Leaked Justice Department Memo Reveals Legal Case for Targeted Killings of US Citizens
February 5, 2013 John Glaser / AntiWar.com & Rachel Maddow & Michael Isikoff / NBC News
A confidential, 16-page Justice Department memo concludes that the US government can order the killing of US citizens even if there is no intelligence indicating they are engaged in an active plot to attack the US. The memo provides details about the reasoning behind one of the Obama administration's most secretive and controversial polices -- using unmanned drones to remotely assassinate targets, including Americans, without trial or due process.
Leaked Justice Department Memo Reveals Legal Case for Targeted Killings of US Citizens John Glaser / AntiWar.com
(February 4, 2013) -- The US government can order the killing of American citizens even when there is no active intelligence accusing them of carrying out a specific terrorist attack, according to a confidential Justice Department legal memo obtained by NBC News.
The memo, or "white paper," concludes that assassinations of American citizens are legal if the US government says they are "senior operational leaders" or al-Qaeda or "an associated force." The Executive Branch can keep this information secret though, and no checks or balances from other branches of government are necessary.
The memo addresses long-standing questions about the Obama administration's drone war that have been increasingly pronounced ever since a US drone strike in September 2011 killed US citizens and alleged al-Qaeda members Anwar al-Awlaki and Samir Khan, and weeks later Awlaki's 16-year-old son Abdulrahman al-Awlaki.
Without submitting the evidence to a court, without any oversight from Congress, and without even making it's legal reasoning available to the public, the President can ignore the Fifth Amendment to the Constitution, which says that no person shall "be deprived of life, liberty, or property, without due process of law."
Standard rules of international law demand that an imminent threat of an immediate attack is required in order to legally initiate the use of force in self-defense. But the Obama administration has greatly expanded the meaning of the word "imminence" to allow for his drone war, taking place mainly in Pakistan and Yemen.
The memo refers to what it calls a "broader concept of imminence" than what has traditionally been required, like actual intelligence an ongoing plot against the US.
"The condition that an operational leader present an 'imminent' threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on US persons and interests will take place in the immediate future," the memo states, contradicting conventional international law.
Instead, so long as an "informed, high-level" US official claims the targeted American has been "recently" involved in "activities" that pose a threat and "there is no evidence suggesting that he has renounced or abandoned such activities," then the President can order his assassination. The memo does not define "recently" or "activities."
Furthermore, the memo declares that these Executive Branch decision will not be subject to any judicial oversight: "There exists no appropriate judicial forum to evaluate these constitutional considerations."
"This is a chilling document," said Jameel Jaffer, deputy legal director of the ACLU. "Basically, it argues that the government has the right to carry out the extrajudicial killing of an American citizen...It recognizes some limits on the authority it sets out, but the limits are elastic and vaguely defined, and it's easy to see how they could be manipulated."
In particular, Jaffer said, the memo "redefines the word imminence in a way that deprives the word of its ordinary meaning."
The memo marks an extraordinary and unprecedented expansion of Executive power and the "limits" it imposes on the use of that power are insubstantial. For example, it says that the targeted assassination of American citizens can only take place if US officials decide that capturing the suspect is not feasible. But feasibility is entirely defined and decided upon by unchecked US officials in secret.
Last month, a federal judge rejected The New York Times' bid to force the US government to disclose more information about its drone war, and specifically its legal justifications.
Although she threw out the case, US District Judge Colleen McMahon noted that such government disclosures could help the public understand the "vast and seemingly ever-growing exercise in which we have been engaged for well over a decade, at great cost in lives, treasure, and (at least in the minds of some) personal liberty."
"I can find no way around the thicket of laws and precedents that effectively allow the executive branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws while keeping the reasons for their conclusion a secret," she wrote.
"The Alice-in-Wonderland nature of this pronouncement is not lost on me," McMahon said, referring to the nightmarish wonderland in which people are sentenced to death before a verdict from a jury is in.
NBC News Exclusive: Drone Strike White Paper The Rachel Maddow Show / MSNBC.com
WASHINGTON, DC (February 4, 2013) -- A confidential Justice Department memo concludes that the US government can order the killing of American citizens if they are believed to be "senior operational leaders" of al-Qaida or "an associated force" -- even if there is no intelligence indicating they are engaged in an active plot to attack the US.
