Another Clue on Anwar Al-Aulaqi

A few weeks ago, I wrote a pair of posts analyzing where the notion of imminence comes from in the government's thinking about targeted killing---and in David Barron's OLC memo on the Al-Aulaqi strike. In one, I wrote:

I am speculating, and I could well be wrong. But I think the source of law for imminence in Holder’s speech, in the white paper, and in this memo is a presidential covert action finding. That is, I think the president, in issuing whatever finding gave rise to the killing of Al-Aulaqi, limited the authorization to situations involving imminent threats. This invocation was prudential, not legally required by any other source of law, but it operates as law for the executive branch. . . . I think the imminence requirement in the targeted killing program—in the administration’s view, at least—is not legally required but purely a prudential policy requirement even with respect to U.S. citizens. 

In the second, I noted that "there’s another dog that doesn’t bark in David Barron’s memo: The assassination ban in Executive Order 12333, which does not seem to be discussed at all in the unredacted parts of the memo." I speculated that "the assassination ban offers a key----perhaps the key---to understanding the role of imminence in the administration’s legal views. That is, if my theory about whence imminence comes is correct, the assassination ban explains why the finding limits targeted killings to situations of continuing and imminent threat." In a nutshell:

when the CIA and the Bush administration in the immediate wake of 9/11 confronted the problem of how to construct a finding that would not run afoul of the assassination ban, the answer was . . . sitting there in their laps: if they simply wrote the finding so as to limit the lethal force authorization to situations of imminent threat, then by definition they would not be authorizing assassinations (at least under the executive branch’s view of the assassination ban’s scope).

This is, I believe, what they did: The findings, I suspect, authorized lethal force only in situations of continuing and imminent threat so as to avoid conflict with the assassination ban.

Last week, the executive branch released a second Barron memo (which Wells posted), which dates from several months earlier than the previously-released one. It's almost entirely redacted and is thus of relatively limited use. Yet the memo contains some interesting suggestions that my earlier speculation is correct. On the first page of the memo, David Barron writes: "Under the conditions and factual predicates as represented by the CIA and in the materials provided to us from the Intelligence Community, we believe that a decisionmaker, on the basis of such information, could reasonably conclude that the use of lethal force against Aulaqi would not violate the assassination ban in Executive Order 12333 or any applicable constitutional limitations due to Aulaqi's United States citizenship." Later in the memo, on page 4, Barron writes a passage that is redacted except the words "consistent with the assassination ban in Executive Order 12333 . . . killings in self-defense are not assassinations. . . ." I do not hold this out as conclusive proof of my theory, but it's suggestive.