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
How will the USA react when some foreign country sends a drone into the USA to kill a person (persons) that that country feels is a terrorists threat? Of course we will react with righteous indignation, attach the offending country and wonder what all the fuss is about. The USA has never acted this way before. Have we? Well this is this little thing where we condemned Germans after WW II about torture then Obama came along and covered his eyes and forgave any tortue we might have done.
Make that “newly minted ideologues.”
Gene H:
I agree it’s not a civil war in the true sense but it certainly involves American citizens taking up arms against the lawful government of the US as our 19th Century southern brothers surely did. I see no reason to treat the newly mentioned ideologues any differently. Is railing against perceived US corruption and greed and hegemony really any different than railing against perceived regional oppression and anti-slavery laws? Like you, if I believed these measures were instituted in peacetime or in wartime against those over whom the government had law enforcement access I’d be up on the ramparts with you. I just see this as a unique situation whose resolution has been endorsed by both political parties and an overwhelming majority of US citizens.
“The sharpest edges of President Obama’s counterterrorism policy, including the use of drone aircraft to kill suspected terrorists abroad and keeping open the military prison at Guantanamo Bay, have broad public support, including from the left wing of the Democratic Party.”
~Washington Post
http://articles.washingtonpost.com/2012-02-08/politics/35445649_1_drone-program-support-for-drone-strikes-drone-policy
“But a recent poll, as Benjamin noted, puts American civilian support for drone strikes at 62 percent. An earlier poll taken by the Washington Post found that a stunning 83 percent of Americans support U.S. drone policy.”
http://mondoweiss.net/2013/01/warfare-civilian-produces.html
“Finally, it should be noted that the OLC “white paper” was leaked to Isikoff, not formally released. I’m not going to be dishonest and say I’d like the policies it describes any more had it been voluntarily disclosed, but at least it would be a gesture toward transparency by the administration. We also don’t know if this is indeed the rationale the president used to justify killing the al-Awlakis; there’s evidence that it is not, and that the specific legal case was outlined in another still secret memo. The worst thing about this policy is that it’s been pursued with zero checks, balances, accountability or transparency. That, at least, should change in the months to come.” from the Joan Walsh piece linked above.
Glenn Greenwald @ggreenwald
Good @JoanWalsh piece on Obama’s due-process-free assassinations and liberals http://www.salon.com/2013/02/05/when_liberals_ignore_injustice/ …
Malisha,
You’re welcome, but in all fairness, the credit for the term goes to a mathematician friend of Slartibartfast’s.
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mespo,
All of that begs the question that we are engaged in civil war. We are not. Yet. It’s a totally different situation and far more asymmetrical. However, it is compounded by the issue – as you admit – that issue of imminence. Left nebulous the way the memo is currently written, it makes everyone and anyone a potential target based on secret evidence and no due process. Quite simply, f*ck that. As you yourself have said, the Constitution isn’t a death pact and I for one didn’t sign up to live under a dictatorship where the life of a man is left to Imperial Presidential fiat. What if the next President, or even the current President, decides that the leaders of OWS are an imminent threat? Or gun owners. Or any group that says enough with the expansion of undue unearned and unconstitutional power by the Executive (or any other) branch of government? It’s only hyperbole until some power drunk narcissist or sociopath with penis envy decides to act that way. All under self-generated cover of the unchecked Executive in the guise of the DOJ and OLC. As Mike A. notes, there is a difference between legal and immune from prosecution.
Nowhere in the Constitution is the President given the right to do an end run around civil rights except in the very explicit exception or insurrection or rebellion.
This country by the terms of the core of our legal principles is a democracy or it isn’t and if the citizens say “enough”? Who is to say what this kind of nebulous power to murder at will without consequence will result in? It’s too much power vested in one place without the consent of the people where true political power is supposed to rest in a democracy.
This policy is a recipe for eventual domestic disaster left unchecked and unchallenged as it is.
Otteray Scribe, I find this quote of yours interesting:
”If an American citizen is on a battlefield, taking up arms against the USA, then have they waived their rights.”
Is the American citizen on the battlefield one who is a US patriot who loves his country and his Constitution? And is the USA he/she is fighting, the government who has hijacked our Constitution and our country? Who has waived their rights? The people going by the Constitution for their country? Or the people who have hijacked and stomped and shredded the Constitution and the citizens which they have sworn to protect?
My understanding from the veterans I hear, is that they have gone to war to protect OUR CONSTITUTIONAL rights. The PEOPLE’S Constitutional rights.
This government has ”waived” the Constitutional rights of its own citizens.
