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Court Releases DOJ Memo Justifying Drone Strike On US Citizen 371

Posted by samzenpus
from the new-rules dept.
An anonymous reader writes in with news that the memo presenting a case for killing Anwar al-Awlaki has been released thanks to a Freedom of Information Act lawsuit. The U.S. Court of Appeals for the Second Circuit on Monday released a secret 2010 Justice Department memo justifying the killing of Anwar al-Awlaki, a U.S citizen killed in a drone strike in 2011. The court released the document as part of a Freedom of Information Act lawsuit filed by The New York Times and the American Civil Liberties Union to make the document public. Then-acting Assistant Attorney General David Barron, in the partially redacted 41-page memo, outlines the justification of the drone strike in Yemen to take out al-Awlaki, an alleged operational leader of al Qaeda.
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Court Releases DOJ Memo Justifying Drone Strike On US Citizen

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  • Yeah sure (Score:5, Insightful)

    by ArcadeMan (2766669) on Monday June 23, 2014 @05:33PM (#47301133)

    "Alleged" operational leader. No trial. Bam! You're dead.

    Welcome to Soviet USA.

    • Re:Yeah sure (Score:5, Insightful)

      by fuzzyfuzzyfungus (1223518) on Monday June 23, 2014 @06:07PM (#47301387) Journal
      It's just goodies all around: according to unspecified intelligence, as examined to an unknown standard of proof, by unidentified parties, in secret, he was the alleged operational leader "taking on a continuous command function", which means he isn't entitled to the protections of a civilian under the Geneva convention, even though he is unaffiliated with any national armed force, and not directly engaged in any hostility at the time and place of his death.

      Apparently, this is because the global war on terror is a 'non-international armed conflict', albeit one where the Congressional Authorization for the Use of Military Force is geographically (and temporally, enjoy kids!) unbounded.

      What is not clear (at least from my reading) is where the boundary is between 'an armed and dangerous criminal justice problem' and a 'non-international armed conflict' between the United States and a non-state group. Al Qaeda is apparently in (aided by; but not strictly because of, the AUMF), so killing or imprisoning people we believe to be members, on or off a battlefield, in countries with any level of active conflict, is A-OK. Who else would qualify for this rather unenviable status?

      Could we be at war with the Sinola Cartel if we wanted to? The Crips?
      • by s.petry (762400)

        The US Government has given weapons, training, and funding to Al Qada in Libya and Syria. Of course we killed a few in Iraq and Afghanistan, because you know. "Terrorists". So the real problem with these groups is whether or not they are playing ball with the US, or have duped the US into believing they are playing ball. Nothing more, nothing less. If they don't play ball, obviously they are terrorists that are going to build canoes and paddle to the US and nuke us with all of the materials they can fit

      • by rtb61 (674572)

        You left out the bit about, it also includes any person or person who happen to be in the near vicinity at the time, death sentence by proximate association, all inclusive of sex, age, innocence or guilt. So a terrorist baby in a combat assault pram who happens to be too close at the time of the is also guilty and sentenced to death. The only people convicted by memo here, is the ones who criminally wrote the memo and the ones who criminally acted based upon the memo.

        • There are no such things as 'innocent bystanders', only enemy combatants and enemy suicide-propagandists who ruthlessly get themselves blown up to tarnish the reputation of our legitimate peace actions.

          (This would be more obviously sarcastic were it not for the... striking... analysis provided by the then-commander of JTF-GTMO: 'Honor bound to defend freedom.', of three detainee suicides; "They are smart, they are creative, they are committed," Admiral Harris said. "They have no regard for life, neither
    • Anwar al-Awlaki posted videos urging all Muslims to commit violence against American civilians. Regardless of his specific role within al Qaeda, he certainly declared himself an "enemy combatant".

      http://www.theguardian.com/world/2011/sep/30/anwar-al-awlaki-video-blogs

      • by vux984 (928602)

        Anwar al-Awlaki posted videos urging all Muslims to commit violence against American civilians.

        Posting videos is sufficient? So not only is "freedom of speech" suspended but posting videos merits extra-judicial capital punishment anywhere in the world.

        That's no better than Iranian fatwas urging the assasination of people who offend them. On the other hand Iran didn't actually dispatch the military to execute on those fatwas... we did.

