NYTimes News Headline: Secret U.S. Memo Made Legal Case to Kill a Citizen

[Mira]

Secret U.S. Memo Made Legal Case to Kill a Citizen
By CHARLIE SAVAGE
Published: October 8, 2011

WASHINGTON — The Obama administration’s secret legal memorandum that opened the door to the killing of Anwar al-Awlaki, the American-born radical Muslim cleric hiding in Yemen, found that it would be lawful only if it were not feasible to take him alive, according to people who have read the document.
Anwar al-Awlaki, a militant cleric who was an American citizen, was killed in Yemen.

The memo, written last year, followed months of extensive interagency deliberations and offers a glimpse into the legal debate that led to one of the most significant decisions made by President Obama — to move ahead with the killing of an American citizen without a trial.
The secret document provided the justification for acting despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war, according to people familiar with the analysis. The memo, however, was narrowly drawn to the specifics of Mr. Awlaki’s case and did not establish a broad new legal doctrine to permit the targeted killing of any Americans deemed to pose a terrorist threat.


Read More:
http://www.nytimes.com/2011/10/09/world/middleeast/secret-us-memo-made-legal-case-to-kill-a-citizen.html?emc=na

[Canuckistanian]

1. "narrowly drawn to the specifics of Mr. Awlaki’s case"

That's the part that chills me.

[grasswire]

4. how is this different from the caprices of midieval monarchs?

Off with his head!

That is an attack on the protections each one of us thought we were guaranteed.

[Canuckistanian]

10. In a way, it's much worse

We've supposedly progressed beyond the caprices of monarchs and despotic leaders with VERY CLEAR laws and directives designed to end these excesses.

Now, with fancy legal pronouncements from the Office of Legal Counsel and secret panels, and hey presto! All those laws can be safely ditched in the name of.... whatever they see fit make a justification for.

It's even worse than dictatorship. It's a systematic conspiracy.

[EFerrari]

11. But how does that account for the other American killed in the attack

or the other eople killed in the attack or the rest of the president's hit list?

[Gregorian]

2. It's our departure from "imminent threat" that is so disturbing.

There is nothing complicated about it. It is one of the most basic foundations of humanity.

[democrank]

3. This is deeply disturbing.

[chill_wind]

5. One of the newest shockers here

is that Marty Lederman was one of the two names attached to this memo. IANAL, but seem to remember his writings all through the Bush years at Balkinization were generally very critical of most of the Bush Doctrine. And I had always figured, during the transition right after the election, at least, that was why both he and Dawn Johnsen were picked. I'm not the only one totally surprised.

http://www.emptywheel.net/2011/10/08/how-can-samir-khan-be-collateral-damage-if-olc-memo-restricted-civilian-death/#comments

Interesting that both Barron and Lederman departed the OLC almost within a month of producing that.
I have no idea what, if anything, that means.

K & R.

[chill_wind]

6. Bruce Ackerman at Balkinization has this today

Sunday, October 09, 2011
On the Presidential Assassination of American Citizens

Guest Blogger

Bruce Ackerman

It’s important to distinguish between two issues raised by the drone attack that killed Anwar Al Awlaki – the American citizen/ Moslem cleric who gained notoriety by his jihadist sermonizing over the internet. So far, the focus has been on the president’s legal authority to order drone strikes in Yemen and other places far removed from the battlefields of Afghanistan/Pakistan and Iraq. This is the subject of an OLC memo, which President Obama unaccountably refuses to make public (in a suitably redacted form). Instead, it is trying to deflect the pressure for publication by leaking a summary to Charlie Savage who has outlined the memo in a front page story on Sunday’s Times.

see the rest - http://balkin.blogspot.com/2011/10/on-presidential-assassination-of.html

[kenny blankenship]

7. How legal can a policy really be if the document supposedly justifying it is a closely held secret?

The policy of assassinating Americans is legal, according to a document that the American public is not allowed to see...

[chill_wind]

9. I guess we'll just have to take Charlie Savage's word.

Constitutional scholars haven't been allowed to see it. So far. (We're probably looking at years of FOIA's flying and court stalls and appeals under the states secrets arguments that have been typically successful under Bush and Obama admins for years now).

[chill_wind]

8. And at Lawfare:

Kenneth Anderson on Charlie Savage’s Story and Secrecy


by Benjamin Wittes

I was planning to write a piece this morning pointing out that Charlie Savage’s story–to which I linked last night and which describes in some detail the legal rationale in the OLC opinion authorizing the Al-Aulaqi strike–actually heightens the problem of the administration’s refusal to discuss the drones program in public. But Ken Anderson has beaten me to it over at Opinio Juris:

As Jack Goldsmith and Ben Wittes have argued at Lawfare, and I have argued here, although it is certainly helpful to have a summary in the press about the issues discussed in the secret memo and their resolution, the fact that it is merely leaked (quite apart from not making available the actual text) is a grave part of the problem here. If it can be shown to press people and written about at length, then it should be made available publicly, as official policy and part of the process of defending the policy. Leaks de-legitimize policy over the long run, and reforms to the accountability and oversight of “covert” actions that are not truly covert need to provide some mechanism for officially releasing information on their legal justifications.It’s good that this information is out there; it is bad that it was put out there through leaks.

