{"id":836,"date":"2013-02-05T10:54:42","date_gmt":"2013-02-05T16:54:42","guid":{"rendered":"http:\/\/peaceeconomyproject.org\/wordpress\/?p=836"},"modified":"2013-02-06T15:44:59","modified_gmt":"2013-02-06T21:44:59","slug":"justice-department-memo-reveals-legal-case-for-drone-strikes-on-americans","status":"publish","type":"post","link":"https:\/\/peaceeconomyproject.org\/wordpress\/justice-department-memo-reveals-legal-case-for-drone-strikes-on-americans\/","title":{"rendered":"Justice Department memo reveals legal case for drone strikes on Americans"},"content":{"rendered":"

By Michael Isikoff
\nNational Investigative Correspondent, NBC News
\nclick here for original article<\/a><\/p>\n

A confidential Justice Department memo concludes that the U.S. government can order the killing of American citizens if they are believed to be \u201csenior operational leaders\u201d\u00a0of al-Qaida or \u201can associated force\u201d — even if there is no\u00a0intelligence\u00a0indicating they\u00a0are\u00a0engaged in an active plot to attack the U.S.<\/p>\n

The 16-page memo<\/a>, a copy of which was obtained\u00a0by NBC News, provides new details\u00a0about the legal reasoning behind one of the Obama administration\u2019s most secretive and controversial polices: its dramatically increased use of drone strikes against al-Qaida suspects abroad, including those aimed at American citizens, such as the\u00a0 September 2011 strike in Yemen that killed alleged al-Qaida operatives Anwar al-Awlaki and Samir Khan. Both were U.S. citizens who had never\u00a0been indicted by the U.S. government nor charged with any crimes.<\/p>\n

The secrecy surrounding such strikes is fast emerging as a central issue in this week\u2019s hearing of White House counterterrorism adviser John Brennan, a key architect of the drone campaign, to be CIA director.\u00a0\u00a0Brennan was the first administration official to publicly acknowledge drone strikes in a speech last year, calling them \u201cconsistent with the inherent right of self-defense.\u201d In a separate talk at the Northwestern University Law School in March, Attorney General Eric Holder\u00a0specifically endorsed the constitutionality of\u00a0targeted killings of Americans, saying they could be justified if government officials determine the target\u00a0poses\u00a0 \u201can imminent threat of violent attack.\u201d<\/p>\n

But the confidential\u00a0Justice Department \u201cwhite paper\u201d\u00a0introduces a more expansive definition of self-defense or imminent attack than described\u00a0 by Brennan or Holder in their public speeches.\u00a0 It refers, for example,\u00a0to what it calls a \u201cbroader concept of imminence\u201d than actual intelligence about any ongoing plot against the U.S. homeland.<\/p>\n

\n

Michael Isikoff, national investigative correspondent for NBC News, talks with Rachel Maddow about a newly obtained, confidential Department of Justice white paper that hints at the details of a secret White House memo that explains the legal justifications for targeted drone strikes that kill Americans without trial in the name of national security.<\/p>\n<\/div>\n

\u201cThe condition that an operational\u00a0 leader present an \u2018imminent\u2019 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,\u201d the memo states.<\/p>\n

Read the entire ‘white paper’ on drone strikes on Americans<\/strong><\/a><\/p>\n

Instead, it says,\u00a0 an \u201cinformed, high-level\u201d official of the U.S. government may determine that the targeted American\u00a0 has been \u201crecently\u201d involved in \u201cactivities\u201d posing a threat of a violent attack and \u201cthere is\u00a0 no evidence suggesting that he has renounced or abandoned such activities.\u201d The memo does not define \u201crecently\u201d or \u201cactivities.\u201d<\/p>\n

As in Holder\u2019s speech, the confidential\u00a0memo lays out a three-part test that would make targeted killings of American lawful: \u00a0In addition to the suspect being an imminent threat, capture of the target must be \u201cinfeasible, and the strike must be conducted according to \u201claw of war principles.\u201d 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 U.S. officials may consider whether an attempted capture of a suspect\u00a0 would\u00a0pose an \u201cundue risk\u201d to U.S. personnel involved in such an operation. If so, U.S. officials could determine that the capture operation of the targeted American would not be feasible, making it lawful for the U.S. government to order a killing instead, the memo concludes.<\/p>\n

The\u00a0undated\u00a0memo is entitled \u201cLawfulness of a Lethal Operation Directed Against a U.S. Citizen who is a Senior Operational Leader of Al Qa\u2019ida or An Associated Force.\u201d\u00a0 It was provided to members of the Senate Intelligence and Judiciary committees\u00a0in June by administration officials on the condition that it be kept confidential and\u00a0 not discussed publicly.<\/p>\n

Although not an official legal memo, the white paper was represented by administration\u00a0 officials as a policy document that closely\u00a0mirrors the arguments of classified memos on targeted killings by the Justice Department\u2019s\u00a0 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,\u00a0provided a copy to NBC News.<\/p>\n

\u201cThis is a chilling document,\u201d said Jameel Jaffer, deputy legal director of the ACLU, which is suing to obtain administration memos about the targeted killing of Americans.\u00a0 \u201cBasically, it argues that the government has the right to carry out the extrajudicial killing of an American citizen. \u2026 It recognizes some limits on the authority it sets out, but the limits are elastic and vaguely defined, and it\u2019s easy to see how they could be manipulated.\u201d<\/p>\n

