In June 2014, the U.S. Court of Appeals for the Second Circuit ordered the U.S. Department of Justice to release a classified memorandum that had served as advance legal authorization for the killing of American citizen Anwar al-Awlaki by drone strike in Yemen on September 30, 2011. (1) Dated July 16, 2010, the forty-one-page memorandum--the now-public version of which has been heavily redacted--contains an extensive analysis of domestic U.S. and international law constraints on the decision to kill al-Awlaki. (2)
The memorandum relied heavily on the proposition that the Authorization for the Use of Military Force (AUMF), as a matter of U.S. law, authorized the killing of al-Awlaki: (3)
[W]e note as an initial matter that [the Department of Defense (DoD)] would undertake the operation pursuant to Executive war powers that Congress has expressly authorized. By authorizing the use of force against "organizations" that planned, authorized, and committed the September 11th attacks, Congress clearly authorized the President's use of "necessary and appropriate force" against al-Qaida forces, because al-Qaida carried out the September 11th attacks. See Authorization for Use of Military Force ("AUMF"), Pub. L. No. 107-40, 115 Stat. 224, [section]2(a) (2001) (providing that the President may "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons."). And, as we have explained [in a redacted section of the memorandum], a decision-maker could reasonably conclude that this leader of [al-Qaida in the Arabian Peninsula (AQAP)] forces is part of al-Qaida forces. Alternatively, and as we have further explained [in another redacted section of the memorandum], the AUMF applies with respect to forces "associated with" al-Qaida that are engaged in hostilities against the U.S. or its coalition partners, and a decision-maker could reasonably conclude that the AQAP forces of which al-Aulaqi is a leader are "associated with" al Qaida forces for purposes of the AUMF. On either view, DoD would carry out its contemplated operation against a leader of an organization that is within the scope of the AUMF, and therefore DoD would in that respect be operating in accord with a grant of statutory authority. Based upon the facts represented to us, moreover, the target of the contemplated operation has engaged in conduct as part of that organization that brings him within the scope of the AUMF. High-level government officials have concluded, on the basis of al-Aulaqi's activities in Yemen, that al-Aulaqi is a leader of AQAP whose activities in Yemen pose a "continued and imminent threat" of violence to United States persons and interests. Indeed, the facts represented to us indicate that al-Aulaqi has been involved, through his operational and leadership roles within AQAP, in an abortive attack within the United States and continues to plot attacks intended to kill Americans from his base of operations in Yemen. The contemplated DoD operation, therefore, would be carried out against someone who is within the core of individuals against whom Congress has authorized the use of necessary and appropriate force. (4) The memorandum also asserted that al-Awlaki's American citizenship did not alter the application of the statute to his case:
Al-Aulaqi is a United States citizen, however, and so we must also consider whether his citizenship precludes the AUMF from serving as the source of lawful authority for the contemplated DoD operation. There is no precedent directly addressing the question in circumstances such as those present here; but the Supreme Court has recognized that, because military detention of enemy forces is "by 'universal agreement and practice,' [an] 'important incident of war,"' Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004) (plurality opinion) ..., the AUMF authorized the President to detain a member of Taliban forces who was captured abroad in an armed conflict against the United States on a traditional battlefield. In addition, the Court held in Hamdi that this authorization applied even though the Taliban member in question was a U.S. citizen. Furthermore, lower federal...