Obama admin: Drones can target Americans abroad based on one official’s opinion

posted at 8:41 am on February 5, 2013 by Ed Morrissey

The killing of al-Qaeda leader Anwar al-Awlaki generated a surprising amount of controversy.  The US had used drones to kill scores of AQ leaders and followers in Pakistan, Afghanistan, and Yemen before Awlaki and afterward.  However, Awlaki was a US citizen, and the targeting of an American citizen by the government was considered a new step — and not necessarily a good one.  The demand for a controlling procedure began to grow, amplified ironically by Barack Obama himself when the New York Times reported that he tried to rush rules into place for drone use in case Mitt Romney won the election, only to lose interest when it became clear he would win.

Unfortunately, that didn’t stop people from demanding to know how exactly the Obama administration protected the rights of Americans and ensured that a drone strike on a US citizen was undeniably justified.  A leak from the Department of Justice makes it clear that it’s not clear at all:

The secrecy surrounding such strikes is fast emerging as a central 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.”

But the confidential Justice Department “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.

Instead, it says,  an “informed, high-level” official of the U.S. government may determine that the targeted American  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.”

As in Holder’s speech, the confidential memo lays out a three-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. 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 undated memo is entitled “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.”  It was provided to members of the Senate Intelligence and Judiciary committees in June by administration officials on the condition that it be kept confidential and  not discussed publicly.

So  let’s just recap.  The US can target a US citizen if they believe a threat to be “imminent” even when no threat of attack is immediately present.  The target must have recently been involved in activities, with no real definition of “activities” or “recently.”  And rather than prove that the US citizen plans to continue these “activities,” it’s up to the citizen to prove to a single US official that no one knows that he’s renounced and/or abandoned such “activities” — activities that the government won’t define, to an official the government won’t name.

Awlaki was an easy case.  He publicly and explicitly encouraged terrorist acts, recruited new members to carry them out, and was connected to plots that actually went into action.  But this memo goes way beyond the Awlaki instance and basically gives the government carte blanche to target Americans in whatever it considers to be the battlefield for almost any kind of “threat” it imagines.

Surely we can do better than this to find a hard line between the case of Awlaki and no line at all. And surely Congress can press John Brennan about this point during his confirmation hearing to the post of CIA Director.

Update: It looks like the Senate may be getting serious about this issue, too:

Eleven senators sent a letter to President Obama on Monday demanding access to secret legal memos outlining the administration’s case for the targeted killing of U.S. citizens in counterterrorism operations overseas.

The letter from eight Democrats and three Republicans contained the most forceful warning to date that lawmakers were considering blocking Obama’s nominees to run the CIA and Pentagon unless the memos are turned over.

The message comes three days before White House counterterrorism adviser John O. Brennan will face a confirmation hearing to become CIA director before the Senate intelligence committee. Former senator Chuck Hagel (R-Neb.) is awaiting a vote in the Senate Armed Services Committee following his hearing last week to become secretary of defense.

Cooperation with the request “will help avoid an unnecessary confrontation that could affect the Senate’s consideration of nominees for national security positions,”the letter said.

Three members of the intelligence panel signed the letter: Sens. Ron Wyden (D-Ore.), Mark Udall (D-Colo.) and Susan Collins (R-Maine).


Related Posts:

Breaking on Hot Air

Blowback

Note from Hot Air management: This section is for comments from Hot Air's community of registered readers. Please don't assume that Hot Air management agrees with or otherwise endorses any particular comment just because we let it stand. A reminder: Anyone who fails to comply with our terms of use may lose their posting privilege.

Trackbacks/Pings

Trackback URL

Comments

Comment pages: 1 2 3

201

Bmore on February 5, 2013 at 10:50 PM

Those people were not authentic Americans

Tripwhipper on February 5, 2013 at 10:33 PM

“Authentic American” is NOT the test. Both Anwar al-Awlaki and his son were born on American soil.

but determined by national security to be terrorist enemies

Well, then, that settles it. Let’s leave all legal INTERPRETATION to the branch of government that is tasked with EXECUTING THE LAW.

On what basis did national security “deem” 16-year-old Abdulrahman al-Awlaki to be a terrorist?

Let’s see this evidence.

Let’s see what upon what basis President Obama believed he had a right to execute a minor when such IS UNCONSTITUTIONAL in the United States, Roper v. Simmons, 543 U.S. 551 (2005).

Let’s see if Obama could have produced the evidence that would have convicted the 3 Americans he has so far denied due process to and executed.

and they are not about to drone strike us here in the US.

Slippery slope. This administration once believed that the waterboarding of known terrorists, who were NOT Americans, was torture and a war crime. Now, it believes that it has the power to play judge, jury and executioner.

This is about political legitimacy more so than legality, as was Reagan’s defiance of the Boland Amendment.

