Congress, Constitutional Law, International, Politics, Society

DOJ Memo: Obama Administration Claims Broader Authority To Kill Americans

PresObamaWe have previously discussed the President’s “kill list” policy under which Obama claims the right to be able to kill any American based on his sole judgment and discretion. A confidential Justice Department memo now sheds more light on that policy and states a broader basis for such killings than previously suggested by the Administration. It is also not clear why this memo was kept secret by the Administration since it deals only with legal interpretations — not classified operational information.

Last March, Attorney General Eric Holder appeared at the Northwestern University Law School to present the new policy, claiming that the President did not need any conviction or even a charge to kill an American citizen. While he stressed that this was based on a rationale that the citizen posed “an imminent threat of violent attack,” I noted at the time that any such limitation was purely discretionary under the theory of executive power being advanced by the Obama Administration.

It now appears that the Administration lawyers reached the same conclusion. The memo notes that there does not need to be an imminent attack in terms of an unfolding plan or operation: “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.”

In plain language, that means that the President considers the citizens to be a threat in the future. Moreover, the memo allows killings when an attempt to capture the person would pose an “undue risk” to U.S. personnel. That undue risk is left undefined.

The memo, 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,” is a tour de force of an imperial presidency. It was provided previously to both Democratic and Republican members of Congress on the Senate Intelligence and Judiciary committees. However, those members did nothing to stop such an extreme assertion of unilateral presidential power or to alert the public that the president was claiming far greater latitude in ordering the killings of citizens.

In an Orwellian twist, the memo insists “A lawful killing in self-defense is not an assassination.” It is more like a very pointed expression of presidential displeasure.

Here is the memo: 020413_DOJ_White_Paper

Source: NBC

395 thoughts on “DOJ Memo: Obama Administration Claims Broader Authority To Kill Americans”

  2. Domestic Drones

    New Documents Reveal U.S. Marshals’ Drones Experiment, Underscoring Need for Government Transparency

    By Naomi Gilens, ACLU Speech, Privacy and Technology Project

    http://www.aclu.org/blog/technology-and-liberty-national-security-criminal-law-reform/new-documents-reveal-us-marshals
    02/27/2013

    The use of surveillance drones is growing rapidly in the United States, but we know little about how the federal government employs this new technology. Now, new information obtained by the ACLU shows for the first time that the U.S. Marshals Service has experimented with using drones for domestic surveillance.

    We learned this through documents we released today, received in response to a Freedom of Information Act request. The documents are available here. (We also released a short log of drone accidents from the Federal Aviation Administration as well as accident reports and other documents from the U.S. Air Force.) This revelation comes a week after a bipartisan bill to protect Americans’ privacy from domestic drones was introduced in the House.

    Although the Marshals Service told us it found 30 pages about its drones program in response to our FOIA request, it turned over only two of those pages—and even they were heavily redacted.

    Here’s what we know from the two short paragraphs of text we were able to see. Under a header entitled “Unmanned Aerial Vehicle, Man-Portable (UAV) Program,” an agency document overview begins:

    USMS Technical Operations Group’s UAV Program provides a highly portable, rapidly deployable overhead collection device that will provide a multi-role surveillance platform to assist in [redacted] detection of targets.

    Another document reads:

    This developmental program is designed to provide [redacted] in support of TOG [presumably the agency’s Technical Operations Group] investigations and operations. This surveillance solution can be deployed during [multiple redactions] to support ongoing tactical operations.

    These heavily redacted documents reveal almost no information about the nature of the Marshals’ drone program. However, the Marshals Service explained to the Los Angeles Times that they tested two small drones in 2004 and 2005. The experimental program ended after both drones crashed.

    It is surprising that what seems like a small-scale experiment remained hidden from the public until our FOIA unearthed it. Even more surprising is that seven years after the program was discontinued, the Marshals still refuse to disclose almost any records about it.

    As drone use becomes more and more common, it is crucial that the government’s use of these spying machines be transparent and accountable to the American people. All too often, though, it is unclear which law enforcement agencies are using these tools, and how they are doing so.

