The US government may assassinate its own citizens. We saw this in 2011 when the US killed Anwar al-Awlaki, a US citizen of Yemeni descent. But under what conditions may the US government assassinate one of its own citizens? This question was partially answered with the June 23 release of a legal memo authored in 2010 by former White House counsel, now federal appeals judge, David Barron.
The memo explains the legal reasoning justifying the 2011 drone assassination of Anwar al-Awlaki. It was released by order of the US Second Circuit Court of Appeals in response to a suit brought by the American Civil Liberties Union and the New York Times. It is a follow up to a white paper released in 2013 by the Obama administration stating the legal opinion that a US citizen could be killed if he was a “senior operational leader” of al-Qaeda or an “associated force” posing an “imminent threat.” That memo specifically stated that assessing a target as an “imminent threat” need not require knowledge of a specific planned attack against the US.
The newly released memo addresses more specific concerns on how the Obama administration determines people to be such a threat as to justify assassination. While it is a positive that there is further transparency in what has been a secretive process, the memo is still troubling due to heavy redactions in the released version, broad and questionable legal interpretations, and the lack of any oversight to ensure compliance with the legal guidelines.
After the release of the first white paper in 2013, many expressed concerns about the unclear process for designating a US citizen as a legitimate target. The latest memo’s focus on the specific case of Anwar al-Awlaki raised hopes that light would be shed on this issue. However, the first eleven pages of the memo, which contain the government’s accusations against al-Awalaki, are completely redacted. While there may be legitimate reasons for keeping this information private, it means there is still no way to evaluate the government’s process for deciding who will be killed.
There are also several footnotes that are redacted, which may be citations to previous legal memos written by Obama Administration attorneys. One part of the memo refers to another legal opinion as a basis for its statement that “we do not believe that al-Aulaqi’s U.S. citizenship imposes constitutional limitations that would preclude the contemplated lethal action.” However, there is no indication what this legal opinion was, leaving secret law as the basis for assassinating US citizens.
The legal reasoning presented repeats many questionable legal interpretations given in the past by the Obama administration. One core assumption is that the Authorization for Use of Military Force (AUMF) passed by Congress following the September 11, 2001 attacks allows the President to target al-Qaeda and associated forces. The memo also cites the 2006 Supreme Court case of Hamdan v. Rumsfeld, which stated the US was in a noninternational armed conflict with al-Qaeda, meaning that laws of war, as opposed to broader human rights law, apply just as if a US citizen fought on the side of another country in a war. However, the assumption that the world can be a global battlefield is not widely shared outside of the US government.
For example, a 2013 report by the United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions states “It is to be questioned whether the various terrorist groups that call themselves al-Qaeda…today possess the kind of integrated command structure that would justify considering them a single party involved in a global non-international armed conflict.” The report refers to the opinion of the International Committee of the Red Cross that “this type of non-international armed conflict is not and has not been taking place.” Simply referring to the AUMF and the Hamdan decision does not mean the US is acting in accordance with international law.
To its credit, the memo acknowledges this as it attempts to justify drone strikes in terms of international law. However, it makes a largely negative argument stating that there is no requirement in international law that conflict be restricted to fighting in one country. At the same time it notes that “there is little judicial or other authoritative precedent that speaks to the geographic scope of a non-international armed conflict.”
In short: even though there is no precedent for the type of armed conflict the US claims exists, the memo can only claim that it is not necessarily prohibited. Regarding rights accorded to US citizens by the US Constitution, the memo states that al-Awlaki’s Fifth Amendment right to due process would be voided if he posed a “continued and imminent threat of violence or death” and “a capture operation would be infeasible.” The first issue is that the Obama administration has made it clear that its interpretation of “imminent threat” does not require knowledge of an actual planned attack by the targeted individual. Furthermore, there is no accountability to ensure that the administration is faithfully adhering to these legal requirements. As BORDC Executive Director Shahid Buttar stated in a 2012 address at Loyala Law School,
“What value are limiting principles if there is no forum in which to articulate or defend them? And if there is no transparency to the decision – if this is a process that happens entirely behind closed doors – how can we have any faith that the application of those limiting principles reflects any principles of legitimacy?”
This is especially concerning given that the Central Intelligence Agency, the part of the government with the least public accountability, is playing a major role in drone strikes.
The principle that citizens have the right to a trial based on evidence dates back to the Magna Carta of 1215, when English nobles placed limits on the power of the monarch. This became a key part of British common law and was included in the US Bill of Rights. While the president has the duty to protect the country from terrorist acts, it is constrained by this centuries-old principle and faces a major burden of proof if it is going to violate it.
The Obama administration has not met this burden by applying the laws of armed conflict wherever it wishes and giving itself the exclusive power to determine when due process may be forsaken. More generally, while it is appropriate to focus on the assassination of US citizens, it is important to ask if it is an appropriate standard that the chief executive may assassinate anyone in the world he deems as a threat. Would the US government deign to accept such a doctrine if it were put forward by any other government? BORDC remains committed to holding the government accountable and recently sponsored a petition receiving over 25,000 signatures opposing the memo’s author, David Barron, from being confirmed to serve on the US First Circuit Court of Appeals. Although his confirmation was approved by the US Senate on this past May, BORDC continues to organize against the unjustified use of drones, both abroad and at home. Please join in our fight to stop the assassination of our citizens.