Memo Authorizing Targeted Drone Killing of Al-Awlaki Released

by Dr. Gerard Emershaw

The memo by the Justice Department’s Office of Legal Counsel which authorized the targeted drone killing of American citizen Anwar al-Awlaki without a trial was released earlier this week. The memo reasons that the targeted killing of American citizens such as al-Awlaki is not a violation of 18 U.S.C. § 1119 which makes it a federal offense for an American citizen to murder or attempt to murder another American citizen in a foreign nation. The memo appeals to the public authority justification as providing an exemption to the statute in such cases of targeted killings. Public authority justification comes into play where “the defendant knowingly committed a criminal act but did so in reasonable reliance upon a grant of authority from a government official to engage in illegal activity.” The memo concludes that the Department of Defense and CIA operations involved with the targeted killing of al-Awlaki were justified under a particular variant of public authority under “the lawful conduct of war.”

This defense of the al-Awlaki assassination is dependent upon the War on Terror being an actual war, and this is dependent upon the Authorization for Use of Military Force (AUMF) being a legal Congressional declaration of war. As argued at length in a previous post, the AUMF is not a declaration of war because war must be declared against a specific entity, there is no precedent for declaring war against groups or individuals rather than against nation states, and terrorists cannot be viewed as both criminals and enemy combatants.

Assuming for the moment that AUMF is a legitimate declaration of war, the next step of the memo’s justification for the targeted killing of al-Awlaki is based upon the Supreme Court ruling in Hamdi v. Rumsfeld (2004). In that landmark case, the Court ruled that American citizens designated as enemy combatants have a right to challenge their detainment under the Due Process Clause of the Fifth Amendment. The Court supported its plurality opinion that it was appropriate to limit the amount of due process that an American citizen enemy combatant received by appealing to a three part test formulated in Mathews v. Eldridge (1976):

1. The interests of the individual in retaining their [life, liberty, or] property, and the injury threatened by the official action
2. The risk of error through the procedures used and probable value, if any, of additional or substitute procedural safeguards;
3. The costs and administrative burden of the additional process, and the interests of the government in efficient adjudication.

In Hamdi, the Court ruled that an American who was being detained as an enemy combatant after being captured on a battlefield overseas required notice of the charges, access to counsel, and an opportunity to be heard. Although the Court held that the due process requirements of placing the burden of proof on the government and of making hearsay inadmissible would place too much of a burden on the executive branch during hostilities, the due process requirements for such individuals were nevertheless still stringent.

The government claims that capturing al-Awlaki was infeasible. It concludes that it was reasonable to believe that a decision-maker could conclude the threat posed by al-Awlaki’s activities to United States persons was “continued” and “imminent” and that this outweighed the risk of possible erroneous deprivation.

However, the hole in the memo’s reasoning is that depriving an American citizen of his or her life is far more serious than depriving him or her of liberty as in the cases of the detention of American citizen enemy combatants as in Hamdi. This makes it reasonable to conclude that the amount of due process to be afforded to the target of assassination should be equivalent to that afforded to detained enemy combatants if not even greater.

The biggest issue is the Orwellian nature of the War on Terror created by the AUMF. The very vague nature of organizations like Al Qaeda makes it all too easy for the federal government to find even the most arbitrary of connections between an American citizen and Al Qaeda. Even where such connections do not exist—like the alleged connections between Al Qaeda and Saddam Hussein that the Bush administration “found”—this will not necessarily discourage the government. Using its tortured logic, more and more Americans will become potential targets of targeted killing. Public authority and “the lawful conduct” of war can also just as easily be used as justifications for committing domestic homicides. The government sees the entire world as a “battlefield” in the War on Terror, so no American citizen is necessarily safe from losing due process in the name of doing “whatever it takes” to defeat the terrorists. Who decides whether an American citizen constitutes a “continued” and “imminent” threat to the United States? The President? What in Article II of the Constitution grants the Caesar-like power to decide life or death with a thumbs up or down like an Emperor to the President?