DOJ lays out legal argument for Drone strikes on US Citizens

| February 5, 2013

Crossposted from the paying gig, but I wanted you guys to weigh in as well.


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 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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Category: Politics

Comments (17)

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  1. Hondo says:

    I seem to remember another Justice Department memo that ended up getting quite a bit of scrutiny later. And that memo which only dealt with interrogation techniques – not targeting specific individuals for attacks involving lethal force.

    It will be interesting to see if this memo ends up getting the same level of “Monday morning quarterback” scrutiny in a few years.

  2. Twist says:

    I wouldn’t hold your breath, Hondo.

  3. LanceCooley says:

    Maybe we should get ObamaGirl over on this thread to define what they mean by “combat,” viz. “realities of combat…use of force necessary and appropriate…”

    My concern with this is the same as yours, sir; who’s making those calls? It just doesn’t sit well with me, but if it were any other administration, I’m not sure I’d be as concerned as I am now. Also, all joking aside, what do they mean “realities of combat,” combat where? I see they make the proviso “outside the United States…,” but how long before that little bit is changed?

  4. David says:

    You know, when you trust the folks holding the reins of power to make reasoned, wise decisions, it’s not a stretch to think “yeah, someone who takes up arms against us needs to go away” and sleep well afterwards. But when you look at the by-and-large venal, crooked, partisan collection of spineless sycophants of both parties whom we elected…

  5. Ex-PH2 says:

    I’m uncomfortable with this concept for several reasons:

    1 – The CIA has a history of misidentifying, abducting and interrogating people based solely on their names. While I realize that the DoJ is no the CIA, this seems to give them license to act as the CIA. The two most recent misbehaviors on the part of the DoJ, which involved unnecessary violence and resulted in the deaths of people, are my reference point. I’m not excusing the behavior of the people who were under scrutiny, only saying that the methods used and their results were unnecessary.

    2 – While it does specify ‘outside the United States’ as a target zone, what is to prevent the modification of the target zone to include inside the borders of the United States, and will those of us living within the borders of the US be notified of such a change?

    3 – It does not specify who is to determine who the targets are. And does this mean that Americans traveling abroad can also be targeted simply because they are in a specific area? Will they receive no warning?

    4 – “Outside the United States” seems innocuous enough, but there is a vast area outside the United States, including our neighbors to the north and south, the UK, Europe and other assorted ‘areas’. It is far too general in its context to say ‘outside the United States’.

    This smacks of the ‘Noah Bosson’ syndrome in the “Bourne” movies and the 007 attitude — license to kill. It isn’t just elections that have consequences.

  6. AW1 Tim says:

    The fact that an individual possess US Ciotizenship should have no bearing on this discussion, if THAT individual has joined an enemy force. If he’s (or she) fighting alongside AQ or the Taliban or Al Shabab, or whatever, is all the evidence needed. That makes him an enemy combatant and, as such, eligible to be killed.

    We did not discriminate during any of our previous wars. There were US citizens who left these United States to fight for the Kaiser, and also for Hitler. They were treated like any other combatant.

    AQ, the Taliban, etc, have declared war upon us. That should be all the legal niceties needed to kill any US Citizen fighting with them, or who has joined them.


  7. TSO says:

    Respectfully, I disagree Tim.

    What if (Random tea party activist) went to (Carribean destination) on vacation, and we hit him with a drone missile? So the DoD says he was working with AQ. Proof? None. Due Process? None.

    I agree if someone ACTUALLY renounces their citizenship etc. But look up what it takes to actually renounce citizenship. It’s not just saying I’m not an American.

    Put another way, absent any objective evidence, how do you tell the difference between a vacationer and a terrorist?

  8. TSO says:

    Again, bear in mind that US citizens killed working with the Nazis in WWII were in the theater of operation. But what if they killed Helmut von Klingoffer of Cleveland who was in Iceland enjoying a cold beverage?

