Court Releases DOJ Memo Justifying Drone Strike On US Citizen

An anonymous reader writes in with news that the memo presenting a case for killing Anwar al-Awlaki has been released thanks to a Freedom of Information Act lawsuit. 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. 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.

Comments

Yeah sure

[ArcadeMan]

"Alleged" operational leader. No trial. Bam! You're dead.

Welcome to Soviet USA.

Re:Yeah sure

[Anonymous Coward]

The poor, rednecks, country folk, bible thumpers, etc that you try to make fun of using the derisive term "'Merica" are the very ones who are quickest to shed their own blood so that you can live in a nation where you are free to be an ass.

Re:Yeah sure

[fuzzyfuzzyfungus]

It's just goodies all around: according to unspecified intelligence, as examined to an unknown standard of proof, by unidentified parties, in secret, he was the alleged operational leader "taking on a continuous command function", which means he isn't entitled to the protections of a civilian under the Geneva convention, even though he is unaffiliated with any national armed force, and not directly engaged in any hostility at the time and place of his death.

Apparently, this is because the global war on terror is a 'non-international armed conflict', albeit one where the Congressional Authorization for the Use of Military Force is geographically (and temporally, enjoy kids!) unbounded.

What is not clear (at least from my reading) is where the boundary is between 'an armed and dangerous criminal justice problem' and a 'non-international armed conflict' between the United States and a non-state group. Al Qaeda is apparently in (aided by; but not strictly because of, the AUMF), so killing or imprisoning people we believe to be members, on or off a battlefield, in countries with any level of active conflict, is A-OK. Who else would qualify for this rather unenviable status?

Could we be at war with the Sinola Cartel if we wanted to? The Crips?

Re:Yeah sure

[mirix]

Yeah, because destroying backwaters half way around the world is a surefire way to make the US 'free'.

Re:Yeah sure

[Opportunist]

Free? You call yourself free?

The only reason you may still speak what you feel like is 'cause your leaders learned that it doesn't matter jack what you say. Should you for some odd reason actually become important enough that people listen to you, you'll be silenced soon enough, don't worry.

Re:Yeah sure

[joe_frisch]

If you are in a state of war with a country, within some limits it is expected that you can kill people in that country. Where things get complicated is when you are in an ill defined state of hostility against a non-state organization like Al Qaeda. What are the rules on declaring someone to be part of that organization and there for a military target? While this question applies to any possible targets, it is especially troublesome when the target is an american citizen. The government cannot execute an american citizen without a trial. Can it declare an american citizen to be a member of a foreign military and then execute them? This would seem to completely bypass the constitutional right to a fair trial.

In a standard state-war it is fairly simple: If they are in an enemy country it is OK to kill them in the same way that it was OK to kill anyone else in that country. An american arrested for treason in the US on the other hand would get a trial. In a conventional state war you don't bomb countries that are not enemy states.

The level of activity to be considered a target for execution is also a tricky question. It is clearly OK to return fire if fired upon. When his actions are less direct it becomes more difficult.

At the root of all this is that the concept of "war" has changed and laws have not kept up with 21st century wars.

Re:Yeah sure

[mariox19]

I want to be sympathetic to your sentiment, but there is no one outside of the United States threatening our freedom. That's a fact. There is no one in the military fighting for our freedom. Granted, they may stand ready to defend our freedom, should a foreign threat materialize, but that's a different story.

Sadly, the real threat to our freedom is from within. It's from people in government who fancy themselves on the side of the angels and who think it's okay to bend or break the rules—a.k.a. the Constitution—to defend the "homeland." They're setting up the legal framework and law enforcement infrastructure that will completely obliterate the United States of America for good. What will be left is lines on a map claiming a heritage it has no right to.

Re:Yeah sure

[vux984]

The right to freedom of speech is not unrestricted:

Perhaps not, but punishable by death, for speech?? Even "illegal speech"?

From the linked article he wasn't just posting videos urging violence but was also involved in planning attacks against U.S. persons.

Should be: allegedly involved

So, if he was involved, To what extent was his involvement, and what was the sentence? Was he allowed to confront his accusors? Was he given due process?

I'm not saying he was a good guy, or even that its likely that he was a good guy, but seeing as we just executed him, extra judicially, with no due process, WE are NOT the "good guys" either.

Beating the terrorists by becoming them is not a victory at all.

Re:Yeah sure

[dnavid]

"Alleged" operational leader. No trial. Bam! You're dead.

Welcome to Soviet USA.

I don't think this particular situation is quite so simple. If Anwar al-Awlaki had joined the military of a country that had declared war on the United States, there would be no reasonable expectation of him being entitled to a criminal trial, because he would not be strictly speaking a criminal: he would be an enemy combatant, and furthermore no longer even an American citizen (since you cannot remain a US citizen while serving in the military of another country). The question is whether joining a paramilitary terrorist organization like Al Qaeda that isn't directly affiliated with a recognized nation-state triggers the same situation. He voluntarily made his affiliations public and also actively advocated violent acts against the United States and its citizens. I would myself like to know what evidence the government had that he posed a legitimate ongoing threat against the country, but I don't think its reasonable to try in abstentia every single member of al-Qaeda before lethal force can be used against them.

