The Obama administrations internal legal justification for assassinating U.S. citizens without charge has been revealed for the first time. According to a secret Justice Department document obtained by NBC News, the Obama administration claims it has the legal authority to target citizens who are, quote, “senior operational leaders,” of al-Qaeda or “an associated force” even if theres no intelligence indicating they are engaged in an active plot to attack the U.S.
In September 2011, a U.S. drone strike in Yemen killed two American citizens: Anwar al-Awlaki and Samir Khan. The following month, another U.S. drone strike killed al-Awlakis 16-year-old son Abdulrahman al-Awlaki, who was born in Denver.
The document obtained by NBC News is described as a “white memo” that was provided to members of the Senate Intelligence and Judiciary Committees as a summary of a classified memo prepared by the Justice Departments Office of Legal Counsel. Last month, a federal judge denied a request by the American Civil Liberties Union and The New York Times for the Justice Department to disclose its legal justification for the targeted killing of Americans.
The Obama administrations secrecy around the drone program is expected to be a top issue at this weeks confirmation hearing of White House counterterrorism adviser John Brennan to be director of the CIA. Brennan has been dubbed by critics to be Obamas “assassination czar.”
Jameel Jaffer talking:
its a very significant document, and its a remarkable document, and its something that everybody really ought to read, in the same way that everybody ought to read the torture memos from the last administration. It sets out, or professes to set out, the power that the government has to carry out the targeted killing of American citizens who are located far away from any battlefield, even when they have not been charged with a crime, even when they do not present any imminent threat in any ordinary meaning of that word. So its a pretty sweeping power thats been set out. And the memo purports to provide a legal justification for that power and explain why the limits on that power cant be enforced in any court.
The confidential Justice Department white paper introduces a more expansive definition of “self-defense” or “imminent attack” than any articulated by the U.S. government before. It reads, quote: “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.”
there are circumstances in which the government has the authority, and maybe even the responsibility, to use lethal force. Even if you think about it domesticallysomebody is running down the street, waving a gun around, threatening civiliansthe government doesnt have to go to a judge beforehand to seek a warrant to carry out that use of lethal force. But thats a situation in which the threat is imminent, in the ordinary meaning of the term: Theres not time to go to a judge; theres not time for deliberation.
But the kind of imminence that the government is defining here, or the way that the government has defined the term here, is much, much broader. Theyre talking about situations in which the person presents no immediate threat, theres no known plot. These people are located far away from any actual battlefield, so youre not talking about a situation in which there are battlefield exigencies that the government has to worry about. Youre really talking about something that looks a lot more like a law enforcement context. And in that context, the traditional rule is the government has the authority to use lethal force only in very narrow circumstances. And this memo really redefines those circumstances entirely.
its not a question of immunity. This is kind of a straw man. Nobody is arguing that Americans are entirely immune from the governments use of lethal force. The question is: Under what circumstances can the government use lethal force? And again, for a very good reason, those circumstances have traditionally been defined very narrowly. Now what the government is doing is creating an extremely broad category of people who can be targeted without judicial review before the fact, without judicial assessment of the evidence after the fact. Its a very dangerous thing that the government is doing.
And I think that at some level, I think the people who have written this memo and the people who are exercising this authority in the Obama administration must be convinced of their own trustworthiness. But even if you accept that the people who are now in office are trustworthy in this sense, this power is going to be available to the next administration and the one after that, and its going to be available in every future conflict, not just the conflict against al-Qaeda. And according to the administration, the power is available all over the world, not just on geographically cabined battlefields. So it really is a sweeping proposition.
some people have been saying that this is a kind of transparency that the administration, through these kinds of leaks, is giving the public the ability to assess the strength of the administrations legal arguments. And the truth is that this is really just a briefing document, its not a legal memo. It does tell us a little bit about the authority that the government is claiming, but the actual legal memos are still secret. Weve been litigating for those memos now for 18 months or two years. The administration has refused to release them. We have just appealed one case to the 2nd Circuit here in New York, to the appeals court here in New York.
