by Scott Shane
The executive order banning “assassination,” dating to the Gerald Ford administration and prompted by the Church Committee’s exposure of CIA schemes to kill Fidel Castro and others, did not apply to killings motivated by national self-defense, Barron and Lederman wrote. Nor did the Constitution block Awlaki’s killing. The Fifth Amendment dictated that an American could not be deprived of life without “due process of law,” which usually meant a criminal trial. But in this case, they decided, no trial was necessary. Citing the Supreme Court’s 2004 decision in the case of Yaser Hamdi, an American citizen caught fighting with the Taliban in Afghanistan, Barron and Lederman’s analysis said that to decide exactly what “due process of law” was required it was necessary to weigh Awlaki’s “private interest” in staying alive against the government’s interest in “using an authorized means of force to respond to an imminent threat.” Though redactions make it difficult to read this portion of their opinion, clearly they decided that the government’s interest took precedence. (Later, in a speech explaining the Justice Department’s view, Attorney General Holder would say that adequate “due process” did not necessarily mean court involvement and that careful consideration of evidence inside the executive branch could meet the Fifth Amendment’s requirement. “The Constitution guarantees due process, not judicial process,” Holder said.)
Nor would the Fourth Amendment, which banned “unreasonable searches and seizures,” block targeting Awlaki, Barron and Lederman wrote. They cited a 1985 Supreme Court ruling in Tennessee v. Garner, involving a Memphis police officer who had fatally shot a fleeing suspect. The court had ruled that deadly force could be used if there was probable cause to believe the suspect had committed a crime that involved or threatened serious physical harm. The analogy with Awlaki and the Christmas plot was evident, though redactions in the public version of the memo left Barron and Lederman’s reasoning riddled with omissions.
But with a deadline pressing, they focused on what they saw as the biggest legal hurdles, leaving what some legal analysts considered to be a gaping hole in their opinion. In April, two months after they completed their memorandum, Kevin Jon Heller, an American law professor teaching in London and Melbourne, wrote a fierce attack on the decision to target Awlaki on the international law blog Opinio Juris, beginning with the headline: “Let’s Call Killing al-Awlaki What It Is—Murder.” Heller had not seen the still-classified legal opinion, but he had read news reports about the addition of Awlaki to the kill list. He based his critique on what was called the foreign-murder statute, 18 USC 1119. On its face, it seemed to apply squarely to the lawfulness of killing Awlaki: it criminalized the act of “a person who, being a national of the United States, kills or attempts to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country.” Heller suggested that Obama was matching Bush in legal overreaching: “I have yet to see any reporter ask why Obama believes he has the legal authority to order Americans killed, given that 18 USC 1119 specifically criminalizes such killings,” he wrote. He called the Obama administration’s presumed override of the foreign-murder statute “deeply problematic—and eerily reminiscent of debates over the Bush administration’s authorization of torture.”
Such accusations stung, going right to the heart of Barron and Lederman’s vulnerability as detractors of the Bush legal record. Having satisfied the urgent demand for a legal ruling with the February opinion, they set out to write a second opinion, completed on July 16, 2010, directly addressing the foreign-murder statute. The law had been passed, they said, to criminalize murders by Americans overseas that might otherwise escape prosecution. But some killings are justified by “public authority”—such as a police officer shooting an armed and threatening criminal. The foreign-murder statute did not apply to such justified killings, they argued, concluding that either military or CIA personnel would be justified in killing a dangerous leader of AQAP who posed an imminent threat to the United States. They conditioned their approval for killing Awlaki on the notion that it was “infeasible” to capture Awlaki alive. But the lawyers left it to the CIA and the Department of Defense to judge whether Awlaki could be captured rather than killed. “Both agencies here have represented that they intend to capture rather than target al-Awlaki if feasible,” they wrote, “yet we also understand that an operation by either agency to capture al-Awlaki in Yemen would be infeasible at this time.”
More than half the pages of both the February memo and the much longer July memo were blacked out of the copies released to the public, apparently because they summarized the intelligence about Awlaki, his place in AQAP, and the evidence that he was plotting violence. By including the details of the CIA’s case against Awlaki—what OLC lawyers called “the factual predicate”—Barron and Lederman seemed to frame their opinion as narrowly as possible. Clearly they hoped that would distinguish their work from the torture memos written by John Yoo, their predecessor in the Bush OLC, who had deliberately tried to stake out a sweeping authorization for presidential power. “In reaching this conclusion,” Barron and Lederman wrote in the forty-one-page July memo, “we do not address other cases or circumstances, involving different facts.” They did not want to write a blank check to Obama and future presidents to kill Americans vaguely identified as militants or with thin intelligence résumés. In effect, they were attempting to limit their approval to Awlaki himself—whom they argued was at once a leader, an operational planner, and a recruiter for AQAP—avoiding creating any broader precedent.
With their two memos completed, and a green light for the Awlaki hunt, both men left the government—Lederman going to Georgetown University, Barron back to Harvard, where he would remain until Obama named him to an appellate judgeship.
