John Brennan, President Obama's nominee for Director of the CIA, has the bad luck of having to testify before Congress on Thursday, just days after publication of a Justice Department "white paper" containing the administration's legal justification for the targeted killing of high-level Al Qaeda members who are also American citizens.
The undated and unsigned white paper, provided to selected members of Congress (who, presumably, are also leading suspects for the leaking of the document to NBC), appears to be an unclassified version of a Justice Department legal memo on the "lethal targeting" of Anwar al-Awlaki, a radical Muslim cleric and U.S. citizen (born in New Mexico) who was killed in a 2011 drone strike in Yemen. That memo is the subject of ongoing FOIA lawsuits filed by the New York Times, ACLU and by my organization, the First Amendment Coalition.
The white paper argues, in brief, that the U.S. government may lawfully kill an American citizen if "an informed, high-level official" of the government decides that the target is a ranking figure in Al Qaeda who poses "an imminent threat of violent attack against the United States;" that his capture is not feasible; and that the killing can be done in a way that minimizes harm to civilians.
Such an attack is permissible under U.S. and international law, the memo contends, even in a country removed from the battlefields of Iraq and Afghanistan, provided the country gives consent or fails to neutralize the terrorist threat to American interests. The white paper also argues that the executive branch has no legal obligation to obtain advance approval for a targeted killing from the courts or Congress.
Brennan will be in the hot seat before his interlocutors on the Senate Intelligence Committee. Here are some questions that I would love to hear him, on behalf of the administration, try to answer.
- The extraordinary legal authority claimed by the U.S. government -- to kill an American on the say-so of a "high-level official" -- has been used in Yemen, Somalia, Afghanistan and Pakistan, according to reports. What, in principle, would prevent the exercise of this authority against a suspected terrorist located inside the U.S.?
And for balance -- and because these issues are far from straightforward -- here's a question for those who would forbid targeted killing in cases involving U.S. citizens:
- If a U.S, citizen joins Al Qaeda and engages in the operational planning of attacks to kill Americans in large numbers, is that person immune, purely because of his citizenship, to U.S. military action to preempt the attacks? If no, what is the difference, legally or morally, between a drone strike that singles out the U.S. citizen, on one hand, and an attack by U.S. aircraft against a terrorist training camp that kills a dozen Al Quaeda members, including the U.S. citizen, on the other? If the latter is permissible, why not the former?
Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition, a nonprofit organization. FAC has sued the U.S. Justice Department under FOIA for access to the secret government memo concerning the killing of al-Awlaki.
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