"Kill List" justification from "Justice"

 

"The 16-page document says it is lawful to target al-Qaida linked U.S. citizens if they pose an “imminent” threat of violent attack against Americans, and that delaying action against such people would create an unacceptably high risk. Such circumstances may necessitate expanding the concept of imminent threat, the memo says. “The threat posed by al-Qaida and its associated forces demands a broader concept of imminence in judging when a person continually planning terror attacks presents an imminent threat,” the document added. "  Washpost

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According to this memo the government can decide that you are dangerous and then make an administrative decision to kill you based on a judgment of what you might do.  This applies to American citizens resident outside the US.

Does that bother you? It does bother me.

An imperfectly analogous situation would have been that of an American citizen serving in WW2 in the German or Japanese armed forces.  Such a person would have been a legal target for the US armed forces, but if captured would have been tried for treason to the United States by either a military or civilian court.  In this case AQ & Company are not a regular armed force but are nevertheless actively engaged in lethal operations against the US.  Are those American citizens suspected of active involvement in terrorism against the US legitimate subjects for executive branch "kill orders" without due process?  I think not.  IMO, a judicial process within the federal courts should be created to deal with this on a case by case basis.

John Brennan's "fingerprints" don't seem to be on this document from the Department of "Justice," but given his placement in the process of deciding who goes on "kill lists" and in public defense of the rectitude of such decisions he certainly must be connected to the thinking in this paper.

Directly and undeniably connected to this document is the Attorney General, Eric Holder.  He is on record here as approving the assasination of American citizens without due process.

I have criticised Brennan before.  I have also half jokingly written that he should have been nominated to be DNI rather DCIA.  I stated the latter on the basis that Clapper has effectively been working for Brennan for years.  To reverse the statutory roles now is a mockery of the law.

I withdraw that suggestion.  IMO neither Brennan nor Holder are accepting of anything but their own tortured version of law.  They should go.  Their presence encourages BHO in his evident desire to exercise the prerogatives of a monarch.  pl  

http://www.washingtonpost.com/politics/justice-dept-memo-details-when-its-ok-to-kill-us-citizens-abroad/2013/02/05/200aa3f6-6fa1-11e2-b35a-0ee56f0518d2_story.html

Comments

[John Minnerath]

Scarey beyond words and in this nation of sheeple who expect a government to provide them with cradle to grave protection at any cost, even more fearful.

[agin' cajun]

I rarely find myself in total agreement, but on this one you hit the nail with a ten pound sledge. The first solid confirmation I personally had that Obama was the "lesser of two...." by a small margin, was his appointment of Holder. Who in a past incarnation was "Atty for the Defense" for certain corporate entities accused of mass murder. The term Dept of Justice would cause Orwell, Huxley.....Evertt, Church, Baker Sr, Henry Wallace.......etc. to groan and laugh their butts off in disgust and irony. And Jefferson? He is rolling in his grave, clawing at the lid.

[Nightsticker]

Colonel Lang,

Paul of Tarsus [St Paul] was able to invoke
"civis Romanus sum" and demand a trial in Rome.
Fast forward to the US today-
No "civis US sum" and some nasty little non-elected
rear area thrill seeking Federal Government pervert
would be able to order someone like him killed.

Nighsticker
USMC 65-72
FBI 72-96

[Bababk Makkinejad]

Stalin was presented with the lists of people to be executed during much of his rule; he would sign the list and sent it forward to be executed.

[Lars]

I agree that there should be more customary checks and balances and that is why in the past I have suggested legislation dealing with terrorism. This is a larger and more pervasive issue now and current laws and government policies do not adequately deal with it.

The Bush administration showed that you can get a lawyer to provide a fig leaf for just about anything and that has now been repeated and it is still not a good solution.

[Townie 76]

Pat, this is deeply disturbing. No judge, no lawyers arguing for the accused, just the power of the state pressing ahead with its foregone conclusions. We have seen this play before; Nixon and his enemies list; the faulty intelligence leading to the invasion of Iraq. History should be a guide, we should not forget the abuses of power at the hands of the Crown, the Star Chamber, where innocent men like Sir Thomas Moore (Saint Thomas Moore) was burned at the pyre because he dared cross his liege.
You are correct Holder needs to go for he is not doing his job well or properly. My late father, a small town attorney, is twirling in his grave at the thought that an Attorney General of United States condoned such a breech of our Constitution and our Common Law Heritage.

