Killing Anwar al-Awlaki

[Bubba]

So...no discussion here on Killington Zone about whether it was legal to kill al-Awlaki in Yemen? Administration legal experts produced detailed memos justifying the killing of an American citizen abroad, without trial, possibly in violation of US laws and the constitution, yet nobody here protests? What is the difference between this and the Bush administration's legal memos supporting the use of waterboarding, etc., also possibly in violation of various laws and the constitution? Discuss...

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NY Times October 8, 2011

Secret U.S. Memo Made Legal Case to Kill a Citizen

By CHARLIE SAVAGE


¶ WASHINGTON — The Obama administration’s secret legal memorandum that opened the door to the killing of Anwar al-Awlaki, the American-born radical Muslim cleric hiding in Yemen, found that it would be lawful only if it were not feasible to take him alive, according to people who have read the document.

¶ The memo, written last year, followed months of extensive interagency deliberations and offers a glimpse into the legal debate that led to one of the most significant decisions made by President Obama — to move ahead with the killing of an American citizen without a trial.

¶ The secret document provided the justification for acting despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war, according to people familiar with the analysis. The memo, however, was narrowly drawn to the specifics of Mr. Awlaki’s case and did not establish a broad new legal doctrine to permit the targeted killing of any Americans believed to pose a terrorist threat.

¶ The Obama administration has refused to acknowledge or discuss its role in the drone strike that killed Mr. Awlaki last month and that technically remains a covert operation. The government has also resisted growing calls that it provide a detailed public explanation of why officials deemed it lawful to kill an American citizen, setting a precedent that scholars, rights activists and others say has raised concerns about the rule of law and civil liberties.

¶ But the document that laid out the administration’s justification — a roughly 50-page memorandum by the Justice Department’s Office of Legal Counsel, completed around June 2010 — was described on the condition of anonymity by people who have read it.

¶ The legal analysis, in essence, concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him.

¶ The memorandum, which was written more than a year before Mr. Awlaki was killed, does not independently analyze the quality of the evidence against him.

¶ The administration did not respond to requests for comment on this article.

¶ The deliberations to craft the memo included meetings in the White House Situation Room involving top lawyers for the Pentagon, State Department, National Security Council and intelligence agencies.

¶ It was principally drafted by David Barron and Martin Lederman, who were both lawyers in the Office of Legal Counsel at the time, and was signed by Mr. Barron. The office may have given oral approval for an attack on Mr. Awlaki before completing its detailed memorandum. Several news reports before June 2010 quoted anonymous counterterrorism officials as saying that Mr. Awlaki had been placed on a kill-or-capture list around the time of the attempted bombing of a Detroit-bound airliner on Dec. 25, 2009. Mr. Awlaki was accused of helping to recruit the attacker for that operation.

¶ Mr. Awlaki, who was born in New Mexico, was also accused of playing a role in a failed plot to bomb two cargo planes last year, part of a pattern of activities that counterterrorism officials have said showed that he had evolved from merely being a propagandist — in sermons justifying violence by Muslims against the United States — to playing an operational role in Al Qaeda in the Arabian Peninsula’s continuing efforts to carry out terrorist attacks.

¶ Other assertions about Mr. Awlaki included that he was a leader of the group, which had become a “cobelligerent” with Al Qaeda, and he was pushing it to focus on trying to attack the United States again. The lawyers were also told that capturing him alive among hostile armed allies might not be feasible if and when he were located.

¶ Based on those premises, the Justice Department concluded that Mr. Awlaki was covered by the authorization to use military force against Al Qaeda that Congress enacted shortly after the terrorist attacks of Sept. 11, 2001 — meaning that he was a lawful target in the armed conflict unless some other legal prohibition trumped that authority.

¶ It then considered possible obstacles and rejected each in turn.

¶ Among them was an executive order that bans assassinations. That order, the lawyers found, blocked unlawful killings of political leaders outside of war, but not the killing of a lawful target in an armed conflict.

¶ A federal statute that prohibits Americans from murdering other Americans abroad, the lawyers wrote, did not apply either, because it is not “murder” to kill a wartime enemy in compliance with the laws of war.

¶ But that raised another pressing question: would it comply with the laws of war if the drone operator who fired the missile was a Central Intelligence Agency official, who, unlike a soldier, wore no uniform? The memorandum concluded that such a case would not be a war crime, although the operator might be in theoretical jeopardy of being prosecuted in a Yemeni court for violating Yemen’s domestic laws against murder, a highly unlikely possibility.

¶ Then there was the Bill of Rights: the Fourth Amendment’s guarantee that a “person” cannot be seized by the government unreasonably, and the Fifth Amendment’s guarantee that the government may not deprive a person of life “without due process of law.”

