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A drone strike in 2011 killed to American citizens associating with the terrorist group al-Qaida. The citizens had not been charged with crimes.  (Source: Drone Wars UK)
If Americans become “senior operational leaders” of al-Qaida or “an associated force”, the memo suggests a death strike

The U.S. Department of Justice and Obama administration likely wished that a 16-page memo/white paper building a detailed case justifying killing American citizens with drone strikes never made it into the hands of the media.  But that is precisely what ended up happening.  The memo -- 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" -- leaked to NBC News via a source who had access to it.  And the memo's suggestion of highly qualified scenarios for death strikes is reviving a major debate over due process and terrorism.

I. Should the Feds Kill American Terrorists With Drones?

The memo in question was distributed to members of the Senate Intelligence and Judiciary committees in June.  The committee members were asked to keep the information secret from the public and not discuss the memo's existence.  Now the secret has slipped.

The debate revolves around whether Americans involved in terrorist groups such al-Qaida can reasonably be killed overseas, even if there is no intelligence to indicate that they are actively engaged in a plot to attack the U.S.  Such was the case in the Sept. 2011 strike in Yemen that killed alleged al-Qaida operatives Anwar al-Awlaki and Samir Khan.  Neither man had ever been indicted by the U.S. government or formally charged.

The memo leak comes on the eve of the confirmation hearing for potential U.S. Central Intelligence Agency director John Brennan.  Mr. Brennan, a former counterterrorism advisor to President Obama, was among the first to make the case publicly for deadly drone strikes on Americans involved with terrorist groups.  At a speech last year he argued such strikes were "consistent with the inherent right of self-defense."

Those comments were echoed in March at a Northwestern University speech by Attorney General Eric Holder, who argued killing Americans targets could be justified if there is "an imminent threat of violent attack."

II. Memo Argues for Redefinition of "Imminent Threat" for Drone Killings

But the white paper goes beyond the public comments of Mr. Brennan and the Attorney General, arguing that even in cases where there is not a known imminent risk, use of deadly force is justified.  This principle is described therein as a "broader concept of imminence", which suggests that mere membership and training activities in high-profile terrorist groups represents an imminent risk.

The memo suggests that if a capture operation on an American involved with a terrorist group would pose "undue risk" to American special forces soldiers, a death strike may become lawful, even if it was not already.

AG Holder perhaps alluded to such a premise in a comment in his speech, in which he said, "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."

The memo suggests joining a terrorist group and committing to "threatening" activities may be justification enough for the U.S. government to kill an American citizens without warrant.
[Image Source: Al Arabiya]

States the paper:

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 U.S. persons and interests will take place in the immediate future.

A lawful killing in self-defense is not an assassination.  In the Department’s view, a lethal operation conducted against a U.S. 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.

The Obama Administration argues that targeted killings do not constitute assassinations (which an executive order bans).  It also argues that they are Constitutional and not a war crime, when placed in the context of counterterrorism.

II. Even More Classified Memos Remains Secret

But the Obama Administration has also fought to keep precise details of its policy secret.  The white paper, while confidential, mirrors arguments in even more highly classified memos on targeted killings from the Justice Department's Office of Legal Counsel, memos that are used as the basis for actual operations.  Reportedly, the DOJ has refused to turn over these memos to Congress or even acknowledge they exist.

Sen. Ron Whyden (D-OR) and a bipartisan group 10 other senators, have written a letter [PDF] to President Obama asking him to release the rumored classified DOJ memos on drone strikes on Americans.  In the letter the group writes, "[T]here will clearly be circumstances in which the president has the authority to use lethal force [against Americans who fight against their own country]... [However] 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."

Obama upset
The Obama administration opposed releasing classified details on its rules about killing terrorist American citizens. [Image Source: Matt Ortega/Flickr]

Jameel Jaffer, deputy legal director of the American Civil Liberties Union (ACLU), argues in an NBC News interview about the less-classified memo, "This is a chilling document.  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.  [It] redefines the word imminence in a way that deprives the word of its ordinary meaning."

The fight to release the more classified memos has been the subject of a court case brought by the ACLU and reporters at The New York Times.  In U.S. federal District Court in New York, Judge Colleen McMahon expressed sympathy and support for the plaintiffs' arguments.

In her opinion she writes, "[Administration officials] had engaged in public discussion of the legality of targeted killing, even of citizens.  [But they did so] in cryptic and imprecise ways, generally without citing … any statute or court decision that justifies its conclusions."

She told the plaintiffs that she would like to order the release of certain classified documents, but that a "thicket of laws" prevented her from releasing the information, even if it pertained to a topic in which the government, at face value, appeared to be behaving unconstitutionally.

