The OLC “Kill” Memo: Is there really anything to be alarmed about?

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May 3, 2010 

Chief counterterrorism adviser John O. Brennan delivers one of several briefings that President Obama received on an attempted Times Square car bombing in May 2010. In the administration's counterterrorism efforts, it is Brennan who shapes recommendations on “kill” lists and the allocation of armed drones, the war’s signature weapon.

Pete Souza / The White House[/caption]

President Bush had the <a href=OLC “torture” memos, because he felt making high value targets uncomfortable to save American lives was important. President Obama has his “kill” memo, because he feels it legally messy to capture and interrogate over simply killing terrorists; and he includes American citizens as possible HVTs who can be targeted for extermination without due process….to make America safe.

In wake of John Brennan’s confirmation hearing today for the position of CIA Director (with questions to answer for, from the left and the right), and amidst pressure from those on the right AND the left, President Obama has agreed to sharing the OLC “kill” memo with congressional intelligence committees.


Senate committee Chairman Dianne Feinstein (D-Calif.) said she was “pleased” with the decision. “It is critical for the committee’s oversight function to fully understand the legal basis for all intelligence and counterterrorism operations,” Feinstein said in a statement.

She said the committee expected to receive the document Thursday morning.

The memo, written by the Justice Department’s Office of Legal Counsel, provided the administration’s legal basis for a 2011 CIA drone attack in Yemen that killed U.S.-born cleric Anwar al-Awlaki. Obama described Awlaki as the chief of “external operations” for al-Qaeda in the Arabian Peninsula, the al-Qaeda affiliate held responsible for several unsuccessful attacks on the United States.

The administration had described the memo as an internal “work product” that does not have to be shared with Congress. Lawmakers accused the administration of a lack of transparency and likened its handling of the issue to the refusal of the George W. Bush administration to provide access to legal memos justifying the use of harsh interrogation methods against terrorism suspects. Obama publicly released those memos shortly after taking office in 2009.

Last summer, the Justice Department provided members of the intelligence and Judiciary committees with a summary of the legal opinion on U.S. citizen killings. But key lawmakers said it was not enough.

While specific lethal operations “need to be confidential,” Sen. Ron Wyden (D-Ore.) said Wednesday, “laws in our country and their interpretation are not supposed to be confidential. . . . The idea of keeping the intelligence committee, in particular, out of even any real insight into the legal analysis, it’s a mockery . . . of the oversight process.”

Wyden, a committee member who spoke to reporters at Senate Democrats’ annual retreat in Annapolis, stopped short of saying he planned to hold up Brennan’s confirmation. But, he said, “you’ll be certain I am going to bring it up” at the hearing and “I am going to pull out all the stops” to obtain the document.

While it is true that there has been hypocrisy on the left in regards to this and other similar policy-making decisions where President Obama has embraced some of the very same policies and positions (or similar ones) that he and his fellow Democrats attacked his predecessor over (against it before they were for it), it is also true that there has been consistency as well among those who are ideologically pure; and blind to the “D” or the scarlet letter “R” next to the name. This is true of conservatives during the Bush years who did criticize the Bush administration, fearing such things as the Patriot Act and NSA wiretapping. In this they were aligned with groups like the ACLU. And now it is the ACLU who is aligned with those who fear certain actions taken by the Obama administration. Strange bedfellows?

How many of us, left and right, criticize the president with the “D” or the “R” out of politics over patriotism? How many of us conservatives are inconsistent in our arguments, criticizing President Obama because he wears the “D” next to his name? We certainly recognized the “whatever it is, we’re against it” behavior during the 8 years of the previous administration.

Politicians like Ron Paul and Dennis Kucinich seem consistent in their non-interventionist-isolationist/anti-war criticism of President Bush and President Obama. (When you are so far to the left and so far to the right, I suppose the twain must meet).

It disheartens me when I see my side of the political aisle behave with the same kind of venemous political partisanship and vitriolic rancor, the same level of hyperbole and hysteria that I hated seeing from the liberal fringe against President Bush (anything but a “far right” conservative!). It was ugly from the left and it is unbecoming of the right. Hypocritical of us, if we criticize Obama when we gave Bush a pass.

