Analysis of the recently-released drone memo

In order to establish some perspective, this post will quote a number of analyses of the redacted but released memo written by David Barron, who the Senate shamelessly approved to be judge, which gives the justifications for killing an American citizen by drone. Bolded parts are our emphasis.

Sarah Lazare, staff writer for Common Dreams, writes:

“The 41-page memo was penned in 2010 by David Barron, then head of the Justice Department’s Office of Legal Counsel, and is addressed to attorney general Eric Holder. It draws heavily on a broad and controversial congressional act—the 2001 Authorization for Use of Military Force—to justify the killing of Anwar al-Aulaqi a year before his death…The 2001 AUMF…has been interpreted by the Obama administration to authorize military force against “Taliban or al-Qaida forces, or associated forces”—an ill-defined grouping that includes a host of people and organizations, many of them unknown to the public…The memo charges that Anwar al-Aulaqi had become a leader of al Qaida in the Arabian Peninsula or an associated force and constituted an “imminent” threat to the U.S., and his capture was infeasible. Yet, information allegedly backing claims of imminent threat was redacted in the document, which was slashed by nearly a third. Furthermore, the memo leaves questions about who else the U.S. government believes it has the right to kill without trial.”

Brett Max Kaufman, a Legal Fellow of the ACLU’s National Security Project writes:

“Monday morning, a federal appeals court released a government memorandum, dated July 16, 2010, authorizing both the Department of Defense and the Central Intelligence Agency to kill Anwar al-Aulaqi, a U.S. citizen, in Yemen. The publication of the Office of Legal Counsel memo comes, as the court noted, after a lengthy delay. The ACLU (along with the New York Times) has been fighting for this memo since we first asked for it in a Freedom of Information Act request submitted in October 2011. Monday’s release by the U.S. Court of Appeals for the Second Circuit is an important victory for transparency. But while the memo advances the public record in significant ways, it still does not answer many key questions about the government’s claimed authority to kill U.S. citizens outside of active battlefields. Here are several important takeaways from Monday’s release…Rather than more fully explain the government’s theory of “imminence,” the newly released memo fails to address it at all…The memo, signed by David Barron, then–acting chief of the OLC (and now a newly confirmed First Circuit judge), tells us that “[h]igh-level government officials” determined that al-Aulaqi constituted an “imminent” threat to the United States. But the memo does not explain how the government interprets that requirement, nor does the memo explain the evidentiary standard the officials must meet in order to satisfy it. Likewise, the memo does not address the circumstances that would make “capture infeasible,” and killing therefore permissible…the new memo does seem to indicate that its authorization for the targeted killing of al-Aulaqi was intended to be indefinite in duration, requiring only that the CIA and DOD continue to evaluate (without returning to the OLC) “whether changed circumstances” would make capture more feasible…Throughout the memo, Barron conditions important legal conclusions on “the facts represented to” the OLC by other departments of the executive branch…Until Monday, the government had argued that the CIA’s operational involvement in the targeted killing program was an official secret…the official unveiling of this fact should open the door to further disclosures about the CIA’s role in the program…Together, Monday’s release and the Second Circuit’s opinion make clear that the public is only just starting to understand the legal and factual basis for the government’s targeted killing program, as a great deal of information crucial to the public debate remains secret.”

Following this is an analysis from the deputy legal director at the American Civil Liberties Union and director of the ACLU’s Center for Democracy, Jameel Jaffer in The Guardian:

Authored three years ago by the Justice Department’s Office of Legal Counsel (OLC), the 41-page memo contends that the president has broad power to carry out the targeted killing of terrorism suspects, even in geographic areas far removed from conventional battlefields…But despite the release of the drone memo, the American public still does not have the information it needs in order to evaluate the lawfulness and wisdom of its government’s policies. Indeed, to read through the memo is to be reminded of how successful the Obama administration has been at rationing even the most basic information. Large parts of the memo – almost a third of it – have been redacted…In one instance, the long sought-after drone memo references another legal memo that concluded that al-Awlaki’s American citizenship did not “preclude the contemplated lethal action.” From this reference, we can deduce that the OLC authored a separate drone memo assessing – and dispensing with – the proposition that an American citizen had the right not to be deprived of his life without some form of judicial process. But that earlier memo, treated by the executive branch as binding law, is still secret…But the release of the drone memo should not obscure the reality: we still know scandalously little about who the American government is killing, and why. Monday’s ruling was a step forward – a gesture toward transparency – but unless it leads to much, much more from the drone files, it will be only that: a gesture.

