DoJ lays out justification for drone strikes on US Citizens

 
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DoJ lays out justification for drone strikes on US Citizens

The last time I brought up this subject the post garnered more than 350 comments, let's see if this one gets a tenth of what that one received.

From an Exclusive by Michael Isikoff at NBC News:

A confidential Justice Department memo concludes that the U.S. government can order the killing of American citizens if they are believed to be “senior operational leaders” of al-Qaida or “an associated force” -- even if there is no intelligence indicating they are engaged in an active plot to attack the U.S.

The 16-page memo, a copy of which was obtained by NBC News, provides new details about the legal reasoning behind one of the Obama administration’s most secretive and controversial polices: its dramatically increased use of drone strikes against al-Qaida suspects abroad, including those aimed at American citizens, such as the September 2011 strike in Yemen that killed alleged al-Qaida operatives Anwar al-Awlaki and Samir Khan. Both were U.S. citizens who had never been indicted by the U.S. government nor charged with any crimes.

As I mentioned on that previous post, I had some trepidation about the due process rights involved here:

If anyone is reading an inherent bias on my part in the preceding, I'd love to know what that bias is, because I honestly have no clue how I feel about this whole thing. I feel uncomfortable with secret bodies not authorized by legislation authorizing things like killings. On the other hand, Awlaki needed to be ventilated and good riddance to bad rubbish. But, we should always think worst case scenario with these sorts of things. Can you envision a scenario where a US Citizen is killed abroad with a drone attack, and he didn't have what was coming to him? Probably we all can. So, what safeguard is there? That's where I get somewhat lost.

The 16 page memo (CLICK HERE FOR PDF) outlines some of the arguments with regards to the concerns I listed, but not as many as I had hoped. Since people tend to take what I say out of context, I wanted to address some specific parts of the memo. For instance, on page 3:

Accordingly, the Department does not believe that U.S. citizenship would immunize a senior operational leader of al-Qa'ida or its associated forces from a use of force abroad authorized by the [Authorization of Use for Military Force] or in national self-defense.

Clearly I don't know anyone who doesn't agree with that portion. Simply being "our" bad guy doesn't mean someone shouldn't be eliminated.

Likewise, the discussions regarding where the strikes occur which is on the remainder of page 3, and continuing to page 5 seem to me to be above too much actual argument. Certainly there are concerns about other nation’s sovereignty and such, but from the standpoint of geography, getting blown up in one place for supporting al-Qa'ida (as the DoD is apparently spelling it) is much the same as another location.  (Excepting within the US, which is not discussed.)

The 6th page of the memo outlines the due process element. It first starts with noting that there are competing governmental interests at play here, and lays them out thusly:

In the circumstances considered here, the interests on both sides would be weighty…An individual’s interest in avoiding erroneous deprivation of his life is “uniquely compelling.”  At the same time, the government’s interest in waging war, protecting its citizens, and removing the threat posed by members of enemy forces is also compelling…

But, “the realities of combat” render certain uses of force “necessary and appropriate,” including force against U.S. citizens who have joined enemy forces in the armed conflict against the United States and whose activities prose an imminent threat of violent attack against the United States – and “due process analysis need not blink at those realities.”  These same realities must also be considered in assessing “the burdens the Government would face in providing greater process” to a member of enemy forces. 

 Finally it gets to a three-pronged test on when drone attacks can be conducted:

In view of these interests and practical considerations, the United States would be able to use lethal force against a U.S. citizen, who is located outside the United States and is an operational leader continually planning attacks against U.S. persons and interests, in at least the following circumstances:  (1) where an 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) where a capture operation would be infeasible – and where those conducting the operation continue to monitor whether capture becomes feasible; and (3) where such an operation would be conducted consistent with applicable law of war principles.  In these circumstances, the “realities” of the conflict and the weight of the government’s interest in protecting its citizens from an imminent attack are such that the Constitution would not require the government to provide further process to such a U.S. citizen before using lethal force.

 I’m sure someone can come up with a cogent argument that there is an infirmity somewhere in there, but I honestly don’t see one.  Again, my only concern remains the procedural side.  Who exactly is determining whether the evidence is sufficient to declare someone an “imminent threat”?  Who determines the feasibility of capture?  (On this one, I would hope we err on the side of caution of course.)  And who decides if the operation is consistent with the principles of international laws of war?

