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05 February 2013

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rossesq

A white paper is an authoritative report or guide helping readers to understand an issue, solve a problem, or make a decision.

Rather than read how CORRESPONDENTS evaluate the 16-page white paper, may I suggest that we all read the original document to ascertain for ourselves what it says. Going to the source document may encourage more grounded discourse.

http://msnbcmedia.msn.com/i/msnbc/sections/news/020413_DOJ_White_Paper.pdf

The white paper begins with the title, “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”. What follows is a discussion of the Fifth Amendment Due Process Clause, as well as the Fourth Amendment Search and Seizure Clause, and case law to support the arguments presented in the white paper. Also discussed is applicable law of war principles.

Whereas Col Lang posits, “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.”

The gist of the white paper’s argument is that a U.S. citizen who is a senior operational leader in AQ or an associated force is an enemy combatant. His U.S. citizenship would not immunize him from a lethal operation. The United States is in an armed conflict with AQ and its associated forces, and Congress has authorized the President to use all necessary and appropriate force against those entities under the Authorization for Use of Military Force (AUMF), Pub. L. No 107-40, § 2(a), 115 Stat. 224, 224 (2001). It is argued and legally supported that such a person would be within a core of individuals against whom Congress has authorized the use of necessary and appropriate force. The Supreme Court has held that the military may constitutionally use force against a U.S. citizen who is part of enemy forces – also argued that whether it is a national military force or not, it does not alter this.

Re: “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.”

As provocative as this statement may be, the subject of this white paper is actually narrow and focused. It addresses the specific question stated it the title, as reinforced by its closing words. “… this paper does not attempt to determine the minimum requirements necessary to render such an operation lawful, nor does it assess what might be required to render a lethal operation against a U.S. citizen lawful IN OTHER CIRCUMSTANCES. It concludes only that the stated conditions would be sufficient to make a lawful operation in a foreign country against a U.S. citizen with the characteristics described above.” (emph. mine)

I can only fathom a guess that this white paper was written leading up to April 2010 when President Obama added Anwar al-Aulaqi, a U.S.-and-Yemeni-citizen, to the list of people that the CIA were allowed to target because of terrorist activities. Not sure why his 16-year-old son was targeted as well, but maybe that justifies the “monarch” comment…

Edward Amame

Not much.

Candidate for President John Kerry had the absolutely right idea. Rather than conducting a "war" on terror, we should be conducting an intelligence and law enforcement operation. Obama just conveniently (for him) expanded the Bush/Cheney Imperial war powers that they contended covered the entire planet.

mbrenner

Clifford Kiracofe

"Why is the American Bar Association silent?"

This is a compelling question that some people have been asking for a decade. I did a bit of cursory research on it a while back and found a near void. There was one relatively mild statement by the New York Bar Association back in 2005 on illegal wiretapping, but that seems to be it. I may have overlooked some, though.

Let's also recall that at the time the electronic surveillance story broke, only one member of the extraordinary judicial panel inside the DOJ that passes on requests to do things surrepticiously in the national securiy interest spoke out - and quit. The chief judge of the panel said that they would review the situation and nothing has been heard since.

It's always like this: a paranoid public, power hungry and/or cowardly leaders, careerists at every point of the compass, and elites - like lawyers and judges - who sublimate their conscience and sense of professional calling. Without projecting on the US on the gross sins of the 1930s and 1940s elsewhere (it won't come close to that here, of course), the behaviors, the political dynamic, the elite-citizen interplay, and the self-censoring media are remarkably similar.

turcopolier

EA

I accept all that but the traitor Kerry will never have my support. pl

turcopolier

rossesq

A fine lawyerly answer. pl

walrus

The paper says its legal for the Government of Iran to kill an Iranian member of the M.E.K. in New York.

mbrenner

Rossesq

"It concludes only that the stated conditions would be sufficient to make a lawful operation in a foreign country against a U.S. citizen with the characteristics described above.”

Of course, this all turns on the very broad definitions given in the description of extraordinary circumstances. An enemy that is not military opens a massive breach in what constitutes "threat." Words, material aid to anyone who may be involved in a conspiracy to take action, etc. So, too, does the eliding of "imminent." Also,the word "feasible" in regard to means other than liquidation on the spot.

