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5 Questions About Justice Department Memo On Targeted Killings

Tue, February 5, 2013 8:49pm

Story by Greg Henderson


A confidential Justice Department memo obtained by NBC News outlines legal theories the Obama administration has used to justify killing American citizens abroad. Here are five key questions and answers about the document:

1) What is it?

A 16-page Justice Department legal rationale for when the president or another "informed, high-level official" can order the extrajudicial killing of an American citizen overseas without — in the view of the Obama administration — violating the Constitution, acts of Congress or international law.

2) What does it say?

That the president can order the killing of an American overseas deemed a "senior operational leader" of al-Qaida or "an associated force" if that person is thought to pose an "imminent" threat to the United States, if capture is "infeasible," and if the operation is "conducted in a manner consistent with the four fundamental principles of the laws of war governing the use of force."

But the Obama administration says the government gets to define two key conditions — what constitutes an "imminent" threat, and when the capture of a suspect is "feasible" — very broadly.

3) How does the white paper define an "imminent" threat to the U.S.?

It says the nature of al-Qaida and its plots demands "a broader concept of imminence" — one that would seem to contradict a literal dictionary definition of the word. "The condition that an operational leader present an 'imminent' threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future."

4) How does the white paper define when it is "infeasible" to capture (rather than kill) an American abroad?

It says that decision can largely be made on a case-by-case basis. "Feasibility would be a highly fact-specific and potentially time-sensitive inquiry," the white paper states. "Capture would not be feasible if it could not be physically effectuated during the relevant window of opportunity or if the relevant country were to decline to consent to a capture operation. Other factors such as undue risk to U.S. personnel conducting a potential capture operation also could be relevant."

5) What happens now?

Expect the issue to become a central theme at Thursday's Senate Intelligence Committee confirmation hearings of John Brennan to become CIA director. Last month, Sen. Ron Wyden, D-Ore., a member of the panel, sent Brennan a letter complaining: "I have asked repeatedly over the past two years to see the secret legal opinions that contain the executive branch's understanding of the President's authority to kill American citizens in the course of counterterrorism operations."

And on Monday, Wyden and 10 other senators sent a letter to the White House, seeking the administration's rationale "so that Congress and the public can decide whether this authority has been properly defined, and whether the President's power to deliberately kill American citizens is subject to appropriate limitations and safeguards."

And in the courts, the American Civil Liberties Union is involved in several cases challenging aspects of the targeted killing policy. In a statement Tuesday, the ACLU's Hina Shamsi called the leaked white paper "a profoundly disturbing document, and it's hard to believe that it was produced in a democracy built on a system of checks and balances." The ACLU is seeking access to a more extensive legal memo on which the white paper was based.

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