More on secret U.S. memo that made it legal to kill a citizen

From the New York Times, more on a secret legal memo from 2010 that paved the way for the assassination of Anwar al-Awlaki, an American citizen in Yemen:

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 Obama administration memo was previously reported at the Washington Post.

Boing Boing editor/partner and tech culture journalist Xeni Jardin hosts and produces Boing Boing's in-flight TV channel on Virgin America airlines (#10 on the dial), and writes about living with breast cancer. Diagnosed in 2011. @xeni on Twitter. email: xeni@boingboing.net.

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cjeam

I’m quite sure that the Chinese, North Korean, and Burmese governments would like to congratulate the American government on the murder of one of their own citizens. They’re probably grateful the American executive have taken some of the heat and attention away from them, but I expect they’ll still be willing to offer further lessons in restricting freedom of expression and opression of the media so the next time no one hears about it at all.
- http://www.facebook.com/nickfifteen فلليپ وان ليو
  
  One person does not make a nation a “murderous nation” akin to North Korea.
  
  If one person is all it takes, however, then ALL nations are akin to North Korea. NO nation is guiltless in the murder of its own citizens.
http://twitter.com/krshock Carlos N. S.

¿Why the outrage?: If you allow them to kill, they can kill everybody they want. ¿Isn’t the “assasination” word terrible enough by itself?

(Hi from chile, I hope you people don’t give to your goverment moral permission to perform murders in my country) :-)
- phisrow
  
  I think that, unfortunately, a certain “Operation Condor” may have answered your questions on that subject.
  
  On that subject, what is it about American politicians who win Nobel peace prizes? The track record is not good…
  - Antinous / Moderator
    
    On that subject, what is it about American politicians who win Nobel peace prizes? The track record is not good…
    
    It’s like winning a Newcomer award or being on the Fresh Faces list in the entertainment industry. It’s a curse.
  - digi_owl
    
    Think of it as Norwegian politicians trying to curry favor with big bro across the atlantic…
- SHeadius
  
  (Hi from chile, I hope you people don’t give to your goverment moral permission to perform murders in my country) :-)
  
  Who is “you people”?
  Where this blog is located? Where the majority of the audience for this blog is located? Some audience you idealistically think this blog caters to?
Walter Reade

It’s not at all clear to me why he couldn’t have been tried in absentia. Rule 43 of the Federal Rules of Criminal Procedure clearly states that a defendant waives the right to be present if he’s “voluntarily absent after the trial has commenced.”
- Another Kevin
  
  He could be tried in absentia if he absents himself from a trial that has commenced.
  
  But the trial can’t start without him. He has to be there to be arraigned.
phisrow

So, if I understand this correctly, the OLC memo argues that “Just take the CIA’s word for it” is sufficient evidentiary basis for a ‘conviction’.

That seems particularly disturbing. The notion that you can’t always capture a suspect alive is dangerously elastic; but has a core of reasonableness if not stretched. The notion that difficulty in capturing would, effectively, obviate criminal standards of evidence seems as unjustifiable as it is dangerous(never mind the practical matter of the fact that the CIA has sometimes been better at hiring dangerous people than detecting them…)

I don’t understand what possible legality there could be to not conducting a trial, even if you can’t obtain the suspect in person.
http://www.facebook.com/nickfifteen فلليپ وان ليو

I don’t understand why everyone is getting their panties in a wad over this (and I thus am SERIOUSLY open to anyone who can explain this to me), but didn’t Anwar al-Awlaki renounce in American citizenship AND the Yemeni government put him on trial (in abstention), find him guilty and thus wanted him arrested or otherwise brought in “dead or alive”? If he didn’t renounce his citizenship, didn’t the US Gov’t then denaturalize him as an American citizen?

The way everyone is acting, they make it sound like A a-A was just some random American citizen the US Government picked off from the side of the road without a trial, versus someone wanted by an American ally–in this case, Yemen–and that the US Gov’t was more than willing to oblige to support their ally?