Today, some on the right are launching into the realm of conspiratorial fears, that because you’re a Tea Party member or belong to the NRA, you’re going to find a Drone coming after you. I suppose being paranoid doesn’t necessary rule out that someone is out to get you. But, really?!

If I ever find myself on the same page as groups like the ACLU, I’d think that should be a red flag right there that maybe something in my political thinking might not be quite right, and I should rethink.

Max Boot has a piece worth reading(Hat tip: Mata):

Pete Wehner makes a fair point in dinging President Obama for hypocrisy because Obama once expressed outrage over the Bush administration’s use of torture (euphemistically called “enhanced interrogation techniques”) while now defending the legality of his own policy of ordering the targeted killing of al-Qaeda members even if they’re U.S. citizens. There is no judicial review in either policy–and the latter results in death rather than discomfort.

But I’d much rather that the president be hypocritical than wrong on the issue of targeted killings. In this case I think he deserves applause for taking the right stance in spite of the criticism from some of his own supporters in the “human rights” lobby. (I use quote marks because groups like Amnesty International seldom if ever recognize that actions taken by Western states to defend themselves against terrorist attacks are a defense of the basic right to live without fear of assault.)

Drone strikes are by no means risk free, the biggest risk being that by killing innocent civilians they will cause a backlash and thereby create more enemies for the U.S. than they eliminate. There is no doubt that some of these strikes have killed the wrong people–as the New York Times account highlights in one incident in Yemen. There is also little doubt, moreover, that drone strikes are no substitute for a comprehensive counterinsurgency and state-building policy designed to permanently safeguard vulnerable countries such as Pakistan, Yemen, Somalia, Libya, and Mali from the incursions of radical jihadists. But drone strikes have been effective in disrupting al-Qaeda operations and they have been conducted with less collateral damage and more precision than in the past.

It is hard to assess what impact they have had on public opinion in countries such as Yemen and Pakistan, but there is at least as much evidence that these strikes are applauded by locals who are terrorized by al-Qaeda thugs as there is evidence that the strikes are reviled for killing fellow clansmen. As the Times notes: “Although most Yemenis are reluctant to admit it publicly, there does appear to be widespread support for the American drone strikes that hit substantial Qaeda figures like Mr. Shihri, a Saudi and the affiliate’s deputy leader, who died in January of wounds received in a drone strike late last year.”

Given the need to continue these drone strikes, it would be silly and self-destructive to grant certain al-Qaeda figures immunity just because they happen to have American citizenship. In past wars such as the U.S. Civil War and World War II the U.S. military never hesitated to kill or capture enemy combatants simply because they happened to hold American citizenship. Why should today be any different?

Obviously the U.S. government is not going to engage in targeted killings on our home soil, and there is no need to do so–al-Qaeda operatives in the U.S. can always be arrested. That’s not the case in Pakistan or Yemen, where the alternative is typically either to let them go or kill them in a drone strike. The Justice Department memo leaked to NBC News, which justifies such attacks, seems to me a model of careful legal reasoning which preserves the commander-in-chief’s authority to wage war on our enemies without trampling on civil liberties at home.

“This is a chilling document,” says an ACLU lawyer (predictably). No, it’s not. It’s an encouraging document. It shows that, however committed Obama may be to a policy of retrenchment abroad and to dangerous cuts in defense spending, he is still willing to doing what it takes to defend us from al-Qaeda and its ilk.

Peter Feaver:

The Obama Administration has embraced the Bush doctrine, or at least the preemption part of the Bush doctrine. According to news reports about the Justice Department’s memo on drone strikes, the Obama Administration bases its policy on an expansive interpretation of the laws of war, which allow countries to act to head off imminent attack. In particular, according to the reporter who broke the story, the Obama Administration bases its legal reasoning by interpreting “imminence” in a flexible way:

“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,” the memo states.

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 that “there is no evidence suggesting that he has renounced or abandoned such activities.” The memo does not define “recently” or “activities.”

This should sound familiar to anyone who has debated American foreign policy for the past decade, for precisely that sort of logic undergirded the Bush Administration’s preemption doctrine.


