The CIA’s [redacted] Operations

As you read the Awlaki memo, it’s worth remembering why it was written, after David Barron had already written a memo authorizing Anwar al-Awlaki’s killing 5 months earlier. In April 2010, as newspapers reported that Awlaki had been added to the CIA Kill List (having been added to the JSOC one either in December 2009, before they tried to kill him on Christmas Eve, or in January 2010, when Dana Priest reported it), international law scholar Kevin Jon Heller wrote a blog post arguing that it would be murder for CIA to kill Awlaki.

The Obama administration has been savagely criticized for authorizing the CIA to use lethal forceagainst Anwar al-Awlaki, a US citizen who is allegedly a member of al-Qaeda in Yemen.  Glenn Greewald, for example, has described the decision — justifiably — as “unbelievably Orwellian and tyrannical.”  To date, however, critics have ignored what I think is perhaps the most important point:An American who kills an American outside of the United States is guilty of murder.  Not political murder.  Not figurative murder.  Legal murder.

18 USC 1119:

(a)Definition.— In this section, “national of the United States” has the meaning stated in section 101(a)(22) of the Immigration and Nationality Act (8U.S.C. 1101 (a)(22)).

(b)Offense.— A person who, being a national of the United States, kills or attempts to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country shall be punished as provided under sections 11111112, and 1113.

The foreign-murder statute has to be the starting point of any analysis of the Obama adminstration’s decision to authorize the CIA to kill al-Awlaki.  If the CIA does kill him — and even if it doesn’t; see below — any CIA operative involved in the killing who is American is presumptively a murderer.  The only questions would be (1) whether for some reason 18 USC 1119 would not apply, and (2) whether the CIA operative would have a plausible defense if he was charged with murder in federal court.

In response to this post, David Barron felt the need to reconsider the question.

The main point was to determine whether the CIA — not the government generally — could kill Awlaki.

And the memo seems to betray uncertainty about whether they’ve really proved their case.

Consider the length. Barron takes 10.5 pages to consider whether DOD could kill Awlaki, and somewhat unsurprisingly finds that soldiers whose job it is to kill the country’s enemies can kill someone who has been deemed an enemy to his country.

Barron spends just 5 pages considering the far more controversial question whether CIA can kill Awlaki. As was pretty clear Barron would do from the White Paper, he does so by collapsing the difference between soldiers (whose job is to kill our enemies) and CIA (who are prohibited from breaking US law and whose job is not, primarily, to kill our enemies). That is, the argument in favor of soldiers killing stands in for a considered argument for spies killing.

It seems to accomplish this by classifying CIA’s actions as military — though the classification is redacted. See this passage from page 18:

Screen shot 2014-06-23 at 4.24.44 PM

And this passage from page 32:

Screen shot 2014-06-23 at 4.28.11 PM

Given debates that took place afterwards, I think the redacted language may either describe CIA’s actions as Traditional Military Activities or paramilitary activities. It appears by labeling the CIA’s job as such, Barron disappeared the other rules that govern CIA action. But his language in this footnote, doesn’t reflect great confidence his argument is very strong.

We note, in addition, that the “lawful conduct of war” variant of the public authority justification, although often described with specific reference to operations conducted by the armed forces, is not necessarily limited to operations by such forces; some descriptions of that variant of the justification, for example, do not imply such a limitation. See, e.g., Frye, 10 Cal. Rptr. 2d at 221 n.2 (“homicide done under a valid public authority, such as execution of a death sentence of killing an enemy in a time of war”); Perkins & Boyce, Criminal Law at 1093 (“the killing of an enemy as an act of war and within the rules of war.”)

Barron’s confidence in footnote 44 — especially where he argues that the US doesn’t think that unprivileged combatants (which include both CIA and al Qaeda members operating not in uniform) engaging in killing violates the law — appears even more shaky. If that’s true, then someone should go free Omar Khadr, because we argued that his self-defense attempted killing of Americans was illegal solely because he was unprivileged.

That is, it doesn’t appear even Barron believes his own argument.

