Secret DOJ Memo Suggests Drone Strikes May be Necessary to Kill American "Terrorists"

Science Secret DOJ Memo Suggests Drone Strikes May be Necessary to Kill American "Terrorists"
Jason Mick (Blog) - February 5, 2013 1:55 PM

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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.
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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."

_{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