Of course, the Bush Administration was excoriated for framing the issue that way, and there arose a lively cottage industry devoted to attacking this aspect of the Bush doctrine. While Obama has tended to get away with things his predecessors could not, I suspect that even he will face some tough questioning now that the overlap with the controversial Bush doctrine is so unmistakable.


The memo reveals the Obama Administration wrestling with these problems and coming to conclusions strikingly similar to those of the Bush Administration. I wonder if Team Obama will be more successful than the Bush Administration was in arguing the merits and logic of the preemption doctrine.

Benjamin Wittes and Susan Hennessey at Lawfare Blog:

Okay, everyone, take a deep breath. Chill out. The DOJ’s “White Paper” on targeted killing is no big deal. Really.

You wouldn’t know this from reading the somewhat breathless press coverage of the document, much of which offers a reasonable reader some confusion as to what the White Paper actually is.

The more responsible reporters have been reasonably careful. Michael Isikoff’s original story for NBC News calls the document a “confidential Justice Department memo,” and a “confidential Justice Department ‘white paper.’” Isikoff goes one to say that, “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.” Isikoff then says, rather more tendentiously, that the document authorizes the killing of U.S. citizens who are top operational Al Qaeda figures “even if there is no intelligence indicating they are engaged in an active plot to attack the U.S.” This latter point is, to put it mildly, a stretch.

Lawfare Blog has links to some worthwhile opinions regarding the DoJ “White Paper” and targeted drone killing of American citizens. Scroll through the posts.

*UPDATE* 2/8/2013 0:38

Michael Gerson WaPo:

“If George W. Bush was whacking American citizens on the basis of secret legal memos,” writes Dick Polman, “Senate liberals would be conducting hearings.”

“If George Bush . . . had done this,” argues Joe Scarborough, “it would have been stopped.”

On the right, this argument is an accusation of hypocrisy. On the left, it is an expression of horror. In reality, it is an indication of continuity.

The Obama administration’s defense of drone strikes against al-Qaeda and associated groups — including U.S. citizens who are part of those groups — is based on a certain concept of self-defense in an age of terrorism. In this view, a threat does not become “imminent” when a terrorist boards a plane or straps on a bomb vest. It emerges when terrorists plot, train for and incite attacks. “The Constitution,” says Attorney General Eric Holder, “does not require the president to delay action until some theoretical end-stage of planning.” The recently leaked Justice Department memo argues similarly, “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.”

The same point was made by President Bush, who talked of remaining “on the offensive” in order to prevent attacks “before they arrive.” The National Security Strategy of 2006 put it this way: “If necessary, however, under long-standing principles of self-defense, we do not rule out the use of force before attacks occur, even if uncertainty remains as to the time and place of the enemy’s attack. When the consequences of an attack with WMD are potentially so devastating, we cannot afford to stand idly by as grave dangers materialize.”

This argument was savaged as a dangerous innovation. It was nothing of the sort. Elihu Root, a senator and former secretary of state, said in 1914, “Every sovereign state [has the right] to protect itself by preventing a condition of affairs in which it will be too late to protect itself.” President Franklin Roosevelt made the case with typical vividness: “When you see a rattlesnake poised to strike, you do not wait until he has struck before you crush him.” At the height of the Cuban missile crisis, President John Kennedy argued that the nature of modern threats required preventive or anticipatory self-defense. “Neither the United States of America nor the world community of nations,” he said, “can tolerate deliberate deception and offensive threats on the part of any nation, large or small. We no longer live in a world where only the actual firing of weapons represents a sufficient challenge to a nation’s security to constitute maximum peril. Nuclear weapons are so destructive, and ballistic missiles are so swift, that any substantially increased possibility of their use or any sudden change in their deployment may well be regarded as a definite threat to peace.”

Drone strikes are an innovation in anticipatory self-defense, requiring careful oversight and a high threshold for action. They are also a technology that allows the most discriminate application of force in the history of warfare. That the use of drones protects U.S. troops from risk is a virtue. And the targeting of U.S. citizens who are fighting for the enemy is neither new nor forbidden by the laws of war. At least eight American volunteers for the Waffen SS were killed during World War II. Should their U.S. citizenship have earned them membership in a special, protected category of combatant?

