The Drone Memo’s Missing Due Process Analysis

The Obama administration took one small step towards acknowledging its targeted killing program last week: it published a redacted version of a July 16, 2010 Office Legal Counsel memo on the legal basis for killing Anwar al-Awlaki. Many people have already published useful reactions and analyses—a partial list: Jennifer DaskalJameel JafferDaphne EviatarDavid ColeBenWittesWells DixonRyan GoodmanMarcy WheelerBrett Max KaufmanSteve Vladeck. has long opposed the use of “secret law,” and asked for publication of the OLC memos on the legal justification for targeted killing. Last year, after the press published a “white paper” summarizing the OLC memos on targeted killing, we wrote, “We Still Want the OLC Memos…. An unsigned, undated white paper is no substitute for the legal arguments and justifications for actions that are, at best, deeply troubling and, at worst, a challenge to our constitutional protections.”  Unfortunately, it turns out that this OLC memoranda contains less detailed analysis than the white paper of one of the central constitutional issues with Awlaki’s extrajudicial killing: whether it complies with the due process clause of the Fifth Amendment.

The section of July 16 memo dealing with the due process clause is less than three pages long, and about half of it is redacted. Of the remaining paragraphs, the first concedes that as a U.S. citizen, Awlaki is protected by the Fifth Amendment. The second quotes from the Supreme Court’s holding in Hamdi v. Rumsfeld applying a balancing test to analyze the due process rights of a U.S. citizen captured in Afghanistan after September, stating

the process due in any given instance is determined by weighing ‘the private interest that will be affected by the official action’ against the Government’s asserted interest, ‘including the function involved’ and the burdens the Government would face in providing greater process.

After additional redactions, the memo continues….

We believe similar reasoning supports the constitutionality of the contemplated operations here. As explained above, on the facts represented to us, a decision-maker could reasonably decide that the threat posed by al-Aulaqi’s activities to United States persons is “continued” and “imminent”….

 [more lines redacted]

 In addition to the nature of the threat posed by al-Aulaqi’s activities, both agencies here have represented that an operation by either agency to capture al-Aulaqi in Yemen would be infeasible at this time.

The memo concludes, after still more redactions and citations to Hamdi and to an Israeli Supreme Court case:

Where, as here, the target’s activities pose a “continued and imminent threat of violence or death” to U.S. persons, “the highest officers in the Intelligence Community have reviewed the factual basis” for the lethal operation, and a capture operation would be infeasible—and where the CIA and DoD “continue to monitor whether changed circumstances would permit such an alternative”….the “realities of combat” and the weight of the government’s interest in using an authorized means of lethal force against this enemy are such that the Constitution would not require the government to provide further process to the U.S. person before using such force.”

That is the opinion’s entire due process analysis justifying the extrajudicial killing of a U.S. citizen—at least, the unredacted portion of it.

The government’s analysis of why AQAP’s activity in Yemen is part of the war with Al Qaeda that Congress authorized after September 11 is redacted. The portions of the memo explaining the authority under which the CIA engages in targeted killing are redacted. The source of and justification for the “continued and imminent threat” standard are either absent, or redacted. The government acknowledged in a “white paper” summarizing the Barron memos that for targeted killing purposes it uses a “broader concept of imminence” than the ordinary meaning of the word, which does “not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.” But the July 16 memo does not address this.

The memo contains no detailed description of the procedure or evidentiary standard for putting a citizen on the kill list. Apparently “the highest officers in the Intelligence Community” must review the evidence and their determination must be “reasonable.” If there are any additional safeguards, the public sections of the OLC memo do not describe them. There is also no unredacted discussion of what exactly it means to say that capture is “infeasible.” Nor does OLC explain in any detail how the “realities of combat” rule out additional procedural productions when a citizen remains on a “kill list” for months or years at a time.

Hamdi v. Rumsfeld, the main precedent that OLC cites for its due process analysis, calls for “an analysis of the risk of an erroneous deprivation of the private interest if the process were reduced and the probable value, if any, of additional or substitute safeguards” (internal quotations omitted)—but the unredacted portion of the OLC opinion does not quote this language, or explain why no additional safeguards are possible.

Nor does the Barron memo engage with the Hamdi decision’s discussion of the importance of notice to due process. The Supreme Court held that Yaser Esam Hamdi, and any citizen designated as an enemy combatant “must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.” It would be possible to argue that giving notice before a suspect was killed or detained would enable him to continue to engage in combat against the United States—though Awlaki was killed even after the press reported that he was targeted. But the OLC memo does not even appear to seriously consider the possibility.

Instead of a detailed legal analysis, OLC appears to have relied heavily on the intelligence community’s factual representations about Awlaki for its due process analysis. But what if that intelligence was wrong? There is something circular about not being entitled to notice of the government’s decision to kill you, or a hearing about the evidence of your involvement in terrorism, because you are accused of involvement in terrorism.

Al-Awlaki did receive de facto notice through the press of his presence on the “kill list”, and it seems clear he had some involvement in AQAP—though a recently released AQAP propaganda video may cast doubt on OLC’s assertion that Awlaki was an ”operational leader of an enemy force.”

In any case, it is a mistake to base the legal analysis of the drone program on the assumption that the government’s intelligence is correct, and it will never target the wrong person. The United States made the same assumptions when it was deciding whether to apply the Geneva Conventions’ protections in Afghanistan, and setting up its detention system at Guantanamo. In manymany cases, those assumptions were false.

We know that drone strikes have killed civilians. Yet, the government will not provide aggregate casualty figures (though one Senator put the total death toll from the targeted killing program at 4700). The OLC memos on the legal standards for killing non-citizens still have not even been provided to the Congressional intelligence committees, let alone the public.

In short, as a nonpartisan task force of national security experts convened by the Stimson Center recently concluded, the United States still

appears to claim, in effect, the legal right to kill any person it determines is a member of al-Qaida or its associated forces, in any state on Earth, at any time, based on secret criteria and secret evidence, evaluated in a secret process by unknown and largely anonymous individuals — with no public disclosure of which organizations are considered “associated forces” (or how combatant status is determined, how the United States defines “participation in hostilities”), no means for anyone outside that secret process to raise questions about the criteria or validity of the evidence, and no means for anyone outside that process to identify or remedy mistakes or abuses.

The release of the Barron memo is only one, very modest step towards changing this. And despite President Obama’s statement that “we must be more transparent about both the basis of our counterterrorism actions and the manner in which they are carried out,” it only occurred because a court ordered the administration to release the memo, and several Senators threatened to stop David Barron’s judicial confirmation unless the administration complied with the court’s order. If the President actually wants transparency about the targeted killing program, he can do much more.