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Yeah, and now just what exactly are we supposed to do with them?  I know I won't agree with many here, but from what I've seen so far - not much in these documents is any different from what i was expecting.

The memo says that because the U.S. government considered al Awlaki to be an “operational leader” of an “enemy force,” it was legal for the Central Intelligence Agency to attack him with a drone even though he was a U.S. citizen.

The memo says the killing was further justified under Congressional authorization for the use of U.S. military force following the Sept. 11, 2001 hijacked-plane attacks.

Now I've heard criticism both from the Left and the Right of this reasoning.  From the Left there seems to be the feeling that the President doesn't have the authority to determine who is or isn't a military enemy without a courts approval if that person happens to be an American.  Hence using a military attack which is equivalent to a summary execution against them is "unlawful" without judicial review.

The Right has used a similar argument, only in the other direction. They've argued that Non-Citizens don't have the same Constitutional protections as Americans and hence methods used against them, such as torture, indefinite detention or drone strikes are perfectly legal in their case but not in the case of an U.S. Citizen.

I think both of these views are wrong for the same reason which I'll go over that reason over the flip as well as  a much larger problem with the drone strike program that this debate on "Citizenship rights" has managed to almost completely obscure.

The newly released documents are in response to an ACLU FOIA on the issue, to which the ACLU responds thusly.

"The release of this memo represents an overdue but nonetheless crucial step towards transparency," said ACLU Deputy Legal Director Jameel Jaffer. "There are few questions more important than the question of when the government has the authority to kill its own citizens.
And also...
Human rights advocates criticized the legal justification outlined in the memo as overly broad and a distortion of the law.

Pardiss Kebriaei, a lawyer with the Center for Constitutional Rights in New York, described the justification as “highly aggressive and controversial interpretations of international law.”

Just to be more specific here are some samples of those arguments.
Morris Davis Retired Colonel, Former Chief Prosecutor at Gitmo
. If you wanted to evict Anwar Al-Alwaki from his house, you'd have to give him notice and his day in court to contest it. You're saying you [Obama] have the right to put him on a list and designate him for assassination.
Yeah, but this isn't about not paying your rent on time - it's about whether someone is an active ENEMY of the nation and it's interests - and I doubt even Colonel Morris would argue that Bin Laden deserved to go before a judge before Special Forces kicked in his door.  Does he think Seal Team Six should've had a warrant? In Pakistan?

Even a cop on the street, if he feels someone is suspicious, particularly if there's been a BOLO or "Wanted" poster issued - has the right and responsibility to respond up to and including deadly force if they consider that person to be a active threat.  How can the President have any less power than that if he finds someone similarly threatening to the nation?

Hina Shamsi, Director of ACLU's National Security Project
The problem is that the Administration definition of "imminent" and "feasibility of capture" is so vague and elastic that's it's robbed of it's plain meaning. We don't even need evidence of an actual plot and that's from the leaked white paper  on U.S. Citizens, we're left guessing as to such determination on non-citizens?
What exactly is our feasibility of capturing anyone in Yemen?  We have no significant forces on the ground, no real local support and no infrastructure we can rely on in territories that our incredibly hostile to us. By comparison we have much stronger allies and support in Libya where we were able to capture the leader of the Benghazi attack, but is that truly a feasible option in Yemen?  Should we instead ignore specific plots, such as the attempted Christmas underwear bomber who had clear links to al-Alwaki influence in Yemen?

And also why exactly should there be any difference in the determination that someone is an "imminent threat" whether they are a citizen or not?  How and why it is assumed that U.S. Citizens gets special rights that Non-Citizens don't get?

Daphne Eviatar, Senior Counsel Human Rights First Law and Science Program
What ever "Due Process" means, it can be not secret evidence presented to the executive branch behind closed doors.
Ok, what rules or court has ever - and I do mean EVER - overruled the ability of a President to pick and authorize military targets?  When has any President publicly published his battle plans before each and every attack?

Hey Quaddafi, look - out - F117 Incoming!

Never. That's when.