        But we're better because we're a "Christian nation" and don't call them fa

      • Enemy Combatant is a legal fiction by the government of the USA, whereby people are declared to not be people, and therefore don't get their inalienable human rights. In reality there are only two groups of people: Military and Civilian. All Civilians get legal due process (for that country), and the Military are "Marked" (uniforms and ID) so you know who they are.
      • by s.petry (762400)
        Ever read any of the documents from the CFR, PNAC, or listen to Political rhetoric? I guess most US politicians and members of numerous self proclaimed "think-tanks" should be legal fodder to anyone in the world right? Or is it only wrong when "those" people say it.
    • Re:Yeah sure (Score:4, Interesting)

      by dnavid (2842431) on Monday June 23, 2014 @09:21PM (#47302853)

      "Alleged" operational leader. No trial. Bam! You're dead.

      Welcome to Soviet USA.

      I don't think this particular situation is quite so simple. If Anwar al-Awlaki had joined the military of a country that had declared war on the United States, there would be no reasonable expectation of him being entitled to a criminal trial, because he would not be strictly speaking a criminal: he would be an enemy combatant, and furthermore no longer even an American citizen (since you cannot remain a US citizen while serving in the military of another country). The question is whether joining a paramilitary terrorist organization like Al Qaeda that isn't directly affiliated with a recognized nation-state triggers the same situation. He voluntarily made his affiliations public and also actively advocated violent acts against the United States and its citizens. I would myself like to know what evidence the government had that he posed a legitimate ongoing threat against the country, but I don't think its reasonable to try in abstentia every single member of al-Qaeda before lethal force can be used against them.

      We are supposed to make the presumption that even when the burden is high, all suspected criminals are entitled to a fair trial before they are punished by the government for their alleged crimes. But there have always been two exceptions to that presumption that most people find reasonable. The first is that law enforcement may use force, including lethal force, to interrupt a crime in process. We assume the burden of proof is relaxed in that environment, because its literally impossible to adjudicate a fair trial in the middle of a crime. And the second are acts of war, where the government can act against declared enemies of the country. We can't hold a trial for each individual enemy soldier we come across before shooting at them. The question is whether al-Qaeda is a criminal organization or a political one that can be legitimately considered a national enemy.

      Of course, even in times of war we do not generally assassinate the political leaders of the enemy; there is a notion that even an enemy country has a civilian population and a military. But its unclear to me that rule generally applies to al-Qaeda, as they do not have very much non-military infrastructure (besides financing). I would be uncomfortable with targeting al-Qaeda lawyers or bankers or spokespersons. But I'm not particularly disturbed by targeting of people directly involved in the planning or execution of terrorist activities.

      I recognize that's not a particularly popular opinion, and its more nuanced than can easily be articulated. For example, I don't consider the Boston bombers to be anything but (alleged) criminals entitled to the full legal rights of the legal system. Unless contradictory information becomes known, whether they committed a terrorist act and whether they sympathize with or even claim membership in a terrorist organization, if there's no proof they were actually acting as agents of that organization, any US citizen acting within the borders of the United States is still entitled to full legal rights no matter how heinous their alleged acts. I just don't think al-Awlaki acted in a manner consistent with being entitled to those same protections.

      • Re: (Score:3, Insightful)

        by Anonymous Coward

        I just don't think al-Awlaki acted in a manner consistent with being entitled to those same protections.

        Wrong. No matter what group he was part of, he's still a US citizen. He's entitled to all the same protections, and the constitution says *nothing* that says otherwise.

      • Re:Yeah sure (Score:4, Informative)

        by sjames (1099) on Monday June 23, 2014 @11:48PM (#47303497) Homepage

        We are supposed to make the presumption that even when the burden is high, all suspected criminals are entitled to a fair trial before they are punished by the government for their alleged crimes. But there have always been two exceptions to that presumption that most people find reasonable. The first is that law enforcement may use force, including lethal force, to interrupt a crime in process. We assume the burden of proof is relaxed in that environment, because its literally impossible to adjudicate a fair trial in the middle of a crime. And the second are acts of war, where the government can act against declared enemies of the country. We can't hold a trial for each individual enemy soldier we come across before shooting at them. The question is whether al-Qaeda is a criminal organization or a political one that can be legitimately considered a national enemy.

