The secret document was narrowly drawn to the specifics of Awlaki’s case and did not establish a broad new legal doctrine to permit the targeted killing of Americans in other circumstances.
The memo provided the justification for acting despite an executive order banning assassinations, a federal law against killing, protections of the Bill of Rights, and various strictures of the international laws of war, according to people familiar with the analysis.
The legal analysis relied upon several factual premises offered by intelligence agencies to government lawyers, including that Awlaki was playing a direct role in terrorist operations against the United States, that he was affiliated with Al Qaeda’s terrorist network, and that he was beyond the reach of Yemen’s authorities. The memorandum, which was written more than a year before Awlaki was killed in a drone strike last month, does not closely analyze the quality of the evidence for those assertions.
The Obama administration has refused to acknowledge or discuss its role in the strike, which technically remains a covert operation. It has also refused to release its legal reasoning. But the document that laid out its justification - a roughly 50-page memorandum by the Justice Department’s Office of Legal Counsel, completed around June 2010 - was described on the condition of anonymity by people who have read it.
The administration did not respond to requests for comment on this article and has resisted growing calls that it provide a detailed public explanation of how it deemed the killing of a US citizen to be legal. The Obama team’s memorandum was written after months of deliberations that included meetings in the White House Situation Room involving top lawyers for the Pentagon, State Department, National Security Council, and intelligence agencies.
It was principally drafted by David Barron and Martin Lederman, who were both lawyers in the Office of Legal Counsel at the time, and was signed by Barron. The office may have given oral approval for an attack on Awlaki before completing its detailed memorandum.