Kenneth Roth, Executive Director of Human Rights Watch.
. Of course, the United States has a duty to protect it's citizens.  But simply stating that doesn't mean that anything goes, there are still rules that govern self-defense.
Of course, and yet...
If you're going to use lethal force you have to be shooting at a combatant in a legal authorized war, or you have to have an imminent lethal threat.
I would agree with that standard absolutely.  The problem is that in this argument - when have COURTS even been used to determine who is a Combatant and who Isn't? prior to the deployment of forces against that combatant?  When has a Judge said "You can fire on this target, but not that one?"  And I submit, they haven't.

Judges don't run Wars. They may clean up after them, but they don't run them from the bench.

Now, if we agree that the standard is met by the President implementing his War Powers following authorization of those powers by Congress - the second issue of "imminence" while being handy to have, is essentially moot.  If you think a combatant might attack, the President can take action even if he isn't currently in the process of planning or executing an attack. If you have one, you don't need the other.

Pardiss Kebraei, Attorney Center for Constitutional Rights
. In December of 2009 the U.S. fired missiles at village in Yemen killing 41 members of two families, including 21 children.
Well, that sucks.  And is a valid point when it comes to the issue of target selection - but what I don't hear is a solution to address that problem.  There are two real issues here 1) Are these targets "legitimate" and accurately selected and b) How can collateral damage to bystanders be limited without increasing the risk of U.S. casualties be that pilots, Special Forces or Snipers?  Would we not have the same issue, but at higher risk to our personnel if that missile strike was fired from an Apache Helicopter, or an F-16, or a B-2 Bomber?  Wouldn't we still have the issue of collateral damage of innocents?  When President Clinton authorized a cruise missile counter strike against Iraq from their attempted plot kill President George H.W. Bush using a car bomb in Pakistan - even though he targeted the Iraqi Intelligence building while it was empty - there were still collateral casualties including a innocent famous musician who lived directly across the street.  When Clinton authorized cruise missile attacks on what was said to be an Anthrax plant in Syria, it was later argued that the plant only made aspirin.

In all these cases, there is a risk of collateral casualties - a risk that runs in somewhat counter-balance to the our ability and willingness to put our own troops in harms way to minimize those casualties.

In this respect, it doesn't matter whether the targets or American Citizens or not, if they have been badly selected, they've been badly selected and I still don't hear anyone arguing where in the Constitution the President's War Fighting Powers would require prior intervention by either of the other two branches.

Until now...

Naureeh Shah, Former Associate Director Human Rights and Counter-terrorism Project Columbia Law.
. The President believes in checks and balances, but that can't happen when the public and the courts are out of the loop. Congress doesn't have an incentive to act because all of this is happening outside of the public eye.  If this were another troop deployment to another combat zone we'd see congress really pushing, and pushing it publicly.
When some members of Congress were pushing for us to send our own troops into Syria prior to the invasion of ISIS into Iraq the President gave them that ball and asked for them to run with it.  They fumbled.  It's not just his own timidity to use our troops that is the issue here, it's our entire nation which has already seen a generation maimed and traumatized in these wars. Drones offer a relatively "bloodless" solution to that problem, while potential exacerbating the issue of accountability and oversight by making the body count seem no more dramatic than racking of piles of nameless, faceless enemy zombies in a video game - or a dramatic cable tv show.

I sympathize with all of these arguments, but simply because you make an argument, doesn't mean that yours is the final and winning view.  Not when it comes to the claim that U.S. Citizens - like Awlaki - get special due process rights that others don't have.  My point is that none of these critics manage to cite a specific law, court decision or Constitutional clause that is being violated by the current policy.

Prior to the drone strike against Awlaki, the U.S. captured U.S. Citizen John Walker Lindh and named him as a enemy combatant as member of the Taliban, he is currently serving 20 years.

Jose Padilla is another American Citizen, born in Brooklyn, who was identified as an al Qaeda operative, designated as an "enemy combatant" and subject to "enhanced interrogation" torture by the Bush Administration.  He was ultimately sentenced to 17 years in criminal court.

Is there any doubt if either of these men had encountered and fought back against U.S. troops on the battlefield (and Lindh apparently did just that) that the priority of those troops would have been their own safety first, and determining if any of those shooting at them were Americans a distant second?