The two OLC opinions were vetted by the so-called lawyers’ group at the National Security Council, consisting of the general counsels of the key security agencies and chaired by Mary DeRosa, legal adviser to the NSC. According to two lawyers who attended the meetings, the group recognized the unprecedented nature of the case and discussed it at length, debating the fine points of the law and discussing whether capture might be possible. But in the end, there was no dissent. Inside the government, where the atmosphere was shaped by the constant stream of terror threats, no government lawyer challenged Barron and Lederman’s decision that killing Awlaki would be legal and constitutional.
More than once, aides said, Obama remarked on the strength of the evidence against Awlaki, which was highly unusual for a terrorism case. Of course, none of the evidence would be presented in court, subjected to cross-examination, or assessed by a jury of his peers. But Obama and his aides had the firsthand testimony of Abdulmutallab about Awlaki’s role in the airliner plot; they had communications intercepted by the NSA that showed Awlaki plotting with other Al Qaeda members; and they had Awlaki’s own public declarations that he considered it every Muslim’s religious duty to kill Americans. The president considered that more than enough. “This,” Obama told aides of the decision to target Awlaki for execution without trial, “is an easy one.”
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Whether Obama truly found the decision on Awlaki easy—or whether he wrestled with it privately during the late nights he sometimes kept in his small office in the White House family quarters—many other people were troubled. In the larger community of law professors and national security experts, the legal questions surrounding the targeting of Awlaki would provoke debate for years, dividing the community of constitutional scholars. The notion of killing an American troubled the public, too. In my reporting, I asked a range of Americans their view on the question and found an intriguing dichotomy. Once I reminded them who Awlaki was and what he had said and done, most agreed with the decision to put him on the kill list, and some recalled the old adage that the Constitution is not a suicide pact. But if I then followed up and asked, “So you believe that any president should be able to designate an American as a dangerous enemy on the basis
of secret intelligence and order them killed?” most people balked. They accepted the specific case of Obama and Awlaki; they rejected the general principle, which sounded scarily un-American.
Later, curious about how the Obama administration’s stance was viewed in the academic legal world, I asked Mark Kende, a constitutional law professor at Drake University, to help me organize an informal online survey of his colleagues in the field. Of the thirty-two current and former professors of constitutional law who responded, eleven said they thought killing Awlaki was legal and constitutional; nine said it was not; and twelve said, “It depends” and offered nuanced analyses. In other words, there was no consensus on the question among experts on constitutional law. If Barron and Lederman had hoped to settle the issue, they had failed, perhaps inevitably. Indeed, had the Obama of 2008 been asked whether a president could order the killing of an American, it was easy to imagine that he would have been among the doubters. “I taught constitutional law for ten years,” he had said at a town hall meeting in Lancaster, Pennsylvania, during the campaign. “I take the Constitution very seriously. The biggest problems that we’re facing right now have to do with George Bush trying to bring more and more power into the executive branch.”
The ambivalence, both in the scholarly world and among the general public, was understandable. On the one hand, there was the notion that Awlaki had joined the enemy in a war and that, like German Americans who had fought for the Nazis in World War II, he could expect no immunity based on his citizenship. But the face-off with Al Qaeda bore little resemblance to World War II, or indeed to any war in American history. So there was a bracing alternative analogy: that killing Awlaki would be like a justified police shooting of an armed and threatening criminal. The police shooting parallel was cited by Barron and Lederman and was raised repeatedly by government officials who supported targeting Awlaki. “My view was Anwar al-Awlaki was actively plotting to kill American citizens,” said Gerald Feierstein, who was the American ambassador to Yemen during the hunt. “To me, he was like a guy walking down an American street carrying an M-16. The police would take him out.” Feierstein agreed with Obama’s assessment that the decision was “an easy one.”
On the other hand, for decades the United States under both political parties had condemned extrajudicial killing by other countries, notably including Israel, which had pioneered the targeted killing of suspected terrorists. Only since 9/11, under Bush and then under Obama, had the United States openly embraced the practice that it had long condemned. Now that Awlaki’s American citizenship added special weight to the decision to kill, elaborate legal justifications, classified as top secret and kept from the public, could not fully counter the sense that the government was acting out of expediency, not principle. It was another mark of how the fear of terrorism had changed the country.
In their effort to sort out the contrary pressures of targeted killing, some ethicists and philosophers revived a concept dating to the Vietnam War called “dirty hands,” a phrase used to describe an irresolvable moral quandary. The name was borrowed from the title of a 1948 play by Jean-Paul Sartre about the assassination of a politician. Sometimes, the dirty hands theory argued, an act could be simultaneously morally required and morally forbidden—“the least evil choice available in the circumstances that still leaves an indelible moral stain on the character of the person making the choice,” in the words of two scholars. Putting Awlaki on the kill list seemed to me to fit this model: allowing him to operate freely would arguably put at risk the lives of hundreds or thousands of people in a future attack. While AQAP could certainly mount an attack without him, his role in recruiting English-speaking jihadists with access to the United States, and his own focus on the United States as a target, surely magnified the threat. But killing him without a trial could violate some of the country’s most cherished principles, setting an alarming precedent for future presidents. Perhaps it was no wonder that the former constitutional law professor who had vowed on taking office to run the most transparent administration in history allowed his administration not just to keep the Barron-Lederman legal opinion classified but to spend years fighting in court to keep it secret.
