DOJ Drone Memo: AUMF Trumps All And Rights Are Subject To Arbitrary Revocation In Times Of 'War'

from the killing-in-the-name-of dept

The long-awaited “drone memo” has now been released, and it details the DOJ’s justifications for the extra-judicial killing of American citizens. While the government runs through various permutations of its arguments for “justified” killings, the short version can be boiled down to four letters: AUMF.

The Authorization for Use of Military Force Against Terrorists was passed three days after the 9/11 attacks and is every bit the sort of kneejerk legislation every lawmaker should approach warily, but seldom do. This kicked off America’s “War on Terror,” a slippery slope “battlefield” that has been used to justify everything from domestic surveillance by the NSA to the purchase of cell phone tower spoofers and discarded military vehicles by local police departments.

The memo (which starts at page 67 of the embedded document below — the legal decision ordering the release is above it) starts out with the DOJ doing Congress’ thinking for it. This part discusses the “authority” behind the killings, aligning it roughly with the deadly use of force by law enforcement, something that makes certain killings lawful under certain circumstances.

The justifications listed below constantly cite 18 USC 1119(b), a law that simply states that it’s illegal for a US citizen to kill another US citizen residing outside US borders, making them subject to the United States’ laws on murder and manslaughter. But what looks simple and solid on the law books is apparently filled with loopholes and things Congress meant to make clear but apparently didn’t.

But the recognition that a federal criminal statute may incorporate the public authority justification reflects the fact that it would not make sense to attribute to Congress the intent with respect to each of its criminal statutes to prohibit all covered activities undertaken by public officials in the legitimate exercise of their otherwise lawful authorities, even if Congress has clearly intended to make those same actions a crime when committed by persons who are not acting pursuant to such public authority. In some instances, therefore, the better view of a criminal prohibition may well be that Congress meant to distinguish those persons who are acting pursuant to public authority, at least in some circumstances, from those who are not, even if the statute by terms does not make that distinction express.

What the DOJ basically argues here is that it would be perfectly fine for an NYPD officer to use justified, deadly force to shoot another American overseas. This would seem to be an unlikely event, but the NYPD has sent its officers all over the world in recent years, much to the dismay and irritation of local law enforcement and security agencies.

The DOJ further presses its point by comparing extrajudicial killings to speeding tickets (from the same paragraph as above).

Cf. Nardone v. United States, 302 U.S. 379, 384 (1937) (federal criminal statutes should be construed to exclude authorized conduct of public officers where such a reading “would work obvious absurdity as, for example, the application of a speed law to a policeman pursuing a criminal or the driver of a fire engine responding to an alarm”)

On page 73, the DOJ notes that there’s actually no federal statute that grants the government the same “rights” (in terms of justified use of deadly force) local law enforcement agencies enjoy, but that doesn’t slow down the rationalizing. The DOJ looks back through legislative to find something that might apply to its drone attacks. But what it quotes here has nothing to do with executions.

To close the “loophole under Federal Law which permits persons who murder Americans in certain foreign countries to go punished [sic],” id, the Thurmond bill would have added a new section to title 18 providing that “[w]hoever 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 shall be punished as provided under sections 1111, 1112, and 1113 of this title.” S. 861, 102d Con g. (1991) (incorporated in S. I 241, 102d Con g. §§ 3201 -03 (1991 )). The proposal also contained a separate provision amending the procedures for extradition “to provide the executive branch with the necessary authority, in the absence of an extradition treaty, to surrender to foreign governments those who conunit violent crimes against U.S. nationals.”

It should be noted that none of the punishments listed are “death sentence without due process.” At best, the government is allowed to remand the US citizen to local law enforcement, should there be no extradition treaty in place. Thurmond’s bill does not say killings are justified if extradition isn’t practical.

It goes from there to twisting words around until its convinced they read differently than they actually read. The following argument can best be summed up as: “the killing is justified because the killing is justified.” Because we say its lawful, it must be lawful. (Hence the intense leaning on the AUMF later.)