Thirdly there is a case of an American Enemy Combatant who actually did battle the Presidential determination of his status all the way to the Supreme Court - and lost.  That would be in the case of Hamdi V Rumsfeld.

Hamdi v. Rumsfeld, 542 U.S. 507 (2004), is a United States Supreme Court case in which the Court recognized the power of the government to detain enemy combatants, including U.S. citizens, but ruled that detainees who are U.S. citizens must have the rights of due process, and the ability to challenge their enemy combatant status before an impartial authority.


Yaser Esam Hamdi was born in Louisiana as a citizen of the United States. In 1980, while still a child, he moved with his family to Saudi Arabia.[1]

In the late summer of 2001, Hamdi at the age of 20 went to Afghanistan, traveling on his own for the first time. He was doing relief work for less than two months before being captured by the Afghan Northern Alliance. They turned him over to U.S. military authorities during the U.S. invasion.[2] He was classified as an enemy combatant by the U.S. armed forces and detained in connection with ongoing hostilities.[3]

The plurality held that judges need not be involved in reviewing these cases, rather only an "impartial decision maker" was required. Justice O'Connor also limited the reach of the Court’s conclusion regarding the executive authority to detain enemy combatants:

"For purposes of this case, the enemy combatant that [the government] is seeking to detain is an individual who, it alleges, was part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States there. We therefore answer only the narrow question before us, whether the detention of citizens falling within that definition is authorized."[8]

The SCOTUS analyzed the question of whether a U.S. Citizen could be considered an "Enemy Combatant" and their answer was "Yes, they can."  I've been saying this for years and the reason I keep bring it up is because no one else - on the left or the right - ever seems to.  But as it turns out the DOJ brought it up in their memo on Awlaki.
Al-Aulaqi is a United States citizen, however, and so we must also consider whether his citizenship precludes the AUMF from serving as the source of lawful authority for the contemplated DoD operation. There is no precedent directly addressing the question in circumstances such as those present here; but the Supreme Court has recognized that, because military detention of enemy forces is "by 'universal agreement and practice,' [an] 'important incident[] of war,' Hamdi v Rumsfeld, 542 U.S. 507, 518 (2004) (plurality opinion) (quoting Ex parte Quirin, 317 U.S. 1, 28, 30 (1942)), the AUMF authorized the President to detain a member of Taliban forces who was captured abroad in an armed conflict against the United States on a traditional battlefield. See id at 517-19 (plurality opinion). 29 In addition the court held in Hamdi that this authorization applied even though the Taliban member in question was a U.S. citizen.
Now the court did authorize periodic judicial review to verify the continuing accuracy of that determination using a Combat Status Review Tribunal for detainees - but they did not create, authorize, or even suggest that any judicial review be required for persons not currently in our custody, on the battlefield or otherwise overseas. Cuz frankly - that would be stupid. Like having an umpire in a firefight - calling with shots are "out of bounds" and which should "count".

Following this case in 2006 the court also determined that the due process rights which had been affirmed for the U.S. citizen Hamdi also applied to non-citizens in the case Hamdan V Rumsfeld.

The plaintiff was Salim Ahmed Hamdan, a citizen of Yemen who worked as a bodyguard and chauffeur for Osama bin Laden. Hamdan had formerly worked in Afghanistan on an agricultural project that Bin Laden had developed. Hamdan was captured by militia forces during the invasion of Afghanistan in the fall of 2001 and turned over to the United States. In 2002, he was sent by the US to its new Guantanamo Bay detention camp at its Naval Base in Cuba.

In July 2004, Hamdan was charged with conspiracy to commit terrorism,[5] and the Bush administration made arrangements to try him before a military commission, established by the Department of Defense under Military Commission Order No. 1 of March 21, 2002. He was assigned a defense counsel, LCDR Charles D. Swift from the Navy JAG, who with a legal team filed a petition for Hamdan in US District Court for a writ of habeas corpus, challenging the constitutionality of the military commission, and saying that it lacked the protections required under the Geneva Conventions and United States Uniform Code of Military Justice.

