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
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?"