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

It is against the constitution... You can't just take the parts you like and leave out the parts you don't. THATS WHAT OUR PRESIDENT IS DOING...

A tough question. Our country is founded on the rule of law. As a Veitnam combat veteran, I knew that some of the missions I was involved in would get civilians killed. I carried out those missions because of what I thought, at the time, was the greater good. I'm not justifying, just saying it's a tough question.

Blame barry, if that's what you believe. However, I, for one, believe he is nothing more than a muppet for the likes of Axlerod and other very rich, very influential, old white men. Barry has neither the skills, nor cunning to perpetrate these scams on the American public. He is owned by Organizations such as move on and unions. When scripted, barry is a charismatic speaker, just don't allow him on stage without his teleprompter.

While most Americans agree with drone strikes against "known" Al Quaeda operatives and leaders, this particular finding by DoJ doesn't include enough due process. Authorizing such action should require more than just some analyst's conclusions.

I think that we should attack Guantanamo Bay Detention Camp with our Drones and eliminate all the detainees. This would save us a ton of money and and keep our President from bringing them to the US. If you think that this would tick-off our enemies more, THEY HATE US NOW. Maybe if WE would fight to WIN we would ends this mess with these radicals.

If a drone strike will save american lives then I am all for it! Too many extremist groups want to impose their ideas on the rest of the world and we should use all necessary means to stop them.

War is war. Human rights and due process is not the same for war even if the enemy is a US citizen. We could have achieved our objective in Vietnam if the American public hadn't influenced the government to stop bombing Hanoi and restricting our going into Laos and Cambodia. If we do not hunt down terrorist and take them out we might as well surrender and let the terrorist rule.

Everyone has the right to their opinion,, but if you unpatriotic jerks are so afraid and mistrust the government, where were you when you were all scammed into thinking Iraq was the cause of 911, instead of Bushes plan to redeem daddy! Obama seems to be after the real enemy,and all you stupid rednecks do is cry about the government,I say if you don"t love America, get the hell out! I grew up in rural Pennsylvania and was drafted and went to Viet Nam, I have yet to see any thing to make me think "Big Brother" is going to get us.

If an American citizen has joined a terrorist group to kill Americans, I dont consider them to be a citizen any longer and are actually traitors to America. They should be targeted and taken out as any other terrorist is. Matter of fact they should be taken out as being traitors.

A terrorist is a terrorist no matter what nationality.

If any American knowingly joins forces with a foreign Government that threatens to kill all Americans, that is called treason. The punishment for treason used to be hanging or firing squad. Now we have more sophisticated methods. By these actions, the individual lost all his rights as a citizen and should be treated like any terrorist.

I prefer that any US citizen who decides to become a member of any organization, which is properly identified as an enemy of our nation be accorded due process in a court of law before the death penalty is enacted upon them.

However, in this modern world of wars without clear front lines, I can see a necessity for these strikes IF evidence exists that these persons are indeed an immanent danger.

If you are an american & decide to join al quida. Then I guess you are considerd a traitor & that my friend bring`s consequence`s. Hang em long & high,but in this case,a nice little drone strike will due !!! Gee, wonder if the people in the twin tower`s where informed of thier due process right`s, oh that`s right the people flying the plane`s did not belive in our law`s,or country or care about us.

Using the Drone is no different than if you were in a fire fight with al-Quaida and some happened to be American citizens firing at you, wouldn't you fire back for effect without worrying about their civil rights.