It has EVERYTHING to do with legality. Reagan was wrong for defying the Boland Amendment. Presidents swear to uphold the Constitution. They don’t get to disregard laws they do not like.

BTW, don’t bother with any more references to Reagan. He is not my favourite President and I was 2 years old and growing up in London when he was elected.

We have much bigger issues to worry about. All nine justices of SCOTUS are from the same two Ivy League institutions, Harvard & Yale. All presidents for the past quarter century are from the same, Harvard & Yale. So I suppose no other educational institutions in the nation qualify or need apply?

All of the above is IRRELEVANT to the issue at hand, i.e., whether a President can “deem” an American a “terrorist,” deny him due process, and then execute him. Current law does NOT support this position.

We lost our Republic a century ago. Govt. is transgressing into illegitimacy. We the people are now in a political barrel of oligarchy about to go over the falls of totalitarianism. Time to get out of the barrel and get to shore.

Wow! So, your answer to rising totalitarianism is to give the President of the United States the ULTIMATE power over citizens.

Bloody brilliant!

/

Resist We Much on February 5, 2013 at 11:22 PM

We lost our Republic a century ago. Govt. is transgressing into illegitimacy. We the people are now in a political barrel of oligarchy about to go over the falls of totalitarianism. Time to get out of the barrel and get to shore.

Tripwhipper on February 5, 2013 at 10:33 PM

Push-back here might be helpful. We’re talking about resisting summary executions. Unless you have something else to do — you said, “Time to get out of the barrel and get to shore.” What are you saying, literally?

Axe on February 6, 2013 at 5:19 AM

Was Lincoln wrong to order the US army to open fire on the “insurgents” in the Southern part of this nation?

Was it wrong to bomb Tokyo because it might have hit Iva Toguri D’Aquino, an American Citizen who was a turncoat propagandist?

Historical usage I guess is wrong. That means some major US figures were also wrong when US citizen German soldiers were shot and killed in WW-II. The same goes for the few Japanese Americans who sided with Japan and participated in the war on Japan’s side. Admittedly they were not specifically targeted by name. They were not leaders or active agents. Al Awlaki was indeed an American citizen. He was also a leader of the enemy activities. He was targeted without regard for his citizenship simply because it would be idiotic to declare being an American citizen is a shield for any kind of militant behavior against the United States. It should not even be a factor in discussions. Nor should his son, who people are trying to make into Al Awlaki’s human shield.

I don’t give a damn what “International Law” says, if it’s important enough to indulge in the basic atrocity called war it is automatically important enough to do what it takes to win rather than die on principle. THAT should be considered before deciding to go to war as in “commit our troops to killing people or helping other troops to kill people.” Don’t do it unless you FULLY commit to winning. And then do what it takes to win. That is how we won WW-I and WW-II. NOT doing that is how we have lost EVERY war since then. Brush up on your WW-II history. Then tell me which generals, which former Presidents, which soldiers you want to bring up on charges, posthumously if needed, regarding their behavior. Virtually every one of them would qualify.

{^_^}

{^_^}

herself on February 6, 2013 at 6:02 AM

That is how we won WW-I and WW-II. NOT doing that is how we have lost EVERY war since then. Brush up on your WW-II history. Then tell me which generals, which former Presidents, which soldiers you want to bring up on charges, posthumously if needed, regarding their behavior. Virtually every one of them would qualify.

{^_^}

{^_^}

herself on February 6, 2013 at 6:02 AM

I’m curious, are we in a legal war here? Has war actually been declared against a specific enemy?
I have no sympathy for terrorists. But if there’s no officially declaration of war, then there is no official enemy.
This means the admin can say who they like is an enemy of the state & blast away.
Is this what we want?
Congress either needs to declare official war, or fight terror some other way.
The Patriot Act & this recent monstrosity curbs liberty.
Under the guise of making us all ‘safe’.
And I have read a lot of history concerning the era of the 1st half of the 20th century.
Stalin & Hitler. I know those 2 guys.
Never let a crisis go to waste.

Badger40 on February 6, 2013 at 8:09 AM

Well after seeing how accurate the govt has been in putting American citizens on the ‘terrorist’ watchlists here inside the American border,why would anybody worry?
/sarc

leon on February 6, 2013 at 9:43 AM

Well after seeing how accurate the govt has been in putting American citizens on the ‘terrorist’ watchlists here inside the American border,why would anybody worry?
/sarc

leon on February 6, 2013 at 9:43 AM

This is exactly what I was begging right-wingers to think about post 9/11 – “what will happen when those Communist-hugging liberals get power? Or do you think you’ll always win elections from now on?”

But everyone was so mad nobody would listen.