¶ The memo concluded that what was reasonable, and the process that was due, was different for Mr. Awlaki than for an ordinary criminal. It cited court cases allowing American citizens who had joined an enemy’s forces to be detained or prosecuted in a military court just like noncitizen enemies.

¶ It also cited several other Supreme Court precedents, like a 2007 case involving a high-speed chase and a 1985 case involving the shooting of a fleeing suspect, finding that it was constitutional for the police to take actions that put a suspect in serious risk of death in order to curtail an imminent risk to innocent people.

¶ The document’s authors argued that “imminent” risks could include those by an enemy leader who is in the business of attacking the United States whenever possible, even if he is not in the midst of launching an attack at the precise moment he is located.

¶ There remained, however, the question of whether — when the target is known to be a citizen — it was permissible to kill him if capturing him instead were a feasible way of suppressing the threat.

¶ Killed in the strike alongside Mr. Awlaki was another American citizen, Samir Khan, who had produced a magazine for Al Qaeda in the Arabian Peninsula promoting terrorism. He was apparently not on the targeting list, making his death collateral damage. His family has issued a statement citing the Fifth Amendment and asking whether it was necessary for the government to have “assassinated two of its citizens.”

¶ “Was this style of execution the only solution?” the Khan family asked in its statement. “Why couldn’t there have been a capture and trial?”

¶ Last month, President Obama’s top counterterrorism adviser, John O. Brennan, delivered a speech in which he strongly denied the accusation that the administration had sometimes chosen to kill militants when capturing them was possible, saying the policy preference is to interrogate them for intelligence.

¶ The memorandum is said to declare that in the case of a citizen, it is legally required to capture the militant if feasible — raising a question: was capturing Mr. Awlaki in fact feasible?

¶ It is possible that officials decided last month that it was not feasible to attempt to capture him because of factors like the risk it could pose to American commandos and the diplomatic problems that could arise from putting ground forces on Yemeni soil. Still, the raid on Osama bin Laden’s compound in Pakistan demonstrates that officials have deemed such operations feasible at times.

¶ Last year, Yemeni commandos surrounded a village in which Mr. Awlaki was believed to be hiding, but he managed to slip away.

¶ The administration had already expressed in public some of the arguments about issues of international law addressed by the memo, in a speech delivered in March 2010 by Harold Hongju Koh, the top State Department lawyer.

¶ The memorandum examined whether it was relevant that Mr. Awlaki was in Yemen, far from Afghanistan. It concluded that Mr. Awlaki’s geographical distance from the so-called hot battlefield did not preclude him from the armed conflict; given his presumed circumstances, the United States still had a right to use force to defend itself against him.

¶ As to whether it would violate Yemen’s sovereignty to fire a missile at someone on Yemeni soil, Yemen’s president secretly granted the United States that permission, as secret diplomatic cables obtained by WikiLeaks have revealed.

¶ The memorandum did assert that other limitations on the use of force under the laws of war — like avoiding the use of disproportionate force that would increase the possibility of civilian deaths — would constrain any operation against Mr. Awlaki.

¶ That apparently constrained the attack when it finally came. Details about Mr. Awlaki’s location surfaced about a month ago, American officials have said, but his hunters delayed the strike until he left a village and was on a road away from populated areas.

[skidogg]

lots of gray here,we are at war,but not with a nation,new rules i guess----------would i see it this way if GWB did it?

[thorski]

No problem for me. Kill all of God's warriors who plan death and destruction. We are not fighting a conventional war here, this IS God's war.

[XtremeJibber2001]

C'mon Bubba - you really think CoyDog and JerseyGuy are going to be outraged? Of course not - GWB didn't do it!

[Coydog]

It is very entertaining to watch Faux struggle with their schizophrenic and inept attempt at moral outrage about the killing of a US citizen. But we all know how things would play out if this military enemy was captured an tried. al-Awlaki is not some random guy caught up in a military sweep, he was a very dangerous, high ranking al-Qaeda member linked to nearly every al-Qaeda plot on domestic soil and who among other things proclaimed:

"To the Muslims in America, I have this to say: How can your conscience allow you to live in peaceful coexistence with a nation that is responsible for the tyranny and crimes committed against your own brothers and sisters? I eventually came to the conclusion that jihad (holy struggle) against America is binding upon myself just as it is binding upon every other able Muslim."

And

"Do not consult anyone in killing Americans. Killing the devil does not need any fatwa. It’s either us or you."

The use of military force against al-Qaeda was approved by Congress and the careful and considered attack on al-Awlaki is one powerful tool that our nation must employ to protect itself against such terrorists. And no, GWB didn't do it - he attacked Iraq instead.

