Decoding the DOJ’s 2010 Targeted Killings Memorandum

By:

Ethan Merel*

Case Note

 Abstract: Anwar al-Awlaki, a radical U.S.-born cleric, was targeted and killed by a United States unmanned aerial vehicle (UAV) in Yemen during September 2011. The source of authority relied upon by the U.S. government in carrying out the strike was detailed in a 2010 Department of Justice memorandum. This Case Note offers a breakdown of some of the key arguments presented in the DOJ memo and briefly describes ongoing debates over the memo’s significance.

 

I. Background:

Anwar al-Awlaki, a radical U.S.-born cleric, was targeted and killed by a United States unmanned aerial vehicle (hereinafter “UAV”) in Yemen during September 2011.[1] Significantly, al-Awlaki “was the first public example of the US government targeting and killing one of its own citizens abroad based on the suspicion of terrorist activities.”[2] Following his death, political and legal concerns surrounding the use of UAVs, particularly as they relate to the killing of American citizens, began to garner increased public scrutiny. Al-Awlaki and his American-born son—killed in a separate strike just days later[3]—as well as al-Awlaki’s father, who has presented failed legal challenges in U.S. courts to the killings,[4] have become a multi-generational embodiment of the challenges of fighting a geographically diverse, asymmetric campaign against Al-Qaeda and its affiliated or “successor” forces. Moreover, they represent the troubling tensions that this campaign has presented with respect to civil liberties.

Of interest for legal commentators, the source of authority claimed by the U.S. government in carrying out such strikes only recently became available for scrutiny. On February 4, 2013, NBC’s Michael Isikoff published a Department of Justice (hereinafter “DOJ”) “white paper” memo outlining the legal basis for the targeted killing of U.S. citizens.[5] On June 23, 2014, the Second Circuit decided in The New York Times Company v. United States[6] that the New York Times and the American Civil Liberties Union (hereinafter “ACLU”) were allowed access to a redacted version of the full July 16, 2010 memo under the Freedom of Information Act.[7] That now public document, available here, not only details the legal basis on which the United States’ targeted killings policy rests, but carries significant implications for the future application of both U.S. and international law as it relates to contemporary counter-terrorism operations. This Case Note offers a breakdown of some of the key arguments presented in the memo and briefly describes ongoing debates over the memo’s significance.

 

II. Summary of the 2010 Targeted Killings Memorandum:

The DOJ’s Office of Legal Council (hereinafter “OLC”) considers four distinct yet interrelated legal challenges to the targeted killing of al-Awlaki: (1) Foreign murder of United States nationals, 18 U.S.C. § 1119(b); (2) conspiracy to kill, kidnap, maim, or injure persons or damage property in a foreign country, 18 U.S.C. § 956(a); (3) the War Crimes Act, 18 U.S.C. § 2441; and (4) constitutional due process limitations.[8] This Case Note will predominantly focus on the first of the legal challenges, mirroring the greater level of discussion it received in the OLC memo.

            18 U.S.C. § 1119(b)           

The first legal obstacle commands most of the Justice Department’s attention in its analysis, implying its prominence as the most convincing counter-argument from the perspective of the United States government. Section 1119(b) makes it illegal for one U.S. national to kill another U.S. national while abroad, insofar as that killing violates 18 U.S.C. § 1111–1113, which codify the crimes of murder and manslaughter.[9] Since the respective scopes of murder and manslaughter are limited to “unlawful killing[s],”[10] as compared to any killing, the key question for the Justice Department is what constitutes a lawful killing in the context of counter-terrorism operations.