there are two Freedom of Information Act cases that were litigating right now. One isone is here in New York, and the other one is in D.C. One of them is an effort to get the legal memos. Were litigating that case with The New York Times; they have a parallel request. The other case, which is in D.C., is about, principally, civilian casualties, the question of who has been killed in thesein these drone strikes, because the administration has not released numbers. And were reliant on the work of very good organizations outside the administration to do that kind of work. We think that the administration should release its own numbers.
most of the people who are being killed in these drone strikes arent U.S. citizens, right? There have only been four U.S. citizensthree in 2011, one in 2002. The rest have been noncitizens killed, some of them in Pakistan, some of them in Yemen, some of them in Somalia. According to the figures of the Bureau of Investigative Journalism in the U.K., were now talking about somewhere on the order of 4,000 people who have been killed with these drones.
And the administration still hasnt released the legal memos that purport to justify that program. So, one of the cases that were litigating, the one here in New York, is the effort to get that justification. This memo, this briefing paper, provides us a little more information about that justification, but its not the justification itself. For the same reasons that the government was right in 2009 to release the torture memos, we think the government should release the targeted killing memo.
First, I think one of the most chilling aspects of the power that the government is claiming here is that theyre claiming the authority to do all of this in secret, not just keep it secret from the courts or keep their justification secret from the courts, but keep the exercise of this power secret, so they can carry out these killings of American citizens, among many others, without even acknowledging to the public or to any court that they have exercised that authority. And that really is a chilling proposition. But thats one thing, and thats one of the things that theyve done in the Abdulrahman case: They have failed to acknowledge that they actually carried out this killing, although everybody knows it to be true.
But we have other litigation which were doing with the Center for Constitutional Rights. Its a constitutional case on behalf of the three U.S. citizens who were killed in 2011, including Abdulrahman, the 16-year-old. And thats a case in which we are raising claims under the Fourth Amendment and the Fifth Amendment, the due process clause, arguing that the government does not have the right, again, except in these extremely narrow circumstances, to carry out targeted killings without judicial review. And the governments response to that lawsuit has not been to defend their authority on the merits. Theyre not actually saying, “We have the right to do this.” They havent actually filed any of those arguments in court. Instead what theyre arguing is: This question of whether the government acted lawfully or not is a political question committed to the political branches, and the judges have no role to play, no role whatsoever to play, in assessing whether the killing of an American citizen was lawful or not.
if you look at the memo, the briefing paper that was released yesterday, theres no geographic line. And you can remember how most of the country reacted when President Bush declared the authority to hold American citizens detained in the United States: Most of the country said, “You cant be serious. Youre going to treat the United States as part of the battlefield. Youre going to detain American citizens inside the United States as enemy combatants.” And now, the Obama administrationyou know, if you accept the memo on its face, you accept the briefing paper on its face, the Obama administration is making, in some ways, a greater claim of authority. Theyre arguing that the authority to kill American citizens has no geographic limit.
a new report thats revealed a detailed look at global involvement in the CIAs secret program of prisons, rendition and torture since 9/11. The initiative says 54 countries aided the CIA until President Obama stopped the program in 2009. Its called “Globalizing Torture,” also reveals at least 136 people were held by the CIA during those yearsthe largest tally to date.
I think its the most comprehensive report thus far about the people who are held by the CIA and what happened to them, and also the complicity of other countries in the CIAs program. Some of those other countries have begun to grapple with the question of accountability for their role in that program. As you know, the United States has not. The Obama administration has interfered with civil suits that seek to hold officials accountable for their role in that program, and it has failed to bring criminal charges against senior officials who supervised the program. But I think its a very important thing, what the Open Society Justice Initiative has done here, and I think that it will create pressure not just on other countries to begin to grapple with that question of accountability, but on the United States, as well.
one of the really troubling things about the document is the way that it defines this phrase, “Capture is infeasible,” because once you see that phrase in the first paragraph, “Capture is infeasible,” it sounds like a real restriction on the governments authority to use lethal force. But halfway through the memo, they redefine the phrase, “Capture is infeasible,” to mean something more like: “Capture is inconvenient.” And once you redefine the phrase in that way, then youve opened up the possibility of the use of lethal force much more broadly. And again, it does raise the question of whether they are using the use of lethal force as a substitute for detention, and even if theyre not, whether that possibility is open for another administration in the future.
– source democracynow.org