        Not quite. No police shooting is a punishment for an alleged crime, it is a right to self defense (and by extension, the defense of innocents) being exercised. As such, it is only legal if there is a current credible threat (for example, the suspect draws a gun and moves to take aim at someone) If the suspect survives, they will still face a trial for the original charges (because the shooting was not punishment for the alleged crime).

        Incitement of future violence or even planning future violence don't meet the immediacy necessary to use lethal force in self defense. In those cases, arrest is permitted with a speedy public trial to follow.

        If we want to claim that the activities constitute joining a foreign military (and they might), due process still requires an appropriate hearing to determine that he has surrendered his citizenship.

      • by s.petry (762400)

        You are close, but the Bill of Rights states that lethal force may need to be used to protect the public from eminent danger. Not "just because a cop feels like it" (which we seem to have an awful lot of lately).

        Anwar al Awlaki may have been making videos telling people that they should do things to the US, but that is most certainly not presenting any eminent danger. Even if he was building an army until he starts gunning for Americans he is fine to do so. Hell, the US helps to arm and train militants t

  • by Assmasher (456699) on Monday June 23, 2014 @05:42PM (#47301199) Journal

    ...amendments to the Constitution?

    Obama is turning out to be just as bad as the Neo-Cons when it comes to "protecting us from ourselves."

    • by Bartles (1198017) on Monday June 23, 2014 @05:44PM (#47301215)
      Worse, actually. They never did this.
      • by ArcadeMan (2766669) on Monday June 23, 2014 @05:49PM (#47301257)

        Or you just never heard about it.

        • by reanjr (588767)

          Which means GOP never tried to legitimize their illegal actions, making it more difficult to follow suit in the future. Obama meanwhile wants to throw open the oppression floodgates.

        • The government hides their dirty laundry when they are afraid you might find out. People hold back when they are afraid of getting caught. Now they are not afraid of you, so it doesn't matter if they get caught.
      • by Assmasher (456699)

        They did, actually.

        The CIA killed a 'terrorist' despite knowing that a U.S. citizen, Kamal Derwish, was in the vehicle at the time.

        Apparently before 2002 there was a 'secret finding' that you could assassinate U.S. citizens who the government believed were aiding Al Qaeda.

        That f***ing a**hole Bin Laden won the minute we started destroying our own constitution.

        • the minute we started destroying our own constitution

          Are those parts, perhaps, untenable in some situations?

          Example: If you're some sort of murdering loon with a predisposition to blow up schools in not-Americania where you have been living for several years, then...

          If you're a "U.S. citizen", you should be captured alive and tried properly - in the U.S., of course - enjoy all the protections provided by the law, and if you're very lucky you get to be relatively comfortable while waiting to hear if you get

          • by sumdumass (711423) on Monday June 23, 2014 @08:02PM (#47302331) Journal

            You should find it fascinating. Outside of moral grounds, there are bonds that empower the government of the US that also places limits on the government. One of those limits is the right to due process when you are in US jurisdiction. A US citizen is in US jurisdiction wherever they are. A terrorist or even a school teacher who looks like a terrorist in another country might not be. Put those same people in the US, and they have the same right to due process.

            Now right may be the wrong words here. The bonds that empower the federal government, the Constitution, forbids the government from denying due process to "we the people" except in a narrow window in which habeas corpus can be suspended- but that requires custody of the person and does not allow extrajudicial punishment outside of holding a person.

            So no matter how contrived they can make an excuse to execute a foreigner on foreign soil, the government is expressly forbidden to do so on a US citizen who has not been afforded due process or is not showing an imminent threat to others. Of course in one of these instances, it seems to be collateral damage. It would be like a cop shooting at a suspect shooting other people and in the process killing a citizen with a stray bullet 2 blocks away. Not a criminal act, but the state is still responsible.

        • That f***ing a**hole Bin Laden won the minute we started destroying our own constitution.

          So he won around 200 years ago? Our Rights have been eroding since day one :-/

        • by Bartles (1198017)
          Kamal Derwish was not the target. Did the CIA know he was in the car? Is George Tenet a neo-con?
          • by Assmasher (456699)

            According to the Washington Post the CIA knew he was in the car. Several news outlets report this (although that could be parroting the Washington Post); however, several early reports about the attack appear to show the CIA proud that they killed Derwish as well (although that quickly changed after people got wind that he was an American.)