But I’m not trying to be sarcastic, I SERIOUSLY would like to know more about the facts (not opinions) of this situation and thus I openly accept that the facts–and the opinions I possess based on those facts–could very well be wrong. (I love learning and love knowing facts over ideology that support my views.)
- Mister44
  
  I tend to agree with you. The problem is all the grey areas from waging a war on an ideology, vs a country.
  
  Still, I think there is a big difference between taking out someone with known terrorist ties in a hostile country, and shooting them as they walk down a street in NYC or hanging out in an orchard in France.
- http://codeflow.org/ Florian Bösch
  
  The issue is twofold.
  
  1) The conduct of war (as set out by various conventions and treaties) narrowly defines when it is ok to kill an enemy, and when it is not. In particular, it does not allow the wanton assassination of non-combatants (even if they where combatants at some point). It particularly does not condone the killing of people outside of the conflict engagement, and it absolutely does not condone the killing of civilians. So under the conduct of war, the killing was not defensible.
  
  2) Which makes this an affair of the law. The law in turn is based on the constitution, which applies to each citizen. The declaration of human rights defines nationhood as unalienable, so you cannot “denounce” your citizenship just like that. You have been born an american, you stay an american for american law, no matter what you do or say. The law in turn is very specific about the administration of punishment for crimes, and in no shape or form does it allow any kind of death penalty for a citizen without due process. In particular, it does not allow the death penalty by arbitrary means such as drones etc.
  
  So to sum it up, the assassintion of american citizens without due process by way of a drone strike is:
  - Illegal under the conduct of war (and illegal under the geneva conventions)
  - Illegal under american law (and illegal as a proper administration of the death penalty)
  - Unconstitutional
  - Against the declaration of human rights
  
  So it does not matter what kind of scumbag the guy was, the united states cannot legally act in the fashion that they did. And if this is allowed, it sets an extremely dangerous precedent.
  - Mister44
    
    RE: “So it does not matter what kind of scumbag the guy was, the united
    states cannot legally act in the fashion that they did. And if this is
    allowed, it sets an extremely dangerous precedent.”
    
    Maybe so, but Washington’s lawyers disagree with you.
    - http://codeflow.org/ Florian Bösch
      
      The constitution is above the law. It is the cornerstone of a democracy, and it applies to all citizens equally. If you allow temporary political interests to override the constitution, you are not living in a democracy, you are living in a military dictatorship.
      - Mister44
        
        Therein lies the problem. The lawyers are the ones who interpret and apply the law. Only if it gets contested does a judge have a say in the matter, with the Supreme Court being the final say. But every administration will have their lawyers spin the law their way. There are lots of law others have called unconstitutional, with only a small amount of them ever being contested to the point of having a supreme court ruling. And the administration lawyers aren’t alone, there are supporters on both sides of the various issues.
        
        Even the constitution is open to interpretation. A well known example is whether the 2nd Amendment is an individual right or not.
- Genre Slur
  
  Does Anwar al-Awlaki’s status concerning arbitrarily-designated model projections on earth change how much you value his right to live? If so, phew…you and I do not live in the same areas of ‘reality’.
http://www.facebook.com/nickfifteen فلليپ وان ليو

In any case, the modern state of warfare has certainly blurred the lines between nation-states in armed conflict with clearly recognized combatants, nation-states acting in defense of one’s borders/allies and police actions meant to patrol and defend against the random acts of criminals whose actions and “uniforms” are not clearly defined or recognized. As such, while it’s obvious that the things that are acceptable in one situation is not in another, the fact that these lines have been blurred means that it’s harder to justify one’s actions in one situation that they wouldn’t need to justify in another.

…. Er, well, due process is something that certainly applies to all of the above, but it’s also different when you’re dealing with combatting nation-states who BOTH have due process ingrained in their system versus dealing with an opponent of a nation-state which does NOT recognize nor willing practices due process.
….
Another question is… if Anwar al-Awlaki WASN’T an American citizen, would the meaning of and/or details surrounding his death change anything in your eyes?