Hina Shamsi, the director of the American Civil Liberties Union’s National Security Project, interviewed on Democracy Now! said:

“Well, Amy, this memo’s release is long overdue. It’s critically important for transparency. But as we see from reading the memo itself, it’s by far from enough. And there are a couple of things that I think are most important. One is both what’s in the memo, and, two, what’s surprisingly not in the memo. With respect to what’s in the memo, as you said earlier, the justification for the killing of a U.S. citizen largely relies on the 2001 Authorization for Use of Military Force. Now, that authorization has to be read alongside the international law that regulates when the United States and any other country is or is not in an armed conflict. And one of the key things that this memo does is that it says that some of the limitations on when an armed conflict exists don’t have to apply. So it says that the things that we think of and that the law recognizes—you know, a certain level of duration of hostilities, a certain level of intensity of hostilities—those don’t have to be present. In essence, it reads away any kind of territorial limitation or temporal limitation for when war exists. And this has been one of the things we and others have been so long concerned about, which is the Obama administration’s broad interpretation of law of war authority, even when that does not exist… First of all, the white paper that was earlier released, or leaked, that talked about the administration’s definition of a continuing imminent threat, said that the threat did not have to include specific evidence of a plot that was actually about to take place in the immediate future. So, the real-world meaning of imminence is read away. And the memo itself—again, at least in the parts that have been disclosed—does not discuss this controversial, novel interpretation, nor does it discuss how that interpretation could possibly be lawful… Repeatedly, the memo’s authors say that the legal conclusions are based on factual representations made by the CIA, by the Department of Defense and the intelligence community. It also says that senior intelligence officials can make the determination about whether facts are justified to permit the killing. And this shows you just how dangerous it is not to have any independent judicial review before or after the fact, which is what the administration has argued and what this memo seeks to justify…We know from Senate Intelligence Committee disclosures that there are approximately 11 legal memos governing the targeted killing program. Four of those apparently relate to citizens; the others apparently relate to noncitizens…There are apparently seven memos that relate to the killings of noncitizens, although the administration itself has not confirmed that. And as much and as necessary as it is to know what standards apply to citizens, we also equally need to know what standards apply to noncitizens.”

Also, as Jeremy Scahill tweeted, for those defending the memo, it was drafted in July 2010, AFTER the US had attempted to kill Anwar Al-Awlaki:

Barrey Grey of World Socialist Website goes a bit far in saying that the drone memo makes the case for ‘presidential dictatorship’ and the beginning of impeachment of high-level US officials, but the analysis still should be shared:

The memo constitutes prima facie evidence of crimes against international law, the US Constitution, and the democratic rights of the American people. It could serve as a key exhibit in impeachment proceedings and criminal prosecutions against high-level American officials…The document is a travesty of legal and constitutional analysis. It begins with the desired aim—to justify the negation of the Bill of Rights’ guarantee of “due process” and sanction the arrogation of quasidictatorial powers by the executive branch—and employs a grab bag of sophistic and cynical arguments to arrive at the desired conclusion. The memo was written specifically to provide legal cover for the state murder of Anwar al-Awlaki, a New Mexico-born US citizen and Muslim cleric…Last month, the Senate confirmed the promotion of Barron to the First Circuit, with all but two Democrats voting in favor, including supposed NSA critics Mark Udall, Martin Heinrich and Ron Wyden…It is also striking that most of the redactions in the released document occur in the section dealing with the constitutional rights of US citizens…The memo repeatedly cites the congressional Authorization for Use of Military Force, passed three days after the 9/11 attacks, as legal support for any and all actions taken in the name of fighting terrorists, including the assassination of US citizens and other repressive measures against Americans…It also cites the 2004 Supreme Court ruling in Hamdi vs. Rumsfeld, even though the court ruled 8 to 1 against the Bush administration’s asserted right to detain people without trial or due process. Barron accepts uncritically all of the assertions of the government about Awlaki, his role as an “operational leader” of Al Qaeda and involvement in previous terror plots against the US, the “imminent” threat to Americans he supposedly represents, the “infeasibility” of capturing him, etc. in order to declare that the government can kill him without any independent trial of the facts or any opportunity for the victim to defend himself in a court of law. The presumption of innocence is a dead letter…The document is carefully worded so as not to limit the president’s asserted power to order the murder of Americans to the specific circumstances surrounding Awlaki. It states, for example, that the use of lethal forces is acceptable “at least” where government officials have determined capture is not feasible. And it defines “imminent” in such as way as to render the term meaningless, declaring that the government does not need to know “precisely when such attacks will occur.”…And in testimony last month before the Senate Foreign Relations Committee, Defense Department and State Department lawyers argued that the president has unlimited war powers and does not require even the fig leaf of congressional authorization…The arguments put forward in the memo released Monday—justifying the abrogation of basic rights, state murder of citizens and dictatorial powers on the grounds of national security and the requirements of war—are identical to those put forward by every military and fascist regime, from Pinochet to Hitler.”

