The ongoing war on al-Qaida has prompted a range of issues regarding the rule of law and the extent to which it is being used, abused or simply ignored by American authorities. Court documents revealed in a redacted memorandum that was publicly available on Monday shows that the Obama administration killed people like Anwar al-Awlaki, via drone attack, as part of a controversial 2001 law called the Authorization to Use Military Force (AUMF).
The AUMF is the broad and controversial 2001 law played a major role in the legal decision to kill Anwar al-Awlaki, the former al-Qaida propagandist and US citizen, in 2011, according to a redacted memorandum made public on Monday.
“We believe that the AUMF’s authority to use lethal force abroad also may apply in appropriate circumstances to a United States citizen who is part of the forces of an enemy authorization within the scope of the force authorization,” reads the Justice Department memorandum, written for attorney general Eric Holder on 16 July 2010 and ostensibly intended strictly for Awlaki’s case, The Guardian reports.
Among those circumstances: “Where high-level government officials have determined that a capture operation is infeasible and that the targeted person is part of a dangerous enemy force and is engaged in activities that pose a continued and imminent threat to US persons or interests.”
The 2nd US circuit court of appeals in Manhattan released the memo on Monday in response to a lawsuit from the American Civil Liberties Union and the New York Times.
The AUMF is unbounded by geographic or time limitations, indicating the wide berth the Obama administration provides for understanding its powers for the potential targeting of US citizens. The administration’s official policy is that the AUMF ought to be “ultimately repeal[ed]”, as Obama said in May. The administration does not support immediate repeal, which already faces a difficult congressional road.
Barely over a year after the memo was issued, Awlaki was dead, following a US drone strike – the first such lethal strike known to have deliberately targeted an American citizen. Yet an earlier US assault on Awlaki, in December 2009, predated the memo.
While Obama administration officials have for years insisted that Awlaki was an operational leader of al-Qaida in the Arabian Peninsula, which in 2009 and 2010 attempted unsuccessfully to detonate bombs inside the US, they have also fought lawsuits seeking to reveal their case against Awlaki.
But for the case against Awlaki, hinted at in a Justice Department “white paper” summarizing it that leaked last year, the administration leaned significantly on the broad leeway for counter-terrorism the AUMF established.
“Just as the AUMF authorizes the military detention of a US citizen captured abroad who is part of an armed force within the scope of the AUMF, it also authorizes the use of ‘necessary and appropriate’ lethal force against a US citizen who has joined such an armed force,” reads the memo, written by former Justice Department lawyer David Barron, who also analyzed and rejected arguments that killing Awlaki would be tantamount to murder.
“It is true that here the target of the contemplated actions would be a US citizen,” reads the memo.
“But we do not believe al-Aulaqi’s citizenship provided a basis for concluding that section 1119 would fail to incorporate the established public authority justification for a killing in this case.”
The release of the memo, as ordered Monday by a federal appeals court, ended a legal battle that has stretched for years, intended to prevent the administration from killing Awlaki or any other US citizen without trial. After losing an April appeal and confronting a challenge by Republican senator Rand Paul to deny Barron a federal judgeship, the Obama administration agreed not to fight the document’s disclosure.
“The release of the legal memorandum follows the administration’s decision last month not to appeal the court’s decision. The material being released is consistent with the administration’s previous statements on this issue,” said Justice Department spokesman Brian Fallon.
But its suppression challenge took various forms and arguments over the years, despite repeated official confirmations about the drone strikes, including from the president; despite the confirmed killing of four Americans, three of whom are claimed to have been killed accidentally, including Awlaki’s 16-year-old son; and despite the 2013 leak of a memo summarizing the Justice Department’s arguments about so-called “targeted killing” for Congress.