One of the most controversial legal arguments advanced in the white paper is the justification for civilians at the CIA engaging in hostilities abroad. The 1942 Supreme Court decision in Ex Parte Quirin, which is footnoted in the white paper, says that “by universal agreement and practice, the law of war draws a distinction… between those who are lawful and unlawful combatants.

“[A]n enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property” is an example of a belligerent who is an “offender against the law of war subject to trial and punishment by a military tribunal.”

‘They clearly realize they needed to come up with their independent justification of why [the CIA] has public authority to kill.’

Because CIA personnel are not part of the armed forces when they engage in hostilities, they are deemed to be unlawful combatants. The white paper acknowledges this, but argues that the CIA officers who are unlawful combatants are not war criminals as long as they comply with the laws of war.

The government is “very concerned with the status of the CIA,” said international law expert Kevin Jon Heller, a professor of criminal law at the School of Oriental and Criminal Studies at the University of London. “There’s absolutely no question that if any of these CIA agents involved in Anwar al-Awlaki’s killing ever went on vacation in Yemen or ever went on vacation in a state that has universal jurisdiction over war crimes, they could be arrested and prosecuted for murder. They certainly have committed murder under the laws of other states. Whether they have committed murder under American domestic law is another question.”

The white paper outlines five possible legal authorities that might prohibit the CIA from using lethal force against a US citizen abroad: three statutes (the foreign murder statute, conspiracy to murder an individual outside the US, and the War Crimes Act) and two constitutional provisions (the Fourth Amendment, which prohibits unreasonable searches and seizures, and the Fifth Amendment, which guarantees due process).

It relies on the 2001 Authorization to Use Military Force (AUMF) and the relatively unknown legal doctrine known as the “public authority justification” to explain why the CIA’s actions are not unlawful, concluding that there is no law prohibiting the CIA from killing a US citizen in Yemen based on the facts of his particular case — redacted from the white paper — described by the CIA to the Justice Department.

Individuals typically use the public authority justification in criminal cases, arguing that the government authorized their actions. For example, a person wearing a wire for the FBI might be violating a state’s eavesdropping law. However, if the defendant successfully uses the public authority justification, he would not be found guilty even though he clearly violated the law. The white paper concedes that the public authority justification has rarely, if ever, been used to justify the government’s own acts.

The white paper

Heller says he agrees with the legal analysis of the public authority justification, but only as it pertains to the military’s lethal actions abroad — not the CIA’s.

According to the white paper: “Given the assessment that an analogous operation carried out pursuant to the AUMF would fall within the scope of the public-authority justification, there is no reason to reach a different conclusion for a CIA operation.”

Heller told VICE News this is the “sum total” the white paper says about the CIA’s public authority justification, and that the government falls short of making its case. Still, he says, the white paper is significant “as it indicates [the Justice Department] knew they had to talk about the CIA specifically, and knew they couldn’t just lump in the military and the CIA together.

“They clearly realize they needed to come up with their independent justification of why [the CIA] has public authority to kill,” Heller continued. “Unfortunately, the memo doesn’t really tell us anything because of the way it’s been redacted. If the question is, Where does the CIA get their authority to use lethal force abroad?, given that’s the necessary condition for them to avoid this foreign murder statute, this memo doesn’t tell us anything. It could be there. But if it is, it’s behind a redaction.”

Although the white paper says that the CIA expressed to the Justice Department that it preferred to capture “this target,” the agency assessed that a capture operation in Yemen “would not be feasible at this time.”

“The CIA has further represented that this sort of operation would not be undertaken in a perfidious or treacherous manner,” the white paper says.

A footnote states that the white paper “addresses exclusively the use of force abroad, in the circumstances described herein. It does not address legal issues that the use of force in different circumstances or in any nation other than Yemen might present.”

Still, the logic and legal rationale could be applied to the same types of lethal operations against Americans in other countries who the government may determine are part of al Qaeda or an “associated force” of the terrorist organization.

* * *

Awlaki was the first US citizen added to a list of people the CIA was authorized to kill. Intelligence officials said he was directing attacks against the US, including the failed plot to blow up a Detroit-bound jetliner with an underwear bomb. His fiery sermons posted online also served as inspiration to Major Nidal Hasan, the Army psychiatrist who killed 13 people at Fort Hood, Texas.

Three weeks before the CIA white paper was written, the military attempted to kill Awlaki with a drone from what was then a secret US drone base in Saudi Arabia. It was the second failed attempt on Awlaki’s life, and it led Congress to press the Obama administration for answers about the legal authority to kill a US citizen.

