Late Monday evening, NBC's Michael Isikoff released a report detailing a confidential Justice Department memo obtained by NBC News. The memo, called the white paper, discusses the legal justifications for the use of drone strikes and other lethal attacks against American citizens believed to be members of al-Qaida, offering explanations that expand on public statements previously issued by Obama's nominee for CIA director John Brennan and Attorney General Eric Holder.
Whereas Brennan and Holder have both stated that such targeted killings were "consistent with the inherent right of self-defense" (Brennan) and used when the target poses "an imminent threat of violent attack" (Holder), the white paper offers a much broader justifications for such attacks. For instance:
"The 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," the memo states.
Instead, it says, an "informed, high-level" official of the U.S. government may determine that the targeted American has been "recently" involved in "activities" posing a threat of a violent attack and "there is no evidence suggesting that he has renounced or abandoned such activities." The memo does not define "recently" or "activities."
The memo also reiterates a three-part test previously mentioned by Holder that would make the targeted killing of an American citizen legal.
1) The above very vague definition of "imminent threat"
2) That the capturing of the target is decided to be "infeasible"
3) The attack must be done within the "law of war principles."
But whereas Holder's public statements were vague, the white paper goes into specifics.
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.
The white paper also clarifies, or attempts to anyway, why such targeted killings aren't war crimes or assassinations, which are banned under executive order.
"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."
It's worth noting that the white paper is not an official legal memo, but it's considered to closely resemble classified memos used by the Justice Department's Office of Legal Counsel. The Obama administration has rejected repeated requests to release those classified documents to Congress or the public, and has denied their existence.
Human right advocates are, as you might expect, upset with the document's revelations.
"This is a chilling document," said Jameel Jaffer, deputy legal director of the ACLU, which has sued unsuccessfully in court 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."
It takes as a given that the target of the strike will be a "senior operational leader of al-Qa'ida or an associated force of al-Qa'ida," and it reasons from that premise that judicial process is unnecessary. This is a little bit like assuming that the defendant is guilty and then asking whether it's useful to have a trial. Perhaps the white paper omits analysis that appears in the Justice Department's legal memos, but again the legal memos are, inexcusably, still secret.
My colleagues will have more to say about the white paper soon, but my initial reaction is that the paper only underscores the irresponsible extravagance of the government's central claim. Even if the Obama administration is convinced of its own fundamental trustworthiness, the power this white paper sets out will be available to every future president-and every "informed high-level official" (!)-in every future conflict.
[Image via AP]