Rania Khalek noted on Electronic Intifada that the drone memo cited the Israeli Supreme Court to justify killing American citizens:

“The Obama adminstration refused to disclose the legal reasoning behind the killing. But thanks to Freedom Information Act lawsuits by The New York Times and the American Civil Liberties Union (ACLU), a redacted version of the Department of Justice memo which outlines the Obama administration’s rationale for killing American citizens abroad without trial is now public.  Authored by David Barron — former chief of the Justice Department’s Office of Legal Counsel, who has since been appointed by Obama to a federal judgeship — the 41-page document seeks to legitimize so-called targeted killings, a practice Obama’s predecessor, George W. Bush, vigorously condemned Israel for using against Palestinians during the second intifada…This makes it all the more ironic that the Obama administration’s kill memo cites an Israeli Supreme Court decision to justify al-Awlaki’s summary execution…the memo cites Public Committee Against Torture in Israel (PCATI) v. Government of Israel, a 2006 Israeli Supreme Court decision that ruled that the targeted assassinations of hundreds of Palestinians since the start of the second intifada were legal and did not violate international law. The memo provides this as the basis for determining the infeasibility of al-Awlaki’s capture…It should not come as a surprise that the US is echoing Israeli rationale to validate its own belligerence in the “war on terror,” which bears a striking resemblance to Israel’s decades-long war on the Palestinians and its neighbors…In 2007, the Yale Law Journal warned in an editorial that as the “the world’s first judicial decision on targeted killings,” the Israeli ruling would weaken international law because it expanded the scope of who could be targeted for due-process free execution…Today, Israel’s assassinations in Gaza are so routine that barely anyone bats an eye. The same is true for drone strikes in Yemen and Pakistan, which have killed at least four Americans…What began as an Israeli method to suppress Palestinian resistance is now being used to kill people over a vast swath of territory with a population of hundreds of millions. This is what happens when countries like the United States and Israel are allowed to push the boundaries of international law with impunity.”

David Cole, who says David Barron is a ‘colleague’ of his, writes in The New York Review of Books a limited objection to the drone killings:

