U.S. drone strikes in Yemen in September 2011 killed Anwar Al-Awlaki, below left, an al Qaida leader who had been born in the United States, and another U.S. citizen, Samir Khan, center. An October 2011 strike killed Abdulrahman al-Awlaki, al-Awlaki’s teenage son, right, also a U.S. citizen. (Wiki/AP/Facebook)
A U.S. Department of Justice Office of Legal Counsel memo on the legal justification for the targeted killing of an American citizen accused of being a terrorist was released by court order Monday.
After two months of jockeying over a government petition to rehear an April ruling by the court, the U.S. Court of Appeals for the Second Circuit released the “public authority justification” that provides the legal underpinning for Department of Defense and Central Intelligence Agency operations against al Qaida figure Shayhk Anwar al-Aulaqi, who was killed in 2011 along with two other American citizens, one of them his son, by drone strike in Yemen.
The circuit held in April that the memo could be released with redactions, granting access under the Freedom of Information Act to The New York Times and the American Civil Liberties Union in consolidated cases led by The New York Times Company v. U.S. Department of Justice, 13-422.
“We’re delighted to see the memorandum released—of course we hoped there would be less redactions,” said Times assistant general counsel David McCraw. “But I think there is so much here that gives us what we wanted, which is fuel for the debate about targeted killings.”
Jameel Jaffer, deputy legal director of the ACLU, said the memo is striking for its claim of “sweeping authority” for the Defense Department and the CIA asserted by the Office of Legal Counsel.
The memo, “Re: Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Operations Against Shaykh Anwar al-Aulaqi,” was drafted in 2010 by then Acting Assistant Attorney General David Barron, now a judge on the U.S. Court of Appeals for the First Circuit.
The memo discusses 18 U.S.C. §1119, titled “Foreign Murder of United States Nationals” and how it incorporates the “public authority justification” for the administration’s use of deadly force.
“It is true that here the target of the contemplated operations would be a U.S. citizen,” the memo states. “But we do not believe al-Aulaqi’s citizenship provides the basis for concluding that section 1119 would fail to incorporate the established public authority justification for killing in this case.”
Based upon the facts presented, the memo states that al-Aulaqi had engaged in behavior that “brings him within the scope” of Congress’ original authorization for the use of military force (AUMF) against al Qaida and its allies following the Sept. 11, 2001 attacks on the World Trade Center and the Pentagon.
“[W]e 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 force authorization,” Barron wrote.
Southern District Judge Colleen McMahon (See Profile) had granted summary judgment for the government in 2013, but Judges Jon Newman (See Profile), Jose Cabranes (See Profile) and Rosemary Pooler (See Profile) reversed in April (NYLJ April 22).
The judges said then that the release was justified because of public statements by government officials acknowledging the use of lethal force in counterterrorism operations and the Justice Department’s decision to release part of a white paper that had been leaked to a member of the media entitled “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operation Leader of Al-Qa’ida or an Associated Force.”
One of the statements cited by the Second Circuit in its April opinion as to how the government had waived FOIA exemptions was a May 22, 2013 letter by Attorney General Eric Holder to the Senate Judiciary Committee in which Holder stated “The United States … has specifically targeted and killed one U.S. citizen.”
Another statement was made by President Barack Obama the next day before the National Defense University. The president said of al-Aulaqi, that he had “authorized the strike that took him out.”
Newman wrote for the court rejecting the government’s argument that releasing the memo would inhibit government agencies from seeking the advice of the Office of Legal Counsel.
“Agencies seeking OLC legal advice are surely sophisticated enough to know that in these circumstances attorney/client and deliberative process privileges can be waived and the advice publicly disclosed,” he said. “We need not fear that OLC will lack for clients.”
On Monday, the circuit issued a revised opinion from its April ruling with some changes that were occasioned by the government’s petition for rehearing concerning redactions, and it revealed more memos could be involved. One change the court made was to lift a redaction of an instruction for McMahon on remand, saying that “other legal memoranda prepared by OLC and at issue here must be submitted to the District Court for in camera inspection and determination of waiver of privileges and appropriate redaction.”
The court also issued a second short opinion by Newman on the petition for rehearing itself.
Jaffer said the opinions present a limit on the government’s ability to keep critical documents from the public view.
“The most important point is that the court has rejected the government’s contention that essentially everything about the targeted killings program, including the information regarding the killing of American citizens is a legitimate secret,” he said.
Appellate Staff Attorney Sharon Swingle of the Justice Department’s Civil Division argued for the government.