We are supposed to make the presumption that even when the burden is high, all suspected criminals are entitled to a fair trial before they are punished by the government for their alleged crimes. But there have always been two exceptions to that presumption that most people find reasonable. The first is that law enforcement may use force, including lethal force, to interrupt a crime in process. We assume the burden of proof is relaxed in that environment, because its literally impossible to adjudicate a fair trial in the middle of a crime. And the second are acts of war, where the government can act against declared enemies of the country. We can't hold a trial for each individual enemy soldier we come across before shooting at them. The question is whether al-Qaeda is a criminal organization or a political one that can be legitimately considered a national enemy.

Of course, even in times of war we do not generally assassinate the political leaders of the enemy; there is a notion that even an enemy country has a civilian population and a military. But its unclear to me that rule generally applies to al-Qaeda, as they do not have very much non-military infrastructure (besides financing). I would be uncomfortable with targeting al-Qaeda lawyers or bankers or spokespersons. But I'm not particularly disturbed by targeting of people directly involved in the planning or execution of terrorist activities.

I recognize that's not a particularly popular opinion, and its more nuanced than can easily be articulated. For example, I don't consider the Boston bombers to be anything but (alleged) criminals entitled to the full legal rights of the legal system. Unless contradictory information becomes known, whether they committed a terrorist act and whether they sympathize with or even claim membership in a terrorist organization, if there's no proof they were actually acting as agents of that organization, any US citizen acting within the borders of the United States is still entitled to full legal rights no matter how heinous their alleged acts. I just don't think al-Awlaki acted in a manner consistent with being entitled to those same protections.

Re:Yeah sure

[Anonymous Coward]

I just don't think al-Awlaki acted in a manner consistent with being entitled to those same protections.

Wrong. No matter what group he was part of, he's still a US citizen. He's entitled to all the same protections, and the constitution says *nothing* that says otherwise.

Re:Yeah sure

[sjames]

We are supposed to make the presumption that even when the burden is high, all suspected criminals are entitled to a fair trial before they are punished by the government for their alleged crimes. But there have always been two exceptions to that presumption that most people find reasonable. The first is that law enforcement may use force, including lethal force, to interrupt a crime in process. We assume the burden of proof is relaxed in that environment, because its literally impossible to adjudicate a fair trial in the middle of a crime. And the second are acts of war, where the government can act against declared enemies of the country. We can't hold a trial for each individual enemy soldier we come across before shooting at them. The question is whether al-Qaeda is a criminal organization or a political one that can be legitimately considered a national enemy.

Not quite. No police shooting is a punishment for an alleged crime, it is a right to self defense (and by extension, the defense of innocents) being exercised. As such, it is only legal if there is a current credible threat (for example, the suspect draws a gun and moves to take aim at someone) If the suspect survives, they will still face a trial for the original charges (because the shooting was not punishment for the alleged crime).

Incitement of future violence or even planning future violence don't meet the immediacy necessary to use lethal force in self defense. In those cases, arrest is permitted with a speedy public trial to follow.

If we want to claim that the activities constitute joining a foreign military (and they might), due process still requires an appropriate hearing to determine that he has surrendered his citizenship.

Re:Yeah sure

[ATMAvatar]

Being an accessory to murder as often as Anwar al-Awlaki was would earn you enough 20 year sentences to fill a hundred lifetimes.

The part that's missing is the murder trial before sentencing.

Re: Yeah sure

[IamTheRealMike]

If you're fighting with our enemies, as an enemy combatant, why do you believe you should get a trial as a criminal rather than simply being killed on the battlefield after identification As an enemy?

Blurring the lines between soldiers and terrorists is exceptionally dangerous, especially for America.

After all, using the implication of what you wrote above, it would apparently be OK for the British Royal Air Force to drone strike Congress, because a Republican congressman has been and probably still is an outspoken supporter of Irish republican terrorism. And if a few innocent other congressmen get blown to bits too, well that's unfortunate collateral damage but I guess they shouldn't have been hanging around known supporters of terrorism should they? The world's a battlefield these days.

Re:Yeah sure

[ultranova]

But he wasn't killed for being a criminal, he was killed for being a threat. This is the point. You try criminals, you eliminate threats.

So who decides who's a threat? Do you have a Star Chamber for that, or do you skip such formalities and just let your president decide who eats polonium or bombs?

I knew the US was decaying, but I didn't realize it was quite this close to the point of collapse.

What you're suggesting though, is that if a suspect pulls out a gun and points it at a police officer than that police officer should not be allowed to shoot that suspect, because that suspect has not had a trial.

