This week, the Justice Department released a partially redacted version of a 2010 memo explaining the Obama administration’s legal justification for the drone killing of an American citizen in Yemen.
Citing the 2001 Authorization for the Use of Military Force (AUMF) passed by Congress in the aftermath of September 11, then-Assistant Attorney General David Barron, writing for the Office of Legal Counsel, said the U.S. military was permitted to kill alleged al-Qaeda leader Anwar al-Awlaki in 2011 because the government was granted “proper public authority” as part of war under the AUMF.
As Vox explains, the “public authority” power is something akin to the ability of police officers to disobey the speed limit while chasing a suspect. The officers in that case are indeed breaking the law, but they are permitted to do so because their job requires it.
Likewise, the AUMF allowed the use of “necessary and appropriate force” to pursue al-Qaeda in the field. Barron also said the AUMF permits the attack as an act of defense against an “imminent” threat.
Critics point out that evidence of such a threat from al-Awlaki is redacted from the memo, making it difficult to determine whether the government was truly unable to capture him alive, as well as whether al-Awlaki indeed posed a serious and impending threat necessitating action.
What’s more, the legal justification for allowing the Central Intelligence Agency—rather than armed military forces—to target al-Awlaki is similarly redacted. That is important, critics argue, because it is not obvious that the AUMF extends “public authority” to the CIA.
Above all, critics say the Fifth Amendment prohibits taking an American life without due process of law.
Then again, as Stephen Colbert mused, perhaps due process is simply “a process that you do.”
The memo’s release is the result of separate Freedom of Information Act lawsuits brought by the New York Times and the American Civil Liberties Union. Reversing a lower court decision, the U.S. Court of Appeals for the Second Circuit ordered the disclosure.
Barron, who had been nominated to a seat on the U.S. Court of Appeals for the First Circuit, was under intense scrutiny at that time for his authorship of the controversial paper. Faced with the prospect of the Senate voting down Barron’s nomination, the Obama administration chose not to appeal the Second Circuit’s ruling.
For its part, the New York Times editorial board took issue with many parts of the memo, including the broad use of “public authority” justifications and the redaction of critical evidence.
Jameel Jaffer, deputy legal director of the ACLU, said in a statement that the memo’s disclosure is “an overdue but nonetheless crucial step toward transparency.”
“There are few questions more important than the question of when the government has the authority to kill its own citizens,” he said. “This memo’s release will allow the public to better understand the scope and implications of the authority the government is claiming.”
Pardiss Kebriaei, attorney at the Center for Constitutional Rights, said in a statement that the memo was ”built on gross distortions of law” and that “the United States loosening and redefining international rules governing the use of force and war is ultimately not going to make anyone any safer.”
Nicandro Iannacci is a web strategist at the National Constitution Center.
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