Yemen Drone Strike Memo Released By Feds, And Here's Exactly What It Tells Us
A federal court authorized the release of a government memo Monday — am memo used to justify the 2011 Yemen drone strike that killed U.S. citizens, as well as suspected al-Qaeda leader Anwar al-Aulaqi, who was born in the U.S. The 31-page memo confirmed what was already made known by the Justice Department's white paper last year — the U.S. can strike against a suspected top al-Qaeda leader who poses "an imminent threat of violent attack" to the United States, even without evidence.
However, many paragraphs and pages that would explain how U.S. officials came to know that al-Aulaqi was even an al-Qaeda leader — let alone how he was deemed to be an "imminent threat" to the U.S. — were whited out due to national security concerns. But it did, for the first time, show that the CIA was involved, and it did justify the attack based on a law enacted shortly after 9/11 where the president could go after any organizations that attacked the U.S. or planned to do so.
The document was penned by then acting chief of the Justice Department's Office of Legal Counsel David Barron, and largely focused on justifying the killing of al-Aulaqi. According to the memo, al-Aulaqi was involved with planning targeted attacks against the U.S. and because he is a member of al-Qaeda, the U.S. could use force against him.
In the memo, Barron writes the following:
Based upon the facts represented to us, moreover, the target of the contemplated operation has engaged in conduct as part of that organization that brings him within the scope of the AUMF (Authorization for Use of Military Force). High-level government officials have concluded, on the basis of al-Aulaqi's activities in Yemen, that al-Aulaqi is a leader of AQAP (Al-Qaeda in the Arabian Peninsula) whose activities in Yemen pose a "continued and imminent threat" of violence to United States persons and interests. Indeed, the facts represented to us indicate that al-Aulaqi 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. The contemplated DoD (Department of Defense) operation, therefore, would be carried out against someone who is within the core of individuals against whom Congress has authorized the use of necessary and appropriate force.
Barron, who is now a First Circuit Court of Appeals Judge, wrote in the 2010 memo that al-Aulaqi's U.S. citizenship does not impose "constitutional limitations that would preclude the contemplated lethal action" based on details from the CIA and Department of Defense.
Barron wrote that based "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.'" He also writes both the Department of Defense and CIA intended to capture al-Aulaqi instead of target him, but that capture would likely be "infeasible."
The drone strike did target al-Aulaqi and also killed three other people, including Samir Khan, an editor for an al-Qaeda online magazine, as well as al-Aulaqi's son, Abdulrahman, and another U.S. citizen.
According to the memo, this strike was intended to "minimize civilian casualties."
The targeted nature of the operation would help to ensure that it would comply with the principle of distinction, and DoD has represented to us that it would make every effort to minimize civilian casualties and that the officer who launches the ordinance would be required to abort a strike if he or she concludes that civilian casualties will be disproportionate or that such a strike will in any other respect violate the laws of war.
The Second Circuit Court of Appeals released this document — redacted at the request of the government based on national security concerns — in connection with a public records lawsuit that The New York Times and American Civil Liberties Union filed against the U.S. government.
Vice President and Assistant General Counsel for The New York Times David E. McCraw told the AP that this memo "is a critical addition to the public debate over targeted killings and should fuel a richer discussion of the legal and security issues that are at the heart of that debate."
American Civil Liberties Union Deputy Legal Director Jameel Jaffer says while the memo release was long overdue, this is a first step towards the government's transparency. "The release of this memo will allow the public to better understand the scope and implications of the authority of the government is claiming."
In a statement, Jaffer also said:
There are few questions more important than the question of when the government has the authority to kill its own citizens. ... The drone program has been responsible for the deaths of thousands of people, including countless innocent bystanders, but the American public knows scandalously little about who is being killed and why.
Leaders of the ACLU say they will continue to fight for additional documents surrounding the drone program to be released, especially since this particular memo didn't disclose much more information than the Justice Department's white paper, which was released last year.