DOJ's Defense of Drone-Killing American Alleged Terrorist Without Trial: Because War


Anwar al-Awlaki
Credit: Muhammad ud-Deen

Today, in response to lawsuits filed by the American Civil Liberties Union (ACLU) and The New York Times, the Obama administration has finally released an important memo written by the Department of Justice explaining the legal authority to use drones to sometimes kill Americans without the benefit of a trial first. Anwar Al-Awlaki was an American citizen and also allegedly a terrorist organizer for Al Qaeda, killed in a drone strike in 2011 in Yemen.

The administration had been fighting the memo's release and losing. Today a redacted version of the memo was released. The ACLU has it posted here (the memo actually begins on page 67, following a lengthy court ruling). The "too long; didn't read" version: The Authorization to Use Military Force (AUMF) that gave us wars in Iraq and Afghanistan gave the administration permission to pursue and capture or kill members of Al Qaeda; Al-Awlaki was a member of Al Qaeda; therefore, killing was legal.

Al-Awlaki's Fourth Amendment right to due process is brought up toward the end. The Justice Department argues here that capturing Al-Awlaki was infeasible, yet he presented a threat to the United States as "continued" and "imminent," therefore lethal force was justified.

What sort of continued and imminent threat did Al-Awlaki present from Yemen? Don't know. That part is all redacted. The justification of why the CIA pursued this course of action is also almost entirely redacted. Even with the memo, we actually don't learn anything new from a leak of a similar memo NBC published last year. We don't know why Al-Awlaki was considered to be an imminent threat and why this drone strike was the only way the Obama administration believed it needed to deal with him.

Also note that the memo is entirely only about the execution of Al-Awlaki. The United States has killed four Americans abroad with drone strikes, including Al-Awlaki's teenage son. The son was not purposefully targeted, but was killed two weeks after his father's death after running off to Yemen. He had no known connections to terrorism himself.

The ACLU, in a release, said it would push for more information to be made public:

"We will continue to press for the release of other documents relating to the targeted-killing program, including other legal memos and documents relating to civilian casualties." [ACLU Deputy Legal Director Jameel] Jaffer said.

"The drone program has been responsible for the deaths of thousands of people, including countless innocent bystanders, but the American public knows scandalously little about who is being killed and why."

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  1. Redacted Transparency

      1. for the win

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    1. Bush’s fault. Racist.

  2. “We will continue to press for the release of other documents relating to the targeted-killing program”

    Isn’t it great to have an organization which focuses on finding out what the government is doing?

  3. From the photo, I thought they had blown up Steven Demetre Georgiou Cat Stevens Yusuf Islam…

    1. Me too – glad I read comments before morning Cat’s passing.

      1. Are you mourning him this evening?

        1. Silly, you should’ve said “Mourning becomes Drake.”

  4. Remember, the FYTW clause isn’t just something we joke about here.

    1. Heh, ‘Fuck You That’s War’

  5. In the past some individuals have criticized the ACLU for taking hypocritical stands…

    I just want to note that not every organization is perfect and I, for one, appreciate the ACLU’s existence.

    1. The problem with the ACLU is that they claim to be protecting all of our civil liberties, when clearly they pick and chose based on their politics.

      1. Rand Paul does the same. I still like him.

        1. What did they do for Eddie Slovak?

      2. Unless they are actively trying to take away some civil liberties, why would you care? Them defending some of them is better than not defending any of them.

        1. it’s the Team-based selectiveness that creates the trouble. The group set itself up that type scrutiny by adopting the name it has.

        2. Sometimes they do actively try to take away some civil liberties?

          1. They’ve been pretty bad in recent years on campaign finance, so yes.

        3. Episiarch|6.23.14 @ 4:22PM|#
          “Unless they are actively trying to take away some civil liberties,”

          Pretty sure they support limits on speech, so, yes, they are actively doing that.

          1. Well…they were balls deep in the suit against New Orleans over the gun seizures after katrina, except they weren’t.

            Wareagle has a point. I don’t see them doing anything that would not get done without them.

        4. They are indeed actively trying to take away some civil liberties; see the cases against the bakers and photographers who turned away gay weddings.

    2. Yeah but what have they done for us lately?

    3. My problem with the ACLU isn’t just the way they pick and choose.

      Its that they have bought (and even facilitated) the conversion of negative rights to positive rights. When they argue for a “positive right” (pick any forced-association case), they are undermining liberty, not advancing it.