Following the United States Supreme Court ruling in Hamdi v. Rumsfeld (2004), which established that detainees had the right of habeas corpus to challenge their detention, Hamdan was granted a review before the Combatant Status Review Tribunal. It determined that he was eligible for detention by the United States as an enemy combatant or person of interest.[2]

In the end, Hamdan, the citizen of Yemen, received the same judicial review of his Combatant Status that had been afforded to Hamdi, the U.S. Citizen.  Both of them are now free, while Lindh are Padilla are not.

So to my mind that fact that Al-Awlaki was an American Citizen is irrelevant.  If he was a Combatant then he should have been treated as a Combatant in the same manner we would expect for Hamdi, or for Hamdan whether he'd been capture or targeting for a bomb strike, or a JSOC extraction mission. It's all the same, the question is - which mission is the most viable as well as the most "moral"?

The problem with drone strikes - or other types of attacks for that matter such as the Helicopter attack on journalists that was revealed by Cheslea Manning via Wikileaks - isn't whether the targets are American or not - it's whether the targets Should Be Targets AT All.

The problem with signature strikes is that they open the door to a much higher incidence of civilian casualties--and this is where the danger lies. If the United States is choosing targets based on suspicious activity or proximity to other known-terrorists, this falls short of the threshold for drone strikes set by the Obama Administration, perpetuates a disastrous U.S. image in Yemen, and serves to invigorate the ranks of those groups the United States aims to disable.


In waging the drone campaign, the United States occasionally hits precisely the wrong person. A U.S. strike in August 2012 supposedly killed three al-Qaeda militants in Yemen. Among the casualties, however, was an anti-Qaeda imam and a policeman he had brought along for protection. The imam was working to dismantle al-Qaeda in the Arabian Peninsula (AQAP), making him precisely the sort of local ally the U.S. desperately needs in a place like Yemen. Yemeni Nobel Prize laureate Tawakkul Karman warned that Yemeni tribal leaders in areas where civilians have been killed in drone strikes say that these attacks drive more Yemenis to turn against Washington. During his testimony to the Senate Judiciary Committee, Yemeni writer Farea al-Muslimi recounted an incident where the eldest son of a man killed by a drone joined AQAP because he identifies the U.S. as his father's killer and wants revenge. As the deaths and injuries mount, dangerous anti-American sentiment grows. When drone strikes occur and non-combatants are killed, Yemenis lash out with protests demanding justice and accountability from the United States--which has not been forthcoming.

I find the practice of Signature Strikes against unidentified and unnamed targets merely based on their "pattern of behavior", or internet traffic, or text messages & email, or their Sim Cards to be far more problematic than Al-Awlaki's citizenship status. To me many who oppose the un-judicious use of drones to be morally repugnant may have the right issue, but the wrong reason for that issue.

In their justification for the strike against Awlaki, the DOJ does not even begin by addressing his citizenship other than to argue that law prohibiting the "unlawful killing" of U.S. Citizens overseas do not apply if they occur as part of the proper public authority. They essentially argue that this is not "murder" (or by extension "assassination") rather, it is War.

("Deeds which otherwise would be criminal, such as taking or destroying] property, taking hold of a person by force and against his will, placing him in confinement, or even taking his life, are not crimes if done with proper public authority.")


Here, we consider a federal murder statute, but there is no general bar to applying the public authority justification to such a criminal prohibition. For example, with respect to prohibitions on the unlawful use of deadly force, the Model Penal Code recommended that legislatures should make the public authority (or public duty ) justification available, though only where the use of such force is covered by a more particular justification (such as defense of others or the use of deadly force by law enforcement), where the use of such force is otherwise expressly authorized by law, or where such force occurs in the lawful conduct of war.

The memo then goes on to note that the "lawful conduct of war" in this case comes from the 2001 AUMF which tailored Al Qaeda and it's allies, but not as a traditional war against the government of specific countries.  In fact, the AUMF doesn't NAME any Countries within Force is to be limited. This is no Limit.  We are effectively at War with Al Qeada, Everywhere.
... as an initial matter that DoD would undertake the.operation pursuant to Executive war powers that Congress has expressly authorized. See Youngstown Sheer Tube Co v Scnvyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring) (When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. ). By authorizing the use of force against organizations that planned, authorized, and committed the September 11th attacks, Congress clearly authorized the President's use of necessary and appropriate force against al-Qaida forces, because ai-Qaida carried out the September 11th attacks. See Authorization for Use of Military Force ( AUMF ), Pub. L No. 107-40, 115 Stat. 224, §2(a) (2001) (providing that the President may use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such natjons, organizations, or persons. ). 27 And, as we have explained, supra at 9, a decision-maker could reasonably conclude that this leader of AQAP forces is part of al-Qaida forces. Alternatively, and as we have further explained, supra at 10 n.S, the AUMF applies with respect to forces associated with al-Qaida that are engaged in hostilities against the U.S. or its coalition partners, and a decision-maker could reasonably conclude that the AQAP forces of which al-Aulaqi is a leader are associated with al Qaida forces for purposes of the AUMF.

