Full Disclosure: Fighting secrecy, one drone memo at a time
JAMES ELI SHIFFERThe death warrant for an American-born terrorist carried an innocuous title.“Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Actions Against Shaykh Anwar al-Aulaqi.”
That memo, written in July 2010 by a U.S.
Department of Justice lawyer, gave the Pentagon and the CIA legal
backing for the drone-fired missile that killed al-Awlaki, also known as
al-Aulaqi, in Yemen in September 2011. The fact that the public is
finally reading it now shows both what’s good and what’s bad about the
law that’s supposed to keep government from operating in secret.
Starting in 2010, news organizations and nonprofit
groups filed Freedom of Information Act requests for the memo. In late
June, a federal judge ordered the memo’s release, handing victory to the
American Civil Liberties Union and the New York Times.
“These are memos that our government uses to
support the fact that they can kill U.S. citizens without what most
people view as full due process,” said Eric Ruzicka, a Minneapolis
lawyer with Dorsey & Whitney and part of the team representing the
ACLU. “It concerns me when our government has processes that are not
open. We aren’t a government of secret laws.”
Born in New Mexico in 1971, al-Awlaki was a Muslim
preacher seen as a moderate after the 9/11 attacks who turned against
his native country and became a leader of Al-Qaida of the Arabian
Peninsula. Before his death, al-Awlaki was already well-known from media reports
for his role in the failed 2009 attack on a Northwest Airlines jet by
the “underwear bomber,” as well as his communications with Fort Hood
shooter Nidal Hasan, who killed 13 people in 2009, and the would-be
Times Square car bomber in 2010.
Ruzicka estimated that his firm logged more than a
thousand attorney hours pursuing the FOIA litigation. What emerged in
June, on the order of the U.S. Court of Appeals for the Second Circuit,
was a memo scrubbed of any details of the case against al-Awlaki, but
still offering insight into how the Obama administration justified the
assassination of an American citizen overseas.
Written by David Barron, then a lawyer with the
Justice Department’s Office of Legal Counsel, the memo was tailored to
al-Awlaki’s individual circumstances. An attack on him was allowed under
Congress’ post-9/11 authorization of military force, and his capture
was “infeasible at this time,” Barron wrote. The memo then describes how
his killing would not amount to a war crime or be barred by the Fourth
or Fifth Amendments.
One of the main questions was whether al-Awlaki was
protected by a 1994 federal law that prohibits the murder of Americans
overseas. Barron wrote that the history of the legislation and court
rulings made it clear that the law doesn’t apply to those killed under
the “lawful conduct of war.”
While much of the legal reasoning in Barron’s memo
was already public, the memo’s release did bring some facts to light,
according to Ruzicka. No judge reviewed the opinion before it was
adopted as policy. It’s also the first acknowledgment that the CIA has
an “operational role in the targeted killing program,” he said.
And it refers to additional documents that Ruzicka hopes will emerge in the weeks and months ahead.
“This is one of the first cases since 9/11 where the court pushed back against secrecy,” said Matt Ehling of Public Records Media,
a St. Paul nonprofit involved in the FOIA fight. (I should say here,
Ehling and I serve together on the board of the Minnesota Coalition on
Government Information.)
Public Records Media wasn’t part of the big court
decision in June, but it’s pursuing other drone records. From Federal
Aviation Administration records, the group has learned that the
Minnesota Army National Guard, the University of North Dakota and the
U.S. Border Patrol all have approval to fly drones over Minnesota.
A FOIA lawsuit by Public Records Media revealed one important boundary of the war on terror. The Justice Department disclosed that it has no legal opinions that justify the killing of Americans by drones on American soil.
Contact James Eli Shiffer at james.shiffer@startribune.com or 612-673-4116. Read his blog at startribune.com/fulldisclosure.
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