Last year, the United States targeted and killed Anwar al-Awlaki, an American citizen, in a drone strike in Yemen. There was no semblance of judicial process. Last week, Attorney General Eric Holder assured an audience at Northwestern University that the killing did not violate the Constitution. While his speech set out the government’s reasoning, it lacked any citation to legal authority. Meanwhile, the federal government is refusing to release an Office of Legal Counsel memorandum, whose existence was reported by The New York Times last fall, and is opposing Freedom of Information Act requests for the memo by the Times and the ACLU.
We can conceive that some of the facts recited in the memorandum, especially those related to intelligence sources and methods or to the cooperation of foreign governments, are properly classified. That is not true of OLC’s legal reasoning, which is not factual but based on the analysis of the Constitution, the September 2001 Authorization for the Use of Military Force, and other legal materials. When an executive officer acts in reliance on a legal opinion, the basis of that opinion should be made public, particularly where the nonjudicial killing of an American is involved.