This, of course, is the essence of the matter. If America is in an ongoing war against al-Qaeda and associated groups, then the rules of war apply, Yemen and the Afghanistan/Pakistan border are battlefields, and al-Qaeda operatives are lawful targets. This is the position taken by both the Bush and Obama administrations, consistent with America’s inherent right of self-defense and the 2001 Authorization for the Use of Military Force. If this war were a myth or a metaphor, then the pursuit of al-Qaeda would be a criminal matter, requiring extradition, arrests and due process.

Labeling Obama as “judge, jury and executioner” is his critics’ prerogative. But defending the country is not their responsibility. It is easy for those without executive authority to dismiss risks that are prospective. After a terrorist attack on America, the critics would likely be silent, hoping that no one recalled their complacency.

13 Responses to “The OLC “Kill” Memo: Is there really anything to be alarmed about?”

  1. 1

    Nan G

    To me, Wordsmith, this is the crux of the issue:

    While it is true that there has been hypocrisy on the left in regards to this and other similar policy-making decisions where President Obama has embraced some of the very same policies and positions (or similar ones) that he and his fellow Democrats attacked his predecessor over …..

    It is OBAMA’s hypocrisy that I abhor, not his ultimate policy (which is much the same as Bush’s).
    Had Bush killed Adam Gahdan I would have cheered.
    And when al-Awlaki was killed I was relieved.
    But for Obama to say (and garner LOTS of votes) one thing, then do the opposite (to crickets) is the worst form of cynicism.
    Obama knows he can lie to his supporters and they will still support him.
    Obama knows he can throw his own supporters under the bus and they will still support him.
    That gives Obama an astounding advantage.
    The fact that the dino-media covers for him as best it is able is certainly a help.
    But the fact is Obama’s support comes from the low-info crowd.
    And, thanks to the leftist/union/teachers in our nation’s public schools that crowd is only getting larger.

  2. 2


    Nothing to be alarmed about?

    “DH: Okay, we can get on with it, then.

    RB: First of all, two days after the inauguration, at exactly 7:00 a.m. on January 23, something called “the Cyber-Warriors for Obama Project” was activated. I heard about this the week after the election, but only saw a hardcopy draft in late December. From what I was told, I believe this is a project that is being paid for through funds from Obama’s political corporation, the 501(c)4 Organizing for Obama, I believe it’s called. I can’t be sure, but that’s what I was told.

    At that time, I was shown a white, three-ring binder with Obama’s circular campaign logo imprinted on the outside of the binder with the name “Cyber-Warriors for Obama” printed in blue across the top. Inside were the names and e-mail addresses of 3,575 “cyber assets,” or “warriors,” listed in alphabetical order under about a dozen or so “team leaders.” From a separate sheet I was shown, most of these “assets” are being paid just over minimum wage, but as I understand it, they work from home and have no overhead. I believe there are about two dozen supervisors who make substantially more.

    Read the whole thing.

    If this guy is telling the truth, then we have but a few short months left of “life as we know it” in America.

  3. 3

    Nan G


    Ron Paul also had a large cadre of cyber warriors, JDR-Taq.
    They came to naught.
    Main reason?
    Their ”arguments” were fatuous and shallow.
    They spammed places and were banned in large numbers.
    They would try to engage in a real back&forth only to lose their tempers and have to be banned.

    Obama’s newest members of his WH are straight out of George Soros’ Think Progress, so it makes sense they would try to use the web to their advantage.
    It actually might prove amusing.

  4. 4




    Brennan delivered a confident and at times combative defense of his record and the administration’s decisions, and emerged from the session on course to be confirmed for the CIA job, perhaps as early as next week.

    But Brennan, whose opening remarks were interrupted repeatedly by protesters in the audience, also expressed dismay with the way the administration’s actions have been perceived.

    Like Bush policy decisions to keep America safe….

    Defending the drone campaign, he said, “We only take such actions as a last resort, to save lives when there is no other alternative.” Protesters who were taken by police out of the hearing “have a misunderstanding of what we do as a government and the care that we take and the agony” that goes into decisions on lethal operations, he said.

    Brennan added that he thinks U.S. officials “need to acknowledge it publicly” when civilians are killed in the drone campaign, something the administration has rarely, if ever, done.

