I have this feeling that a lot of people are going to mischaracterize the just-released OLC memo on the Anwar Al-Aulaqi strike. Just a guess. So before expressing any opinions on the subject or arguing with anyone about it, I thought I would start things out with a straight summary of the memo, which I am writing as I read it. The memo is dated July 16, 2010 and is signed by then OLC acting head David Barron (who has recently joined the federal bench).
The now-public portion of the memo begins with a consideration of 18 U.S.C. § 1119, which deals with the foreign murder of U.S. nationals. The memo argues that the statute would not cover the contemplated operations against Al Aulaqi—the proposed details which have not been revealed—because Section 1119 “must be construed to incorporate the public authority justification” for a killing, a justification which would “render lethal action carried out by a governmental official lawful in some circumstances.” A police officer, for example, is not charged with murder when he shoots a suspect within the lawful contours of his job, and Section 1119 must include some form of this exception. The question is whether the proposed operations fit within it and are thus exempted from the coverage of the statute.
The memo goes on to argue that the justification would cover the action both as contemplated by the Pentagon and as contemplated by the CIA. The basic reason is that the statute covers only “unlawful” killings, and the contemplated operation falls, rather, within the category of “lawful conduct of war” which is “a well-established variant of the public authority justification.” Congress, after all, passed the AUMF—thus specifically authorizing force against Al Qaeda. And, “a decision-maker could reasonably conclude that the AQAP forces of which al-Aulaqi is a leader are ‘associated with’ al Qaida forces for purposes of the AUMF,” Barron writes.
What’s more, he argues, Al Aulaqi himself “has engaged in conduct as part of that organization that brings him within the scope of the AUMF.” He has “been involved, through his operational and leadership roles within AQAP, in an abortive attack within the United States and continues to plot attacks intended to kill Americans from his base of operations in Yemen.” So the operation would take place against someone “who is within the core of individuals against whom Congress has authorized the use of necessary and appropriate force.”
The memo then turns to ask whether Al-Aulaqi’s citizenship “precludes” the AUMF from serving as the source of authority for targeting him. It acknowledges that there is no precedent directly on this point, though the Supreme Court did allow in Hamdi the detention of a U.S. citizen under the AUMF. Moreover, lower courts have relied on Hamdi “to conclude that the AUMF authorizes DoD to detain individuals who are part of al-Qaida even if they are apprehended and transferred to U.S. custody while not on a traditional battlefield.” In light of this, the memo argues, “we believe the AUMF’s authority to use lethal force abroad also may apply in appropriate circumstances to a United States citizen who is part of the forces of an enemy organization within the scope of the force authorization.”
This conclusion is not changed by the fact that the operation would take place in Yemen, rather than on the traditional battlefield: “we have not come across any authority for the proposition that when one of the parties to an armed conflict plans and executes operations from a base in a new nation, an operation to engage the enemy in that location can never be part of the original armed conflict,” the memo reads. The right approach is case- and fact-specific inquiry. And the facts in this case “support the judgment that DoD’s operation in Yemen would be conducted as part of the non-international armed conflict between the United States and al-Qaida”:
Specifically, DoD proposes to target a leader of AQAP, an organized enemy force that is either a component of al-Qaida or that is a co-belligerent of that central party to the conflict and engaged in hostilities against the United States as part of the same comprehensive armed conflict, in league with the principal enemy. Moreover, DoD would conduct the operation in Yemen, where, according to the facts related to us, AQAP has a significant and organized presence, and from which AQAP is conducting terrorist training in an organized manner and has executed and is planning execute attacks against the United States. Finally, the targeted individual himself, on behalf of that force, is continuously planning attacks from that Yemeni base of operations against the United States, as the conflict with al-Qaida continues.
Finally, the memo notes that DoD represents that it would conduct the operation in a fashion consistent with the laws of war. In light of all of this, Barron concludes that the operation as contemplated by DoD would comply with international law and be authorized by Congress and would thus “be encompassed by the public authority justification” and not result in an “unlawful” killing under Section 1119.
The memo’s consideration of the same question with respect to the proposed operation by the CIA is impossible to parse; too many redactions get in its way. It’s clear, however, that Barron argues that Congress did not intend to prohibit an operation of the type the CIA proposed. And it’s clear as well that he concluded “just as the combination of circumstances present here supports the judgment that the public authority justification would apply to the contemplated operation by the armed forces, the combination of circumstances also supports the judgment that the CIA’s operation, too, would not result in an ‘unlawful’ killing . . . and thus would not violate section 1119.”
The next section examines whether the proposed operation would violate 18 U.S.C. § 956(a), which criminalizes conspiracy to commit outside the United States an act that would be murder if that act were committed within the U.S. special maritime or territorial jurisdiction. For the same reason as Barron insists that Section 1119 must incorporate a public authority justification, he takes the same view here.
The operation would not violate the War Crimes Act either, he concludes, since that law prohibits targeting people taking no active part in hostilities—and Al-Aulaqi, by contrast, was “an active, high-level leader of an enemy force who is continually involved in planning and recruiting for terrorist attacks” and “can on that basis fairly be said to be taking ‘an active part in hostilities.'”
That brings the memo to the constitutional questions that have garnered the lion’s share of the attention in the debate and which were the subject of the white paper some time back. The memo notes that these issues were the subject of a separate OLC memo, which concluded that “al-Aulaqi’s U.S. citizenship [does not] impose constitutional limitations that would preclude the contemplated lethal action under the facts represented to us by DoD, the CIA, and the Intelligence Community.” The final section of the memo retreads this subject.
Again, significant redactions get in the way of parsing the analysis. But the memo embraces a Mathews v. Elbridge balancing test for its Fifth Amendment analysis. And it concludes that “a decision-maker could reasonably decide that the threat posed by al-Aulaqi’s activities to United States persons is ‘continued’ and ‘imminent’. . . .” Both agencies had said they didn’t regard his capture as feasible, though they intended to capture him if it were so. The memo concludes that there is no Fifth Amendment barrier to an operation “at least where, as here, the target’s activities pose a ‘continued and imminent threat of violence or death’ to U.S. persons, ‘the highest officers in the Intelligence Community have reviewed the factual basis’ for the lethal operation, and a capture operation would be infeasible—and where the CIA and DoD ‘continue to monitor whether changed circumstances would permit such an alternative’. . . .”
Similarly, the memo rejects Fourth Amendment barriers to the operation, applying a similar balancing test found in Tennessee v. Garner and Scott v. Harris. Even in domestic law enforcement, Barron notes, where an officer has probable cause that a suspect poses a threat of serious physical violence either to the officer or to others, it is constitutionally reasonable to prevent escape using lethal force. “In the present circumstances . . . 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.” Under such circumstances, the use of lethal force, the memo concludes, is not unreasonable and would not violate the Fourth Amendment.