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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."

Al-Qaida
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: Coupled with gun control...
By Pirks on 2/5/2013 3:44:32 PM , Rating: 3
It's simple, both Congress and judges prefer the concept of a preemptive strike. If you know the guy is preparing to blow up and kill Americans - better take him out BEFORE he blew 'em up, ya know. Ever heard of precrime and minority report? This is conceptually the same thing - government is kinda precog who "knows the future" so they... err... "prevent the future crime" by "erasing" the future perpetrator of the crime out of existence. Simple and effective tactic. But it's actually just as murky and slippery as precogs in minority report. If you know for sure the murder will happen, shall you kill the murderer by the preemptive strike? If you see the crazy guy entering the kindergarden shooting right and left, should you kill him immediately, BEFORE he committed a murder, or should you wait until he kills at least one kid first? So that you would know the murder would HAVE HAPPENED already and then your action is JUSTIFIED?

I'm not flaming anyone, just asking tough questions. I dunno what would I do in such a situation, both scenarios (wait for him to kill a kid or shoot him first BEFORE he did it) are not so simple. Just remember about this, guys, before flaming or praising your President. I'm sure he asks same questions too, he's a normal American after all, not a crazy Hitler or Stalin type, fortunately.


RE: Coupled with gun control...
By ppardee on 2/5/2013 6:40:41 PM , Rating: 2
The problem isn't the preemptive strike thing. If they had solid intel saying that you're going to bomb the White House, or even PLOTTING to bomb the White House, I think most Americans would agree with the plan.

The problem is that they don't even need any intelligence that you're going to commit a crime. They can say that you're a threat, take you out and NEVER justify it to anyone. There is 0 oversight and Obama et al have already shown (Fast & Furious, Benghazi) that they will not release internal documents.

So, here's the scenario: Your daughter's protesting some legislation or the president's policies. They determine that she and her group are gaining traction and may 'destabilize' the government (meaning change who is in power) and they take her out. You ask why they killed your daughter and her friends and they give you no answer. You submit a Freedom of Information Act request and denied because of the reasons the judge in the article sites. Your Congressmen can't help either because the White House claims executive privilege.

Obama has already intentionally killed 2 Americans with drones. He might stop there and only use it on people in terrorist camps overseas, but, with no oversight, who's to say that terrorist camp isn't a hippie commune?

You can say that an American President wouldn't resort to criminal actions to stay in power, but then we look at Watergate.

Obama was elected originally because he is black and John McCain is horrid, not because he was the best man in America for the job. Only about 20% of the people in this country who vote actually know who they are voting for. Are you REALLY willing to give EVERY President in the future the right to murder ANYONE they choose for ANY reason in the hopes that all of them will be responsible with the power?


RE: Coupled with gun control...
By Pirks on 2/5/2013 7:00:00 PM , Rating: 2
quote:
Are you REALLY willing to give EVERY President in the future the right to murder ANYONE they choose for ANY reason in the hopes that all of them will be responsible with the power?
That has nothing to do with killing two Taliban terrorists in Afghan mountains (terrorist's citizenship doesn't matter)


RE: Coupled with gun control...
By Cluebat on 2/6/2013 2:44:33 PM , Rating: 2
There were actually a total of three. Samir Khan- a naturalized citizen and al-Awlaki were killed in a drone strike on Sept. 30, 2011. Awlaki's 16 year old son was taken out in a mop-up drone strike two weeks later. The Awlakis were both born in the US.

Funny how GWB was called a war criminal by the same bunch who are using pretzel logic now to defend targeted assassinations of americans.

Not that I disagree in this case- but this slope is very slippery.


RE: Coupled with gun control...
By Rukkian on 2/6/2013 1:38:35 PM , Rating: 2
So how did watergate turn out for Nixon? I am not one of the in-foil hat wearers, and figure that somebody would blow the whistle if that sort of thing happened. It is nearly impossible to keep information like that safe for long.


By ImJustSaying on 2/6/2013 7:15:11 PM , Rating: 1
'Liberal' here: The intelligence reports that the executive presented in argument for the preemptive strike on, and subsequent occupation of Iraq, were flimsy at best, if not outright contrived. And that was gathered for an ENTIRE REGIME. I have absolutely ZERO confidence that this executive could gather credible evidence to support a preemptive strike against an individual, constitution and citizen-status aside. That is clearly why this is being conducted in secret. Current and past administrations know that, were they to present evidence in a court of law, it would not even come close to passing muster.

The executive branch is setting its own precedent and creating its own definitions at its convenience. This isn’t new, but doing it in the name of the so-called ‘Global War On Terror’ (GWOT) is particularly insidious due to the fluid definition of what it is to be a terrorist. It is abundantly clear that the label ‘terrorist’ is arbitrarily given to those who the State deems to be a threat. There is no internationally agreed upon definition of terrorism, which is why governments are able to do this to begin with. Take Syria for example, the Assad regime has labeled the rebels as terrorists from day one. But from our perspective, they aren’t terrorists as much as they are freedom fighters. Of course, it works the other way too. From the US government’s perspective, those who were resisting the occupation in Iraq were deemed terrorists, but to those who cared to oust the occupying forces from Iraq, the terrorists suddenly became, once again, freedom fighters, for all intents and purposes. Herein lays the core problem, barring constitution and citizen-status, of the GWOT: Anyone at any time, can become a terrorist, which in past executives and the current executive, is evidence enough for assassination (murder).

And to those who insist that just because you don’t see ‘lefties’ criticizing the Obama administration on this website about its fucked up policies, that it must mean there’s a tacit lefty agreement for those policies, I say to you “pull your heads out of your asses.” I frequent some pretty liberal websites (mainly for the witty banter in the comments), and get news-letters from an anarchist publication and I have not ONCE read an article or comment in support of the extrajudicial killing of ANY world citizens, American or not.

Also, to you Second Amendment freaks out there: Your gun as your defense in your upcoming imaginary (civil) war against a tyrannical government is pipe dreams. You would do well to concern yourselves with the gutting of the 4th , 6th, and 14th Amendments first, before setting your sites on the 2nd, because by the time you do that, the government will already know EVERYTHING there is to know about you, and will simply lock your ass up for thought crime. Also, just to entertain the idea of a civil war, it’s not going to be divided neatly among loyalists v revolutionaries. It will be a fucking mess, and you will be pit against your family, friends, and neighbors. So get the god damn fantasy out of your gourds.


"Well, we didn't have anyone in line that got shot waiting for our system." -- Nintendo of America Vice President Perrin Kaplan

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