DOJ Memo: U.S. Can 'Legally' Kill Americans Without Trial

Michael Isikoff, national investigative correspondent for NBC News, talks with Rachel Maddow about a newly obtained, confidential Department of Justice white paper that hints at the details of a secret White House memo that explains the legal

Michael Isikoff, national investigative correspondent for NBC News, talks with Rachel Maddow about a newly obtained, confidential Department of Justice white paper that hints at the details of a secret White House memo that explains the legal justifications for targeted drone strikes that kill Americans without trial in the name of national security.

NBC News:

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, 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.”

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.

Isikoff's report reveals that the Obama administration believes that high-level administration officials -- not just the president -- may order the killing of “senior operational leaders” of al-Qaida or an associated force even without any evidence that they are actively plotting against the U.S.

“A lawful killing in self-defense is not an assassination,” states the DOJ white paper quoted by Isikoff.

Human right's advocates are, not surprisingly, upset with the memo's revelations:

"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."

Jaffer goes into more detail at the ACLU blog:

It takes as a given that the target of the strike will be a "senior operational leader of al-Qa'ida or an associated force of al-Qa'ida," and it reasons from that premise that judicial process is unnecessary. This is a little bit like assuming that the defendant is guilty and then asking whether it's useful to have a trial. Perhaps the white paper omits analysis that appears in the Justice Department's legal memos, but again the legal memos are, inexcusably, still secret.

My colleagues will have more to say about the white paper soon, but my initial reaction is that the paper only underscores the irresponsible extravagance of the government's central claim. Even if the Obama administration is convinced of its own fundamental trustworthiness, the power this white paper sets out will be available to every future president-and every "informed high-level official" (!)-in every future conflict.

As Rachel Maddow noted, expect to hear much more about the memo at John Brennan's open hearing of the Senate Intelligence Committee on Thursday as they decide whether or not to approve his nomination to take over the CIA. Brennan is the architect of Obama’s drone policy, and has been a strong proponent of the expanded practice of targeted assassinations to kill suspected terrorists wherever they might happen to be. It was under his watch that the US-born Islamic cleric Anwar Awlaki's assassination was approved.

Brennan was forced to step aside when Obama nominated him for the same position during his first term in office over concerns about his support for the use of torture by the CIA under President George W. Bush.

Obama’s pick for secretary of defense, Chuck Hagel, whose confirmation hearing didn't go well, and is a proponent of selective strikes, including drone kills, could find his chances of confirmation significantly impacted by the release of this memo, as well.

About Diane Sweet

Diane Sweet's picture
Senior Editor, Lives in a gerrymandered district in Michigan.

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