Wanted: Justice Department memo analyzing strikes against suspected terrorists

August 29, 2012

In the world of secret information about powerful people, there are two sets of documents in especially high demand right now. First are Mitt Romney’s undisclosed tax returns. You already know about those.

The other is a classified legal memorandum, prepared by the Justice Department, analyzing the government’s legal authority to conduct targeted killings of terrorists abroad-including, specifically, terrorists who are U.S. citizens. Interest in this memo intensified following a 2011 drone strike in Yemen that killed Anwar al-Awlaki, an American citizen, who government officials say was involved in planning attacks against the U.S.

The targeted killings memo has been requested by no fewer than ten members of Congress (all of whom were denied access). The memo is also sought in three FOIA lawsuits filed separately by the First Amendment Coalition (the organization I work for) in federal court in San Francisco, and by the New York Times and the ACLU in federal court in Manhattan

The Justice Department claims the very existence of its legal memo is classified, a position that logically (and oh so conveniently) precludes the government’s having to explain why the substance of the memo is classified and why some portions–lawyerly discussions of legal authorities, for example–can’t be released even if other portions, concerning intelligence sources, for example, are legitimately classified and must remain secret.

The government’s position in court contrasts sharply with its conduct outside of court. Outside of court, high level government officials, including Attorney General Eric Holder and White House counter-terrorism adviser John O. Brennan, have openly and aggressively defended the government’s legal authority, under both U.S. and international law, to engage in targeted killings by means of drone strikes, and to do so against U.S. citizens far away from the war zones of Iraq and Afghanistan.

Holder, in a speech last March at Northwestern University Law School, said such killings are not assassinations-illegal under an executive order dating back to the administration of President Gerald Ford-when conducted in self-defense. Spelling out a legal policy that almost certainly derives from the sought-after Justice Department memo, Holder said targeted killing is legal against a U.S. citizen who is “a senior operational leader of al Qaeda or associated” forces “at least” in circumstances where:

“. . . the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; capture is not feasible; and . . . the operation would be conducted in a manner consistent with applicable law of war principles.”

A month later Brennan, the counter-terrorism adviser, in a speech to the Woodrow Wilson Center in Washington, confirmed the use of drones in these attacks and elaborated on the requirement that targets must pose a significant threat:

“A significant threat might be posed by an individual who is an operational leader of al-Qa’ida or . . . perhaps the individual is himself an operative — in the midst of actually training for or planning to carry out attacks against U.S. interests. Or perhaps the individual possesses unique operational skills that are being leveraged in a planned attack.”

Outside of court, high level government officials also have spoken candidly (albeit anonymously) about the process of selecting terrorists for targeting. Journalist Daniel Klaidman, relying on these sources in his book Kill or Capture, describes President Obama’s direct role in approving the addition of names to a government “kill list,” including al-Awlaki, the American citizen killed in Yemen.

The government’s don’t-give-an-inch posture in court, refusing even to acknowledge the existence of the Justice Department memo while simultaneously giving a full-throated defense of the memo’s policy prescriptions, is legally untenable. Why is the government taking such an extreme legal position in these cases?

The answer, I believe, is that the government is intent on denying the courts any role in deciding legal issues surrounding its counter-terrorism operations. The government is doing this not because it believes disclosure of the Justice Department memo would harm national security, and not because it believes its targeted killing policy is legally vulnerable. Rather, the government fears that litigation in this area could lead to judicial review of the selection of targets, especially targets who are U.S. citizens, for the government’s terrorist “kill list.”

The argument for doing so has intuitive appeal. The targeting of an individual U.S. citizen for killing with a remotely-fired missile sure looks like a summary government execution-the ultimate deprivation of constitutional due process rights. Although American citizenship certainly can’t shield from preemptive action a terrorist plotting a major and imminent attack on the homeland, the targeting of that citizen cries out for independent judicial review of the sufficiency and reliability of the government’s information.

Is the government sure that the targeted person is a significant threat, that his capture is impractical and that civilian deaths will be avoided or held to a minimum? And how confident is the government that the person in its sites is, in fact, the person the government means to kill?

Although the government would no doubt argue that requests for judicial approval are impractical, there is ample precedent for such a procedure. The government already is required to apply to a secret court for a warrant to wiretap a suspected terrorist. If a court’s okay is needed to tap a terrorist’s phone, shouldn’t a court’s okay be required to kill him?

The essential difference, from the government’s perspective, is that, while federal judges rarely hesitate to sign a document authorizing a counter-intelligence wiretap, they will not be so quick to sign a document that is a de facto death warrant. They will have lots of questions and won’t sign off, if at all, until they get satisfactory answers.

The government, understandably, is reluctant to be second-guessed by a judge in such matters. Yet, that very reluctance may be the strongest argument for requiring judicial review of targeted killings.

Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition.