The U.S. government can unleash a deadly drone strike on an American citizen abroad if that person is plotting to attack Americans and can't be apprehended, according to a newly released Obama administration memo describing its legal rationale for killing terror suspect Anwar al-Awlaki in Yemen in 2011.

The memo will further fuel debate about the drone program and the secrecy with which the administration has executed it and could trigger legal challenges to the effort. Criticism of the drone program from both Republicans and Democrats in Congress has gained momentum as the administration has found itself frequently on the defensive for other key counterterrorism programs launched under the George W. Bush administration, like electronic surveillance and Central Intelligence Agency interrogations.

The long-secret contents of the 2010 memo have been at the heart of a debate about the legality of the secret drone program. The strike that killed Mr. Awlaki also killed Samir Khan, a U.S. citizen who edited the terrorist magazine Inspire. Two other U.S. citizens—a teenage son of Mr. Awlaki and a man in Pakistan—have been killed by U.S. drone strikes in separate incidents, according to officials.

The 41-page Justice Department memo released Monday concluded the use of lethal force is acceptable "at least where high-level government officials have determined that a capture operation overseas is infeasible, and that the targeted person is part of a dangerous enemy force and is engaged in activities that pose a continued and imminent threat to U.S. persons or interests."

Pardiss Kebriaei, a lawyer at the Center for Constitutional Rights who filed two lawsuits challenging the killing of Mr. Awlaki, said the memo shows "the government's drone killing program is built on gross distortions of law." She said it will ultimately be up to the courts, not the White House, to decide what is legal.

Sen. Ron Wyden (D., Ore.), a longtime critic of drone-policy secrecy, zeroed in on the legal and policy questions that the memo doesn't answer.

"It is my hope that making this memo public will generate new pressure for the executive branch to answer other pressing questions," Mr. Wyden said in a statement. "How much evidence does the president need to determine that a particular American is a legitimate target for military action? Or, can the president strike an American anywhere in the world? What does it mean to say that capturing an American must be 'infeasible'? And exactly what other limits and boundaries apply to this authority?"

The memo avoided answering questions about the minimum requirements that need to be met to kill an American working with terrorists overseas and instead stuck to the facts in the case of Mr. Awlaki.

The American Civil Liberties Union and the New York Times had filed a lawsuit in federal court in New York to force the government to release the memo. It was also the subject of a fight in Congress earlier this year, when the memo's author, David Barron, was nominated for a federal appeals court position. Lawmakers held up his confirmation until the Obama administration agreed to share the memo. Mr. Barron was then confirmed.

President Barack Obama's prior answers on how the drone program works have failed to satisfy its critics. The president gave a lengthy speech to the topic last year, in which he defended the killing of Americans with drones as an effective and legal tactic, and he has argued that in some remote areas, drone strikes offer the most effective way of combating terrorists.

"As president, I would have been derelict in my duty had I not authorized the strike that took him out," Mr. Obama said of the strike on Mr. Awlaki in his speech last year.

Last month, in a speech at the West Point military academy, Mr. Obama emphasized the need to be more open about the use of drones.

In justifying a drone attack on an American overseas, the Justice Department concluded Mr. Awlaki was a permissible military target under the authorization for use of military force passed by Congress after the Sept. 11, 2001 attacks by al Qaeda.

Justice Department spokesman Brian Fallon said the memo "is consistent with the administration's previous statements on this issue."

More than a dozen pages of the document are redacted, though there are passages that describe Mr. Awlaki as an active leader in al Qaeda in the Arabian Peninsula, a group that has spent years plotting attacks against Americans, including a botched underwear bomb in 2009 that failed to explode on a Christmas Day flight to Detroit.

The legal opinion draws on a number of sources to argue there are circumstances in which the U.S. government may order the killing of one of its citizens abroad—from an Israeli Supreme Court decision to a past finding from the Clinton administration that it was permissible to kill Osama bin Laden because "killing a person who posed an imminent threat to the United States would be an act of self-defense, not an assassination."

ACLU lawyer Jameel Jaffer called the release of the memo an important step in the public debate over drones, and said the group would press for more documents and information about the top-secret program.

"The drone program has been responsible for the deaths of thousands of people, including countless innocent bystanders, but the American public knows scandalously little about who is being killed and why," Mr. Jaffer said.

Robert Chesney, a professor specializing in national security at the University of Texas School of Law, said the memo focused narrowly on the Awlaki case, and therefore is "an easy case" that doesn't address some of the tougher gray areas.

"The interesting question going forward is what are the boundaries of al Qaeda?" The hard cases, he said, will be the ones involving groups affiliated with al Qaeda who haven't plotted against America and groups whose ties to al Qaeda aren't clear but who have attacked Americans.

Joseph Miller is the pen name for a ranking Department of Defense official with a background in U.S. special operations and combat experience in Iraq and Afghanistan. He has worked in strategic planning.

On Monday, the White House memo used to justify drone attacks on U.S. citizens was released, and it appears to confirm the worst suspicions of its libertarian critics. The Obama administration had sought to keep the memo secret, and now we know why: Because there are no checks and balances; there are no classified courts. Indeed, the memo reveals that the president of the United States ordered the targeting killing of U.S. citizens overseas — in violation of their constitutional right to due process — sans any type of oversight outside of the executive.

The 41-page Department of Justice memorandum outlining the administration’s attempt to justify the killing of U.S. citizens accused of plotting acts of terrorism abroad was released on Monday under order of the U.S. Court of Appeals for the Second Circuit in New York. The court did so in response to a Freedom Of Information Act request submitted by both the American Civil Liberties Union and The New York Times.

