Justice Department Justifies Killing Americans Abroad With Links to al-Qaida

A previously secret Justice Department memo justifies killing American citizens abroad who have high level links to al-Qaida. Jeffrey Brown discusses the legal implications of the memo with Matthew Waxman of Columbia Law School and the Council on Foreign Relations, and Hina Shamsi from the ACLU’s National Security Project.

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    A leaked document today put the spotlight back on lethal strikes by the U.S. government on U.S. citizens abroad. In response, top officials in the Obama administration argued their actions are justified and legal.


    The primary concern is to keep the American people safe, but to do so in a way that's consistent with our laws and consistent with our values.


    Attorney General Eric Holder today defended the Justice Department's rationale for authorizing the killings of Americans overseas.


    We are — we have as a basis for action that we take a congressional statute that allows us to operate against al-Qaida and associated entities, not only in Pakistan or not only in Afghanistan, but in other parts of the world.

    We say that we only take these kinds of actions when there's an imminent threat, when capture is not feasible and when we are confident that we're doing so in a way that's consistent with federal international law.


    NBC News obtained a 16-page Justice Department white paper apparently prepared for congressional committees last summer that describes the Obama administration's legal reasoning.

    The document said a lethal operation is legal if it targets a senior operational leader of al-Qaida or an affiliated group, if their capture is not feasible and if an informed high-level official of the U.S. government determines the target poses an imminent threat of violent attacks against the United States.

    The white paper describes such killings as a lawful act of national self-defense and not an illegal assassination. The issue first surfaced in September 2011, when President Obama announced the killing of American-born al-Qaida leader Anwar al-Awlaki. He was the target of a U.S. drone strike in Yemen.


    The death of al-Awlaki is a major blow to al-Qaida's most active operational affiliates. He took the lead in planning and directing efforts to murder innocent Americans.


    U.S. officials say al-Awlaki inspired the Fort Hood shooter in November 2009 and the failed bombing of a Detroit-bound airliner that Christmas, among other attempted attacks.

    Three other Americans, including al-Awlaki's 16-year-old son, have also been killed by U.S. drone strikes in Yemen. Civil liberties groups have said such attacks deprive U.S. citizens of constitutional due process protections.

    But White House Press Secretary Jay Carney justified those actions today as legal, ethical, and wise.

  • JAY CARNEY, White House Press Secretary:

    The questions around this issue are important, and the president takes them seriously. We have significant challenges because of the nature of the attacks, how they're planned, who plans them.

    But there is no question that senior operational leaders of al-Qaida are continually planning to attack the United States, to attack American citizens. The authorization to use military force is entirely appropriate for the United States to target senior operational leaders of al-Qaida.


    The white paper revealed overnight was drawn from more detailed legal memos which remains classified. A bipartisan group of senators led by Oregon's Ron Wyden have asked they be made public in advance of Thursday's hearing on the nomination of John Brennan to be CIA director. Brennan has been key in implementing the stepped-up use of drones to target terror suspects.

    For more now on the Justice Department's white paper, we get two views.

    Matthew Waxman is a professor of law at Columbia Law School and a fellow at the Council on Foreign Relations. And Hina Shamsi is director of the American Civil Liberties Union's National Security Project.

    Hina Shamsi, as you look at this white paper today, did it tell you something you didn't know or something maybe that you feared?

  • HINA SHAMSI, American Civil Liberties Union:

    Well, the arguments in the white paper are quite familiar in many ways to speeches that senior administration officials have given.

    But I think there are two aspects that are particularly problematic and deeply chilling, and everyone should read this white paper. One is what it says or summarizes about the substantive legal standards that the government is apparently applying. It starts out claiming that there are limits, for example, imminent threat, as you quoted in your introduction.

    But then, as you keep reading, as it turns out that for a high-level official to determine that a threat is imminent, he doesn't or she doesn't need clear evidence, there doesn't need to be a specific plot, and there doesn't need to be any indication that the person is near or on a battlefield.

    And so what you have is imminence defined out of its plain meaning and what appear like restrictions are no restrictions at all. You can see how it's easy to manipulate.


    Matthew Waxman, are these standards that you see laid out in this white paper open to manipulation?

  • MATTHEW WAXMAN, Columbia Law School:

    Well, I had a different reaction than Ms. Shamsi did to this document.

    As I read it, I see it as careful and narrow. I still have some questions about it. It's a summary document and there are parts of it that leave some gaps in my mind as to how the reasoning unfolded. But I think this is a serious effort to articulate limits to the president's power to engage in targeted killing and a reasonable effort to translate constitutional and international law to deal with this new kind of war.


    Well, let me ask you this, Professor Waxman. If this only applies to Americans on foreign soil, why wouldn't this reasoning apply to Americans on U.S. soil at home?