  6. Isn’t “because WAR” the government’s answer to everything at this point? That’s why it frames everything in terms of war; war on drugs, war on poverty, etc. Because…war. See how easy that was?

    1. Now, Epi, you’re forgetting about taxes. Those “wars” don’t fund themselves, y’know.

    2. Just another way of saying “Because fuck you that’s why”.

  7. He gave up his right to due process by moving to another country and waging war on the US. The German-Americans who went back to Nazi Germany and joined the armed forces there did not deserve any special consideration, either. If this guy had stayed in the US, sure, arrest him and try him. But his actions and words spoke for themselves. He joined the side making war on us, and he died. Good.

    1. Where does the constitution explicitly authorize the war boners to make war overseas and kill the sons of those the war boners claim is an enemy?

      Stop. sucking. state. cock.

      1. One of the (few) legitimate actions of the state is to defend against outside aggression. Al Qaeda and related groups have declared (and are making) war on us. It’s simply not arguable. Al-Awlaki’s words and actions made it clear that he wasn’t an innocent bystander and he wasn’t a peaceful dissenter: he joined the other side in a war. This is not the government “claiming” he’s an enemy, with no evidence. There’s plenty of (unredacted) evidence.

        As for his son: yup, hanging out with jihadis can get you killed, regardless of what you may or may not believe or do.

        1. DUE PROCESS.

          No exception for the minor children of those who the state CLAIMS to be an enemy.

          Show us the irrefutable, unambiguous and unequivocal evidence justifying the murder.

          1. He had a long and unambiguous history as a supporter of Islamic terror. And note:

            The Yemeni government began trying him in absentia in November 2010, for plotting to kill foreigners and being a member of al-Qaeda. A Yemeni judge ordered that he be captured “dead or alive.”

            But I suppose you will find all that refutable, etc.

            1. And where is the mountain of evidence against Abdulrahman, his late son?

              1. His late son made the mistake of following his father on his jihad, and then got a ride with some Al Qaeda types. Bad move.

            2. Who, in their right mind, is going to credit a Wikipedia post which relies upon government allegations and sources as “irrefutable, unambiguous and unequivocal evidence” as I requested that you present?

              1. “Irrefutable, unambiguous and unequivocal” is of course an absurd standard, but the Wikipedia article has numerous links to a variety of sources. You can demand perfection, but even jury trials do not work that way.

                But it is “irrefutable, unambiguous and unequivocal” that the guy was a notable figure in preaching jihad against the US, and a number of the people he preached to became terrorists (successful or unsuccessful). That’s enough for me.

            3. No, I’ll tell you that without due process I don’t care.

        2. There’s plenty of (unredacted) evidence.

          The government has spewed forth many uncorroborated claims via the media. This is not fucking evidence.

          May the star chamber fuck you in the ass.

          1. Inapt. Star chambers are for domestic affairs, not for people who leave the country to make war against it. Big diff.

    2. Bull.
      Due process means the government has to show ME that they have the right to kill one of us. They can’t just do it because they CLAIM he ‘waged war on the US’.

      Due process means we need to rely on more than the Commander in Chief’s whims, and, as far as we know these guys were droned on the basis of nothing my President is willing to share with the people who elected him.

      Which means he could drone me tomorrow. Or you. All he has to do is claim (without any evidence) that we were waging war. I’m not willing to let my government get away with that. Opposition to that kind of unrestricted killing is what living in a free country is supposed to be about.

      1. Are you hanging out with jihadis in Yemen? I’m not. Then we are not going to be droned.

        It’s not “unrestricted killing.” The claim is not simply “waging war,” the claim is “waging war and being in a place inaccessible to law enforcement, because that place is filled with terrorists you are hanging out with.” That’s a very tiny number of Americans, as indicated by the number killed this way (four, in the nearly 13 years since 9/11). This is clearly not a particularly slippery slope.

        1. Yeah, and as you admit, it’s a claim, not evidence. It’s a claim, not a trial. It’s a claim, so nothing at all.

          Are you hanging out with jihadis in Yemen? I’m not. Then we are not going to be droned.

          You have no way to know that and pretending you do is dishonest.

          1. No, what is dishonest is to fail to make a distinction about how armed drones are being used. They are not being used in the US to zap anyone. They are not being used in Europe or anywhere we can get law enforcement or local cooperation. They are only being used to zap people who are otherwise out of reach, in places like Yemen and Pakistan. And even there, it’s happening with the approval of the governments involved (though they may say otherwise for domestic political purposes).