    Sen. Dianne Feinstein (D-Calif.), the chairman of the Senate intelligence committee, made it clear that she thinks the administration is a victim of its own secrecy.

    Noting that she had sought permission to disclose government estimates of civilian casualties to bolster claims of the drones’ accuracy, Feinstein said she was told that “you can’t. It’s classified. For the public, [the drone campaign] doesn’t exist.”


    Sen. Saxby Chambliss (Ga.), the ranking Republican on the panel, said the committee found at least 50 documents showing that Brennan had been copied on e-mails and other internal communications about the use of waterboarding and the results of harsh interrogations.

    “We’ve not seen anybody . . . come forward to say they heard any objections from you,” the senator said. He and others said the administration’s decision to end the CIA’s detention program led to a surge in drone strikes instead.

    The committee’s report, which concluded that harsh interrogation methods were not effective, also contains records that show that the program was “managed incompetently” and was “corrupted by personnel with pecuniary conflicts of interest,” said Sen. John D. Rockefeller IV (D-W.Va.).

    Brennan, who said he had read a 300-page summary of the report, acknowledged that its contents had shaken his confidence in the agency’s assertions about how it was run.

    In a 2007 interview, Brennan said the program had produced intelligence that had saved lives. “I must tell you that reading this report from the committee raises serious questions about the information that I was given at the time,” he said.

    Still, Brennan resisted pressure from Democrats to describe the agency’s since-abandoned methods as torture. He also seemed to get tangled in the secrecy surrounding CIA operations even when allies on the committee were trying to help his case.

    At one point, Feinstein asked a series of questions meant to make clear to the public that the only U.S. citizen intentionally killed in a drone strike was a deserving target. Anwar al-Awlaki, an American-born cleric, was killed in 2011 in Yemen.

    Asked to describe Awlaki’s connections to deadly plots against the United States, Brennan said, “I would prefer not to at this time.”

    Republican senators questioned Brennan repeatedly about his conversations with reporters during his White House tenure. Referring to leak investigations that are underway, Sen. James E. Risch (R-Idaho) stared at Brennan and said, “It seems to me that the leak the Justice Department is looking for is right in front of us.”

    Brennan bristled, acknowledging that he had been interviewed in the inquiry but saying: “I’m not a subject, I’m not a target. I am a witness.”

    If confirmed, Brennan would return to an agency that has been transformed over the past 12 years into a powerful paramilitary force. The CIA continues to collect intelligence from all corners of the world, but is increasingly focused on finding and striking al-Qaeda targets that are under near-constant surveillance by a growing fleet of armed drones.

    Brennan voiced new concern about that direction for the agency, but offered no specifics on whether or how he might steer it back toward its traditional focus on intelligence collection and analysis.

    Brennan would be the most experienced CIA director in decades. He worked at the agency for 25 years, rising from Middle East analyst and briefer to President Bill Clinton into the agency’s executive ranks.

    After leaving government for a lucrative job with a government contractor, Brennan returned to serve as Obama’s counterterrorism adviser, a job that gave him such broad influence that some have suggested his move to the CIA would require him to relinquish power.

  5. 5



    I love how this NYTimes editorial opens with how the confirmation hearing “forced a long overdue discussion of some of the most controversial aspects of the Obama administration’s counterterrorism policy”, then in the next 2 paragraphs goes on to haughtily push an indignant, “waterboarding is torture, dammit. Period. Exclamation point! No ‘if’s’, or ‘buts’ about it”; “how dare he not just flatout buy into the narrative?!” (the practice of which of course, happened- and ended- during the previous administration):

    Take Mr. Brennan’s refusal to describe the waterboarding of terrorism suspects as torture. Under questioning, he said the practice, instituted by President George W. Bush, was reprehensible. He promised that, if confirmed, waterboarding would never been reinstituted on his watch. It was incomprehensible that he did not acknowledge the obvious truth — as Attorney General Eric Holder Jr. and a former C.I.A. director, Leon Panetta, had — that waterboarding is purely and simply torture.

    It was disheartening to hear him say that as a deputy in the agency during the Bush administration, when waterboarding and other brutal interrogation methods were approved, he was aware of the activities and voiced his objections to some of his colleagues but did nothing more to stop it because he did not have any oversight responsibility.

