Public Record Media examination of Office of Legal Counsel "targeted killing" memo

On June 23rd, the White House produced the so-called al-Awlaki "targeted killing" memo, which had long been sought by government transparency and civil liberty groups. The memo was released after an appeals court victory by the ACLU and the New York Times.

Public Record Media had also sought the al-Awlaki document through a 2011 Freedom of Information Act request, but later narrowed its request to only cover memos related to domestic, lethal force actions involving drones.

 The targeted killing memo was written by the Justice Department's Office of Legal Counsel (OLC), and focused on the circumstances under which it would be lawful to kill an American citizen in a target-specific operation. The memo was authored in 2010 by former OLC attorney David Barron, who has now been appointed to the federal bench. The legal issues raised by the memo loomed large in Barron's confirmation debate.

Legal justification for al-Awlaki attack

The memo's analysis begins with the question of whether the US criminal code would prohibit a lethal operation against a specific individual - Anwar al-Awlaki - a U.S. citizen and al-Qeada member. (For background, Anwar al-Awlaki was ultimately killed by a U.S. drone strike in Yemen in 2011.)

The memo examines the question as it applies to a proposed DOD military operation, as well as to a separate CIA operation.

The opinion first notes that a provision of the U.S. criminal code prohibits the killing of American citizens by other Americans overseas. The memo then examines the question of whether certain common law "justifications and excuses" overcome the statutory prohibition on murder, including "public authority" justifications. In other words, OLC asks whether a killing by a government actor in the course of his official duties would be lawful under certain circumstances.

The prohibition at issue is found in 18 USC 1119, which provides that "whoever kills or attempts to kill a national of the United States while outside the United States but within the jurisdiction of another country" shall be punished by available criminal penalties. The OLC memo contends that the legislative history of the statute (which was enacted in response to a private US citizen killing another US citizen in Korea) did not prohibit the kind of activities contemplated against al-Awlaki.

DOD justification

OLC then examines whether the proposed DOD military operation would meet the "public justification" standard. OLC concludes that it would, since the proposed action would be part of the "lawful conduct of war." OLC references its own past opinions on the use of lethal force as a part of "war powers," including a 1994 memo entitled "United States assistance to countries that shoot down civil aircraft involved in drug trafficking." The OLC memo also draws upon the 2001 Authorization to Use Military Force (AUMF) as an authority to support the proposed killing, noting that the AUMF permits the President to use "all necessary and appropriate force" against nations, organization, or persons who helped plan the September 11 attacks. The memo asserts that al-Awlaki's status as a member of al-Qeada would bring him within the scope of the AUMF.

The memo then turns to the question of whether U.S. citizenship bars the application of the AUMF, and OLC maintains that it does not. OLC looks to the Supreme Court's Hamdi decision on battlefield detention for guidance, and reasons that since the court upheld certain detentions of U.S. persons who had joined with the enemy on foreign battlefields, the same logic would apply to the killing of U.S. citizens who had joined the enemy in foreign territory.

While calling upon Hamdi to justify the al-Awlaki attack, the memo does not contain an extensive discussion of the due process issues raised by the Supreme Court opinion in the same opinion. In Hamdi, the court majority held that U.S. citizens captured on a battlefield required - at minimum - a habeas hearing. Justice Scalia went even further in his dissent, calling for criminal trials for Americans who had affiliated with the enemy.

 CIA justification

As with the proposed DOD operation, OLC maintains that a CIA plan to kill Anwar al-Awlaki would also meet the "public justification" threshold, and would overcome both the murder prohibition under 18 USC 1119, and a conspiracy prohibition under 18 USC 956(a). The rationale for overcoming 18 USC 956(a) is discussed at length in the opinion, but much of the rest of the CIA portion of the memo was redacted prior to release.

 Constitutional questions

The OLC memo notes that al-Awlaki's U.S. citizenship "could raise distinct questions under the Constitution," but goes on to conclude that "we do not believe that (U.S.) citizenship imposes constitutional limitations" that would rule out lethal force action.

OLC maintains that Hamdi's application of a "balancing test" to an American citizen's due process rights on the battlefield is correct, and allows a citizen's "private interests" to be weighed against both the government's interests and the "burdens involved" in providing full due process.

It is notable that paragraphs of the "due process" section have been heavily redacted, even where the surrounding context appears to indicate that Supreme Court precedent is being discussed. The remaining text shows that OLC quotes a portion of the Hamdi opinion that characterizes the risks of depriving citizens of due process as "very real," but also maintains that al-Awlaki's operational actions - as well as the impracticality of his capture - justified the use of lethal force in this instance.

The memo ends with a brief discussion of Fourth Amendment issues as they relate to the proposed targeted killing operations, and OLC again turns to a "balancing test" to determine whether the kiling of al-Awlaki would be reasonable within the Fourth Amendment. OLC largely sidesteps a complex Fourth Amendment analysis, but notes that a lethal force operation carried out against an individual in al-Awlaki's situation (ongoing planning, enemy affiliation, infeasible capture, overseas nexus) would not violate the Fourth Amendment.

PRM analysis

The Obama administration fought in federal court for over three years to withhold the targeted killing memo, even after it had acknowledged that the al-Awlaki operation had occurred, and even after it had repeatedly (and publicly) asserted justifications for the operation.

 As with many formerly classified documents, one is struck upon review by the amount of effort expended to conceal details that are not security-sensitive. Even if one concedes that the redacted portions of the memo are entirely operational in nature, security-sensitive details would comprise less than 25% of the entire document. With the exception of redactions in certain areas, much of the released document remains intact, and most of it is comprised of case citations and legal analysis.

 The bulk of these legal arguments had been slowly rolled-out by the administration in previous years - first through high-profile speeches, and then through the leak of the targeted killing "White Paper."   It was this series of events that ultimately led the appeals court to order the production of the memo, since the administration had effectively exposed most of its contents to the public.

 From a civil liberties perspective, the OLC targeted killing memo proves to be less-broadly drafted than certain Bush-era OLC opinions (largely authored by John Yoo and current University of Saint Thomas law professor Robert Delahunty.) At the same time, the gaps in the memo regarding due process and Fourth Amendment considerations could leave ample room for a more expansive view of lethal force authority in the future. For this reason alone, the disclosure of the memo was a critical addition to the public record.

Resources

The Star Tribune's James Eli Shiffer has an interview with Dorsey and Whitney attorney Eric Ruzicka who helped unearth the targeted killing memo. His story also links to the full OLC memo.

 In 2012, PRM posted an article that examined major legal issues raised by the al-Awlaki killing, and summarized the back-story of PRM's lawsuit for drone-related legal memos.

 Find documents relating to PRM's drone lawsuit here.

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Matt Ehling

Public Record Media