I beleive the oath goes "protect, preserve, and defend". Our President has attacked our Constitution. The second ammendment was the first, then the 1st by calling anyone who disagrees are,"fringe groups". I don't think Fox News Network, or the NRA should be ignored. Nor be regarded as a far out fringe group. Would not the far left, anti-gun activists and others that critisize our fore fathers, be regarded as a "fringe group"? This President, who, in October told the NRA and other leaders of the firearms industries, he would not attack the second ammendment, or our gun rights. That promise lasted until a lunatic, who killed his mother to get the guns, shot up a school, and out came Ms Feinstein with her gun control bill. This bill I'm sure has been laying in her desk waiting for that moment. Our founding fathers wrote the constitution, the way they did to stop this. The problem is not guns, it's not magazine capacity, or AR-15 or modern sporting rifles. Evil is all around us, if it wasn't Sandy Hook, it would be now with a rouge ex-cop running around killing people. The question to me is, how did the shooter at the school get in the school so easily? We need to make our schools safer, and putting armed security or teachers, that want to attain their concealled carry endosements, may be part of the answer, but attacking the constitution, law biding citizens, is not.

RS I agree with you - but you're on a different subject than is being discussed here.

IF AN AMERICAN CITIZEN IS IN A FOREIGN COUNTRY ACTIVELY HELPING THE TALIBAN THEN THEY HAAVE GIVEN UP THE PROCTCTIONS THEIR CITIZENSHIP AFFORDS AND SHOULD BE TREATED LIKE AN ENEMY COMBATANT UPTO AND INLUDING DRONE STRIKES.

Little by little our freedoms are taken away in the name of security never to be given back. A bumper sticker i saw said "You can trust the goverment just ask an indian" comes to mind.

Right on James way too many hung ho type peeps out there just want to kill their perceived enemies what they don't seem to understand is that without due process we are no better than they are

I don't care if they are Americans or not. Regardless of who they are if they are committing crimes against the USA they are our enemies. If they are over there cavorting with al-Qa'ida why spend our money prosecuting them?

I have no problem if or how a traitor is killed. I do however have a problem with the hypocritical Liberals that were so furious about enhanced Interrogation techniques like water boarding (from which no one died) are now fine with drone strikes that can kill unintended targets.

You all make excellent points, I love my Country, but given our Governments recent history can we really trust them to make these kinds decisions, when so many innocents are dying.t

If the facts prove the activity color them gone. It seems to me if memory serves me, which sometimes it doesn't, being a U.S. citizen doesn't give you any protection in these circumstances.

I am a commissioned Army Infantry officer and numerous times in combat
had the responsibility to give order that certainly put men's lives at risk.
I also was fully aware of what constituted legal orders and saw that issue
at close hand. I was in the Americal when Mei Lai massacre took place in
1968 and was a substitute juror during LT Calley's trial. In the discussion
here, there is the usual rant about "the government" like they were some
group of "Men in Black" who just appeared out of nowhere to direct our
lives. (Stay with me here, lol) WE are the government, and when told to
do something as personal as to blow up a car with a missle, we can't ask
for clarification if it doesn't feel right? I can't help but think that there is
an awful lot of discussion between guys just like you and me, before the
decision is made and the order is given to terminate. It is too dangerous
to each individual in the chain if illegal orders or carelessness result in a
questionable strike that is being filmed and will be used as evidence.

I was in Nam in 69-70 and I think LT Calley got a raw ass deal from a bunch of political hacks.

it starts with suspected U S citizens as al-Qa'ida. then moves to us because everyone knows muslims hate U S citizens and our president is a muslim as everyone should know, but seems to overlook. watch your backs and lt fred your a dick, I ws in vietnam also, but I would never follow an order to kill AMERICANS

The constitution gives American citizens rights that may not be available to citizens of any other country in the world. One of those is that one cannot be punished without due process. That means you can't indiscriminately attack or kill Americans without a trail. I am a 28 year veteran of the United States Air Force, spending my life in defense of our constitution and the freedoms it guaranties. I despise these people, but unless we revoke their citizenship is some way they still have the same right to due process as the best of us. This may not be a popular position, but if we find it alright to dismiss this right for those we don't like then which freedom is next and who will we take it away from. O, wait a minute. Isn't Obama already doing that?! No arm of the government should be able to determine that a citizen lives or dies without a trial. In any case the Justice Departments paper is just vague enough to allow it to do pretty much what it wants. How can one arm of he government give another arm of the government permission to supersede the Constitution?