Sources: NBC News [1], [2; memo], DOJ

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RE: Everyone watch what you comment
By Brandon Hill on 2/5/2013 2:25:00 PM , Rating: 5
Just a few years ago under Bush, Dems were throwing their hands up in the air about terrorists being detained/tortured at Guantanamo. Eric Holder was calling for a release of documents and details on the proceedings.

Fast forward to now; forget capture/detaining, forget torture, we'll just pop a rocket in your ass from 5,000 feet above.

The hypocrisy in Washington is delicious.

RE: Everyone watch what you comment
By stm1185 on 2/5/13, Rating: -1
RE: Everyone watch what you comment
By Flunk on 2/5/2013 3:41:33 PM , Rating: 3
I don't think assault rifles are going to save you from jet-propelled, bullet-resistant, heavily-armed drones. Besides, if they really want you dead they can always send more.

RE: Everyone watch what you comment
By 91TTZ on 2/5/2013 4:03:27 PM , Rating: 2
Predators are not jet propelled or bullet resistant.

RE: Everyone watch what you comment
By johnsmith9875 on 2/5/2013 4:14:32 PM , Rating: 2
Unless your rifle can shoot down a drone at 10,000 feet, you're outa luck.

RE: Everyone watch what you comment
By 91TTZ on 2/5/2013 4:20:54 PM , Rating: 2
I'm guessing that in a revolt, the same thing would happen like it does in every other country with a revolt- the aircraft are immune to in the air, but take damage on the ground when people shoot at them while they're sitting still at the airfield.

By RufusM on 2/7/2013 11:09:27 AM , Rating: 2
In a true nationwide revolt, various factions within the military would likely fight each other and factions within the civilian population given different ideologies and allegiances.

I doubt each arm of the military would fully turn on large groups of the US civilian population in support of a tyrannical government. At least some would be swayed.

By mmatis on 2/6/2013 12:58:40 PM , Rating: 2
Or just shoot the drone operator. Do you understand where THEY are based?

RE: Everyone watch what you comment
By NellyFromMA on 2/5/2013 4:51:34 PM , Rating: 2
See Black Ops 2 for proof against your arguement :)

By tamalero on 2/8/2013 12:01:24 PM , Rating: 2
black ops?

RE: Everyone watch what you comment
By chmilz on 2/5/2013 2:29:03 PM , Rating: 2
America the Great: more concerned with murdering citizens and foreigners alike with no due process than it is with giving gays the right to prop up your failing economy with lavish weddings. Huzzah!

RE: Everyone watch what you comment
By ppardee on 2/5/2013 2:40:55 PM , Rating: 1
LOL! I never thought of gay marriage as an economic stimulus... I think I'm for it now!

By sixteenornumber on 2/5/2013 3:57:08 PM , Rating: 1
lets not forget about gay divorce court.

By johnsmith9875 on 2/5/2013 4:15:12 PM , Rating: 5
Gays should have the right to be as unhappy as straight people, stuck in loveless co-dependent marriages.

RE: Everyone watch what you comment
By FITCamaro on 2/5/2013 3:56:57 PM , Rating: 2
We have pretty clear precedent around what to do with those committing treason and acts of war against the country. Same as any other country.

RE: Everyone watch what you comment
By chmilz on 2/5/2013 7:30:36 PM , Rating: 4
No, you don't. Other countries hold trials. You know, with crazy stuff like evidence. Maybe gathering evidence is TV fiction for America, but it's real in all those "other countries", save the theocracies and authoritarian regimes. Not that I have an easy time differentiating America from those at times.

By Reclaimer77 on 2/5/2013 8:06:48 PM , Rating: 2
Then again there are lots of countries where your ass just disappears and nobody comes looking for you /shrug

RE: Everyone watch what you comment
By topkill on 2/5/2013 11:44:36 PM , Rating: 1
I'm usually one of the more liberal posters on this board, but in this case I gotta say: quit your whining. I'm glad we blew the stupid bastards into little fucking pieces.

American born cleric? Good, then he should be really happy with his 72 young virgins right about now....probably little boy virgins.

RE: Everyone watch what you comment
By lilBuckwheat on 2/6/2013 7:24:19 AM , Rating: 3
Yeah who wants 72 virgins when you can die to be in church for all eternity.

RE: Everyone watch what you comment
By maugrimtr on 2/6/2013 10:49:24 AM , Rating: 2
The problem here is the re-definition of "imminent". Every moron in the US knows what that means. The US government, however, threw its dictionary away as a pretense to expand its powers and authority to kill US citizens.