            1. They are not being used in the US to zap anyone

              You don’t know that. Stop acting like something that is probably true now will always be true forever.

              They are only being used

              Again, you cannot possibly know that so stop pontificating on it.

              1. If they are used this way in the US, I will object as much as anyone else here. There’s zero evidence that they have been.

                These are exceptional circumstances. There’s nothing contradictory or illogical with saying “It’s OK there, but only there.” It’s like having a police sniper take out a kidnapper holding someone hostage. I’m OK with that, but it doesn’t follow that I support police snipers taking out drunk drivers and litterbugs.

        2. Goddamn, Papaya you are missing the point. You keep saying he was hanging out with jihadis. How do you know that? Because the government told you so.

          What do you think the point of due process is?

          1. Just because the government says it doesn’t make it a lie. The guy has a long and undisputed (AFAIK) record. His own words and actions make it clear who he was. Do you think he was just an innocent preacher of jihad who just happened, by innocent chance, to mentor a bunch of people in Islam who (also purely by coincidence) became terrorists? Why do you think he was in Yemen? For the waters? Why do you think the Yemenis were after him? Were they just taken in by some sort of frame-up?

            Yes, I know what due process is for. I also know how Islamic terrorists operate, and what they want. In edge cases, I will trade a little due process for dead terrorists.

        3. Are you hanging out with jihadis in Yemen? I’m not.

          Prove it.

    3. There’s a difference between killing on an active battlefield and killing outside of an active battlefield. The only way your example makes sense is if you believe in the government’s version of the war on terror having a worldwide battlefield.

      1. In a war conducted by terrorists, the battlefield is indeed hard to define, but I have no problem defining it to include certain hotspots filled with Islamic terrorists, which are either not under the control of the local government, or under the control of a local government hostile to us. Yemen counts as one of those two. I would not be in favor of droning people in the US or France or most other places.

        1. Pretty sure he said so himself. This wasn’t some low-profile guy; there’s not a lot of ambiguity about what he was up to over there.

    4. he did no such thing. We have a system for dealing with treason, sedition, and other high crimes that does not involve summary execution based on the judgment of the chief executive.

      1. So your proposal would be, what? To send some LEOs to Yemen arrest him for trial? Clearly that’s not a practical option.

        Terrorists have discarded all laws of war. Our response should not be to similarly discard all of them, but some fudging around the edges seems appropriate, so I am disinclined to get overly legalistic about Americans killed by drones while associating with terrorists in overseas terror havens.

        1. Because if it’s “not practical,” then we get to ignore due process. That’s how good government works!

          Terrorists don’t care about law, so we should care a little less. Because they scare us!

          Because if the government says a religious fundamentalist on the other side of the planet making youtube videos is an “imminent danger,” then he MUST be, because you trust the government!

          And killing kids who happen to be around people the government claims are terrorists (because, remember, PapayaSF trusts the government!), then it’s the kid’s fault he’s dead, because the government says so!

          This thinking of yours requires a leftist’s faith in government.

          1. If you read the Wikipedia entry I posted above, you’ll see it’s a lot more than a few YouTube videos. What does he have to do, wear a big sign that says “I’m an Al Qaeda big-shot”?

            As for his kid, if you take your family on a jihad against the US, you are putting them in danger. He knew what he was doing, whether his kid did or not.

            1. The kid was killed at the funeral for his father. That’s a bit different than simply being in the vehicle with his dad when it got lit up by a Hellfire.

              1. I don’t think it was at a funeral, because it was two weeks after his father died. I believe Islamic tradition wraps those things up more quickly, but I could be wrong.

  8. So the reason he was killed without due process was that he was a threat, but the evidence that he was a threat was redacted? Why have a Constitution at all, then?

    1. That’s the very question I’m sure the government is asking itself every day.

      1. Please Epi, let the people have their…traditions.

    2. No, no, PapayaSF has pointed out that we have to trust the government, because they’re protecting us from religious nutjobs making youtube videos on the other side of the planet.

      Just typing that frightens me!

  9. Verily, I say unto thee,
    whosoever calls upon Caesar
    to erect his war boner
    shall surely know hell.

  10. skimming… skimming……

    public authority justification? that’s a new one for me.

    ahhhhhhhhh, totality of the circs.. now that’s more like it.

  11. This controversy is another example of why when the country is attacked that war must be declared by an act of congress and a specific enemy named–AQ and their supporters in this case.

