Missing from the Awlaki memo: Almost everything that really matters

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Missing from the Awlaki Memo: Almost everything that really matters

Published in the Maryland Daily Record July 17, 2014

In a development that surprised many, the Second Circuit recently overturned the ruling of Judge Colleen McMahon of the Southern District of New York blocking the release of the July 16, 2010 Office of Legal Counsel memo that blessed the 2011 CIA drone operation that cost Anwar al Awlaki his life. I commented in these pages a year ago February on Judge McMahon’s rejection of the efforts of the ACLU to obtain the memo under the Freedom of Information Act, even though various members of the Obama Administration had been playing peekaboo with publicity about the drone attack and its rationale. In reversing Judge McMahon, the Second Circuit concluded that most of secrets in the memo had in fact been revealed by members of the Administration, and that some of the exceptions to the government’s obligations under FOIA had therefore been waived. Attached to the ruling was the redacted memo itself.

After the Redactions

The redactions left what appeared to be the bulk of the document. But critically, what the Second Circuit found had not been waived, and what was consequently redacted, was any mention of the intelligence which led to the conclusion that Awlaki was where he was (Yemen, as we all know) and what made him an appropriate target. Basically, the discussion of Awlaki’s activities that supposedly made him an appropriate target, and the elimination of other methods of other methods of dealing with him, are missing. We can see redaction spaces that probably contain such material, but, even assuming that they are devoted to nothing else, it’s obvious that that part of the discussion is cursory.

In short, although 90% of the memo is probably there, what’s missing is what we really want to see. What’s there is mostly trivial. Much ink is spilled over whether killing Awlaki constitutes the “foreign murder of United States nationals” under a section of the U.S. Code permitting prosecutions for that offense. Obviously, as the memo laboriously demonstrates, it isn’t murder when done on “public authority.” When the hangman does his work, that’s not murder.[1] Nor is it murder when a U.S. soldier attacks anyone as part of combat with another army.

The closest we come to a discussion of the real issues involved is the part that discusses whether the Authorization of the Use of Military Force (“AUMF”) passed after 9/11[2] covers the contemplated killing. If you focus only on the words of the AUMF, the answer is potentially yes. Awlaki was part of an offshoot of Al Quaeda, and Al Quaeda was the “organization” that “planned” 9/11. A Hellfire missile launched from a drone is “force.” The U.S. may use “force” against members of “organizations” that “planned” 9/11. The big question is whether the “force” is “necessary and appropriate.” The most important part of the memo addresses that question.

A Shadow of Its Former Self

Wholly missing from the text as we have it is any discussion of the facts establishing whether it was “necessary” or “appropriate” to target Awlaki. Surely it cannot be enough to say that a latter-day member of an offshoot of an organization that nine years earlier (when Awlaki was only a graduate student at George Washington University and part-time imam – albeit one who knew three of the 9/11 hijackers)[3] was much different is by merest definition of the word “organization” an appropriate target. A lot had changed. As Fawaz Gerges, a professor at the London School of Economics and author of a book on Al Quaeda, told PRI, “the Al Quaeda of Osama bin Laden no longer exist[s] as an effective organization. It’s gone. It’s dead. It’s a shadow of its former self.”[4]

If that’s true, how does the AUMF legitimate killing someone for his roundabout connection to this “shadow of its former self” organization? Moreover, someone who continues to be protected under Fourteenth Amendment due process, as the memo concedes? Right at this juncture in the discourse, the redactions become thick. Whether the killing is “appropriate” within the meaning of the AUMF must surely hinge on Awlaki’s own activities. But of those, we are told only that “a decision-maker could reasonably decide that the threat posed by [Awlaki’s] activities to United States persons is ‘continued’ and ‘imminent.’”

