What Was Learned From the Secret Drone Memo Released Today?

In short, not much.  A US court of appeals had ruled in April as part of a Freedom of Information Act (FOIA) request that the government had to surrender a 2010 Office of Legal Council (OLC) memo, which authorized the killing of American citizen and al-Qaeda cleric Anwar al-Awlaki.  Today, the appeals court released the memo, which included several redactions but it did not include much new information.

According to a lawyer for the American Civil Liberties Union (ACLU) who argued the case for the memo to be released,”the memo’s release ‘represents an overdue but nonetheless crucial step towards transparency.'”  A chief reason for the memo’s release, according to the April ruling by the 2nd Circuit, was that the government’s claiming of a specific exemption from FOIA requests due to security purposes was illegitimate given that the government leaked a copy of their white paper to the media, which provided the legal justification for killing American citizens abroad who take up arms against the United States.  Because the government decided to leak this information, they could not claim a FOIA exemption for security purposes.

The released OLC memo did not contain much that was not already public information, which could have been taken from the administration’s white paper.  If anything, the white paper almost served as an executive summary of sorts for the 30 page (redacted) OLC memo released by the 2nd Circuit.  At the very least, the distinction between the two is that the OLC memo pertains directly to Mr. Awlaki’s situation while the white paper is a general legal outline.

Two related issues of interest in the OLC memo pertaining to the legal justification regarding the use of force against Mr. Awlaki are worth pointing out.  First, it is important to establish that the administration asserted Mr. Awlaki’s capture was unfeasible, which, according to the administration’s white paper, falls under the second prong permitting use of lethal force.  In the OLC memo, the administration equates the use of force against Mr. Awlaki, regarding the “contemplated DoD [Department of Defense] operation,” to the “‘lawful conduct of war.'”  The memo went on to say, “As one authority has explained by example, ‘if a soldier intentionally kills an enemy combatant in time of war and within the rules of warfare, he is not guilty of murder,’ whereas, for example, if that soldier intentionally kills a prisoner of war – a violation of the laws of war – ‘then he commits murder.'”  The fact that Mr. Awlaki was in a group (al-Qaeda in the Arabian Peninsula, or AQAP) that is involved in a congressionally authorized conflict (the 2001 Authorization for Use of Military Force, or AUMF) with the United States, legally warranted the administration’s actions according to the president’s lawyers, as acts of war.

The second, similarly related issue mentioned above relies on Supreme Court precedent for the use of lethal force against an American citizen under the AUMF.  Relying heavily on Hamdi v Rumsfeld (a Supreme Court case born out of the 9/11 attacks and subsequent government action, specifically, interrogation and detention) throughout the entirety of the OLC memo, the administration concluded, “just as the AUMF authorizes the military detention of a U.S. citizen captured abroad who is part of an armed force within the scope of the AUMF, it also authorizes the use ‘necessary and appropriate’ lethal force against a U.S. citizen who has joined such an armed force.”  The plurality in Hamdi determined that a US citizen, who was a member of the Taliban and captured by US forces, could be detained under the authority of the AUMF.  The OLC then wrote in the released memo, “The use of lethal force against such enemy forces, like military detention, is an ‘important incident of war.'”

Despite praises for transparency in today’s release, there is hardly any new or unknown information regarding legal justification for extrajudicial killings.  What could be influential, is how this OLC memo release may affect future suits against the government for damages associated with such killings or related deaths.  Mr. Awlaki’s father’s petition against three government officials for damages related to the death of his son and grandson in drone strikes was dismissed.  The looming question is will this memo provide necessary lift to jump legal hurdles associated with the federal district court judge’s dismissal of Mr. Awlaki’s father’s suit?  While it may not in a civil or domestic sense, however, international human rights organizations are gunning for the US for violations of human rights and submitted related reports to the United Nations.  One contradiction found in the OLC memo may legitimize these organizations’ claims for human rights or even war crimes violations pertaining to “collateral damage” associated with the American drone campaign:

In defining what conduct constitutes a “grave breach” of Common Article 3 for purposes of the War Crimes Act, subsection 2441(d) includes “murder,” described in pertinent part as “[t]he act of a person who intentionally kills, or conspires or attempts to kill…one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause”… Although Common Article 3 is most commonly applied with respect to persons within a belligerent party’s control, such as detainees, the language of the article is not so limited – it protects all “[p]ersons taking no active part in the hostilities” in an armed conflict not of an international character.

It could be inferred that innocent bystanders whom the administration has declared “collateral damage” may be constituted as “persons taking no active part in the hostilities.”  What the OLC lawyers seem to leave out of their memo, is a key line in the War Crimes Act.  The full statement from the War Crimes Act referenced in the above expert of the OLC memo regarding the definition of a “grave breach” of Common Article 3 of the Geneva Convention pertaining to murder states, “The act of a person who intentionally kills, or conspires or attempts to kill, or kills whether intentionally or unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause.”  Note the word, “unintentionally” for the purposes of “collateral damage.”