On either view, DoD would carry out its contemplated operation against a leader of an organization that is within the scope of the AUMF, and therefore DoD would in that respect be operating in accord with a grant of statutory authority. Based upon the facts represented to us, moreover, the target of the contemplated operation has engaged in conduct as part of that organization that brings him within the scope of the AUMF. High-level government officials have concluded, on the basis of al-Aulaqi's activities in Yemen, that al-Aulaqi is a leader of AQAP whose activities in Yemen pose a continued and imminent threat of violence to United States persons and interests. Indeed, the facts represented to us indicate that al-Aulaqi has been involved, through his operational and leadership roles within AQAP, in an abortive attack within the United States and continues to piot attacks intended to kill Americans from his base of operations in Yemen. The contemplated DoD operation, therefore, would be carried out against someone who is within the core of individuals against  whom Congress has authorized the use of necessary and appropriate force. 28 27 We emphasize this point not in order to suggest that statutes such as the AUMF have superseded or implicitly repealed or amended section 1119, but instead as one factor that helps to make particularly clear why the operation contemplated here would be covered by the public authority justification that section 1119 (and section 1111) itself incorporates. 6 See Ham ify, 616 F Supp. at 75 (collStruing AUMF to reach individuals who function[] or participate[] within or Lmder the command structure of nl~Qaida] ); Gherebi v Obama, 609 F. Supp. 2d 43, 68 (D.D.C. 2009); see also al-Marri v Pucciarelli,534 F.3d 213, 325 (4th Cir. 2008) (en bane) (Wilkinson,J., dissenting
in part) (explaining that the ongoing hostilities against al-Qaida permit the Executive to use necessary and appropriate force)

Under the AUMF the Congress specifically gave the President the power to DETERMINE who is a member of Al Qeada, who is an aider and aibetter of al Qeada, who within al Qeada has attempted follow on attacks to 9/11 (such as the attempted underwear bomber) and who may attempt future attacks in coordination and support of al Qeada.

That's the Law.

It doesn't say that a judge or court gets to second guess his determination and veto his attack plans.  Maybe something or someone should particular in regards to Signature Strikes that have no specific target and many of the concerns of various legal scholars as to what the law should be are well founded.

That just isn't what the Law - at least in the view of the DOJ - is right now.  Perhaps something updated and more focused should be the Law and the AUMF should be scrapped.  Maybe.

But considering how much our Congress totally fails to function these days, even when it comes to the deaths of dozens of innocent children as was pointed out earlier - I'm not holding my breath on them getting this fixed any time soon.


P.S. As I finished my first draft I saw that Jesslyn Raddack has a rec'd diary on this and said pretty much what I would expect.  Look, she's the attorney here so she gets a natural advantage on the question - but I do find her claims that this OLC memo is somehow equivalent to the Bybee and Yoo Memos to be a stretch.  Those memos claimed that Torture wasn't really torture without looking at the existing case law where the U.S. had previously executed and court marshaled people who had perpetrated the same type of water-boarding they were attempting to excuse.

This isn't that, simply because it has the name "OLC" name on it.

Look, this is probably beyond my ken, but Jesslyn argues that the "public authority" exception this OLC mentions is invalid - even though it apparently is a Congressionally written and passed element of law - because it's hasn't been ever been tested in case law.