So who did the guy have at gunpoint? Police officers aren't allowed to shoot wanted criminals walking on the street as a precaution against the possibility that they might pull a gun. And they definitely aren't allowed to decide one won't get a trial. Or at least the law doesn't allow them to; I'm beginning to suspect that means precious little in America.

Your claim that every bombing is an "assassination" is perhaps technically accurate, but misses some subtleties in what that word implies.

"Assasination" means you want someone dead so you kill them. Subtleties only come in as a way of lying to yourself about what you're doing.

How does this not violate the 5th and/or 14th...

[Assmasher]

...amendments to the Constitution?

Obama is turning out to be just as bad as the Neo-Cons when it comes to "protecting us from ourselves."

Re:How does this not violate the 5th and/or 14th..

[Bartles]

Worse, actually. They never did this.

Lovely Latin

[IonOtter]

Ex post facto ex parte: We think you're guilty of a crime, so we're going to kill you and come up with the justification later.

Re:Lovely Latin

[ArcadeMan]

The history of warfare is subdivided into three phases: retribution, anticipation, and diplomacy. Thus, retribution: “I’m going to kill you because you killed my brother.” Anticipation: “I’m going to kill you because I killed your brother.” And diplomacy: “I’m going to kill my brother and then kill you on the pretext that your brother did it.”

Re:Lovely Latin

[ArcadeMan]

With credit to Douglas Adams, sorry for the omission.

Re:How does this not violate the 5th and/or 14th..

[ArcadeMan]

Or you just never heard about it.

Murder

[Anonymous Coward]

Why doesn't anyone use the correct term.

Re:Murder

[Overzeetop]

Oops forgot the link: http://www.foxnews.com/politic...

what is so special

[Anonymous Coward]

about striking an us citizen as opposed to say an Iraqi, an Albanian, a German, or a Mexican? They do not seem to have problems with most Arab countries. Not people? Not deserving a trial?

Re:"US Citizen" or "US passport holder"

[I'm New Around Here]

If you support the killing of this man I happily support putting you in a cage for the rest of your life.

Are you in the streets demanding the same consequences for President Obama? For any of his staff?

Re:How does this not violate the 5th and/or 14th..

[sumdumass]

You should find it fascinating. Outside of moral grounds, there are bonds that empower the government of the US that also places limits on the government. One of those limits is the right to due process when you are in US jurisdiction. A US citizen is in US jurisdiction wherever they are. A terrorist or even a school teacher who looks like a terrorist in another country might not be. Put those same people in the US, and they have the same right to due process.

Now right may be the wrong words here. The bonds that empower the federal government, the Constitution, forbids the government from denying due process to "we the people" except in a narrow window in which habeas corpus can be suspended- but that requires custody of the person and does not allow extrajudicial punishment outside of holding a person.

So no matter how contrived they can make an excuse to execute a foreigner on foreign soil, the government is expressly forbidden to do so on a US citizen who has not been afforded due process or is not showing an imminent threat to others. Of course in one of these instances, it seems to be collateral damage. It would be like a cop shooting at a suspect shooting other people and in the process killing a citizen with a stray bullet 2 blocks away. Not a criminal act, but the state is still responsible.

Re:How does this not violate the 5th and/or 14th..

[Anonymous Coward]

I'm sorry, I should have been more clear. The United States--theoretically of course--does not violate the rights enumerated in the Bill of Rights of *anyone*. That is, if you're a foreigner, even one in the country illegally, you are afforded due process just like any other citizen. But that's for matters occurring within the boundaries of the United States.

For the USA to kill a foreigner on foreign soil, I would say that constitutes an act of war, thus the laws of war (Geneva Conventions, et al.) should apply. In this case though, the USA killed someone on foreign soil, but he was technically an American citizen. A reprehensible one, and one who repeatedly had called for violence against Americans and their allies, but he was an American citizen. He was born in the United States and therefore was a citizen.

A person can renounce American citizenship, or it can be revoked, but neither of those things had happened. I've heard that in his various rants that seem to be why we wanted to kill him, al-Awlaki had verbally renounced his citizenship, but that is not the same (to me at least, IANAL) as actually going through the process of renunciation (I think you have to send them your passport and fill out a form explaining why you don't want to be a citizen of the USA anymore). It could be argued that he had de facto renounced his citizenship by his actions but that's something for a court to decide, and that's my problem with the whole affair.

Given how incendiary this guy seemed to be, it should have been very simple a matter to revoke his citizenship. But that never happened. Given that he was imprisoned in Yemen more or less at the behest of the United States, it should have been a very simple matter to try and convict him--even in absentia--for whatever crimes the US gov't thought it was worth drone striking him over. But that never happened. That we summarily execute anyone in the name of truth, justice and the american way or whatever nonsense was used as justification is an abomination to me. But it is especially worrisome to me that we are willing to do this to another American citizen, as we were supposed to be doing this in the name of preserving our way of life--a way of life that includes all those pesky rights enumerated in the Bill of Rights.