Secret US Memo Made It Legal to Kill Anwar al-Awlaki

The New York Times reports that the Obama administration issued a secret legal memorandum that opened the door to the killing of Anwar al-Awlaki, the American-born radical Muslim cleric hiding in Yemen, found that it would be lawful only if it were not feasible to take him alive, according to people who have read the document.

A secret document discussing the legality of killing al-Qaida operative Anwar al-Awlaki in Yemen found that his assassination would only be lawful if he could not be taken alive, The New York Times reported on Saturday, citing sources who had read the document. Photo: Phamducdao/Flickr

The document that laid out the administration’s justification — a roughly 50-page memorandum by the Justice Department’s Office of Legal Counsel, completed around June 2010 — was described on the condition of anonymity by people who have read it.

The secret document provided the justification for acting despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war, according to people familiar with the analysis.

The memo, however, was narrowly drawn to the specifics of Mr. Awlaki’s case and did not establish a broad new legal doctrine to permit the targeted killing of any Americans believed to pose a terrorist threat.

Awlaki, a US citizen who was born in New Mexico and lived in Virginia before leaving the United States shortly after Sept. 11, 2001, was the first US citizen who the White House authorized US agencies to kill since the al-Qaida attacks on New York and Washington a decade ago.

Legal experts who have long criticized a US government program to kill members of al-Qaida abroad as a breach of international law say the killing of Anwar al-Awlaki last month may also have broken US law.

The memo, written last year, followed months of extensive interagency deliberations and offers a glimpse into the legal debate that led to one of the most significant decisions made by President Obama — to move ahead with the killing of an American citizen without a trial.

The deliberations to craft the memo included meetings in the White House Situation Room involving top lawyers for the Pentagon, State Department, National Security Council and intelligence agencies.

It was principally drafted by David Barron and Martin Lederman, who were both lawyers in the Office of Legal Counsel at the time, and was signed by Mr. Barron. The office may have given oral approval for an attack on Mr. Awlaki before completing its detailed memorandum.

Several news reports before June 2010 quoted anonymous counterterrorism officials as saying that Mr. Awlaki had been placed on a kill-or-capture list around the time of the attempted bombing of a Detroit-bound airliner on Dec. 25, 2009. Mr. Awlaki was accused of helping to recruit the attacker for that operation.

“The fact that (Awlaki) was a dual US-Yemeni citizen means that he had extra protections under theUSconstitution than he would not have had if he was just a Yemeni citizen,” said Mary Ellen O’Connell, an international law professor at the University of Notre Dame’s law school. “So the president has done something in my view that is highly questionable under our own Constitution.”

The legal analysis, in essence, concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between theUnited Statesand Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him.

The memorandum, which was written more than a year before Mr. Awlaki was killed, does not independently analyze the quality of the evidence against him.

Alwaki was a legal target for assassination because he was part of al-Qaida’s war against theUS, he posed a significant threat to US citizens and Yemeni authorities were not taking steps to or were unable to bring him to justice, the document purportedly found.

The administration did not respond to requests of The New York Times for comment on this article. US President Barack Obama said last month that the killing in Yemen of Awlaki was “another significant milestone” in efforts to defeat al-Qaida and its allies.

“This is further proof that al-Qaida and its affiliates will have no safe haven anywhere in the world,” Obama said, adding that Awlaki’s death was a result of the government ofYemen joining international efforts against the militants. [via The New York Times and The Jerusalem Post]

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