DOJ Memo: legal case for drone strikes on Americans

Well it looks like the war is in the making, the one pitting the Obama Administration against the citizens of this great nation.  Who is next in Obama’s sights?  A confidential DOJ memo has just surfaced, concludes that the U.S. 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 U.S.

This as we all know is a smokescreen, as anyone who disagrees with Obama can be considered a terrorist.  NBC News received a copy of the 16 page memo which 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 U.S. citizens who had never been indicted by the U.S. government nor charged with any crimes.

The secrecy surrounding these strikes has become a key 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.”

nbcnews.com

But this DOJ “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 U.S. 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 U.S. persons and interests will take place in the immediate future,” the memo states.

Read the complete memo

What it actually says is that an informed high level government official of the government may target an American who 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.”

The memo lays out a 3 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.

As an example it states For example, it states that U.S. officials may consider whether an attempted capture of a suspect  would pose an “undue risk” 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.

The memo which is undated is 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.”

In June, members of the Senate Intelligence and Judiciary committees received the copy but kept in under wraps from the public.  Even though it’s not a legal nor official 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 has sued unsuccessfully in court 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.”

nbcnews.com

A DOJ spokeswoman refused to comment on the memo.

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.   Even though the president has some powers on using lethal force against Americans, the public has a right to know just how Obama interprets the limits and boundaries of such power.

Then 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 U.S. 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.

nbcnews.com

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.”

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 U.S. law that criminalizes the killing of U.S. nationals overseas.  It  also discusses why such targeted killings would not be a war crime or violate a U.S. executive order banning assassinations.

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Posted by Janet on 02/05/2013

http://newsdeskinternational.wordpress.com/2013/02/05/doj-memo-legal-case-for-drone-strikes-on-americans/