An American leader of al Qaida based overseas could be killed without violating international or U.S. law because he was a senior member of a terrorist group who posed a continuous threat to the United States and whose capture wasn’t feasible, according to a Justice Department memorandum that was declassified Monday.
The 2010 memo provided President Barack Obama with the legal footing to order a 2011 strike by a missile-firing CIA drone in Yemen that killed Anwar al Awlaki, who was born in New Mexico, as part of the administration’s top-secret “targeted killing” program. Another American, Samir Khan, who once lived in Charlotte, N.C., was killed in the same strike.
For the most part, the memo reflected public statements made after Awlaki’s death by Obama and his top aides that killing a U.S. citizen engaged in terrorism is authorized by a congressional resolution passed after the Sept. 11, 2001, attacks, and is allowed under international and U.S. law, assertions disputed by some experts and lawmakers. The administration’s legal justifications were also laid out in a Justice Department white paper leaked to the media in February 2013.
“The U.S. citizen in question has gone overseas and become part of the forces of an enemy with which the United States is engaged in an armed conflict,” said the memo, which alleged that Awlaki was constantly plotting anti-U.S. attacks. “The U.S. government does not know precisely when such attacks will occur; and a capture operation would be infeasible.”
The document – parts of which were blacked out – was released as part of a U.S. appeals court ruling in favor of a Freedom of Information Act lawsuit, filed by the New York Times and the American Civil Liberties Union, that sought any Justice Department documents discussing the lawfulness of the targeted killing program.
The 2nd U.S. Circuit Court of Appeals in Manhattan found that the government waived its right to keep the memo secret because of the statements made by Obama and some of his top aides publicly acknowledging the targeted killing program’s existence and asserting its legality.
Human rights advocates and some lawmakers praised the administration’s decision not to appeal the ruling as an improvement in transparency. But they complained that it didn’t go far enough, saying that the release of the document still leaves significant questions about the administration’s legal justification for the use of missile-firing drones and other means to kill alleged terrorists.
“There are many important questions that this memo does not address,” said Sen. Ron Wyden, D-Ore., a member of the Senate Intelligence Committee who has pressed for greater disclosure. “It is my hope that making this memo public will generate new pressure for the executive branch to answer other pressing questions.”
Among those questions are the administration’s legal definition of an imminent and continuing terrorist threat, the criteria used in targeting decisions, and which high-level U.S. officials are qualified to designate a target, said Jameel Jaffer, the deputy legal director of the ACLU.
Nor does the memo discuss in-depth how the president can order the killing of an American who hasn’t been tried by a court, he said.
“It’s a very broad claim of authority, the claim that the government can carry out targeted killings of American terrorism suspects without ever presenting evidence to a court before or after the fact,” said Jaffer. “The memo doesn’t recognize geographical limitations to that power.”
The memo represents one of the few official acknowledgments of the CIA’s role in the targeted killing program. The agency has killed thousands of alleged terrorists using missile-firing drones in Pakistan’s tribal area, Somalia and Yemen, where the military’s U.S. Special Forces Command also operates pilot-less aircraft.
Awlaki, who was born in 1971 to Yemeni immigrants, was a radical Islamist cleric and leader of al Qaida in the Arabian Peninsula, the al Qaida branch in Yemen and Saudi Arabia. He called for attacks on the United States and was accused of organizing several unsuccessful plots, including the failed 2009 Christmas Eve bombing of a U.S. passenger jet over Detroit by a young Nigerian wearing explosives in his underwear.
The administration has said it did not intend to kill Khan in the Sept. 30, 2011, drone strike that killed Awlaki. Khan was the editor of the al Qaida publication Inspire when he died. The administration also has said it didn’t intend to kill Awlaki’s 16-year-old son, also a U.S. citizen, who died in a drone strike two weeks later, or an American killed by a drone in Pakistan in November 2011.
The 16-page legal memo that justified Awlaki’s killing was written by David J. Barron, who was then acting head of the Justice Department’s Office of Legal Counsel. He was recently confirmed as a federal appeals court judge after the administration agreed it would release the memo.
The memo laid out the legal arguments for Pentagon and CIA strikes on Awlaki.
As a senior member of AQAP, Awlaki was covered by a 2001 congressional resolution authorizing the president to use “all necessary and appropriate force” against any nation, group or persons associated with al Qaida “that are engaged in hostilities against the United States or its coalition partners,” said the memo.
The resolution “may also apply in appropriate circumstances to a United States citizen who is part of the forces of an enemy organization within the scope of the force authorization,” it said.
The memo argued that targeted killings comply with international law even though they occur outside conventional battlefields, a contention that is disputed by many human rights experts.
Al Qaida and other terrorist groups, it said, are “transnational non-state organizations that are dispersed and that thus may have no single site serving as their base of operations.”
Both the CIA and the Pentagon also would conduct an operation against Awlaki according to international humanitarian law, in that a strike would be a military necessity, avoid undue suffering and “make every effort to minimize civilian casualties,” the memo said.