On Monday a federal appeals court in New York ordered the Obama administration to release at least part of a Department of Justice memo that sets out the president’s purported legal justification for his order to kill Anwar al-Awlaki, an American citizen. Awlaki was targeted by the president and later assassinated by a drone strike in 2011 while he lived in Yemen.
The New York Times reported that the three-judge panel “unanimously” reversed a lower court decision, insisting that the federal government forfeited its secrecy defense by making “numerous public statements” explaining why it is legal for the president to order Americans be killed.
“Whatever protection the legal analysis might once have had, has been lost by virtue of public statements of public officials at the highest levels and official disclosure of the D.O.J. White Paper,” Judge Jon O. Newman wrote for the panel of the United States Court of Appeals for the Second Circuit, as quoted in the Times article.
In February 2013, the White House claimed that killing Americans without due process is “legal,” “necessary,” “ethical,” and “wise.”
In commenting on a white paper released by the Justice Department and obtained by NBC News, White House Press Secretary Jay Carney used those words to describe the targeted assassination of American citizens overseas. In other words, those marked for death by drone are those believed by the president to be collaborating (in a notably undefined manner) with “al-Qaeda and its associated forces” have no rights and can be killed at will.
In a footnote, the Justice Department explained that the “laws of war” will be used to determine whether a group is a “co-belligerent” with al-Qaeda. That is the sum of the guidance and notice given to those Americans residing overseas who might unknowingly be targets for the next Hellfire missile.
Apart from the Justice Department memo and the admissions contained in it, the judges pointed to comments made in May 2013 by Attorney General Eric Holder. As reported by Jack Kenny in The New American:
Attorney General Eric Holder issued the first official acknowledgement Wednesday that the United States has killed four U.S. citizens with drone strikes, including the targeted killing of Muslim cleric Anwar al-Awlaki in Yemen in September 2011. Holder also acknowledged the killing by drone strikes of three other Americans: Samir Khan, who was killed in the same strike that killed Awlaki; Awlaki's 16-year-old son, Abdulrahman al-Awlaki, also killed in Yemen; and Jude Mohammed, killed in Pakistan.
Statements seemingly against interest made by John O. Brennan also attracted the court’s attention.
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