Are people ever going to care about that? Cuz from where I sit, it looks like nobody cares that our rights are being systematically stripped from us. Oh sure, some people complain about it. Big whoop! Has that accomplished anything? What can we do to get our country and our Constitution and our rights back? I write my Congressmen till I’m blue in the face. Does absolutely NO good! They don’t give a goldurn. THEY don’t care about our rights.
Ron Paul fought for the people. But one person wasn’t enough to get us anywhere. And now people who are Constitutionalists are labeled as domestic terrorists by Homeland Security. I keep wondering where it was that I missed the big turnaround here, where the Constitution went from good, to evil. When I was in school, the Constitution was GOOD! I keep thinking I’m going to wake up and everything is going to be normal again. But so far . . .
Interesting to see the name of General Ambrose Burnside pop up. Probably the most incompetent general officer the US military has ever had. I read a book about some of his exploits several years ago, but the title escapes me. Burnside epitomized the military philosophy of how to snatch defeat from the jaws of victory. The battle of the crater was probably his crowning achievement.
I think that Gen Banks was the most incompetent Union General. A prof who taught at VMI and who was a friend of the family opined that Banks was in effect Lee and Jackson’s quartermaster. I think also Grant can be blamed for the crater disaster since he pulled off the Negro troops who HAD trained for the assault, and subsituted green white troops who had not.
Woah, my life has just gotten bigger.
“Fractally wrong.” My life has just gotten richer.
“Fractally wrong” is helping me understand some things that I did not understand well enough to actually verbalize them — until now.
“Fractally wrong”! WOW! Thank you!
randyjet:
There is no evidence that Lincoln even knew about ol’ Vall’s arrest. He would have likely opposed it to avoid giving the Copperheads a martyr. That’s why he commuted his sentence. Here’s the history:
“Vallandigham was so opposed to the order that he allegedly said that he “despised it, spit upon it, trampled it under his feet.” He also supposedly encouraged his fellow Peace Democrats to openly resist Burnside. Vallandigham went on to chastise President Lincoln for not seeking a peaceable and immediate end to the Civil War and for allowing General Burnside to thwart citizen rights under a free government.
In attendance at the Mount Vernon rally (on May 1, 1863) were two army officers under Burnside’s command. They reported to Burnside that Vallandigham had violated General Order No. 38. The general ordered his immediate arrest. On May 5, 1863, a company of soldiers arrested Vallandigham at his home in Dayton and brought him to Cincinnati to stand trial.”
“Lincoln, who learned of the affair from the papers, now faced a dilemma. He understood that both Burnside and Vallandigham had made foolish moves and brought the touchy subject up during a meeting with his cabinet on May 19, whose thought processes Burnside heard about. Ten days later, Burnside told the president that he knew that Vallandigham’s arrest was “a source of Embarrassment” and tendered the commander in chief his resignation. Later that day, Lincoln responded that “being done, all were for seeing you through with it.”
randyjet:
I’m not sure being arrested and deported gave Ol’ Vall the right to commit treason. it would have been an interesting defense if he actually had been tried for treason as justice would have required, but which he avoided. Karma must have been around then however since he died by his own hand in a shooting accident.
Genen H:
I find the analogy apt and so likely would a tribunal. While we might argue the differences in weapons,geography, and tactics we can’t avoid the enemy’s symmetry of citizenship, threat, and motive. Likewise, our enemies today have made no secret of their intentions or their means to effect those intentions and we have not made any promises not to use force to repel them. Those are the deciding factors and not whether the Executive’s actions were sufficiently fettered by Constitutional protections for the aggressor. Hancock properly instructed General Henry Hunt’s batteries to fire. Had he not he would have been properly courts-martialed for treason and not exonerated by protecting the constitutional rights of his foe. I see little difference today except perhaps the marked lack on honor or humanity of our opponents now.
randyjet:
” Lincoln also put Vallandingham into prison, as he did MANY OTHERS who simply voiced support for the rebellion.”
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Clement Vallandigham did quite a bit more than merely voice support for the rebellion. An active proponent of slavery and states rights, he met with Confederate emissaries in Canada to undermine the war effort, encouraged the invasion of Pennsylvania, and sought to form a Northwestern Confederacy. As military governor of Ohio, General Ambrose E. Burnside issued General Order Number 38 after Lincoln issued the order suspending habeas corpus which Congress authorized in March 1863. It was Burnside who ordered the arrest of Vallandingham, not Lincoln. When ol’ Vall snuck back into the US after his expulsion to the South, Lincoln did not arrest his old foe.
