We 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
Gene H:
“However, that being said, killing a citizen without judicial due process is simply counter to the wording of the Constitution. It violates their civil rights and it violates the Separation of Powers Doctrine between Executive and Judiciary”
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Let’s look at a case of domestic terrorism from our history. How would we apply due process protections to American citizens who take up arms against American soldiers on a traditional battlefield?
Elements of Gen. James Longstreet’s First Corps are meticulously advancing from the tree line uphill through the meadow of Bliss Farm approaching the Emmitsburg Road. Maj. Gen. Winfield Scott Hancock ( a personal hero of mine in the battle along with Brig. Gen.John Buford. I’m a big Longstreet fan, too, as you can probably tell) sitting astride his horse near the Copse of Trees and in command of the U.S. Second Corps has a constitutional decision to make. Re-institute the artillery barrage or afford protections due the Confederates under the U.S. Constitution. How should he decide?
It may seem an reductio ad absurdum example, but is it really in the context of modern warfare and the capabilities of homegrown terrorists?
Can we extrapolate from there?
Congress Considers Putting Limits On Drone Strikes
by The Associated Press
February 05, 2013 6:07 PM
http://www.npr.org/templates/story/story.php?storyId=171148221
WASHINGTON (AP) — Uncomfortable with the Obama administration’s use of deadly drones, a growing number in Congress is looking to limit America’s authority to kill suspected terrorists, even U.S. citizens. The Democratic-led outcry was emboldened by the revelation in a newly surfaced Justice Department memo that shows drones can strike against a wider range of threats, with less evidence, than previously believed.
The drone program, which has been used from Pakistan across the Middle East and into North Africa to find and kill an unknown number of suspected terrorists, is expected to be a top topic of debate when the Senate Intelligence Committee grills John Brennan, the White House’s pick for CIA chief, at a hearing Thursday.
The White House on Tuesday defended its lethal drone program by citing the very laws that some in Congress once believed were appropriate in the years immediately after the Sept. 11 attacks but now think may be too broad.
“It has to be in the agenda of this Congress to reconsider the scope of action of drones and use of deadly force by the United States around the world because the original authorization of use of force, I think, is being strained to its limits,” Sen. Chris Coons, D-Del., said in a recent interview.
Rep. Steny Hoyer of Maryland, the No. 2 Democrat in the House, said Tuesday that “it deserves a serious look at how we make the decisions in government to take out, kill, eliminate, whatever word you want to use, not just American citizens but other citizens as well.”
Hoyer added: “We ought to carefully review our policies as a country.”
The Senate Foreign Relations Committee likely will hold hearings on U.S. drone policy, an aide said Tuesday, and Chairman Robert Menendez, D-N.J., and the panel’s top Republican, Sen. Bob Corker, both have quietly expressed concerns about the deadly operations. And earlier this week, a group of 11 Democratic and Republican senators urged President Barack Obama to release a classified Justice Department legal opinion justifying when U.S. counterterror missions, including drone strikes, can be used to kill American citizens abroad.
Without those documents, it’s impossible for Congress and the public to decide “whether this authority has been properly defined, and whether the president’s power to deliberately kill Americans is subject to appropriate limitations and safeguards,” the senators wrote.
It was a repeated request after receiving last June an unclassified Justice Department memo, which fell short of giving the senators all the information they requested.
First detailed publicly by NBC News late Monday, the memo for the first time outlines the Obama administration’s decision to kill al-Qaida terror suspects without any evidence that specific and imminent plots are being planned against the United States.
“The threat posed by al-Qaida and its associated forces demands a broader concept of imminence in judging when a person continually planning terror attacks presents an imminent threat,” concluded the document.
The memo was immediately decried by civil liberties groups as “flawed” and “profoundly disturbing” — especially in light of 2011 U.S. drone strikes in Yemen that killed three American citizens: Anwar al-Awlaki, his 16-year-old-son and Samir Khan. Al-Awlaki was linked to the planning and execution of several attacks targeting U.S. and Western interests, including the attempt to down a Detroit-bound airliner in 2009 and the plot to bomb cargo planes in 2010. His son was killed in a separate strike on a suspected al-Qaida den. Khan was an al-Qaida propagandist.
White House spokesman Jay Carney, echoing comments Brennan made in a speech last April, called the strikes “legal, ethical and wise” and said they are covered by a law that Congress approved allowing the use of military force against al-Qaida.
“And certainly, under that authority, the president acts in the United States’ interest to protect the United States and its citizens from al-Qaida,” Carney said Tuesday.
“It is a matter of fact that Congress authorized the use of military force against al-Qaida,” Carney said. “It is a matter of fact that al-Qaida is in a state of war against us and that senior leaders, operational leaders of al-Qaida are continually plotting to attack the United States, plotting to kill American citizens as they did most horrifically on September 11th of 2001.”
