The Obama administrations secret legal memorandum that opened the door to the killing of Anwar al-Awlaki,the American-born radical cleric hiding in Yemen,found that it would be lawful only if it were not feasible to take him alive,according to people who have read the document.
The memo,written last year,followed months of extensive interagency deliberations and offers a glimpse into the legal debate that led to one of the most significant decisions made by President Obama to move ahead with the killing of an American citizen without a trial.
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 Awlakis 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 Obama administration has refused to acknowledge or discuss its role in the drone strike that killed Awlaki last month and that technically remains a covert operation. The government has resisted growing calls that it provide a detailed public explanation of why officials deemed it lawful to kill an American citizen,setting a precedent that scholars,rights activists and others say has raised concerns about the rule of law and civil liberties.
But the document that laid out the administrations justification a roughly 50-page memorandum by the Justice Departments Office of Legal Counsel,completed around June 2010 was described on the condition of anonymity by people who have read it.
The legal analysis,in essence,concluded that 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 US and Al Qaeda and posed a significant threat to Americans,as well as because Yemeni authorities were unable or unwilling to stop him.
The memorandum,which was written more than a year before Awlaki was killed,does not independently analyze the quality of the evidence against him. The administration did not respond to requests for comment on this article.
The memo was principally drafted by David Barron and Martin Lederman,who were both lawyers in the Office of Legal Counsel at the time,and was signed by Barron. The office may have given oral approval for an attack on Awlaki before completing its detailed memorandum. Several news reports before June 2010 quoted anonymous counterterrorism officials as saying that Mr. Awlaki had been placed on a kill-or-capture list around the time of the attempted bombing of a Detroit-bound airliner on December 25,2009. Awlaki was accused of helping to recruit the attacker for that operation.
The office considered possible obstacles and rejected each in turn.
Among them was an executive order that bans assassinations. That order,the lawyers found,blocked unlawful killings of political leaders outside of war,but not the killing of a lawful target in an armed conflict.
A federal statute that prohibits Americans from murdering other Americans abroad,the lawyers wrote,did not apply either,because it is not murder to kill a wartime enemy in compliance with the laws of war. But that raised another question: would it comply with the laws of war if the drone operator who fired the missile was a CIA official,who wore no uniform? The memorandum concluded that such a case would not be a war crime,although the operator might be in theoretical jeopardy of being prosecuted in a Yemeni court for violating Yemens domestic laws against murder,a highly unlikely possibility.