[Herb]

Maybe Holder and Brennan weren't listening to BHO's inaugural address when he quoted Jefferson. Or maybe it was not self-evident that all men are endowed with the inalienable right to life. Or maybe their concept of due process of law would satisfy the Constitution. Maybe pigs can fly.

[robt willmann]

Here is the original article by Michael Isikoff for NBC--

http://openchannel.nbcnews.com/_news/2013/02/04/16843014-exclusive-justice-department-memo-reveals-legal-case-for-drone-strikes-on-americans?lite

And here is an evaluation of the memo--

http://www.guardian.co.uk/commentisfree/2013/feb/05/obama-kill-list-doj-memo

It should be realized that what Isikoff calls a "memo" is described by the Department That Calls Itself Justice as a "white paper". The actual legal memo used to allegedly "justify" the assassination U.S. citizens without written, public charges; without a public trial with the right to confront and cross-examine witnesses against you; without the ability to bring in or compel witnesses to testify on your behalf; without the right to a trial by jury to determine guilt and whether the death penalty should be given; and without an appeals process is still "secret" and has not been publicly leaked or released.

Furthermore, this Thursday, 7 February, at 2:30 p.m., John Brennan is going to appear before the Senate Intelligence Committee for his confirmation hearing on becoming the CIA director.

http://www.intelligence.senate.gov/hearings.cfm?hearingId=9318ed50aab093c084477e4ac0e75c65

Since Isikoff is not exactly a crusading investigative reporter on the subjects of torture, detention without trial, and the assassination of U.S. citizens, the leaking of this "white paper" to him could be an attempt to inoculate the public on the subject of killing U.S. persons without a trial that might come up at Brennan's confirmation hearing, despite the paper's intellectual dishonesty.

[Jose]

I'm so proud to have voted for Romney, America is getting exactly what it deserves.

[turcopolier]

jose

Was he the lesser evil? pl

[William R. Cumming]

Check out Lawfare.com and its discussion of this subject!

[David Habakkuk]

Jose,

I would be cautious about taking satisfaction in America getting 'exactly what it deserves.'

The exchange between Hamlet and Polonius, about how the players should be treated, seems to the point:

POLONIUS: " My lord, I will use them according to their desert."

HAMLET: "God’s bodykins, man, much better. Use every man after his desert, and who should ’scape whipping? Use them after your own honor and dignity. The less they deserve, the more merit is in your bounty. Take them in."

[agin' cajun]

"You are correct Holder needs to go for he is not doing his job well or properly." Consider for a moment that he might be doing his job very well.

Ramsey Clark
Benjamin Civiletti
Edwin Meese
Dick Thornburgh
William Barr
Janet Reno
John Ashcroft
Alberto Gonzales
Michael Mukasey
How many of these people actually believed in the "Rule of Law? I count two, maybe three. Letting Holder and others before him, off the hook with "not doing their job" or indicting them as merely incompetent, does not serve history well. Just my two cents.

[walrus]

For an American citizen, being killed by drone as actually a good thing.

THe alternative is torture, a show trial and incarceration in a maximum security prison in solitary confinement for Twenty Three hours per day where you will quickly lose your sanity.

Drone assassinations are merely a symptom of the moral decay at the heart of empire. Justice? Meh.

Look no further than the treatment of Bradley Manning compared with the treatment of Wall Street Bankers - who I would argue have done more damage to America than Mannings disclosures could ever do.

[harry]

At the risk of making myself unpopular (ok, more unpopular) I have been cheered up by the Administration's position. I was very unhappy that the administration claimed the right to kill me if they thought I was a threat. I thought this a contradiction in terms. You cannot have the "right" to murder because murder is intrinsically immoral. You have the right to kill in self-defense but if you kill me because you are afraid of what my kids might do if they were born you are probably stretching the definition of self defense. You will forgive me, but even though I am a lowly foreigner, my pathetic life still matters to me and maybe my friends and family.

So I was very cheered up when I saw that the administration had extended this position to cover Americans as well. You can all be murdered in your beds should you be perceived as threats. Given the capacity of the US armed forces and security services, the previous position had me nervous. Now there are a further 300mn potential targets, reducing the chance that I am targetted by error by some underpaid bureaucrat who is under pressure to hit his quotas.

Now since you have the vote in the US, please do the decent thing and vote out the people who assert the right to murder you if they see fit. I know that other issues may strike you as important. Gay marriage for instance. But I really think we should prioritise getting rid of arbitrary state murder as a policy. Other matters can wait a little. Specially now that it directly affects you and not just foreigners.