At the end of the day, this is sophistic legal embroidery to justify a despotic ruler's right to act abritrarily with means and timing and target entirely at his discretion. Once again, it's always like this.

FB Ali

As far as I can recall Anwar al-Awlaki was not an operational jihadi; he was not planning or executing attacks on the US or its citizens, he merely preached jihad against the US, i.e, he was an ideological jihadi. As for his 16-year old son, his crime was only being his father's son.

As someone who believes that Orwell's 1984 was not just fiction but rather a projection of the future of totalitarianism, I am not surprised. The trajectory that powerful elites use to establish total dominion over lesser mortals is pretty standard. Modern technology has only made the process easier.

I am unable to judge whether matters in the US have progressed to a point where the process becomes irreversible.

jerseycityjoan

I understand why we are all concerned about the rights of American citizens.

But I have wondered for years why we are willing to kill foreigners for what we call terrorism against us -- who of course have no reason to be loyal to the US -- if we won't contemplate killing one of our own for the same offense.

Isn't it a greater crime for an American to attack us than a foreign citizen?

How do we defend this double standard?

Mark Logan

Rossesq,

Begging your pardon in advance if I have it wrong, but I'm going to attempt to describe my perception of that sentiment (in a non-lawyerly way) and defend it.

This white paper would horrify me if I thought it possible that a President would use it as justification to start knocking off citizens on personal whims, and in response, the public would nod, shrug, and accept it. I can't picture that, so to me it's only mildly disconcerting.

There should be solid oversight, but I'm at a loss as to how that might be provided. Ask a judge to review what the government hands him, and verify that every effort was made to inform the person that they must lawyer-up and submit to trail by peers as all US citizens must? Certainly! That falls short of what I would call "oversight" though. Trails in absentia are being bad jokes, IMO.

Where I criticism the administration is in falling into the habit of cooking up legal justifications for things like this, and thereby attempting a CYA. Which, due to the power of the office, almost amounts to creating law in a sense. I would prefer that Presidents would simply say "I will accept whatever punishment a courts may give", thereby re-affirming no President is above the law, and challenge, even encourage, those who believe the law was broken to describe how it was and bring charges, rather than screw around like this.

Tyler

If we start having to prove we deserve rights let's start with the First and work our way down.

jerseycityjoan

Another problem I see with all of this is the rise of the "nominal American."

A "nominal American" is someone who has US citizenship but does not have the interests of America and Americans foremost in their minds. Their love for America and Americans is conflicted at best; sometimes it is nonexistent.

Everything I ever read about the one American citizen we did target and kill made me think -- "He never was really one of us." When people talked about him, they never talked about him being a traitor. That was very telling.

Some of the "nominal Americans" are like him: people whose parents came from another country, people born here but who lived abroad for much of their youth. But not all. Many of our financial, political and intellectual elite have divided loyalties. They clearly feel they have more in common with others like them overseas than with us. They show far more interest in and sympathy for immigrants than they do their fellow Americans, whose jobs they will gladly give to somebody else.

There's more to say about these "nominal Americans" and their divided loyalties.

As far as security and terrorism concern go, it seems to me they present us with a host of challenges. I don't think we can just close our eyes to the fact that we have a growing segment of American society that doesn't have the built-in resistance to terrorism and other criminal and violent acts that comes with love of country, a genuine commitment to America and general agreement with how we think and do things. For a variety of reasons, these "nominal Americans" look at the world differently than we do, their priorities are different and yet we occupy the same space.

How can we protect ourselves from being used and played by people who are American citizens but work against us and might even hurt us?

fanto

All, I see the problem and I agree with most comments and with Col. Lang; but I think that 'piling' on President Obama for his actions (re AQ), AFTER the regime of "W" Bush, had to be 'right of center' in order to be acceptable to "elites", otherwise he would suffer some crazy accusation and subsequent impeachment for endangering the 'Homeland'. From that perspective, and if, God forbid, some terrorism act would have happened in the US,he would be removed from office. those are my 2 cents.