  6. 6




    The whopper was Brennan’s admission that the Senate Intelligence Committee’s still-secret, 6,000 page report on Bush-era interrogations made him question what he thought he knew about the interrogation program and what was actually true. Did the CIA’s enhanced interrogation methods provide valuable information? Back in 2007, Brennan thought, and said, that it did. Now? He’s not so sure, and was stunned to learn that the program appears to have systemic management failures. But here’s the backstory he didn’t tell: Just days ago, word leaked that Brennan had angered committee members by not even reading the summary of their report, which took four years to produce and constitutes the longest and most-footnoted report in congressional history. So he came to the hearing prepared and deferential, vowing to give the report he ignored high priority. High priority, that is, without promising to declassify a single page. Secrecy still dies hard.

  7. 7

    woody voinche

    The FBI and various factions of the US government have a long history
    of violating Amerikan citizens rights…Torture of Amerikans citizens, mind control experimentation, warrantless wiretaps of telephones, use of GPS monitoring through cell phones, secret kill lists of Amerikan citizens and a number of organizations-ACLU, EFF, CREW, National Security Achive, Bill of Rights Defense Committee, CCR are filing suit to expose these methods
    Torture of American Citizens…
    … …
    Robert Mueller not sure whether Amerikan citizens can be legally assassinated…Turley responds…..
    CREW-Bush emails….
    Cell phones NSA track
    Marjorie Cohn on Torture
    Secret Ruling vs. NSA Spying
    Reagan spy machine
    NSA surveillance
    Whose watching NSA watchers
    EFF suit vs. NSA phone email surveillance
    New American—DOJ refuses to disclose GPS tracking
    FBI Secret Surveillance Techniques
    EFF-NSA kill lists
    CCR-lawsuits-kill lists
    ACLU-lawsuit kill list
    © 2013 Microsoft

  8. 9



    From WaPo‘s 5 myths:

    More than 50 countries operate surveillance drones, and armed drones will quickly become standard in military arsenals. The challenge is to consider what international rules, if any, should govern the use of armed drones. The United States is setting the precedent; our approach may define the global rules of engagement. Of course, we cannot expect other nations to adopt the oversight and restrictions we have. What doors are we opening for other nations’ use of drones? What happens when terrorist groups acquire them? The United States must prepare for being the prey, not just the predator.

    5. Obama will be remembered as the drone president.

    The attacks of Sept. 11, 2001, and the wars in Afghanistan and Iraq compelled the United States to boost the speed and accuracy with which it targets terrorists. But it was not until the Obama administration that U.S. technology and intelligence caught up with the need to take down terrorist networks rather than just individual leaders. As a result, there have been three to six times more drone strikes under Obama than under Bush.

    While the use of drone warfare has come of age under Obama, whether he comes to be defined by this weapon is very much a political question.

  9. 10



    David Cole, author of The Torture Memos: Rationalizing the Unthinkable. Another who is consistent in his criticism, whether it be Bush or Obama:

    There are plenty of problems with President Obama’s targeted killings in the war against terrorism: The policy remains secret in most aspects, involves no judicial review, has resulted in the deaths of innocent civilians, has been employed far from any battlefield and has sparked deep anti-American resentment in countries where we can ill afford it.

    But when it comes to the particular legal issue raised in a recently leaked “white paper” from the Justice Department — namely, whether it is legal to kill Americans with drones — one problem looms largest: The policy permits the government to kill its citizens in secret while refusing to acknowledge, even after the fact, that it has done so.


    Killing is not like torture. Torture is never justified, even in wartime. But killing is an integral, if unfortunate, aspect of war. Targeted killing is therefore not inherently illegal; after all, it beats the tragically untargeted killing used in the World War II bombings of Dresden, London and Hiroshima.

    Nor is it always forbidden to kill an American. If a U.S. citizen were fighting alongside al-Qaeda on an Afghan battlefield, would anyone question the right of U.S. troops to shoot and kill him? And President Abraham Lincoln violated no constitutional guarantee by authorizing Union troops to fire on American citizens fighting for the Confederacy.