The United States Department of Justice (DOJ), is the United States federal executive department responsible for the enforcement of the law and administration of justice. The Department is led by the Attorney General, who is a member of the Cabinet. He is a cabinet member and not a separate "arm of government" and can be fired by the president at any time. It may cause a lot of trouble with Congress but it is legal. The problem is that Erick Holder is either giving obama orders or he is taking orders from obama – which ever it is obama is deep into this order.

The problem is with the way the directive is written. It does not stipulate that the "citizen" needs to be in a foreign country. It only states that capture is not feasible. Using that logic Nixon could have taken out Jane Fonda. Although I agree with the result it would still have been unconstitutional and as such should not stand. Our government was founded with multiple layers of oversight. This new ability to kill with with drones requires much more oversight than just the Executive branch. It needs either judicial review or Congressional review before any drone strike on a non combatant is authorized. If the individual is designated as an enemy combatant, that decision should also have been previously approved by multiple branchs of Gov. These protections are absolutely necessary. Who knows what Obama and Eric Holder could dream up after what they did in "Fast and Furious".

"DoJ lays out justification for drone strikes on US Citizens" is a statement which cannot be misinterpreted! Simply said: it is a deliberate, premeditated murder sentence with malice aforethought for anyone in the US who is chosen for the kill list, American or otherwise!. THEY will eliminate us anytime, anywhere for any reason and nothing can be done to prevent it. The sooner we get used to that reality, the easier it will be to accept sudden death.

This is tyranny. When will the veterans wake up? We fight for freedom, but those that send us do not. Blind loyalty is not honorable, it is ignorance. I wish the legion would wake up.

The Constitution clearly states that if a US citizen fights against the US in a foreign land or under foreign aegis, he is a traitor and is to be treated as an outlaw. At the time our Constitution was written an outlaw could be killed by anyone at any time without consequence.

Remember the “Wanted Dead or Alive” posters of the Old West.

A citizen has the right to denounce US Citizenship and take up citizenship of another country. In which case if he chooses fight he is no longer a traitor but is reclassified and is to be killed as any other combatant.

I have no problem with that.

The problem arises when a citizen within US jurisdiction and by the slippery-slope of government over reach and illegal action attack our own citizens. In which case the citizenry has the Constitutional right of self-defense. It may not be wise but the right does exist.

Let us be clear folks, the Islamist ideology favored by the Muslim Brotherhood and the Taliban are at war with western ideology, any one in any of the jihadist groups would be pleased to cut your throat. If an American citizen joins an Islamists group then by his action he has signed his own declaration of war against us and he should be cut down in any manner available and it don’t take a declaration from congress or the Judiciary to get it done – SO LONG AS he is outside U.S. jurisdiction. The U.S. constitution does NOT apply outside the U.S. borders. If you visit a foreign country, you are subject to the laws of that country, not the laws of the U.S. – if you don’t believe that go smoke a joint on a street corner in Turley.

If you are being pursued in a foreign country and you make it to the U.S. embassy, you are on U.S. soil and once again subject to the Constitution. As in Libya, the attack on the embassy was a direct attack on the United States, and although we lost four men there the greatest crime was the attack on US soil and given a stronger president the reaction could have been a massive US assault on the scumbags that attack us.

L Davis, US Army, you echo what I have been saying. I do not trust this administration either. From what I have read, most of you have the same sentiment. Get them, Yes. But remember, we are a nation of laws. Hopefully we still have the ability to know right from wrong. Prosecute them and we might want the death penalty for outfits like, al quida (spell?) Never allow the use of drones. That is like putting fighters straffing or bombing US citizens. Didn't we fight WWII so that wouldn't happen here. Further, I do not trust this administration!!!!

