The Justice Department on Friday released to the First Amendment Coalition a newly declassified legal memo advising the CIA on the legality of a proposed “lethal operation” against Anwar al-Awlaki, the American citizen who joined forces with Al-Qaida and was killed in a US drone strike in Yemen in September 2010.
The memo is posted below.
The newly released memo, dated February 19, 2010, was provided to FAC in connection with our ongoing FOIA lawsuit against the Justice Department for access to all legal memos on the Awlaki killing. The administration had previously released a longer legal memo, dated July 10, 2010, on the same subject matter.
Release of the longer memo was the result of a federal court of appeals decision (in a case filed by the NY Times and the ACLU), as well as pressure from Congress, which had threatened to derail the judicial nomination of David Barron over access to the memo. Mr. Barron, now Judge Barron, wrote both Awlaki memos as a lawyer in the Justice Department’s Office of Legal Counsel (OLC).
The February 19 memo is not only shorter than the July 10 memo, it is heavily redacted. The six-page document contains more deletions than it does written text. Comparing the two, the February 10 memo gives the impression of being more hastily prepared—-perhaps because the CIA, which requested the legal opinion, was anticipating an earlier opportunity to target Awlaki.
The February 19 memo focuses on the key issues posed by the planned strike: Awlaki’s rights, as a citizen, and limitations on government power (if any) that derive from those rights. The July 10 memo covers that territory too, but is devoted mainly to an analysis of potential constraints imposed by US statutes and international law. The latter focus suggests that, as planning for the operation proceeded, the CIA may have sought assurances that its personnel would not face liability for their involvement.
What does the February 10 memo conclude? The many redactions notwithstanding, the memo gives a green light to the CIA, provided (1) the threat posed by Awlaki is imminent and continuing and 2) his capture, as an alternative to killing him, is not feasible. These conditions are sufficient, under the circumstances, to meet the requirements of the fifth amendment’s due process clause and the fourth amendment’s guaranty against unreasonable “searches and seizures,” the memo says.
Notably absent from the February 10 memo is any discussion of how—and with what degree of certainty—the government must determine that these conditions are met. As applied to Awlaki, the conditions were presumed to have been met based on the CIA’s representations to the Justice Department. The CIA’s representations appear to have been accepted by the Justice Department at face value. If that is the case, does anyone get to question those representations? Only President Obama?
Ironically, the main legal authority relied on by the Justice Department for its expansive view of government power is a 2006 Supreme Court decision that sharply curtailed government power (specifically, the government’s claimed power to hold Guantanamo detainees, without a hearing, indefinitely). However, the 2006 decision prescribed a legal framework that the memo applies to Awlaki.
If there is one line that summarizes the legal analysis in the February 10 memo, it is this: ” [redaction] being a US citizen [redaction] does not give a member of al Qa’da a constitutional immunity from attack [redaction].” (Memo page 5).
—PETER SCHEER
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