The United States Second Circuit Court of Appeals released a secret White House memo Monday explaining the legal justification for a lethal drone strike in Yemen against U.S. citizen and al-Qaeda leader Anwar al-Awlaki in 2011.
Based on facts provided by the intelligence community and Department of Defense, as an “operational leader” of an “enemy force,” al-Awlaki is not excluded from “lethal action” on the part of the military simply by virtue of being born in the U.S.
The Justice Department’s Office of Legal Counsel (OLC) prepared the memorandum, which stated that employing a drone strike against al-Awlaki was legally justifiable ”as part of the United States’ ongoing non-international armed conflict with al-Qaeda.”
Further justification was cited under a U.S. military force authorization granted by Congress after the Sept. 11, 2001 attacks on New York City and Washington, D.C.
The memo states that al-Awlaki was still entitled to his Fourth and Fifth Amendment rights against unreasonable searches, seizures and unfair due process while abroad, but that a ”decision-maker” such as the president could “reasonably conclude” that the terrorist leader represented a “continued” and “imminent” threat to U.S. national security.
“In addition to the nature of the threat posed by al-Awlaki’s activities, both agencies here have represented that they intend to capture rather than target al-Awlaki if feasible,” the memo reads. “Yet we also understand that an operation by either agency to capture al-Awlaki in Yemen would be infeasible at this time.”
Senators tasked with advice and consent authority over President Obama’s nomination of David Barron to the U.S. First Circuit Court of Appeals demanded to see the memo, which was written while Barron served as acting chief of OLC. Barron wrote numerous opinions justifying drone strikes on U.S. citizens.
“The realities of combat” validate such uses of force as ”necessary and appropriate” according to Barron, who cited the landmark Bush-era Supreme Court case Hamdi v. Rumsfeld, which ruled that U.S. citizens could be considered and detained as “enemy combatants.” However the same ruling mandated such designated detainees receive some form of due process.
“Due process analysis need not blink at those realities,” Barron wrote.
“There are few questions more important than the question of when the government has the authority to kill its own citizens,” American Civil Liberties Union Deputy Legal Director Jameel Jaffer said in a Business Insider report. ”This memo’s release will allow the public to better understand the scope and implications of the authority the government is claiming.”
“We will continue to press for the release of other documents relating to the targeted killing program, including other legal memos and documents relating to civilian casualties.”