YOU COULD ask why President Obama and his administration think they have the legal right to refuse Congress their oversight duties. Ignoring the responsibilities they have by keeping classified memos away from senators, documents which describe the White House’s legal rationale for targeted killings of Americans believed to be terrorist affiliated or worse, but who haven’t been charged with a crime. But since 9/11, starting with George W. Bush, the Executive Branch has taken on the role of infallible potentate on issues of national security. You can bet the newly reported white paper, exclusively obtained by Michael Isikoff, will make for interesting questioning of John Brennan as he goes in front of Congress this Thursday hoping to be confirmed as the new C.I.A. director.
The “undated” white paper is 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.” Senate Intelligence and Judiciary committees were given it last June.
The Obama administration is comporting themselves on this issue in a manner that would make Dick Cheney proud. Would any Democratic or Republican president challenge this authority? It’s doubtful.
Although not an official legal memo, the white paper was represented by administration officials as 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 turn over to Congress or release those memos publicly — or even publicly confirm their existence. A source with access to the white paper, which is not classified, provided a copy to NBC News. – Michael Isikoff, NBC News
What is the criteria for targeting American citizens?
As in Holder’s speech, the confidential memo lays out a three-part test that would make targeted killings of American 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.” But the memo elaborates on some of these factors in ways that go beyond what the attorney general said publicly. For example, it 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 memo concludes.
Jameel Jaffer, deputy legal director of the ACLU, blasts the white paper, saying it “redefines the word imminence in a way that deprives the word of its ordinary meaning.”
Congress seems to finally be stirring.
On Monday, a bipartisan group of 11 senators — led by Democrat Ron Wyden of Oregon — wrote a letter to President Barack Obama asking him to release all Justice Department memos on the subject. While accepting that “there will clearly be circumstances in which the president has the authority to use lethal force” against Americans who take up arms against the country, it said, “It is vitally important … for Congress and the American public to have a full understanding of how the executive branch interprets the limits and boundaries of this authority.”
The white paper also reportedly discusses why targeted assassinations of Americans doesn’t violate their constitutional rights, is not a war crime, as well as does not violate an U.S. executive order banning assassinations.
So, what is considered an “imminent threat of violent attack against the United States.” Post 9/11, it appears being an American in hostile territory or having unsavory associates is enough, especially if one or more of them is a terrorist who could be considered and defined as an enemy of our country. This would be considered “self defense,” especially if the American being targeted can be described as an enemy, as defined in war.
If the country the “enemy” American citizen is in will not allow consent to capture the person, this would also make him a target for killing.
Shorter white paper analysis: If the president does it it’s not illegal. He just needs good lawyers to argue the case, like George W. Bush had on the “torture memos.”
We are a different country than we were before 9/11 and there’s no evidence we’re ever going back.