    We should not have to guess whether our government is using these eyes in the sky to spy on us. As my colleague ACLU staff attorney Catherine Crump told me,

    Americans have the right to know if and how the government is using drones to spy on them. Drones are too invasive a tool for it to be unclear when the public will be subjected to them. The government needs to respect Americans’ privacy while using this invasive technology, and the laws on the books need to be brought up to date to ensure that America does not turn into a drone surveillance state.

    All over the U.S., states and localities are trying to figure out through the democratic political process exactly what kind of protections we should put in place in light of the growing use of what Time Magazine called “the most powerful surveillance tool ever devised, on- or offline.” These debates are essential to a healthy democracy, and are heartening to see. However, this production from the Marshals Service underscores the need for a federal law to ensure that the government’s use of drones remains open and transparent.

    A number of federal lawmakers are already pushing to bring the law up to date. Representatives Ted Poe (R-Texas) and Zoe Lofgren (D-Calif.) recently introduced the first bipartisan legislation to regulate the government’s use of drones. The proposed legislation, which is supported by the ACLU, would enact judicial and Congressional oversight mechanisms, require government agencies to register all drones and get a warrant when using them for surveillance (except in emergency situations), and prohibit the domestic use of armed drones.

    We believe this bill—and hopefully a future companion bill in the Senate—will provide a strong foundation for future legislation protecting our privacy rights in the face of proliferating drone surveillance and government secrecy.

  6. http://www.latimes.com/business/money/la-fi-mo-predator-uae-20130222,0,3067564.story

    “United Arab Emirates reaches deal to buy unarmed Predator drones”

    “The deal has drawn scrutiny from critics who worry about the technology falling into terrorists’ hands or being used by governments against their own citizens.

    Under the proposed sale, revealed this week at a defense conference in Abu Dhabi and confirmed Friday, General Atomics, of Poway, Calif., will sell an undisclosed number of the robotic aircraft to the UAE armed forces for $197 million.

    The UAE, notably the sheikdom of Dubai, has been a crossroads for banking, finance and technology as the nation emerged as an economic hub for the Arab world. It has only recently begun to tighten regulations to limit money laundering and other shady financial endeavors that attracted Islamic militants, drug smugglers and other traffickers.

    Over the last year, UAE security officials — often criticized for surveillance tactics — have also cracked down on internal dissent following the political upheavals of the Arab Spring.

    The sale still would need to win approval from Congress. Currently, there are federal restrictions on selling large drones. But General Atomics, which builds the MQ-1 Predator and MQ-9 Reaper hunter-killer drones used by the Air Force and CIA, has designed a new unarmed version of the Predator that would qualify for export.

    The remotely piloted aircraft, called the Predator XP, could be used for intelligence, surveillance, and reconnaissance missions, but will not be outfitted for weapons capabilities. The company did not say what – if any — cameras and sensor packages would be included.

    But the drone has the same physical dimensions, altitude, speed, and long endurance — up to 35 hours — as the original unarmed version of the Predator drone first flown by the U.S. Air Force in 1995.

    General Atomics redesigned the Predator — XP stands for “export” — with the sole purpose of selling it to a broader customer base, including countries in the Middle East and North Africa.

    The company said it received an export license from the State Department to share technical information about the drone, but finalizing a deal is subject to other regulatory approval. Neither the State Department nor Sen. Robert Menendez (D-N.J.), the chairman of the Senate Foreign Relations Committee, would comment on the proposed sale.

