A Justice Department White paper
issued late Monday, justifies killing Americans abroad if they pose an imminent threat to the United States. The document details that the American citizen has to be associated group and poses an imminent threat to the United States.
The document further details that the imminent threat does not have to be based on intelligence of a specific attack, but “imminence must incorporate considerations of the relevant window of opportunity." It must also take collateral damage to civilians into consideration.
The determination of imminent threat can be made by any high level US government official and authorized by the president. The memo was written ahead of the September 2011 drone strike that killed Anwar al-Awlaki, a U.S.-born Muslim cleric and and Samir Khan accused of helping al-Qaida’s Yemeni affiliate plan attacks against the United States. While Anwar al-Awlaki's killing was the most high profile killing, three other Americans have also been killed in Yemen.
John Brennan, who has been nominated to head the Central Intelligence agency (CIA)
, was the first high level US official to publicly mention and justify drone strikes on American citizens.
The secrecy surrounding such strikes is fast emerging as a central issue in this week’s hearing of White House counterterrorism adviser John Brennan, a key architect of the drone campaign, to be CIA director. Brennan was the first administration official to publicly acknowledge drone strikes in a speech last year, calling them “consistent with the inherent right of self-defense.”
According to the Washington Post
, the Obama administration, backed by decisions upheld by the court, has repeated denied the release of the memo. John Brennan, who was President Obama's chief counterterrorism advisor, will be on capitol hill on Thursday for Senate confirmation hearing. Senators are expected to drill him on drone strikes and he memo.
Senators are expected to closely question John O. Brennan, President Obama’s chief counterterrorism adviser, on drone strikes, the memo and the Awlaki killing during Brennan’s confirmation hearing Thursday on his nomination to become Obama’s new CIA director.
It would appear that the chickens have come home to roost. The American Civil Liberties Union (ACLU) called the memo a highly disturbing overreach of authority. The memo claims the power to declare Americans a threat and kill them far from a recognized battlefield. This action is authorized without the involvement of the judicial process. The fact that any high level US official can declare a US citizen to be an imminent threat, with little criteria, should ring alarm bells.
While killing American citizens abroad seems to be a legal act, as far as the Obama administration is concerned, waterboarding has been defined as torture by the same administration.
In its war on terror, the Bush administration through Jay S. Bybee, the Office of Legal Counsel, Department of Justice, issued in August 2002 and March 2003 what became known in 2004, after being leaked, as the Torture Memos. These legal opinions (including the 2002 Bybee memo) argued for a narrow definition of torture under U.S. law. The first three were addressed to the CIA, which took them as authority to use the described enhanced interrogation techniques (more generally classified as torture) on detainees classified as enemy combatants. In March 2003, John Yoo, the acting Office of Legal Counsel, issued a fourth memo to the General Counsel of DOD, concluding his legal opinion by saying that federal laws related to torture and other abuse did not apply to interrogations overseas, five days before the March 19, 2003 invasion of Iraq. The legal opinions were withdrawn by Jack Goldsmith of the OLC in June 2004 but reaffirmed by the succeeding head of the OLC in December 2004.During the presidency of George W. Bush, U.S. government officials at various times said they did not believe waterboarding to be a form of torture.
In January 2009, with a change in administrations, U.S. President Barack Obama banned the use of waterboarding and other forms of torture in interrogations of detainees. In April 2009, the U.S. Department of Defense refused to say whether waterboarding is still used for training (e.g. SERE) U.S. military personnel in resistance to interrogation.
The question arises, how killing Americans abroad without a trial or any kind of judicial process is any more legal than "enhanced interrogation." President Obama and his justice department can't have it both ways.