Yesterday, the Obama administration complied with a Court order requiring release of the Justice Department Office of Legal Counsel (OLC) memo justifying the assassination without charge or trial of American citizen Anwar Al-Awlaki. (My first impressions are here.)
The New York Times editorial board was correctly and commendably critical:
. . . the memo turns out to be a slapdash pastiche of legal theories — some based on obscure interpretations of British and Israeli law — that was clearly tailored to the desired result. Perhaps the administration held out so long to avoid exposing the thin foundation on which it based such a momentous decision.
The memo's analysis of domestic law is equally troubling. The authors - now federal judge David Barron and Georgetown Law professor Marty Lederman rely heavily on a "public authority" justification to rationalize killing al-Awlaki with no support in statute or common law. The authors admit there's "little case law in which courts have analyzed the scope of the justification with respect to the conduct of government officials," and what case law the authors do acknowledged is dispensed with quickly in a footnote.
Rather than base its conclusions on case law (from the courts) or statute (from Congress), the memo relies on the Model Penal Code, which it argues supports the conclusion that a "public authority" justification can excuse state-sponsored killing without charge or trial, much less a conviction, because it permits a justification for public officers where the law requires or authorizes certain conduct. (Such as a fire truck speeding to a fire). At the outset, such an argument certainly doesn't change the fact that no law specifically authorizes a targeted killing and several federal statutes and international laws specifically forbid it. Worse, the memo paints the Model Penal Code's recognition of a "public authority" justification as far broader than it actually is. When read in its entirety, the Model Penal Code specifies that law enforcement officers may only use lethal force in the context of making an arrest. Regardless, the Model Penal Code is not law.
Ockham's Razor dictates that the memo's legal analysis reads like a foregone conclusion because al-Awlaki's targeting for death was a foregone conclusion. The New York Times rightly recognized that the memo was "tailored to the desired result." Consider also, as Marcy Wheeler deftly points out, the date of the memo - July 16, 2010 - months after al-Awlaki was first placed on the kill list and after it became public. It was also just weeks before the ACLU filed suit to have al-Awlaki taken off the list.
Taking a step back from the memo on al-Awlaki's targeting, the drone program's legality, effectiveness, and morality as a whole must be seriously questioned, and far more critically questioned than OLC has done. Thousands of people have been killed by drone strikes, some of which are so-called "signature strikes" based on analysis of cell-phone tracking data. The government defines any (apparently) adult male in a strike zone as a "militant," a characterization that drastically underestimates the number of civilians killed.
The al-Awlaki memo is a sliver of transparency justifying the assassination by drone of one person, and, like the torture memos before it, the al-Awlaki memo will not withstand public scrutiny.