According to a detailed timeline in the Awlaki case produced by journalist Marcy Wheeler, Senator Ron Wyden, a member of the Senate Select Committee on Intelligence, contacted Attorney General Eric Holder in April 2011 and asked him for copies of the Justice Department memoranda authorizing the killing of Awlaki. Presumably, the Justice Department prepared the CIA white paper for members of Congress in lieu of the 41-page legal memo. But it’s unclear if Wyden ever received a copy. A spokesman for the Oregon Democrat did not respond to requests for comment.

VICE News sought from the Justice Department all documents that were shared with Congress that discussed the use of drones for the purpose of carrying out lethal operations against suspected terrorists beginning in 2010. The documents the government turned over in addition to the white paper [pdf of all the documents below] provide the most detailed description to date of what Congress knew about the Obama administration’s plans to kill a US citizen, and when they knew it.

With the exception of one key congressional committee, these documents reveal that numerous lawmakers were rebuffed after they asked the Justice Department to provide them with its memo to support its position that it had the legal authority to kill Awlaki.

But less than two weeks after Awlaki was killed in a CIA drone strike, Assistant Attorney General Ronald Welch sent US representatives Mike Rogers and Dutch Ruppersberger, respectively the chairman and ranking minority member of the House Permanent Select Committee on Intelligence, a letter in response to a request by Rogers.

“We are pleased to transmit a document prepared by the Department of Justice containing a detailed analysis of the legal basis of a particular classified program. The document is classified at the Top Secret/CODEWORD level,” Welch wrote in an October 11, 2011 letter. “Because this document contains highly classified information, it is being provided for review by Committee members and appropriately-cleared staff, and will be delivered in accordance with our usual practice regarding such materials.”

Based on Welch’s letter, it appears that the Obama administration shared its memo authorizing the targeted killing of Awlaki with only the Republican majority House Intelligence Committee. Last February, Rogers disclosed on CBS’s Face the Nation that his committee had overseen the CIA’s targeted-killing strikes “even before they conducted that first air strike that took Awlaki.”

The likely release of the memo to Rogers followed a report published in the New York Times two days earlier that revealed the Justice Department wrote such a memo for the White House.

The administration’s reasons for not sharing the same document with the majority Democrats on the Senate Intelligence Committee, which also has oversight of CIA activities, are not clear. VICE News was unable to obtain responses to queries from the Justice Department or from some Democratic lawmakers on the panel. It also is not clear why the administration shared with Congress white papers about its legal theories for killing a US citizen as opposed to the memo itself. The White House did not respond to requests for comment from VICE News.

On November 8, 2011, the Justice Department wrote another white paper that explained the “lawfulness” of killing a US citizen who was believed to be a member of al Qaeda. Unlike the earlier white paper, however, this 16-page document was unclassified and did not make any mention of the CIA.

It contains the same date as a response to a request from Senator Sheldon Whitehouse, a member of the Senate Judiciary Committee, to Holder asking for a copy of the memo that authorized the operation that killed Awlaki.

“The Department, when responding to requests on this topic, has not addressed the question whether there is a [Justice Department memo] in this area,” Holder said. “The Department understands the Committee’s interest in the legal issues, and will, to the extent possible, work with the Committee to assist in the process of answering questions that its members have in an appropriate setting.”

According to emails VICE News obtained, the Justice Department did not share the white paper with the Judiciary Committee, the Senate Intelligence Committee, and other congressional committees for seven months.

Indeed, in an email sent to Mark Agrast at the Justice Department’s Office of Legislative Affairs, Senate Intelligence Committee staffer Mike Buchwald requested a copy — but only after discovering that the chairman of the Senate Judiciary Committee, Senator Patrick Leahy, had obtained one and distributed it to members of the panel. Agrast wrote: 

Mark, sorry to pile on with another request, but we just saw that Sen. Leahy has provided a DOJ White Paper to all Judiciary Committee Members titled, ‘Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who is a Senior Operational Leader of Al-Qa’ida or An Associated Force.’ Sen. Leahy has asked the Members to keep this document ‘committee confidential’ because the Administration does not want to make the document public. Can you please send us the White Paper ASAP so we can distribute it to [Senate Intelligence Committee] members with the same understanding — that it not be made public? As you know, several Members on this Committee have been calling for this legal analysis to be made public for some time now, including the Chairman [Senator Dianne Feinstein].

The rest of the emails indicate that some lawmakers had to keep themselves up to date about the contents of the targeted killing legal memo through news reports and through the New York Times and the ACLU’s FOIA lawsuit that sought to have the memo publicly released.

Obama nominated the author of the targeted killing memo, David Barron, to serve as a judge on the First Circuit Court of Appeals. His nomination was held up by lawmakers over the White House’s refusal to share a copy of his memo with them. The administration relented, and in late May he was confirmed by the Senate in a near party-line vote of 53-45.

Follow Jason Leopold on Twitter: @JasonLeopold

Photo via US Air Force