Obama's Memo on Killing Americans Twists 'Imminent Threat' Like Bush

The confidential document provides the most thorough account yet of why the president thinks extrajudicial drone strikes on citizens are okay.

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All hail NBC's Michael Isikoff, who has gotten his hands on a previously undisclosed Obama Administration memo concluding that, under certain circumstances, the U.S. government can kill Americans with drones. The 16-page memo, which you can read at the bottom of this post, is going to be analyzed for days by legal experts, but I encourage you to read it so that you can understand how badly President Obama has behaved, regardless of how you feel about the legal arguments.

On reading the unredacted document, ask yourself, why wasn't this released to the public by the Obama Administration? Which part of its legal reasoning could jeopardize national security in any way? Since it reveals no national-security secrets, what possible justification could there be for willfully keeping its contents from Americans, who have a compelling interest in understanding, scrutinizing and debating the legal framework that surrounds extrajudicial killing?

If you've gone ahead and read it, you know the basics. As Charlie Savage and Scott Shane explain, Obama Administration lawyers say killing an American would be lawful if an "informed, high-level official" determined three things:

  1. That the target is a ranking Al-Qaeda figure.
  2. That he or she poses "an imminent threat of violent attack" against America. 
  3. That capture is not "feasible."

That raises a lot of questions. What threshold of evidence, if any, must a high-ranking official meet to determine that someone is Al Qaeda? The burden is apparently less onerous than two witnesses testifying in open court, which the Constitution requires for a treason conviction. But the memo specifies neither an evidential threshold nor a protocol for meeting it. That is troubling.

But the part of the memo worth dwelling on most, at least until legal experts offer deeper analysis than I confidently can, is the portion that deals with "an imminent threat of violent attack."

On reading the document, that clause is sort of reassuring. After all, there aren't that many circumstances when an attack is imminent. It would seem to severely constrain extrajudicial assassinations.

As it turns out, however, the memo reassures the reader with the rhetorically powerful word "imminent," only to define imminence down in a way that makes it largely meaningless -- so much so that it's actually reminiscent of George W. Bush's misuse of imminent to characterize the threat posed by Iraq. It's difficult to adequately emphasize how absurd this part of the document becomes. What does it mean, for you personally, when you hear that someone poses "an imminent threat of violent attack against the United States"? Do you have an answer in your head?

Okay, here's the darkly hilarious passage where the Obama Administration tries to disabuse you of it:

Certain aspects of this legal framework require additional explication. First, 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 will take place in the immediate future.

You can't make this stuff up.

And remember the part about how killings were only kosher if capture wasn't feasible? Well, there's a caveat:

Regarding the feasibility of capture, 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. Feasibility would be a highly fact-specific and potentially time-sensitive inquiry.

There's much more to the memo. Stay tuned for more analysis in this space. For now, the takeaway is that the Obama Administration took a process that is supposed to constrain the president within the law's confines; nodded toward the notion that they can kill only if capture is infeasible and the threat of attack imminent; and then qualified those constraints so drastically that it would be more honest to acknowledge that neither imminence nor infeasible capture are really required.

One more note, via Charlie Savage, for folks who follow this subject closely: "The paper is not the classified memorandum in which the Justice Department's Office of Legal Counsel signed off on the killing of Anwar al-Awlaki, a radical Muslim cleric who was born in New Mexico and who died in an American drone strike in Yemen in September 2011. But its legal analysis -- citing a national right to self-defense as well as the laws of war -- closely tracks the rationale in that document, as described to The New York Times in October 2011 by people who had read it."

Marcy Wheeler adds that "there is abundant reason to believe that the members of the Senate committees who got this white paper aren't convinced it describes the rationale the Administration actually used."

Now you know.