    General Atomics says a number of other regional governments have also expressed interest in the Predator XP. The company said the Predator XP cannot be weaponized, but some observers have concerns about turning over drone technology that could be replicated to a missile-carrying system.”

    william.hennigan@latimes.com

  10. “Obama officials refuse to say if assassination power extends to US soil”,

    “The administration’s extreme secrecy is beginning to lead Senators to impede John Brennan’s nomination to lead the CIA”

    http://www.guardian.co.uk/commentisfree/2013/feb/22/obama-brennan-paul-assassinations-filibuster

    Excerpt:

    “The “global war” paradigm that has been normalized under two successive administrations all but compels that, as a legal matter, this power extend everywhere and to everyone. The only possible limitations are international law and the “due process” clause of the Constitution – and, in my view, that clearly bars presidential executions of US citizens no matter where they are as well as foreign nationals on US soil. But otherwise, once you accept the “global-battlefield” framework, then the scope of this presidential assassination power is limitless (this is to say nothing of how vague the standards in the DOJ “white paper” are when it comes to things like “imminence” and “feasibility of capture”, as the New Yorker’s Amy Davidson pointed out this week when suggesting that the DOJ white paper may authorize a president to kill US journalists who are preparing to write about leaks of national security secrets).

    That this is even an issue – that this question even has to be asked and the president can so easily get away with refusing to answer – is a potent indicator of how quickly and easily even the most tyrannical powers become normalized. About all of this, Esquire’s Charles Pierce yesterday put it perfectly:

    “This is why the argument many liberals are making – that the drone program is acceptable both morally and as a matter of practical politics because of the faith you have in the guy who happens to be presiding over it at the moment — is criminally naive, intellectually empty, and as false as blue money to the future. The powers we have allowed to leach away from their constitutional points of origin into that office have created in the presidency a foul strain of outlawry that (worse) is now seen as the proper order of things.

    “If that is the case, and I believe it is, then the very nature of the presidency of the United States at its core has become the vehicle for permanently unlawful behavior. Every four years, we elect a new criminal because that’s become the precise job description.”

    That language may sound extreme. But it’s actually mild when set next to the powers that the current president not only claims but has used. The fact that he does it all in secret – insists that even the “law” that authorizes him to do it cannot be seen by the public – is precisely why Pierce is so right when he says that “the very nature of the presidency of the United States at its core has become the vehicle for permanently unlawful behavior”. To allow a political leader to claim those kinds of of powers, and to exercise them in secret, guarantee chronic criminality.”

  11. Drone ‘Nightmare Scenario’ Now Has A Name: ARGUS

    By Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy and Technology Project at 9:06am

    http://www.aclu.org/blog/technology-and-liberty-free-speech-national-security/drone-nightmare-scenario-now-has-physical

    Excerpts:

    The PBS series NOVA, “Rise of the Drones,” recently aired a segment detailing the capabilities of a powerful aerial surveillance system known as ARGUS-IS, which is basically a super-high, 1.8 gigapixel resolution camera that can be mounted on a drone. As demonstrated in this clip, the system is capable of high-resolution monitoring and recording of an entire city. (The clip was written about in DefenseTech and in Slate.)

    In the clip, the developer explains how the technology (which he also refers to with the apt name “Wide Area Persistent Stare”) is “equivalent to having up to a hundred Predators look at an area the size of a medium-sized city at once.”

    …

    NOVA was not allowed to show images of the ARGUS censor, and stated that part of the program remained classified, including whether it has yet been deployed. (Though, we know it has been deployed domestically at least once, over Virginia as shown on NOVA. I’m going to assume it has not been deployed domestically in any more routine manner.) But, it is good that the Air Force allowed NOVA to see its capabilities. I’d like to think it’s because as Americans, Air Force officials have respect for our country’s values and democratic processes and don’t want to let such powerful and potentially privacy-invasive tools to be created in secret. It could also be, however, because the Air Force needs private-sector help in figuring out how to analyze the oceans of data the device can collect (5,000 hours of high-def video per day).

    Either way, it’s important for the public to be aware of the kinds of technologies that are out there so that it can better decide how drones should be regulated.

  12. Pingback: Random Thoughts » The state of our union.

  14. “Obama DOJ again refuses to tell a court whether CIA drone program even exists”

    “As the nation spent the week debating the CIA assassination program, Obama lawyers exploit secrecy to shield it from all review”

    by Glenn Greenwald
    Thursday 14 February 2013 08.50 EST

    Excerpts:

    “It is not news that the US government systematically abuses its secrecy powers to shield its actions from public scrutiny, democratic accountability, and judicial review. But sometimes that abuse is so extreme, so glaring, that it is worth taking note of, as it reveals its purported concern over national security to be a complete sham.

