In response to a Freedom of Information Request filed by the ACLU, the Department of Justice this week released the memo providing legal analysis in support of justification for the 2011 assassination of Anwar al Awlaki, a US national living in Yemen.
Al Awlaki, who was born in New Mexico, was a Muslim cleric considered to be in a leadership position in Al Qaeda. He was killed in a targeted drone strike in Yemen, after Obama placed him on the targeted assassination list in 2010. The fact that President Obama had taken the unprecedented step of ordering the assassination of a US citizen was repeatedly highlighted in the press. The ACLU went to court to attempt to inhibit the assassination, albeit unsuccessfully.
The DOJ memo, authored by David Barron, is a compelling study in government double speak. Large chunks of the memo were redacted before its release, with approximately ¼ removed from public purview.
What was made available to the public delves into the legal inhibitions which might come into play with a targeted government murder of a US citizen. Title 18 Section 1119 of the US Code is referenced repeatedly, and the prohibitions against murder contained in this section resolved essentially due to the invocation of “public authority.”
Section 1119 states that “A person who, being a national of the United States, kills or attempts to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country shall be punished as provided under Sections 1111, 1112, and 1113.”
In order to justify the murder of al Awlaki, a US national, by other US nationals, it was necessary to create the appearance of a loophole in Section 1119.
The memo comes to the conclusion that “Section 1119 does not proscribe killings covered by a justification traditionally recognized” (as justifiable and excusable). The memo concludes that the murder of al Awlaki would be an “innocent homicide,” and ultimately permissible. The memo then moves to a defense of the public authority justification for executing the homicide. Succinctly, the public authority defense states that the government can do what you or I cannot, and for our own good.
The public authority justification is followed by some convoluted discussion as to the nature of laws governing war and conflict. It is somewhat oddly asserted that the wars involving Al Qaeda are not “international conflicts.” This assertion is apparently necessary in order to make the appearance that killing al Awlaki would be in accordance with international law.
So much for legalisms. What is compelling about the memo is its failure to provide a consideration of the Constitutional prohibitions against such an act of murder performed against a US citizen. Many remember the shock waves produced when it was reported that President George Bush, back in 2005, declared that the “Constitution is just a goddamned piece of paper.”
Apparently, the author of the al Awlaki memo took this to heart. There is minimal effort within the memo to resolve the fact that there are relevant protections provided by the US Constitution, which would inhibit the extra- judicial murder of a US citizen. There is a spare mention of the Fourth Amendment to the US Constitution which governs search and seizure acts. The murder of al Awlaki was considered to be a “seizure” of sorts.
The memo minimizes this fundamental protection, concluding that the “intrusion on any Fourth Amendment interests would be outweighed by the governmental interests that justify the intrusion.” This assertion deserves careful scrutiny, as it appears to be fronting the perception that the Constitution can be shoved aside, if it is in the interest of the government to do so. In fact, the Constitutional Amendments are in place to ensure that exactly such an effort by members of government would be prohibited.
The memo features no available discussion of the Fifth Amendment protections. The Fifth Amendment to the United States Constitution contains the “due process” clause, which states that no one shall be “deprived of life, liberty or property, without due process of law.”
As defined, “due process” mandates that a court be convened and the matter adjudicated therein. While the memo repeatedly refers to acts by al Awlaki that the Justice Department (which is, by the way, an arm of the executive branch, not the judicial branch), considered to be contrary to the interests of the United States, these acts were not adjudicated, were not presented as evidence to a court of law, but were merely so determined, internally and privately, by the executive branch of government. This is an abrogation of the separation of powers that is mandated by the founding document.
Questions have been raised by a number of journalists, including Glenn Greenwald and Paul Craig Roberts, as to whether al Awlaki was in fact an al Qaeda operative or posed any danger to the United States.
The dangerous precedent of the executive ordering the murder of US citizens is a slippery slope, upon which all once sacrosanct Constitutional protections are now sliding into the abyss. There is nothing now barring the way for a President,whether it be Obama or the next in line, to order the slaughter of US citizens anywhere in the world.
Including within the borders of the United States.
It has been suggested that the memo was only released to ensure that its author, David Barron, be approved in his appointment to the United States First Circuit Court of Appeals. Several Senators had pledged to block Barron’s nomination if the memo were not made public.
The indications that David Barron has evidenced no regard for the due process clause of the Constitution would, in another time, have them hooting and hollering from the Hill. The fact that Barron’s nomination to the court was approved by Congress is just another sign of the degradation of and disregard for first principles that has plagued the United States in recent years.
The full memo can be found here:
Janet C. Phelan, investigative journalist and human rights defender that has traveled pretty extensively over the Asian region, exclusively for the online magazine “New Eastern Outlook” where this first appeared.