Sorry, not good enough. There are threats and there are threats. If Awlaki were planning an armed invasion of the United States or was coordinating a military attack on U.S. forces (and no one has ever suggested this had been true), that would make him an enemy combatant. By contrast, if he were planning to blow up civilian airliners (and we know he knew some people who were making such plans), that would make him only a terrorist, and hence only a criminal. (And it should be emphasized, there was no public proof of Awlaki’s own involvement in terror planning, though there were many accusations.) If he were merely glorifying terrorism on the Internet, which is mostly what we know he was doing, that might leave him somewhere in the troubled territory between mere exercise of First Amendment rights and treason. (And we didn’t execute Tokyo Rose, even when we convicted her of treason for somewhat similar behavior.)

In any event, there is absolutely no proof in the released part of the memo that Awlaki was part of a military effort against U.S. citizens, let alone any activities that clearly warranted the criminal death penalty. And absent such proof, it could never, consistent with the law of nations, be appropriate to use military means to kill him, and, therefore, I would submit, would never be an “appropriate” use of “force” within the meaning of the AUMF.

The Dilemma

I appreciate the dilemma that the prohibition causes. The memo says, in effect, that we’d rather arrest him and try him than kill him without trial, but we don’t have the means to arrest him. You know what? That doesn’t make criminal due process requirements go away or justify using military means and hardware to solve a police problem.[5] Tellingly, in trying to leap the barrier due process places in the path of this probably illegitimate solution, the memo references the Mathews v. Eldridge balancing test employed by the Supreme Court in addressing the claim of Yaser Hamdi, a U.S.-born detainee (initially at Guantanamo, then at a naval brig in South Carolina), that he should receive some sort of hearing on his claim not to have been an enemy combatant. Mathews says that due process is flexible, in light of the circumstances. But in the Hamdi case, the Supreme Court agreed, applying Mathews, that Hamdi was entitled to a hearing, albeit one that occurred after he had already been interned.

But what kind of meaningful trial could Awlaki have received if the government were allowed to kill him first, and try him afterwards? Once you concede Awlaki had a due process interest in his life – and one always has a due process interest in one’s life – then a post-deprivation trial must by definition have failed the Mathews test. Mathews never yields a result where the amount of due process owed to the private citizen is zero, both before and after deprivation of the due process interest. That’s why death penalty appeals are so long and tortuous: if you don’t get it right before you execute the defendant, there is no opportunity to correct it.

Yes, adhering to due process requirements in this difficult situation might well have meant the death of innocents, though it is interesting how little public proof there was that Awlaki was anything more than a Tokyo Rose for the era of the Internet and jihad. But there are much larger risks to our entire political order when we wipe away the distinction between law enforcement and warmaking, and when we accept a reading of Mathews that yields a zero due process result. Plenty of innocents would die in such a world as well.

[1].          An abomination, but not murder.

[2]. “… [T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001…” AUTHORIZATION FOR USE OF MILITARY FORCE, PL 107-40, September 18, 2001, 115 Stat 224.

[3]. All facts about Awlaki in this piece are taken from the Wikipedia entry on him, as accessed July 11, 2014.

[4]. For a somewhat different perspective, see this article by Joshua Frost in The Atlantic in 2012. But Frost seems to concede that central Al Quaeda does not directly control most of its offshoots. As the OLC memo acknowledges, Awlaki was closely affiliated with Al Quaeda in the Arabian Peninsula. Apparently AQAP was not under the direct control of central Al Quaeda.

[5]. I have not discussed here (because the memo devotes no attention to the question) the rules regarding police use of force in apprehending suspected felons. But assuming (contrary to fact) that an arrest of Awlaki had been attempted, deadly force would only have been appropriate, if at all, had he attempted to flee. 6A C.J.S. Arrest § 53. It appears that military forces have been occasionally used to effect arrests, e.g. most recently in the capture of Ahmed abu Khattala, suspected in the Benghazi killings, by naval personnel. I would presume that, under those circumstances, the same deadly force rules would apply.

Copyright (c) Jack L. B. Gohn

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