The OLC contends that a killing is justified, and therefore lawful under the common law, when pursuant to “public authority.”[11] In support of this argument, the government pulls back its analysis to the most rudimentary understanding of government power. The government can take private property or detain persons against their will or even execute prisoners—all actions that are typically illegal when carried out by individuals—when pursuant to proper public authority.[12] Further, the OLC looks to the legislative history of § 1119(b), explaining that the statute was no more than a means of closing a jurisdictional loophole brought to light by the murder of an American schoolteacher in South Korea by another American.[13] In accordance with the historical context which catalyzed the passage of § 1119(b), the OLC claims it is unsupportable to read into the statute an assumption that § 1119(b) “intended to jettison important applications of the established public authority justification” without any, let alone express, legislative intention to the contrary.[14]

The government’s analysis next seeks to locate the specific source of public authority which covers the targeted killing of al-Awlaki. In this case, the government invokes “the ‘lawful conduct of war,’ a well-established variant of the public authority justification.”[15] The argument follows as such: “‘[I]f a soldier intentionally kills an enemy combatant in time of war and within the rules of warfare, he is not guilty of murder,’ whereas, for example, if that soldier intentionally kills a prisoner of war—a violation of the laws of war—‘then he commits murder.’”[16] To determine whether the targeted killing of al-Alwaki is included in the former category, such an operation must fall within the confines of an authorized military operation pursuant to domestic law, as well as comport with applicable international laws.

For its analysis of the legality of such strikes under domestic law, the OLC relies heavily upon the 2001 Authorization for Use of Military Force (“AUMF”), which “clearly authorized the President’s use of ‘necessary and appropriate’ force against al-Qaida.”[17] Deferring to the government’s intelligence that al-Awlaki was a leader of al-Qaida in the Arabian Peninsula (“AQAP”), an affiliate of al-Qaeda in Yemen, the use of deadly force against him was legally uncontroversial but for his status as an American citizen.[18] Dismissing the notion that a target’s American citizenship complicates the situation, the OLC cites Supreme Court precedent defining key outer parameters of military action pursuant to the AUMF. In Hamdi v. Rumsfeld, the Court held as an “important incident of war”[19] that “the AUMF authorized the President to detain a member of Taliban forces . . . even though the Taliban member in question was a U.S. citizen.”[20] The OLC takes this argument one step further to claim that since “[t]he use of lethal force against such enemy forces, like military detention, is an ‘important incident of war,’”[21] then “just as the AUMF authorizes the military detention of a U.S. citizen . . . it also authorizes the use of ‘necessary and appropriate’ lethal force against a U.S. citizen who has joined such an armed force.”[22]

As for the legality of the targeted killing under international law, the OLC turns to Supreme Court precedent in Hamdan v. Rumsfeld to conclude that the general military engagement against al-Qaeda is a non-international armed conflict.[23] The OLC further determines that although the targeting of al-Alwaki would take place in a distinct geographic theater from the conflict analyzed in Hamdan, a “conflict must be considered as a whole . . . [as] it is artificial and improper to attempt to divide it into isolated segments, either geographically or chronologically.”[24] Therefore, the targeting of al-Alwaki is most accurately viewed as a part of the larger, recognized non-international armed conflict against al-Qaeda and is thus regulated in accordance with the rules which govern such conflicts, “namely, international humanitarian law, commonly known as the laws of war.”[25] Proper adherence to international humanitarian law requires that any proposed strike comports with the four fundamental principles of “military necessity, humanity (the avoidance of unnecessary suffering), proportionality, and distinction,”[26] as well as other requirements such as the willingness to consent to the surrender of a combatant, which the “DoD [claims they] would accept.”[27]

Finally, the OLC considers whether the legal analysis is altered if the Central Intelligence Agency [hereinafter “CIA”], a non-military organization, rather than the Department of Defense [hereinafter “DoD”] carries out the commission of the targeted killing. They determine that although “CIA personnel, by virtue of their not being part of the armed forces, would not enjoy the immunity from persecution under the domestic law of the countries in which they act . . . lethal activities conducted in accord with the laws of war, and undertaken in the course of lawfully authorized hostilities, do not violate the laws of war by virtue of the fact that they are carried out in part by government actors who are not entitled to the combatant’s privilege.”[28]

Based on the aforementioned analysis, the OLC determined that “the operation should be understood to constitute the lawful conduct of war and thus to be encompassed by the public authority justification. Accordingly, the contemplated attack . . . would not result in an ‘unlawful’ killing and thus would not violate section 1119(b).”[29]

