Tag Archives: doctrine of self-defese

Lethal Operations Directed Against US Citizens are Lawful: secret memo

Underground facility detection and characterization. Image from wikipedia.  See http://commons.wikimedia.org/wiki/File:DARPA_Strategic_Plan_(2009).pdf

A confidential Justice Department memo concludes that the U.S. government can order the killing of American citizens if they are believed to be “senior operational leaders” of al-Qaida or “an associated force” — even if there is no intelligence indicating they are engaged in an active plot to attack the U.S.The 16-page memo, a copy of which was obtained by NBC News, provides new details about the legal reasoning behind one of the Obama administration’s most secretive and controversial polices: its dramatically increased use of drone strikes against al-Qaida suspects abroad, including those aimed at American citizens, such as the September 2011 strike in Yemen that killed alleged al-Qaida operatives Anwar al-Awlaki and Samir Khan. Both were U.S. citizens who had never been indicted by the U.S. government nor charged with any crimes….The undated memo 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.” It was provided to members of the Senate Intelligence and Judiciary committees in June by administration officials on the condition that it be kept confidential and not discussed publicly.

Although not an official legal memo, 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. The administration has refused to turn over to Congress or release those memos publicly — or even publicly confirm their existence. A source with access to the white paper, which is not classified, provided a copy to NBC News.

“This is a chilling document,” said Jameel Jaffer, deputy legal director of the ACLU, which is suing 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.”…..

The completeness of the administration’s public accounts of its legal arguments was also sharply criticized last month by U.S. Judge Colleen McMahon in response to a lawsuit brought by the New York Times and the ACLU seeking access to the Justice Department memos on drone strikes targeting Americans under the Freedom of Information Act. McMahon, describing herself as being caught in a “veritable Catch-22,” said she was unable to order the release of the documents given “the thicket of laws and precedents that effectively allow the executive branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws while keeping the reasons for the conclusion a secret.”  In her ruling, McMahon noted that administration officials “had engaged in public discussion of the legality of targeted killing, even of citizens.” But, she wrote, they have done so “in cryptic and imprecise ways, generally without citing … any statute or court decision that justifies its conclusions.”……..

“A lawful killing in self-defense is not an assassination,” the white paper reads. “In the Department’s view, a lethal operation conducted against a U.S. citizen whose conduct poses an imminent threat of violent attack against the United States would be a legitimate act of national self-defense that would not violate the assassination ban. Similarly, the use of lethal force, consistent with the laws of war, against an individual who is a legitimate military target would be lawful and would not violate the assassination ban.”

Excerpts from Michael Isikoff. EXCLUSIVE: Justice Department memo reveals legal case for drone strikes on Americans, NBC News, Feb. 6, 2012

Who is the Boss, CIA or the JSOC? Drones in Yemen

The Obama administration has significantly increased the frequency of drone strikes and other air attacks against the al-Qaeda affiliate in Yemen in recent months amid rising concern about political collapse there.  Some of the the strikes, carried out by the military’s Joint Special Operations Command (JSOC), have been focused in the southern part of the country, where insurgent forces have for the first time conquered and held territory as the Yemeni government continues to struggle against escalating opposition to President Ali Abdullah Saleh’s 33-year rule.

Unlike in Pakistan, where the CIA has presidential authorization to launch drone strikes at will, each U.S. attack in Yemen — and those being conducted in nearby Somalia, most recently on Thursday near the southern port city of Kismayo — requires White House approval, senior administration officials said.  The officials, who were not authorized to discuss the matter on the record, said intended targets must be drawn from an approved list of key members of al-Qaeda in the Arabian Peninsula deemed by U.S. intelligence officials to be involved in planning attacks against the West. White House counterterrorism adviser John O. Brennan last week put their number at “a couple of dozen, maybe.”

Although several unconfirmed strikes each week have been reported by local media in Yemen and Somalia, the administration has made no public acknowledgment of the escalated campaign, and officials who discussed the increase declined to provide numbers.  The heightened air activity coincides with the administration’s determination this year that AQAP, as the Yemen-based group is known, poses a more significant threat to the United States than the core al-Qaeda group based in Pakistan. The administration has also concluded that AQAP has recruited at least a portion of the main insurgent group in Somalia, al-Shabab, to its anti-Western cause.

From its initial months in office, the Obama administration has debated whether to extend the air attacks that have proved so effective in Pakistan to the Arabian Peninsula and the Horn of Africa. Military and intelligence officials have long argued in favor of attacks against al-Shabab camps in Somalia, which have been under overhead surveillance for years. Other officials have questioned the legal and moral justification for intervening in what, until recently, has been a largely domestic conflict.

The administration has said its legal authority to conduct such strikes, whether with fixed-wing planes, cruise missiles or drones, derives from the 2001 congressional resolution authorizing attacks against al-Qaeda and protection of the U.S. homeland, as well as the international law of self-defense.“The United States does not view our authority to use military force against al-Qaeda as being restricted solely to ‘hot’ battlefields like Afghanistan,” Brennan said in remarks prepared for delivery Friday night at Harvard Law School. “We reserve the right to take unilateral action if or when other governments are unwilling or unable to take the necessary actions themselves.”….

In the Yemeni capital Sanaa, thousands of anti-government protesters have been camping out in what is known as Change Square for several months, demanding an end to Saleh’s rule. The camp has remained quiet for weeks, but Reuters, citing doctors, reported Saturday that soldiers opened fire near the camp overnight and wounded eight protesters. The troops shot in the air to stop demonstrators from trying to expand the area of protest.   As the political conflict drags on, concern has increased over insurgent expansion and future cooperation with whatever government emerges in Yemen…..

Until May, 2011-