In October, the New York Times reported that the Justice Department’s Office of Legal Counsel produced a 50-page secret memo in June 2010 authorizing the killing without trial of Anwar al-Awlaki, a US citizen. The New York Times report was based on comments made by people who have read the memo.
Alwaki’s killing was permitted, the memo found, despite an executive order banning assassinations, a federal law against murder, the protections of the Bill of Rights, and various principles of international laws of war.
Awlaki was targeted in a drone strike carried out by the US in September. He was killed along with another US citizen while they were in Yemen. The Obama administration has refused to even admit that it ordered the killing.
In response to a Freedom of Information Act request made by the New York Times, the Project on Government Oversight, and the American Civil Liberties Union, the Department of Justice said it “neither confirms nor denies the existence of the document.”
At a recent Senate Judiciary Committee oversight hearing, Attorney General Eric Holder also refused to address the existence of the memo.
Writing for the Loyal Opposition blog, Andrew Rosenthal points out that such policies belie the Obama administration’s promise for greater transparency.
Prominent national security and constitutional law scholar (and Bill of Rights Defense Committee Advisory Board member) David Cole notes that there is something fundamentally wrong with a democracy that allows its leader to order the execution of citizens and non-citizens without having to defend such action in public.
Had Awlaki been found on the battlefield, Cole explains, neither the laws of war nor the Constitution would have prevented the US military from shooting him. Awlaki, however, was in Yemem and did not belong to al-Qaeda or the Taliban, the two organizations against which Congress authorized the use of military force.
The memo authorized Awlaki’s execution because it found that the organization to which he belonged, al-Qaeda in the Arabian Peninsula, was a “co-belligerent,” and because he himself posed an imminent threat to the US and his capture was not feasible. If true, these assertions may provide sufficient ground for Awlaki’s execution. However, Cole points out, they were never tested in any forum.
As American citizens we have a right to know when our own government believes it may execute us (and others) without a trial. In a democracy the state’s power to take the lives of its own citizens, and indeed of any human being, must be subject to democratic deliberation and debate. War of course necessarily involves killing, but it is essential that the state’s power to kill be clearly defined and stated in public—particularly when the definition of the enemy and the lines demarcating war and peace are as murky as they are in the current conflict.