Despite multiple requests from lawmakers, as well as lawsuits from the New York Times and ACLU, the Obama administration has refused to detail its justification for the use of armed drones against U.S. citizens, such as the September 2011 strike in Yemen that killed New Mexico-born Al Qaeda preacher Anwar al-Awlaki. With the nomination of John Brennan to run the CIA, a bipartisan group of eleven senators made one more try on Monday, threatening that failure to turn over the legal documents “could affect the Senate’s consideration of nominees for national security positions.” While it isn’t quite what they were looking for, a few hours later NBC News came through with a leaked Justice Department memo.
Officials have publicly described some of the legal rationale for the strikes, but the document reveals that the government has a surprisingly broad rules for when it’s acceptable to take out a U.S. citizen, constitutional rights be damned.
The sixteen-page Justice Department “white paper” was provided to members of the Senate Intelligence and Judiciary committees in June on the condition that it be kept confidential, but someone provided a copy to NBC News (.pdf available here). Reporter Michael Isikoff notes that Brennan, who was the first official to publicly discuss drone strikes, has said they’re “consistent with the inherent right of self-defense” and Attorney General Eric Holder claimed the attacks are justified if the target poses “an imminent threat of violent attack.”
The catch, according to the memo, is that when dealing with U.S. citizens believed to be “senior operational leaders” of Al Qaeda or “an associated force,” the government is using its own dictionary. Per NBC News:
“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.
Instead, it says, an “informed, high-level” official of the U.S. government may determine that the targeted American has been “recently” involved in “activities” posing a threat of a violent attack and “there is no evidence suggesting that he has renounced or abandoned such activities.” The memo does not define “recently” or “activities.”
The document also explains that in addition to posing an “imminent” threat that isn’t necessarily “specific” or “immediate,” capturing the target must be “infeasible” — which might mean that capture is technically possible, but would pose an “undue risk” to U.S. personnel, according to the judgement of U.S. officials.
The memo isn’t a legal document, but it reflects the contents of classified memos prepared by the Justice Department’s Office of Legal Counsel. According to the New York Times, the White House started working on a rulebook for drone strikes last summer, so Obama’s successor wouldn’t be left with an “amorphous” program.
In October, Obama said on The Daily Show, “One of the things we’ve got to do is put a legal architecture in place, and we need Congressional help in order to do that, to make sure that not only am I reined in but any president’s reined in terms of some of the decisions that we’re making.” It’s probably difficult for members of Congress to lend a hand right now, since they haven’t seen the classified legal opinions and tend to use widely agreed upon definitions of words.
Update: The ACLU said in a statement: “This is a profoundly disturbing document, and it’s hard to believe that it was produced in a democracy built on a system of checks and balances. It summarizes in cold legal terms a stunning overreach of executive authority — the claimed power to declare Americans a threat and kill them far from a recognized battlefield and without any judicial involvement before or after the fact.”
And the pundit reaction is just starting to come in: On Morning Joe, Joe Scarborough said, “If George Bush had done this, it would have been stopped.”