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article imageOp-Ed: Legal memo release on drone strikes leaves unanswered questions

By Ken Hanly     Jun 26, 2014 in Politics
Washington D.c. - A federal appeals court released large portions of a Justice Department memo that argued that it was lawful to target Anwar al-Awlaki a US-born Muslim cleric who is accused of being a terrorist associated with Al Qaeda in the Arabian Peninsula (AQAP)
The memo had been completed in July of 2010 over a year before the drone strike in 2011 that killed Awlaki as well as another American Sami Khan who was not a specific target. The memo was finally released after lawsuits by the New York Times and American Civil Liberties Union(ACLU) under the Freedom of Information Act.
David Barron who was then head of the US Justice Department's Office of Legal Counsel. Intelligence officials concluded that Awlaki was an operational terrorist leader, had become a member of a group associated with AL Qaeda, and was "engaged in continual planning and direction of attacks". His capture was not regarded as feasible. Based on these suppositions Barron concluded that in spite of protections in the constitution concerning unreasonable seizures and depriving someone of their life without any due process of law it would be lawful for the administration to kill Awlaki. Baron said: “We do not believe al-Awlaki’s citizenship provides a basis for concluding that he is immune from a use of force abroad”. Barron was assisted in drafting the memo by Martin Lederman who was in the same office. Lederman has now returned to teaching law at Georgetown University. Barron has recently been confirmed to serve at a federal appeals court in Boston.
The Obama administration decided to release the document rather than appeal the decision when some senators threatened to block the nomination of Barron to the appeals court unless the memo was released. But before being released the administration successfully appealed to redact even more details of the memo.
Mark Udall Democratic Senator from Colorado who up to the time of the release had opposed Barron's nomination called the release "a victory for government transparency" even though he still had questions such as "how much evidence the government requires in order to make an American a legitimate target".
There are other memos related to the Awlaki affair. Apparently one memo was written after the Dec. 25th 2009 attempted bombing of an airliner bound for Detroit. Awalaki had been linked to that plan. At that time Barron and Lederman had then written a memo approving the targeting of Awlaki were he found. After viewing a post on an international law blog raising the issue of a statute that banned the murder of Americans abroad, the two then wrote the longer July 2010 memo that is now released.
The longer memo argues that the targeted assassinations represent a "public authority" exception to the statute. There is also a section arguing that even a public agency such as the CIA would have the authority to carry out the operation but these sections are heavily redacted.
The release of the memo follows a long battle that began in October of 2011 a week after the strike on Awlaki, as the New York Times and ACLU filed lawsuits to have the memo released. The Obama administration that prides itself on transparency fought the lawsuits from the beginning. The first response employed a formula typical of the farcical processes that are prevalent in this area. The administration refused to affirm or deny the memo's existence. The same response was used when questions were asked about drone strikes.
Finally in January 2013 a district court judge ruled the memo could be kept secret. In April of the same year an appeals court ruled that the parts that contained legal analysis could be released whereas the classified evidence against Awlaki could be kept secret. However, meanwhile, the Obama administration itself had revealed a Justice Dept. "white paper" that described its legal analysis of targeted killings of US citizens. The "white paper" can be found here.The paper had been derived from the July 2010 memo of Barron and had been leaked to NBC news. Since it had already been leaked it was then released to two reporters who had requested it. Judge Jon Newman wrote in a part of the ruling previously redacted: “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,” The text of the memo can be found here.
The White Paper had explained "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." So an imminent threat does not need to be an imminent threat as would ordinarily be understood. This new legal sense of imminent threat seems to be designed to support the conclusions that the administration wanted to make that they could lawfully target Awlaki. The newly released memo as redacted fails to clarify what is meant by "imminent threat" even though this would seem crucial to the legal case. Perhaps it might be a bit too difficult to define an "imminent threat" which is nothing like an imminent threat without exposing the legal theorist to ridicule. This might be the time to have some useful training for US Justice Department lawyers by the Egyptian judiciary.
The memo also fails to explain what the criteria are for determining that a capture is not feasible. Feasibility according to the white paper includes whether the country involved would consent to a capture, risk to US personnel and other factors. Whether a capture is feasible would be highly fact-specific and time-sensitive as well. The issue is not clarified in the memo. However, the memo does note that the authorization for killing Awlaki was apparently intended to be indefinite in duration. This would seem to indicate that in practice the administration could care less whether conditions changed so that he could be captured.
Barron's judgement is based upon the "facts represented to" the Office of Legal Counsel (OLC) by other departments of the executive. However, these facts are redacted and hence there is no way for outsiders to determine if the government met its own standards. Added to this there is no judicial review of the "facts"presented to the OLC. Finally, there exist other legal memoranda that have yet to be released and that may be crucial to understanding the legal reasoning behind the defense of drone strikes against US citizens. Even so, what is revealed so far shows that the role of the OLC appears to be to creatively adapt existing legal doctrines so as to justify targeting those whom the administration had decided to target already. This is shown by the fact that the Obama administration had already attempted and failed to kill Awlaki before the memo was written-- as mentioned in the appended video. An article in The Atlantic sums up much of what the release tells us we should conclude from the contents of the memo: For now, the takeaway is that the Obama Administration took a process that is supposed to constrain the president within the law's confines; nodded toward the notion that they can kill only if capture is infeasible and the threat of attack imminent; and then qualified those constraints so drastically that it would be more honest to acknowledge that neither imminence nor infeasible capture are really required. In other words, OLC did their job and Barron deserves his new appointment. The enclosed video brings up further issues that I have not even touched upon.
This opinion article was written by an independent writer. The opinions and views expressed herein are those of the author and are not necessarily intended to reflect those of
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