It is true that here the target of the contemplated operations would be a U.S. citizen. But we do not believe al-Aulaqi ‘s citizenship provides a basis for concluding that section 1119 would fail to incorporate the established public authority justification for a killing in this case. As we have explained, section 119 incorporates the federal murder and manslaughter statutes, and thus its prohibition extends only to “unlawful” killings, 18 U.S.C. §§ 1111, 1112, a category that was intended to include, from all of the evidence of legislative intent we can find, only those killings that may not be permissible in light of traditional justifications for such action. At the time the predecessor versions of sections 1111 and 1112 were enacted, it was understood that killings undertaken in accord with the public authority justification were not “unlawful” because they were justified. There is no indication that, because section 1119(b) proscribes the unlawful killing abroad of U.S. nationals by U.S. nationals, it silently incorporated all justifications for killings except that public authority justification.

Now that the DOJ has established a “right” to conduct extrajudicial killings based mainly on public authority justifications granted to law enforcement, it then discussed whether this can be stretched to cover DoD and CIA operations. Here’s where the DOJ begins wading into the “War on Terror” justifications.

In light of the combination of circumstances that we understand would be present, and which we describe below, we conclude that the justification would be available because the operation would constitute the “lawful conduct of war”-a well-established variant of the public authority justification.

Technically, we’re not “at war” anywhere in the world. There’s no declared war, other than the one on terrorism, which the DOJ terms (using the AUMF wording) a “non-international armed conflict.” If this is the justification, terming anything a “war on…” would justify extrajudicial killing, because no one expects murder charges to be brought against them during normal acts of war (i.e., combatants killing other combatants).

Because the AUMF says we can detain a US citizen who is assisting our enemies, it also means we can kill a US citizen who does the same.

And thus, just as the AUMF authorizes the military detention of a U.S. citizen captured abroad who is part of an armed force within the scope of the AUMF, it also authorizes the use of “necessary and appropriate” lethal force against a U.S. citizen who has joined such an armed force.

The DOJ also discusses the justifications for the CIA’s involvement, but much of that will still remain a mystery. Large portions of this have been redacted, but the discussion does start out with this unintentionally hilarious assertion.

[redacted] — the CIA — [redacted] would conduct the operation in a manner that accords with the rules of international humanitarian law governing this armed conflict…

Maybe in light of its still-unreleased “Torture Report,” the DOJ might want to retract that statement. But the CIA’s justifications apparently aren’t that far off from the DoD’s, and they include the same willingness to put words in Congress’ mouth.

Thus, we conclude that just as Congress did not intend section 1119 to bar the particular attack that DoD contemplates, neither did it intend to prohibit a virtually identical attack on the same target, in the same authorized conflict and in similar compliance with the laws of war, that the CIA would carry out in accord with [redacted].

Finally, the DOJ discusses the rights completely ignored by extrajudicial killing. First, the Fifth Amendment is dismissed because the AUMF trumps all.

In Hamdi, a plurality of the Supreme Court used the Mathews v. Eldridge balancing test to analyze the Fifth Amendment due process rights of a U.S. citizen captured on the battlefield in Afghanistan and detained in the United States who wished to challenge the government’s assertion that he was a part of enemy forces, explaining that “the process due in any given instance is determined by weighing ‘the private interest that will be affected by the official action’ against the Government’s asserted interest, ‘including the function involved’ and the burdens the Government would face in providing greater process.”

“Constitutionality,” in the DOJ’s hands, is mostly about what rights people don’t have.

We believe similar reasoning supports the constitutionality of the contemplated operations here. As explained above, on the facts represented to us, a decision-maker could reasonably decide that the threat posed by al-Aulaqi’s activities to United States persons is “continued” and “imminent…”

The explanation “above” is, of course, redacted.

The DOJ continues on to wave away the Fourth, again using the AUMF as justification.

The Fourth Amendment “reasonableness” test is situation-dependent. Cf Scott, 550 U.S. at 382 (Garner “did not establish a magical on/off switch that triggers rigid preconditions whenever an officer’s actions constitute ‘deadly force'”). What would constitute a reasonable use of lethal force for purposes of domestic law enforcement operations will be very different from what would be reasonable in a situation like such as that at issue here. In the present circumstances, as we understand the facts, the U.S. citizen in question has gone overseas and become part of the forces of an enemy with which the United States is engaged in an armed conflict; that person is engaged in continual planning and direction of attacks upon U.S. persons from one of the enemy’s overseas bases of operations; the U.S. government does not know precisely when such attacks will occur; and a capture operation would be infeasible.