Now that we can finally see its contents, the biggest question is why the administration fought to keep it secret. The memo does more to help than to harm the administration. Critical questions remain about the legality of the September 2011 drone killing in Yemen of American-born Muslim cleric Anwar al-Awlaki that the memo authorized, largely because crucial details regarding application of the law to the facts of al-Awlaki’s case are redacted...But the memo offers a closely reasoned, thorough, and, most important, carefully limited defense of al-Awlaki’s killing. Had this memo been made public at the outset, the administration might well have avoided many of the questions that continue to swirl around the drone program and make it controversial worldwide. Transparency is often touted as a check on the abuse of power, and it is. But transparency can also legitimate acts that, taken behind closed doors, are illegitimate. In this instance, the administration’s insistence on secrecy undermined its own cause. So what does the memo tell us? In painstaking detail, it lays out the case for why killing al-Awlaki would be lawful under US statutes, the Constitution, and international law. It comprehensively addresses federal criminal laws that forbid the murder of US citizens abroad; the Fourth and Fifth Amendments, which forbid unreasonable seizures and bar the taking of life without due process; and the laws of war, which regulate the use of lethal force in armed conflict…In short, the memo reasons that while US law bars murder, or “unlawful killing,” of Americans overseas (as well as at home), when the president orders the use of lethal force to kill an enemy fighter in an armed conflict, the killing is not “unlawful.”…While the memo cited no precedents directly authorizing the use of lethal force against citizens, it noted that the Supreme Court had ruled in 2004 that the president was authorized, as an incident of war, to detain a US citizen as an enemy combatant captured fighting against us in Afghanistan. The power to kill enemy fighters, the memo reasoned, is as much an incident of war as the power to detain…On the constitutional question, the memo concluded that where a US citizen poses an imminent threat of violence or death to other US persons, where the basis for that judgment has been reviewed by “the highest officers in the Intelligence Community,” and where capture is not feasible, killing an enemy fighter without further procedural protections is “reasonable” under the Fourth Amendment and does not violate due process…In effect, the memo concluded that al-Awlaki posed a similar threat. It does not address, however, why due process could not have been provided in this case…Thus understood, the Justice Department memo has very narrow application, and does not give the president a blank check to kill “suspected terrorists” the world over…And the memo limits its authorization to an individual who had allegedly attempted past attacks and was said to pose an imminent threat of future attacks, and only where the use of force conformed to the law of war…Finally, and most troubling of all, there is no mechanism in place for independent testing of whether US practice matches the limits Obama has announced. Why can’t there be an assessment, at a minimum after the fact, as to the validity and consequences of each attack? The Israeli Supreme Court reviews each of Israel’s targeted killings, with appropriate deference to military judgment, to assure that they fall within legal bounds. We have no such review here, by a court or otherwise.

That review led me to an opinion by the editorial board of the ‘paper of record,’ the New York Times, condemning the memo:

“The Obama administration on Monday reluctantly released its justification for killing an American citizen, Anwar al-Awlaki, whom it considered a terrorist, in a 2011 drone strike in Yemen. But the rationale provides little confidence that the lethal action was taken with real care…Instead, 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. The main theory that the government says allows it to kill American citizens, if they pose a threat, is the “public authorities justification,” a legal concept that permits governments to take actions in emergency situations that would otherwise break the law…The sheer power of drone strikes, several of which have killed many innocent bystanders, is in no way comparable to the kind of police shootings that the memo cites as precedent…There’s no explanation given in the memo for how the United States knew Mr. Awlaki was planning “imminent” mayhem, as the memo claims. It’s possible that this information was contained in the dozen or so pages that were redacted from the 41-page memo, which was written by David Barron, then an assistant attorney general who was recently appointed to a federal appellate court. The memo says only that Mr. Awlaki had joined Al Qaeda and was planning attacks on Americans, but that the government did not know when these attacks would occur…And the memo never questioned whether the Defense Department and the Central Intelligence Agency, which operate the drone programs, would properly follow international law…Blithely accepting such assurances at face value is why these kinds of killings are so troubling, and why we have repeatedly urged that an outside party — such as the Foreign Intelligence Surveillance Court — provide an independent review when a citizen is targeted. How did the Justice Department know that capturing Mr. Awlaki was not feasible, or that the full force of a drone strike was necessary? This memo should never have taken so long to be released, and more documents must be made public. The public is still in the dark on too many vital questions.”

Tom Junod writes in Esquire magazine a view that defends drone attacks as necessary to “protect US Citizens” but says that the drone attacks are no doubt illegal:

