August 4, 2012
Posted by Matt Ehling
On May 22nd, PRM filed suit against the U.S. Department of Justice, seeking legal opinions related to the use of lethal force by UAV drones within the United States. We filed our initial FOIA request in this matter in October of 2011, in the wake of news reports that chronicled the killing of al-Qaeda operative (and U.S. citizen) Anwar al-Awlaki by a Predator drone. The drone attack occurred in 2011 in Yemen, and generated considerable controversy, due to al-Awlaki’s status as a U.S. citizen.
PRM’s interest in the matter lies in the government’s broader propositions regarding its ability to use lethal force against U.S. citizens and others, both at home and abroad. Our lawsuit, however, is focused only on the domestic nexus of these issues.
Earlier lethal action
Anwar al-Awlaki was not the first U.S. citizen to be killed via drone strike. In 2002, American Kamal Derwish was killed in a Predator attack intended for the Abu Ali al-Harithi, then the head of al-Qaeda’s operations in Yemen.
While Derwish’s death was accidental, Bush administration officials stated that they had the power to proactively use lethal force against Americans, should they ever decide to employ such force. The administration did not make extensive legal arguments at the time, but generally noted that the President could rely on his executive authority to accomplish such killings.
The drone strike that killed Derwish was an operational rarity at the time, since remotely piloted craft had only recently been introduced into field service. Since 2002, U.S. military and intelligence agencies have markedly increased the number of drones that they utilize – close to 7000 at present, according to a New York Times report.
The operational and political calculations behind this growth in drone use are fairly obvious. On the operational side, drones enable force projection into hostile areas without the use of ground troops, and without the risks entailed by the use of manned aircraft. On the political side of the equation, the loss of life in combat operations has domestic political consequences that drone use can minimize. Both of these factors account for the surge of UAV use in foreign theaters such as Pakistan, Yemen and Libya.
Domestic use of drones
Once used exclusively abroad, UAV drones are now finding domestic applications as well. Within the past two years, federal agencies have started to use drones for border surveillance and other purposes. Even more recently, domestic drone use was expanded by the passage of the Transportation Modernization and Safety Improvement Act of 2012. The law contained language that allowed for the use of drones by police agencies within 90 days of its passage. It also required the FAA to overhaul its regulations for civilian drone use by Sept 30, 2015.
In April of 2012, a FOIA lawsuit filed by the Electronic Frontier Foundation produced documents that revealed the existence of several dozen FAA certified domestic drone authorizations. The documents also revealed some prospective drone users who had applied to the FAA and had been rejected – including an applicant in Otter Tail County, Minnesota.
The FAA documents shed some light on the uses that domestic drones were being put to, which mostly extended to surveillance and photographic applications. There was no documentation indicating that domestic drones were – as of yet – being outfitted for the delivery of lethal force.
J.T. Haines, the attorney working with PRM on our FOIA lawsuit, recently met with staff lawyers for the New York Times who are following drone-related issues. They shared their opinion that current FAA payload specs (4.4 pounds) would not allow for weapons payloads to be deployed on domestic drones. It is worth noting, however, that the Sheriff of Montgomery County, Texas has publicly announced his interest in outfitting drones with rubber bullet and tear gas launchers in the near future.
Drones and targeted killing
It seems obvious that existing trends in drone use (growing domestic applications and lethal force for counter-terrorism) may intersect at some point. When and if that happens, what form will that marriage take? And what considerations will govern it? These questions have been raised with increasing frequency since the Obama administration carried out the targeted drone killing of Anwar al-Awlaki.
According to ABC news, Obama administration officials first debated the legality of killing Awlaki in 2010. Awlaki was the al-Qaeda principal behind “Inspire” – an English-language jihad publication. He had also been identified by U.S. intelligence agencies as being connected to several disparate terrorist incidents, including the Fort Hood shooting and 2009’s so-called “underwear” bomb plot. Later in 2010, the New York Daily News reported that Awlaki had been placed on a “kill list” by Obama’s national security team. Awlaki was in Yemen at this time, and continued to be located there until he was killed by a drone-launched Hellfire missile in late 2011.
