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.
Despite the fact that the government maintained in response to Freedom of Information Act (FOIA) requests (including from my organization, the Government Accountability Project) that it "could not confirm or deny" the memo's existence (a so-called "Glomar" response), the memo's more palatable details appeared on the front page of The New York Times almost three years ago.
The leaked version of the memo made it sound far more tailored to al-Awlaki and far more carefully-written than the more complete version now available. The leaked version was described in The Times:
The legal analysis, in essence, concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him.
That logic was troublesome enough. However, the OLC memo actually gives far broader authority, blessing use of a Central Intelligence Agency (CIA) action by relying 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.
(emphasis added).
The implicit understanding is that the memo keeps the game legal even if CIA changed the rules, which, thanks to pervasive government secrecy, rampant overclassification, and misuse of the state secrets privilege, the public will probably never know.
Also missing from the previously leaked details: how the memo relies on selective interpretations of Hamdan v. Rumsfeld and Hamdi v. Rumsfeld, cases where, though you would never know it from reading the al-Awlaki memo, the U.S. Supreme Court struck down abusive Bush-era military commissions and ensured due process rights for detainees.
However dizzying the OLC memo's array of legal gymnastics, they cannot - and should not - distract from the memo's inherently undemocratic, unconstitutional, and immoral conclusion and result: that the U.S. government can target and kill a U.S. citizen without filing criminal charges, providing a public trial, legal counsel, a right to confront his or her accusers or a right to an appeal.
