Memo Cites Legal Basis for Killing U.S. Citizens in Al Qaeda

A Rationale for Killing: A memo outlines the Obama administration’s views on killing American citizens linked to Al Qaeda.

By CHARLIE SAVAGE and SCOTT SHANE

Published: February 5, 2013

WASHINGTON — Obama administration lawyers have asserted that it would be lawful to kill a United States citizen if “an informed, high-level official” of the government decided that the target was a ranking figure in Al Qaeda who posed “an imminent threat of violent attack against the United States” and if his capture was not feasible, according to a 16-page document made public on Monday.

The unsigned and undated Justice Department “white paper,” obtained by NBC News, is the most detailed analysis yet to come into public view regarding the Obama legal team’s views about the lawfulness of killing, without a trial, an American citizen who executive branch officials decide is an operational leader of Al Qaeda or one of its allies.

The paper is not the classified memorandum in which the Justice Department’s Office of Legal Counsel signed off on the killing of Anwar al-Awlaki, a radical Muslim cleric who was born in New Mexico and who died in an American drone strike in Yemen in September 2011. But its legal analysis — citing a national right to self-defense as well as the laws of war — closely tracks the rationale in that document, as described to The New York Times in October 2011 by people who had read it.

The memo appears to be a briefing paper that was derived from the real legal memorandum in late 2011 and provided to some members of Congress. It does not discuss any specific target and emphasizes that it does not go into the specific thresholds of evidence that are deemed sufficient.

It adopts an elastic definition of an “imminent” threat, saying it is not necessary for a specific attack to be in process when a target is found if the target is generally engaged in terrorist activities aimed at the United States. And it asserts that courts should not play a role in reviewing or restraining such decisions.

The white paper states that “judicial enforcement of such orders would require the court to supervise inherently predictive judgments by the president and his national security advisers as to when and how to use force against a member of an enemy force against which Congress has authorized the use of force.”

It also fills in many blanks in a series of speeches by members of the Obama legal team about the use of force in targeted killings, including remarks by Attorney General Eric H. Holder Jr. at Northwestern’s law school in March. He asserted that the Constitution’s guarantee of “due process” before the government takes a life does not necessarily mean “judicial process” in national security situations, but offered little specific legal analysis.

Hina Shamsi, director of the American Civil Liberties Union’s National Security Project, called the paper “a profoundly disturbing document,” and said: “It’s hard to believe that it was produced in a democracy built on a system of checks and balances. It summarizes in cold legal terms a stunning overreach of executive authority — the claimed power to declare Americans a threat and kill them far from a recognized battlefield and without any judicial involvement.”

The release of the white paper comes as President Obama’s counterterrorism adviser and nominee as C.I.A. director, John O. Brennan, awaits a confirmation hearing before the Senate Intelligence Committee on Thursday. Pressure has been growing on the administration to make the secret legal documents public, or at least to provide the Intelligence Committees with more of them.

On Tuesday, eight Democratic and three Republican senators, including some Intelligence Committee members, wrote to Mr. Obama asking for the legal opinions authorizing the killing of Americans. The letter followed one sent by Senator Ron Wyden, Democrat of Oregon, a member of the Intelligence Committee who has long sought access to the legal opinions.

The senators wrote that they needed the legal opinions to judge “whether the president’s power to deliberately kill American citizens is subject to appropriate limitations and safeguards.”

A version of this article appeared in print on February 5, 2013, on page A6 of the New York edition