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Monday, June 30, 2014

The /Redacted/ Case for Killing Americans

Was it really congress that murdered a US Citizen abroad?

That's the administration's argument, which makes sense because the supporting evidence appears to be off limits to the public.

I've been out of town on business, but I did catch a whiff of news last Monday, the White House finally released a memo used to justify drone attacks on U.S. citizens, and even though it appears to be rooted in what many are calling sound legal precedence. To me, it confirms some of the worst suspicions I've held about this administration and this country that is getting harder and harder to recognize.

The Obama administration had sought to keep the memo secret, and now we know why: The memo revealed that there are literally no checks and balances; there are no classified courts, no appeal process, no opportunity for a defendant to meet their accuser, and several other blatant violations of a citizens rights. Indeed, the memo reveals that the President of the United States can, and has, ordered the targeting killing of U.S. citizens overseas in violation of their constitutional right to due process.

The 41-page Department of Justice memorandum outlining the administration’s attempt to justify the killing of U.S. citizens accused of plotting acts of terrorism abroad was released under order of the U.S. Court of Appeals for the Second Circuit in New York. The court did so in response to a Freedom Of Information Act request submitted by both the American Civil Liberties Union and The New York Times.

The memo, entitled “Re: The Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Operations against Shaykh Anwar al-Aulaqi,” was written by the Office of Legal Counsel at the U.S. Department of Justice and was addressed to Attorney General Eric Holder. The Office of Legal Counsel was asked to weigh in on the matter after the Obama administration decided that it might choose to pursue a lethal operation against a U.S. citizen living in Yemen who the administration accused of conspiring to commit acts of terrorism.

A good chunk of the memo is devoted to 18 U.S. Code § 1119. The statute says that if an American kills another American overseas, that's considered murder under US law. Anyone who does it can be tried in the same way as an American who murders someone inside US borders.

To justify the Awlaki killing, The administration relies heavily on the 2001 Authorization for the Use of Military Force (AUMF), the law that Congress passed to permit striking al-Qaeda post-September 11th, and which was used to justify the US-led investigation of Afghanistan.

Awlaki, according to the memo, was a leader in al-Qaeda's Yemen-based branch, which is known as al-Qaeda in the Arabian Peninsula. The intelligence supporting this claim is redacted from the memo and the entire memo ignores the issue of introducing this evidence in a courtroom (even if it was a secret one such as the FISA courts). The memo claims that, because Congress authorized using "necessary and appropriate force" against al-Qaeda, the AUMF would thus give the US legal cover to target Awlaki.

The memo also redacts any evidence about the U.S.'s ability to capture and detain Awlaki instead of killing him.

The logic we are supposed to be seeing here is like a police man breaking the speed limit to catch a bad guy. Only in this case the speeding is likened to killing an American citizen and the bad guy posed an imminent threat to the United States. The evidence of this threat... is also redacted.

There is one final point to this memo. The AUMF was intended, as the 'M' would indicate, as a military declaration. Yet, it was the CIA that carried out the use of force. The memo addresses this also by establishing the legal basis of how the CIA can operate unter a military docutrine.

This too, was redacted.

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