The 16-page memo, a copy of which was obtained by NBC News, provides new details about the legal reasoning behind one of the Obama administration's most secretive and controversial polices: its dramatically increased use of drone strikes against al-Qaida suspects, including those aimed at American citizens, such as the September 2011 strike in Yemen that killed alleged al-Qaida operatives Anwar al-Awlaki and Samir Khan. Both were US citizens who had never been indicted by the US government nor charged with any crimes.
The secrecy surrounding such strikes is fast emerging as a central issue in this week's hearing of White House counterterrorism adviser John Brennan, a key architect of the drone campaign, to be CIA director. Brennan was the first administration official to publicly acknowledge drone strikes in a speech last year, calling them "consistent with the inherent right of self-defense."
In a separate talk at the Northwestern University Law School in March, Attorney General Eric Holder specifically endorsed the constitutionality of targeted killings of Americans, saying they could be justified if government officials determine the target poses "an imminent threat of violent attack."
But the confidential Justice Department "white paper" introduces a more expansive definition of self-defense or imminent attack than described by Brennan or Holder in their public speeches. It refers, for example, to what it calls a "broader concept of imminence" than actual intelligence about any ongoing plot against the US homeland.
"The condition that an operational leader present an 'imminent' threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on US persons and interests will take place in the immediate future," the memo states.
Instead, it says, an "informed, high-level" official of the US government may determine that the targeted American has been "recently" involved in "activities" posing a threat of a violent attack and "there is no evidence suggesting that he has renounced or abandoned such activities." The memo does not define "recently" or "activities."
As in Holder's speech, the confidential memo lays out a three-part test that would make targeted killings of American lawful: In addition to the suspect being an imminent threat, capture of the target must be "infeasible, and the strike must be conducted according to "law of war principles." But the memo elaborates on some of these factors in ways that go beyond what the attorney general said publicly.
For example, it states that US officials may consider whether an attempted capture of a suspect would pose an "undue risk" to US personnel involved in such an operation. If so, US officials could determine that the capture operation of the targeted American would not be feasible, making it lawful for the US government to order a killing instead, the memo concludes.
The undated memo is entitled "Lawfulness of a Lethal Operation Directed Against a US Citizen who is a Senior Operational Leader of Al Qa'ida or An Associated Force." It was provided to members of the Senate Intelligence and Judiciary committees in June by administration officials on the condition that it be kept confidential and not discussed publicly.
Although not an official legal memo, the white paper was represented by administration officials as a policy document that closely mirrors the arguments of classified memos on targeted killings by the Justice Department's Office of Legal Counsel, which provides authoritative legal advice to the president and all executive branch agencies.
The administration has refused to turn over to Congress or release those memos publicly -- or even publicly confirm their existence. A source with access to the white paper, which is not classified, provided a copy to NBC News.
"This is a chilling document," said Jameel Jaffer, deputy legal director of the ACLU, which is suing to obtain administration memos about the targeted killing of Americans. "Basically, it argues that the government has the right to carry out the extrajudicial killing of an American citizen. ... It recognizes some limits on the authority it sets out, but the limits are elastic and vaguely defined, and it's easy to see how they could be manipulated."
In particular, Jaffer said, the memo "redefines the word imminence in a way that deprives the word of its ordinary meaning."
A Justice Department spokeswoman declined to comment on the white paper. The spokeswoman, Tracy Schmaler, instead pointed to public speeches by what she called a "parade" of administration officials, including Brennan, Holder, former State Department Legal Adviser Harold Koh and former Defense Department General Counsel Jeh Johnson that she said outlined the "legal framework" for such operations.
Pressure for turning over the Justice Department memos on targeted killings of Americans appears to be building on Capitol Hill amid signs that Brennan will be grilled on the subject at his confirmation hearing before the Senate Intelligence Committee on Thursday.
On Monday, a bipartisan group of 11 senators -- led by Democrat Ron Wyden of Oregon — wrote a letter to President Barack Obama asking him to release all Justice Department memos on the subject.
While accepting that "there will clearly be circumstances in which the president has the authority to use lethal force" against Americans who take up arms against the country, it said, "It is vitally important ... for Congress and the American public to have a full understanding of how the executive branch interprets the limits and boundaries of this authority."
