Skip to main content

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.

The justifications:

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.

Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags


More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

  •  Tip Jar (15+ / 0-)

    The Canary in the Coalmine is available for purchase at

    by Jesselyn Radack on Sun Oct 09, 2011 at 05:16:21 AM PDT

  •  I also write on this topic (4+ / 0-)

    and my diary went up a few minutes after yours.  I examine both Charlie Savage's story and Arthur Brisbane's Public Editor column and offer some thoughts of my own in this posting

    "what the best and wisest parent wants for his child is what we should want for all the children of the community" - John Dewey

    by teacherken on Sun Oct 09, 2011 at 05:28:36 AM PDT

  •  yes and no (0+ / 0-)
    The memo, however, was narrowly drawn to the specifics of Mr. Awlaki’s case and did not establish a broad new legal doctrine to permit the targeted killing of any Americans believed to pose a terrorist threat.

    ...Several news reports before June 2010 quoted anonymous counterterrorism officials as saying that Mr. Awlaki had been placed on a kill-or-capture list around the time of the attempted bombing of a Detroit-bound airliner on Dec. 25, 2009.

    The office may have given oral approval for an attack on Mr. Awlaki before completing its detailed memorandum.

    is not the same as

    (Does this ring any bells?  Office of Legal Counsel (OCL) memos written after-the-fact to justify extremely questionable conduct?)

    "may have" is not "apparently" and the memo was out for over a year before awlaki was killed, so it's not justifying anything after the fact.  

    even if the claim is that the "permission" for dead or alive predated the memo, it's entirely possible it went down like this:  "sir, we need to put awlaki on the dead or alive list."  "can we do that?"  "well, he is at war with us, sir, but we'll look into it."  

    i mean, we're talking about all of six months between the supposed capture or kill permission and the report; the hit went down well over a year after that.

    Also, the memo does not bother to even independently analyze the quality of the evidence against him.

    why would it?  it had one question to consider:  whether or not it was legal to kill awlaki.  it was not concerned with proving the case against him; it is not an affadavit to determine guilt at a trial.  that's a completely separate issue/report.  

    2) the execution would only be lawful if it were not feasible to take al-Awlaki alive (a dubious justification since we could have taken Osama bin Laden alive but chose to kill him on the spot.)

    nobody, save maybe seal team 6, knows that.  

    also, bin laden is in no way comparable to awlaki, or at least, if they are directly comparable, then awlaki's citizenship has to be irrelevant here.

    i'm not weighing in on this one way or another except to say that this topic is way too important to be muddied with hyperbole and spurious conclusions.


    My goal is to make the world safe for anarchy. - 4Freedom

    by Cedwyn on Sun Oct 09, 2011 at 06:18:55 AM PDT

    •  Wow. That's a lot of justification. (6+ / 0-)

      When you say:

      [The memo] had one question to consider:  whether or not it was legal to kill awlaki.  

      you're doing the same thing you accuse me of doing: making assumptions.

      We actually have no idea what the memo was asked to consider because it is still secret. And if you think it will be limited to al-Awlaki's case, just look how the previous and current administrations have taken limited grants of authority, for example in the AUMF, and stretched them to embrace just about every controversial act taken.

      If you're gonna start killing American citizens, of course we're going to start with someone evil like al-Awlaki.  That's how slopes always become slippery.

      The Canary in the Coalmine is available for purchase at

      by Jesselyn Radack on Sun Oct 09, 2011 at 07:51:07 AM PDT

      [ Parent ]

      •  it's really not much of an assumption (0+ / 0-)

        awlaki's guilt is an entirely different question than the legality of killing an american citizen for his participation in the war against us.  i can't imagine why lawyers tasked with analyzing the latter would bother with the former; it kinda seems guilt is a given if they're at the point of pondering dead-or-alive status.

        i personally don't believe we could have taken awlaki alive, not without a bloodbath.  is it okay to gun down all his compatriots to get to him, but we better not shoot him because he's an american in name only?

        is it ever possible the government might justifiably cite state secrets, or is it a conspiracy every time?  some trial records get sealed, no government secrets required.  

        might trial by a jury of his peers compromise intel?  

        who exactly would be the peers to serve as jury to an american defector working with al qaida in yemen?  the lawyers would have a field day wrangling over that.  would it even be possible to find an untainted jury pool?

        is there a point at which providing due process to the strictest letter is simply not possible?  

        i'm asking these questions because i don't quite know the answers myself; i just think this whole issue isn't as cut and dry as it's made out to be, but i feel that way about a lot of things.

        i'm much more disturbed by predator drones in the bigger picture sense than anything having to do with awlaki, that's for sure.


        My goal is to make the world safe for anarchy. - 4Freedom

        by Cedwyn on Sun Oct 09, 2011 at 08:36:00 AM PDT

        [ Parent ]

        •  its a conspiracy a lot of the time (0+ / 0-)

          Some state secrets cases:

          Reynolds v US - turned out to be a conspiracy to defraud Air force widows

          Watergate - turned out to be a conspiracy to cover up various crimes (Nixon tried to use State Secrets privilege to stop the FBI from investigating)

          Iran Contra - turned out to be a conspiracy (yes im too lazy to find a citation)

          US v Lindh - very convenient to use state-secrets in this case, considering how badly they fumbled the case against him, and how they tried to cover it up.  if you don't believe me, read Jesselyn Radack's book. (in the end, he plead out, but they put a gag order on him, and a gag order on Radack)

          El-Masri v Tenet - if not an outright conspiracy, it was certainly very convenient that the trial was dropped, and a certain famous redheaded CIA officer didn't have to be embarassed in public about her mistakes.

          US v Drake - turned out to be a conspiracy, with flat out lies by the government about Drake's actions.

          So yeah. I don't know the percentages, but a lot of state secrets privilge arguments are to hide and cover up mistakes by the government.

    •  If you're going to take an American life without (3+ / 0-)
      Recommended by:
      NonnyO, skrekk, JohnnyBoston

      due process, you sure as hell better make at least some sort of effort to independently analyze the quality of evidence against him.

      The Canary in the Coalmine is available for purchase at

      by Jesselyn Radack on Sun Oct 09, 2011 at 07:57:00 AM PDT

      [ Parent ]

  •  Samir Khan was ostensibly not a target (0+ / 0-)

    of the attack

    •  But we still killed him and still tried to justify (1+ / 0-)
      Recommended by:

      it on the grounds that he was a "bad guy."

      There was a ton of info. in the mainstream media and blogosphere that he was "fair game" because he objectionable things.

      The Canary in the Coalmine is available for purchase at

      by Jesselyn Radack on Sun Oct 09, 2011 at 07:53:09 AM PDT

      [ Parent ]

  •  The question on-point... (0+ / 0-)

    From teacherken's diary:

    Who isn't the U.S. executive branch allowed to kill?

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site