MelonCollie on February 6, 2013 at 10:30 AM

Was Lincoln wrong to order the US army to open fire on the “insurgents” in the Southern part of this nation?

herself on February 6, 2013 at 6:02 AM

No, because the Constitution gives the President express authority to put down insurr3ctions. Further, the South fired on Fort Sumner FIRST so, the President, as is law enforcement when attempting to apprehend a fugitive that opens fire, may act DEFENCIVELY.

On 24 December 1860, South Carolina passed the “Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union.” It S E C E D E D.

By February 1861, seven Southern states had S E C E D E D and, on 4 February, they formed A NEW COUNTRY, the Confederate States of America with its OWN President, Jefferson Davis, and its OWN government.

While Section 349 of the Immigration and Nationality Act (8 U.S.C. 1481) was not in effect because it was passed in 1940, but if we use it as a basis, it is OBVIOUS that the people in the South had forfeited their American citizenship by:

1. Pursuant to § 349 (a)(1) INA, obtaining naturalisation in a FOREIGN STATE.

2. Pursuant to § 349 (a)(2) INA, taking an oath, affirmation or other formal declaration to a FOREIGN STATE or its political subdivisions.

3. Pursuant to § 349 (a)(4)(b) INA, accepting employment with a FOREIGN STATE and taking the “an oath or declaration of allegiance” that was “required in accepting the position.”

4. Pursuant to § 349 (a)(6) INA, entering or serving in the “armed forces of a FOREIGN STATE engaged in hostilities against the U.S. or serving as a commissioned or non-commissioned officer in the armed forces of a FOREIGN STATE.

Unlike the Confederate States of America, al Qaeda is NOT a FOREIGN STATE. It has NO government, NO flag, and its members wear NO uniform.

The solution to this problem of citizenship is easily rectified. Congress can amend § 349 and strip Americans of their citizenship if they join a foreign terrorist organisation that is currently conducting hostilities against the US. The government can make a proffer to a court and a judge could then decide.

Was it wrong to bomb Tokyo because it might have hit Iva Toguri D’Aquino, an American Citizen who was a turncoat propagandist?

No, American citizenship does not act as a shield to protect people if they are in the capitol of a FOREIGN STATE. It is the TARGETING OF AMERICAN CITIZENS, specifically, that makes this programme problematic.

John Walker Lindh was captured on an Afghan battlefield. If he had been killed on that battlefield, instead, there would be NO problem because he was not targeted. He was a casualty of war and the American military does not have to pull its punches because an American may be in the midst of the enemy.

1. Both CSA and Japan were FOREIGN STATES. Al Qaeda is not.

2. Specific Americans were NOT targeted for execution.

Resist We Much on February 6, 2013 at 11:41 AM

Was Lincoln wrong to order the US army to open fire on the “insurgents” in the Southern part of this nation?

herself on February 6, 2013 at 6:02 AM

No, because the Constitution gives the President express authority to put down insurr3ctions. Further, the South fired on Fort Sumner FIRST so, the President, as is law enforcement when attempting to apprehend a fugitive that opens fire, may act DEFENCIVELY.

On 24 December 1860, South Carolina passed the “Declaration of the Immediate Causes Which Induce and Justify the S-c-ssion of South Carolina from the Federal Union.” It S E C E D E D.

By February 1861, seven Southern states had S E C E D E D and, on 4 February, they formed A NEW COUNTRY, the Confederate States of America with its OWN President, Jefferson Davis, and its OWN government.

While Section 349 of the Immigration and Nationality Act (8 U.S.C. 1481) was not in effect because it was passed in 1940, but if we use it as a basis, it is OBVIOUS that the people in the South had forfeited their American citizenship by:

1. Pursuant to § 349 (a)(1) INA, obtaining naturalisation in a FOREIGN STATE.

2. Pursuant to § 349 (a)(2) INA, taking an oath, affirmation or other formal declaration to a FOREIGN STATE or its political subdivisions.

3. Pursuant to § 349 (a)(4)(b) INA, accepting employment with a FOREIGN STATE and taking the “an oath or declaration of allegiance” that was “required in accepting the position.”

4. Pursuant to § 349 (a)(6) INA, entering or serving in the “armed forces of a FOREIGN STATE engaged in hostilities against the U.S. or serving as a commissioned or non-commissioned officer in the armed forces of a FOREIGN STATE.

Unlike the Confederate States of America, al Qaeda is NOT a FOREIGN STATE. It has NO government, NO flag, and its members wear NO uniform.

The solution to this problem of citizenship is easily rectified. Congress can amend § 349 and strip Americans of their citizenship if they join a foreign terrorist organisation that is currently conducting hostilities against the US. The government can make a proffer to a court and a judge could then decide.

Was it wrong to bomb Tokyo because it might have hit Iva Toguri D’Aquino, an American Citizen who was a turncoat propagandist?

No, American citizenship does not act as a shield to protect people if they are in the capitol of a FOREIGN STATE. It is the TARGETING OF AMERICAN CITIZENS, specifically, that makes this programme problematic.

