White House lawyers who drafted secret Awlaki kill memo were critics of Bush’s war powers

posted at 9:43 pm on October 10, 2011 by Allahpundit

Not the first time that the left’s anti-war legal heroes have morphed from civil libertarians when Bush was in office to war-power expansionists once they went to work for The One. Remember when Harold Koh convinced Obama that he didn’t need to bother with congressional authorization after all if he wanted to wage war in Libya? Good times.

The latest converts to the church of It’s Okay When We Do It: OLC lawyers David Barron and Martin Lederman, who, it turns out, co-authored the legal memo last summer arguing that the killing of Awlaki was legal, notwithstanding the fact that he was an American citizen.

The secret document provided the justification for acting despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war, according to people familiar with the analysis. The memo, however, was narrowly drawn to the specifics of Mr. Awlaki’s case and did not establish a broad new legal doctrine to permit the targeted killing of any Americans believed to pose a terrorist threat…

The legal analysis, in essence, concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him…

It was principally drafted by David Barron and Martin Lederman, who were both lawyers in the Office of Legal Counsel at the time, and was signed by Mr. Barron. The office may have given oral approval for an attack on Mr. Awlaki before completing its detailed memorandum. Several news reports before June 2010 quoted anonymous counterterrorism officials as saying that Mr. Awlaki had been placed on a kill-or-capture list around the time of the attempted bombing of a Detroit-bound airliner on Dec. 25, 2009. Mr. Awlaki was accused of helping to recruit the attacker for that operation…

The memorandum is said to declare that in the case of a citizen, it is legally required to capture the militant if feasible — raising a question: was capturing Mr. Awlaki in fact feasible?

This wasn’t the first piece of scholarship Barron and Lederman wrote together. Turns out they also co-authored a pair of articles in the Harvard Law Review three years ago arguing that constitutional war powers had tipped too much towards the executive and away from Congress over the years. That’s not the same issue as was raised in the Awlaki case, but insofar as those articles were part of the left’s broader argument for limiting the president’s ability to wage war wherever and however he likes, the Awlaki memo is obviously a terrible betrayal. No wonder Glenn Greenwald is heartbroken. Apparently, so scrupulous was the by-the-book Obama OLC about targeting Americans that they gave the okay to hit Awlaki before they’d even done the research into whether it was legal.

If you missed Al Qaeda’s statement today wondering where, oh where, America’s vaunted due process was when it came to killing Anwar al-Awlaki, follow the link here. They too would have gotten a different reaction if Bush had greenlit the drone strike instead of Obama. Imagine how many times we’d have seen this bit of propaganda parroted by the we’re-no-better-than-they-are anti-war illuminati:

“The Americans killed the scholar Shaykh Anwar al-Awlaqi and Samir Khan, but they did not prove any crime they committed and they never presented any proof against them from their laws of unjust freedom. So, where is the freedom, justice, human rights and respect of freedoms they boast of? Did America become so suffocated that it contradicted—and everyday it contradicts—these principles it claims it established its country on?”

“America has failed as it has not stuck to its principles, and the Shaykh—who lived his doctrine and died for its cause—won. And like that, everyday America kills humans unjustly and aggressively. Its history is black and long and has no limit, and it lies openly that it protects human rights, justice and freedom.”

As it is, with O in charge, that logic has gone right down the media toilet. See, guys? There is one advantage to having him as president.

In lieu of an exit question, go read Tom Joscelyn’s reminder of what a stickler Awlaki himself was for freedom, justice, and human rights.

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Comment pages: 1 2

As it is, with O in charge, that logic has gone right down the media toilet. See, guys? There is one advantage to having him as president.

If only it would last through a Republican presidency. The logic isn’t down the toilet, they’re just ignoring it temporarily.

Esthier on October 11, 2011 at 10:52 AM

Being an American citizen should mean something. Have we really got to the point where we important foreign soldiers for trials, assasinate american citizens abroad, and refuse to ever actually run trials for Treason as laid out in the constitution? All simultaneously? There is no philosophy at work here except the total breakdown of the rule of law.

Resolute on October 11, 2011 at 4:18 PM

Being an American citizen should mean something. Have we really got to the point where we important foreign soldiers for trials, assasinate american citizens abroad, and refuse to ever actually run trials for Treason as laid out in the constitution? All simultaneously? There is no philosophy at work here except the total breakdown of the rule of law.

Resolute on October 11, 2011 at 4:18 PM

Awlaki wasn’t in custody so he can’t be tried for treason unless we are willing to risk the lives of our soldiers in an attempt to grab him. Why should we do that? He placed himself in a state of war with the US and I see no reason not to take him at his word.

Yes, being an American citizen should mean something, but that is a two way street. You don’t get to just take privileges and benefits without also shouldering some responsibility.

Does his citizenship mean he can’t be targeted? If that’s the case then he can carry out any attacks against the US and we would be legally proscribed from responding. Does that make sense to you?

sharrukin on October 11, 2011 at 4:36 PM

Comment pages: 1 2