An MQ-9 Reaper sits in a hanger during a sandstorm at Joint Base Balad, Iraq, Sept. 15, 2008.

Senior Airman Jason Epley/U.S. Air Force

An MQ-9 Reaper sits in a hanger during a sandstorm at Joint Base Balad, Iraq, Sept. 15, 2008.

Obama’s Drone Killing Memo: Too Little, Too Late

On Monday, a federal appeals court released a memo on the extrajudicial killing of U.S. citizen Anwar al-Awlaki. The public should have seen this memo long ago. The Obama administration suppressed it even after publicly invoking its logic; killing its subject in a drone strike; citing it to justify the legality of the killing; and appointing its author, David Barron, to a lifetime seat on a federal appeals court.

Why was it suppressed? If you read the redacted memo, you’ll see that nothing released Monday threatens national security or hurts America’s ability to wage the war on terrorism. As the debate about the legal standards set forth in the memo intensify, let’s not forget what finally seeing this document makes clear: The Obama administration needlessly and illegitimately hid it from us for years. And this is just the latest evidence that Team Obama abuses its classification power.

Nor should anyone harbor the illusion that the public now fully understands the legal rationale used by the Obama administration to justify the secret killings of Americans. There are an unknown number of additional legal memos that the ACLU is still fighting to see—and it isn’t clear that all of the redactions in the just-released memo are legitimate. Among other things, Americans are still deprived of the evidence Obama used to determine that al-Awlaki was in fact a terrorist, that he posed an “imminent” threat, and that he couldn’t be captured. One need only reflect on the number of times the federal government has unjustly consigned innocent men to decades in prison to see the importance of subjecting evidence of this sort to the rigorous review that’s impossible without disclosure.*

The memo makes many contested claims that will be analyzed by legal experts who are better able than I am to identify and explain potentially problematic precedents. On first read, I am nevertheless struck by how few words are spent defending extrajudicial killing against constitutional, as opposed to statutory, objections. After all, the Fifth Amendment is emphatic: “No person shall… be deprived of life, liberty, or property, without due process of law.” Citing Hamdi v. Rumsfeld and Mathews v. Eldridge, the memo argues that the Fifth Amendment prohibition on killing without due process is subject to a “balancing test” that weighs the right not to be extrajudicially killed against the government’s interests and whatever burdens it would face in extending due process.

That itself is a potentially dangerous precedent.

The memo continues: “We believe similar reasoning supports the constitutionality of the contemplated operations here. As explained above, on the facts represented to us, a decision-maker could reasonably decide that the threat posed by al-Aulaqi’s activities to United States persons is ‘continued’ and ‘imminent.’”

This passage is alarming for two reasons:

1) It asserts that the executive branch can kill Americans in secret under the standard, “a decision-maker could reasonably decide …” Dick Cheney was “a decision-maker.” So was J. Edgar Hoover. Are we prepared to accept that Fifth Amendment protections are null based on a relativistic standard as interpreted in secret by men like them?

2) The memo treats the representation that al-Awlaki posed an “imminent” threat as important. But unless it is hidden in a redaction, the memo does not address how “imminent” is defined, and there is good reason to believe that the Obama administration has defined it so dubiously as to render the term meaningless. I explored this problem at greater length back on February 5, 2013, when Michael Isikoff published another memo that dealt with extrajudicial killings. It set, as a precondition of such killings, “an imminent threat of violent attack.”

That may seem reassuring. After all, there aren’t that many circumstances when an attack is imminent. It would seem to severely constrain extrajudicial assassinations. But that memo reassures the reader with the rhetorically powerful word “imminent,” only to define it down in a way that makes it largely meaningless—so much so that it’s reminiscent of George W. Bush’s misuse of “imminent” to characterize the threat posed by Iraq. What does it mean, for you personally, when you hear that someone poses “an imminent threat of violent attack against the United States”? Here’s a passage where the Obama administration articulates what it means by imminent:

Certain aspects of this legal framework require additional explication. First, the condition that an operational leader present an “imminent” threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons will take place in the immediate future.

They’ve defined the term in a way that excludes its only actual meaning!

There are several places to turn for more analysis of this significant memo:

  • ACLU attorney Jameel Jaffer gives all the background.
  • Marcy Wheeler reminds us that the memo was written in part to inoculate the Obama administration against the charge that its CIA was poised to commit murder. It is notable that Team Obama believes it is sometimes appropriate for the intelligence agency to kill American citizens even as it justifies those killings by treating them as if they’re normal parts of an armed conflict. But what could go wrong with empowering the CIA to kill in secret?
  • Charlie Savage of the New York Times, whose Freedom of Information Act request played a part in this release, has highlighted important passages in the memo.
  • Ben Wittes gives a friendly rundown of the memo’s reasoning at Lawfare.
  • The New York Times editorial board says that “the memo turns out to be a slapdash pastiche of legal theories—some based on obscure interpretations of British and Israeli law—that was clearly tailored to the desired result. Perhaps the administration held out so long to avoid exposing the thin foundation on which it based such a momentous decision.” The editorial goes on to suggest that the FISA court might oversee these sorts of killings. I’ve got a rubber stamp for anyone who thinks that will help.

Let’s hope Americans are permitted to see the rest of the extrajudicial-killing memos soon. 

* As an ACLU analyst put it:

Barron conditions important legal conclusions on “the facts represented to” the OLC by other departments of the executive branch. The memo’s discussion of these facts is redacted, making it impossible for the public to evaluate whether the killing of al-Aulaqi meets even the government’s professed legal standard. Beyond that absence, however, the memo’s repeated conditioning of its conclusions on the version of facts presented by the executive branch makes clear why the government’s rejection of any judicial review in this context—either before or after the fact—is so fundamentally dangerous.

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