White House Declassifies Memo Authorizing Drone Strike on US Citizen

Under pressure mounting for close to three years, the US Government has finally released a previously confidential legal memo that justifies the killing of US citizen Anwar al-Awlaki in a 2011 military operation.  Al-Awlaki, an American with suspected connections to al-Queda, was killed by a drone strike in Yemen, creating a firestorm amongst civil liberties groups and members of Congress who questioned the Government’s legal authority to kill an American citizen by use of a military drone – even one who was in consort with terrorist enemies of the US.

Legal Memo Supports Drone Strike that Killed Anwar al-Awlaki

Al-Awlaki, who was born in New Mexico, was a cleric with connections to al-Queda operating in Yemen whose case gained attention because he was specifically targeted for a lethal drone strike – something unsettling to many even during war time. Since the strike, The American Civil Liberties Union (ACLU), news outlets including the New York Times, and many members of Congress have pressed the White House for legal justification to no avail.  However, the Obama Administration changed course this week by providing the public with a detailed legal argument explaining that the threat al-Awlaki posed made him an enemy to the US who could be targeted by lethal military operations.

The 31-page memo released by the Justice Department (found here) lays out the Government’s justification for authorizing a drone strike against al-Awlaki in significant detail.  Although a handful of pages were redacted – notably leaving absent explanation of why the Fourth Amendment right to due process for accused criminals was not violated – the document pointedly argues that al-Awlaki was a lethal threat to the United States, and apprehending him would have been infeasible.  Comparing the situation to that of a police officer who is faced with a decision to use deadly force on a suspect threatening to harm others, the memo argues that the Government’s action was the only reasonable means of neutralizing the danger al-Awlaki posed to the United States.

According to the drone strike justification, al-Awlaki’s relationship with al-Queda brought him “within the scope” of a 2001 congressional approval of military force against enemies of the United States – thus allowing the Government to target him.  Because there were no specific geographic boundaries placed on military authority to execute action against terrorist elements, that al-Awlaki was in Yemen, rather than Afghanistan, was not important.  The document also notes that the CIA and the military intended to capture al-Awlaki instead, but doing so would have been infeasible, and thus the risk of depriving a US citizen of his constitutionally protected liberties was sufficiently overwhelmed by need to eliminate a military threat by the only means available.

Broad Implications of US Drone Strike Legal Authority

The drone strike memo is written fairly generally by establishing a set of conditions that al-Awlaki happened to meet – meaning that the US Government could potentially provide similar justification to target other Americans who are deemed to be similar threats.  While the memo offers the legal argument in more detail, essentially it authorizes the military or CIA to expend legal force on an American citizen when he presents a significant threat of lethal force against the United States and authorities are unable to apprehend him. The document treats al-Awlaki, and other Americans who similarly take position with terrorist and enemies, as combatants in opposition to the country who can be targeted regardless of their citizenship status.

While the memo authorizing the use of a lethal drone strike against US citizens is a positive step in federal transparency on a controversial issue, it does open some questions about how the Government determines an American has satisfied the legal requirements of lethal force.  Senator Ron Wyden (D-Ore) voiced additional concerns about identifying an American as a threat to the United States, and determining that capture of that individual is “infeasible” in accordance with the Government’s recent justification. 

Further question of the Government’s position are valid – the requirements for the use of lethal force leave room for fairly broad interpretation – but releasing the memo represents a positive step.  By exposing members of Congress and the American public to the decision-making process behind authorizing lethal drone strikes against American citizens, the White House has pulled back enough of the curtain to receive feedback from the legal community and potential challenges to its stated authority.  The use of drone strikes on any target has emerged as a controversial military tactic, and providing the opportunity to debate and question legal justification for doing so is a productive step in identifying the best process for remote military action.

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