The US government can order the killing of American citizens even when there is no active intelligence accusing them of carrying out a specific terrorist attack, according to a confidential Justice Department legal memo obtained by NBC News.
The memo, or “white paper,” concludes that assassinations of American citizens are legal if the US government says they are “senior operational leaders” or al-Qaeda or “an associated force.” The Executive Branch can keep this information secret though, and no checks or balances from other branches of government are necessary.
The memo addresses long-standing questions about the Obama administration’s drone war that have been increasingly pronounced ever since a US drone strike in September 2011 killed US citizens and alleged al-Qaeda members Anwar al-Awlaki and Samir Khan, and weeks later Awlaki’s 16-year old son Abdulrahman al-Awlaki.
Without submitting the evidence to a court, without any oversight from Congress, and without even making it’s legal reasoning available to the public, the President can ignore the Fifth Amendment to the Constitution, which says that no person shall “be deprived of life, liberty, or property, without due process of law.”
Standard rules of international law demand that an imminent threat of an immediate attack is required in order to legally initiate the use of force in self-defense. But the Obama administration has greatly expanded the meaning of the word “imminence” to allow for his drone war, taking place mainly in Pakistan and Yemen.
The memo refers to what it calls a “broader concept of imminence” than what has traditionally been required, like actual intelligence of an ongoing plot against the US.
“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,” the memo states, contradicting conventional international law.
Instead, so long as an “informed, high-level” US official claims the targeted American has been “recently” involved in “activities” that pose a threat and “there is no evidence suggesting that he has renounced or abandoned such activities,” then the President can order his assassination. The memo does not define “recently” or “activities.”
Furthermore, the memo declares that these Executive Branch decisions will not be subject to any judicial oversight: “There exists no appropriate judicial forum to evaluate these constitutional considerations.”
“This is a chilling document,” said Jameel Jaffer, deputy legal director of the ACLU. “Basically, it argues that the government has the right to carry out the extrajudicial killing of an American citizen…It recognizes some limits on the authority it sets out, but the limits are elastic and vaguely defined, and it’s easy to see how they could be manipulated.”
In particular, Jaffer said, the memo “redefines the word imminence in a way that deprives the word of its ordinary meaning.”
The memo marks an extraordinary and unprecedented expansion of executive power and the “limits” it imposes on the use of that power are insubstantial. For example, it says that the targeted assassination of American citizens can only take place if US officials decide that capturing the suspect is not feasible. But feasibility is entirely defined and decided upon by unchecked US officials in secret.
Although she threw out the case, US District Judge Colleen McMahon noted that such government disclosures could help the public understand the “vast and seemingly ever-growing exercise in which we have been engaged for well over a decade, at great cost in lives, treasure, and (at least in the minds of some) personal liberty.”
“I can find no way around the thicket of laws and precedents that effectively allow the executive branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws while keeping the reasons for their conclusion a secret,” she wrote.
“The Alice-in-Wonderland nature of this pronouncement is not lost on me,” McMahon said, referring to the nightmarish wonderland in which people are sentenced to death before a verdict from a jury is in.