    Such is the case with the Obama DOJ’s behavior in the lawsuit brought by the ACLU against the CIA to compel a response to the ACLU’s Freedom of Information Act (FOIA) request about Obama’s CIA assassination program. That FOIA request seeks nothing sensitive, but rather only the most basic and benign information about the “targeted killing” program: such as “the putative legal basis for carrying out targeted killings; any restrictions on those who may be targeted; any civilian casualties; any geographic limits on the program; the number of targeted killings that the agency has carried out.”

    …

    Just think about that: Obama and his aides routinely boast about the drone program to make the president look like daddy-protector tough guy. Someone in the administration just disclosed last week to NBC News a “white paper” sent by the Obama DOJ to Congress purporting to legally justify the CIA assassination program. Everyone knows and is now debating whether the CIA should be doing this.

    But what is missing from the debate is the most basic information about what the CIA does and even their claimed legal justification for doing it. The Obama administration still refuses to publicly disclose the OLC memo that purported to authorize it (they agreed two weeks ago to make it available only to certain members of Congress without stuff present, thus still maintaining “secret law”). They conceal all of this – and thus prevent basic democratic accountability – based on the indescribably cynical and inane pretense that they cannot even confirm or deny the existence of the CIA program without seriously jeopardizing national security.

    This is a complete perversion of their secrecy powers. Even among the DC cliques that exist to defend US government behavior, one would be hard-pressed to find anyone willing to defend what is being done here. The Obama administration runs around telling journalists how great and precise and devastating the CIA’s assassination program is, then tells courts that no disclosure is permissible because they cannot safely confirm in court that the program even exists.

    Such flagrant abuse of secrecy power is at once Orwellian and tyrannical. It has the effect of blocking even the most minimal transparency on the most consequential question: the government’s claimed authority to execute anyone it wants without charges, far from a battlefield, in total secrecy. It yet again demonstrates that excessive government secrecy is an infinitely greater threat than unauthorized disclosures. This is why we need radical transparency projects and aggressive whistle-blowers. And it’s why nobody should respect the secrecy claims of the Obama administration or believe the assertions they make about national security. What else do they need to do to prove how untrustworthy those claims are?
    Use on US soil

    Last week, Esquire’s Charles Pierce noted that Brennan, at his confirmation hearing, refused to say whether the US government has the power to target US citizens for execution without charges even on US soil. Yesterday, GOP Sen. Rand Paul – who used his State of the Union response to denounce “secret lists of American citizens who can be killed without trial” – said that he would block Brennan’s confirmation “until Brennan declares whether he believes the United States has the authority to use unmanned drones to conduct targeting killings of Americans — in the United States.”

    To understand just how radical the Obama administration is when it comes to secrecy, just think about the fact that it refuses to answer even that question.”

  15. Drones, Kill Lists and Machiavelli

    Published: February 12, 2013

    To the Editor:

    “I am deeply, deeply disturbed at the suggestion in “A Court to Vet Kill Lists” (news analysis, front page, Feb. 9) that possible judicial review of President Obama’s decisions to approve the targeted killing of suspected terrorists might be limited to the killings of American citizens.

    Do the United States and its people really want to tell those of us who live in the rest of the world that our lives are not of the same value as yours? That President Obama can sign off on a decision to kill us with less worry about judicial scrutiny than if the target is an American? Would your Supreme Court really want to tell humankind that we, like the slave Dred Scott in the 19th century, are not as human as you are? I cannot believe it.

    I used to say of apartheid that it dehumanized its perpetrators as much as, if not more than, its victims. Your response as a society to Osama bin Laden and his followers threatens to undermine your moral standards and your humanity.”