[redacted] at least where high-level government officials have determined that a capture operation overseas is infeasible and that the targeted person is part of a dangerous enemy force and is engaged in activities that pose a continued and imminent threat to U.S. persons or interests the use of lethal force would not violate the Fourth Amendment. [redacted ] and thus that the intrusion on any Fourth Amendment interests would be outweighed by “the importance of the governmental interests [that] justify the intrusion…”

If it’s difficult, don’t try. At least that much agrees with law enforcement rationale. Why get a warrant when exigent circumstances can be abused? Why respect rights when you can claim there’s a “continued” and/or “imminent threat?”

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Comments on “DOJ Drone Memo: AUMF Trumps All And Rights Are Subject To Arbitrary Revocation In Times Of 'War'”

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That One Guy (profile) says:

Re: The most bone-chilling yet

‘We can kill whoever we want, wherever they happen to be, once they’ve been determined to be a threat.’

‘Who makes that determination?’

‘We do of course.’

‘And what agency or group is there to make sure that your ‘threat assessments’ are accurate?’

‘Ah, good one, you must be new here.’

Come now, they’re just saying that they can murder people, without a trial, anywhere on the planet, what’s so wrong about that? /s

OldMugwump (profile) says:

Re: Re: The most bone-chilling yet

Which amounts to: “Off with his head!”

So the President is literally claiming to be able to kill anybody he likes, without needing any reason validated by anyone other than himself.

And they still call it a liberal democracy. I think there are other terms in the political science dictionary that are more accurate.

Anonymous Coward says:

Re: The most bone-chilling yet

Don’t try to fool yourself – the Legislative branch was just as out of control, when they gave this power to the Executive.

The fact is, our government is out of control, and nobody from the outside seems to have the power to slow it down or stop it at this point.

There comes a point where a revolution is the only way to solve the problem, and I fear we’re quickly approaching that point.

The Mighty Buzzard (profile) says:

Re: Re: The most bone-chilling yet

There comes a point where a revolution is the only way to solve the problem, and I fear we’re quickly approaching that point.

I don’t fear it but the government should. That, in fact, should be their resting state. Anything else and they are our rulers rather than our servants.

T (profile) says:

Re: Re: The most bone-chilling yet

“The fact is, our government is out of control, and nobody from the outside seems to have the power to slow it down or stop it at this point.”

The problem isn’t that the power isn’t there—the states can call for a constitutional convention, avoiding any need for Congress to approve an amendment—it’s that American voters, and therefore their representatives, aren’t of similar enough mind and coordinated enough. The average American doesn’t look upstream enough when trying to put their finger on “the problem”. The solution starts with breaking our “two-party system” by instituting ranked choice voting everywhere possible.

Mark Noo (profile) says:

Re: The most bone-chilling yet

No question about it. The Executive Branch has completely exceeded its authority.
No president should be allowed to fight wars as lengthy as a decade with Congress declaring war.
I was born in 1967, for about 2/3 of my life America has been involved in military conflicts. That doesn’t include the so called “war on drugs”.

My generation is the weakest generation of Americans this country has ever known. 17 fucking trillion of debt for our children to inherit. We have managed to lose Vietnam, the war on terror, and the war on drugs, we cannot control immigration and there is more. My generation has sat on the sideline while America went down the drain. Corporate America didn’t even pay us to sell our country out (they actually lowered our wages) we were just too fucking lazy to do anything.
Just yesterday I heard a teacher telling her husband about the maladaptive behavior of her students. Apparently this teacher wants all the children to be fat, lazy and stupid.

Alien Rebel (profile) says:

Re: The most bone-chilling yet

The collaboration between gov’t branches is what really bothers me. Imagine an independent court finding some POS politician guilty of serious crimes because of [redacted], [redacted], and [redacted]. My guess is that we’d witness some heartfelt rollback of secrecy in congress, and an executive branch that exercises a little more concern over keeping policies within bounds.