Alternate Legal Challenges

While the most thorough analysis of the memo pertains to § 1119(b), the OLC also briefly considers, and then dismisses, alternate limits on the targeted killing of al-Awlaki pursuant to 18 U.S.C. § 956(a),[30] 18 U.S.C. § 2441,[31] and constitutional due process.[32]

 

III. Implications:

While comprehensive in its assessment of the killing under domestic law, the memorandum leaves much unaddressed regarding the interplay of its analysis to international law. For example, why are concerns of sovereign integrity given little to no attention by the OLC? Further, without geographic limitations imposed on where the U.S. military may legally operate, and with al-Qaeda’s recent announcement of expansion to India and elsewhere,[33] does the 2001 AUMF essentially authorize targeted killings near-globally, pending the identification of an organizational hook?[34]

In addition, the memorandum fails to delve into the mechanics employed by either the DoD or the CIA in carrying out targeted killings. It leaves “open many issues—for instance, the position of the high-level official who makes such determinations, the steps that should be taken to demonstrate infeasibility of capture, and the process for holding officials accountable for violations of the conditions set forth.”[35]

Finally, the OLC abstains from speculating or, alternatively, clarifying the legal limits of targeted killing. In particular, the memorandum is silent as to whether a U.S. citizen who is aligned with and operates on behalf of an organized terrorist group is subject to a targeted killing when within the borders of the United States. While this example may seem unlikely at first glance, it will be of increasing importance in light of the recent rise of ISIS and the feared return of American-born ISIS fighters to the United States.[36] Ultimately, while the OLC memorandum offers insight into the legal basis underpinning a key aspect of United States counter-terrorism strategy, many questions are left in the wake of its release.

 


* Staff Editor, Columbia Journal of Transnational Law; J.D. Candidate, Columbia Law School, 2016; B.A. Northwestern University, 2013.

[1] Charlie Savage, Justice Department Memo Approving Targeted Killing of Anwar Al-Awlaki, N.Y. Times, June 23, 2014, http://www.nytimes.com/interactive/2014/06/23/us/23awlaki-memo.html?_r=0.

[2] Asawin Suebsaeng, Here’s the Full Justice Department Memo That Allowed Obama To Kill an American Without Trial, Mother Jones, June 23, 2014, http://www.motherjones.com/mojo/2014/06/obama-doj-declassified-full-memo-targeted-killing-drone-strike-anwar-al-awlaki.

[3] Conor Friedersdorf, How Team Obama Justifies the Killing of a 16-Year-Old American, Atlantic, Oct. 24, 2012, http://www.theatlantic.com/politics/archive/2012/10/how-team-obama-justifies-the-killing-of-a-16-year-old-american/264028/.

[4] Ryan Grim and Joshua Hersh, Al-Awlaki Killing In Yemen Raises Constitutional Questions, Huffington Post, Sept. 30, 2011, http://www.huffingtonpost.com/2011/09/30/awlaki-killed-american-cl_n_988929.html.

[5] Glenn Greenwald, Chilling legal memo from Obama DOJ justifies assassination of US citizens, Guardian, Feb. 5, 2013, http://www.theguardian.com/commentisfree/2013/feb/05/obama-kill-list-doj-memo.

[6] The initial filings of this lawsuit predated the Isikoff publication.

[7] Suebsaeng, supra note 2; see generally New York Times Co. v. U.S. Dep’t of Justice, 756 F.3d 100 (2d Cir. 2014).

[8] See generally Memorandum for the Attorney General Re: Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Operations Against Shaykh Anwar al-Aulaqi (Op. O.L.C., July 16, 2010), available at http://www.lawfareblog.com/wp-content/uploads/2014/06/6-23-14_Drone_Memo-Alone.pdf.

[9] See Foreign murder of United States nationals, 18 U.S.C. § 1119(b) (1991); See also 28 U.S.C. § 1111–1113.

[10] Id.

[11] Memorandum for the Attorney General, supra note 8, at 14.

[12] Id. at 15.

[13] Id. at 17–18; see also 137 Cong. Rec. 8675-77 (1991).

[14] Memorandum for the Attorney General, supra note 8, at 19.

[15] Id. at 20.