I’ve noticed that people tend to focus on the man-made details of a situation over what actually physically happened, for better or for worse. That is to say, the fact that our brains “fill in the gaps” (“gestaltism”?) tends to make us think something is there–real and exists–when it really isn’t. (Whether or not this situation is a “situation” because of clearly defined and “obvious”
actions versus the way our minds tend to “fill in the gaps” with things that really don’t exist… I’m not gonna try to work that out right now.)
http://profiles.yahoo.com/u/42THFKXIPMJHQBIH6OPI4RVIDY Thebes

A memo does not over-ride US Law, nor it’s Constitution.
Extra-legal assassination violates the right to due process recognized in the Bill of Rights.
Hold the btards accountable and send them off to “the hole” for life.
Beldar

It’s never been illegal for the government to kill a U.S. citizen who has been making war upon the United States. See, e.g., American Civil War; see also Ex parte Quirin, 317 U.S. 1 (1942).
- cellocgw
  
  been done to death already: The USA is not at war with {most_middleeastern_countries}, and AlAlwaki has not declared war on the US. Nor is he a member of any known militia. ”Al-Quaeda” does not count. It’s a terrorist organization, not a country.
thatbob

As a thought experiment, let’s suppose he actually was tried in absentia, found guilty, and condemned to death. And then we sent the predator drones to assassinate him. Would there be no outrage over it then?

Because I think there still would be outrage over it. “American citizen tried, convicted, condemned, and executed in absentia!” would go the complaint. I think, bless us, that we would still have deep reservations about what had just gone down.

However, I’m not entirely sold on the current objection: that he received no due process. Are we not in a Congressionally-approved war on Al Qaeda? And was he not found, by the generals and intelligence agencies fighting this war, to be abroad, organizing Al Qaeda, to the degree that he was a valuable target? That, I think, may have been his due process. I’m about 75% okay with that. It’s not ideal, but I can’t think of a perfectly ideal alternative. As in my hypothetical above, there would probably have been objections or outrage over it, however it was done, due to our better natures.

But even if that is a stretch of what any of us consider “due process,” it may not matter: the 5th Amendment *specifically* makes exceptions to due process for cases “arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger.”

I mean, like it or not, it’s a war after all. And not even a b******t war, like the War on Drugs or the War to Destabilize Iraq For a Very Long Time.
- grimc
  
  And not even a b******t war, like the War on Drugs
  
  Conflicts with no end in sight, giving corrupt regimes billions of dollars and sweetheart arms deals that do more to exacerbate and extend problems than solve them, the real approach to “winning” the war requiring some serious introspection of how the US contributes to/creates the problem–
  
  No only is it like the War on Drugs, it’s the War on Drugs on steroids.
journey46

JFK learned the hard way.
Obama does what he is told.
CharredBarn

Ohhh.. what Aw-laki maaaan… heee wa-assss!

Emerson Lake and Bomber
n8zilla

war were (not) declared.

but seriously… if our politicians want to have war powers, perhaps they might want to actually DECLARE WAR. it’s not hard. we need to make them follow the rules, else why bother having rules at all?
Marco Antonio Morales

Killing your own citizens (and yourselves) seems part of US culture, all the way back to the Wild West and beyond. Shooting, hanging – or executing… by each other or by authority.

That’s why this seems like no-news to me. We’ve known about the US’ attitudes towards ‘undesirables’ (American or not) for a long time. It’s a strong element in movies, books (kill the rogue agent! Silence the spy! I could tell you, but I would have to kill you!) and in reality (Gitmo, anyone? Death penalty?).

Just like consensus is an integral part of Dutch culture, “eliminating” perceived threats (be them racial, real or imagined) is an integral part of US culture, at home and overseas.
- http://codeflow.org/ Florian Bösch
  
  We’ve known about the US’ attitudes towards ‘undesirables’ (American or not) for a long time.
  
