After the Justice Department fought aggressively for years to keep it secret, a court order finally forced the Obama administration to release a substantial portion of the Justice Department Office of Legal Counsel (OLC) memorandum used as the basis for assassinating American citizen (Anwar al-Awlaki) without charge or trial.
You might remember OLC from its torture memo heyday, calling the Geneva conventions "quaint" and creating (completely artificial) extra-legal categories of "unlawful combatants" to avoid federal and international law. The Obama administration solidified OLC's legacy by refusing to hold accountable - professionally or legally - the attorneys who wrote the memos used as legal justification for George W. Bush-era atrocities of torture, detention and rendition. Following in the footsteps of torture memo authors John Yoo (now a tenured law professor) and Jay Bybee (now a federal judge), OLC Acting Assistant Attorney General David Barron signed the memo and rose to the federal bench.
Now on to the al-Awlaki memo (available here, starting on page 67). The first 11 pages are redacted. Now on to the the public portion of the al-Awlaki memo, which is absolutely cringe-worthy from a legal and human rights perspective.
Barron (and Marty Lederman, who reportedly co-authored the memo), surgically disable half a dozen federal and international laws, beginning with the federal murder statute.
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.
What follows is eerily reminiscent of the torture memos, as Barron and Lederman rationalize killing al-Awlaki as "lawful conduct of war" authorized under the Authorization of Military Force (AUMF) to use force against al Qaeda. The world is the battlefield: the fact that
the contemplated DoD operation would occur in Yemen, a location that is far from the most active theater of combat . . . does not affect our conclusion.
The enemies are defined - sort of -
. . . DoD proposes to target a leader of AQAP, an organized enemy force that is either a component of al-Qaida or that is a co-belligerent of that central party to the conflict and engaged in hostilities against he United States as part of the same comprehensive armed conflict, in league with the principle enemy.
All of this purported legal analysis finishes with the constitutional "analysis," which, for an action taken unilaterally by the Executive Branch that undoubtedly implicated al-Awlaki's fundamental, inalienable rights enumerated in the First, Fourth, Fifth and Sixth Amendments, is relegated to a mere four of the memo's 41 pages.
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