“The Department assumes the rights afforded by the Fifth Amendment’s Due Process Clause, as well as the Fourth Amendment, attach to a U.S. Citizen even while he is abroad.”
As you have probably already seen, Michael Isikoff at NBC News has obtained a Justice Department white paper that argues under what conditions it is lawful for the government to kill a US citizen.
You can download and read the entire document here: 020413_DOJ_White_Paper
The Department of Justice authors conclude, “that where certain conditions are met, a lethal operation against a U.S. citizen who is a senior operational leader of al-Qa’ida or its associated forces — a terrorist organization engaged in constant plotting against the United States — would not violate the Constitution. The paper also includes an analysis concluding that such an operation would not violate certain criminal provisions prohibiting the killing of U.S. nationals outside the United States…”
The leaked document is only sixteen pages long. It is thought to summarize much more extensive legal briefs and studies. It is worth your careful read before any of us begin our own analysis and commentary.
Here’s the original NBC News story: Legal Case for Drone Strikes
Here’s a follow-on NBC News report on various reactions to the leaked report: Legal Experts Fear Implications of Drone Memo
THURSDAY FEBRUARY 7 UPDATE:
According to the New York Times — an many other media — “The White House on Wednesday directed the Justice Department to release to the two Congressional Intelligence Committees classified documents discussing the legal justification for killing, by drone strikes and other means, American citizens abroad who are considered terrorists.”
“The White House announcement appears to refer to a long, detailed 2010 memo from the Justice Department’s Office of Legal Counsel justifying the killing of Anwar al-Awlaki, an American-born cleric who had joined Al Qaeda in Yemen. He was killed in a C.I.A. drone strike in September 2011. Members of Congress have long demanded access to the legal memorandum.”
“The decision to release the legal memo to the Intelligence Committees came under pressure, two days after a bipartisan group of 11 senators joined a growing chorus asking for more information about the legal justification for targeted killings, especially of Americans.”
FRIDAY, FEBRUARY 8 UPDATE:
Further attention — if not much more insight — is available from yesterday’s Senate confirmation hearing on the nomination of John Brennan.
In one of the hearing’s most interesting exchanges, Republican Senator Susan Collins of Maine drew back further, asking Brennan whether some basic assumptions about the fight against al Qaeda should be challenged. Noting that the terror group continues to spread, Collins asked, “If the cancer of al Qaeda is metastasizing, do we need a new treatment?” Collins noted that even an experienced military official like former General Stanley McChrystal have begun wondering aloud whether America has become too reliant on drones, at the expense of breeding resentment and backlash within the Muslim world. (You can read about that and related issues in TIME’s recent drones cover story.)
“We have to be very mindful” of local reactions to drone strikes, Brennan answered. But he insisted that people in al Qaeda-infested areas have “welcomed” American strikes on terrorist leaders. It was another cautious and not terribly revealing answer. But Brennan’s response may have been less significant than the concern expressed by a senior Senator—a Republican no less—about America’s drone war. The Brennan hearing may have shed little light on Obama’s likely next CIA director. But it might have been a sign that, when it comes to our long counter-terror campaign, a long-acquiescent Congress is finally getting restless.
Mr. Brennan’s opening statement, video of the hearing and more is available from the Senate Select Committee on Intelligence website.
One brief excerpt from Mr. Brennan’s opening statement:
I have publicly acknowledged that our fight against al-Qa’ida and associated forces has sometimes involved the use of lethal force outside the “hot battlefield” of Afghanistan. Accordingly, it is understandable there is great interest in the legal basis as well as the thresholds, criteria, processes, procedures, approvals, and reviews of these actions. I have strongly promoted such public discussion with the Congress and with the American people, as I believe that our system of government and our commitment to transparency demand nothing less.
Also available at the Committee website are Mr. Brennan’s answers to several pre-hearing questions. On pages 24-30 there are several issues raised and responded to which relate to the government’s use of lethal force against US citizens suspected of threatening the United States.
In the February 21 edition of the New York Review of Books, David Cole sets-out thirteen questions for Mr. Brennan to answer. Happily there are meaningful overlaps between the Cole questions and those posed by the Committee.
Major media is covering the give and take during the hearing, but a video of the entire hearing is also available at the Committee’s website.
Thoughtful people have critiqued Mr. Brennan’s answers to the Committee as demonstrating how to spend hours sounding responsive and say nothing. To my ear the answers were careful, nuanced, sometimes Talmudic. Mr. Brennan is especially keen to remind people that, “I am not a lawyer.” But his answers can be lawyerly. When the issues are as complex as those under consideration qualified responses are justified.