    DESMOND M. TUTU
    Aboard MV Explorer, near Hong Kong Feb. 11, 2013

    The writer, winner of the 1984 Nobel Peace Prize, is archbishop emeritus of Cape Town.

  16. Sen. Paul threatens ‘hold’ on John Brennan for CIA

    http://www.usatoday.com/story/news/politics/2013/02/13/rand-paul-threatens-hold-brennan-cia-drones/1916357/?csp=breakingnews

    Excerpt:

    WASHINGTON — Kentucky Sen. Rand Paul told USA TODAY Wednesday that he is prepared to put a “hold” on John Brennan’s nomination to head the CIA, and to filibuster it if necessary, until the administration answers his questions about the use of drones in the United States.

    Paul said he would do “whatever it takes” to delay Brennan’s confirmation until he directly answers whether American citizens legally can be killed by drone strikes within the United States.

    The Kentucky Republican accused Brennan of obfuscating on the issue when it was raised at confirmation hearings before the Senate Intelligence Committee last week. Rand on Sunday said he wouldn’t vote for Brennan until the questions were answered, but he raised the stakes in an interview with “Capital Download,” a weekly video series on usatoday.com.

    “He was asked a very specific question. . . ‘Can you kill an American with a drone in America?’ And he refused to answer the question,” Paul said. “I find that very, very worrisome (and) we’re going to do whatever it takes to get the answer. Can the government, does the government, the president himself, claim the power to unilaterally kill an American in America without a trial?”

  17. The Hubris of the Drones

    Wednesday, 13 February 2013 09:16

    By Bill Moyers and Michael Winship, Moyers & Company | Op-Ed

    http://www.truth-out.org/opinion/item/14525-the-hubris-of-the-drones

    Article:

    Last week, The New York Times published a chilling account of how indiscriminate killing in war remains bad policy even today. This time, it’s done not by young GIs in the field but by anonymous puppeteers guiding drones that hover and attack by remote control against targets thousands of miles away, often killing the innocent and driving their enraged and grieving families and friends straight into the arms of the very terrorists we’re trying to eradicate.

    The Times told of a Muslim cleric in Yemen named Salem Ahmed bin Ali Jaber, standing in a village mosque denouncing al Qaeda. It was a brave thing to do — a respected tribal figure, arguing against terrorism. But two days later, when he and a police officer cousin agreed to meet with three al Qaeda members to continue the argument, all five men — friend and foe — were incinerated by an American drone attack. The killings infuriated the village and prompted rumors of an upwelling of support in the town for al Qaeda, because, the Times reported, “such a move is seen as the only way to retaliate against the United States.”

    Our blind faith in technology combined with a false sense of infallible righteousness continues unabated. Reuters correspondent David Rohde recently wrote:

    “The Obama administration’s covert drone program is on the wrong side of history. With each strike, Washington presents itself as an opponent of the rule of law, not a supporter. Not surprisingly, a foreign power killing people with no public discussion, or review of who died and why, promotes anger among Pakistanis, Yemenis and many others.”

    Rohde has firsthand knowledge of what a drone strike can do. He was kidnapped by the Taliban in 2008 and held for seven months. During his captivity, a drone struck nearby. “It was so close that shrapnel and mud showered down into the courtyard,” he told the BBC last year. “Just the force and size of the explosion amazed me. It comes with no warning and tremendous force… There’s sense that your sovereignty is being violated… It’s a serious military action. It is not this light precise pinprick that many Americans believe.”
    “It’s a serious military action… not this light precise pinprick that many Americans believe.”

    A special report from the Council on Foreign Relations last month, “Reforming U.S. Drone Strike Policies,” quotes “a former senior military official” saying, “Drone strikes are just a signal of arrogance that will boomerang against America.” The report notes that, “The current trajectory of U.S. drone strike policies is unsustainable… without any meaningful checks — imposed by domestic or international political pressure — or sustained oversight from other branches of government, U.S. drone strikes create a moral hazard because of the negligible risks from such strikes and the unprecedented disconnect between American officials and personnel and the actual effects on the ground.”