Alas, the memo itself doesn’t answer these questions, and I am somewhat glad of that.  I wouldn’t want to know (for instance) the name of a specific individual (or individuals more likely) who was making these weighty decisions.  My only hope though is that it is given some legislative weight as well, and perhaps some Congressional oversight. 

The conclusion to the memo makes clear though that those questions are answered somewhere else, and this memo specifically only addresses the legality of the operation, and not the procedural stuff.

 

Rachel Maddow spent 18 minutes discussing this last night as well.  For some reason she spent 13 minutes winding up to the discussion with Isikoff, which seemed about 11 too much for me.  So, those of a more conservative bent might want to fast forward to 13 minutes in and watch from there.  I happen to like Maddow, even though I disagree with her a lot, but I find the entire thing fascinating.  It appears she has some of the same concerns I do, which apparently makes those who ridicule me in the comments for being a "leftist" have some validation I suppose.  Nonetheless, regardless of where you are on the political spectrum, you should watch this.

 

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Comments

If they are terrorist and willing to commit terrorist attacks on the US, then I see no reason for it not to be done. We took an oath to defend the United States from all enemies, foriegn and domestic.

It wouldn't be long and they well use it to find people hunting to feed there familiy.

I was a Canadian serving in the U.S. military in Vietnam. If I had of been captured I would have been treated as an American. Righty so because I volunteered to wear the American uniform. I think that if an American volunteers for an enemy force, he made that conscience decision , and should be treated as such, an enemy! As for who makes the decision , I hope our faith in our higher ups, has merit M

I used to have that faith: I no longer have any faith in our Federal Government. The current administration and their accomplises have accelerated their program of dismantling our Constitution, and Bill of Rights. Foment class and racial hatred; and solidfy power into the hands of the few, to mthe detriment of the many, and the country in general. There is one, and only one hope for our country: that is for men & women of God to be on their knees in prayer for our great country.

AHHH like Hanio Jane?

After Ruby Ridge, Waco, and Fast and Furious, I have no faith in the DoJ to make life and death decisions. God help us!

This stuff is really starting to get scary! We are not talking about taking out Americans that are actively fighting against a US force. All they have to be is involved in a terrorist organization. Who makes that definition or determination? What happens when it is decided that the NRA or some other organization you belong too is decided to be terrorist. And it states “even if there is no intelligence indicating they are engaged in an active plot to attack the U.S.” The US is putting the Muslim brotherhood and Al-Qaida in charge all over the world then taking our liberties here in the US claiming it is trying to keep us safe from the same groups it supports.

doj just lookes at who will pay the best.

Just remember that once drones are in the hands of the enemy, which they seem to be in Iran, they can and will be used against Americans in the U.S. This may just be the tip of the iceberg and a new 9/11 around the corner.

It's too bad we didn't have these drones when Hanoi Jane was aiding the enemty and sitting in antiaircraft sites with the North Vietnamese. However, I see other peoples point of view and concern of violating the Constitution. After all you never know when a "innocent" american citizen could be "accidently" and "unknowingly" visiting an Al-Qai'da safe house and mistaken as an enemy of the state. How many American Citizens rights were violated when the bastards flew their plane into the World Trade. ACLU sympathizers, get your head out of your ass.

The Clinton administration "accidentally" bombed hospitals and embassies instead of intended targets. The Bush administration invaded Iraq on "questionable" intelligence.

I just don't trust the government to not label an orphanage a "pre-terrorist training facility".

This is against the Constitution of the USA!

Where! What article or amendment express's the forbidden use of this type of warfare. I would love to see where the founding fathers or latter day congressional action had the foresight to know about this type of warfare!

IMHO, I agree with taking out the enemies of our country, however I fear that the administration may use this action as a stepping stone to ultimately turning these tactics on the American populace that disagrees with it. If an "American" takes up arms against the "Constitution" then he forfeits his rights as a U.S. citizen and can be considered a combatant enemy and suffer the consequences of his actions.