(see all- snipped)

I doubt very much that this is an entirely unauthorized rogue “leak”–in the sense that there are secrets here that the government very much wants to keep but that some individual decided on his or her own to disclose. I suspect, rather, that this is a situation in which the government–or some senior official therein–has decided to disclose the memo without disclosing it. This approach is fully consistent with the larger strategy of the administration on the subject of drones and targeting killing–to talk about the subject a great deal by way of claiming credit for big counterterrorism successes but to do so without talking about it at all officially. And it’s wrong. Either this program is a secret, in which case the government should stop talk to Charlie about it, or it’s not a secret, in which case it should figure out what is releasable in the memo and release it. There is no middle ground here–no legitimate middle ground, anyway–in which the right approach is coyness.

http://www.lawfareblog.com/2011/10/kenneth-anderson-on-charlie-savages-story-and-secrecy/

Quite a few other essays on the emerging topic there as well.

[bluestate10]

12. A citizen that worked to kill as many fellow citizens as he possibly could.

The order was just and met constitutional muster.

[Exilednight]

13. You made the claim: "A citizen that worked to kill as many fellow citizens as he possibly could"

So where is the trial to prove it? Innocent until proven guilty - is that not our motto? How do we know it passes constitutional muster?

[chill_wind]

14. There's no consensus whatsoever

right now that this passes constitutional muster. That's in fact what almost all of the constitutional academics across the spectrum are saying. There's no way to judge, simply based on the selective leaking to one media person chosen for the PR task.

[msanthrope]

15. Because you don't need an indictment or trial to kill a military target.

If you join al-Qaeda, you are a military target. This is not new.

Generally, one should refrain from joining Al-Qaeda and posting videos on Youtube claiming such.

[Exilednight]

16. Is Al Queda a military organization or terrorists? n/t

[msanthrope]

25. Does it matter? They are the subject of a invocation of the War Powers Resolution.

They get killed, or captured. It's really up to them.

[neverforget]

28. And who puts them on the kill list? Who are these people? What are their

backgrounds? What is the evidence? What happens if they make a mistake like mistaken identity?

We don't know any of it because it's Top Secret.

[WinkyDink]

19. Completely bogus. Did we kill members of the Communist Party here?

[msanthrope]

24. We hadn't declared war on the Communist Party. We have on al-Qaeda. nt

[Exilednight]

29. Yeah, the cold war was just misnamed. n/t

[BlueCheese]

26. Not referring to anybody in particular...

... but it's striking how many arguments in support of killing al-Awlaki without establishing guilt by trial rely on the claim that he was guilty, so that we didn't need a trial.

[WinkyDink]

18. But how do you know? There was no trial with evidence presented.

Have you heard of Nuremburg? I believe some trials there set the Western World standard for jurisprudence and war crimes.

[KoKo]

27. +!!!!

[L. Coyote]

17. Where does it say Obama can kill Americans?

Bill of Rights, Amendment V

"nor be deprived of life, liberty, or property, without due process of law"

=================
The founders said it all:

The Constitution
Article. II. Section. 1.
The executive Power shall be vested in a President …
… Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
Section. 2.
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service …
… He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States …

The Bill of Rights
Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

=================
I need not say anything myself, the founders said it all.

[WinkyDink]

20. It's the "John Yoo Amendment."

[ThomWV]

21. This will make John Yoo look like a saint. Mark my words, Obama will be impeached over this.

[L. Coyote]

22. As per the Constitution and Bill of Rights, he should be tried for those murders.

[KoKo]

23. K&R...well written by Charlie Savage.

[Fool Count]

30. Apparently, the new legal principle at work here is that

anything is legal as long as you can produce a "secret memo" which says it is. The reason that memo has to be secret is that nobody should know about
ten other secret memos that may have come to a different conclusion. With whole armies of lawyers at their disposal, how hard can it be to ask for a
hundred "secret memos", pick out the one you like the most and make it less "secret" than others? Obama's ass is covered - he has a well-argued legal
opinion from reputable lawyers. The lawyers themselves can't be prosecuted for just expressing their opinion either. So it is all completely air-tight
legal-wise. It's just brilliant. What about the Constitution and the laws? As long as they don't say explicitly that it is illegal to kill US citizens using
drones, it's just a matter of opinion.