Anonymous Coward says:

Re: At what point...

I think they’ll just make the leap to: “we’ll kill anyone anywhere that we just don’t like”, and that will be that.

From “democracy” to “dictatorship” in a couple easy steps.

If anyone rises up, you just send in the drones to clean up the mess, and feed everyone bullshit about their intentions being terrorism.

This has been brewing now for a long time – once local law enforcement has been militarized, they will likely do whatever they need to in order to retain their corrupt power.

Who can reasonably fight back against unmanned drones?

DannyB (profile) says:

We have always been at war with Eurasia

But the important word is ALWAYS.

By having a continuous state of war, there is a continuous and ongoing emergency. Certain laws are only in effect during peacetime. For example, aircraft cannot fly at supersonic speeds over populated areas during peacetime. The administration can easily get around this by being in a state of war. Oh, yeah, and other lesser pesky nuisances can be suspended during a state of war, such as the rule of law, the constitution, liberty, and even people’s right to life.

Quiet Lurcker says:

One Thing Not Mentioned

This memo almost – almost – gets away with it, by appeal to Hague Convention.

The Hague Convention states, in pertinent part, that soldiers or fighters who have lain down their arms for whatever reason must not be shot, killed, etc. This is how we derive a prohibition against killing (and ideally torturing) prisoners of war. The U.N. guidance on the subject states that leaders and planners are exempt from this provision, since they can be seen as ‘always’ at war, so to speak.

Okay. Fine. We can say by killing Aulaqi, we’re killing an enemy leader, and never mind that (at least according to news reports) he was sitting in a cafe at the time.

There’s just one small problem with that. Nowhere, and I do mean NOWHERE, have I ever seen any evidence, or even reports of evidence that Aulaqi was a leader in al quaeda in the Arabian Peninsula, that did not involve CIA or other highly questionable sources.

Since Aulaqi has not been shown to be an enemy leader by any reputable agency/source, the entire memo is utterly, completely, not to say totally, without merit and (were I a judge, and this memo evidence) bootless.

Anonymous Coward says:

Re: One Thing Not Mentioned

What? Are you saying you would trust whatever evidence they crapped up?

All credibility has been lost. I cannot trust that the registered sex offender down the road really raped that girl or if she changed her mind 2 weeks later.

I damn sure cannot trust that they would give me any reasonable proof that someone is a terrorist, and that is not even counting for the possibility that they are actually being truthful but do not know they are in error.

We have a long and stupid history of publicly assassinating innocent people!

Quiet Lurcker says:

Re: Re: One Thing Not Mentioned

The first 10 or 11 pages are blank. There is nothing there.

When evaluating evidence or information, I rely on several rules, of which one is: if it isn’t written down, it did not happen and/or does not exist.

In this instance, even if it was written down, and visible, I still would not accept the government’s argument. The government is relying on qualified immunity, but they have to support their claim somehow. Sadly, I only accept as true about 1% of everything the government says, especially in connection with terror. Aulaqi’s role as described by the government would NOT be part of that 1%, even if there was something there about it.

David says:

Re: Wait a second, flip this arround....

Wouldn’t you be able to justify assassinating the freaking president using their very own “logic”? Just seeing that argument made is darkly amusing,

It’s not all that funny. This argument likely carried quite a bit of weight for making Obama submit to the Military Industrial Complex (which has infiltrated all government departments thoroughly) after election.

Not everybody wants to end up like JFK.

Anonsters (profile) says:

In general, I’m in complete agreement with the outrage in the post, but this paragraph struck me weird, out of place, and indicating someone not all that informed:

Technically, we’re not “at war” anywhere in the world. There’s no declared war, other than the one on terrorism, which the DOJ terms (using the AUMF wording) a “non-international armed conflict.” If this is the justification, terming anything a “war on?” would justify extrajudicial killing, because no one expects murder charges to be brought against them during normal acts of war (i.e., combatants killing other combatants).