            Apparently there was a 'secret finding' making this ok back in 2001/2002.

            George Tenet is a yes man.

            • by Bartles (1198017)
              Nice job, skirting around the relevant points. If that's the best you can offer, then you failed to back up your original statement.
      • This is an interesting case.
        First: "Attorney General Eric Holder last year outlined a three-pronged justification for targeted killings of a U.S. citizen who is a leader of al Qaeda: The suspect must pose an imminent threat, capture must be infeasible, and the strike needs to adhere to applicable war principles."

        Hmm...
        Imminent threat: IE People are going to be killed if we don't take him out. Same justification for killing a US Citizen(or anybody else) within the USA without trial.
        Capture Infeasible: See

        • by s.petry (762400)

          This is unconstitutional, period. No person shall be punished for any crime without a trial, read your Bill of Rights. There is no exception clause for US Citizen, it's all people. Them claiming "We think he's going to do something" does not even meet their own criteria. Should we all post on Facebook that Angelina Merkel is going to bomb a post office so that she can be killed by a drone? Yes, that is exactly why they killed the person in question. No proof of any plans, just that they believed it wa

          • by mythosaz (572040)

            al-Aulaqi declared himself an enemy combatant and a member of a group which we are at war with, which Congress has authorized "necessary and appropriate" force against.

            So, now that we have AUMF, we make sure that the DOD played by the rules of war -- check.

            And finally, since it's illegal (generally speaking) to kill people, we make one last check to see if it's "murder" to kill a US citizen when they switch sides in a war. ...turns out it's not.

            Boom.

            • "al-Aulaqi declared himself an enemy combatant and a member of a group which we are at war with"

              Did he? How do you know?

              • by mythosaz (572040)

                How do you know?

                Maybe the whole going to Yemen, hanging out with Fahd al-Quso and taking up a leadership role in the AQAP thing?

                • But all of this information comes from the same government that executed him. Its very likely he was involved, but did his involvement rise to the level of a capital crime? Is there even a death sentence for conspiracy to commit murder?

                  • Common mistake, but the important thing to note is that he isn't being punished. He's being killed in the pursuit of war, authorized under article 1, section 8 of the constitution: "To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;"

                    As such "but did his involvement rise to the level of a capital crime? Is there even a death sentence for conspiracy to commit murder?" are two irrelevant questions. As a member of the opposing military faction that the

    • by Scutter (18425)

      Well, if you live within 100 miles inside the boarder, you have no Rights anyway. Stands to reason it would be even more so outside the border.

    • by radtea (464814)

      The memo cites case law to justify the suppression of 4th and 5th amendment rights. For example:

      at least where high-level government officials have determined that a capture operation overseas is infeasible and that the targeted person is part of a dangerous enemy force and is engaged in activities that pose a continued and imminent threat to U.S. persons or interests the use of lethal force would not violate the Fourth Amendment. and thus that the intrusion on any Fourth Amendment interests would be outweighed by "the importance of the governmental interests [that] justify the intrusion," Garner, 4 71 U.S. at 8, based on the facts that have been represented to us.

      and:

      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 and detained in the United States who wished to challenge the government's assertion that he was a part of enemy forces, explaining rbat "the process due in any given instance is determined by weighing 'the private interest that will be affected by the official action' against the Government's asserted interest, 'including the function involved' and the burdens the Government would face in providing greater process." 542 U.S. at 529 (plurality opinion) (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).

      So if I'm reading this correctly, 4th amendment rights don't apply if the government deems that its interests outweigh yours, and 5th amendment rights don't apply if the the government deems that its interests outweigh yours or the government asserts that it would be excessively burdensome to give you due process.

      The only reasonable interpretation of this is that the government of the United States has become

    • by s.petry (762400)
      What on Earth made you think he was not on that same team? The first term of "Hope and Change" was not enough to prove he is nothing more than a liar?
      • by Assmasher (456699)

        The first term of "Hope and Change" was not enough to prove he is nothing more than a liar?

        Sorry, Republicans handed him the perfect excuse so that objective parties will really never be able to know given they basically said f*** you to anything the guy even thought about irrespective of whether or not it was good for America...

