Right after the targeted killing of Anwar al-Awlaki, a radical Muslim cleric, I submitted the first official request for the secret legal memo justifying his killing under the Freedom of Information Act. The memo still remains secret, but today's New York Times article about it is based on people who have read the memo. I'm probably going to lose a friendship over this, but much to my disappointment, Marty Lederman--a leading critic of Bush's policies on torture, black sites, and rendition--was one of the authors (the other was David Barron) and used a lot of the same Bush logic used to justify the programs Lederman once condemned.
Let me say up front, before all those cheering al-Awlaki's death jump in, I think he was an evil guy. This diary is not about al-Awlaki. It's about killing an American without due process of law--namely, killing an American citizen without trial--justified by the same controversial arguments Bush used to justify his worst "dark side" programs, which we criticized roundly here on Daily Kos.
As New York Times journalist Charlie Savage points out, there exists
an executive order banning assassinations, a federal law [that prohibits Americans from murdering other Americans abroad], protections in the Bill of Rights [the Fourth Amendment’s guarantee that a “person” cannot be seized by the government unreasonably, and the Fifth Amendment’s guarantee that the government may not deprive a person of life “without due process of law”], and various strictures of the international laws of war . . .
The approximately 50-page memo was finished around June 2010, but apparently oral permission was given beforehand to kill al-Awlaki. (Does this ring any bells? Justice Department Office of Legal Counsel (OCL) memos completed after-the-fact to justify extremely questionable conduct?) Also like the Bush memos, this memo does not bother to independently analyze the quality of the evidence against the target, but rather relies on an expansive unitary executive theory.
1) Al-Alwaki was taking part in the war between the United States and al Qaeda and posed a significant threat to Americans--though he never picked up arms against the U.S.;
2) Yemeni authorities were unable or unwilling to stop him--which is contradicted by Yemen's bragging that they gave us information to geo-locate him that was precised enough for a drone attack;
3) Al-Alwaki had evolved from being a "propagandist" to playing an "operational role" in al Qaeda--an assertion made for the first time ever by Obama after we killed him;
4) he was a "co-belligerant" (another Bush term for "enemy combatant"); and, taking a page directly from John Yoo,
5) the Authorization to Use Military Force against al Qaeda that Congress enacted shortly after 9/11 allowed this because al-Awlaki was a lawful target in the armed conflict.
As for the powerful case law justifications? According to Savage,
Supreme Court precedents, like a 2007 case involving a high-speed chase and a 1985 case involving the shooting of a fleeing suspect, finding that it was constitutional for the police to take actions that put a suspect in serious risk of death in order to curtail an imminent risk to innocent people.Yeah, that's right on point. There was no "imminent danger" here. Lederman needs to go back to Yale Law School, along with John Yoo. I went there, too, and that's not the kind of pretzel logic we learned.
Oh, and BTW, another American citizen, Samir Khan, was killed in the drone attack, and that's been justified too because he had produced a propaganda magazine called Inspire--activity clearly protected by the First Amendment.
However you feel about al-Awlaki, we should be able to agree that Khan's death was not legal.
We are supposed to take comfort in being told that the memo is 1) narrowly drawn to the specifics of al-Awlaki’s case and 2) the execution would only be lawful if it were not feasible to take al-Awlaki alive (a dubious justification, see, e.g., the unarmed, pajama-clad Osama bin Laden, whom we could have taken alive and put on trial before a war crimes tribunal for the world to see, but instead chose to kill on the spot.)
The fact of the matter is that this memo sets precedent that permits the targeted summary killing of any American suspected of terrorism. Anyone who still cares about the rule of law and civil liberties should be appalled.