    Well, what one of the things that the lawyers — the drafters of this memo do is try to explain that this is an analysis of a limited set of facts, a set of facts that were probably provided by senior officials to deal with situations that confront them in the real world.

    And I think one of the important points that the article makes — I'm sorry — that the memo makes is that we are engaged in an ongoing war, an ongoing armed conflict with al-Qaida, and this is a conflict that is not contained to traditional battlefields abroad, places like Afghanistan.

    That's a position, by the way, that now two presidents of both parties, Congress and the courts have all essentially embraced.


    Let me ask Hina Shamsi about that.

    If this indeed is a brave new day and that there ought to be more latitude given to governments to protect themselves, how do you argue against them taking that latitude and running with it?


    Well, first of all, I think it's an overstatement to say that these are standards that are narrow and restricted. They're not if you read the memo.

    Secondly, these are standards that — this claimed authority is one that virtually no other government in the world accepts, because they're so broad as to be virtually meaningless. And if you think about it, it's the authority to declare a citizen an enemy of the state and kill that person, even when they don't present a truly imminent threat, even when they are far from any battlefield, and without any kind of review by any court before or after the fact.

    And I think that's one of the main things about this memo that is so disturbing and the government's position in general, which is that no court should have any role in determining whether the government's actions, including killing an American citizen, is lawful before or after the fact.

    If the government is as convinced of the lawfulness of its position, then there should be no reason not to go to fight judicial review as much as they have.


    Let me ask Matthew Waxman about that question of judicial review and also the to question about whether — what constitutes a — in the words of the attorney general today, a clear and present danger.



    Well, this is one of the areas where Ms. Shamsi and I disagree. I think it's important that there be a careful review and accountability for these kinds of decisions. But what the memo says — and I think this is right — is that due process doesn't necessarily mean judicial process.

    Ms. Shamsi is right that, in most circumstances where the government is using coercive powers against citizens, detaining them or killing them, occur in our criminal justice system, where the use of — review by courts is the norm. We're talking about warfare and military operations going on halfway around the globe.

    And, traditionally, customarily, the president has broad powers there and courts are not in a position to review those kinds of decisions. Now, one might think that it would be wise for there to be some additional level of review. And one of the questions the memo leaves me wondering is, I would like to know more about what kinds of internal processes the executive branch has to review and vet these kinds of decisions.

    But the fact that it might be wise to do that doesn't mean that it's constitutionally required.


    Ms. Shamsi, I want to ask you about the method by which these attacks happen. And that's drones. Do you draw a line between the use of drones at all and the use of drones in order to get to American citizens?


    Look, I think the concern is less about the actual kind of weapon used and the fact that lethal force is authorized in the first place.

    And I would disagree with Professor Waxman on a couple of very key points. One is that there is — he's accepting the conclusion that there is a war without geographic limitations. We are admittedly in an armed conflict in the war in Afghanistan, but at the time of the killings, for example, that we are contesting in a lawsuit with Center for Constitutional Rights of three American citizens in 2011, there was no armed conflict in Yemen, where the killings took place, at the time that the killings happened.

    So what's truly troubling here is how broad the assertion of authority is and how hard the administration is fighting to prevent the courts from looking at the legality of the authority that it claims.


    And we should mention that, even though Anwar al-Awlaki's name is not mentioned in this memo, Mr. Waxman, that there is some assumption that this is a kind of an after-the-fact justification, that is, it explains, it speaks very clearly to the situation she just referred to, the three Americans who had been killed in 2011.

    Is that something that we should be concerned about?


    Well, let me say, I we should be concerned about the idea of the government being able to use lethal force against citizens, but we should also be concerned about the idea that terrorist leaders and plotters can plan attacks on the United States and the president would be powerless to take military action against them.

    We need to try to strike a balance between those two things. Now, as to Ms. Shamsi's concerns about the conduct of these operations in Yemen, you know, I wish it were true that al-Qaida and its operations were contained to places like Afghanistan, but everything that I have read and know about al-Qaida suggests that its — many of its activities have been waged from territory in Yemen.


    OK. Well, that's — I'm sorry.

    You had one final point, quick point you wanted to make?


    No, no, no.


    Can I just — oh.


    Ms. Shamsi.



    Our lawsuit concerns not only Anwar al-Awlaki. It also concerns a 16-year-old boy, Abdulrahman al-Awlaki, who was killed by a drone strike while he was eating dinner at an outdoor restaurant. No one has alleged any wrongdoing against him.




    And his family has not received any acknowledgment at all that this killing took place. And they want answers, which is what we're seeking.


    Well, there's certainly more questions than answers at this point.

    Hina Shamsi of the ACLU and Matthew Waxman of Columbia Law School, thank you very much.


    Thank you.


    Thank you.


    You can read the Justice Department's memo for yourself. You will find a link to that on our website.