Old Val did none of what you said before he was arrested. He did that AFTER Lincoln PERSONALLY ordered him expelled to Confederate territory. While Abe did not do the original arrest, he sure as HELL APPROVED IT! He also arrested others who did similar things in speech and print. I think Lincoln was right and as we all know the US did NOT become a dictatorship as a result.
mespo,
Hancock didn’t have drones to do his bidding and we aren’t talking about organized militias in the sense of the Confederacy. Technology and the nature of asymmetric warfare have changed a lot since the days of the CSA. There is also the difference of openly declared hostilities and secret assassinations without trial based on secret evidence. The example is not only reductio ad absurdum, but facile as well. The memo’s vagueness on issue of imminence is simply unacceptable and doubly so given that the Executive has done all of this without consulting either Congress or the Judiciary – instead relying upon their own organelles, the DOJ and the OLC, to provide unchecked rationales for their unilateral action. What makes you think they’d consult anyone let alone the courts at this point? The Executive is making it up as they go along and they are doing so without challenge or check. Clearly, there are times to act and there are times to hedge, but burning the Constitution to save it is the definition of Pyrrhic victory. In becoming not just the world’s bully but bullying our own citizens we have shown the world that perhaps the criticisms of the groups that would oppose us – including terrorists – just might have merit. Moral high ground, unlike tactical high ground, is almost never regained once sacrificed.
mespo,
You put forth an interesting viewpoint that I had not thought of before. Lincoln and the US Congress took the position that the confederate states were still part of the USA. Therefore, all Confederate soldiers were still US citizens under the Constitution, but were at the same time enemy combatants. A Constitutional conundrum if there ever was one. I can certainly see the parallels. If an American citizen is on a battlefield, taking up arms against the USA, then have they waived their rights. Keeping in mind that all drone strikes so far have been halfway around the world. In the Civil War, the enemy combatants were US citizens, on US soil, only miles from Washington, DC in many cases.
OS You forget that Al Qeada in Yemen sent one of their operatives to Detroit with a bomb in his underwear that he tried to detonate. I have NO problem at all with the drones killing all the SOBs in the training camps and other facilities. If you are there, you are NOT on vacation or Spring Break on the wonderful beaches that they have there. So you consort with our ARMED enemies who have created a huge amount of destruction on the US, you get what you deserve if you get killed by a drone. My only complaint is that they did not do it soon enough, and that they died too quickly.
O.S> Wow. That puts things in a very different perspective.
(Therefore, all Confederate soldiers were still US citizens under the Constitution, but were at the same time enemy combatants.”)
Michael Murry
1, February 5, 2013 at 3:27 pm
Obama DOJ to Courts: “Due Process” does not mean judicial proceedings.
Courts to Obama DOJ: “OK, if you say so.”
Sorry to keep talking about my life but in fact DOJ pled in my federal lawsuit that the Prisoner Tracking System requires only a judicial proceeding not a criminal proceeding. They actually took their own notice in the Federal Register about the purpose of the PTS and changed “criminal” to “judicial”.When I put this as part of a motion to admit facts, federal Judge Bates, a long time DOJ employee, wouldn’t allow my motion to be put on PACER and dismissed it in a rush. Then he wouldn’t allow my Rule 52 motion to amend and correct facts to be put on PACER. And he didn’t find facts or state conclusions of law as required by Rule 52a for a judgment on partial findings. DOJ didn’t protest that even though I asked them to.
W.T. Mallison . . .
The USSR is gone. The “Other Super Power”. “The Evil Empire” actually seems to have kept American values to a higher bar. When the USSR was in its’ heyday the USA propaganda machine warned us about its terrible policies and repression of its’ citizens.
The USA could not claim tactics similar to the USSR during the cold war. The Soviet Politburo was anathema to Democracy.
Who Da Thunk I would miss the good old USSR. It is now gone, the fear mongering against it is gone, the media coverage of its repressive policies is gone.
The bar of our Democracy versus their socialist repression is gone.
WooHoo American Oligarchy, the path to a new world Corporatism is now open. The USA does no longer have to demonize USSR “civilian control tactics”
As a matter of fact these formerly “evil civilian control tactics” seem to be quite conducive to promulgating greater corporate controlled hi-jacking of our constitution.
Who Da Thunk I would miss the good ole USSR. …. As my earlier post intended, We in too many ways are becoming them.
Thanks for the encouragement !
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Gene, one of my International Law courses at GW, 2wasw taught by WT Masllison, back when the trollies still ran in DC. His special focus was legal rights of the Palestinians under international law. Opened my eyes to the issue. Had some enemies around town of course, but he was a genial guy, very tall drink of water, and kept on plugging.