Court Discloses Memo Approving Drone Strike on American

Targeting Anwar al-Awlaki Was Legal, Justice Department Said.

Lifting a veil of official secrecy from President Obama’s decision to authorize the killing of an American citizen without a trial, a federal appeals court on Monday made public large portions of a Justice Department memo that deemed it lawful for the operation to target Anwar al-Awlaki, an American-born Muslim cleric accused of becoming a terrorist.

The Obama administration completed the memo in July 2010, more than a year before the September 2011 drone strike in Yemen that killed Mr. Awlaki along with another American near him, Samir Khan, whom officials have said was not specifically targeted. The memo was released in response to lawsuits filed by The New York Times and the American Civil Liberties Union under the Freedom of Information Act.

Mr. Obama’s decision to authorize the military and the C.I.A. to hunt down and kill Mr. Awlaki was an extraordinary step that created an important precedent for executive power, civil liberties and the rule of law.

Intelligence officials had concluded that Mr. Awlaki was an operational  terrorist leader who was plotting attacks to kill Americans and that his capture was not feasible. Working from that premise, David Barron, then the acting head of the Justice Department’s Office of Legal Counsel, concluded that it would be lawful for either the military or the intelligence agency to kill Mr. Awlaki, notwithstanding federal statutes against murdering Americans overseas and protections in the Constitution against unreasonable seizures and depriving someone of life without due process of law.

“We do not believe al-Awlaki’s citizenship provides a basis for concluding that he is immune from a use of force abroad” that the congressional approval to use military force against Al Qaeda otherwise authorizes, Mr. Barron wrote.

Mr. Barron, who signed the memo, was assisted by Martin Lederman, another attorney in the office. Mr. Lederman has since returned to teaching law at Georgetown University, and Mr. Barron was confirmed last month to a federal appeals court in Boston. The Obama administration decided to release the redacted memo, rather than appeal a court ruling saying it must be made public, under pressure from senators who threatened to block Mr. Barron’s nomination.

Senator Mark Udall, Democrat of Colorado, who had placed a hold on the nomination but lifted it after the administration promised to release the document, called the release “a victory for government transparency” but said he would continue to press for additional disclosures to related questions, like “how much evidence the government requires in order to make an American a legitimate target.”

The Obama administration redacted, with the court’s permission, an 11-page section at the front of the memo compiling the evidence to support the intelligence community’s assertion that Mr. Awlaki was not merely a propagandist but an operational terrorist.


But on Monday the appeals court issued a new public version of its opinion from April that the memo must be made public, which included passages that had been redacted. Among those passages were instructions from the court to make other related Office of Legal Counsel memos available to a Federal District Court judge for review and possible release.

The July 2010 memo also makes reference to an earlier memo, also written by Mr. Barron, that apparently focused largely on constitutional issues in targeting Mr. Awlaki. The New York Times has reported that after the attempted bombing of a Detroit-bound airliner on Dec. 25, 2009, Mr. Barron and Mr. Lederman swiftly wrote a short memo approving the targeting of Mr. Awlaki if he was located. They then went back and wrote the lengthier July 2010 memo, which addressed certain statutes — like one banning the murder of Americans abroad — that the first version had omitted.

Other previously redacted portions of the April court ruling that were made public on Monday included the location of the strike in Yemen and extensive comments by American officials, including Leon Panetta, the former director of the C.I.A., and Senator Dianne Feinstein and Representative Mike Rogers, the heads of the Senate and House intelligence committees, acknowledging that the C.I.A. has armed drones and participated in the Awlaki strike.