News Release

Obama Administration’s Justification for Killing Without Charges


Today Glen Greenwald writes in “Chilling Legal Memo from Obama DOJ Justifies Assassination of U.S. Citizens” that: “The most extremist power any political leader can assert is the power to target his own citizens for execution without any charges or due process, far from any battlefield. The Obama administration has not only asserted exactly that power in theory, but has exercised it in practice. In September 2011, it killed U.S. citizen Anwar Awlaki in a drone strike in Yemen, along with U.S. citizen Samir Khan, and then, in circumstances that are still unexplained, two weeks later killed Awlaki’s 16-year-old American son Abdulrahman with a separate drone strike in Yemen.

“Since then, senior Obama officials including Attorney General Eric Holder and John Brennan, Obama’s top terrorism adviser and his current nominee to lead the CIA [with his nomination hearings scheduled for Thursday], have explicitly argued that the president is and should be vested with this power. Meanwhile, a Washington Post article from October reported that the administration is formally institutionalizing this president’s power to decide who dies under the Orwellian title ‘disposition matrix’.

“Last night, NBC News’ Michael Isikoff released a 16-page ‘white paper’ prepared by the Obama DOJ that purports to justify Obama’s power to target even Americans for assassination without due process. This is not the primary OLC memo justifying Obama’s kill list — that is still concealed — but it appears to track the reasoning of that memo as anonymously described to the New York Times in October 2011.

“This new memo is entitled: ‘Lawfulness of a Lethal Operation Directed Against a US Citizen Who is a Senior Operational Leader of Al-Qa’ida or An Associated Force’.”

MARJORIE COHN, [email], http://www.marjoriecohn.com
Professor at Thomas Jefferson School of Law and former president of the National Lawyers Guild, Cohn is also the author of The United States and Torture. She said today: “The white paper runs afoul of international and U.S. law. It allows the killing of a U.S. citizen who is not on the battlefield if ‘an informed, high level [government] official’ thinks the target is a senior al-Qaeda leader who poses an imminent threat of violent attack against the U.S. The memo permits the government to target anyone remotely associated with al-Qaeda even when there is ‘no clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.’

“Under well-established principles of international law, the need for self-defense must be ‘instant, overwhelming, and leaving no choice of means, and no moment for deliberation.’ The UN Charter allows the use of military force only in self-defense when responding to an armed attack. It is up to the Security Council, not a U.S. official, to determine whether there is a breach of or threat to international peace and security. The Geneva Conventions define willful killing as a grave breach, which constitutes a war crime. Moreover, the Constitution’s Due Process Clause forbids the government from depriving anyone of life without due process of law. That requires a hearing and opportunity to present evidence. Executing someone with a drone does not constitute due process.” Cohn co-wrote the piece “Killer Drone Attacks Illegal, Counter-Productive.”

MARCY WHEELER, [email], @emptywheel
A noted blogger on legal issues, Wheeler writes at EmptyWheel.net. She just wrote the piece “The Timing of the White Paper” and the piece “This Isn’t the Memo You’re Looking For,” which states: “As important as it is to see the white paper DOJ gave Congress to explain its purported legal rationale, it is just as important to make clear what this white paper is not. First, it is not the actual legal memos used to authorize the killing of Anwar al-Awlaki and who knows who else. As Michael Isikoff notes in his story, the Senators whose job it is to oversee the Executive Branch — even the ones on the Senate Intelligence Committee that are supposed to be read into covert operations — are still demanding the memos, for at least the 12th time. The release of this white paper must not serve to take pressure off of the White House to release the actual memos.

“Which brings me to an equally important point: memos. Plural. NBC suggests and the close tracking appears to support that this white paper is a version of the OLC memo written in June 2010 and reported on — the last time there was clamor to release the targeting killing authorization publicly — by Charlie Savage. …”