Jim Ticehurst

Well...It Insures the Targets "Silence"...I Kill You.." in the words of Achmed..no one will ever know who they were,if they were innocent...or a Bad Guy..or some unknown Operative out in the Cold ..doing his job and Drone HQ didnt know..so Ka Wack..! Looked like a Bad guy in someones unhindered judgement..No Penaltys..unless it was a Russian...a German..or some other Nationality ..Perhaps some Diplomat...What then? What safeguards Insure it was an "American"???

We coame a long ways from Bill Climton not allowing CIA to take out Bin Laden when they had him in the Scope..cause Albright was worried about Collateral Damage ..

So...Now We Take out Our Citizens.."Out There" while building a Case for using drones inside the USA for multiple surveillance and LEO Reasons ...then when Al Quaeda carries out one of those newly threatened Attacks in America...(Or Europe) we can just use drones to blow upo anyone who looks suspicious...driving a U-Haul Truck..or Looking like they need to be asassinated..any time..any where..The Video Gamers would have a "Blast" with that Virtual Reality Ability...Provided by the Department of Special Liquidation Operations..

Clifford Kiracofe

Yes.

The specific situation in Germany in 1933 I am referring to was the "Gleichshaltung" or the "synchronization" of various organizations to the regime. The issue of the associations of lawyers who went over to the Nazis:

"Similarly, Hans Frank, later notorious as Governor-General of Poland and condemned to death at the Nuremberg trial, was, on 22 April 1933, appointed ‘Reich Commissar for the Gleichschaltung of Justice in the Länder and for the renewal of the legal order’. He took steps, through the takeover of existing associations of lawyers, to gather all those practising the legal profession into the Association of National Socialist German Jurists (Bund Nationalsozialistischer Deutscher Juristen). This body had only 1,347 members at the end of 1932; at the end of 1933 it had 80,000. Such examples could be multiplied from other professions, like medicine, and from the many associations devoted to the representation of economic interests. Gleichschaltung was a method of excluding persons actively associated with the democratic parties as well as persons of non-Aryan descent. ‘Aryan’ was another word brought into use by the Nazis. The only definition of it, which the thoroughly spurious Nazi race ideology could ever supply, was a person who had four grandparents who did not practise the Jewish religion. A purely biological definition of race, as required by the Nazi ideology, could not be found.

There are several reasons why Gleichschaltung met with so little resistance. A good third of the German population had already voted for Hitler before 1933..."
http://www.history-ontheweb.co.uk/concepts/concept72_gleichschaltung.htm


Here is the reference to Bruce Fein, I imagine there are other legal experts like him who can analyze the Constitutional issues. But we are not hearing these voices.

http://en.wikipedia.org/wiki/Bruce_Fein

mbrenner

The constant that underlines discussion of extraordinary (and unconstitutional) methods to secure the United States against terrorist attack is the premise that a grave menace lurks out there. In other words, the imperative to act is created by a claimed threat of the kind that materialized on 9/11. Yet there is no evidence that such is the case - nor evidence that such a menace is in the offing. This has been true for the past decade.

Who has the combination of will, organization, practical means and directive intelligence to generate hat threat? No one. Classic al-Qaeda has been decimated. The biggest outfits we accuse of terrorism are the Taliban, and Hezbullah. The Taliban, though, have a strictly local agenda. They have not killed a single American, or Westerner, outside of Afghanistan. Yes, they did provide hospitality to al-Qaeda. However, that is the past. There is no reason or interest for them to contemplate doing so again. Moreover, they cannot regain the position of power they had in 2001.

Hezbullah has no connection to al-Qaeda. Its range of interest and capability is parochial. It bulks large only because of the Iranian link and Israel.

The al-Qaeda spin-offs are disparate local groups with local agendas, limited means and only local organization. There are some currents in Europe but they are inchoate and unable even to act in their own countries. That's it folks - there ain't no more.

In 11+ years, we have experienced a couple of amateurish attempts to bring down airliers. We also have experienced a few FBI fomented so-called plots internally of the Keystone Kops variety which in another day and age would be laughable. What we have experienced is a level of pervasive cynicism among our leaders, in and outside of government, that serves selfish interests - be they political, doctrinal or pecuniary.

