On June 23, the Second U.S. Circuit Court of Appeals released a controversial 2010 Justice Department memo authorizing the United States government to kill Yemini-American al-Qaeda cleric Anwar al-Alwaki. The memo itself is esoteric and 41 pages long, so I’ve summarized some of the key questions and government arguments along with expert responses.
For the U.S. government to kill an American citizen without a trial is a fairly shocking and arguably unprecedented event, and experts and concerned citizens alike have been waiting, curious to see the government’s legal justification. On the surface, it appears the Fourth and Fifth Amendments preclude extrajudicial killing. However, the government’s public arguments have indicated so far that there should there be a different standard when the American citizen has openly engaged in acts of terrorism or war against the U.S. Until now, we have not been able to see the actual legal reasoning of the government.
According to the memo authored by then Acting Chief of the Office of Legal Council (OLC) David Barron (now First Circuit Judge David Barron), “There is no precedent directly addressing the question in circumstances such as those present here.” Nevertheless, given the task of evaluating whether an extrajudicial killing would be legal, Barron concluded that the 2001 AUMF and al-Alwaki’s “imminent” threat to U.S. interests provided a legal justification for his killing not inconsistent with the Constitution.
Anwar al-Alwaki was an American of Yemini descent who first came into the public eye in the aftermath of the September 11 terrorist attacks. At the time, he served as Imam of a moderate Falls Church, Virginia, mosque, frequently appeared as an Islam expert in print and TV media, and was described by NPR as someone who could “bridge the gap between the United States and the worldwide community of Muslims.”
There is some debate about al-Alwaki’s history of radicalism, but, whatever the case, over the course of 2002 and 2003 his rhetoric grew increasingly anti-Western. By early 2004, he and his family had moved to al-Alwaki’s ancestral village in Yemen and by 2006 he was in prison for allegedly participating in an al-Qaeda plot to kidnap an American diplomat. After being released in 2007 al-Alwaki is reported to have steadily climbed the ranks of al-Qaeda in the Arabian Peninsula (AQIP) until he was killed by an American drone strike in September 2011.
Barron’s job was to determine if the assassination was permissible under the law, not whether it was right, or even a good idea. Reading through Barron’s arguments put forward in the OLC memo, several questions arise. To help answer those questions, here are condensed versions of Barron’s arguments alongside a variety of expert legal opinions.
Question: If an American kills an American overseas, isn’t that still murder under U.S. law?
David Barron: The notion of public authority provides a legal basis for actions that might otherwise be illegal but under the circumstances are in the public interest. For example, a police officer can shoot a criminal to stop him from harming members of the public.
Zack Beauchamp, VOX: “The argument, then, is that the CIA operatives who fired on and killed Awlaki were acting consistently with other laws. The big question, of course, then becomes which law could authorize killing an American overseas.”
Question: Would that law be the “imminent threat” clause of the Constitution?
Department of Justice White Paper on the Barron memo: “The condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”
Max Kaufman, ACLU: “Rather than give further explanation and clarity to that extraordinary and novel reading of ‘imminence,’ the newly released memo — at least as presently redacted — fails to address that requirement in any detail whatsoever.”
Question: Ok, well what about the Fourth Amendment and the right to due process?
Barron: “The ‘realities of combat” and the weight of the government’s interest in using an authorized means of lethal force against this enemy are such that the Constitution would not require the government to provide further process to the U.S. person before using such force…Due process analysis need not blink at those realities.”
Noah Feldman, Harvard Law School: “According to a leaked ‘white paper’ that purports to summarize the still-secret Barron memo, the OLC took the position that Awlaki was entitled to due process of law. But it supposedly went on to reason that due process could be satisfied by a secret process within the executive branch — even though the accused would not have the opportunity to be heard by a neutral decision maker. [This] is a travesty of due process. At a bare minimum, the accused must be able to defend himself and have his case decided by someone who isn’t actively interested in the case as a party to it. Put another way, due process demands that no one may be a judge in his own case — which the president would be if adjudicating whether to kill an American abroad.”
Question: That’s all well and fine for the military, but didn’t the CIA kill al-Alwaki?
Barron: The CIA’s drone operations should be considered the same as the military operations because [still classified].
Marcy Wheeler, author of Anatomy of Deceit: “Much of the memo considered whether a law prohibiting the murder of Americans overseas, 18 USC 1119, protected Awlaki. Barron un-controversially argued that the law did not apply to the Department of Defense, because killing enemies was part of military service members’ official duties. That argument gets dicier when you consider the CIA, which had spearheaded the drone program. That’s partly because members of the CIA, unlike members of the military, do not count as a privileged combatants who can legally wage war. Much of Barron’s argument to give the CIA such powers remains redacted.”
Question: Am I missing something or did Barron cherry-pick legal precedent?
New York Times Editorial Board: “The memo turns out to be a slapdash pastiche of legal theories — some based on obscure interpretations of British and Israeli law — that was clearly tailored to the desired result. Perhaps the administration held out so long to avoid exposing the thin foundation on which it based such a momentous decision.”
No matter how strong the legal justification for al-Alwaki’s assassination, drone warfare can have powerful negative repercussions that need to be brought into the light and discussed publicly, not embargoed and redacted. Part and parcel is the story of al-Alwaki’s son Abdulrahman, also an American citizen, who was accidently killed two weeks after his father in a drone strike launched on false intelligence. The American public needs the information to reasonably discuss whether that is a kind of foreign policy it supports.