The memo blesses al-Awlaki's killers as exempt from the federal murder statute under the "public authority" (read "government authority") justification, despite the fact that there is no case law permitting the government to use the "public authority" justification as a basis for getting away with killing U.S. citizens. It satisfies Barron and Lederman that a court has never said otherwise. But, for a court make such a ruling, a defendant would have to be charged with the murder and raise the "public authority" justification as a defense (an unlikely event here since the DOJ prosecutor would have to bring the charges based on conduct DOJ's OLC attorneys specifically approved). In reality (as opposed to wherever OLC is operating), the public authority justification has been litigated as a defense to criminal activity, but the OLC memo declines to discuss that case law because those cases involved private individuals charged with crimes whereas the memo is only discussing

    "specific conduct undertaken by government agencies pursuant to their authorizes."

And I understand this point, but I think it misses a larger point. First of all it seems  rather obvious that public or "government" agents who we arm with guns - have the authority to use those guns - or other weapons - in defense of themselves or of the public.  I can see how government authorities haven't needed to invoke the exception to create if they were acting under the cover of authority, and their actions were legitimate - they wouldn't need to.  If their actions were in bad faith or negligent, then the exception wouldn't apply and they would be prosecuted - so it makes sense to only private individuduals have ever tried to put forth the exception in court.  Jesselyn doesn't describe whether they succeeded or failed, but I would suspect that since they aren't charged with providing for the public good - they probably failed. It would be rather like claiming "Stand Your Ground" in a state where that law doesn't exist.

I think a better argument is one that addresses the fact that the OLC argued that the "Public authority" exception would apply to the DoD, but the DoD didn't fly the drone that killed al-Awlaki, the CIA did.

So let's have another opinion.

I have no problem with sections A and B of Part III, which argue that an individual prosecuted for violating the foreign-murder statute would be entitled to argue that the killing was justified because it was conducted pursuant to public authority. I also have no issue with the idea, offered in section C, that a member of the US armed forces would indeed be acting pursuant to public authority if he killed a combatant in an international armed conflict (IAC); in such conflicts, members of a state’s armed forces always have the right to kill — in other words, are justified in killing — members of the enemy state’s armed forces. The existence of the combatant’s privilege in IAC is black-letter international humanitarian law (IHL).

But that is not the end of the inquiry, for one simple reason: al-Awlaki was killed by the CIA, not by the US military. The White Paper does not discuss whether a CIA drone operator would be entitled to a public-authority defense in a prosecution under the foreign-murder statute; indeed, all of the sources cited in III.C regarding the defense (p. 14) — three classic criminal-law treatises and an old state case — claim that the laws of war entitle a soldier to kill the enemy. They say nothing about the right of anyone else to kill.

This is actually something I had considered as scanning the memo, but didn't bother to dig out the answer. Part of the issue here is that in many respects the CIA have become an arm of the military, particularly when they were - at least for time - commanded by General Petreaus.   CIA now have their own ex-Special Forces security -- such as people like  Tyrone Woods and Glen Doherrty - they run their own Drone program in off-book countries like Yemen while the military operates drones in Afghanistan. Are they still a "Civilian" agency or have they become a covert extension of the Military with their own Troops and Drone Air Force? Would this exception cover them or not?

This then changes the question to one that's not about Al-Awlaki being American, it's about the Drone operators being CIA, instead of "authorized" DOD "Warriors".

So would a CIA drone operator be entitled to a public-authority defense? I don’t see how. I won’t spend much time explaining why “national self-defense” does not provide the requisite public authority; as I explain in my signature-strikes article (and as Marko Milanovic explains here), a legitimate act of self-defense may justify the US violating another state’s sovereignty, but it does not — and cannot — justify depriving the target of his right to life. That deprivation would have to be independently justified either by IHL (if the killing took place in armed conflict) or by IHRL (if it took place outside of armed conflict). In the words of the International Law Commission’s commentary to the Draft Articles on the Responsibility of States for Internationally Wrongful Acts:
I think the OLC argument is that the AUMF makes any members of al Qeada also members of an "armed conflict" no matter where they reside in the world, as such they can be targeted legally under the IHL - the question now is whether the DOD or CIA would be be "authorized" actors to respond to the "threat".

