The U.S. Justice Department has apparently given a dubious legal OK for senior Obama Administration officials--not just the President himself--to order the killing of any U.S. citizen abroad if he is thought to be a "senior operational leader of al-Qaida or an associated force."
NBC News broke the story last night
after it obtained the unsigned 16-page white paper--which defines al-Qaida as a "terrorist organization engaged in constant plotting against the United States," a definition that the paper's authors use to justify killing al-Qaida associates any time, anywhere, under the law of war that authorizes "self defense."
NBC's Michael Isikoff:
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."
In other words, membership in al-Qaida, as determined by U.S. intelligence officials, in secret, marks one as an enemy combatant and "imminent threat" against the U.S. and its people; ergo, killing is "justified as an act of national defense."
The paper's legal argument is built largely on the case of Yaser Esam Hamdi
, the American who was captured "on the battlefield" in Afghanistan shortly after the U.S. invaded in 2002.
Since then, of course, capture has given way to drone strikes, such as the one that killed Anwar al-Awlaki in Yemen last fall. Or the one that killed his 16-year-old son a little later. City Paper
took note of the drone research going on at Johns Hopkins Applied Physics Lab in a feature last week
. The technology is evolving to take humans out of the decision process completely.
Because al-Qaida by definition is "always plotting," the word "imminent," as used in the white paper, "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."
i.e.--it does not mean "imminent."
The "weight of the governemnt's interest in protecting its citizens from an imminent attack are such that the Constitution would not require the government to provide further [due] process to such U.S. citizen before using lethal force," the white paper says.
HuffPo picked up the story
and made the obvious call:
Jameel Jaffer of the American Civil Liberties Union called the document "pretty remarkable" and said some of its arguments "don't stand up to even cursory review." He said the paper "only underscores the irresponsible extravagance of the government's central claim."
The New York Times put the memo story on the front of its website
this morning, focusing high up on the paper's provenance:
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.
The white paper says that the courts should play no role in reviewing or restraining the decision to kill Americans.
Just to get a wiretap on Americans allegedly plotting with foreigners, the feds supposedly need to go to a secret Foreign Intelligence Surveillance Act (FISA) court.
But a drone strike is the executive's (or his senior assistant's) call.