After Awlaki’s death became public, an anonymous administration official told the New York Times that the government had relied on self-defense under international law as a legal basis for its action, as well as the 2001 Authorization to Use Military Force. The administration did not officially or publicly offer details on its legal position until several months later.
Analyzing the legality of the Awlaki killing is a useful exercise, due to the fact that it raises many novel issues that could have far broader – and more disparate – impacts.
The most pertinent legal questions include the following:
Did the killing of Awlaki – a U.S. citizen who was not on a conventional battlefield, and not engaged in combat operations – meet constitutional standards of due process? These standards include – in most instances – a notice of charges, a routinized process, and a neutral judge. In the Supreme Court’s 2004 Hamdi decision, the Court held that a U.S. citizen captured on a battlefield fighting alongside enemy forces was – at minimum – due a habeas corpus hearing before being subjected to open-ended detention. If a habeas hearing satisfied due process in the context of capture during a military campaign, how could lethal force absent such process be justified in Awlaki’s circumstances?
Use of force
The Constitution’s Fourth Amendment requires that all government search and seizure actions must be reasonable. Courts have long viewed the government’s use of lethal force as a “seizure” subject to Fourth Amendment constraints. Major questions that arise in the analysis of lethal force actions include those that relate to the “imminence” of a threat. For instance, does a state actor reasonably believe that they will suffer great bodily harm or death when confronted by imminent threat? Was a suspect actively resisting when lethal force was used? Were there other exigent circumstances that made using lethal force a necessity?
Which of the above considerations applied to Awlaki’s circumstances? Furthermore, what precedents might be established by considering Awlaki’s killing to be permissible under the Fourth Amendment?
Applicability of the Constitution overseas
All of these issues entail additional analysis due to Awlaki’s location overseas. Supreme Court case law has held that constitutional rights adhere to all persons within the United States. Case law regarding the applicability of those rights overseas provides useful guidance, but is less fully developed.
In its 1957 Reid v. Covert decision, the Court held that U.S. citizens overseas were protected by the Constitution when dealing with the actions of the U.S. government. The Reid case dealt with the application of the Uniform Code of Military Justice to the civilian dependent of a member of the armed forces stationed overseas in peacetime. Reid held that such a person could not be tried before a military court, and must be provided full constitutional process. In another matter, the Court’s U.S. v. Verdugo Urquidez decision held that non-citizens abroad are not covered by the Constitution when interacting with the U.S. government.
The Reid decision raises intriguing questions when applied to the circumstances of the Awlaki incident, even though they are factually dissimilar.
Major issues are drone-neutral
It should be noted that the issues above – for the most part – do not hinge on drone technology. However, the use of a drone in the Awlaki incident places a frame around these issues, and presents a window through which to analyze them. In addition, these issues raise pointed questions about the government’s perspective on critical Constitutional matters – matters that are just now starting to come into focus after several months of silence.
The administration’s legal arguments
For many months after the Awlaki killing, the Obama administration refused to articulate the legal basis for its action. However, in March of this year, the administration’s silence was broken by Attorney General Eric Holder during a speech at Northwestern University. Holder’s speech detailed the administration’s legal theory behind the Awlaki killing – or at least as much as it would describe at that time.
First, Holder described the factual circumstances under which the government believed that it could proactively kill a U.S. citizen. These included:
1. The presence of the citizen in a foreign locale;
2. Involvement of the citizen in al-Qaeda, at an operational level;
3. Involvement of the citizen in active planning to kill other Americans.
Holder then detailed the legal basis for targeting and killing such a person without a trial or other traditional legal process. The criteria he set forth included the following:
1. The threat posed by the citizen must be imminent;
2. Capture of the citizen is not feasible;
3. The killing must be carried out in accordance with international law of war principles.
Finally, Holder addressed the due process question by asserting that due process could be satisfied by executive branch review alone. From Holder’s perspective, if executive branch officials had deliberated over the targeted killing, then judicial review was not necessary to fulfill the Constitution’s due process requirement.
Needless to say, this statement was the most controversial component of Holder’s speech, even though he tried to make a case for applying it only in narrow circumstances.