One other thing that appears to be redacted is the authority for CIA’s actions, in the redacted language following “the CIA would carry out in accord with” …

That language probably refer to the Presidential Finding required before CIA engages in covert operations. That is, critical to this argument appears to be the formula that if the President deems the CIA a military force (and gives them drones) then they get treated — at least according to US law — just like soldiers, even when they’re killing Americans. 

That involves an extra step to the formula “if the President authorizes it,” requiring also that he call CIA spies soldiers. But it still amounts to the same argument.


8 replies
  1. Don Bacon says:

    Here’s Fox News today, fair & balanced:–
    Obama used doc to justify killing American terrorist
    But okay, the headline writer is not the journalist, right?
    So, reading on, which many don’t do I suppose, further down —
    To back up its findings, the memo said: “facts presented to us indicate that [al-Awlaki] has been involved, through his operational and leadership roles in AQAP, in an abortive attack within the United States and continued to plot attacks intended to kill Americans.”
    This appears to be a reference to the failed 2009 attack by the so-called “underwear bomber,” and the attempt to blow up cargo jets with printer bombs the following year. In both cases, the bombs were built by Ibrahim al-Asiri, and the memo provides no clues as to al-Awlaki’s direct role in the plots. (end excerpt)

    • emptywheel says:

      toner cartridge plot was after the memo (September to October 2010; the memo was July 2010.

      But it appears they may have already been getting reports from Jabir al-Fayfi at that point.

  2. themomcat says:

    It appears that the memo relies quite heavily on unsourced and unsubstantiated information form the CIA, etc. Picks and chooses the laws it wants to site adn disregards any constitutional guarantees of the victim or those of his teenage son.

    Needless to say, I doubt this would hold much water as a defense in an unbiased court, such as The Hague.

  3. orionATL says:

    i learned in the movies that a soldier has to wear a uniform, otherwise he’s not a soldier ( could be taken for a spy, even). you can’t just say a cia employee is a soldier without there being some concrete evidence that she is like other u.s. soldiers can you?

    i learned (recently) from the media that all drone flights for dod forces or cia forces are piloted by the same super secret air force wing in colorado sprigs. but was this the case in dec 2009?

    was there previously a cia-only piloting outfit hidden away in say, saudi arabia?

  4. TarheelDem says:

    It is very interesting that the facts that might argue the danger of Awlaki are that which have been specifically redacted. There is never presented specific accusations for public review that would justify the action that the CIA took.

    Like most actions since 1945, it is all “Trust us”. Increasingly the actions look untrustworthy. And the legal opinions cooked.

  5. Don Bacon says:

    They also want to open the door for mercs, the “ex-SEALs” we hear about, to kill militants, terrorists, and you know, anybody the decider (or his hit men) damn well feels like expiring. He’ll cover it with a “legal” finding later.
    And sometimes after they are killed — we dump their bodies at sea! Cool!
    It sure removes any mystery about where these domestic shooters get their ideas. Hey, if the president can do it than so can I. If he’s got the right to bear arms, then so do I.
    And then the SOB grieves over school shootings. Really, he does. Supposedly. Reportedly. Maybe.

  6. orionATL says:

    of course, if the nutty nigerian’s plot were exposed as a set-up/entrapment by cia (or fbi), which i take it to have been, then the justification for killing al-awlaki loses one of its emotional strong points in a court, and refocuses attention on the motives of the u.s. gov to off al-a.

    i have never felt that the motives/justifications for killing al-a were clearly set out by gov. i assume if gov could have clearly set out them out ( this guy did …..) then they would have.


    – revenge for being a cia agent and going over to the other side. the murder of al-a’s son suggests this is an issue.

    – showing other muslim americans (and british muslims) that they better not try to radicalize “our” muslims.

    – anger at the style and content of speech al-a employed in persuing his cause.

    – sensible recognition that al-a would would sooner or later suceed at blessing the successful bomber.

    – anger at the fort hood shooting ( i give some variant of this high marks).

    – intent to kill al-a to demonstrate to american politicians and citizens that obama was a president who was going to be “tough-on-terrorism”.

    i don’t know how the facts will turn out in the al-a assassination, but i have observed a lot of what i would call ruthlessness from president obama.

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