    As a member of AQ, Anwar Al-Awlaki would then have been declared a traitor of his countrymen and an enemy. Instead his status is ambiguous as is the legality of his killing.

    1. and were he declared a traitor, we have a system for dealing with those people. Pre-emptive execution is not part of that system.

      1. Maybe. But when he is helping the country’s enemies he knows specifically he is helping someone whom this country is at war. The country’s moral duty is the get rid of those threatening it. Not sure why citizenship of a traitor gives them special status. I don’t think it should.

      2. The “system” is that when people make war on the US from a foreign country, and are out of reach of law enforcement, we can shoot back at them.

        I have a lot of issues with all kinds of government overreach, but I don’t think this is an example.

        1. So, what say you to the prog who asseverates, “I am disinclined to get overly legalistic about Americans killed by drones while associating with terrorists” who want to end affirmative action or end the income tax or bust unions or abrogate the FCC or the FDA or the EPA?

          1. Inapt comparisons. This is war, against a foe who follows no rules, and often hides overseas out of reach of law enforcement. It’s not a mere domestic political dispute.

            1. PapayaSF:

              Apparently you either didn’t read the MIAC report, or you thought it was funny.

              Just wait until they determine WE are terrorists for exercising our 1st or 2nd (3rd-9th) amendments. They will say we are a foe who “follows no rules” and “often hides overseas out of reach of law enforcement”.

              Then, when they kill you, it will actually be justice because you called for your own death.

              “First they came for the [fill-in-the-blank]…”

              1. As I’ve said, I don’t think this is a slippery slope, in part because in nearly 13 years, we haven’t slipped down it.

                But one could just as well say that if you get killed by terrorists, it would be justice because you were so concerned about the due process rights of terrorist recruiters hiding in Yemen.

                1. This is war, against a foe who follows no rules, and often hides overseas out of reach of law enforcement. It’s not a mere domestic political dispute.

                  You know who else followed no rules and hid overseas out of the reach of law enforcement, right?

            2. No, according to your logic, as long as the government says that you are a terrorist, you are subject to droning.

              1. The government didn’t just “say” Al-Awlaki was a terrorist. The guy spent years preaching war against the US, and recruiting terrorists. That’s beyond dispute. What do you want, a trial that convicts him of terrorism? Unfortunately, the world does not always work that neatly.

            3. What’s to stop it from becoming a “mere domestic political dispute”?

              1. Because there’s no reason to zap someone with a drone domestically, when you can just send people to arrest them.

            4. against a foe who follows no rules

              And we do, asshole. What part of our supposed “things that make America great” are you fucking failing to understand?

  12. Redacted? What’s wikileaks done for us lately? Bonus: what the hell happened to that “big” leak Assange announced the other day?

  13. Not a fan of excessive drone strikes (particularly against U.S. citizens), but I don’t feel bad this guy is no more. Just surprised there isn’t more focus on the killing of his 16 year-old son a few weeks later. That incident is far more egregious, and more difficult for the Obama administration to justify as a necessary strike to eliminate a threat to the U.S. Then again, he was a boy…so who cares?

    1. They didn’t target his son. They targeted someone who was at the same house as the kid. The son was collateral damage.

  14. The problem here isn’t the droning of a US citizen, really. The due process guarantees don’t discriminate between US citizens and foreign nationals, after all.

    The problem is droning anyone. Where’s the legal and Constitutional basis for the entire drone program? We haven’t declared war (understood as armed conflict between sovereigns) on any of the nations where droning is occurring. The AUMF was not a declaration of war, so it is not an exercise of that enumerated power. Just what enumerated power authorizes the drone program? Help me out here, somebody.

    1. I would have much preferred an old-fashioned declaration of war.

      1. It should be illegal for a country to systematically kill other people citizen or not without a congressional war act. War is declared when its citizens are threatened.

        Except in a very narrow eminent threat context any military action taken by a US President without a declaration of war is unconstitutional and morally abhorrent.

        1. How is someone with a long record of recruiting terrorists not an “imminent threat”? This guy wasn’t just some nobody spouting off on YouTube, he preached Islamic terror for years, and a number of his friends and followers took him up on it. He was a successful recruiter for people who want to kill you and destroy everything you believe in. Fuck him.

          This is one of those areas in which dogmatic libertarians can stumble. Rule of law is great, limiting the power of the state is great, but when your country is under attack by utterly ruthless totalitarians, who are pretty much the precise opposite of libertarians, it ill behooves us to get nitpicky about how to treat the tiny number of Americans who go overseas in order to wage war on us.

