the public domain that necessarily implicates Awlaki in any operational. Consider this passage from Scahill’s book, Dirty Wars: The World is a Battlefield:
Awlaki began to achieve almost mythical status in the US media and government narrative on terrorist threats. But the real question was how big a threat he actually posed. Although the dispute did not play out publicly, there was deep division in the intelligence community over how to approach Awlaki. There was abundant evidence that he had praised attacks against the United States after the fact and had been in touch with [Ft. Hood shooter Nidal Malik] Hasan and [Nigerian ‘underwear bomber’ Umar Farouk] Abdulmutallab. There was also evidence that he called for violent jihad against the United States and its allies. But there was no conclusive evidence presented, at least not publicly, that Awlaki had played an operational role in any attacks.
Consider an analogy from World War II. If a US citizen happened to be shooting at US soldiers in Italy in 1942, it’s not controversial that US soldiers would have the right to shoot back. But what if that US citizen wasn’t shooting at US soldiers? What if that US citizen had moved to Turin, and spent his days publishing newspapers that championed the Axis Powers, embraced the ideologies of Nazism and Fascism, denounced the US war effort against Italy, and otherwise emboldened Italian fighters in the war against the United States and its allies? There’s a huge difference. That’s not exactly sitting in the bunker plotting strategy with Mussolini.
If the CIA had evidence that Awlaki was an operational actor within AQAP, why not release it now? Remove the doubt about Awlaki’s culpability (or not), but have an honest debate about how the US government can effectively target US citizens abroad who are actively assisting al-Qaeda and US enemies.
‘Trust us, because we’re [the CIA/Defense/the US military],’ isn’t good enough.
‘Trust us, because we’re a [Republican/Democratic] administration,’ also isn’t good enough.
What makes the lack of accountability so troubling is that there are already signs that the US government has abused its power in the Awlaki case as it relates to the killing of Awlaki’s 16-year-old son, Abdulrahman just two weeks after Awlaki’s death.
If there’s no public evidence that Anwar was an operational agent for AQAP, there’s absolutely no evidence implicating Abdulrahman in any wrongdoing, and government officials basically admit as much. His only crime seems to have been traveling to Yemen to look for his father. Yet the Obama administration didn’t admit that any US citizens had been killed in Yemen for two years, and when it did acknowledge Abdulrahman’s death, it claimed only that Abdulrahman wasn’t the target of the strike. Scahill and others have reported that even members of the Obama administration are skeptical that Abdulrahman’s death wasn’t unintentional, and the coincidental timing should be enough to warrant a wider inquiry.
So while the release of the Justice Department memo today is a strong step toward greater transparency, and will undoubtedly aid a more thoughtful legal and moral debate on when the US government can use lethal force against US citizens, it would be a much richer conversation if the Obama administration provided even more information about its decision-making in the Awlaki case.