In particular, Jaffer said, the memo \u201credefines\u00a0the word imminence in a way that deprives the word of its ordinary meaning.\u201d<\/p>\n

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 \u201cparade\u201d 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 \u201clegal framework\u201d for such operations.<\/p>\n

Pressure for turning over the Justice Department memos on targeted killings\u00a0of Americans appears to be building on Capitol Hill amid\u00a0signs that Brennan will be grilled on the subject at his confirmation hearing before the Senate Intelligence Committee on Thursday.<\/p>\n

On Monday, a bipartisan group of 11 senators — led by Democrat Ron Wyden of Oregon \u2014 wrote\u00a0 a letter to President Barack Obama asking him to release all Justice Department memos on the subject.\u00a0While accepting that \u201cthere will clearly be circumstances in which the president has the authority to use lethal force\u201d against Americans who take up arms against the country, \u00a0it said, \u201cIt is vitally important … for Congress and the American public to have a full understanding of how\u00a0 the executive branch interprets the limits and boundaries of this authority.\u201d<\/p>\n

Anticipating domestic boom, colleges rev up drone piloting programs<\/strong><\/a><\/p>\n

The completeness of the administration\u2019s public accounts of its legal arguments was also sharply criticized last month by U.S. Judge Colleen McMahon in response to a\u00a0 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.\u00a0 McMahon, describing herself as being caught in a \u201cveritable Catch-22,\u201d\u00a0 said she was unable to order the release of the documents given \u201cthe 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.\u201d<\/p>\n

In her ruling, McMahon noted that administration officials \u201chad engaged in public discussion of the legality of targeted killing, even of citizens.\u201d But, she wrote, they have done so \u201cin cryptic and imprecise ways, generally without citing \u2026 any statute or court decision that justifies its conclusions.\u201d<\/p>\n

In one passage in Holder\u2019s speech at Northwestern in March,\u00a0 he alluded \u2013 without spelling out\u2014that there might be circumstances where the president might order attacks against American citizens without specific knowledge of when or where an attack against the U.S. might take place.<\/p>\n

\u201cThe Constitution does not\u00a0 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,\u201d\u00a0 he said.<\/p>\n

But his speech did not contain the additional language in the white paper suggesting that\u00a0no active intelligence about a specific attack is needed\u00a0to justify a targeted strike. Similarly, Holder said in his speech that targeted killings of Americans can be justified\u00a0 if \u201ccapture is not feasible.\u201d But he did not include language in the white paper saying that an operation might not be feasible \u201cif it could not be physically effectuated during the relevant window of opportunity or\u00a0if the relevant country (where the target is located) were to decline to consent to a capture operation.\u201d The speech also made no reference to the risk that might be posed to U.S. forces seeking to capture a target, as was \u00a0mentioned in the white paper.<\/p>\n

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\u00a0\u00a0 a U.S. law that criminalizes the killing of U.S. nationals overseas.<\/p>\n

It\u00a0\u00a0also discusses why such targeted killings would not be a war crime or violate a U.S. executive order banning\u00a0assassinations.<\/p>\n

\u201cA lawful killing in self-defense is not an assassination,\u201d the white paper reads. \u201cIn the Department\u2019s 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,\u00a0 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.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":"

By Michael Isikoff National Investigative Correspondent, NBC News click here for original article A confidential Justice Department memo concludes that the U.S. government can order the killing of American citizens if they are believed to be \u201csenior operational leaders\u201d\u00a0of al-Qaida or \u201can associated force\u201d — even if there is no\u00a0intelligence\u00a0indicating they\u00a0are\u00a0engaged in an active plot […]<\/p>\n","protected":false},"author":1,"featured_media":837,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"nf_dc_page":"","om_disable_all_campaigns":false,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[8],"tags":[168],"class_list":["post-836","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-news","tag-drones"],"acf":[],"aioseo_notices":[],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/peaceeconomyproject.org\/wordpress\/wp-content\/uploads\/2013\/02\/130204-drones-hmed-512p.photoblog600.jpg?fit=600%2C400&ssl=1","jetpack_sharing_enabled":true,"jetpack_likes_enabled":true,"_links":{"self":[{"href":"https:\/\/peaceeconomyproject.org\/wordpress\/wp-json\/wp\/v2\/posts\/836","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/peaceeconomyproject.org\/wordpress\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/peaceeconomyproject.org\/wordpress\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/peaceeconomyproject.org\/wordpress\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/peaceeconomyproject.org\/wordpress\/wp-json\/wp\/v2\/comments?post=836"}],"version-history":[{"count":3,"href":"https:\/\/peaceeconomyproject.org\/wordpress\/wp-json\/wp\/v2\/posts\/836\/revisions"}],"predecessor-version":[{"id":860,"href":"https:\/\/peaceeconomyproject.org\/wordpress\/wp-json\/wp\/v2\/posts\/836\/revisions\/860"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/peaceeconomyproject.org\/wordpress\/wp-json\/wp\/v2\/media\/837"}],"wp:attachment":[{"href":"https:\/\/peaceeconomyproject.org\/wordpress\/wp-json\/wp\/v2\/media?parent=836"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/peaceeconomyproject.org\/wordpress\/wp-json\/wp\/v2\/categories?post=836"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/peaceeconomyproject.org\/wordpress\/wp-json\/wp\/v2\/tags?post=836"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}