Saturday, June 28, 2014

164.4 - Outrage of the Week: no legal argument in kill memo

Outrage of the Week: no legal argument in kill memo

Now for our other regular feature, the Outrage of the Week.

On Monday, June 23, a federal appeals court in Washington, DC, made public large portions of that infamous Justice Department memo that deemed it lawful for the CIA or the military to kill Anwar al-Awlaki, an American citizen in Yemen, based solely on the administration's internal, unreviewable, decision that he was an an operational terrorist leader whose capture was not feasible.

The memo was completed more than a year before the September 2011 drone strike that killed
Awlaki along with another American, Samir Khan, who was not specifically targeted but apparently deserved to die because he happened to be standing nearby.

Knowledge of this memo has been out there for a while and bits of information about it have leaked out over time. The ACLU and the New York Times filed suit under the Freedom of Information Act, demanding its release. After battling the case for some time, the Obama gang, faced with an appeals court order to release a redacted version of the memo, gave in after some senators threatened to hold up the nomination of its primary author, David Barron, to a position on the federal court if the memo was not released.

Now, again, we've known about the memo for a while. We've known about the "we can kill the guy" claim for some time. It was over four years ago, in April, 2010, when in response to news reports about the decision to target Awlaki that I wrote, on my blog and to the White House, "Mr. President, just who the hell do you think you are?"

But we kept hearing about how there was this legal argument for why this was okay, all according to the rules, all's fair, and all that. They were, we were told, on sound legal footing. We should trust them on that.

And so now we've seen the memo, or at least a version of it released by the court - and it's more of an outrage than ever.

Anwar al-Awlaki
Barron took the premise that Awlaki was "an operational terrorist leader whose capture was not feasible" and just declared that therefore it would be lawful for either the military or the intelligence agency to kill him, notwithstanding federal statutes against murdering Americans overseas and protections in the Constitution against depriving someone of life without due process of law.

And that's pretty much what it says, all that it says, at least in the heavily-redacted version of it released by he court.

I'm trying to make this clear, just what I find so outrageous. This is not a tightly-reasoned legal argument, it's essentially a list of talking points, of assertions, of premises presented as conclusions, conclusions that would apply not just to Awlaki but to anyone this or any future administration, it its own, again, secret, internal, judgment, unreviewed and unreviewable by any outside agency or authority or court, it would apply to anyone they decide is a "terrorist leader."

What all this means is that the administration's vaunted legal reasoning, its supposed hard-nosed argument for why it's okay to murder American citizens away from any actual battlefield, comes down to "because it just is." We can kill anyone we think deserves killing - just because.

Hina Shamsi, director of the ACLU’s National Security Project, said of the memo “It’s hard to believe that it was produced in a democracy built on a system of checks and balances.”

Pardiss Kebriaei, a senior attorney with the Center for Constitutional Rights, said the memo's contents showed that the targeted killing program was built on "gross distortions of law."

Gross is a description of it. So is deeply, ethically, morally, outrageous.

Sources cited in links:

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