Confidential Justice Department Memo: Targeted Killing of Americans Does Not Require 'Clear Evidence' of Imminent Attack

Late Monday evening, NBC's Michael Isikoff released a report detailing a confidential Justice Department memo obtained by NBC News. The memo, called the white paper, discusses the legal justifications for the use of drone strikes and other lethal attacks against American citizens believed to be members of al-Qaida, offering explanations that expand on public statements previously issued by Obama's nominee for CIA director John Brennan and Attorney General Eric Holder.

Whereas Brennan and Holder have both stated that such targeted killings were "consistent with the inherent right of self-defense" (Brennan) and used when the target poses "an imminent threat of violent attack" (Holder), the white paper offers a much broader justifications for such attacks. For instance:


Instead, it says, an "informed, high-level" official of the U.S. government may determine that the targeted American has been "recently" involved in "activities" posing a threat of a violent attack and "there is no evidence suggesting that he has renounced or abandoned such activities." The memo does not define "recently" or "activities."

The memo also reiterates a three-part test previously mentioned by Holder that would make the targeted killing of an American citizen legal.

1) The above very vague definition of "imminent threat"
2) That the capturing of the target is decided to be "infeasible"
3) The attack must be done within the "law of war principles."

But whereas Holder's public statements were vague, the white paper goes into specifics.


The white paper also clarifies, or attempts to anyway, why such targeted killings aren't war crimes or assassinations, which are banned under executive order.


It's worth noting that the white paper is not an official legal memo, but it's considered to closely resemble classified memos used by the Justice Department's Office of Legal Counsel. The Obama administration has rejected repeated requests to release those classified documents to Congress or the public, and has denied their existence.

Human right advocates are, as you might expect, upset with the document's revelations.

"This is a chilling document," said Jameel Jaffer, deputy legal director of the ACLU, which has sued unsuccessfully in court to obtain administration memos about the targeted killing of Americans. "Basically, it argues that the government has the right to carry out the extrajudicial killing of an American citizen. … 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 goes into greater detail in a post on the ACLU's website, writing:


My colleagues will have more to say about the white paper soon, but my initial reaction is that the paper only underscores the irresponsible extravagance of the government's central claim. Even if the Obama administration is convinced of its own fundamental trustworthiness, the power this white paper sets out will be available to every future president-and every "informed high-level official" (!)-in every future conflict.

Expect to hear more about the memo throughout the week; John Brennan has his Senate confirmation hearing on Thursday.

[Image via AP]