DOJ lays out legal argument for Drone strikes on US Citizens

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

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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