John Walker Lindh was captured on an Afghan battlefield. If he had been killed on that battlefield, instead, there would be NO problem because he was not targeted. He was a casualty of war and the American military does not have to pull its punches because an American may be in the midst of the enemy.

1. Both CSA and Japan were FOREIGN STATES. Al Qaeda is not.

2. Specific Americans were NOT targeted for execution.

Resist We Much on February 6, 2013 at 11:41 AM

Continued…

The three Americans that have been executed by drones, including a 16 year-old boy that had just joined his father in Yemen, but was killed 16 days after al-Awlaki was killed, were not wearing the uniforms of any country. They had not formally renounced their American citizenship. They had not even been charged with crimes where a prosecutor could have made a case producing his evidence to a grand jury. There were no indictments. There was NO oversight of the Executive Branch by either of the other two.

No leader of ANY country should ever have the power to decide which of his fellow citizens are terrorists and should be killed without any checks and balances.

Americans have a right to due process, including the opportunity to challenge the charges, their detention, the evidence, and to confront their accusers. We make a grave mistake allowing the President to summarily – and unilaterally – decide who should be stripped of those rights.

Further, we must be incredibly vigilant about ceding rights in the name of “national security.” From the Night of the Long Knives through the end of WWII, Adolf Hitler killed millions in the name of “national security.”

PS: Randy Weaver was deemed a “danger” and possible “domestic terrorist” because of his infrequent attendance at some meetings of a group along the lines of the Aryan Nation. Of course, I do not approve of such groups and we can even agree that people, who are associated with them, are despicable, but he still had rights. The Federal government planned a set-up of Randy and then his wife, as well. It entrapped Randy Weaver by having an undercover agent ask to buy a sawed-off shotgun. Weaver, at first, did not want to sell anything. Finally, he agreed and, when the agent arrived, he asked where to cut the barrel. Intentionally, the agent point to a spot that was 1/4″ outside of the legal bounds. It was THIS that led to Ruby Ridge.

The government staked out his property. Put cameras in the trees. Enter his property without a warrant. Finally, Federal agents shot the family dog, which provoked the minor son to return fire. He was killed by a Federal agent. The man, who was with him, defended him and shot back killing one of the agents, was ACQUITTED OF ALL CHARGES.

The Federal government then changed the ROE and, for possibly the first time in American history, put a shoot to kill order on an American family. The agents shot Randy Weaver in the back and they shot his wife, Vicki, through the head while she was holding their infant daughter.

The Feds charged Randy Weaver with a slew of crimes and sought the death penalty. So obscene, obnoxious, and unconstitutional were the actions of the Federal government and its agents that his attorney, Gerry Spence, did not even put on a defence. Weaver was ACQUITTED and the Federal government later settled with the Weaver Family for MILLIONS OF DOLLARS.

Now, I am not suggesting that President Obama or a successor will take this programme, immediately, and start using it on American soil, but one can certainly imagine that slippery slope when just considering what the Feds were willing to do to the Weaver family.

What if, instead of being Americans, the Weavers were Pakistanis? Does that change anything?

What if, instead of putting Federal agents’ lives in jeopardy, an “‘informed’ high level official” determines that an American like Randy Weaver “poses an imminent threat of violent attack against the US” with “imminent” being defined as “possibly at some time in the future”? Should the Feds be able to use a drone since apprehending him might cause the death of one of their agents?

Political leaders who decree guilt in secret and with no oversight inevitably succumb to error and/or abuse of power. Such unchecked accusatory decrees are inherently untrustworthy. That’s why due process is guaranteed in the Constitution and why judicial review of government accusations has been a staple of western justice since the Magna Carta: because leaders can’t be trusted to decree guilt and punish citizens without evidence and an adversarial process. That is the age-old basic right on which this memo, and the Obama presidency, is waging war.

Resist We Much on February 6, 2013 at 11:43 AM

No ses, no lost, Hmmm….

Bmore on February 6, 2013 at 5:36 PM

No, because the Constitution gives the President express authority to put down insurr3ctions. Further, the South fired on Fort Sumner FIRST so, the President, as is law enforcement when attempting to apprehend a fugitive that opens fire, may act DEFENCIVELY.

You freedom-hating King Lincoln hugging northerner! The war of northern aggression took away states rights and made us treat blacks like human beings! How dare you! Blabble rabble blubber bawl racism bigotry history revisionism etc., etc., ad infinitum.

/asstoneri
/Dante
(take your pick)

They still can’t get over the fact that their culture was a cruel farce and an economic dead-end reliant on a single crop they didn’t pick. And they still can’t accept that the war they started ended with their young men dead, their cities reduced to rubble, and their ‘president’ caught trying to disguise himself in a woman’s clothes.

MelonCollie on February 6, 2013 at 5:57 PM

Comment pages: 1 2 3