The White House ordered its lawyers to prepare a carefully drafted legal opinion that would permit the assassination of Anwar al-Awlaki, the United States-born al-Qaeda leader killed by a drone attack in Yemen last month.
A 50-page argument was written in 2010 to justify the potential killing of al-Awlaki, it has emerged. As he was an American citizen, the Government would in normal circumstances have been legally prevented from executing him without first staging a fair trial.
The existence of the secret document, which effectively dodged that protocol, was revealed yesterday by the New York Times.
Al-Awlaki's assassination would be lawful only if it was not possible to capture him alive, it concluded. Because his circumstances were deemed unique, the opinion does not set a future precedent for the US to kill any citizen it suspects of posing a terrorist threat.
The document was largely drafted by David Barron and Martin Lederman of the Justice Department's Office of Legal Counsel. They were asked to find a way around a stringent legal framework supposed to safeguard US citizens from being put to death without trial.
The lawyers argued that al-Awlaki could be legitimately killed because he was taking part in an ongoing war and posed an "imminent" threat to Americans. It was not murder to kill a wartime enemy in compliance with the rules of war, they concluded. The legal advice was designed to supersede federal laws against murder, international laws against government-sanctioned assassinations, and the US Bill of Rights. It was drafted early last year, shortly after al-Awlaki helped to orchestrate the failed "underwear bombing" of a flight to Detroit.
Born in New Mexico and raised largely in Yemen, al-Awlaki was believed to be al-Qaeda's "leader of external operations" in the Arabian Peninsula.