          1. Bush could have easily had a declaration of war approved and should have. But he did not. This guy is clearly an enemy of his countrymen, and I have no sympathy Al-Awlaki. He clearly got what he deserved.

            But a bigger issue is due process and the rule of law. We have lost it. The ambiguity about what should be a clear moral action occurs because we have lost the rule of law.

      2. Yup. If we had declared war on Afghanistan and Iraq, that would at least have been Constitutional/legal (whatever your opinion on how advisable it was).

        And those wars would have been over long ago, and there would be no authority for droning in Pakistan, Yemen, etc. Perhaps a mutual defense treaty type of deal, with the jihadis playing the role of insurgents trying to start a civil war, would give authority, but we have no such thing, and no hope of ever getting one (at least from Pakistan).

        I have come to believe that the entire drone program is a war crime, however deserving some of its targets may be. And I include the dumbass American jihadis as deserving targets. Just not Constitutional/legal targets.

        1. Iran essentially declared war on the US in 1977 when it supported the take over of the embassy.

          Pussy-ass Carter and the pussy-ass congress should have declared war on these assholes and done away with this country right there. Reagan should have declared war on Iran after the marine bombing, too. They financed and supported this attack. What are the chances 911 would have happened if America would have acted like a sovereign nation instead of the altruist wasteland it has become? Slim. The attackers would have known the full force of the US military was getting ready to go right up their butt. Never would have happened.

        2. But, neither the constitution nor the Declaration of Independence provides specific authority for making war in any jurisdiction outside of the US.

          If they had intended to permit the same, the founders and the ratifiers would have so said. They did not and this alone trumps the sophomoric contention that the war power given to Congress is sufficient to justify any sort of extra-jurisdictional war-making, particularly the targeted murder of individuals the state claims to be its enemies.

          Why should we indulge the definition seized upon by statists and warmongers and neocons and American exceptionalist types who just do not seem to get that the principles undergirding the secession from the British Empire are to be preserved and not the nation state?

          1. Soon after Independence the country fought First Barbary War (1801?1805) (“…to the shores of Tripoli). Threats to the nations citizens on their homeland or their interest–pirates raiding American trade ships off the shore of North Africa–were under the protection of the young country’s military.

            This might be one where the modern context is indeed important, though. It was

            1. Yeah and Alien and Sedition Acts.


              Its not as if there is not a ton of evidence to support the proposition that many in the founding generation became exactly that which they feared.

              1. Besides, the words in the constitution were designed to chain those who would rule and those who would cowardly sign up to be the rulers’ enforcers.

            2. But it is still a libertarian dilemma as to whether our navy should protect US-flagged merchant ships.

    2. Do you think that some of our American exceptionalist types are going to help you out?

      How about Tony and shrieks of the world?

      You know the answer my friend.

    3. We’re not at war with a sovereigns nation, your understanding of the definition of war exists in your head. Should we build Al Qaeda a nation so we can declare war? The AUMF authorized military force, it was done in congress. You don’t have to like it but it’s constitutional.

  15. I don’t know why being a terrorist is droneworthy, but violating a citizen’s due process rights isn’t.

    I find both crimes reprehensible.

  16. I cried a little when I heard that Anwar Al-Awlaki died. He was a great american.

  17. AUMF = ‘get out of warkrimes free’ card

    (oh, and papayaSF, you are a human-shaped POS…)

    1. I love you too, new handle who I’ve never seen around here before. I probably have socks that are older than you are.

      1. actually, if you snooped around the tubes, you would see that various incarnations of the estimable -yet universally derided- senor art guerrilla has been around since before you could type one-handed…
        true, i have not hung out ‘here’, but i’m tired of taking my fellow libtards to task, so thought i’d annoy some libertards, instead…
        with you here, i see my services are sorely needed… unfortunately for you, i am gainfully employed, so won’t have too many opportunities to cast my pearls before you…

        1. Only someone who has not hung out here would call me a “libtard.” I am not a pure libertarian, true, being more “conservative” on national defense and immigration, and more willing to compromise with the left on some issues for reasons of domestic tranquility, but I’m not a “libtard.”

  18. The death of millions is statistic. The death of one man is war.

  19. Not that I’m a supporter of Obama’s failed foreign policy but fuck this guy. He pretty much painted the target on himself. And his son seems like the victim of having a really shitty dad that put him in a ridiculously dangerous situation.

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