Justice Department White Paper: Government Can Kill Americans without Clear Evidence

According to an unclassified Department of Justice white paper released by NBC News, the U.S. government can kill Americans without charge or trial or even “clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future” as part of the highly controversial drone assassination program.

The 16-page paper (mirrored here) released late February 4, 2013 is not, however, the Office of Legal Counsel memo which was at issue in the case in which a judge ruled the federal government can claim the right to legally kill Americans without ever revealing that legal justification.

The undated paper is not an official legal memo, although according to NBC, “the white paper was represented by administration officials as a policy document that closely mirrors the arguments of classified memos on targeted killings by the Justice Department’s Office of Legal Counsel, which provides authoritative legal advice to the president and all executive branch agencies.”

This document is apparently separate from the Obama administration’s yet-to-be-completed drone killing rulebook, which the CIA would reportedly not have to follow.

The white paper outlines some quite disturbing facts behind the government’s justification of their so-called targeted killing program.

Indeed, the document refers to a “broader concept of imminence” than any actual intelligence about an ongoing plot against the United States or any U.S. interest.

“The condition that an operational  leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future,” states the unsigned and undated white paper.

While the document claims that it is focused on a hypothetical U.S. citizen “who is a senior, operational leader of al-Qa’ida or an associated force of al-Qa’ida,” it reveals that the individual might not actually have to be “a senior, operational leader” as such.

The white paper says an “informed, high-level” U.S. government official can determine that the American being targeted has been “recently” involved in “activities” that pose a threat of violent attack and “there is no evidence suggesting that he has renounced or abandoned such activities.”

Another disturbing aspect of the white paper is the complete lack of specificity and clarity throughout the document, even when it comes to the most critical terms.

The words “recently” and “activities,” used in the incredibly important context above, are never defined by the paper, which is entitled “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen who is a Senior Operational Leader of Al Qa’ida or An Associated Force.”

The paper, which NBC calls “confidential” yet not classified, was reportedly given to members of the Senate Intelligence and Judiciary committees in June of last year by officials in the Obama administration “on the condition that it be kept confidential and  not discussed publicly.”

It outlines an incredibly ambiguous three-part test that supposedly makes the execution of Americans without charge or trial:

1. The targeted American must be an “imminent” threat (imminent is redefined in the memo in order to completely strip it of its usual meaning)
2. The capture of the target must be infeasible and “U.S. officials may consider whether an attempted capture of a suspect  would pose an ‘undue risk’ to U.S. personnel involved in such an operation,” as NBC puts it (emphasis mine)
3. The strike must be conducted according to what the document calls “law of war principles” (keep in mind that a 16-year-old American was killed under this program)

“This is a chilling document,” said Jameel Jaffer, deputy legal director of the ACLU involved with the case which attempted to uncover the classified memo in court.

“Basically, it argues that the government has the right to carry out the extrajudicial killing of an American citizen,” Jaffer said. “It recognizes some limits on the authority it sets out, but the limits are elastic and vaguely defined, and it’s easy to see how they could be manipulated.”

Jaffer notes that the memo “redefines the word imminence in a way that deprives the word of its ordinary meaning.”

On Monday, 11 senators led by Oregon Democrat Ron Wyden united across party lines to write a letter to Obama calling for the release of all Justice Department memos on the drone assassination program.

While the senators said that “there will clearly be circumstances in which the president has the authority to use lethal force” against Americans who take up arms against the U.S. as part of an opposing fighting force, they highlighted the need for clarity.

“It is vitally important, however, for Congress and the American public to have a full understanding of how the executive branch interprets the limits and boundaries of this authority, so that Congress and the public can decide whether this authority has been properly defined, and whether the President’s power to deliberately kill American citizens is subject to appropriate limitations and safeguards,” said the letter, according to Hindustan Times.

This comes as U.S. colleges and universities have begun offering more drone piloting programs to keep up with the domestic drone boom, the U.S. military is operating drones domestically and sharing data with law enforcement and Leon Panetta said the drone war must continue abroad indefinitely.

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