Three days after 9/11, Congress approved a law authorizing the military to use “all necessary and appropriate force” against al-Qaida and other groups believed to be helping or harboring the global terror network, including the use of drone strikes. In the decade since the attacks, U.S. intelligence officials say, al-Qaida has splintered into a number of affiliates and allied sympathizers. That means the current laws could allow military force against thousands of extremists across the Mideast and North Africa who have limited or no ability to strike the United States.
Currently, both the CIA and the U.S. military are authorized to remotely pilot unmanned, missile-carrying drones against terror suspects. It’s unknown exactly how many strikes have been carried out, but experts say that drone attacks in Pakistan are conducted by the CIA, while those in Yemen and Somalia, for example, are by military forces.
The drones have strained diplomacy between the U.S. and the nations where the strikes are carried out, as civilians have been killed alongside the targeted terrorists, even though most nations have given Washington at least tacit agreement to carry out the attacks.
A Middle Eastern diplomat said that in Yemen, for example, an uptick of U.S. drone strikes last month have killed dozens of people and upset the local public, leading some leaders in Sanaa to reconsider how often they should be used. The diplomat spoke Tuesday on condition of anonymity to avoid political retribution from the Obama administration.
The Pentagon is also considering basing surveillance drones in Mali to monitor on burgeoning extremist violence in North Africa, but it’s not clear if they will be armed. Scaling back the use of drones also would hamper war plans in Afghanistan after combat troops are scheduled to withdraw in 2014. Drones represent a major thrust of the post-troops campaign to help the limited number of special forces units that remain there keep the Taliban from regrouping.
Brennan, who currently serves as the White House counterterrorism czar, has signaled he is prepared to turn the CIA from carrying out lethal drone strikes and hand over those missions to the U.S. military. Sen. Ron Wyden, a senior Democratic member of the Senate Intelligence panel, declared himself unsatisfied Tuesday with the Justice memo and said he will press Brennan at the confirmation hearing about the administration’s current policy.
The drone debate puts Obama — himself a former civil rights lawyer — in the awkward position of carrying out lethal attacks in secret and bucking his political allies in the Democratic Party. Democratic lawmakers were incensed by the refusal of the Republican administration of President George W. Bush to hand over classified Justice Department opinions justifying the use of waterboarding, the harsh interrogation tactic that critics call a form of torture. Obama repudiated those methods — and released those opinions — when he took office in 2009. The use of drones proved to have no political cost to Obama in his re-election campaign.
House Intelligence Chairman Mike Rogers, R-Mich., defended the use of deadly drones, calling it “a lawful act of national self-defense.”
“When an individual has joined al-Qaida — the organization responsible for the murder of thousands of Americans — and actively plots future attacks against U.S. citizens, soldiers, and interests around the world, the U.S. government has both the authority and the obligation to defend the country against that threat,” Rogers said in a statement.
But Rep. Keith Ellison, said the new Justice memo could spur lawmakers into taking a fresh look at deadly drones, and what he called an outdated policy guiding them.
“We are sort of running on the steam that we acquired right after our country was attacked in the most horrific act of terror in U.S. history,” said Ellison, D-Minn. “We have learned much since 9/11, and now it’s time to take a more sober look at where we should be with use of force.”
“We need to stop the inflammatory rhetoric and decide how we can deal constitutionally yet effectively with American citizens who are engaged in treasonous acts and who are beyond the reach of traditional law enforcement. This is not an academic debate. It has real constitutional and national security dimensions.”
And it’s a question that can also be validly asked about both the previous and current administrations that goes directly to the rule of law. Bush and Cheney arguably committed treason by protecting the Saudis and starting a war for their own personal profits in addition to violation the Constitution and Obama has certainly done his part to violate the Constitution as well – whether that amounts to treason or simply high crimes sufficient for impeachment is debatable. That’s not “inflammatory rhetoric” but a valid legal question. The President is not above the law nor are lackeys doing his bidding.
As for these American citizens who are engaged in treasonous acts and who are beyond the reach of traditional law enforcement?
That’s what SEAL teams are for as well as black bag operations. Being able to shoot someone from a mile away is the scalpel approach. Using drones? While an advantageous technology from a tactical standpoint, they are far too indiscriminate in targeting and are turning out to be a PR and international relations nightmare that is going to bite us on the ass at some point. He’s using a hammer on a job that calls for a screwdriver at a minimum and optimally a scalpel.
However, that being said, killing a citizen without judicial due process is simply counter to the wording of the Constitution. It violates their civil rights and it violates the Separation of Powers Doctrine between Executive and Judiciary. If they are to be killed without attempts at apprehension and a trial proper they should at a minimum be tried in absentia in a FISA court. “Just because the President and his advisers said so” isn’t good enough.
