A confidential Justice Department memo 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.
The 16-page memo, a copy of which was obtained by NBC News, 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 abroad, 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 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.”
White House press secretary Jay Carney said that the Obama administration’s drone program was “legal,” “ethical” and “wise” during the daily press briefing today.
“The U.S. government takes great care in deciding to pursue an al-Qaida terrorist, to ensure precision, and to avoid loss of innocent life,” Carney said.
Anyway, here is what the lawyers to the president’s lawyer say about the legality of killing Americans who are constituted as al Qaeda or al Qaeda-linked threats. (The memo makes it clear that its language does not apply to other instances where American citizens might be killed by their government.)
1. “An informed, high-level official” must determine that the person represents “an imminent threat” of “violent attack against the United States.”
2. Capturing the dude is “infeasible,” and the government will continue to assess whether capturing him is feasible.
3. The killing, or “lethal operation,” must be conducted according to the laws of war. …
So here’s what that means: Even if the person is not actively planning terrorist attacks against the U.S., because of the nature of terrorist attacks in general, merely his membership in an organization that is planning those attacks meets the requisite definition of imminence.
What threshold of evidence, if any, must a high-ranking official meet to determine that someone is Al Qaeda? The burden is apparently less onerous than two witnesses testifying in open court, which the Constitution requires for a treason conviction. But the memo specifies neither an evidential threshold nor a protocol for meeting it. That is troubling.
But the part of the memo worth dwelling on most, at least until legal experts offer deeper analysis than I confidently can, is the portion that deals with “an imminent threat of violent attack.”
On reading the document, that clause is sort of reassuring. After all, there aren’t that many circumstances when an attack is imminent. It would seem to severely constrain extrajudicial assassinations.
As it turns out, however, the memo reassures the reader with the rhetorically powerful word “imminent,” only to define imminence down in a way that makes it largely meaningless — so much so that it’s actually reminiscent of George W. Bush’s misuse of imminent to characterize the threat posed by Iraq. It’s difficult to adequately emphasize how absurd this part of the document becomes. What does it mean, for you personally, when you hear that someone poses “an imminent threat of violent attack against the United States”? Do you have an answer in your head?
What about their Fourth and Fifth Amendment Rights? Since the U.S. citizen in question is considered to have joined a force that is actively seeking to kill Americans, the Justice Department argues that it can kill that person and forgo his or her constitutional rights. Even though the government weighs the individual’s rights against the broader rights of a government to protect its citizens from attack, the paper concludes that “the realities of war” allows the government to use “necessary and appropriate” force to protect its citizens—even from one of their own.
Why can Obama order these attacks? As the commander in chief, U.S. officials argue that the president has the constitutional right to protect the country against an “imminent threat” from militant groups. Additionally, Congress passed the Authorization for Use of Military Force bill after the 9/11 attacks, and gave the president authority to use force against al-Qaida and other militant groups that target Americans. The white paper does not define “imminent,” however. …
Is there room for judicial review of these attacks? Not really. The Justice Department says “there exists no appropriate judicial forum to evaluate these constitutional considerations” with regard to intimate foreign policy matters. If the courts were to get involved with these matters, it could hinder the president’s ability to carry out military operations, the paper argues.
“If you assess the threat of international terrorism to be the equivalent of war, then you’re in the ‘law of war’ paradigm. This is not like robbing the local 7-Eleven, where you resort to the law enforcement paradigm,” said Bolton, who added that Article II of the Constitution gives this power to the president in a time of war.
What else is in the news today regarding the most transparent administration in history? A report documenting that 54 countries around the globe have played along with the CIA when it comes to torturing suspects in such a way that the U.S. can pretend it doesn’t do that sort of thing anymore.
There is a darkly comic aspect to this, I suppose: Here’s a president who once taught classes in constitutional law and swore up and down that America doesn’t torture, that he was against “dumb wars” waged by his predecessors, that he was more transparent than a glass of triple-filtered water, and who won a goddamned Nobel Peace Prize! And he turns out to be not just a little iffy when it comes to being constrained in his willingness to break all sorts of rules but downright godawful.
And his main mouthpiece is a former MSM drone whose babyface is quickly turning into a map of wrinkles brought on by working for an administration which has manifestly failed to live up to even the mediocre standards of the previous occupant of the White House.
On the advice of the Horde, I took up George Orwell’s “Politics and the English Language.” This passage seems especially appropriate today:
“In our time, political speech and writing are largely the defense of the indefensible. Things like the continuance of British rule in India, the Russian purges and deportations, the dropping of the atom bombs on Japan, can indeed be defended, but only by arguments which are too brutal for most people to face, and which do not square with the professed aims of the political parties. Thus political language has to consist largely of euphemism, question-begging and sheer cloudy vagueness. Defenseless villages are bombarded from the air, the inhabitants driven out into the countryside, the cattle machine-gunned, the huts set on fire with incendiary bullets: this is called pacification. Millions of peasants are robbed of their farms and sent trudging along the roads with no more than they can carry: this is called transfer of population or rectification of frontiers. …”
I highly advise you to read the memo. The powers it claims are broad and, as Isikoff pointed out on Rachel Maddow’s show, actually contradict some of the administration’s public statements and enter into Orwell’s world of false language rendered to conceal an arguments “too brutal for most people to take.”
“That is nowhere justifiable under the Constitution, nowhere justifiable under federal law,” Judge Andrew Napolitano argued on FOX News today. “In fact, federal law and the Constitution are to the opposite. Unless you are actually pulling a trigger or are in moments of pulling that trigger or dropping a bomb, the government has an obligation to do its best to arrest you and charge you with a crime and prosecute you before it can indiscriminately kill you.”
“This power used today against an unpopular target might be used in the future by another president against a person the president doesn’t like but as to whom there’s no moral justification for pursuing whatsoever,” Napolitano also said.
“This frivolous use of language by this administration and then claiming they have the right to use force to stop dead in their tracks the people who fit into these categories violates the principles of the Declaration of Independence and violates the supremacy of the Constitution which they’ve taken an oath to uphold,” he said.