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One of the most hotly contested points of the administration’s drone policy is its claim to have legal justification for killing U.S. citizens. Now we have their rationale for that claim. Michael Isikoff, National Investigative Correspondent for NBC News, published on Monday a memo he says was given to members of the Senate Intelligence and Judiciary committees in June.
The “Department of Justice White Paper” outlines certain conditions for an attack. An “informed, high-level official of the U.S. government” must determine that the targeted U.S. citizen is a “senior, operational leader of al-Qa’ida or an associated force,” poses “an imminent threat of violent attack against the United States,” “capture is infeasible,” and the attack is conducted in a way consistent with “law of war principles.” In those conditions, the memo says, “a targeted killing of a U.S. citizen who has joined al-Qa’ida or its associated forces would be lawful under U.S. and international law.”
Many more questions are raised by the memo, in particular its lack of clarity in defining terms. As Josh Voorhees points out at Slate,
"The portions of the document that are currently raising the most questions and concerns are the vague sounding classification of 'an associated force,' and the rather elastic definition of an 'imminent' threat. The former would appear to give the government broad leeway to target anyone they deem even remotely connected to al-Qaida, while the latter gives the government the go-ahead to target a suspect even when the officials, in the words of the memo, have no 'clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.' The document, likewise, sheds little light on who makes the final decision, saying only that such determinations can be made by an 'informed, high-level official of the U.S. government.'"
The paper is not an official legal opinion menu, writes Issikoff, but ”a policy document that closely mirrors the arguments of classified memos on targeted killings by the Justice Department’s Office of Legal Counsel, which provides authoritative legal advice to the president and all executive branch agencies.” The administration has refused to provide Congress with the legal memos on which the policy is based.
The confirmation hearing for John Brennan to become Director of the CIA begin on Thursday, with drones expected to be a major topic of questioning. In his role as counter-terrorism adviser to the White House, Brennan has been one of the major architects of the administration’s drone policy.
In advance of the hearings, a bipartisan group of eleven senators wrote to President Obama seeking “any and all legal opinions that lay out the executive branch’s official understanding of the President’s authority to deliberately kill American citizens.”
The letter concludes with a politely worded threat, “The executive branch’s cooperation on this matter will help avoid an unnecessary confrontation that could affect the Senate’s consideration of nomoinees for national security positions.” The complete letter is HERE.
The next two days could be interesting. Either the administration relents and provides the memos, or the Brennan hearing will be very interesting. Either way, the controversy over drone strikes will continue.
Duane Shank is Senior Policy Adviser for Sojourners.