Sunday, October 09, 2011

The Anwar al-Awlaki and Samir Khan assassinations (6)

The invaluable Charlie Savage has an important new report on President Obama's assassination policy, Secret U.S. Memo Made Legal Case to Kill a Citizen New York Times 10/08/2011. Citing as his sources "people who have read the document," he reports:

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. [my emphasis]
According to this reading, the Administration may have violated its own highly dubious (to put it way too generously) justification for the assassination, which in Savage's reporting allowed the hit hit only if capture were not feasible.


The qualification that Savage's sources gave him that the Awlaki kill memo "did not establish a broad new legal doctrine to permit the targeted killing of any Americans believed to pose a terrorist threat" is a tendentious qualification on the face of it. It authorized the assassination of an American citizens without trial, formal charges or any kind of legal process; I don't consider the CYA legal memo Savage is reporting to be legal process, because it's clearly not. But if the President can order the murder of an American citizen under such conditions, it doesn't matter if the Administration calls it "a broad new legal doctrine". If it can claim the legal right to murder Awlaki in these conditions, it can simply state that anyone is an imminent terrorist threat and order them assassinated.

Congress should do a serious investigation of this and demand the appointment of a special prosecutor. Neither is likely to happen, since the Republicans all-but-unanimously support such an assassination option for the President and because the Democrats in Congress either support it or will be unwilling to challenge the Democratic President on it. But that shouldn't stop us from saying that it should be done. Because this issue isn't going away any more than the issue of the torture crimes of the previous Administration.

Savage writes, "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." It just says the President can assassinate him. Why bother analyzing the evidence when the President has decided the target is somebody who needs killin'?

It's particularly grim to see just how thin their legal justifications are for disregarding the Fourth Amendment guaranteeing a right to trial:

Then there was the Bill of Rights: the Fourth Amendment's guarantee that a "person" cannot be seized by the government unreasonably, and the Fifth Amendment's guarantee that the government may not deprive a person of life "without due process of law."

The memo concluded that what was reasonable, and the process that was due, was different for Mr. Awlaki than for an ordinary criminal. It cited court cases allowing American citizens who had joined an enemy's forces to be detained or prosecuted in a military court just like noncitizen enemies.

It also cited several other Supreme Court precedents, like a 2007 case involving a high-speed chase and a 1985 case involving the shooting of a fleeing suspect, finding that it was constitutional for the police to take actions that put a suspect in serious risk of death in order to curtail an imminent risk to innocent people.

The document's authors argued that "imminent" risks could include those by an enemy leader who is in the business of attacking the United States whenever possible, even if he is not in the midst of launching an attack at the precise moment he is located.
I expect we'll see some professional legal commentary from Constitutional attorneys and scholars on this. Not that it will matter to the authors of this Mob-lawyer-like legal memo. Because it's not at all clear that Awlaki was part of anything that could be considered legally an enemy army; there was no police chase or evidence (so far as we know) that Awlaki presented an imminent danger to anyone other than Samir Khan, and that only because Khan risked becoming a casualty of the CIA's assassination strike on Awlaki; and the definition use of "imminent" there essentially means "not imminent".

Such is the level of Constitional reasoning it takes to authorize an Administration led by a Constitutional law expert to assassinate an American citizen without the barest pretence of due process of law.

There's no way this is anything other than a very bad precedent that will be further abused if it is not legally and definitively reversed.

On whether capturting Awalki was feasible, Savage writes:

It is possible that officials decided last month that it was not feasible to attempt to capture him because of factors like the risk it could pose to American commandos and the diplomatic problems that could arise from putting ground forces on Yemeni soil. Still, the raid on Osama bin Laden’s compound in Pakistan demonstrates that officials have deemed such operations feasible at times.

Last year, Yemeni commandos surrounded a village in which Mr. Awlaki was believed to be hiding, but he managed to slip away.
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