MURDER, POLITICS, AND THE END OF THE JAZZ AGE
by Michael Wolraich
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DOJ White Paper on targeted killings of Americans leaked just in time for Brennan confirmation hearing
By artappraiser on Tue, 02/05/2013 - 12:15pm |Justice Dept. document justifies killing Americans overseas if they pose ‘imminent threat’
By Karen DeYoung, Washington Post, Feb. 5, 2013
The United States can lawfully kill a U.S. citizen overseas if it determines the target is a “senior, operational leader” of al-Qaeda or an associated group and poses an imminent threat to the United States, according to a Justice Department document published late Monday by NBC News. [....]
The memo was written months prior to a September 2011 drone strike in Yemen that killed Anwar al-Awlaki, a U.S.-born Muslim cleric accused of helping al-Qaeda’s Yemeni affiliate plan attacks against the United States [.....]
The Obama administration, in decisions upheld in federal court rulings, has repeatedly denied demands by lawmakers, civil rights groups and the media to release the memo and other information on targeted killings — or even to acknowledge their existence. 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. [.....]
Here is the NBC piece:
EXCLUSIVE: Justice Department memo reveals legal case for drone strikes on Americans
By Michael Isikoff, NBC News, Feb. 4, 2013
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: [....]
...the confidential Justice Department “white paper” introduces a more expansive definition of self-defense or imminent attack than described by Brennan or Holder in their public speeches. It refers, for example, to what it calls a “broader concept of imminence” than actual intelligence about any ongoing plot against the U.S. homeland.[....]
URL:
http://www.washingtonpost.com/politics/justice-dept-memo-justifies-killing-americans-overseas-if-they-pose-imminent-threat/2013/02/05/44e90920-6f5a-11e2-8b8d-e0b59a1b8e2a_story.html?hpid=z3
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Comments
This, from Isikoff's piece, suggests the leak came from the Senate:
by artappraiser on Tue, 02/05/2013 - 12:29pm
Would this include, comments by groups of American or foreign, who are angry with any administration?
How easy could any administration say "the dissenters were aiding and abetting an atmosphere of discontent" although the dissenters, had no intention of an active plot to attack the US, except to verbally attack an administrations policies?
Haven't we seen this before?
by Resistance on Tue, 02/05/2013 - 5:40pm
Roundup of reporting and commentary links @ Lawfare blog:, first couple paragraphs here:
http://www.lawfareblog.com/2013/02/todays-headlines-and-commentary-357/
by artappraiser on Tue, 02/05/2013 - 6:18pm
It's good that the drone attacks are getting belated attention from Congress. But when the targets are Al Qaeda members, the laws of war don't require that they be engaged in an "active" plot before we can kill them. Just being a member of the enemy army makes you a lawful target.
by Aaron Carine on Wed, 02/06/2013 - 5:12pm
Member or supporter? Who defines the distinction?
If you give support to victims of foreign drone attacks, are you aiding and abetting?
If your real intent was to help Palestinian children, could it be misconstrued as helping the enemy?
Slippery slope seems so overused, how about the law of unintended consequences.
Come into the local Stazi office, Joe citizen, explain to our interrogators your intentions!Stasi - Wikipedia, the free encyclopedia
From another source
by Resistance on Wed, 02/06/2013 - 7:42pm
No, helping victims of drone attacks doesn't make you a combatant(the attacks on people who gather to help the wounded are war crimes).
But it isn't so hard to make a distinction between supporters and members. The people who approve of Al Qaeda, or provide them with food or shelter, are supporters.
The people who enlist in Al Qaeda and either bear arms, have been trained to commit acts of terror, or who plan and direct acts of terror are members.
by Aaron Carine on Wed, 02/06/2013 - 7:53pm
But it isn't so hard to make a distinction between supporters and members
Who is going to oversee this operation. What judges are going to sign off on this pseudo justice.The same folks detaining prisoners in Guantanamo?
by Resistance on Wed, 02/06/2013 - 11:18pm
But it isn't like a judicial proceeding. It's war. I think military intelligence can identify enemy strongholds much of the time. The way I've heard it, most of the dead militants have been foot soldiers rather than commanders. There have been war crimes, which is why we need Congress to get more involved in this business.
by Aaron Carine on Thu, 02/07/2013 - 7:21am
Your point is one of the major ones, mho, maybe the only one that matters. I haven't kept up with the developments in international law on this (declaration of war in this age of non-state actors and what constitutes the same, who qualifies as a combatant, etc.) enough, but whatever has been happening, it's clear it's not enough for even the immediate future as warfare continues to change radically. Yeah, it's good that Congress is getting into it. Any discussion like this happening gets the ball rolling where it needs to go, even if it doesn't turn out well at first. It was interesting how the Obama administration got a little panicky before the election with the "what if we don't win" along the lines of looking into what precedents they had in place for a President Romney. That, along with their reluctance to talk or release more, said to me that they just have put dealing with the whole mess on the back burner and wanted to continue to go day-by-day as long as they could, until forced to deal with it.
In the past, I always found the argument that "terrorists" should be treated as criminals, not combatants, agreeable, but I believe now that thinking that is naive and passe. Just one look at the situation in Mali/Algeria and the hostage situations preceding, or something like the embassy attack in Benghazi, tells one so. It's not possible to fight groups of people wanting to goad into wars of civilizations (and wanting it badly enough to die for it) with national or international civilian police forces. They are an important part, but they can't always do enough.
by artappraiser on Wed, 02/06/2013 - 8:55pm
I always have a difficult time with this issue and I have to smile when people automatically assume that this or that attorney absolutely knows the answer, as if there is one. The point is we have an intersection of at least two fundamental public policies--national security and due process--and it is difficult to be reconcile both at times and certainly in the context in which drones (to my knowledge) are being used. Anyone who says anything else at the threshold is just plain wrong and the discussion should proceed accordingly.
Now we have set up various international systems through treaty and otherwise to regulate the conduct among nations. But those systems are dependent on a network of state actors that generally will not work when you are dealing with an al qaeda cell or field unit (for example). That's not even getting into who is and who is not "a terrorist". But it's just incorrect and silly to argue, for example, that an al qaeda unit in Yemen is going to agree to abide by the Geneva Convention if it captures the sheriff who done goes out yonder to serve papers because that's what Greenwald told us must be done.
All that said, there is of course a role for Congress to delve into the use of drones and to hold those accountable to the extent that that program--whether ultimately justified or not--has led to the deaths of too many innocents, etc. And, of course, the courts must be involved in addressing these issues as well.
But the notion that extra-judicial killings are per se unconstitutional is just argument, and not law.
by Bruce Levine on Thu, 02/07/2013 - 8:46am
Was just thinking, in the end, all those who weren't screaming about Osama Bin Laden's lack of a fair trial before execution don't deserve to be taken seriously as a true believer. You're either an absolutist on that or you're with the rest of us who merely disagree about who is an enemy combatant and who isn't. American citizens aren't special here if your a true believer. Our soldiers invaded and attacked his home, his castle ( not to mention his bedroom where his wife sleeps and his children play with their toys...) No outrage? Why not? Because he declared war on us first, it's war. And he didn't agree to any Corleone- style rules-of-war or any other kind, he was actually a major proponent of breaking all the rules.
by artappraiser on Thu, 02/07/2013 - 3:11pm
The Navy SEAL who wrote that book said they were ordered to take Bin Laden alive and only kill him if he was a threat. But he also says that order wasn't obeyed.
by Aaron Carine on Thu, 02/07/2013 - 6:01pm