“Non-international armed conflict” isn’t some term DOJ or the AUMF conjured up out of nothing. It’s one of the fundamental types of conflicts recognized by the international laws of war. There are clear standards for whether a conflict is a NIAC or an IAC (“international armed conflict”), derived from universally-accepted international humanitarian law (what we in the U.S. call “laws of war”). Nor did the DOJ decide to say we’re in a NIAC simply because we’re in a “war on terrorism.” First, the Supreme Court itself has said we’re in a NIAC (see the Hamdan case).

There are plenty of serious questions to raise about the memo. Whether we’re in a NIAC isn’t one of them. (The scope of the NIAC, what territories we can carry out strikes in given the laws of war, evidentiary burdens before doing so, etc.–those are all fair questions, among many others.)

Anonymous Coward says:

I thought our constitutional rights as Americans, ended when we left the US border. Yet the DOJ states US citizens can be brought up on murder charges in America, if they kill another American citizen on foreign soil.

At the same time the DOJ states it’s law enforcement authority to kill dangerous suspects, extends into foreign jurisdictions.

I don’t see how the US Gov can claim their law enforcement authority extends to every country in the world. Can you imagine if other countries tried to extend their authority into America?

Team American World Police, indeed.

Padpaw (profile) says:

Re: Re: Re:

Sorry was a while ago when I read it and it stuck in my mind for how ridiculous it was. Best I could find was that the pentagon is training people that protesting is low level terrorism. I suppose you could disregard that point. Though in my defense I know I read it somewhere.

I did find this hilarious list of things that make you a potential terrorist suspect in America these days. When searching what website links I had stored

And yes I realize if you make the list of what makes a person a terrorist as broad as possible that gives you the excuse for killing anyone that disagrees with you so much easier.

John Fenderson (profile) says:

Re: Re:

“I am surprised Americans are not terrified of what their country has become.”

Lots are. In my part of the country, most people are much more afraid of the government than of terrorists. However, the regional differences in this attitude are quite sharp. Travel to certain areas of the nation and most people are terrified of the terrorists and consider the government to be benevolent.

Personally, I think being terrified (of terrorists or the government — but I repeat myself) is a bad, counterproductive reaction that is more likely to preserve the current status quo than to fix it.

That One Guy (profile) says:

Re: Re: Re:

Be interesting to see if or how well those areas of increased fear compare to the industries in those particular areas.

An area that is home to companies that profit off of continuous war and/or fear of attacks for example would have a vested interest in people being afraid and always looking for the government to step in and ‘protect’ them.

Rekrul says:

Re: Re: Re:

Travel to certain areas of the nation and most people are terrified of the terrorists and consider the government to be benevolent.

I have a friend who thinks that most everything the government is doing is justified because it “protects us from terrorists.” Any time I mention police abuses he takes the attitude that the person probably had it coming. In his mind, if a person isn’t doing anything wrong, they have nothing to fear.

John Fenderson (profile) says:

Re: Re: Re: Re:

“Any time I mention police abuses he takes the attitude that the person probably had it coming”

This is the most frustrating attitude, particularly since the logic fail is obvious: the police are not supposed to be punishing anybody, whether they “had it coming” or not. They are supposed to use the minimum possible force in order to bring suspects into the “justice” system where a judge or jury determines what their punishment should be.

Anything more than that is, by definition, abuse of their power.

That One Guy (profile) says:

Re: Re: Re: Re:

Next time they give you that excuse, maybe direct them to the always relevant, ‘First they came for…’ statement/saying.

First they came for the Socialists, and I did not speak out?
Because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak out?
Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out?
Because I was not a Jew.

Then they came for me?
and there was no one left to speak for me.

Anonymous Coward says:

Re: Re: Re:

Everyone has something to hide.

I’m certain that you have thought thoughts that you don’t want others to know you have thought. We all have, it’s human nature. Maybe you thought about something for all of 5 seconds and then thought to yourself: “no, i shouldn’t think that”, but you still thought it, and you don’t want anyone to know you did.

There are those who wish to punish you for simply thinking about something – so before you say you have nothing to hide, make sure you really know what it is that others are seeking to know.

John Fenderson (profile) says:

Re: Re: Re: Re:

“Maybe you thought about something for all of 5 seconds and then thought to yourself: “no, i shouldn’t think that”, but you still thought it, and you don’t want anyone to know you did.”