The OLC memo
Around the time of the Awlaki strike, the New York Times was informed by a confidential source that the Office of Legal Counsel (OLC) of the Justice Department had prepared a memo laying out the legal basis for the strike. The source also described some of the memo’s contents to the Times. The New York Times (and other organizations, including PRM) subsequently filed FOIA requests seeking the memo from OLC, but the Justice Department has thus far refused to release the memo or any related documents. This refusal has resulted in at least four separate, ongoing lawsuits.
FOIA request summary
Several drone-related lawsuits that are currently in federal court started with FOIA requests. The first request was filed in 2010, when the ACLU asked a variety of federal agencies – including the CIA, Justice, and State – for information on the legal basis for the use of Predator drones in targeted killing operations. Some agencies produced documents in response to the request. Others – such as the CIA – didn’t. The CIA instead issued a so-called “Glomar” response, stating that it could neither confirm nor deny the existence of documents related to the drone program. The ACLU sued to get access, but the district court ruled in favor of the CIA. That case is now in the appeals stage.
After the New York Times reported the existence of an OLC memo related to drone killings, several groups filed FOIA requests, in the following order:
• On October 5, 2011, the First Amendment Coalition filed a FOIA request for OLC memos on the legality of targeting and killing Anwar al-Awlaki.
• On October 7, 2011 the New York Times filed a request for any OLC memos detailing the circumstances under which it would be legal for U.S. military or intelligence agencies to kill a U.S. citizen.
• On October 11, 2011, PRM filed a request for OLC memos and opinions that dealt with:
1. The legal basis for using lethal force against Anwar al-Awlaki;
2. The legal basis for using lethal force (via UAV drones) against U.S. citizens abroad;
3. The legal basis for using lethal force (via UAV drones) against persons located within the U.S.
• On October 19, 2011, the ACLU sought documents pertaining to the legal basis for the lethal targeting of U.S. citizens; OLC records pertaining to the lethal targeting of Anwar al-Awlaki; facts supporting the imminence of the threat posed by Awlaki, and a variety of other items.
PRM’s request sought to uncover:
1. The legal analysis behind the Awlaki killing;
2. Any broader analysis about the use of lethal force against U.S. citizens abroad, in the context of UAV drone attacks;
3. Whether, having considered the use of lethal force abroad, the government had considered any circumstances for using lethal force at home, in the context of UAV operations.
FOIA denial and lawsuit
We received a denial letter from OLC in November that stated the following:
In relation to Item 1 (use of lethal force against Anwar al-Awlaki), the OLC stated that it could neither “confirm nor deny” the existence of responsive records.
The OLC then acknowledged possessing documents related to the “remaining items” in our request, but denied production pursuant to FOIA Exemption 1 (National Security), FOIA Exemption 3 (material exempt by statute), and
FOIA Exemption 5 (privileged information.)
The FOIA process allows for administrative review to challenge agency determinations. We filed an administrative appeal in December of 2011.
Prior to the filing of our appeal, the New York Times, the ACLU, and the First Amendment Coalition all filed lawsuits after exhausting their administrative remedies. Their lawsuits encompassed much of the territory covered by Items 1 and 2 of our request. We decided to narrow our administrative appeal to seek only documents related to Item 3 of our request, in order to make it distinct from the other cases by focusing on a domestic-specific nexus.
By April of 2012, we had received no response to our appeal. I called the DOJ’s Office of Information Policy (OIP) in April to ask about its status, and was told that OIP had lost the appeal internally. An OIP attorney then printed a copy from our web site, and walked it down to the appeals section. We received a letter confirming receipt a couple of weeks later.
We waited the necessary twenty days to exhaust the appeals process, and still received no answer. After that, we filed suit in federal court in Minnesota, seeking the same Item 3 documents specified in our administrative appeal.
In the two months since we filed suit, the ACLU and New York Times cases have been consolidated in New York. DOJ has sought a stay in the First Amendment Coalition case, pending the outcome of the New York case.
In our own case, DOJ has answered our complaint, and we are in the final stages of completing the Rule 26(f) report in advance of our pretrial conference. We are meeting with the DOJ’s attorney on August 6th to discuss new developments in the case, and to finalize the 26(f) report.
Watch our blog for more updates.