As a result of Freedom of Information Act lawsuits filed by the American Civil Liberties Union and the New York Times, President Barack Obama’s administration has released the first memo authored by federal appeals court judge and former Office of Legal Counsel lawyer David Barron to justify the killing of US citizen and terrorism suspect Anwar al-Awlaki.
The Justice Department memo is dated February 19, 2010, a few months after Umar Farouk Abdulmutallab attempted to bomb a Detroit-bound plane on December 25, 2009. This memo was later superseded by a second memo that addressed issues the administration had overlooked, according to the Times.

Authorities have suggested that Awlaki was involved in the Christmas Day plot. But, for those Americans looking for details on what Awlaki was suspected of plotting before he was killed by a drone in Yemen on September 30, 2011, that information does not appear in the heavily censored memo.

What was not censored—and provides a bit of new insight on the thought process that went into justifying the extrajudicial execution of Awlaki—is the fact that Barron claimed Supreme Court precedent permitting law enforcement to use deadly force against dangerous suspects justified killing Awlaki.

“Even in domestic law enforcement operations,” Barron wrote, “the Supreme Court has noted that ‘if the suspect threatens the officer with a weapon or there is probable cause to believe he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape and if, where feasible, some warning has been given.”

With the killing of Mike Brown by a Ferguson police officer in the news, there is a lot of discussion about what use of deadly force is legal or not.

For the Supreme Court precedent to apply, Awlaki would have had to have been actively involved in a terrorism plot or in the process of planning to commit a terrorism plot. It is unknown what Awlaki was plotting at the time of his death, if he was plotting any terrorism act at all. The Obama administration has refused to release this information.

Another issue is that use of deadly force is supposed to be proportional to the threat. Is a drone strike proportional?

The answer to that question would seem to depend on whether Awlaki actually had posed some kind of imminent threat or whether he posed a threat regardless of whether he was unarmed at the time he was targeted.

One key difference is that drones are not typically used to threaten a dangerous suspect with death if they pose a threat. SWAT teams with aggressive officers might surround a suspect. Trigger-happy officers, sometimes with dehumanizing views of the people they police, may encounter a suspect and decide to shoot him. However, in Awlaki’s case, no officers—or soldiers—were ever near him to make the call about the threat he posed so they could then make the decision to kill him.

Of course, this is just one prong of the Justice Department’s justification for extrajudicially killing an American citizen suspected of terrorism who was located abroad.

The Justice Department also contends that Awlaki was an “enemy belligerent” and the “private interest” of the government may outweigh any necessity to provide that individual with protection under the Fifth Amendment’s due process clause.

It is further argued that it would be too burdensome for the government to capture someone like Awlaki. So, that justifies killing him with a Hellfire missile fired by a drone.

The memo also suggests that the government need not offer a process to prove the “detainee” or target is an “enemy combatant.” The threat of imminent use of force against the United States makes it permissible to neglect granting due process.

Again, it is not fully known what imminent threat Awlaki posed. It is clear that Awlaki associated with individuals, who were involved with terrorism. Perhaps, he was a part of al Qaeda in the Arabian Peninsula (AQAP). The administration should come out with documentation of Awlaki’s history up to the time when he was killed and confirm whatever role he had in AQAP.

More significantly, the families of Awlaki and Samir Khan, who was killed along with Anwar, have been denied the right to ruling on whether they had their due process rights violated. The Obama administration invoked state secrets privilege and argued courts had no place in war making decisions to convince a judge that she had no business “second-guessing” drone strikes that killed Awlaki, Samir Khan and Awlaki’s 16-year-old son, Abdulrahman. (Abdulrahman was killed in a strike later in October 2011.)

The Justice Department can put forward whatever legal analysis they want to justify extrajudicially killing US citizens and denying them due process. They will probably never have to worry about their innovative legal arguments being tested in court. And, as evidenced by this memo, the administration will continue to keep as much information secret as they can get away with withholding from the American public.

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."