Secret U.S. Memo Made Legal Case to Kill a Citizen

CHARLIE SAVAGE

The New York Times

October 8, 2011 ET

WASH­INGTON — The Obama admin­istration’s secret le­gal mem­o­randum that opened the door to the killing of Anwar al-Awlaki, the American-born rad­ical Muslim cleric hiding in Yemen, found that it would be lawful only if it were not fea­sible to take him alive, accord­ing to people who have read the doc­u­ment.
The memo, written last year, fol­lowed months of extensive interagency de­lib­erations and offers a glimpse into the le­gal debate that led to one of the most signif­icant deci­sions made by Pres­ident Obama — to move ahead with the killing of an American cit­i­zen with­out a trial.
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 Obama admin­istration has refused to acknowl­edge or discuss its role in the drone strike that killed Mr. Awlaki last month and that technically re­mains a covert op­eration. The govern­ment has also resisted growing calls that it pro­vide a detailed public ex­pla­nation of why of­ficials deemed it lawful to kill an American cit­i­zen, setting a precedent that schol­ars, rights activists and oth­ers say has raised concerns about the rule of law and civ­il         

lib­erties.

But the doc­u­ment that laid out the admin­istration’s jus­tification — a roughly 50-page mem­o­randum by the Jus­tice De­part­ment’s Office of Le­gal Counsel, completed around June 2010 — was de­scribed on the con­dition of anonymity by people who have read it.
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.
The mem­o­randum, which was written more than a year before Mr. Awlaki was killed, does not independently an­alyze the quality of the             

ev­idence against him.

The admin­istration did not respond to requests for com­ment on this article.
The de­lib­erations to craft the memo included meetings in the White House Sit­uation Room in­volving top lawyers for the Pentagon, State De­part­ment, National Secu­rity Council and intelligence agencies.
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