Though the targeted killing of an American citizen implicates the Fifth Amendment, an executive order that forbids assassinations, and a federal statute that prohibits murdering American citizens abroad, the initial memo giving Obama legal cover to carry out extrajudicial killings spanned just seven pages.
As that length suggests, the memo, which could have resulted in a human's death at any moment, was woefully incomplete as a legal analysis. The Times reported as much before its reporters had even seen the document based on interviews. "As months passed, Mr. Barron and Mr. Lederman grew uneasy," the newspaper reported. "They told colleagues there were issues they had not adequately addressed, particularly after reading a legal blog that focused on a statute that bars Americans from killing other Americans overseas. In light of the gravity of the question and with more time, they began drafting a second, more comprehensive memo, expanding and refining their legal analysis and, in an unusual step, researching and citing dense thickets of intelligence reports supporting the premise that Mr. Awlaki was plotting attacks."
Note what this means. For months, the Obama administration was poised to kill an American at any moment, based on legal advice even its authors believed was inadequate and incomplete. And those authors, Barron and Lederman, signed off on an American's death before delving into intelligence reports and doing other due diligence they completed for the later memo, which would be more than four times as long as their earlier effort.
That all reflects rather poorly on Barron, Lederman, and Obama's Office of Legal Counsel, but it doesn't even get to what may be the most alarming part of that earlier memo. "[Redacted] has asked for your views on the legality of the Central Intelligence Agency's proposed use of lethal force in Yemen against Shaykh Anwar Aulaqi, a U.S. citizen who the CIA assesses is a senior leader of Al Qaida in the Arabian Peninsula," it begins. Additional redactions follow. The memo then continues: "Under the conditions and predicates as represented by the CIA and in the materials provided to us by the Intelligence Community, we believe that a decision maker, on the basis of such information, could reasonably conclude that the use of lethal force agains Aulaqi would not violate the Assassination Ban in Executive Order 12333 or any applicable constitutional limitations."
What this appears to say is that, as far as the Obama administration and David Barron are concerned, the CIA, a civilian intelligence organization with a long record of getting analysis wrong, can carry out the extrajudicial assassination of an American citizen whose guilt has been established solely through CIA intelligence. That's quite a contrast to the Constitution's instructions setting forth what to do if an American citizen is "levying war" against the United States government:
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
It's hard to believe that the Framers put forth these exacting standards for convicting someone levying war against America if they also believed that a person so accused could also be put on an enemies list and killed without charges or trial. Note too that even the official narrative of the Awlaki killing suggests the evidence against him was provided by a terrorist already in CIA custody. Are we comfortable giving the executive branch the power to kill citizens in secret so long as the citizen in question is first denounced by a terrorist with every incentive to tell the federal government whatever it wants to hear?