Editorial: Officially, why it was OK for the U.S. government to kill Anwar Awlaki

Better late than never, the American public has been provided with a redacted version of a Justice Department memo offering a legal rationale for the targeting of Anwar Awlaki, the U.S.-born Al Qaeda figure who was killed in a drone strike in Yemen in 2011. The document was made public Monday after the Obama administration decided not to appeal a court order that it be disclosed.

The basic legal rationale for targeting Awlaki has long been known. In fact, the U.S. 2nd Circuit Court of Appeals ordered the memo’s release precisely because so much of the argument has seeped into the public domain as the result of speeches by administration officials and the publication last year of a 16-page “white paper.” Still, the release of the actual 2010 memo prepared by Justice Department official David Barron (now a federal judge) is an important, if overdue, exercise in transparency.

Is the memo persuasive? Only to a limited degree. It plausibly concludes that, under the Authorization for Use of Military Force passed by Congress after 9/11, the military or CIA may target a U.S. citizen abroad who has joined the enemy and whose activities pose a “continued and imminent” threat to Americans. But the memo doesn’t precisely define “imminent,” and other statements by administration officials suggest that they are employing an ominously elastic interpretation of that term. For example, the white paper said that the government may target an American for death even in the absence of “clear evidence that a specific attack on U.S. persons or interests will take place in the immediate future.”

Then there is the question of whether the government should try to capture a U.S. citizen suspected of terrorism instead of killing him. The Barron memo approves of assassination when capture is not impossible but merely “infeasible.” That is too vague a standard.

The version of the memo released by the appeals court Monday is missing several pages that apparently contain evidence that Awlaki had ceased being merely a propagandist for Al Qaeda and had participated in planning attacks. Now as before the release of the memo, Americans must take it on faith that Awlaki had to be killed.

That isn’t satisfactory. When Awlaki was killed, this page argued that if the U.S. was going to engage in state-sponsored assassination of U.S. citizens, at the minimum it must explain in detail why someone has been targeted. Welcome as the release of the Barron memo is, it doesn’t meet that standard.