DOJ Memo Outlines Legal Case for Killing American Terrorists

Your News Companion by Ben Mathis-Lilley
Feb. 5 2013 10:43 AM

The Elastic Definitions Used by the DOJ To Justify Killing American Terrorists

According to NBC, the white paper was given to the Senate Intelligence and Judiciary committees last summer by the Obama administration as a summary of the classified memo

Photo by John Gress/Getty Images

NBC News' Michael Isikoff has his hands on the 16-page white paper that everyone is talking about this morning. It's his scoop, so we'll let him set the stage:

Josh Voorhees Josh Voorhees

Josh Voorhees is a Slate senior writer. He lives in Iowa City. 

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. ...
[T]he 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." ... 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 unsigned document is not the classified memo in which the DOJ's Office of Legal Counsel approved the killing of Anwar al-Awlaki, the American-born radical Muslim cleric who died in an American drone strike in Yemen back in 2011. But, according to the New York Times reporters who spoke with those who had seen that secret memo back in 2011, the legal analysis laid out in the newly surfaced white paper "closely tracks the rationale" in the memo. According to NBC, the white paper in question was given to the Senate Intelligence and Judiciary committees last summer by the Obama administration as a summary of the classified memo.

The paper itself doesn't discuss any specific target and steers clear of the specifics needed to evaluate what, exactly, is the threshold of evidence required to make a final decision on when it is legal to kill an American. The portions of the document that are currently raising the most questions and concerns are the vague sounding classification of "an associated force," and the rather elastic definition of an "imminent" threat. The former would appear to give the government broad leeway to target anyone they deem even remotely connected to al-Qaida, while the latter gives the government the go-ahead to target a suspect even when the officials, in the words of the memo, have no "clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future." The document, likewise, sheds little light on who makes the final decision, saying only that such determinations can be made by an "informed, high-level official of the U.S. government."

Expect the document and the larger drone program to be a hot topic later this week when President Obama's pick to lead the CIA, John Brennan, is on the Hill for his confirmation hearing. A bipartisan group of senators have already written to the administration demanding to see the full secret legal memo that outlines the case for targeted killings of U.S. citizens. The letter, in the words of the Washington Post, contains "the most forceful warning to date that lawmakers were considering blocking Obama’s nominees to run the CIA and Pentagon unless the memos are turned over."

Here's the full 16-page memo via NBC:



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