[madhatter]

It is very entertaining to watch Faux struggle with their schizophrenic and inept attempt at moral outrage about the killing of a US citizen. But we all know how things would play out if this military enemy was captured an tried. al-Awlaki is not some random guy caught up in a military sweep, he was a very dangerous, high ranking al-Qaeda member linked to nearly every al-Qaeda plot on domestic soil and who among other things proclaimed:

"To the Muslims in America, I have this to say: How can your conscience allow you to live in peaceful coexistence with a nation that is responsible for the tyranny and crimes committed against your own brothers and sisters? I eventually came to the conclusion that jihad (holy struggle) against America is binding upon myself just as it is binding upon every other able Muslim."

And

"Do not consult anyone in killing Americans. Killing the devil does not need any fatwa. It’s either us or you."

The use of military force against al-Qaeda was approved by Congress and the careful and considered attack on al-Awlaki is one powerful tool that our nation must employ to protect itself against such terrorists. And no, GWB didn't do it - he attacked Iraq instead.

got it. trials for foreign military combatants and field execution for an american citizen. only in lefty land does that make sense. as far as I'm concerned kill em all.. non issue , al-awlaki got what he had coming. Same fate that KSM should have gotten...

[Coydog]

got it. trials for foreign military combatants and field execution for an american citizen. only in lefty land does that make sense. as far as I'm concerned kill em all.. non issue , al-awlaki got what he had coming. Same fate that KSM should have gotten...

Well, I did say inept moral outrage. Maybe misplaced is a better word.

[JerseyGuy]

Fascinating situation. (And not just because XJib ran out of steam on the Solyndra thread, so days later, STILL apparently felt the need to call me out on, well, SOMETHING.)

A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality… entering, or serving in, the armed forces of a foreign state if… such armed forces are engaged in hostilities against the United States. (U.S. Code Title 8, Chap. 12, Subchapter III, Part III, § 1481)

Is Al-Qaeda a "foreign state"? Merely a terrorist organization? What's the difference?

[madhatter]

Fascinating situation. (And not just because XJib ran out of steam on the Solyndra thread, so days later, STILL apparently felt the need to call me out on, well, SOMETHING.)

A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality… entering, or serving in, the armed forces of a foreign state if… such armed forces are engaged in hostilities against the United States. (U.S. Code Title 8, Chap. 12, Subchapter III, Part III, § 1481)

Is Al-Qaeda a "foreign state"? Merely a terrorist organization? What's the difference?

damn... Stop taking up a position I might agree with. Seems it wouldn;t be much of a stretch ( or future re-write ) of the law to include something to the effect of "organized hostilities" or is there simply another law pertaining to attempted overthrow of US gov? The question still remains assassination vs. trial by jury ( at least in the minds of some),

[Bubba]

The question being asked by some is whether there is legal justification for killing an American citizen on foreign soil without a trial. The question being asked during the Bush administration was whether there was legal justification for waterboarding, etc. enemy combatants in foreign or military jails. Both the Bush and Obama administrations justified their actions through legal review, legal memo, but no ruling from a court; just by self-serving legal memoranda from officers within their own Justice Departments or elsewhere within their own administrations. What, therefore, is the difference between the two and why so much outrage in one case but only relatively mild challenge in the other? Is there a double standard?

[Coydog]

You are comparing torture, which almost never works, with killing a military enemy, which almost always works. Most civilized societies believe you can kill your enemy, particularly in self defense, but not torture him.

Rightly or wrongly, we kill some prisoners, but we don't torture them.

[madhatter]

You are comparing torture, which almost never works, with killing a military enemy, which almost always works. Most civilized societies believe you can kill your enemy, particularly in self defense, but not torture him.

Rightly or wrongly, we kill some prisoners, but we don't torture them.

so skip the torture and go straight to the killing? it would save time and you are correct, it would almost always work also.

[Coydog]

I suppose you could torture then kill, but the tea party would disapprove due to the added cost and expansion of government.

[DMC]

Dude had it coming...
I feel safer knowing he's dead and gone...

Thanks US Military/CIA whatever for taking this guy out...

[Dr. NO]

while I agree he should have been taken out, using the following says someone broke the law, and that someone had to get orders from the top. Had it been Bush in the WH the Libs would have gone nuts over it.

"A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality… entering, or serving in, the armed forces of a foreign state if… such armed forces are engaged in hostilities against the United States. (U.S. Code Title 8, Chap. 12, Subchapter III, Part III, § 1481)"

And no, Al-Qaeda is NOT a foreign government or army so the above law applies. I don't see anything about terrorist groups or other "combatants". Many who like this screamed about holding combatants from foreign nations. Why are they not screaming about the murder of a U.S. Citizen?