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The Drone Memo: Secrecy Made It Worse

HO/Reuters/Corbis
Inspecting a US military MQ-1B Predator unmanned drone aircraft, September 3, 2008

On July 16, 2010, lawyers for the Justice Department wrote a secret memo justifying the extraordinary act of killing a US citizen without charges or trial. On Monday, nearly four years later, the US Court of Appeals for the Second Circuit in New York released that memo, in redacted form, to the public. The Obama administration resisted disclosing the memo, which had been the subject of a consolidated Freedom of Information Act case filed by The New York Times and the American Civil Liberties Union, but a unanimous appeals court panel rejected its claims and ordered the memo’s release. Now that we can finally see its contents, the biggest question is why the administration fought to keep it secret. The memo does more to help than to harm the administration.

Critical questions remain about the legality of the September 2011 drone killing in Yemen of American-born Muslim cleric Anwar al-Awlaki that the memo authorized, largely because crucial details regarding application of the law to the facts of al-Awlaki’s case are redacted. (Al-Awlaki, a leader of al-Qaeda in the Arabian Peninsula, allegedly planned the aborted attempt to detonate a bomb in an airplane over Detroit on Christmas day in 2009, and a foiled plot to deliver bombs on cargo planes.) But the memo offers a closely reasoned, thorough, and, most important, carefully limited defense of al-Awlaki’s killing. Had this memo been made public at the outset, the administration might well have avoided many of the questions that continue to swirl around the drone program and make it controversial worldwide. Transparency is often touted as a check on the abuse of power, and it is. But transparency can also legitimate acts that, taken behind closed doors, are illegitimate. In this instance, the administration’s insistence on secrecy undermined its own cause.

So what does the memo tell us? In painstaking detail, it lays out the case for why killing al-Awlaki would be lawful under US statutes, the Constitution, and international law. It comprehensively addresses federal criminal laws that forbid the murder of US citizens abroad; the Fourth and Fifth Amendments, which forbid unreasonable seizures and bar the taking of life without due process; and the laws of war, which regulate the use of lethal force in armed conflict. (In full disclosure, the authors of the memo, David Barron and Marty Lederman, are colleagues and friends, but that has not stopped me from criticizing the legality and wisdom of the drone program they approved. Needless to say, they never revealed the contents of the memo to me.)

In short, the memo reasons that while US law bars murder, or “unlawful killing,” of Americans overseas (as well as at home), when the president orders the use of lethal force to kill an enemy fighter in an armed conflict, the killing is not “unlawful.” In an editorial today, The New York Times condemns the memo for relying on arcane notions of emergency “public authority,” but that criticism misunderstands the memo’s argument. It simply maintains that while private parties are rarely, if ever, authorized to kill another, government authorities may well be—especially when the victim is an enemy fighter in an armed conflict. The memo concludes that al-Awlaki fit that bill, and that his citizenship status did not protect him from being treated like other enemy fighters.

While the memo cited no precedents directly authorizing the use of lethal force against citizens, it noted that the Supreme Court had ruled in 2004 that the president was authorized, as an incident of war, to detain a US citizen as an enemy combatant captured fighting against us in Afghanistan. The power to kill enemy fighters, the memo reasoned, is as much an incident of war as the power to detain. And while there are no legal opinions addressing the matter, President Lincoln of course authorized the killing of tens of thousands of US citizens during the Civil War.

On the constitutional question, the memo concluded that where a US citizen poses an imminent threat of violence or death to other US persons, where the basis for that judgment has been reviewed by “the highest officers in the Intelligence Community,” and where capture is not feasible, killing an enemy fighter without further procedural protections is “reasonable” under the Fourth Amendment and does not violate due process. No one would contend that US forces being fired at by a US citizen on a battlefield must give that citizen a hearing before shooting to kill. In effect, the memo concluded that al-Awlaki posed a similar threat. It does not address, however, why due process could not have been provided in this case. Al-Awlaki was not killed for fifteen months after the memo was written, and there was nothing to preclude either judicial review of his case during this time or even to provide an opportunity for al-Awlaki to defend himself to the executive branch.

The memo concluded that the president had the authority to order the killing of al-Awlaki because all of these conditions were met: 1) Congress had authorized the use of military force against al-Qaeda and the conflict was continuing; 2) al-Awlaki was a leader of a group actively fighting alongside al-Qaeda against the US; 3) he had participated in attacks on the US and was continually planning future attacks; 4) high-level officials had reasonably determined that his capture was infeasible, and continued to reassess that determination; 5) he posed an imminent and continuing threat to the lives of US persons; and 6) any use of force would conform to the laws of war requiring that attacks be necessary and minimize collateral damage to civilians.

