WASHINGTON -- A newly surfaced Congressional Research Service analysis of the government's targeted killing of suspected terrorists, including U.S. citizens, suggests the Obama administration's view of due process in these situations is similar to that of Supreme Court Justice Clarence Thomas.
According to the CRS memo prepared for members of Congress, the administration's position "seems to conform more with Justice Thomas's dissenting opinion in Hamdi, in which Justice Thomas argued that in the context of wartime detention for non-punitive purposes, 'due process requires nothing more than a good-faith executive determination.'" In the 2004 Supreme Court case of Hamdi v. Rumsfeld, the other eight justices found that due process required the possibility of judicial review of such executive branch decisions.
That a CRS analyst would find the Obama White House in some regards simpatico with one of the high court's most conservative justices won't shock civil liberties groups that have criticized the administration for the killing-by-drone of Anwar Al-Awlaki and two other American citizens in Yemen last year. But the memo also pointed out the legal gymnastics used by government officials to justify the use of armed drones to take out civilians outside "hot" war zones.
The 23-page CRS memo is dated May 4, 2012, but hadn't been made public until now. It was obtained by the Federation of American Scientists' Project on Government Secrecy.
The document takes an "on the one hand, on the other hand" approach. Written by CRS legislative attorney Jennifer Elsea, it states, "This memorandum is an effort to clarify the debate by providing legal background, setting forth what is known about the Administration's position and identifying possible points of contention among legal experts and other observers."
From the start, Elsea makes clear that the record she is parsing is spotty. Her memo was sent to Congress shortly after White House counterterrorism adviser John Brennan laid out details of the secret drone program for the first time. In a major policy speech in April, Brennan said each drone strike was carefully vetted to ensure that it was "ethical and just." He said, "As a matter of international law, the United States is in an armed conflict with al Qaeda, the Taliban and associated forces, in response to the 9/11 attacks, and we may also use force consistent with our inherent right of national self-defense."
The administration has refused to release the memo by the Justice Department's Office of Legal Counsel that sets forth the legal basis for the targeted killing program, although details were leaked last year to The New York Times.
The CRS memo seeks to glean the administration's rationale through those leaks, speeches by high-ranking government officials, and court filings in a lawsuit brought by Awlaki's father. The footnote-heavy memo also draws on papers by military lawyers and outside experts that address the legality of targeted killings.
"Because the Obama Administration has been evasive about the legal rationale for targeted killing of suspected terrorists, especially when they are U.S. citizens, observers in Congress and elsewhere are left trying to fill in the gaps," Steven Aftergood, director of the Project on Government Secrecy, told The Huffington Post in an email.
"The memo concludes that the justification is not a simple, straightforward one. Rather, the administration seems to have taken elements of the law of armed conflict, combined them with different arguments for self-defense, and downplayed constitutional considerations (in the case of U.S. citizen targets). The result is a patchwork of arguments from multiple legal domains. Some parts of it are more persuasive than others," he said.
National Security Council spokesman Tommy Vietor declined a request for comment.
The CRS memo finds that the administration's explanations of the legal rationale for targeted killings leaves a number of questions unanswered. Among them is whether the laws of armed conflict or self-defense should cover the use of drones against terror suspects. Another is how the U.S. Constitution applies to enemies who also are American citizens, like Awlaki.
The memo says the administration appears to have changed the definition of "imminence" when deciding to use force in self-defense. As the Project on Government Secrecy noted in summarizing the report, "The standard definition of imminence refers to an overwhelming threat that allows 'no moment for deliberation.' But the Administration uses imminence idiosyncratically 'to refer to the window of opportunity for striking rather than the perceived immediacy of the threat of an armed attack.' This novel usage 'may pose some challenge to the international law regarding the use of force.'”
Although the CRS document is careful not to draw critical conclusions, Aftergood interpreted the memo as finding that the secrecy-shrouded targeted killing program is, legally speaking, "improvised, inconsistent or otherwise questionable."
The CRS memo, "Legal Issues Related to the Lethal Targeting of U.S. Citizens Suspected of Terrorist Activities," can be read here.