I have to agree with your statement and add that this administration is pushing gun control that will do nothing to protect anyone in this country instead of concentrating on real problems that are plaguing all of us like the rampant gas prices that we all know are fabricated to make more profits for the oil company's. The so called savior of Obama Care medical insurance etc. that is going to make everyone pay more for less and make you pay a penalty or tax if you do not have medical insurance even if you can not afford it we need medical reform but not at the cost that Obama Care is going to make you pay.
This country is in bad shape and it starts at the top and works its way down. The people that we elected to public offices to represent us need to be in SSC and Medicare and have to deal with the same medical choices and retirement systems that the rest of us are stuck with. take away all of their freebee perks then see how fast they fix the problem.

All I know is that when I took the Oath it said I will faithfully defend the Constution against all enemies foreign or(domestic)

While I agree that if they are working for the enemy they should be treated as such, there is a line that cannot be crossed. If the individual is not on US soil then the rules of war apply; strike away. If that person is located on US soil then the constitution trumps rules of war. All that I can relate this too is the Salem Witch trials. So due process applies and we should attempt to obtain as much Intel from these people as possible.

As a retired Vietnam and other areas vet, I am disappointed that I've been screwed "again", once in Vietnam, and now this! Drones attacking US Citizens???? Seems George Orwell was right again, maybe he ws related to Nostrdimus. Never thought I'd see this country and the politicians doing what they have been doing for the past 30 yrs, but nothing surprises me now. One thing the people in the Great White City (DC) need to remember, there are over 23 million former military living out here, and if they keep pushing and proding us things are going to get very interesting.

Jarhead your on it brother this country has went down hill sense 68 when i was in

Jarhead, This is more than Orwell. Its a socialist agenda. It has been ongoing since the T. Roosevelt administration and really kicked into gear during the Wilson administration. Its in our schools, news media,government. Its like cockroches. Hard to eliminate. What will it take to rid us of this? For one thing, it won't be a revolution or civil war. It will have to be with the vote, but that may not either be the case as more and more are counting on the government for assistance. Only time will tell. Myself and other Vietnam Vets will most likely never see the day when this agenda gets turned around, if ever. There are way too many variables in order to bring back America to its former self.

Holding citizenship does not require being an "American". If a citizen joins with an armed enemy
then his ass is grass.
Semper Fi

Due process of law, American citizens are afford that right under the constitution of the United Staes. This is a document we all swore to support and defend

Nazi germany 1933 all over again

Let’s not confuse country with government. I love my country; I do not trust the government. Now, any government that has no compunction of dropping Hellfire missiles on unarmed Pakistanis will have no hesitance to “classify” Americans as an enemy, and doing the same thing here. Not possible? What about Waco and Ruby Ridge? Napolitano has already laid the predicate for this, declaring veterans as potentially right wing extremists. As evidenced by the debacle of Operation Fast and Furious, this government is capable of doing whatever it takes to maintain its power over “we the people.” It is time for Americans to wake up, while they still have a free country.

WHAT IF -- I shoot down a drone over my property's "air space", would I be protected by the 2nd amendment from the owner of the drone? YES or NO

No I'd suspect you wold be in jail like the film director, that the administration claims caused Benghazi.
As you see he has not been afforded his rights under the 1st amendment. This group seems to love to ignore any rights given by our Constitution or Bill of Rights. Thank the people who allowed this to happen at the last election.

You are welcome!

The answer to your question is obviously NO! You may have a right to bear arms but you have no right to shoot at whatever you wish. Oh yes, additionally your "property" does not have air space! You are not a sovereign nation... just a tax payer having delusions of grandeur.

I find the Justice Department's analysis and backing of drone attacks against U.S. citizens to be dangerously close to that policy used by the Nazi party prior to WWII where individuals within the party (informed, high-level officials) were empowered to determine who were enemies of the state and then act to suppress (eliminate) them. The following is taken from a resource entitled "Nazi Ideology and the Holocaust", available through the US Holocaust Museum. There sure seem to be some historical echoes here:
"Hitler then moved carefully—operating both inside and outside the legal framework of the constitution—to organize the police power necessary to enforce his long-term policies of racial purification and European conquest. As a first step, the Nazis set out to crush political opposition inside Germany. In 1933, the priority enemies were the Communist and Social Democratic Parties, politicians, and trade union leaders. The Nazis began by identifying individual political opponents; branding them enemies of the German nation and dangerous obstacles to its recovery; and systematically attacking, persecuting, and suppressing them in the name of national peace."