We also need to be seriously worried about this in combination with the drive to bring drones to the domestic theater. No good will come of that other than to make us more of a surveillance state than we’ve already become. Not all slippery slope arguments are invalid.
The unitary Executive is an anathema to the Constitution and not confronting the government on this problem now will lead to Constitutional crisis or worse down the road. And maybe not that far down the road.
USA! USA! USA! …. R USA….R USSA…. RUSSIA…. RUSSIA! RUSSIA! RUSSIA!
Dear President Obama, My 9th grade algebra teacher annoyed me a great deal so I am sure it was a plot against the US for Al-Quaida (the fact that this was in 1974 just shows how far they will go).
DonS,
What Mike A. and mespo said.
DonS:
I think you’ve been pretty restrained.
DonS:
I find your comments lucid and well in keeping with most anyone’s civility standards. You occasionally wade into the area of hyperbolic rhetoric but don’t we all?
AP, yeah I’ve been a bit too intense on a couple of sites myself including Greenwald on Brooklyn College; NYT on budget cutting and the military budget; and NYT “At War” blog on this sniper guy Kyle fiasco. (as well as FDL on same), I think the Times shitcanned a couple of my ‘contributions’ for some reason. They never tell you, just keep you guessing. I hadn’t thought I crossed any lines. I wrote to some email address but haven’t heard back. Oh yeah, the Guardian scrubbed one which I thought was perfectly ok (and it was garnering lot’s of thumbs up before it disappeared) — I wrote to Glenn, he responded, that helped, though he has nothing to do with moderating and says he’s tried to push for more freedom in comments.
Unfortunately my physical condition is still limiting the kind of activity I usually do, so it’s all to easy to slide into some rant or other at the computer, and I’ve had some doozies. Interesting to observe how that works in me.
By the way, Gene, I agree the AUMF is problematic on several fronts not the least of which is the stated object of the lethal force which is those “he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” It would be hard to argue that drone attacks now seek out those who ” planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” However the purpose of the AUMF “prevent any future acts of
international terrorism against the United States by such nations,
organizations, or persons,” could arguable be enabling language to close the gap.
The USA is a democracy the envy of the world – right?
So we can do something about this, to stop this – right?
Oh sorry – actually we can’t really.
Gene H:
I think the Vanderbilt Note does an exceptional job of pointing out the problems you mention and providing solutions. The issue is undecided in the courts and some clear guidance needs to be established by the courts who can rule on the issue of imminence. As the Note correctly points out such an inquiry is not a political question. We need to stop the inflammatory rhetoric and decide how we can deal constitutionally yet effectively with American citizens who are engaged in treasonous acts and who are beyond the reach of traditional law enforcement. This is not an academic debate. It has real constitutional and national security dimensions.
http://balkin.blogspot.com/ link to what I posted lee.
“imminent threat” I get it, under the concept of ‘we are at war’ an imminent threat is a potential danger to you, and I, and potentially all of us but without war (and I agree it seems we are perpetually at war whether declared or not)and maybe even with, this concept presupposes guilt, an antiAmerican concept, or at least I used to think so.
couple of edits:
“MOST closely tie the actors to a state that state would be SA which”
“Can anyone with a straight face actually posit that there WILL be a time in the foreseeable future when the US will not be in a ‘state of war’”
SwM and there’s that pesky innocent until proven guilty.
DonS,
I took a lot of international comparative law including some of the law of war and I have to agree with you that it has been sorrily abused by the Executive. I would say as if not more abused than the liberties they’ve taken in circumventing the Constitution.
Mark, thanks for the repost.
I have no doubt that Obama, or any like minded ‘commander-in-chief ‘would have no problem whatsoever (along with the oh so-convenient OLC in checking off all the appropriate boxes to fall within the lovely criteria you enumerate. To my mind that really doesn’t change a thing as far as an illegitimate grasp of executive power. As for boy Bush’ declaration of war on those who committed 911, that failed from word one in many respects, particularly since they were primarily non-state actors, and if one were to mostly closely tie the actors to a state that state would be SA which, contrary to all logic is our staunch ally.
Can anyone with a straight face actually posit that there will not be a time in the foreseeable future when the US will not be in a ‘state of war’, though not really a declared-by-congress war, with just about anyone we choose? We have shown zero regard for world public opinion; the US peace movement is moribund; and the defense industry needs continued places to dispose of it ordinance.
This is, as they say, a slam dunk.
I’m glad you feel comfortable that we are operating within constitutional bounds — which bounds are seemingly written by the exec branch out of whole cloth whenever they need tweaking. I don’t.