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The completeness of the administration's public accounts of its legal arguments was also sharply criticized last month by US Judge Colleen McMahon in response to a lawsuit brought by the New York Times and the ACLU seeking access to the Justice Department memos on drone strikes targeting Americans under the Freedom of Information Act.
McMahon, describing herself as being caught in a "veritable Catch-22," said she was unable to order the release of the documents given "the thicket of laws and precedents that effectively allow the executive branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws while keeping the reasons for the conclusion a secret."
In her ruling, McMahon noted that administration officials "had engaged in public discussion of the legality of targeted killing, even of citizens." But, she wrote, they have done so "in cryptic and imprecise ways, generally without citing ... any statute or court decision that justifies its conclusions."
In one passage in Holder's speech at Northwestern in March, he alluded – without spelling out—that there might be circumstances where the president might order attacks against American citizens without specific knowledge of when or where an attack against the US might take place.
"The Constitution does not require the president to delay action until some theoretical end-stage of planning, when the precise time, place and manner of an attack become clear," he said.
But his speech did not contain the additional language in the white paper suggesting that no active intelligence about a specific attack is needed to justify a targeted strike. Similarly, Holder said in his speech that targeted killings of Americans can be justified if "capture is not feasible."
But he did not include language in the white paper saying that an operation might not be feasible "if it could not be physically effectuated during the relevant window of opportunity or if the relevant country (where the target is located) were to decline to consent to a capture operation." The speech also made no reference to the risk that might be posed to US forces seeking to capture a target, as was mentioned in the white paper.
The white paper also includes a more extensive discussion of why targeted strikes against Americans does not violate constitutional protections afforded American citizens as well as a US law that criminalizes the killing of US nationals overseas.
It also discusses why such targeted killings would not be a war crime or violate a US executive order banning assassinations.
"A lawful killing in self-defense is not an assassination," the white paper reads. "In the Department's view, a lethal operation conducted against a US citizen whose conduct poses an imminent threat of violent attack against the United States would be a legitimate act of national self-defense that would not violate the assassination ban. Similarly, the use of lethal force, consistent with the laws of war, against an individual who is a legitimate military target would be lawful and would not violate the assassination ban." Justice Department Leaks Memo "Legalizing" Murdering Americans
(But Not Some Americans Already Murdered) David Swanson / War Is a Crime
(February 4, 2013) -- With a few tweaks and a more creative title -- like "Murder With Your Hands Clean" -- this memo could sell a lot of copies.
And why not? Either there's a whistleblower in the Department of So-Called Justice about to be charged with espionage, and NBC is about to face the same persecution as WikiLeaks, or this is one of those "good" leaks that the White House wanted made public in an underhanded manner -- perhaps as an imagined boost to morality-challenged CIA director nominee John Brennan who faces his Senate Rejection Hearing on Thursday.
The memo, which is thought to be a summary of a longer one, says the United States can murder a U.S. citizen abroad (abroad but somehow "outside the area of active hostilities" even though killing him or her seems rather active and hostile) if three conditions are met:
"1. an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States;"
The memo goes on to base its claims on the supposed powers of the President, not of some random official. Who is such an official? Who decides whether he or she is informed? What if two of them disagree? What if he or she disagrees with the President? or the Congress? or the Supreme Court? or the U.S. public? or the United Nations? or the International Criminal Court? What then? One solution is to redefine the terms so that everyone has to agree.
"Imminent" is defined in this memo to mean nothing at all.
"The United States" clearly means anywhere U.S. troops may be.
"2. capture is infeasible, and the United States continues to monitor whether capture becomes feasible;"
And if a high-level official claims it's infeasible, who can challenge that?
"3. the operation would be conducted in a manner consistent with applicable law of war principles."
When a U.S. drone strike killed Anwar al-Awlaki and Samir Khan, no one had shown either of them to meet the above qualifications.
When a U.S. drone strike targeted and killed 16-year-old Abdulrahman al-Awlaki, no one had shown him to meet the above qualifications; I don't think anyone has made such a claim to this day. And what about his cousin who died for the crime of being with him at the wrong time?
The sociopaths who wrote this memo have "legalized" the drone-killing of Americans with the exception of all the Americans known thus far to have been murdered by our government with the use of drones. Posted in accordance with Title 17, Section 107, US Code, for noncommercial, educational purposes.