[16] Id.

[17] Id. at 21.

[18] Id.

[19] Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004).

[20] Memorandum for the Attorney General, supra note 8, at 22–23; see also Hamdi, 542 U.S. at 519–24.

[21] Memorandum for the Attorney General, supra note 8, at 23.

[22] Id.

[23] Hamdan v. Rumsfeld, 548 U.S. 557, 628–31 (2006).

[24] Memorandum for the Attorney General, supra note 8, at 26 (quoting Submission of the Government of the United States of America Concerning Certain Arguments Made by Counsel for the Accused in Prosecutor v. Dusan Tadic, Case No. IT-94-1 AR72, ¶27-28 (Int’l Crim. Trib. for the Former Yugoslavia App. Chamber July 17, 1995).

[25] Memorandum for the Attorney General, supra note 8, at 28.

[26] Id.

[27] Id. at 29–30.

[28] Id. at 33 n. 44; The extension of the law of war comporting public authority justification to cover the non-military CIA is by far the least supported assertion in the OLC memorandum. Buried in footnote 44 is a discussion of the Supreme Court’s decision in Ex parte Quirin which seems to directly contradict the government’s stance, holding that a “hostile act” committed while not in uniform “renders the offender liable to trial for violation of the laws of war.” Ex parte Quirin, 317 U.S. 1, 36 n.12 (1942). While the OLC disputes the extension of Ex parte Quirin to the facts of the instant operation, their reliance on the DoD’s Manual for Military Commissions is comparatively unpersuasive.

[29] Memorandum for the Attorney General, supra note 8, at 30.

[30] “Like section 1119(b), section 956(a) incorporates by reference the understanding of ‘murder’ in section 1111 of title 18” and therefore is inapplicable to the instant scenario under the same analysis. Id. at 36.

[31] “[I]ndividuals whose continuous function involves the preparation, execution, or command of acts or operations amounting to direct participation in hostilities are assuming a continuous combat function.” Nils Melzer, International Committee of the Red Cross, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law 28 (2009). Al-Awlaki, “an active, high-level leader of an enemy force who is continually involved in planning and recruiting for terrorist attacks, can on that basis fairly be said to be taking ‘an active part in hostilities.’ Accordingly, targeting him . . . would not violate the War Crimes Act.” Memorandum for the Attorney General, supra note 8, at 38.

[32] “In Hamdi, a plurality of the Supreme Court used the Mathews v. Eldridge balancing test to analyze the Fifth Amendment due process rights of a U.S. citizen captured on the battlefield in Afghanistan . . . We believe similar reasoning supports the constitutionality of the contemplated operation here . . . [as] the threat posed by al-Aulaqi’s activities to United States persons is ‘continued’ and ‘imminent.’” Memorandum for the Attorney General, supra note 8, at 39 (citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).

[33] Ishaan Tharoor, Why al-Qaeda is opening a new wing in South Asia, Wash. Post, Sept. 3, 2014, http://www.washingtonpost.com/blogs/worldviews/wp/2014/09/03/why-al-qaeda-is-opening-a-new-wing-in-south-asia/.

[34] Some commentary on the memo analyzes the definition of non-international armed conflict proffered by the OLC as a self-imposed limitation on the geographic scope of legally targetable territory. While potentially important, this proposition is far from explicit in the memo itself. See Ryan Goodman, The OLC’s Drone Memo and International Law’s Ascendance, Just Security, June 24, 2014, http://justsecurity.org/12142/olc-memo-drones-international-law-goodman/.

[35] David Kaye, International Law Issues in the Department of Justice White Paper on Targeted Killing, 17 Am. Soc’y Int’l L. 8 (2013), available at http://www.asil.org/insights/volume/17/issue/8/international-law-issues-department-justice-white-paper-targeted-killing.

[36] Dan Friedman, Rocco Parascandola, and Corky Siemaszko, Some Americans who joined ISIS have returned to U.S., officials say, New York Daily News, Sept. 22, 2014, http://www.nydailynews.com/news/world/isis-urges-followers-kill-westerners-feel-secure-bedrooms-article-1.1948057.