Better late than never, Americans have been given a redacted version of a Justice Department memo that offers a legal rationale for targeting Anwar al-Awlaki, the U.S.-born al-Qaeda figure who was killed in a drone strike in Yemen in 2011. The document was made public this week, after the Obama Administration decided not to appeal a court order that it be disclosed.
The basic legal rationale for targeting al-Awlaki has long been known. The 2nd U.S. Circuit Court of Appeals ordered the memo’s release because so much of the argument has seeped into the public domain, as the result of speeches by administration officials and the publication last year of a 16-page white paper. Still, the release of the 2010 memo prepared by then-Justice Department official David Barron — now a federal judge — is an important, if overdue, exercise in transparency.
The memo is persuasive to a limited degree. It plausibly concludes that under the Authorization for Use of Military Force passed by Congress after 9/11, the military or Central Intelligence Agency may target a U.S. citizen abroad who has joined the enemy and whose activities pose a “continued and imminent” threat to Americans. But the memo doesn’t precisely define “imminent.”
Other statements by administration officials suggest they employ an ominously elastic interpretation of that term. The white paper said the government may target an American for death even in the absence of “clear evidence that a specific attack on U.S. persons or interests will take place in the immediate future.”
Then there is the question of whether the government should try to capture a U.S. citizen who is suspected of terrorism, instead of killing him. The Barron memo approves of assassination when capture is not impossible but merely “infeasible.” That is too vague.
The version of the memo released by the appeals court this week is missing several pages. They apparently include evidence that al-Awlaki had ceased being a propagandist for al-Qaeda and had participated in planning attacks.
Now as before the release of the memo, Americans must take on faith that al-Awlaki had to be killed. That’s unsatisfactory.
When al-Awlaki was killed, we argued that if the nation is going to engage in state-sponsored assassination of U.S. citizens, at the minimum it must explain why someone has been targeted. Welcome as the release of the Barron memo is, it doesn’t meet that standard.