So my point through this was that within the confines of "War", drone strikes or other such attacks are fully legal even if against a U.S. Citizen.  But what about the CIA dropping bombs on people - including U.S. Citizens?  Are they now part of our war-fighting apparatus?  Reading Richard Clarke's "Against All Enemies" which documents the gradual growth of the drone program beginning in the Clinton Administration, until they were gradually armed during the Bush Administration - the issue of "Who Pulls the Trigger" was a great hot-potato during that entire time.  The Bushie's never seemed to untangle that knot, but the Obama Admin seems to think they have a legal solution - but do they?

On my first pass through the Al-Awlaki memos I felt they made a good argument in regards to the DOD and they promised they would make a similar argument in regards to similar authority available to CIA  - but I didn't notice it.  I originally wasn't concerned about that, but did they neglect it?

Checking again I found this section which narrows the technical prohibition to a 1991 law that extended U.S. jurisdiction overseas to prosecute the murders of Americans.

Thus, section 1119 was designed to close a jurisdictional loophole--exposed by a murder that had been committed abroad by a private individual-to ensure the possibility of prosecuting U.S. nationals who murdered other U.S. nationals in certain foreign countries that lacked the ability to lawfully secure the perpetrator's appearance at trial. This loophole had nothing to do with the conduct of an authorized military operation by U.S. armed forces or the sort of CIA counterterrorism operation contemplated here. Indeed, prior to the enactment of section 1119, the only federal statute expressly making it a crime to kill U.S. nationals abroad, at least outside the special and maritime jurisdiction of the United State.


it is true that here the target of the contemplated operations would be a U.S. citizen.  But we do not believe al-Aulaqi s citizenship provides a basis for concluding that section 1119 would fail to incorporate the established public authority justification for a killing in this case. As we have explained, section I 119 incorporates the federal murder and manslaughter statutes, and thus its prohibition extends only to "unlawful" killings, 18 U.S.C. §§ 1111, 1112, a category that was intended to include, from all of the evidence of legisiative intent we can find, only those killings that may not be permissible in light of traditional justifications for such action.

And this which addresses the issue of whether DOD's ability to use the public authority exception would also legally apply to the CIA in a paramilitary context.
We next consider whether the CIA's contemplated operation against al-Aulaqi in Yemen would be covered by the public authority justification.

We conclude that it would be; and thus that operation, too, would not result in an unlawful killing prohibited by section 1119. As with our analysis of the contemplated DoD operation, we rely on the sufficiency of the particular factual circumstances of the CIA operation as they have been represented to us, without determining that the presence of those specific circumstances would be necessary to the conclusion we reach. 40 See Geneva Conventions Common Article 3(1) (prohibiting violence to life and person, in particular murder of all kinds, with respect to persons taking no active part in the hostilities in a non-international anned conflict, including members of armed forces who have laid down their anns ); see also Hague Convention IV Annex, art. 23(c), 37 Stat. at2301-02 ( it is especially forbidden [t]o kill or wound an enemy who, having laid down his arms, or having no longer means of defence, has surrendered at discretion ); id art. 23(d) (forbidding a declaration that no quarter will be given); 2 William Winthrop, Military Law and Precedents 788 J 920) ( The time has long passed when 'no quarter' was the rule on the battlefield, or when a prisoner could be put to death simply virtue of his capture.''). 30

 We explain in Part VI why the Constitution would impose no bar to the CIA's contemplated operation under these circumstances, based on the facts as they have been represented to us. There thus remains the question whether that operation would violate any statutory restrictions, which  requires us to consider whether 18 U.S.C. § 1119 would apply to the contemplated CIA operation. 42 Based on the combination of circumstances that we understand would be present, we conclude that the public authority justification that section 1119 incorporates-and that would prevent the contemplated DoD operation from violating section 1119(b}-would also encompass the contemplated CIA operation

So in contrast to the second opinion I located in support of Raddack's position - the memo does address the issue of the CIA using the same "Public authority" exception to the "Foreign Murder" statute that it presents in regards to a DOD operation.

Raddack claims that "public authority" is totally bogus because of court cases that don't involve people actually acting under the authority of the public - while my other critical sources says that the "public authority" would legitimately apply to the DOD but not the CIA while claiming that the white paper fails to address the CIA exception when in fact - it does. (Admittedly this may be in reference to a previous white paper, not yesterday's release)

I think passions may be running a bit hot on the subject and perhaps some of us need to take a deep breath, take our time and gradually work our way through what's really being argued here.