L Davis, US Army, you echo what I have been saying. I do not trust this administration either. From what I have read, most of you have the same sentiment. Get them, Yes. But remember, we are a nation of laws. Hopefully we still have the ability to know right from wrong. Prosecute them and we might want the death penalty for outfits like, al quida (spell?) Never allow the use of drones. That is like putting fighters straffing or bombing US citizens. Didn't we fight WWII so that wouldn't happen here. Further, I do not trust this administration!!!!

Yes we have a constitution ALONG WITH an American flag to defend! When an American citizen chooses to join a group and plot to create an act of violence against his/her country, they "chose" to forfeit their rights afforded them under the constitution! The problem with our country is that we have to wait for the perpetrator to act before we can justifiably take action against them. In this case, with the terrorists playing by a different set of rules, then it's time that we also play with the "element of surprise" in our rules! Taking them out by whatever means necessary is the only language that they'll understand! To allow them to exclaim: "I have my rights" should not be permitted in any language!!!

Anyone who associates themselves with enemies of our country should be considered supper for a drone attack. Forget Democrat or republican, it is our country being defended. I was in Nam in 65 and there were mistakes made then and we have to realize we are human. We do the best we can do.Also the comment about Lt.Calley was so true, he did indeed get a raw deal.

I almost hate the idea of being in agreement with that 1/2 white man in the White House about anything; TERRORISTS, whatever country they are from, engaging in war against our people get whatever fire drops out of the sky. I am up to my ears though with the hypocritical libs calling water boarding TORTURE and supporting killing Americans w/o a trial...BS. I recall the American Officer discharging his service weapon next to a detqainee to get information that saved American lives. Does anyone remember the Koreans in Vietnam throwing VC's out of helicopters to get those still onboard to talk? I'd call that extreme too, but it got results! I drown when I was three years old, had turned blue, w/o heart beat and stopped breathing, and here I am today...love the water, the experience didn't keep me from joining the Navy either! Give our warriors a job to do and stop Arm Chairing the way they get the job done!

This sort of unchecked authority is a scary thing. Even if you trust the current administration, who is this power to be entrusted to in the future. Who is to determine what link to terror is enough to justify a strike? Is Wayne LaPierre in danger because he defends the 2nd ammendments purpose to fight a tyranical government? Are we becoming the new Mossad that hunts down individuals? Not the America I defended.

If they're members of Al-Quada and enemies of the U.S, then I say blow their a__ off. What's the difference in shooting them with a gun or a drone... dead is dead. Plus, a drone would probably save some American lives in the process.

I agree we must take all steps available to eliminate anyone that endangers our way of life. My concern is who makes that decision? I have not seen any evidence that there is anyone in this administration that I would have to trust that my neighbors or my family would not be classified as enemies of the state simply because I disagree with some policy some idiot put in place. It is a legitimate concern as evidenced by some mandates put in place recently.

American citizens are accorded safety and protection, worldwide. Why not due process? At some point, we have to decide if we stand for something more than the easy way out. Our constitution is a wonderful document that served us well over more than 200 years. Extrajudicial killing is just that, something we've (rightly) criticized in our adversaries. And Fred, I don't care what unit - if any - Steve ever deployed with. if you deployed, you did so to protect our constitution, which allows for free speech.

I think befor the prez and democrates start using the "CONSTITUTION and THE DECLARATION of INDEPENDENCE" as toilet paper they all should be recalled and voted out of office.

As I stated a few days ago everyone has the right to their opinion,but You Marvin Elliot ,have proved that there really is" truly stupid "redneck jerks in this great country, as I said before someone like you should do us all a favor and get the hell out, I can't understand how anyone of your intelligence could have really served in our Armed Forces!

HOW DID THE SUBJECT CHANGE FROM FORIEGN WARS TO WAR HERE IN THE US ?
OUR MILITARY IS SENT OVER IN WAR TO KILL THE ENEMY. IT DOESN'T MATTER THIER NATIONALITY.

I wasn't sitting at a desk when I received my Bronze Star 1968-1969

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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.