Constitutional Law

'Lawful conduct of war' analysis in DOJ memo justified killing of US citizen in Yemen


The September 2011 killing of a U.S. citizen in Yemen in a targeted drone strike was determined to be justified, in a prior U.S. Department of Justice legal memo, as “lawful conduct of war.”

Released Monday in a redacted version by the DOJ, the memo says the strike was authorized under the Authorization to Use Military Force statute, even though Anwar al-Awlaki was an American citizen. Because his capture was impractical and his conduct, as a claimed leader of an al-Qaida group, made him “part of the forces of an enemy organization,” the strike would not be murder, the memo says.

It was written by David Barron, then acting chief of the DOJ’s Office of Legal Counsel. He has since been confirmed as a federal appeals court judge in Boston.

Time magazine, Associated Press, the Guardian, the Los Angeles Times (sub. req.) and the New York Times (reg. req.) have stories.

Specific facts underlying Barron’s analysis are in the redacted portion of the 2010 memo, which was made public pursuant to a federal appeals court ruling in April in Freedom of Information Act litigation brought by the American Civil Liberties Union and the New York Times.

“In the present circumstances, as we understand the facts,” wrote Barron, “the U.S. citizen in question has gone overseas and become part of the forces of an enemy with which the United States is engaged in an armed conflict; that person is engaged in continual planning and direction of attacks upon U.S. persons from one of the enemy’s overseas bases of operations; the U.S. government does not know precisely when such attacks will occur; and a capture operation would be infeasible.”

In that situation, he continued, U.S. constitutional law “would not require the government to provide further process” prior to the strike, which occurred without a trial.

Pardiss Kebriaei of the Center for Constitutional Rights represents the al-Awlaki family. He said the memo “confirms that the government’s drone killing program is built on gross distortions of law,” in a written statement provided to the Los Angeles Times.

See also:

ABAJournal.com: “2nd Circuit backs NY Times, orders DOJ to turn over legal rationale for targeted US killings”

New York Times (reg. req.): “Relatives of Victims of Drone Strikes Drop Appeal”

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