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In War, the Government Argues Constitutional Rights Are a Fluid Sort of Thing

The Justice Department's justification for killing an American citizen is surprisingly broad.
Image: USAF

Why does the United States think it can kill an American citizen overseas, without a trial? The answer is surprisingly simple: because it says it can. With the constitutional rationale largely redacted, what other conclusion can you draw?

After years of legal battles, the United States government finally released its legal rationale for the 2011 drone strike that killed Anwar al-Awlaki, an American al-Qaeda imam who was living in Yemen and was allegedly planning terrorist attacks on the United States.

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Does the rationale boil down to specific threats al-Awlaki made against the United States? No—at least not ones that weren't redacted. Does it come down to imminent aggression against the United States? Nope, not really, at least. Instead, it boils down to the fact that the United States is at war with terror, and even the simple act of joining up with a foreign enemy is enough to make someone a target, imminent threat or not.

David Barron, an assistant attorney general at the time, wrote the memo, and, though it was specific to al-Awlaki's case at the time, it's not so specific that it couldn't be generally applied to other suspected American militants. That's bad news for Abdullah al-Shami, a Texas-born al-Qaeda militant who is allegedly hiding out somewhere in Pakistan and is supposedly on the CIA kill list. It's also bad news for people who believe in due process and the rights granted by the Constitution.

In the memo, which is heavily redacted in parts specifically relating to al-Awlaki's constitutional Fourth- and Fifth-Amendment rights, Barron points out that Congress' Authorization for Use of Military Force, granted to President George W. Bush immediately after 9/11 to use "necessary and appropriate" force against al-Qaeda, applies to all enemy combatants, US citizen or not. In fact, Barron points out that the government believes that, regardless of where the target is, the Department of Defense and CIA have authority to kill them if someone could "reasonably conclude" that a target is part of a terrorist organization that is at war with the United States and finds that capturing that person is "infeasible."

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"We believe 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 organization within the scope of the force authorization," Barron wrote.

For all the talk of there needing to be an "imminent threat" against the United States in order for a drone strike to be authorized, Barron never argues that the United States needs that legal rationale, as Benjamin Wittes, a senior fellow at Brookings, pointed out today.

"I think the imminence requirement in the targeted killing program—in the administration’s view, at least—is not legally required but purely a prudential policy requirement even with respect to U.S. citizens," Wittes wrote. "If that’s right, it may be the biggest news in the Barron memo."

In other words, it's good practice for the government to point out that a target is actively plotting against the United States. But it doesn't have to in order to kill them.

As the American Civil Liberties Union points out (the organization, together with journalists with The New York Times, helped fight for the release of the memo in court), when it comes to al-Awlaki's case, the government doesn't really get into why it suspected the popular YouTube cleric was an "imminent threat." It doesn't suggest why capture, in that case, was unfeasible.

One possible reason for that, according to Wittes, is because the government might believe that it doesn't need to prove someone is an imminent threat for it to conduct a "lawful" killing. Instead, the legal justification relies on unnamed military sources that suggest al-Awlaki is a threat (in general), notes that joining up with al-Qaeda is an "important incident of war," suggests that the war with terrorism is one without borders, and says that the government is basing its justification based on how the "facts [are] represented to us" by the CIA and DoD.

"Throughout the memo, Barron conditions important legal conclusions on 'the facts represented to' the [Department of Justice] 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-Awlaki meets even the government's professed legal standard," the ACLU wrote. "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.

As the ACLU explains, that's not due process, regardless of whether the government says it is or not.

The government has been wrong about this kind of thing before (weapons of mass destruction in Iraq, anyone?), and it'll be wrong about something in the future.

There's a very good chance that al-Awlaki was an active member of al-Qaeda, plotting something against the United States. But if the government refuses to release the evidence it has, how do we know? And, the next time the government decides to kill an American, how will we know it was justified? Without any sort of transparency—and a heavily redacted memo that leaves out the most important constitutional arguments is not 'transparency'—we won't. Increasingly, it's looking like Americans' constitutional rights are subject to the government's whim.