Last week, New York Southern District Court Judge Colleen McMahon reluctantly ruled that the Obama administration will be able to keep its legal reasoning for the killing of Anwar al-Awlaki secret.
Well over a year ago, the United States government killed an American-born citizen in Yemen named Anwar al-Awlaki. Mr. Awlaki was a militant cleric working with Al-Qaeda in Yemen at the time. The Obama administration released a secret memo justifying its legal right to do so despite a law against assassinations, a law against the murder of U.S. citizens abroad, the Bill of Rights, and international law against extrajudicial killings.
The New York Times covers the memo and its arguments quite well in its article from October 2011. Essentially, al-Awlaki’s status as an enemy combatant in an armed conflict enabled the administration to treat the killing as an act of war rather than a murder or assassination; though, humorously, the CIA official who launched the missile may theoretically be prosecuted in Yemen for murder. In addition, the imminent threat al-Awlaki posed and his location in the midst of armed enemy combatants made it impractical to capture rather than kill him.
The ACLU and two New York Times reporters, Charlie Savage and Scott Shane, separately filed Freedom of Information Act (FOIA) requests to see the memo, as well as other documents justifying the killing. Judge McMahon’s opinion accompanying her ruling is argued clearly and eloquently, and is strongly recommended for those interested in this topic.
Though McMahon was unable to find a way around “the thicket of laws and precedents” that prevented her from forcing the disclosure of the administration’s reasoning, she expressed consternation about her own decision: “the Alice-in-Wonderland nature of this pronouncement is not lost on [her].” The decision was based solely on the FOIA law, and did not address the legality of the killing itself, which McMahon said there is reason to question.
Both the ACLU and the New York Times plan to appeal the decision. ACLU Deputy Legal Director Jameel Jaffer announced “the public has a right to know more about the circumstances in which the government believes it can lawfully kill people, including U.S. citizens, who are far from any battlefield and have never been charged with a crime.”
To be fair, the memo narrowly tailored their justification to the specific case of al-Awlaki, and did not attempt to justify the killing of American citizens suspected of terrorist activities in general. To kill another citizen in the way they did al-Awlaki, the U.S. government would need to make a separate legal justification.
As an editorial statement, I do not disagree with the administration on the specific case of al-Awlaki. He was a high-ranking enemy war-time leader, who was actively plotting the deaths of innocent American civilians. I believe that by doing so, he forwent his legal rights as an American citizen. That this does not set precedent, through its narrowly tailored justification, is also reassuring. However, it is puzzling why the U.S. government does not choose to disclose its legal reasoning to the public. What harm could come from the administration explaining itself is a mystery to me. Their refusal to do so, even when the gist of their argument is well known, just comes across as obstinate.