So we are doing irreparable damage to ourselves for literally no valid reason.

Osama bin-Laden may be living with the fishes - but he's won. That is not because we've been beaten or outsmarted. We simply have out-stupided ourselves.

mbrenner

I should have added that this benign state of affairs is in no way due to the infringement of Americans civil liberties - at home or abroad, nor due to rendition and torture - the pulp fiction of Zero Dark Thirty notwithstanding.

turcopolier

mbrenner

"... is in no way due to the infringement of Americans civil liberties - at home or abroad."

Ironic humor? I have been thoroughly exposed to the federal courts and justice department in the last 11 years and could never say that. pl

Fred

rossesq,

"I suggest that we all read the original document to ascertain for ourselves what it says" later you say: "I can only fathom a guess that this white paper was written leading up to April 2010 when President Obama added Anwar al-Aulaqi, a U.S.-and-Yemeni-citizen, to the list of people that the CIA were allowed to target because of terrorist activities."

Well please provide the original Al-Qa’ida organizational list so we can determine whose 'senior'. The provide the list of 'associated forces'.

Then please explain who employed by the US can 'add' US citizens to these lists - just like you 'guess' President Obama did. Would that be a GS-5/7/9 civil servant? E-6 in some branch of the military? How about consultants? Evidence? Why surely some slam dunk evidence will work quite well, won't it?

Fred

Senator Kerry did nothing to stop that expansion and just left the Senate to become part of the administration. Principles in action?

Walrus

And who decides who is " one of us" joannie?

Harper

THRILL KILL? Last night, Michael Isikoff was interviewed by a credulous, still Obama-loving Chris Matthews and was asked: Who is ordering this killing of Americans without due process? The CIA? The FBI? Isikoff gave the obvious and most chilling answer of all: President Obama! Let's face facts: President Obama presents himself as a Constitutional scholar who actually taught Constitutional law at the venerable University of Chicago Law School. Do you really believe that Brennan or Clapper or Holder or Donilon or McDonough or, God forbid, Valerie Jarrett, could have gotten us into this kind of war crimes without the President himself being in on it? Remember it was the White House that leaked the story on the Tuesday kill sessions as part of the promotion of Obama's re-election; and they later leaked the story about plans to computerize the kill list decisions, to make sure that it is fully institutionalized before Obama leaves office. A genuine Constitutional scholar, Bruce Fein, recently spoke on Capitol Hill and emphasized that the Founding Fathers had inserted explicit procedures for impeachment in the Constitution because they believed that there would be a constant temptation to exploit Executive Branch power towards tyranny. They believed that at least once every generation, a President would have to be impeached for "high crimes and misdemeanors." I think that the occasion of the release of this memo--which Jay Carney defended up and down the line as the legitimate basis for killing American citizens--should really start the discussion about impeachment. How far towards the elimination of our Constitution and the death of our Republic do we have to fall before we go back to fundamental principles and the true wisdom of our Founders?

harry

If I understand you right, you are saying he had to claim the right to kill people (including Americans), without proof, oversight or explanation, because if he didnt, others would call him cruel names and question his fitness for office? And the problem with a terrorist event happening is how it would be percieved with respect to his administration performance?

We support state sponsored murder because its politically less risky and because it improves the Presidents approval rating?

Really?

William R. Cumming

The DoJ White Paper is unfortunatley typical of the highly politicized DoJ that has existed since Ed Meese was AG. It should not be viewed as having more weight than a news release issued by a criminal defendant's attorney.

DoJ should be returned to its pre-1933 status of only arguing cases on behalf of the federal government in federal courts.

Clifford Kiracofe

The medieval process of "attainder" is unconstitutional in the US under Article 1, 10, 3 of our Constitution. Also, states are prohibited from issuings bills of attainder.

Again, the actual legal grounds of the "memo" and any underlying documents such as a reputed still classified legal document on which it is based need to be made public.

The Committees on the Judiciary in the US Senate and House would seem to have primary jurisdiction. So what are these committees up to with regard to this matter?

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