The Assassination Memo:
Ominous Implications and an Embattled Empire

June 30, 2014 | Revolution Newspaper | revcom.us

From a reader:

In 2011, a U.S. drone assassinated Anwar al-Awlaki, a U.S. citizen in Yemen. Portions of a Justice Department memo providing legal cover for that illegal assassination were released to the public on June 21.

I'm not a legal expert, but I've read the memo and commentaries from a range of experts and analysts, and it is clear that the implications of the legal rationale in this memo are chilling, ominous, and outrageous.

And here's something else: This memo represents and reflects the outlook, and morality of the rulers of an empire who look out at a world they dominate—a world of vicious exploitation, ruthless oppression, and cutthroat contention with rivals of all kinds—and declare their “right” to kill anyone, anywhere, perceived to be a potential threat.

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In the case of Anwar al-Awlaki, here are the uncontested facts:

• No evidence was ever presented in a court of any kind—even to the notoriously rubber-stamp secret Foreign Intelligence Surveillance Court (FISA) that has ruled in favor of the government in 99.93 percent of the warrant requests brought before it—that Anwar al-Awlaki had committed any crime.
• The victim had no opportunity to confront his accusers in court.
• His family's repeated attempts to challenge attempts to murder him, based on press reports that Anwar al-Awlaki was being targeted for assassination, were rebuffed at every point by U.S. authorities.

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After the illegal assassination of Anwar al-Awlaki by the CIA, a CIA drone also killed Anwar al-Awlaki's son, Abdulrahman al-Awlaki, also a U.S. citizen. There has never been any claim by anyone that Abdulrahman al-Awlaki had anything to do with al-Qaeda. He was a 16-year-old boy who hadn't seen his father in two years, eating dinner by an open fire along the side of a road when an American drone came out of the sky and fired the missiles that killed him and his companions. A spokesman for Obama justified the murder of Abdulrahman al-Awlaki in this exchange with reporter Sierra Adamson:

Adamson: ...It's an American citizen that is being targeted without due process, without trial. And, he's underage. He's a minor.

White House Press Secretary Robert Gibbs: I would suggest that you should have a far more responsible father if they are truly concerned about the well being of their children. I don't think becoming an al-Qaeda jihadist terrorist is the best way to go about doing your business.

Murdering a 16-year-old boy is justified because of alleged crimes of his father! Such is the depraved morality of those who rule this country. As the band "War" put it: "I hear you're working for the CIA, they wouldn't have you in the Mafia."

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In response to legal challenges by the New York Times, the ACLU, and in relation to infighting within the ruling class over how (not whether) to maintain the U.S. empire while maintaining the credibility of its vaunted "freedom and democracy," Barack Obama's White House authorized the release of the memo providing legal cover for the murder of Anwar al-Awlaki.

The U.S. has declared its right to launch drone attacks around the world in other countries, including against forces who are not in conflict with the U.S. itself, without regard to how many innocent civilians they kill. (See "Murder by Drone.") But the Justice Department memo had to break new (il)legal ground because it is explicitly illegal for a U.S. citizen to kill another U.S. citizen outside the United States under the Murder of United States Nationals Act of 1991.

In the George W. Bush era, the White House assigned its "legal" team that included John Yoo to concoct justifications for torture. Obama's team also started from an illegal objective and pieced together a rationale to justify it. In this case, murder.

That justification is both contorted and dangerous.

The New York Times called the legal arguments in the memo "a slapdash pastiche of legal theories—some based on obscure interpretations of British and Israeli law—that was clearly tailored to the desired result." (A "pastiche" is a hodgepodge. The editorial appeared June 23).

Among the twisted legal rationales in the memo is an extensive argument that violating laws is not a crime if carried out in the process of executing "public authority." The memo invokes examples like speeding laws not being applicable to police in chases, or to fire trucks on their way to a fire. Invoking "public authority" in this way is such an absurdly broad interpretation that it would justify anything, anywhere—and that is exactly the point of the memo.