The question now is are there other U.S. Laws which should be brought to bare -besides 1119 - that should prohibit this action. And if there are, exactly why wouldn't they be - under a good faith operation - subject to the "public authority" exception?  I could understand arguments that International Law may be where the rubber meats the road, but unlike Geneva which we have ratified a Treaty for and incorporated into our own law with the War Crimes Act, the U.S. has so far failed to join the International Criminal Court, and have not yet accepted their jurisdiction over us.  Can we violate their laws if they have no jurisdiction,yet?


And still we're not talking about dropping bombs on people because of their "pattern of behavior" which smacks to me of the ultimate in profiling by Hellfire.

Originally posted to Vyan on Tue Jun 24, 2014 at 08:20 AM PDT.

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Comment Preferences

  •  Due Process (1+ / 0-)
    Recommended by:

    al-Awlaki wrote and spoke and probably committed treason, but he did not carry out a violent act.

    His death was a summary execution without trial.

    If that is what the US stands for now, it has become a rouge state run by terrorists.

    That will probably get me HR'd. So be it.

    No one is coming to save us, the future is in our hands.

    by koNko on Tue Jun 24, 2014 at 08:38:42 AM PDT

    •  If he was an active member and leader of AQAR (3+ / 0-)
      Recommended by:
      Garrett, Tony Situ, freakofsociety

      what makes him different from Bin Laden - who didn't kill an American personally either?  What makes him different from the "Taliban Dream Team" who were captured in Afghanistan?  What makes him different from Hamdi? Or Padilla? or Hamdan?

      The question to me is, if we need to have trial before we drop a bomb as part of a Congressionally authorized War Action, then we pretty much can't drop any bombs - anywhere - on ANYONE.

      •  Just to be clear (0+ / 0-)

        The Obama administration, in legal and political arguments, recognizes distinctions about Afghanistan versus not-Afghanistan, al-Qaeda versus al-Qaeda in the Arabian Peninsula, military action versus CIA action, and such.

        That all terrorists are the same, or that a war on terror is identical to a normal war, or that location doesn't matter, is just not the Administration position at all. And it isn't the style of argument used in this particular memo, either.

        •  I hadn't seen that in the memo... (2+ / 0-)
          Recommended by:
          Tony Situ, freakofsociety

          because it specifically references the AUMF as being the source of the authorization to attack al-Awlaki outside of Afghanistan, and outside of being a member of the Original Al-Qeada Version 1.0.

          I didn't see this in the memo specifically, possibly because of redactions, but they seem to be not operating based on just 9/11 but based on the links established between al-Alwaki and the attempted Underwear Bomber.

          Though Obama administration officials frequently insisted to reporters that Awlaki was not simply a pro-Al-Qaeda propagandist, but someone with a functional role in Al Qaeda's franchise in Yemen, actual evidence to that effect was scarce. According to the Abdulmutallab memo, in which prosecutors recommend a life sentence, Awlaki:
          •    Helped facilitate Abdulmutallab's travel to Yemen, and allowed Abdulmutallab to stay at his home.
          •   Evaluated Abdulmutallab's "suitability for jihad," and then helped him get training.
          •   Gave "final approval" to the attempted plane bombing.
                Helped Abdulmutallab film his "martyrdom video."

            This information likely forms at least part of the justification for the decision to target Awlaki, who, according to the New York Times, was placed on the US's covert "kill list" following Abdulmutallab's failed attempt to kill more than two hundred people.

          So sure, there may be distinctions - but that doesn't mean that al-Awlaki while hiding in Yemen has to be served a warrant rather than a Hellfire missile.
    •  al-Awlaki got the same due process as Yamamoto. (1+ / 0-)
      Recommended by:

      And that is the "process" that is "due" to an enemy soldier engaged in hostilities.

    •  He helped plan attacks (0+ / 0-)

      He is a terrorist plain and simple and I'm not upset that he's dead.

      Obama is the most progressive president in my lifetime.

      by freakofsociety on Tue Jun 24, 2014 at 04:48:49 PM PDT

      [ Parent ]

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