WASHINGTON -- A report Monday night on the nature of the administration's drone program has the potential to dramatically revamp the debate over President Barack Obama's foreign policy and the confirmation process for his incoming cabinet.
The report, by Michael Isikoff of NBC News, reveals that the Obama administration believes that high-level administration officials -- not just the president -- may order the killing of “senior operational leaders” of al Qaeda or an associated force even without evidence they are actively plotting against the U.S.
“A lawful killing in self-defense is not an assassination,” states the Justice Department white paper quoted by Isikoff.
The 16-page memo, given to Congress in June, is not the final Office of Legal Counsel memo that news organizations have sued to obtain. But it offers plenty of insight into the government’s justification for killing American citizens in overseas drone strikes.
The paper states that the U.S. would be able to kill a U.S. citizen overseas when "an informed, high-level official of the U.S. government" determines the target is an imminent threat, when capture would be infeasible and when the operation is "conducted consistent with applicable law of war principles."
The white paper suggests that such decisions would not be subject to judicial review and outlines a broad definition of what constitutes “imminent” threat.
Constitutional experts said the memo's definition doesn’t hold up to scrutiny. Administration critics immediately said the white paper is fresh evidence the president has abandoned his 2008 campaign pledge to recognize and respect the limits of executive power.
Jameel Jaffer of the American Civil Liberties Union called the document "pretty remarkable" and said some of its arguments "don't stand up to even cursory review." He said the paper “only underscores the irresponsible extravagance of the government's central claim.”
Hina Shamsi, director of the ACLU’s National Security Project, called the document “profoundly disturbing” and said it was “hard to believe that it was produced in a democracy built on a system of checks and balances.”
“It summarizes in cold legal terms a stunning overreach of executive authority –- the claimed power to declare Americans a threat and kill them far from a recognized battlefield and without any judicial involvement before or after the fact,” Shamsi said in a statement.
Watchdog groups and members of Congress have made repeated pleas for the administration to release internal documents outlining the rationale for the targeted killing program, especially when the target is an American citizen. NBC's report increases pressure on the administration to release additional documents.
The White House did not immediately return a request for comment.
Earlier on Monday, 11 senators signed a letter formally requesting that the administration provide its legal justification for drone strikes to Congress. Marcy Wheeler, a blogger who has closely tracked the requests, said it was at least the 12th time Congress had asked for such documents.
The Justice Department white paper's publication comes at an unfortunate time for the White House, shepherding several top cabinet nominees through confirmation in the Senate. The leak may pose hurdles for the confirmation of John Brennan, the nominee for CIA director.
Brennan, now a top White House adviser, is the architect of Obama’s drone policy. He has been a strong proponent of the expanded practice of targeted assassinations to kill suspected terrorists wherever they may be. It was under his watch that the Anwar al-Awlaki assassination was approved.
In the final months of Obama’s first term, Brennan joined other members of the national security team to codify procedures for determining the appropriate use of targeted killings into a so-called “playbook,” but much of the process remains opaque.
Nevertheless, it is likely that the legal backbone for the drone and killing program will emerge as a major controversy in Obama's second term as the death toll rises. In addition to Brennan, Obama’s pick for secretary of defense, Chuck Hagel, is a proponent of selective strikes, including drone kills, to maintain America’s edge in the war on terrorism without risking major troop deployments.
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