The 2nd U.S. Circuit Court of Appeals has released a long-secret memo in which the Obama administration lays out its legal reasoning for launching a drone attack on an American citizen overseas.
The legal justification concerns the drone strike that killed Anwar Al-Awlaki, a U.S. citizen who had studied at San Diego State University. The United States claims he was tied to plots against the U.S. and played a key role in al-Qaida in the Arabian Peninsula.
As we've reported, Al-Awlaki's father sued U.S. officials, but a federal judge dismissed the suit.
The judge admitted that al-Awlaki had a "plausible" case over violations of his due process but as part of the judiciary she could not step into decisions about war making, national security and foreign relations.
In March 2012, Attorney General Eric Holder gave an outline of the legal reasoning behind drone strikes against Americans. He said those Americans receive due process, which should not be equated with a judicial process.
Monday's release comes after the White House decided to let senators read the memo back in May.
The document is here and embedded below — you'll see some redactions. As we sift through it — it's very dense — we'll update this post.
Update at 12:40 p.m. ET. What About The Fourth?
The Fourth Amendment of the Constitution protects citizens from unreasonable searches and seizures. The memo makes a similar case about the Fourth Amendment that it does about the Fourteenth Amendment. Basically, it argues, the U.S. can use lethal force if a suspect "poses a threat of serious physical harm." It compares this situation to a police officer using deadly force to stop a dangerous criminal from escaping.
Here's the relevant excerpt:
Update at 11:54 a.m. ET. What About Due Process?:
One interesting point the memo brings up is that because Al-Alwaki was a U.S. citizen, he was entitled to protections of the U.S. Constitution, including due process.
But, the memo argues, a previous Supreme Court opinion in Mathews v. Eldridge allows the government to weigh "the private interest that will be affected by the official action" and the "burdens the Government would face in providing greater process."
David Barron, then the acting chief of the Justice Department's Office of Legal Counsel, concludes:
Update at 11:48 a.m. ET. 'Gross Distortions Of The Law':
Pardiss Kebriaei, an attorney for the Center for Constitutional Rights, which has challenged the killing of al-Alwaki, says the drone memo confirms "the government's drone killing program is built on gross distortions of law."
"This forced transparency comes years late, long after the memo was drafted and used to justify the premeditated killing of a U.S. citizen without trial and far from any battlefield," Kebriaei goes on in a statement.
Update at 11:46 a.m. ET. Based On War On Terror Authorization:
Here's the Reuters interpretation of the memo:
"The memo, prepared by the Justice Department's Office of Legal Counsel, says that because the U.S. government considered al Awlaki to be an "operational leader" of an "enemy force," it would be legal for the CIA to attack him with a drone "as part of the United States' ongoing non-international armed conflict with al Qaeda," even though he was a U.S. citizen."The memo also says the killing of al Awlaki by U.S. military forces would be legal under an authorization for the use of U.S. military force approved by Congress following the Sept. 11, 2001, attacks on New York and Washington, D.C."
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