The memo, entitled “Re: The Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Operations against Shaykh Anwar al-Aulaqi,” was written by the Office of Legal Counsel at the U.S. Department of Justice and was addressed to Attorney General Eric Holder. The Office of Legal Counsel was asked to weigh in on the matter after the Obama administration decided that it might choose to pursue a lethal operation against a U.S. citizen living in Yemen who the administration accused of conspiring to commit acts of terrorism.

It is worth noting that the Obama administration had already added al-Awkaki to target lists before the Justice Department delivered its response to the administration’s question about the legality of such operations — and despite federal statues banning the killing of Americans abroad.

The issue was how the administration could legally pursue lethal actions against its own citizens living abroad, who the administration accused of conspiring to commit acts of terrorism — but who were not actively engaged in committing an act of terrorism or fighting U.S. troops in a war zone — without a conviction in court. American citizens are afforded the right to due process under both the Fifth Amendment and 14th Amendment. And since it is illegal to murder a U.S. citizen abroad under federal statues, some question whether CIA officers involved in the targeted killings of American citizens under the legal framework the memo lays out are guilty of murder.

Instead of taking the U.S. citizens the administration accused of conspiring against the U.S. and her interests to court, the administration was looking for an easier way to solve the problem: They sought to kill them, and wanted the legal backing to do so. But here’s an issue: Even if a U.S. citizen were to be tried in absentia and found guilty of conspiring to commit terrorism by a federal court, the punishment for doing so is not death, and certainly not from a missile fired by a Predator drone.

That has not stopped the Obama administration from doing just that. To date, Anwar al-Awlaki is one of three U.S. citizens to have been killed abroad by the Obama administration without having received due process in a court of law. Another of those was his 14-year-old son, who by all accounts was innocent and was not accused of conspiring to commit terrorism.

None of those killed were in the midst of an act of terrorism, nor were they actively engaged in fighting U.S. troops in a war zone. At the time of his death, al-Awlaki was riding in a vehicle in the Yemeni desert. We made no attempt to capture him or arrest him, despite assurances made to the Justice Department. No one was been made to answer for these deaths, especially that of al-Awlaki’s son.

The signatory for the memo was then-Assistant U.S. Attorney General David J. Barron. In the memo, the administration contends that a U.S. citizen’s alleged leadership role in al-Qaida, and the infeasibility of capturing them, provides sufficient legal justification for either the CIA or the Department of Defense to use lethal force and deny that citizen their right to due process — all based on the authorization of force passed by the Congress after 9/11, and another memo also written by Barron that remains classified.

The problem is that the administration is making the accusations against a U.S. citizen, rendering a judgment of guilt or innocence outside of the court system, and then carrying out an extrajudicial killing of American citizens in complete and utter violation of the Constitution. The part of the memo that addresses the right to due process is redacted.

At no point in the extralegal process outlined in the memo is the U.S. citizen in question tried or convicted in a court of law for the crimes the administration alleges the individual is guilty of. The administration is making that determination, and exactly who within the administration is still unclear. This is a scary usurpation of power from the judicial branch — and an amazing power grab by the executive.

Finally, under the legal reasoning outlined in the memo, there is nothing to prevent the president from ordering a lethal operation against U.S. citizens inside the United States, as the memo does not stipulate that there is a geographic limitation to these operations — only a test of feasibility. Nor is there a single requirement for a federal court of judge to make the determination that a person is a member or leader of a terrorist organization.

When this country was created, the Founders may not have anticipated the dangers posed by a terrorist cell capable of killing thousands or more. But they knew well, and carefully guarded against, the dangers of a government gone wild. In this memo, finally made public, we have proof of a White House that considers itself judge, jury and executioner. And that, America, is a clear and present danger.

Joseph Miller is the pen name for a ranking Department of Defense official with a background in U.S. special operations and combat experience in Iraq and Afghanistan. He has worked in strategic planning.

 MrDwhitey wrote:
As I recall many people were fine/happy with the drone killing of ar-Awlaki abroad?

Even though he was just accused.

 MrDwhitey wrote:
As I recall many people were fine/happy with the drone killing of ar-Awlaki abroad?

Even though he was just accused.

 MrDwhitey wrote:
I did not entirely mean here, I read about it on reddit and well..

Y'all know what that can be like.

 djones520 wrote:

 MrDwhitey wrote:
I did not entirely mean here, I read about it on reddit and well..

Y'all know what that can be like.

I meant nationally. I don't think the nation as a whole has really formed an opinion on it. Honestly I doubt it would even really be all that partisan.

 Ahtman wrote:
I could be wrong, but I recall the last thread about ar-Awlaki was that no one was going to mourn his death but many had issues with the manner in which it came about, some because of drones, some because he was American, some for Foreign Policy reasons, though usually a mix of all those.

 MrDwhitey wrote:
Here it is.

http://www.dakkadakka.com/dakkaforum/posts/list/0/528705.page

I'm actually honestly impressed by some of the views here.

And disgusted by a very few. Which surprises me! Only a few!

 d-usa wrote:

 MrDwhitey wrote:
Here it is.

http://www.dakkadakka.com/dakkaforum/posts/list/0/528705.page

I'm actually honestly impressed by some of the views here.

And disgusted by a very few. Which surprises me! Only a few!

My views are unchanged, so I really have nothing new to add that I haven't already said in that thread.

 Jihadin wrote:
I would like to see the memo "benchmarks/check the box" requirements one has to get for the POTUS to issue the kill command.

 Manchu wrote:
As far as constitutionality, I don't think the US Government has the authority to kill anyone (citizen or not) without due process outside of warfare.