There might not be anything very new in the memo that the White House’s Office of Legal Counsel produced in in 2010 to justify the killing Anwar Al-Awlaki, and that the Justice Department finally released yesterday in response to lawsuits brought by the ACLU and the New York Times.  But there is something very, very old. And that is murder...To a civilian with more than passing interest in the issue of targeted killing, what jumps out immediately is the memo’s attempt to grapple with the question not of whether the killing of a U.S. citizen without trial is constitutionally justifiable but whether it constitutes outright murder. And I do mean immediately.  The factual justification for killing Al-Awlaki that originally commenced the memo has been redacted.  But the memo — which was written by newly confirmed federal judge David Barron — begins its legal argument with this sentence: “We begin our legal analysis with a consideration of section 1119 of title 18, entitled ‘Foreign murder of United States nationals.’”…There have been many public defenses of the Obama Administration’s policy of targeted killing, mustered by the Administration’s emissaries from the State Department, the CIA, the Department of the Defense, the Department of Justice, and the White House itself….But none, to my knowledge, have ever acknowledged that the real question at issue in the killing of Al-Awlaki — and by extension drone killings in general — is the question of whether by killing him the White House was murdering him. Of course, Barron argues that it was not, and did not.  He argues that the very definition of murder, as the “unlawful killing of a human being with malice aforethought,” presupposes that such a thing exists as a lawful killing, and then he explains why the killing of Anwar Al-Awlaki would be lawful.  Barron invokes something called the “public authority justification” to say that given the “maximal” powers granted the President by Congress when it passed the Authorization for the Use of Military Force in 2001, the killing of Al-Awlaki would not be “murder” any more than a police officer going very fast in pursuit of a criminal would be “speeding.” But in fact the specter of murder — or at least of assassination — is what has haunted U.S. drone policy from the start, given that many of those President Obama has signed off to kill are killed far away from any battlefield, and are often both unarmed and in the midst of carrying out the duties of what might be called daily life.  The killings may be useful in advancing the national interest; they may even protect U.S. citizens. But they are usually not carried out “in the heat and exercise of war” that makes killings on the battlefield legal…Barron struggles mightily to banish the specter of murder from the pre-emptive and non-judicial execution of Anwar Al-Awlaki.  He struggles so mightily that he uses the word murder 44 times in the course of the memo, until it becomes a drumbeat, and, finally — amidst all the redactions and all the secret law existing in empty spaces — the memo’s tell-tale heart.

Then there’s Marcy Wheeler in The Week magazine who calls the drone memo a ‘brazen executive power grab’:

“While there is still a lot we don’t know about the rationale to assassinate this American citizen, the memo does affirm that the Obama administration was eager to grant itself extraordinary powers that appear to be in direct conflict with the Constitution. The release of the memo has been a long time coming…The memo argued that Awlaki, whom the government alleged had helped plan the December 2009 underwear bomb attack on a Detroit-bound jet, was either a leader of al Qaeda or an associated force. That made him a legal target under the 2001 Authorization to Use Military Force, Barron argued. Much of the memo considered whether a law prohibiting the murder of Americans overseas, 18 USC 1119, protected Awlaki. Barron uncontroversially 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. Also redacted is a section laying out the government’s case against Awlaki, which is unfortunate, because there are inconsistencies in the government’s public argument that Awlaki orchestrated the UndieBomb attack. Importantly, the memo also doesn’t include the government’s discussion about what makes a terrorism suspect an “imminent threat,” and the lengths to which the government must go to try to capture the suspect before it is deemed infeasible — both central standards in the government’s claim to be able to kill Americans… Not only does the memo approve bypassing due process, but it sets the standard unbelievably low for a decision taken with a lot of advance notice…Either Barron dealt with the question of judicial review, but not the Treason Clause, in his first memo, or he never dealt with it, and DOJ added that section in the white paper to make the review look more reasonable. Either way, the guy who ignored the constitutional requirement about traitors — and in the process expanded executive power greatly — ended up getting a plush appointment to be a circuit court judge. It’s remarkable how lucrative denying the role of courts can be.”

Sarah Lazare wrote on Juan Cole’s website about the drone memo as well:

“The U.S. government on Monday partially released the formerly-classified Department of Justice “drone memo,” dated 2010, in which Obama administration lawyers argue they have the right to extra-judicially kill U.S. citizen Anwar al-Aulaqi in Yemen…In the memo, which is addressed to attorney general Eric Holder, David Barron—then head of the Justice Department’s Office of Legal Counsel—argues that the targeted killing is legal “where, as here, the target’s activities pose a ‘continued and imminent threat of violence or death’ to U.S. persons, ‘the highest officers in the Intelligence Community have reviewed the factual basis’ for the lethal operation, and a capture operation would be infeasible.” Yet the drone memo was redacted before release, leading to the omission of key information, including alleged factual evidence for the government’s claim that al-Aulaqi posed a threat to the United States. Barron claims the killing is justified by the 2001 Authorization for Use of Military Force…”We believe that the AUMF’s authority to use lethal force abroad also may apply in appropriate circumstances to a United States citizen who is part of the forces of an enemy authorization within the scope of the force authorization,” states the memo.”