If you can side step the Constitution in the justification by the Dept. of Justice of these killings, you can do the same for any individual in any case. I have a greater fear of increasing government power and its selective administration of justice than I do of all the so-called terrorists. It does not mean I favor free operations for terrorists, only that they should be dealt with under the restrictions laid out in our Constitution and not made as the result of a judgment call by a politician of any stripe.

Any American who affiliates themselves with a Terrorist Organization overseas where we are fighting, is a viable target for a Drone attack as a member of the Terrorist group. Go get them, feed them a hell fire rocket.

if they are in the middle east and with the terrorists then they are no longer American or should be treated as such. Yes seek and destroy them along with the rest of their kind.

My question is when does this stop the ignoring the Constitution and Bill of Rights. If this is ok on American citizens out side the US, then by default it may soon be acceptable within the States as well. How does one determine that the target is really a legitimate terrorist?

Recently, we were told that the "Government" is considering using drones in the US. Maybe a stretch, but are headed toward drone strikes on US citizens in a neighborhood near you?

Have you checked recently. Drones are available in all shapes and sizes to any one who wants one and are perfectly legal. FAA has no restrictions on there use

The police entities have been seriously looking at the benefits of using drones. Not for warfare but to use as avenues of ingress to crime scenes. They used them already in the event in the southeast with the man who abducted the little boy from the school bus and had him held as hostage in an underground bunker. They are not just for dropping bombs or launching missiles.

This is only the beginnitnaltng, folks- only the beginning.

As I remember the CIA once assinated preceived enimies of the state. Why not return to this less distructime more efficiant method.

Its a matter of collateral damage in warefare and has nothing to do with just rights. Send in the drone.

Do you really trust THIS administration with your life?

These attacks will be used VERY SOON in the good ole' USA, and of that I am sure. Just remember this, the"let no good tragedy go to waste" attack on the 2nd Amendment has NOTHING to do with child safety, and everything to do with Registration and Disarmament! The liberal, progressive, socialists, and their annointed one monarch, know that our economy will collapse and that civil unrest is a no brainer. Only they will call it "terrorism", and pull out all the stops with media bias, and "justified" drone attacks on US soil, on US citizens. The story about the large Quantity of Hollow Point ammo for DHS is a verified fact, and every elected politician "should" be screaming bloody murder, but they are not!

And you are dumb. There is no help for that

So it is justified to kill suspected American civilians "terrorist", but waterboarding is considered torture?

We better protect our Second Amendment rights. Because we are going to need them.

I FIRMLY BELIEVE THAT AMERICAN CITIZENSHIP SHOULD NOY SHIELD KNOWN TERRORISTS AGAINST THIS OR ANY OTHER NATION, FROM DUE PUNISHMENT OR DEATH. I BELIEVE THE PROPOSED CHECKS AND BALANCES AS STATED IN THE CITED DOCUMENT BY THE U.S.DOJ , IS A FAIR , MORAL, REASONABLE. AND WORKABLE POLICY AND PROCEDURE TO PROTECT INNOCENT AND LOYAL U.S. CITIZENS, AT HOME AND ABROAD!

When you betray your country you forgo your citizenship. Continue the attack until we run out of ammunition or they run out of bodies for us to kill.

If this most recent disclosure does not shake you to your core then nothing (I mean nothing) will deter you from supporting this Administration. My God our prison's are full of men that have had the death penalty imposed for hideous crimes and our system fails to carry out the sentence. But here an American President can approve a kill list of American citizens and without so much as an arrest warrant kill them. This is so absurd I can not even believe we are talking about let alone enacting it. This is clearly an impeachable offense and if you think otherwise then you are not my fellow solider and certainly do not represent the brave men and women who have given their lifes for our way of life. You all be damned.

Steven, what branch of the service are you in?, what unit, when deployed and what corps? Who is your command officer, what is the BMR? Do you feel you are upholding the articles in the UCMJ? I look forward to any and all information that will help bring you to justice for the crime you have committed. If you are in the military as you suggest you know what for, every serviceman knows!

Freddie, don't be an ass. You don't contribute to the discussion by ridiculing everyone you disagree with. That said, your ready acceptance of this kind of behavior by the government explains why we are in grave danger of losing the America each of us was born in ...

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News from the World of Military and Veterans Issues. Iraq and A-Stan in parenthesis reflects that the author is currently deployed to that theater.