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Ear to the Ground

DOJ Memo Outlines Legal Case for Drone Strikes on Americans (Video)

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Posted on Feb 5, 2013
NBC News screenshot

The U.S. Justice Department has abandoned evidenced-based reasoning in an undated memo obtained by NBC News that argues for the right of the government to target and kill American citizens it simply deems to be terrorists.

The memo states that “[t]he 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.”

Instead, it says an “informed, high-level” government official may decide that the targeted American has been “recently” involved in “activities” that pose a threat of a violent attack and “there is no evidence suggesting that he has renounced or abandoned such activities.” The memo fails to define “recently” or “activities.”

NBC reports: “[T]he confidential memo lays out a three-part test that would make targeted killings of Americans lawful: In addition to the suspect being an imminent threat, capture of the target must be ‘infeasible,’ and the strike must be conducted according to ‘law of war principles.’ ”

The memo “states that U.S. officials may consider whether an attempted capture of a suspect would pose an ‘undue risk’ to U.S. personnel involved in such an operation. If so, U.S. officials could determine that the capture operation of the targeted American would not be feasible, making it lawful for the U.S. government to order a killing instead.”

The document, titled “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 not an official legal memo, but rather a white paper. Administration officials say the paper closely approximates the arguments in favor of targeted killings outlined in the Justice Department’s classified memos. The administration has refused to make those memos public and to even confirm their existence.

“This is a chilling document,” said Jameel Jaffer, deputy legal director of the ACLU, which is engaged in lawsuits to obtain administration memos about the targeted killing of Americans. “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.”

A Justice Department spokeswoman declined to comment on the document, which can be seen in its entirety here.

—Posted by Alexander Reed Kelly.

NBC News:

The white paper also includes a more extensive discussion of why targeted strikes against Americans does not violate constitutional protections afforded American citizens as well as   a U.S. law that criminalizes the killing of U.S. nationals overseas.

It also discusses why such targeted killings would not be a war crime or violate a U.S. executive order banning assassinations.

“A lawful killing in self-defense is not an assassination,” the white paper reads. “In the Department’s view, a lethal operation conducted against a U.S. citizen whose conduct poses an imminent threat of violent attack against the United States would be a legitimate act of national self-defense that would not violate the assassination ban. Similarly, the use of lethal force, consistent with the laws of war, against an individual who is a legitimate military target would be lawful and would not violate the assassination ban.”

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