Let's face it, anyone who is not a US citizen should expect to be killed out of hand. We can't even uphold due process for US citizens anymore let alone remotely contemplate a just system for anyone else.

RE: Everyone watch what you comment
By MrBlastman on 2/6/13, Rating: -1
By topkill on 2/7/2013 9:24:12 PM , Rating: 2
when you can die to be in church for all eternity

Not sure what you're saying? You assuming I'm Christian and think that is better than Islam and that I'm looking forward to floating around on a cloud singing sweet songs forever?

RE: Everyone watch what you comment
By 91TTZ on 2/6/2013 10:46:44 AM , Rating: 3
I don't think being liberal really opposes the idea of you supporting the killing of those you don't like.

In fact, that's one of the downsides of very liberal people. They tend to think more emotionally than libertarian people and therefore are more likely to support using heavy-handed tactics if it ensures that they get their way. Lots of hardcore liberals like leftist dictators that oppress their people. It lines up with their political views of socialism even if it has to be forced on people against their will.

By dragonbif on 2/5/2013 2:40:20 PM , Rating: 2
If this was on American lands I would be a little more upset. Sending in troops to capture someone in the mountains in the middle east is costly and dangerous. The person they are trying to capture would probably end up dead anyway during the fire fight anyway.
So what should the government do? Leave them be or kill them? Who gets to decide if they need to die? Do they get a judge and jury and have a trial even if the person is not willing to come in?
It is just not that simple.

RE: Everyone watch what you comment
By Reclaimer77 on 2/5/2013 4:44:12 PM , Rating: 2
And you're just now getting this? Weren't you calling me a "right wing extremist" for saying this years ago?

Ah well, too late now for eyes to be opened now that Obama has his second term. The country is lost.

RE: Everyone watch what you comment
By Pirks on 2/5/2013 4:48:19 PM , Rating: 1
c'mon man, maybe the country will survive, maybe in 2016 americans will elect one of your favorite types, say, a texas redneck with a bible and a shotgun or something. so don't be real sad yet, okay?

RE: Everyone watch what you comment
By Reclaimer77 on 2/5/2013 4:54:42 PM , Rating: 2
Pirks that isn't even GOOD trolling. You lose.

RE: Everyone watch what you comment
By Pirks on 2/5/13, Rating: 0
By ppardee on 2/5/2013 6:18:01 PM , Rating: 2
I'm waiting for someone with the Bible laser-etched on their shotgun.

It amazes me how people on the left, including the President, use the Bible and guns as descriptors of bad people. The VAST majority (as in greater than 99.5%) of people who own guns will never use them for anything other than sport or protection. And Christians are responsible for the majority of the charity in this country.

I guess you leftist prejudices are so deeply ingrained in the ideology that you can't have one without the other. It's a shame.

Still, I'd rather have Chris Christie or Marco Rubio (partially because they have the coolest names in politics) than what Texas has to offer currently.

By KCjoker on 2/5/2013 6:20:29 PM , Rating: 2
Didn't think I'd say this but I'd rather have one of those than Obama.

RE: Everyone watch what you comment
By MrBlastman on 2/6/2013 1:26:37 AM , Rating: 1
Anything is better than the current sack of crap we have in the White House. Even Jimmy Carter. Yes, I went there. At least he had SOME respect for our Constitution. The guy we have now would rather use it as toilet paper as he dances his way into figuring out a way to re-write it to suit his interests.

RE: Everyone watch what you comment
By Reclaimer77 on 2/6/13, Rating: 0
By MrBlastman on 2/6/2013 4:59:38 PM , Rating: 2
They obviously don't care or they wouldn't have voted for him at all. :(

America is screwed. We might as well replace the white and blue with yellow and call it done.

RE: Everyone watch what you comment
By anactoraaron on 2/6/2013 9:22:00 PM , Rating: 2
You do realize that it's the job of congress to pass a budget? I don't see either side doing anything on this front. Don't forget to read that thing that that one guy wipes his ass with.

By Reclaimer77 on 2/7/2013 12:55:31 AM , Rating: 2
Actually it's the job of the SENATE to pass a budget to be voted on. You know, the Senate that's Democrat controlled and takes it's cues right from Obama?

It's not a coincidence why these people don't pass a budget. It's not because they can't, it's because they don't want the American people to really see in black and white what their agenda is, and where all the money is going.

By ArcsinZ on 2/6/2013 8:20:03 PM , Rating: 2
I like how you posted that about 15 minutes after Hannity talked about on his radio show. I wonder what radio station you listen to...

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