A secret Obama administration memorandum detailing the legal justification for a 2011 drone strike in Yemen that killed New Mexico-born cleric and al-Qaeda propagandist Anwar al-Awlaki has been released.
The ACLU and the New York Times sued for its release, and NYT’s Editorial Board has swiftly expressed its displeasure for the legal rationale used for dropping bombs on American citizens.
The Times states that “one might have expected a thoughtful memo that carefully weighed the pros and cons and discussed how such a strike accords with international and Constitutional law.”
“Instead, the memo turns out to be a slapdash pastiche of legal theories — some based on obscure interpretations of British and Israeli law — that was clearly tailored to the desired result [emphasis added]. Perhaps the administration held out so long to avoid exposing the thin foundation on which it based such a momentous decision.”
The legal memo is dated July 2012, meaning that it was published eight months after the first known attempt to Awlaki in December 2009.
The Times explains that the government’s main theory relies on the “public authorities justification,” which is a legal concept for emergency situations that is the reason “why fire trucks can break the speed limit and police officers can fire at a threatening gunman.”
The paper of record notes that the concept is “dangerous if expanded because it could be used to justify all kinds of government misdeeds.” Consequently, much more about the decision — like how the government knew Awlaki was planning “imminent” mayhem and no serious due process was possible — should be transparent.
The Times echoes Israel Defence Forces Lt. Col. (Ret.) Amos N. Guiora, who served for a time as the legal adviser to the Gaza Strip military commander. In April 2012, Guiora stated: “I believe the al-Awlaki killing was lawful, I am deeply troubled by the broad rationale articulated by the Obama administration. … [The] administration failed to articulate exactly how, beyond mere speech, al-Awlaki was connected to terrorist activity. The mere ‘likelihood’ of membership in a terrorist organisation is highly problematic.”
Furthermore, while The Times notes that the memo does not question whether the Defence Department or CIA would follow international law, Guiora explained that the challenge in the targeted killing paradigm “is to identify the specific individual deemed a legitimate target and to implement the policy in a manner reflecting respect for international law.”
Adding a dark subext, the Obama administration has not explained the drone strike that killed Awlaki’s 16-year-old American son, Abdulrahman. The closest thing to a justification came from former White House Press Secretary Robert Gibbs, who said that “I would suggest that you have a far more responsible father if they’re truly concerned about the well being of your children.”
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