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Secret OLC Memo Authorized Killing of Anwar al-Awlaki

Charlie Savage digs out the process for authorizing the assassination of Anwar al-Awlaki, killed in Yemen late last month. He wasn’t able to obtain the secret memo from the Office of Legal Counsel authorizing the placing of Awlaki on a kill list, but he had some of the memo described to him:

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 legal analysis, in essence, concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him.

The memorandum, which was written more than a year before Mr. Awlaki was killed, does not independently analyze the quality of the evidence against him.

This is, of course, a large part of the problem with a secretive process. As Glenn Greenwald pointed out last week, the secret White House committee used inference and supposition to basically indict Awlaki and consign him to death. There are no checks and balances on the secretive committee, which was not created by a transparent Congressional process but merely willed into being by the White House. So setting aside the OLC memo authorizing executive assassination of a US citizen under certain conditions, we have a fatally flawed process defining and circumscribing those conditions around particular individuals, one that is ripe for abuse. The fact that Yemeni commandos almost captured Awlaki last year, a fact that comes out in the article, ruins the notion that it was not “feasible” to capture Awlaki, necessitating his assassination.

But even if the information was perfect and perfectly transparent, the OLC memo would be troubling, first and foremost because, as Glenn Greenwald notes, it was secret law shielded from the public.

Obama’s original choice to head the OLC, Dawn Johnsen, repeatedly railed against this Bush practice of concealing OLC memos as “secret law,” writing that “the Bush Administration’s excessive reliance on ‘secret law’ threatens the effective functioning of American democracy” and “the withholding from Congress and the public of legal interpretations by the Justice Department Office of Legal Counsel (OLC) upsets the system of checks and balances between the executive and legislative branches of government.” In her April, 2008 testimony before the Senate Judiciary Committee, she was nothing short of scathing on the practice of concealing OLC memos (note that the Bush DOJ, even when withholding OLC memos, at least would sometimes publicly present its legal reasoning in a far more formal and comprehensive way than anonymous leaks of purported summaries of parts of these memos to the NYT).

These are not operational actions being concealed, but legal conclusions that bind the Executive Branch, which is why Johnsen and others described it as “secret law” and condemned it as so un-democratic. It basically means citizens cannot even know the laws that prevail in the country. Now we have the Obama DOJ refusing to release the Awlaki OLC memo — which purported to authorize the President to assassinate a U.S. citizen without due process — and is also concealing OLC memos purporting to describe the legal limits of its surveillance powers, which it also refuses to disclose even in the face of lawsuits. May we say that this conduct “threatens the effective functioning of American democracy”?

The other big problem, picked up by Marcy Wheeler, is that in the OLC memo, the Authorization to Use Military Force from 2001 is used as the justification for the legality of the Awlaki assassination.

One of the big problems with Lederman and Barron’s interpretation of the AUMF, though–one Glenn doesn’t treat closely but which perfectly exemplifies Johnsen’s point–is the extension of the AUMF to apply to AQAP (Al Qaeda in the Arabian Peninsula), an entity that simply didn’t exist when the AUMF authorized war against groups that had launched 9/11 […]

One area where Lederman’s reported memo is particularly dangerous, IMO, is in the extension of the AUMF to groups clearly not included in the congressional authorization.

Surely we can see the dangers of extending the AUMF to cover groups that didn’t exist at the time that AUMF passed into law. There’s also the problem with the inference that OLC gave oral approval to put Awlaki on the kill list before writing the memo, an example of fitting the facts around the policy.

Marcy and Glenn have you covered on this, with a lot to say on the fact that Marty Lederman, a frequent Bush critic, co-authored this OLC memo. So let me just add this. You can agree or disagree that Awlaki represented a special case, that he joined an enemy force and entered what amounts to a battlefield and presented an imminent risk to the security of the US. What you cannot disagree with is the fact that this memo was debated and agreed to in total secrecy, a dangerous precedent going back at least to the Bush Administration where thorny national security issues have no national debate or conversation. Daddy White House makes the rules to Protect Us, and we’re supposed to consider this a fine example of the durability of our democracy.

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David Dayen

David Dayen