When Can the Federal Government Kill Its Citizens?

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A US Air Force Predator aerial drone U.S. Air Force/Tech. Sgt. Effrain Lopez/Handout/Reuters

Does the federal government have the right to kill without arrest or trial American citizens who have become terrorists? A secret government memo released by a federal appeals court on Monday outlines the president’s argument for the legal authority to kill Anwar al-Awlaki, a U.S. citizen and alleged Al-Qaeda terrorist who died in a controversial drone strike in 2011 in Yemen.

“We do not believe that [al-Awlaki]'s U.S. citizenship imposes constitutional limitations that would preclude the contemplated lethal action under the facts represented to us” by the government, the 41-page memo concludes.

The memo was released after The New York Times and the American Civil Liberties Union (ACLU) brought a lawsuit to make it public. After fighting in court to keep the document secret, last month the administration said it would comply with an order from the Second Circuit Court of Appeals in New York to release the document.

The government’s capitulation came under concerted political pressure from both Republicans and Democrats in May when the Senate confirmed the memo’s chief author, David Barron, to a seat on the First Circuit Court of Appeals in Boston. Barron wrote the memo when he was head of the Justice Department’s Office of Legal Counsel.

Senator Rand Paul, R-Kentucky, a libertarian who has taken a lead in questioning the administration’s use of drones, led the campaign to demand the release of the memo in the Senate, aided by Senator Ron Wyden, D-Oregon. In a floor speech ahead of Barron’s nomination vote, Wyden said that while he accepted that some U.S. military actions must remain classified, the legal justifications for our national security apparatus should be public.

“I believe that every American has the right to know when their government believes it is allowed to kill them,” Wyden said.

“I’m talking here about fundamental questions like: How much evidence does the president need to determine that a particular American is a legitimate target for military action? Or, Can the president strike an American anywhere in the world? What does it mean to say that capture must be ‘infeasible’? And exactly what other limits and boundaries apply to this authority?”

It’s unclear whether the memo, which is heavily redacted, will provide all the answers transparency advocates are looking for. Still, the document provides the most comprehensive explanation to date of the government’s authority to carry out the al-Awlaki killing.

Details about the memo have been trickling out for years. In 2011, The New York Times reported on some specifics of the memo, including its reliance on the Authorization for the Use of Military Force (AUMF), which Congress passed in the days after the September 11, 2001 terrorist attacks on America to authorize military force to pursue those responsible. “[We] do not believe [al-Awlaki’s] citizenship provides a basis for concluding that he is immune from a use of force abroad that the AUMF otherwise authorizes,” the newly released memo says.

In 2013, the Obama administration released a Justice Department white paper which summarized portions of the memo in response to Paul’s filibuster of John Brennan, who had been nominated to run the Central Intelligence Agency. The White House did not want a repeat filibuster over Barron’s nomination this year.

“It’s hard to believe that [the memo] was produced in a democracy built on a system of checks and balances,” Hina Shamsi, director of the ACLU’s National Security Project, told the Times last year when the white paper became public. “It summarizes in cold legal terms a stunning overreach of executive authority—the claimed power to declare Americans a threat and kill them far from a recognized battlefield and without any judicial involvement.”

Civil liberties groups cheered the release of the memo Monday. “The release of this memo represents an overdue but nonetheless crucial step toward transparency,” Jameel Jaffer, the ACLU's deputy legal director, said in a statement. “There are few questions more important than the question of when the government has the authority to kill its own citizens.”

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