In 2011, the United States engaged in drone strikes in Yemen that killed Anwar al-Awlaki, an al Qaeda leader, and al-Awlaki's son -- both U.S. citizens. The killing was authorized by a Department of Justice Office of Legal Counsel memorandum ("OLC Memo"), examining the legality of such an authorized killing -- that is, how U.S. criminal law and Constitutional law applied to the killing of U.S. citizens abroad who are deemed "enemy combatants."
Two writers for The New York Times, along with the ACLU, each submitted Freedom of Information Act requests related to documents that authorized the killing of U.S. citizens by drone strike. The Second Circuit agreed that redacted copies of the memorandum should be released back in April, and the Government later sought rehearing en banc.
Yesterday, after years of waiting, the Second Circuit ordered the release, and released a redacted copy of the memo.
The OLC Memo
The controversial OLC Memo (Appendix A of the Amended Opinion) was co-authored by David Barron, newly confirmed Judge to the First Circuit Court of Appeals, whose likelihood of confirmation was called into question because of this very memo. The memo condoned the killing of al-Awlaki because he was "engaged in hostilities against the United States," reports the Los Angeles Times. Pursuant to congressional authorization after the 9/11 attacks, the memo reasoned that since al-Aklaki was an "'operational leader' of an 'enemy force,' it was legal for the Central Intelligence Agency to attack him with a drone even though he was a U.S. citizen," reports Reuters.
The killing of a U.S. citizen brings up many constitutional concerns, notably issues of due process under the Fourth Amendment. However, among the many redactions in the memo, there are arguments as to why this killing would not run afoul of the Fourth Amendment, reports The Washington Post. Instead, the memo states, under the circumstances of the particular case of al-Awlaki, "the Constitution would not require the government to provide further process," such as notice and a hearing.
Long Overdue Transparency
While some are glad the memo has finally been released, there are definitely critics. Attorney for the Center for Constitutional Rights Pardiss Kebriaei stated, "the government's drone killing program is built on gross distortions of law." He added, "This forced transparency comes years late, long after the memo was drafted and used to justify the premeditated killing of a U.S. citizen without trial and far from any battlefield."
Adding to these concerns is Jameel Jaffer of the ACLU, who stated, "I think that this memo is a memo [that] could very easily be used by future administrations in ways that none of us would want it to be used." Let's all hope that it's not.
ACLU Demands Waterboarding Docs, CIA Claims FOIA Request Exemption (FindLaw's U.S. Second Circuit Blog)
- CIA Can Withhold Detainee Photo, Waterboarding Cables (FindLaw's U.S. Second Circuit Blog)
- Ashcroft May Be Pulled Back into 9/11 Detainee Litigation (FindLaw's U.S. Second Circuit Blog)