To your point on reading up on international law and the law of war — an actual course I took in law school — it’s all very praiseworthy and indeed in the right direction. And, of course, has been ripped to shreds by the US govt which has acted little better than some rogue insurgents.
Legal Justification for Drone Attacks on Citizens
Gerard N. Magliocca
I read the DOJ’s White Paper on the legal rationale for killing American citizens who are alleged senior Al-Queda operatives overseas with great interest. While I think that the memorandum is well-reasoned, I do not agree with the legal “trigger” that the DOJ identifies.
The White Paper says that a citizen is eligible for death-by-drone when “an informed, high-level, official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States.” In my opinion, this threshold is too low. First, who counts as a high-level official? The CIA Director? The Ambassador to Pakistan? An analyst at Langley? This is not clear at all. Second, suppose that the majority view in the intelligence community is that someone does not pose an imminent threat. The standard for death, I gather, is met so long as ONE informed, high-level person thinks that a suspect poses an imminent threat. I submit that the President can always find one “senior-enough” person in his Administration with that view, so in reality the DOJ standard just gives the White House carte blanche.
Personally, I would prefer that Congress create a statutory regime for such decisions that would require the National Security Council to sign off on each of these citizen attacks before the President can proceed. But until then, the President is, I think, acting within his constitutional authority to conduct such attacks. Balkinization
The problem Mark is that the AUMF is an overreaching overbroad grant that violates the Separation of Powers Doctrine in the first place. It wasn’t meant to be a grant to circumvent the Bill of Rights though, but that is precisely how it is being used.
“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.”
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Not sure how Orwellian this statement is since it is an accurate statement of international law. I urge everyone to read Professor Gary Solis’ book, The Law of Armed Conflict in which this topic is discussed in detail. This is not some willy nilly decision by the President but involves a defined procedure as to when a person represents an imminent threat. Rafflaw and I have discussed the issue on another thread and it bears repeating here:
rafflaw:
“I agree with much of what you are suggesting, but how do you reconcile the ability to kill American citizens without due process? That is a big deal for me and I support Obama.”
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I suppose the short answer is that timing and context are everything. The targeted killing of enemies in an armed conflict does not require due process as most legal scholars accept. The killing of American Anwar al Aulaqi is the most cited case for the opposition like Professor Turley but there have been a few others. al Aulaqi was a senior leader in al-Qaeda in the Arabian Peninsula.
The distinction I and many others draw is between “targeted killing” during armed conflict and “peacetime assassinations” (PTAs). PTAs are never constitutional and are a domestic and international crime. On the other hand, targeted killings during war time are not crimes internationally or domestically.
Congress authorized the President to levy war on those nations and persons who attacked us on 9-11. The language is “all necessary and proper force” against those “he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” The purpose of this authorization is to “prevent any future acts of
international terrorism against the United States by such nations,
organizations, or persons.” The President also enjoys plenary military power under Article II of the Constitution to defend the nation. (“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States….”)
To accomplish that end, the President is invested with the power to identify and attack enemies detailed in the authorization. One of the methods employed is targeted killing of persons which is not the same as indiscriminate killing. It has five specific criteria that would not apply in PTAs of Americans or anyone else. They are:
1. a on-going international or non-international armed conflict specifically authorized by a legitimate act of Congress;
2. a specific individual must be targeted and not some indiscriminate group of persons or civilians who have not taken up arms against the US or directly aided those who have;
3. The targeted person who has engaged in hostilities must be beyond the normal arrest power of the US or beyond a reasonable possibility of arrest;
4. The person authorizing the targeted killing must be a senior military officer;
5. The targeted person must be directly participating in hostilities as a continuous combat function or as a spontaneous, unorganized act.
Thus targeted killing is not some wild-eye response to terrorism by the Executive but a set protocol that is utilized in response to the authorization of Congress to levy war under it’s Article I powers.
Professor Gary Solis does a good job of explaining the law in his book, The Law of Armed Conflict.” I think it is “must reading” on the topic.
http://books.google.com/books?id=6FKf0ocxEPAC&pg=PA542&dq=%22targeted+killing%22&hl=en&ei=WJnrS4_NE8KB8gbTm_zQBA&sa=X&oi=book_result&ct=result&resnum=5&ved=0CDYQ6AEwBA#v=onepage&q=%22targeted%20killing%22&f=false
To target an American, the President must also find that such an action is necessary to prevent an concrete, imminent threat to US security.
There is a Vanderbilt Law Review note that also helps understand the issue:
http://www.vanderbilt.edu/jotl/manage/wp-content/uploads/mckelvey-pdf.pdf
You know my philosophical basis for not opposing these measures as we’ve discussed many times. I just wanted to give you the particulars of this issue’s resolution in my mind.
~Mark