A secret Obama administration memorandum paved the way for last month's killing of radical American-born Muslim cleric Anwar al-Awlaki, making the legal case that it would be lawful to take the Al-Qaida chief out only if it were not feasible to bring him in alive.
The New York Times spoke with people who have read the secret document:
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 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.
The Obama administration has refused to acknowledge or discuss its role in the drone strike that killed Mr. Awlaki last month and that technically remains a covert operation. The government has also resisted growing calls that it provide a detailed public explanation of why officials deemed it lawful to kill an American citizen, setting a precedent that scholars, rights activists and others say has raised concerns about the rule of law and civil liberties.
According to the Times, the legal analysis justified al-Awlaki's killing by saying he posed a significant threat to Americans and was taking part in a war between the U.S. and Al-Qaida, and authorities in Yemen -- where al-Awlaki had been hiding -- were unable or unwilling to stop him.
The memo also examined possible legal obstacles to killing al-Awlaki and rejected each of them in turn: An executive order that bans assassinations, the lawyers found, bars only the killing of political leaders outside of war, not an armed target during a wartime conflict. Similarly, a federal statute prohibiting Americans from killing other Americans abroad did not apply because it is not "murder" to kill a wartime enemy during the course of war.
But what if the drone operator who fired the missile was a CIA official, as opposed to a soldier in uniform? Would that comply with the laws of war? Yes, the memo found, concluding that would not be a war crime, though the operator could theoretically face the highly improbably risk of standing trial in a Yemeni court for violating their laws against murder.
Finally, as for the Bill of Rights guarantee of due process of law and protection from unreasonable seizure, the memo concluded that al-Awlaki was different from a regular criminal, and cited court cases allowing American citizens who joined up with enemy forces to be detained or tried in military court just like noncitizen enemies.
Al-Awlaki was the purported mastermind of the failed "underwear bombing" of the Detroit-bound plane on Christmas Day in 2009, and Faisal Shazad, the Pakistani-American who pleaded guilty to the attempted Times Square car bombing in 2010 cited Al-Awlaki as an influence.
He was also suspected of playing a role in an unsuccessful attempt to send mail bombs on planes from Yemen to Chicago-area synagogues last year.