The U.S. Court of Appeals for the Second Circuit on Monday released a secret 2010 Justice Department memo justifying the killing of Anwar al-Awlaki, a U.S. citizen killed in a drone strike in 2011.
{mosads}The court released the document as part of a Freedom of Information Act lawsuit filed by The New York Times and the American Civil Liberties Union to make the document public.
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 U.S. citizen in question has gone overseas and become part of the forces of an enemy with which the United States is engaged in an armed conflict; that person is engaged in continual planning and direction of attacks upon U.S. persons from one of the enemy’s overseas bases of operation; the U.S. government does not know precisely when such attack will occur; and a capture operation would be infeasible,” wrote Barron, who was recently confirmed to the First Circuit Court of Appeals.
In April, The court ordered the redacted version of the document to be released because the administration had already made public and discussed al-Awlaki’s killing. The administration decined to appeal the ruling, and Monday is the first time the memo has been released.
Attorney General Eric Holder last year outlined a three-pronged justification for targeted killings of a U.S. citizen who is a leader of al Qaeda: The suspect must pose an imminent threat, capture must be infeasible, and the strike needs to adhere to applicable war principles.
Sen. Mark Udall (D-Colo.) applauded the release of the full memo but said questions remain unanswered.
“I also have called for — and not received — answers to questions such as how much evidence the government requires in order to make an American a legitimate target, how an ‘imminent’ threat is defined, and what are the geographical boundaries of these authorities, among others,” the senator said.
Sen. Ron Wyden (D-Ore.) similarly said he hoped the release would pressure the administration to address some unanswered questions.
“How much evidence does the president need to determine that a particular American is a legitimate target for military action?” Wyden asked. “Or, can the president strike an American anywhere in the world? What does it mean to say that capturing an American must be ‘infeasible’? And exactly what other limits and boundaries apply to this authority?”
Al-Awlaki was accused of helping to orchestrate the Fort Hood massacre and the “underwear bomber” plot. His death in a drone strike in Yemen had been widely reported before the administration publicly acknowledged it last year.
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.
Citing a previous court ruling, however, the DOJ found that the realities of combat make some force necessary and appropriate and the “due process analysis need not blink at those realities.”
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.
“As explained above, on the facts represented to us, a decision-maker could reasonably decide that the threat posed by al-Awlaki’s activities to United States persons is ‘continued’ and ‘imminent,” ” according to the memo. The paragraph immediately preceding it is redacted.
Under the section justifying a strike by the Defense Department, Barron concluded the Authorization of Use of Military Force (AUMF) approved by Congress in 2001 could be used to justify the strike.
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.'”
Though the strike took place in Yemen, far from where the primary U.S. conflict with al Qaeda took place, the DOJ concluded it still falls within the AUMF. It noted that the authorization did not set geographical limitations.
“Al-Awlaki, an active, high-level leader of an enemy force who is continually involved in planning and recruiting for terrorist attacks, can on that basis fairly be said to be taking ‘an active part in hostilities,’ ” the memo reads.
The ACLU said the release represents a long overdue step, adding the drone program has been responsible for the death of thousands of people.
“There are few questions more important than the question of when the government has the authority to kill its own citizens,” said ACLU deputy legal director Jameel Jaffer, who argued the case. “This memo’s release will allow the public to better understand the scope and implications of the authority the government is claiming.”
The Justice Department said the memo only applied to the specific case of al-Awlaki.
“In reaching this conclusion, we do not address other cases or circumstances, involving different facts,” according to the memo. “We emphasize the sufficiency of the facts that have been represented to us here, without determining whether such facts would be necessary to the conclusion we reach.”
–This report was updated at 3:21 p.m.