Secret US Memo Made Legal Case to Kill a Citizen

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By Charlie Savage, The New York Times
http://www.nytimes.com/2011/10/09/world/middleeast/secret-us-memo-made-legal-case-to-kill-a-citizen.html?pagewanted=all
he 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.