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2010 | U.S. Department of Justice, Memorandum for the Attorney General, Applicability of Federal Criminal Law and the Constitution to Contemplated Lethal Operations Against Shaykh Anwar al-Aulaqi (“US Drones Memo”)

Anwar al-Aulaqi is a United States (US) citizen and leader of AQAP, the union of al-Qaeda's affiliated branches in Saudi Arabia and Yemen. Since his activities in Yemen pose a "continued and imminent threat" of violence to the US, the US want to kill him. In this (redacted) memo, the Office of the Legal Counsel of the US Department of Justice contends that the contemplated targeting of Al-Aulaqi in Yemen does not amount to unlawful killing under US Federal criminal law, in particular title 18 U.S.Code, chapter 51, § 1119 (Foreign murder of United States nationals). It is argued that such lethal force by US officials would be justified under the notion of public authority justification, entailing that persons who are acting pursuant to public authority, should be distinguished, at least in some circumstances, from those who are not - even if a statute by terms does not make that distinction express.

While acknowledging that “there is little case law in which courts have analyzed the scope of the justification with respect to the conduct of government officials” the authors find nonetheless that discussions in the leading discourse and in the Model Penal Code demonstrate its legitimacy. They argue that nothing in the text or legislative history of the relevant Federal Criminal Law sections suggests that Congress intended to exclude the application of established public authority justification in such circumstances. Indeed, the contemplated lethal operations of Department of Defence (DoD) and the CIA would fall under that justification. The DoD the operation in Yemen would be conducted as part of the non-international armed conflict between the US and al-Qaida, and the contemplated attack would fall within Congress's authorization to use "necessary and appropriate force" against al-Qaida. As such, Al-Aulaqi’s targeting would constitute "lawful conduct of war" which is considered a “well-established variant of the public authority justification.” The public authority justification would also apply to the CIA’s contemplated operation against Al-Aulaqi. Unfortunately the reasoning underpinning this conclusion, is blanked out.

As a US citizen, Al-Aulaqi’s contemplated targeting could potentially be barred by constitutional limitations. However, the authors conclude that in view of the specific facts and circumstances, the contemplated operations comply with Al-Aulaqi’s constitutional due process rights under the Fifth Amendment and with the Fourth Amendment's "reasonableness" test for the use of deadly force. The memo underscores that these conclusions only apply to this case and its particular facts and circumstances.

To no avail, Anwar al-Aulaqi’s father challenged his son’s inclusion on a US kill list before the US District Court for the District of Columbia in 2010. Anwar al-Aulaqi was killed by a US drone strike on September 30, 2011. On behalf of his relatives, The Center for Constitutional Rights (CCR) and the American Civil Liberties Union (ACLU) filed a claim against the US government that was ultimately dismissed. 

This memo’s relevance to our reparations database lies therein that the public authority justification, when invoked by the US government in a court of law, could potentially impede drone victims from access to justice and asserting their right to reparations. Its content is also of interest when reading the Al-Aulaqi case law in our database.