        • Um, this is the first term where he had super-majorities in both house and Senate? Where they could have passed absolutely any partisan crap they wanted? How we got Obamacare?

          What exactly would it take for the Dems to "own it"?

    • by pla (258480)
      How does this not violate the 5th and/or 14th amendments to the Constitution?

      Short answer: They have stopped even caring about the pretense of observing constitutional limitations on government abuses of power.

      I wouldn't blame Bush or Obama, however - The process started before the ink even dried on the constitution, though it didn't get really bad until Lincoln - that great cultural icon - took us on the first big downward slide with his suspension of habeas corpus. More recently, Johnson takes the c
    • What's worse about him is that he also lied about it.

      You can say about Bush whatever you want, but he was always honest about it. He was an asshole and he never hid it. Ok, one may argue that he was too stupid to hide it, but ... hell, is that all you may choose from? Is that all the US of A can get, either a dumb asshole or a sly one?

      • by Assmasher (456699)

        You can say about Bush whatever you want, but he was always honest about it

        Honest about what? Why we should invade Iraq? That we aren't torturing anyone? That the CIA didn't mean to kill that American citizen?

        Obama is a worse disappointment in this regard simply because everyone with half a brain should have known that as a Neo-conservative Bush would behave that way. Obama was supposed to be a return to constitutional principles. Now he might as well be making security policy with Cheney (there's a scary thought, lol...)

        • OK, "honest" would be asking a bit much from a politician. Let's rather say he was "upfront" with what he had in mind.

          Or rather, with what his advisers had in mind. I doubt there was much on his mind, actually.

        • Anyone who bothered to check Obama's voting record should have known what he would do in office. The Republican Bush was succeeded by the Republican Obama, and nothing changed.
  • Lovely Latin (Score:5, Informative)

    by IonOtter (629215) on Monday June 23, 2014 @05:47PM (#47301235) Homepage

    Ex post facto ex parte: We think you're guilty of a crime, so we're going to kill you and come up with the justification later.

  • Murder (Score:3, Insightful)

    by Anonymous Coward on Monday June 23, 2014 @05:59PM (#47301319)

    Why doesn't anyone use the correct term.

    • by Virtucon (127420)

      Premeditated Murder, a Capital crime punishable by death in some states.

    • It would probably not be politically correct.

  • what is so special (Score:3, Insightful)

    by Anonymous Coward on Monday June 23, 2014 @06:09PM (#47301407)

    about striking an us citizen as opposed to say an Iraqi, an Albanian, a German, or a Mexican? They do not seem to have problems with most Arab countries. Not people? Not deserving a trial?

  • by mythosaz (572040) on Monday June 23, 2014 @06:38PM (#47301709)

    The PDF is interesting, but essentially boils down to:

    Americans killing Americans is sometimes justified.

    • the "Because we say so." part.

      You can't vote out the Gestapo.

      • by mythosaz (572040)

        the "Because we say so." part.

        Hardly. Did you read the PDF? You might not agree with the assessment, but it's a LOT, LOT more than 'case we said so. It's a fairly clear step-by-step discussion of every point along the decision tree. Fascinating, actually.

        ...although I suppose you get a majority (or super-majority) of congress to agree on anything, and it's "because we said so."

  • Since when does a fucking bureaucrat, an acting assistant attorney general put some shit like this together and allows a capricious administration to decide who lives and dies, especially if they're a citizen of this country. Yes it was for our esteemed retard Eric Holder who ignores laws he doesn't agree with but that's beside the point. The US Military killed a US Citizen here without due process under the guises that it was "justified." Shit, If any of us tried that the judge would laugh at us and loc

  • Good new everyone!

    All you have to do to claim your FREE drone strike is to simply mention the word "Allah" and criticize US policy in a comment below! It's that easy! Here at the Homeland Department, we've reduced the amount of government red tape you need to get a drone strike on your house. Annoying procedures like "trials" and "juries" have been removed -- saving you time and money!

    But wait, there's more! Reply in the next 10 minutes, and we'll even throw in a 2nd drone strike for your family! That's

  • Whenever this sort of thing comes up I always wonder ... was the Civil War unconstitutional? That also involved military action against US citizens, and presumably the Union didn't hold trials for each individual Confederate soldier before allowing anyone to shoot at them.

    What are the significant differences, if any?

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