  You know of course that the extermination of “undeesirables” is always a worrying sign when executed by governmental authority.
abstract_reg

A lot of people have been shocked by this assassination, and rightly so, however I don’t think this is the first time the United States has murdered one of its own. I’m not a historian but it would be very surprising if during the Cold War something similar to this didn’t happen. The difference is, we know about this death, and we don’t know about the others.
MadRat

Change we can believe in.
Green Ghost

I guess I’m wondering how this is any different than a cop shooting someone who is threatening to kill innocent citizens? We know what he was trying to do. We couldn’t arrest him. He wouldn’t surrender. He was going to continue to try and kill people until we stopped him. I can go along with a trial in absentia, or revoking citizenship but I think that’s just window dressing. Should an American citizen working with the enemy be exempt from attacks on that enemy? What’s the next step, al Qaeda finds an American citizen to sit with all their leaders so we can’t attack them for fear of killing American traitor?
- http://twitter.com/sqlrob Rob
  
  It’s not.
  The cop would be brought up on charges if he shot someone that was just threatening. Bring the guys that approved this up on charges.
- http://www.openbuddha.com/ Al Billings
  
  Because when a cop shoots someone threatening civilians, the threat is happening RIGHT THERE in real time. In your hypothetical, you have a gunman or a bomber about to harm people and a cop having no means but lethal force to protect lives.
  
  This guy wasn’t holding a gun. He wasn’t proven, in a court of law, to be guilty of any crimes. No evidence in court, no trial by jury, no conviction. He wasn’t running down the street with a gun shooting people. He was sitting in a building with other folks and we blew it up. This is not even vaguely the same thing.
  
  By our OWN laws, we needed to have jury trial and convict him based on documented evidence that stood legal tests. THEN he could be sentenced to death, legally, and sentence carried out. Either there wasn’t enough evidence to do that (as you don’t need him present to have a trial) or the administration just couldn’t be bothered. Either way, it is illegal under US law.
http://BrianEaston.net/ Brian Easton

Anonymous sources talking off the record about an unreleased memo. That’s some real substance there.
GuyInMilwaukee

I guess they were right about the death panels.
Wally Ballou

(1) this is another entry for the “They told me if I voted for McCain….and damned if they weren’t right!!” file.

(2) c’mon, this is obvious. If the military captures this guy, Obama and Holder are in for another intense round of handwringing about whether or not to give him a trial, or stick him in a cell until he dies of old age (or at least until 1/20/2013) with their base demanding a civilian trial, and the rest of America wanting a military tribunal followed by a firing squad. So the drone attack is the path of least resistance.
Alex Vaivars

Gotta say I disagree with the headline. It’s STILL illegal to kill a U.S. citizen without due process. Just because some White House lawyers say it’s legal doesn’t make it so.
http://www.ecoevolution.org/ Ian G

Xeni, I think the title of the article here at Boingboing is incorrect and (unintentionally I’m sure) misleading.

A memo (as I understand it) doesn’t make it legal for the Obama Administration to perform an extrajudicial killing, it is their legal argument for why they believe they can do it. Sort of like writing up an excuse before hand. Of course they believe they can do it, they are the ones pushing the policy, but they aren’t the ones that can determine whether or not it is legal, only courts can decide that… and that its why the title of this piece is wrong.

More broadly, this is a sinister development. Obama’s intelligence and military agents (which are basically Bush’s agents) are exceeding their authority by claiming powers that they don’t have. The “memo” is just the same old crypto-fascist circular logic we’ve been hearing since Nixon’s “when the President does it, that means it’s not illegal” line. What makes this a step beyond Bush and Nixon is now Obama is laying the groundwork for not just detaining American citizens, but actually killing them purely on the say so of the executive. This is a violation of domestic and international law, executive order and most importantly the Constitution. Killing people for political reasons, which these killings are without evidence-supported court oversight, is an affront to our democracy and treason against the letter and principles of our nation.
http://twitter.com/chuckmonkey2010 Chuck

So if Osama bin Laden had written himself a memo, stating that the attack on 9/11 was legal, would that have made it legal? If someone convicted of murder produces a hand-written “get out of jail free” note, should they be released?
tsa

I think the fact that the US killed this guy isn’t nearly as bad as the fact that they entered a foreign country to kill him without telling the gouvernment what they were up to.
http://adavies.org/ Andrew Davies

Well, as long as there’s a memo, I guess it’s ok…