Just my opinion mind you.

[mbrenner]

Nothing to add on this appalling state of affairs. On rendition, also in the news, I did explore open sources in 2007 and spoke to a number of informed people in Europe. It was evident at that time that all NATO members participated in the program in one way or another - with the exception of France under Chirac. That changed when Sarkozy entered the Elysee in may 2007. The total number of 54 governments is no surprise.

One question: who were these 137 peple we rendered to be tortured? We know of four complete innocents - 2 German citizens or residents (one of whom just won vindication and reparations from the European Court of Justice), one Canadian who received an official apology (from them, not us) and the Italian whose case just concluded with the conviction in absentia of several CIA operatived.

The other 133? The important al-Qaeda people were all apprehended by the Pakistanis early on. Some of the rendered wound up in Gauntanamo. Four reportedly died in captivity, so what happened to the rest?

[Medicine Man]

I'm not sure which I fear more: the leader that wants the powers of a monarch or the citizenry that yearns for the protection of one.

And yes, Romney would have coveted these powers too. This is a knot that future generations of Americans are going to have to untangle -- or cut.

[hope4usa]

One man warned that then it was a Republican romorrow it might be a Democrat but that none should have these authorities and all who violate the Constitution should be prosecuted. State Secrets Law has a purpose but is easily abused and facilitates this, as does prosecuting whistle blowers. http://www.guardian.co.uk/commentisfree/2013/feb/05/obama-kill-list-doj-memo I don't care who you are, their vow is to the Constitution. Bush and now Obama are wrong. If Issa wants to impeach him, THIS is the right reason.

[Clifford Kiracofe]

Well precisely who is writing the legal "briefs" as I think lawyers call such technical papers? References to Holder need to be followed up with specifics about exactly who in Justice and elsewhere say the White House is writing these briefs on which policy is justified.

Aside from the identities of the drafters of the briefs, what is in them in terms of legal argument? The assertion is that they are doing something "legal" when it appears quite the opposite.

Has the legal position of this administration on such matters been analyzed by qualified Constitutional Law experts? I was just at a conference with Bruce Fein, and he certainly spoke out on the legal/Constitutional aspects. Bruce goes back to the Watergate era. Have other legal scholars spoken out and written technical papers against the Obama Administrations position?

Why is the American Bar Association silent? Cowards or what?

Also, isn't Obama just continuing the "Unitary Executive" policy from Bush Jr. and earlier?
http://en.wikipedia.org/wiki/Unitary_executive_theory

I have on a number of occasions through the years mentioned here the Nazi jusrist Carl Schmitt as the inspiration for a circle of US lawyers and legal scholars promoting the Unitary Executive Theory.
http://en.wikipedia.org/wiki/Carl_Schmitt

In the 1930s this political line was called Fascism.

[Tyler]

Lars, you're over in the gun thread stating that Americans should disarm themselves while posting here how lawyers can turn black into white.

They're authorzing murder of USCs now based off of fiat, and what's your solution? To quote Private Hudson: "What are we supposed to do? Use harsh language?"

[Lars]

No, I have never said that anyone should disarm themselves, just prove that they are capable of using firearms. Lawyers are trained to find problems, not solve them. That is why they are good at twisting things on demand.

[Edward Amame]

The ACLU has it exactly right, this doc is “profoundly disturbing.”

Allowing the president to order executions based on government accusations and without due process and apparently without ANY oversight is outrageous -- that has absolutely no place in an open democracy. Jonathan Turley even suggests that the intended target/citizen need only be considered "a threat in the future." So WTF is wrong with members of Congress for allowing this? The answer would appear to be that Americans are willing to give up just about anything when it comes to supposed threats from "terrorists."

[Jose]

All the perfumes of Arabia will not sweeten this little hand. Lady MacBeth (in her sleeping walking scene which is a perfect metaphor)

[Edward Amame]

The only constitutional expert I've read so far finds the memo, "well-reasoned" but disagrees with the DOJ's legal "trigger" (he suggests setting up a process so that the NSC must sign off on an attack before the pres gets involved). The post has no real analysis provided on anything other than the trigger, but it's a good site to keep in mind as this goes on, I expect the heavyweights will be weighing in on this.

http://balkin.blogspot.com/

See:

Tuesday, February 05, 2013
Legal Justification for Drone Attacks on Citizens
Gerard N. Magliocca

[turcopolier]

EA

And what did you think of Bush's legal advisers? pl