    The government can also legally kill Americans in some non-wartime circumstances. The Supreme Court has held, for example, that the Fourth Amendment permits a police officer to use deadly force against a fleeing felon if the felon poses “a significant threat of death or serious physical injury to the officer or others.” The FBI team that on Monday killed an Alabama man who had held a 5-year-old boy hostage for nearly a week certainly did not act unconstitutionally.

    But since when is it constitutional for the president to deliberately kill an American while refusing to admit that he has done so? Due process forbids the taking of life or liberty without fair procedures and prohibits any official action that “shocks the conscience,” as the Supreme Court has stated. If secret killing does not shock the conscience, then nothing does.

    Anwar al-Awlaki, an American citizen, was killed by a drone strike in Yemen on Sept. 30, 2011. Awlaki is reported to have been an operational leader of Al-Qaeda in the Arabian Peninsula, an organization the administration considers an “associated force” of al-Qaeda. White House officials reportedly say he was involved in planning at least two failed terrorist attacks against the United States.

    I say “reportedly” because the Obama administration never charged Awlaki with any crime and has never even acknowledged that it sent the drone that killed him. There is no doubt that the man was killed by a drone. That fact has been reported on the front pages of the nation’s newspapers. Obama himself held a news conference to announce that Awlaki “was killed,” but he very consciously used the passive voice, not admitting any U.S. responsibility.

    The administration initially treated the drone killing program as covert, refusing to speak about it. Over time, various Obama administration officials have given public speeches defending the legality of targeted killing in general. But the administration has not admitted killing anyone specific outside Afghanistan with a drone.

    The unacknowledged killing of foreign nationals during wartime is disturbing enough, though there may be circumstances in which it is warranted. But in our democracy, it can never be permissible for the president to identify an American citizen for extinction, place him on a “kill list,” authorize a CIA agent or military officer to kill him — and then refuse to admit that it was done. Whether the killing is legal or not, accountability is impossible absent a public statement of responsibility for the act.

    Indeed, the Obama administration is opposing lawsuits that challenge Awlaki’s killing and seek disclosure of the documents related to it, in part on the grounds that its role in the killing has never been, and cannot be, acknowledged. If a government of the people and under law means anything, it must mean that the government cannot kill its people in secret and then avoid legal scrutiny by disavowing responsibility.

    Continuity of government. Continuity of criticism.

  10. 11



    This just in:

    Chairman of the House Intelligence Committee Rep. Mike Rogers (R., Mich.) implied Sunday Congress or some part of it was notified in advance of the air strike that killed al Qaeda operative Anwar al-Awlaki:

    CROWLEY: I need a quick yes or no from you, about the use of them and using them targeting Americans overseas. Al-Awlaki, a known terrorist, but an American citizen, as well as his son were killed–you have talked about oversight, you think there’s plenty of oversight for this drone program. Were you told in advance of those two killings?

    ROGERS: For the planning purposes of air strikes against terrorists and enemy combatants overseas, yes.

    CROWLEY: These specific men?

    ROGERS: If people make the target list we know that in advance, there’s appropriate oversight. And then how we target those individuals changes from day to day, but air strikes are certainly a part of that.

    Those who believed that Obama was doing the whole “kill list” “targeting Americans” thing without Congressional oversight should wait by the phone for further instructions.

  11. 12

    Bryan Ranger

    National Security Used to Get Whitey/US Senate Canditates

    In the 100 years of NAACP (founded by Hollywood who funded the extermination of the eastern church in the 1920’s) targeted ethnic cleansing of whitey in West Pasadena now we find ourselves targets of this fed racial white killing administration because whitey defends themselves since no level of gov provides protection against the get-whitey forces. Basic action reflects Hollywood’s final solution for the western church under the guise of racism has never changed. Socalled threats to national security since they have place whitey in harm’s way for historical local ethnic cleansing now fall under terrorism. Even when whitey trys to leave the country they are stop. Now the white house OLC claims it is ok waste Americans as they see fit per the AG which refuses to prosecute the New Black Panther Party for election violations in Philly in 2008 and 2012 and all the 2012 election violations. Now they seize our guns and they have their empty prisons (3 known in southern CA). PLUCK THIS LAME DUCK NOW ALONG WITH FIENSTEIN! Also the OLC can wack political candidates as myself that ran against Fienstien. How convenient removal of political candidate thru the terrorist laws!

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