Secret: Drone Kill Americans Memo, Secret Laws, Heavily Redacted

Secret Drone Kill Memo, Secret LawsSecret: Drone Kill Americans Memo, Secret Laws

The memo used to justify the legal killing of American citizens on foreign soil by drone strikes has finally been released Monday by the Department of Justice after months of legal wrangling and pressure from the ACLU and New York Times.

The legal request for the memo came about after the 2011 deaths of three U.S. citizens in Yemen by drone strikes.Anwar al-Awlaki and Samir Khan were killed in September 2011 while al-Awlaki’s son, Abdulrahman, was killed in October of the same year.  All three of those killed were naturalized U.S. citizens or born as such, as stated by the memo, but were also suspected of aiding al-Qaeda.The Authorization to Use Military Force law, signed days after Sept. 11, 2001, is used largely in defense of the killing of the three without a trial.

The memo states, “the [2001 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.”

Therefore, the government seems to believe the status of a person as an enemy combatant supersedes any previously held status by the individual as an American citizen, according to the precedents set within the memo.

much of it was actually redacted, leaving many of the details and reasons totally secret. Jameel Jaffer, the ACLU lawyer who helped get this heavily redacted memo released in the first place has written up an analysis which notes how ridiculous the redactions are and the fact that the memo actually points to another secret memo that reveals more details:

In one instance, the long sought-after drone memo references another legal memo that concluded that al-Awlaki’s American citizenship did not “preclude the contemplated lethal action.” From this reference, we can deduce that the OLC authored a separate drone memo assessing – and dispensing with – the proposition that an American citizen had the right not to be deprived of his life without some form of judicial process. But that earlier memo, treated by the executive branch as binding law, is still secret.

This kind of thing is all too common, but tremendously problematic. For folks actually trying to understand what the law actually is the fact that people have to play this bizarre game of 20 questions, seeking secret laws and interpretations, only to get breadcrumbs pointing to other secret interpretations of the law is just ridiculous. We’ve complained in the past about the dangers of a secret law, but just the fact that the American public needs to play this stupid game, and the DOJ appears to have broken up the secret interpretations of the law into different sections, making it that much harder to track it all down, raises serious questions about what sort of government we have, and how Americans can be expected to respect, let alone obey, the law when we can’t even be told what it is.

In one instance, the long sought-after drone memo references another legal memo that concluded that al-Awlaki’s American citizenship did not “preclude the contemplated lethal action.” From this reference, we can deduce that the OLC authored a separate drone memo assessing – and dispensing with – the proposition that an American citizen had the right not to be deprived of his life without some form of judicial process. But that earlier memo, treated by the executive branch as binding law, is still secret.

The American public will not be able to evaluate the lethal drone program without far more information:

  • The government should disclose the list of countries in which it has carried out targeted killings.
  • It should disclose records relating to bystander casualties, so that the public can judge for itself whether the government’s targeting decision are as discriminating as the government says they are.
  • It should disclose its investigative reports into past strikes – at least into those strikes that are reported to have resulted in bystander casualties.
  • It should also disclose the OLC’s other memos relating to the targeted-killing program – including the memos that relate to targets who are not American citizens. (The court that published the drone memo, notably, also ordered the government to submit other OLC memos for review and possible disclosure.)
  • And it should disclose the factual record that led the OLC to conclude that the extrajudicial killing of Anwar al-Awlaki – again, an American citizen who was located far from any conventional battlefield – would be lawful.

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Sources: https://www.techdirt.com/articles/20140624/22165127677/enough-secret-law-newly-released-doj-drone-killing-justification-memo-points-to-another-secret-drone-memo.shtml , http://www.theguardian.com/commentisfree/2014/jun/24/obama-drone-memo-secret-law-transparency

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