Senior Attorney Pardiss Kebriaei wrote in a press release for the Center for Constitutional Rights (CCR) that:

“The DOJ memo confirms that the government’s drone killing program is built on gross distortions of law. This forced transparency comes years late, long after the memo was drafted and used to justify the premeditated killing of a U.S. citizen without trial and far from any battlefield. Although the American public may now finally start having a more complete debate about this program, the Obama administration’s stonewalling has delayed this conversation for far too long. Since 2009, U.S. drone strikes may have killed more than 4,000 people – including children – and wounded many more outside of its wars in Afghanistan and Iraq. While today the U.S., the U.K., and Israel are the only countries known to have used killer drones, experts say that within ten years virtually every country on Earth will be able to build or acquire drones capable of firing missiles. The United States loosening and redefining international rules governing the use of force and war is ultimately not going to make anyone any safer.

Then there’s an article in The Hill newspaper which notes:

“Then-acting Assistant Attorney General David Barron, in the partially redacted 41-page memo, outlines the justification of the drone strike in Yemen to take out al-Awlaki, an alleged operational leader of al Qaeda. Barron wrote that al-Awlaki had taken up arms against his country, and it was necessary to take him out with a drone because he could have caused his nation harm… The memo details justification for a strike by either the Department of Defense or the CIA, which ultimately carried out the strike. The publicly available version of the memo begins on page 12. The CIA section is much more heavily redacted than the Defense Department section. The Justice Department concluded that al-Awlaki’s U.S. citizenship did not impose “constitutional limitations that would preclude the contemplated lethal action under the facts represented to us by DoD, the CIA, and the Intelligence Community.” The Justice Department found that some protections from the Fourth and Fifth Amendments likely still applied, granting him due process…The Justice Department also cited the Supreme Court when finding the Fourth Amendment protection against seizures has to be balanced against the importance of the government interest…The Justice Department found there is precedent for capturing and detaining a U.S. person abroad if that person is part of al Qaeda. The memo concluded, “it also authorizes the use of ‘necessary and appropriate’ lethal force against a U.S. citizen who has joined an armed force.'”

Col. Morris Davis, who is currently attorney but was the GITMO prosecutor from 2005 to 2007 writes in the Huffington Post and argues that the memo only has authority within the United States and not outside it (similar view as this article in The Daily Beast), a different perspective than everyone else and seems to trust in international law and procedures a lot:

“The news media and bloggers have covered the memo’s release extensively, particularly whether the administration’s position squares with the Constitution and U.S. laws. However, there are two areas that I believe are equally important that have been overlooked or ignored: the fact that the administration’s purported legal justification has no effect outside the United States and the conflation of the U.S. military and the Central Intelligence Agency (CIA) in the assessment of who has the right to kill outside the United States…Primary legal authority over a potential crime resides with whomever has jurisdiction over the site where the act occurred. A killing in France, for instance, would be governed primarily by French law and tried in a French court. There are some exceptions, like 18 U.S.C. Section 1119, discussed in both the OLC memo and the DOJ white paper, that give U.S. federal courts jurisdiction over the murder of a U.S. national abroad by another U.S. national if the country where the murder occurred lacks the ability to prosecute the case…In the context of the killing of Anwar al-Awlaki in Yemen, the U.S. government’s view on the legality of his killing has no binding effect on whether it was legally justified under Yemeni law…The CIA is a civilian agency, separate and apart from the Department of Defense, and in most circumstances its employees would not qualify as lawful combatants…Large portions of the OLC memo are redacted, and perhaps those missing paragraphs provide the rationale for how the CIA is supposedly legally justified in conducting drone strikes, but the fact that the administration maintains two drone programs — one military and one civilian — raises the question: Why?””

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