Memo Justifying Drone Killings Ordered Released by Court

Photographer: Tracy Woodward/The Washington Post via Getty Images

American Islamic militant Anwar Al-Awlaki stands for a portrait at the Dar al Hijrah Mosque in Falls Church, Virginia, in this October 4, 2001 file photo. Close

American Islamic militant Anwar Al-Awlaki stands for a portrait at the Dar al Hijrah... Read More

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Photographer: Tracy Woodward/The Washington Post via Getty Images

American Islamic militant Anwar Al-Awlaki stands for a portrait at the Dar al Hijrah Mosque in Falls Church, Virginia, in this October 4, 2001 file photo.

The U.S. government memo providing legal justification for a drone strike that killed a U.S. citizen belonging to an al-Qaeda affiliate was ordered released by a federal appeals court.

A redacted version of the July 16, 2010, document, produced by the Justice Department’s Office of Legal Counsel, was included in the ruling today by the U.S. Court of Appeals in Manhattan.

In it, Acting Assistant U.S. Attorney General David Barron said the planned killing of Anwar Al-Awlaki, a U.S.-born Islamic cleric, wasn’t unconstitutional because the target was planning an attack against the U.S. and capturing him abroad was “infeasible.”

“What would constitute a reasonable use of lethal force for purposes of domestic law enforcement operations will be very different from what would be reasonable” in a situation where “the U.S. citizen in question has gone overseas and become part of the forces of an enemy with which the United States is engaged in an armed conflict.”

The appeals court found that public statements made by government officials discussing the drone strike made it unlikely the memo would put at risk any aspect of military plans, intelligence activities, sources or methods, as the U.S. had earlier claimed.

Key Leader

Al-Awlaki, accused by the U.S. of being a key leader of al-Qaeda in the Arabian Peninsula, was killed in the subsequent drone strike in Yemen on Sept. 30, 2011. The previous year, President Barack Obama approved an order making the cleric the first American ever to be placed on the Central Intelligence Agency’s hit list.

Al-Awlaki had masterminded Umar Farouk Abdulmutallab’s attempted bombing of a Detroit-bound airplane in 2009 with explosives hidden in his underwear, according to the Justice Department. He also exchanged e-mails with Nidal Hasan, a U.S. army officer who killed 13 people at the Fort Hood army base in Texas that same year, the Federal Bureau of Investigation said.

The missile strike that killed Al-Awlaki also killed another U.S. citizen, Samir Khan, who was in the same vehicle. Al-Awlaki’s teenage son was killed in a separate drone strike, in which he wasn’t a target, two weeks after his father’s death.

Today’s ruling stems from a Freedom of Information lawsuit by the American Civil Liberties Union and the New York Times.

Lia Bantavani, a spokeswoman for the Justice Department, declined to comment on the ruling. Todd Ebitz, a spokesman for the CIA, which was also named in the suit, declined to comment.

More Lawsuits

The drone killing triggered several lawsuits in the U.S.

In April, a federal court in Washington ruled U.S. officials can’t be held liable for Al-Awlaki’s death, with a judge ruling that courts have to stay out of military decision-making.

“There are few questions more important than the question of when the government has the authority to kill its own citizens,” Josh Bell, an ACLU spokesman, said in an e-mailed statement. “This memo’s release will allow the public to better understand the scope and implications of the authority the government is claiming.”

Obama’s administration in May said it would make the memo public. An administration official said at the time that U.S. Attorney General Eric Holder had agreed not to appeal a court ruling that required its disclosure.

The case is: The New York Times Co. v. U.S. Department of Justice. 13-cv-422. U.S. Court of Appeals for the Second Circuit (Manhattan.)

To contact the reporter on this story: Erik Larson in New York at elarson4@bloomberg.net

To contact the editors responsible for this story: Andrew Dunn at adunn8@bloomberg.net Joe Schneider, Charles Carter

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