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There would be three more American strikes in Yemen in the months following the cruise missile strike in Al Majala. All would be carried out by JSOC, the secretive American strike force with headquarters at Fort Bragg in North Carolina and the clout to commandeer military assets all over the world. None used drones, because Djibouti still objected; but cruise missiles were also out in view of the massacre of civilians at Al Majala. Instead, they used an array of manned jets, flown from Djibouti and from ships off shore. There was the strike on December 24 in Shabwah that was falsely reported to have killed Awlaki but did kill thirty or more other people, reportedly at an Al Qaeda gathering. On March 15 another strike hit another Al Qaeda site in Abyan, not far from Al Majala.
In approving strikes in Yemen, Obama was completely dependent on the advice of military commanders and intelligence chiefs. When their information was wrong, his decisions would be wrong. After the fourth strike, on May 24, 2010, it swiftly became clear that the intelligence had once again been utterly inadequate. The missiles hit two vehicles in Marib, the same wild tribal province where the CIA had carried out its first drone strike in Yemen back in 2002. Among four or more people killed, according to contradictory reports, were probably two Al Qaeda members. But meeting with them, in an apparent bid for peace, was the popular deputy governor of Marib province, Jabir al-Shabwani. Shabwani was doing his job in a difficult situation, trying to keep his people safe from attacks; like many Yemeni officials, he had a cousin in Al Qaeda, Ayed al-Shabwani, so he had ways to reach out to the terrorist group. JSOC operators learned that they had killed the deputy governor only when infuriated tribesmen attacked a major oil pipeline in the area at the behest of Shabwani’s grieving father, Ali, an important tribal leader. The unintended killing of the younger Shabwani, known as a capable and charismatic leader, would alienate the tribes of Marib province from the government in Sanaa for years afterward and make some tribesmen more hospitable to Al Qaeda. It was, in other words, another disastrous mistake.
According to two American officials, the Shabwani blunder was partly a result of JSOC’s eagerness to hit Awlaki. Just two days before the botched strike, Awlaki had given an interview to AQAP’s media arm, calling on Muslims everywhere to attack the United States. With pressure to find him ratcheted up still more, American intelligence picked up a walkie-talkie signal believed to be associated with Awlaki from the two vehicles in Marib. But walkie-talkies, cell phones, and other items whose signals the Americans routinely tracked could, of course, be passed around. Awlaki was evidently nowhere near the walkie-talkie when the missiles hit.
The strikes of December 17 and May 24 had not involved drones, with their ostensible advantages. But no weapon was better than the intelligence that guided it, and the quality of the intelligence guiding strikes in Yemen seemed to be shockingly poor. Shifting from cruise missiles to drones might make it possible to hit a small target, but if the intelligence was flawed, that wouldn’t matter: the precise, drone-fired missile would precisely kill the wrong person. Between the choice of weapons and the abysmal intelligence, by mid-2010, the campaign Obama had started against AQAP in Yemen—his own war, not the one in Pakistan he had inherited from Bush—was looking decidedly like a “dumb war.”
Obama, briefed by Brennan on the May 24 strike, was distressed by JSOC’s erratic performance in Yemen. He complained sharply to the man some described as the president’s favorite general, General James “Hoss” Cartwright, vice-chairman of the Joint Chiefs of Staff. Partly because of protests from President Saleh, and partly because of Obama’s displeasure, American strikes in Yemen would be suspended for a year. Had the agencies managed to pinpoint Awlaki’s location during the next year, it is likely that the moratorium would have come to a sudden end. In fact, the first strike after the year’
s hiatus would be aimed at him.
But even as Obama seethed about the mistakes in Yemen, neither he nor his aides offered any public expression of regret to address Yemeni anger at the unintended deaths. As so often occurred in the classified sectors of government, secrecy and compartmentation prevented real accountability for the targeting mistakes. Publicly, Obama spoke only of successful strikes against Al Qaeda in Yemen, and furious Yemenis naturally held him responsible for what had actually been grave blunders. Only privately, in White House meetings, did the president express deep concern about JSOC’s record.
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For several years, both before and after Anwar’s prison term, Nasser al-Awlaki had pleaded with Anwar to tone down his rhetoric, but it did no good. “His father made several attempts to persuade him to stop talking about jihad,” recalled Morten Storm, his former Danish follower, who said he had met Nasser al-Awlaki on a couple of occasions. “He told me about this. But he said, ‘I respect my dad, but I cannot agree to this because Allah’s order, his commandment of jihad, supersedes my obedience to my father.’ ”