February 5, 2013
Barack Obama and John Brennan
President Obama and his nominee for CIA director, John Brennan. (Alex Wong/Getty Images)

On Monday night, NBC News’s Michael Isikoff published a Justice Department memo justifying the “targeted killings” — without due process — of U.S. citizens who are leaders in al-Qaeda or “associated forces” but are “outside the area of hostile activities,” such as Afghanistan. The document is based on a still-classified memo on targeted killings of U.S. citizens prepared by the Justice Department’s Office of Legal Counsel.

The summary memo is a chilling document, full of twisted definitions, gaping loopholes and hints that the White House still isn’t sharing its full justification for killing citizens without due process. Given the extraordinary power the executive branch is claiming, legislators in both parties must ask tough questions of Obama and his national security team, including threatening to hold up key appointments, if necessary.

At its heart, the memo contends that killing a U.S. citizen who is a “senior operational leader in al-Qaeda or an associated force” is lawful under three conditions:

(1) [A]n 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; (2) capture is infeasible and the United States continues to monitor whether capture becomes feasible; and (3) the operation would be conducted in a manner consistent with applicable law of war principles.

These conditions track with White House officials’ past public defenses of the drone program, and at first glance they seem reasonably strict rules. But as the memo continues, it quickly becomes clear that these criteria are weak guidelines subject to the government’s interpretations.

For example, while Webster’s defines “imminent” as “ready to take place,” the Justice Department has a different take: “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, rather brilliantly, calls this definition a “broader concept of imminence.” Most people, however, would call this “not imminent.” Instead, it appears that the Justice Department’s version of “imminent” is whatever they say it is.

The definitions of feasibility and “applicable laws of war” are similarly elastic: “Feasibility” includes whether there is “undue risk to U.S. personnel” (what constitutes “undue risk” is never explained), while, as Kevin Jon Heller has pointed out, the “laws of war” justification effectively ignores half of the judicial test it cites.

In addition, the memo does not give the authority to kill an American citizen without due process to the president but to “informed, high-level government official[s].” Which officials? The memo does not specify. As with the criteria mentioned earlier, the executive branch effectively argues that it can set its own standards.

Further, as Marcy Wheeler has pointed out, public statements from senators who have had the Justice Department memo since last summer, as well as a number of references within the memo to the president’s commander-in-chief authority, suggest that the White House believes Obama could kill a U.S. citizen “solely on his inherent Article II powers. But that’s not the argument laid out in the white paper.” And the memo explicitly states it is not listing the “minimum requirements” for the White House to execute an American citizen. For example, as Sen. Ron Wyden (D-Ore.) has noted, it is still unknown whether this authority extends within the United States. To put it bluntly, we cannot be certain there is a legal limit that can stop the White House from declaring you a terrorist — according to its “intelligence” — and targeting you.

President Obama once promised that “whenever we cannot release certain information to the public for valid national security reasons, I will insist that there is oversight of my actions — by Congress or by the courts.” But on this crucial issue, where his White House has claimed the power to summarily execute U.S. citizens without any outside oversight, Obama has refused to release the rationale.

The courts cannot be counted on to force Obama’s hand: As one judge wrote in a recent ruling denying a FOIA request for the White House’s rationale for targeted killings: “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.” (For its part, the Justice Department says in the memo that “there exists no appropriate judicial forum to evaluate these constitutional considerations.”)

The burden of oversight then must fall, as the president clearly knows, on Congress. Fortunately, the president’s nomination of John Brennan to head the CIA gives the Senate an ideal opportunity to demand that the White House be more forthcoming. On Monday, 11 senators asked the White House to hand over the secret legal justifications. “The executive branch’s cooperation on this matter,” they wrote the administration, “will help avoid an unnecessary confrontation that could affect the Senate’s consideration of nominees for national security positions.”

Given Brennan’s central role in the expansion of the drone program, these senators and their colleagues would be right to question him thoroughly on the legal justification for targeted killing. If the White House doesn’t hand over the memos, then the Senate should strongly consider delaying Brennan’s confirmation. For too long, the president has been allowed to claim the power to execute U.S. citizens without due process and with few, if any, other restrictions. It is past time to hold him to account.

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