    Negligible? Such hubris brought us to grief in Vietnam and Iraq and may do so again with President Obama’s cold-blooded use of drones and his indifference to so-called “collateral damage,” grossly referred to by some in the military as “bug splat,” and otherwise known as innocent bystanders.

    Yet the ease with which drones are employed and the lower risk to our own forces makes the unmanned aircraft increasingly appealing to the military and the CIA. We’re using drones more and more; some 350 strikes since President Obama took office, seven times the number that were authorized by George W. Bush. And there’s a whole new generation of the weapons on the way — deadlier and with greater endurance.

    According to the CFR report, “Of the estimated three thousand people killed by drones… the vast majority were neither al-Qaeda nor Taliban leaders. Instead, most were low-level, anonymous suspected militants who were predominantly engaged in insurgent or terrorist operations against their governments, rather than in active international terrorist plots.”

    By the standards of slaughter in Vietnam, the deaths caused by drones are hardly a bleep on the consciousness of official Washington. But we have to wonder if each innocent killed — a young boy gathering wood at dawn, unsuspecting of his imminent annihilation; a student who picked up the wrong hitchhikers; that tribal elder arguing against fanatics — doesn’t give rise to second thoughts by those judges who prematurely handed our president the Nobel Prize for Peace. Better they had kept it on the shelf in hopeful waiting, untarnished.”

  19. The Shooting Gallery: Obama and the Vanishing Point of Democracy
    Tuesday

    12 February 2013 10:27

    By Henry A Giroux, Truthout | Op-Ed

    http://www.truth-out.org/opinion/item/14483-the-shooting-gallery-obama-and-the-vanishing-point-of-democracy

    Excerpt:

    “Frank Rich has suggested that the American public’s indifference to national security issues is partly due to the massive hardships and suffering many Americans have endured as a result of the Great Recession.17 This may be true but what it overlooks are the ever-growing anti-democratic forces, or what might be called authoritarianism with a soft edge, which haunt American politics and the modern ideal of democracy. The civic imagination is in retreat in American society and the public spheres that make it possible are disappearing.

    Clearly, political and popular culture are in dire need of being condemned, interrogated, unlearned and transformed through modes of critical education and public debate, if American democracy is to survive as more than a distant and unfulfilled promise. Americans have lived too long with governments that use power to promote violent acts, conveniently hiding their guilt behind a notion of secrecy and silence that selectively punishes those considered expendable – in its prisons, public schools, foster care institutions and urban slums. As Tom Engelhardt points out, what has not sunk in for most Americans, including the mainstream media, is that the United States has become a lockdown state, or more appropriately an authoritarian state, as evidenced by the fact that the Obama administration can:

    torture at will; imprison at will, indefinitely and without trial; assassinate at will (including American citizens); kidnap at will anywhere in the world and ‘render’ the captive in the hands of allied torturers; turn any mundane government document (at least 92 million of them in 2011 alone) into a classified object and so help spread a penumbra of secrecy over the workings of the American government; surveil Americans in ways never before attempted (and only ‘legalized’ by Congress after the fact, the way you might back-date a check); make war perpetually on their own say-so; and transform whistleblowing – that is, revealing anything about the inner workings of the lockdown state to other Americans – into the only prosecutable crime that anyone in the complex can commit18

    The fateful consolidation of an authoritarian state reaches its tipping point when a government engages in these practices along with the claim that it can kill its own citizens anywhere in the world without recourse to due process or any moral qualms. Such policies point to more than an ethically empty space and the atrophy of democratic modes of governance, politics and culture, they point inexorably to the dark caverns of a society that has embraced the foundations of authoritarianism. Democracy has been hijacked in the United States by right-wing extremists, the financial elite, the military-industrial-academic complex and a demagogic cultural apparatus that has created a state of emergency that appears to “lack the kind of collective sense of urgency that would prompt us to fundamentally question our own ways of thinking and acting, and form new spaces of operation.”19 All of us are now in the shooting gallery and we are all potentially the targets.”

Comments are closed.