And, in fact, the U.S. launched an assassination attempt on Anwar al-Awlaki in December 2009, even before the White House came up with a supposed legal cover for this attempt. So the Justice Department memo was, in effect, an after-the-fact legal cover for a previous illegal assassination attempt.

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But the memo is not just bullshit, it is much worse.

The memo invokes the Authorization to Use Military Force (AUMF) law, passed three days after 9/11, to a level of trumping any supposed civil liberties. The AUMF authorizes the President of the United States to deploy "United States Armed Forces" in order "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

Two things to be said on that:

1. The law is wildly broad and could be (and is being!) interpreted to allow the President of the United States to carry out all kinds of actions, anywhere against a wide range of forces and people.
2. Ominous, fascist, and open-ended as that law is, no evidence has been presented in any court that Anwar al-Awlaki was in violation of it.

The Justice Department memo cites supposed evidence against Anwar al-Awlaki, but that "evidence" has been redacted (blacked out) in the version of the memo released to the public. To quote from the memo: "We need not attempt here to identify the minimum conditions that might establish a public authority justification for that operation."

Legal analyst Kevin Jon Heller has been a critic of the administration's justification for the killing of al-Awlaki. Before the (redacted) memo was made public, he wrote "[W]e need to constantly remind people that the criminal law is not optional, not something that can be cast aside every time the government decides it is too limiting." And on release of the memo he wrote, "[L]et's call killing al-Awlaki what it still is, even after the memo—murder."

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The memo acknowledges (only to dismiss) the fact that international law—the Geneva Conventions—prohibits "violence to life and person, in particular murder of all kinds," with respect to persons "taking no active part in the hostilities" in a war.

But for the authors of the memo, and those for whom they are contorting the law, such rules don't suit the needs of the empire right now. A major element of the memo involves justifying the doctrine of the rulers of the U.S. that "war" is anything they say it is, and that "military combatants" are anyone, anywhere in the world who they target.

The memo acknowledges that Yemen, where Anwar al-Awlaki was assassinated, is "far from the most active theater of combat between the United States and al-Qaida." And the authors feel compelled to acknowledge what has been conventional legal theory (which the memo describes as the views of "some commentators") that "States are permitted to attack only civilians who directly participate in hostilities" (page 24)."

But the memo dismisses this basic concept of international law: "[W]e do not think this is the proper understanding of the laws of war in a non-international armed conflict." In other words, the White House is claiming that borders and theaters of war are irrelevant in defining where someone can be killed. The memo repeatedly uses wording that conflates and interchangeably refers to armed forces actually engaged in military conflict with "members of an enemy organization" (emphasis added). This erasing of the distinction between armed forces engaged in warfare against the U.S. on the one hand, and non-military, civilian activity by someone who the U.S. decrees is part of an enemy organization has extremely ominous implications.

The rulers of the U.S. are confronting challenges from forces who oppose them who engage in unconventional forms of combat. Those actions include a whole range of tactics that are in line with the non-revolutionary and reactionary agendas of these forces. Those are emphatically not tactics that genuinely revolutionary forces would use!

But a) the crimes carried out by, or even imagined by these forces are dwarfed by those of the U.S. empire, which is built on genocidal slaughter from Hiroshima to Indonesia to Guatemala; and b) in taking on these threats, the rulers of the U.S. are essentially justifying the widest range of their own current and future war crimes, against all kinds of forces who express views in opposition to the crimes of the U.S. ruling class.

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I mentioned in the opening of this letter that the unprecedented declaration of the right—and need—to kill anyone anywhere is not an indication that the rulers of this country have things under control. Just the opposite. Which emphasizes the urgency of bringing forward the real revolutionary alternative.

It's critical that people speak up and oppose the whole logic and immorality of the Obama assassination memo. And, be made aware of, engage with, and take up a real alternative: The Constitution for the New Socialist Republic in North America (Draft Proposal) renounces aggression around the world for empire. And it guarantees by far the greatest protection for dissent and civil liberties in human history, in the context of unleashing all positive factors to get to a world beyond exploitation and oppression of any kind.

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