Interesting. I remember having this sort of thought process when I was a young child seeing TV ads for bras and trying (yet failing) to avoid looking at the model’s breasts.

But their came a day when that all stopped for me. I can honestly say that I can’t remember, in my adult life, having a single thought that evoked an “I shouldn’t think that” type of response. Nothing passes through my mind that I wouldn’t tell my wife or closest friends.

However, that only applies to people close to me. The only things I want anyone else to know are the things I actively choose to let them know. So, in that sense, almost everything about me is something I have to hide. Not because any of it is wrong in some way, but because it’s intensely personal and nobody’s business.

Hammer of (a pissed off) Thor says:

War on Nouns

Declare war a noun, and you’re home free (until all the sheep are sheared). (Although we lost the “war” on Poverty, there are plenty of other nouns.)

Big GuvMints have themselves turned into the Terrorists, with a continuous series of False Flag events and drills that happen to coincide with harm to innocents (911, Boston Marathon…)

It is always, ALWAYS a war on this or that… change the language, change thought, beat the drums of Divide, Conquer.

David says:

Re: "War" on Poverty

“If they don’t have bread to eat, why, let them eat bullets.”

Actually, that kind of domestic policy would be quite in line with the current foreign policy for “curbing terrorism”.

What the U.S. fails to understand is the only effective way to prevent another 9/11 is to stop deserving another 9/11.

David says:

Re: Re: "War" on Poverty

Well, not specifically. The U.S. justice system has evolved to a state where only rich people are able to afford justice.

While policemen do not belong to the rich class, their legal costs are carried by the state.

When a cop beats a poor person to death, he is basically just doing it because he can without significant fear of retribution, a privilege otherwise only reserved to multi-millionaires.

It is the system which is set up towards eliminating paupers. The individual policeman does not necessarily share the underlying philosophy. His main incentive here is job satisfaction.

Coyne Tibbets (profile) says:

Where should the line be

I’m somewhat divided on this subject.

Let’s consider a scenario: A U.S. citizen travels to…Elbonia…and joins the army, and is in the front line shooting at U.S. soldiers. Is there anyone here that would have a problem with our soldiers shooting back and killing him? But of course there is no due process to such a killing, and shouldn’t have to be.

On the other hand, if the justification for killing a U.S. citizen is because, “we heard from Ackbur’s best friend that citizen Joe is fighting against the U.S.,…” well, that seams a bit weak on justification and due process.

It seems to me that somewhere in between a line has to be drawn, because it seems clear to me that there is a line beyond which a “citizen” leaves the protection of due process. My first example is on the far side of that line, wherever it falls.

I’ve looked through this AUMF stuff, and I’m not sure the line is in the wrong place…or the right place. I know the DOJ isn’t exactly trustworthy these days, but could they be right on this subject?

David says:

The key argument is this:

thus that the intrusion on any Fourth Amendment interests would be outweighed by “the importance of the governmental interests [that] justify the intrusion…”

In a nutshell: government interests trump the Constitution.

This government and particularly the Department of “Justice” don’t even pretend to be operating legally any more.

The Constitution defines the limits of the government. Not the other way round. That’s the whole point of having a constitution in the first place.

So the U.S. government, in particular the Department of “Justice”, clearly states that they understand themselves to have abolished the Constitutional Republic and instantiated a tyranny that only mimics a republic when it is convenient.

As the United States have been constituted as a Republic, that means that the Department of “Justice” is acting to abolish the political order of the United States. That is actually meeting the rather narrow definition of treason spelled out in the Constitution:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

So now we have the “Confession in open Court”. One can hardly deny that the Department of “Justice” is here openly adhering to the Enemies of the Constitutional Republic with substantial aid.

Anonymous Coward says:

no one expects murder charges to be brought against them during normal acts of war (i.e., combatants killing other combatants).

It’s a different situation because al-Awlaki wasn’t on a battlefield. Wait! I’ve got it! Did al-Awlaki have a wife, girlfriend, or unrequited crush?

Why do I ask? Because love is a battlefield. And the government can rightfully cry, “No one can tell us we’re wrong!”

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