[A]n “informed, high-level” official of the U.S. government may determine that the targeted American has been “recently” involved in “activities” posing a threat of a violent attack and “there is no evidence suggesting that he has renounced or abandoned such activities.” The memo does not define “recently” or “activities.”
U.S. citizens who have been targeted by drone strikes include al-Qa'ida operatives Anwar al-Awlaki and Samir Khan. Al-Awlaki's 16-year-old son, Abdulrahman al-Awlaki, was also an American citizen who was killed in a separate strike from the one that killed his father. The memo notes that assassinations of American citizens in this manner are justified as long as civilian casualties aren't "excessive." Presumably, Abdulrahman al-Awlaki's death in a strike that was meant for militants was not judged to be "excessive."
The memo extensively cites Hamdi v. Rumsfeld, the 2004 Supreme Court case that recognized that the federal government could detain non-American "enemy combatants," but that detainees had to have access to American legal norms of due process. The memo denies that targeted assassination of American citizens doesn't violate the due process clause.
The logic that the memo uses says that targeted American citizens must be with "al-Qa'ida or an associated force" and act as "an operational leader continually planning attacks against U.S. persons and interests." The word "continually" does a lot of work here, however, and it's unclear as to what might constitute an "imminent threat." For example, the memo states that if an American "has recently been involved" in terrorist planning operations and "there is no evidence suggesting he has renounced or abandoned such activities," the American could be said to pose "an imminent threat."
The conclusion of the memo lays out the case more succinctly, though this is just as vague as the rest of the memo.
Members of Congress have already taken action. (Well, at least, as much action that Congress can take on short notice.) A bipartisan group of eight senators has written a letter to the Obama Administration seeking the legal justification for these assassinations.
As the Senate Select Committee on Intelligence prepares to consider White House national security official John Brennan’s nomination to be the next Director of the Central Intelligence Agency, U.S. Senators Ron Wyden (D-Ore.), Mike Lee (R-Utah), Mark Udall (D-Colo.), Chuck Grassley (R-Iowa), Jeff Merkley (D-Ore.), Susan Collins (R-Maine), Dick Durbin (Ill.), Patrick Leahy (D-Vt.), Tom Udall (D-N.M.), Mark Begich (D-Alaska) and Al Franken (D- Minn.) have sent a letter to President Obama seeking the legal opinions outlining the President’s authority to authorize the killing of American citizens during the course of counterterrorism operations.
While the DoJ memo hints at what could be considered a legal justification, it doesn't particularly clear up the inevitable questions that arise. What this might do is bring a spotlight on the coming hearings for Obama's nominee for the head of the CIA, John Brennan. Brennan has long been a champion of the Obama drone program, and this memo gets at what has long been considered to be the most troubling aspect of the drone program: the Obama Administration's presumption that it has the legal power to target American citizens for assassination.
Note: the original version of this article read that Abdulrahman al-Awlaki was killed in the same strike as Anwar al-Awlaki. They were killed in two separate drone strikes two weeks apart.
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