Thus understood, the Justice Department memo has very narrow application, and does not give the president a blank check to kill “suspected terrorists” the world over. The oft-hypothesized drone attack on a terror suspect sitting at a Paris café would not be justified by any understanding of the memo’s reasoning. It permits the use of force not against suspected terrorists generally, but only against those who are fighting against the US in a specific armed conflict, either as part of al-Qaeda or as an active accomplice in ongoing hostilities. It finds the use of force permissible because capture is infeasible, and presumably capture would be feasible in Paris. (Notably, drones have been used in Afghanistan, the mountainous border regions of Pakistan, and effectively ungoverned sections of Somalia and Yemen—not in the UK, France, or Turkey.) And the memo limits its authorization to an individual who had allegedly attempted past attacks and was said to pose an imminent threat of future attacks, and only where the use of force conformed to the law of war.

Had all of these limitations and caveats been made public from the outset of the drone program, many of the legitimate questions that the program has raised might well have been answered, and many misperceptions and doubts might have been cleared away. But as it was, the image the US presented was of the most powerful country in the world secretly executing individuals half a world away, and refusing even to admit it was doing so, much less be tested on whether its actions were lawful.

At the time of the drone strike, on September 30, 2011, President Obama held a press conference to announce that al-Awlaki “was killed in Yemen.” Obama intentionally used the passive voice, since the United States refused even to acknowledge that it had been the killer. It wasn’t until May 2013, on the eve of a presidential address on national security at the National Defense University, that the United States acknowledged that US officials had given the order to kill al-Awlaki. But even then it refused to disclose the memo that was said to have set forth the legal reasoning authorizing the president to order the killing of one of his constituents. To its (limited) credit, the administration ultimately chose not to seek further review of the Second Circuit panel’s decision, thus permitting the court to release the redacted memo on Monday. But what took it so long, and why couldn’t it have released this memo much earlier?

The costs to US legitimacy of this secrecy are profound. I was reminded of this fact at a conference of constitutional law scholars and judges in Oslo, Norway last week. The conference, held under the auspices of the International Association of Constitutional Law, hardly a radical group, featured a workshop on counterterrorism in which the US use of drones was a central topic of discussion. As readers of The New York Review know, I have been a consistent critic of the drones program—and particularly of its secrecy—from the earliest days. But in Oslo, many of the arguments I heard against the tactic by scholars from around the world were premised on a sense that the US has exerted an unlimited authority to kill in secret, without meaningful constraints. The Obama administration helped create that perception by refusing to acknowledge its lethal actions and refusing to set forth what limits, if any, it was operating under.

So the release of the al-Awlaki memo is an important step toward adequate transparency and accountability. But it is only a first step, and is insufficient by itself. For starters, much of the memo, including virtually all facts supporting the charges that al-Awlaki posed an imminent and continuing threat, are redacted. So is much of the constitutional analysis. The memo’s discussion of the constitutional questions refers to a separate memo—but that memo remains secret. Without details, important questions remain as to how the administration defines an “imminent” threat, and how it determines that capture is “not feasible.” Can al-Awlaki really have posed an “imminent” threat for the entire fifteen months between the time the memo was written and his killing, and if so, what does that tell us about the administration’s conception of “imminence”?

Second, while the memo is careful to limit its analysis to the facts of al-Awlaki’s case, it repeatedly states that its analysis does not mean that lethal targeting would be unlawful in other circumstances. And we know that the US has used drones to kill several thousand individuals during the Obama administration alone. Surely they were not all leaders of an al-Qaeda fighting force who had attacked us in the past, were planning future attacks, and whose capture was infeasible. What were the circumstances that authorized their deaths? Do different standards apply to the killing of foreign nationals? Was a memo written for each victim, or only for the US citizen? We simply do not know.

In his May 2013 speech at the NDU, Obama said that from then on, he would authorize targeted killings off the battlefield only where 1) they are necessary to respond to individuals who pose a “continuing and imminent threat to the American people”; 2) capture is not feasible; 3) the host country is unwilling or unable to address the threat; and 4) there is a “near certainty that no civilians will be killed or injured.” While this standard echoes in some important respects the Justice Department memo, it actually goes further, because that memo did not attempt to define the limits on when lethal force could be used, but only to determine whether the particular facts of al-Awlaki’s case warranted force.

Third, even with this improved standard now in place, nearly all the details about how the program works in practice still remain hidden from view. The administration continues to engage in secret, unacknowledged drone strikes. An attack in Yemen in December is said to have struck a wedding party. Yet the US apparently recognizes no obligation even to report on the results of its drone strikes.

Finally, and most troubling of all, there is no mechanism in place for independent testing of whether US practice matches the limits Obama has announced. Why can’t there be an assessment, at a minimum after the fact, as to the validity and consequences of each attack? The Israeli Supreme Court reviews each of Israel’s targeted killings, with appropriate deference to military judgment, to assure that they fall within legal bounds. We have no such review here, by a court or otherwise. Instead, we continue to operate the drone program almost entirely in secret, and have yet to admit that we killed a single innocent bystander, despite widespread reports of such deaths. Without real accountability, it is highly unlikely that the world will believe that the US is operating within the law. Why should it?

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