  9. Veritas Omnia Vincit says:

    This whole thing gets dodgy quickly, these are the guys who couldn’t run a sting involving weapons sold to Mexican cartel members right? This is the same party that tried to serve a warrant under the last 8 year democratic president and got over 80 others killed in the process right? I don’t trust most politicians with this type of decision making.

    While killing the heads of enemy organizations is something we have done before, Yamamoto was a classic case of a decision to target and kill a specific individual, there is in this memo the first condition which is a subjective argument. “Imminent threat of violent attack”.

    AQ leaders seldom engage directly in a violent attack they direct others to perform these actions. Is item 1 suggesting we should have used a drone strike against the shoe bomber had we credible intelligence he intended to detonate the plane? Would we have struck him in Heathrow? Or are we talking about drone strikes against nations who have no ability to respond?

    But I fear drone strikes are the future for both sides of this conflict.

    I have stated this before, drone technology doesn’t have to be 10s of millions. A reasonable drone that can carry a deadly payload can be built by anybody with a little technical skill. I have built a drone that flies around my neighborhood using GPS waypoints, orbit for a minute and then move to the next point all the while the drone is photographing every point. And I am not a tech genius, the guys that are really good have drones that, while certainly not predators, are more than capable of carrying enough of a payload to destroy a home if that payload were military grade explosives. Stay tuned, this is not the first or last on this topic.

  10. Hondo says:

    VOV: and yet, the alternative to trusting political leadership to make such decisions is either (1) refusal to make a decision, or (2) allow the military and/or IC decision makers to make the decisions instead. The former ignores and defers the problem; the latter is problematic for many other reasons – most notably that pesky “civilian control of the military” aspect, but also in terms of accountability.

  11. Veritas Omnia Vincit says:

    @11 I was not advocating a no decision or a military only process, I understand these decisions need to be made quickly sometimes as well, I might perhaps be more comfortable with some oversight even post facto. I think killing the leaders isn’t a terrible plan, I think killing their families is not a terrible plan. I think making them aware of the ROE they initiated through killing friends and family makes sense to me. I do however believe without a formal oversight/review program the potential for mistakes/miscarriages is amplified.

    This oversight would be classified as is the case for many CIA reviews, I am concerned when only one branch has the review/approval process under its roof without the check and balance of the 2 other branches.

    Without any review and formal procedural amendment we have learned little of what happened in Fast and Furious, I would like to hope that the government at least is taking a serious review and amending approval processes to avoid these situations behind closed doors (I doubt that is actually the case but I can hope). That was a sting operation, a kill order that is reviewed prior or post facto by a separate branch can also help to adopt a more formal workable process to achieve operational goals with less worry about mis-use/criminal wrongdoing. That’s a direction I could support I believe.

  12. Common Sense says:

    It’s very simple for me. American citizens are guaranteed a trial by jury, whether they are present or not.

    Follow the Constitution, have a trial with a verdict and sentence. If the sentence is death, then carry that out by whatever means necessary.

    This whole thing is outside of the law and I don’t see where it says they can’t use it on whomever, wherever they want.

  13. MCPO NYC USN (Ret.) says:

    It is simple for me.

    Join the other side … enjoy their fate!

    No trial … treat them as the enemy IAW law of armed conflict (LOAC).

  14. Ex-PH2 says:

    There is something that is lost in all of this barking dog media alarm. It may be due to short term memory malfunction. Don’t know, but it was not so very long ago, right around the time that bin Laden was taken out, that one of these drones crashed in Iran and was on display by the Iranian media, and was subsequently sold to the Chinese.

    So what is it about the people in this administration forget that kind of thing? And how dumb do they think the Chinese are? The Chinese do, after all, have their own nukes, amply demonstrated back in the 1960s and 1970s. And why is this kind of thing left at the back of the file cabinet as if it were unimportant?

  15. Ex-PH2 says:

    Here’s something from tonight’s news. Charlottesville, VA, has voted to not use info from drones in court. Too much like Big Brother.