This is only a Preview!

You must Publish this diary to make this visible to the public,
or click 'Edit Diary' to make further changes first.

Posting a Diary Entry

Daily Kos welcomes blog articles from readers, known as diaries. The Intro section to a diary should be about three paragraphs long, and is required. The body section is optional, as is the poll, which can have 1 to 15 choices. Descriptive tags are also required to help others find your diary by subject; please don't use "cute" tags.

When you're ready, scroll down below the tags and click Save & Preview. You can edit your diary after it's published by clicking Edit Diary. Polls cannot be edited once they are published.

If this is your first time creating a Diary since the Ajax upgrade, before you enter any text below, please press Ctrl-F5 and then hold down the Shift Key and press your browser's Reload button to refresh its cache with the new script files.


  1. One diary daily maximum.
  2. Substantive diaries only. If you don't have at least three solid, original paragraphs, you should probably post a comment in an Open Thread.
  3. No repetitive diaries. Take a moment to ensure your topic hasn't been blogged (you can search for Stories and Diaries that already cover this topic), though fresh original analysis is always welcome.
  4. Use the "Body" textbox if your diary entry is longer than three paragraphs.
  5. Any images in your posts must be hosted by an approved image hosting service (one of: imageshack.us, photobucket.com, flickr.com, smugmug.com, allyoucanupload.com, picturetrail.com, mac.com, webshots.com, editgrid.com).
  6. Copying and pasting entire copyrighted works is prohibited. If you do quote something, keep it brief, always provide a link to the original source, and use the <blockquote> tags to clearly identify the quoted material. Violating this rule is grounds for immediate banning.
  7. Be civil. Do not "call out" other users by name in diary titles. Do not use profanity in diary titles. Don't write diaries whose main purpose is to deliberately inflame.
For the complete list of DailyKos diary guidelines, please click here.

Please begin with an informative title:

MQ-9 Reaper drone
MQ-9 Reaper drones have been used in targeted killings since 2007.
NBC's Michael Isikoff reported Monday on a 16-page confidential Justice Department memo that gives details on when the United States can order the killing of American citizens if it's thought by an "informed, high-level" U.S. official that they are "senior operational leaders" of al Qaeda or an associated force. Suspects must be an imminent threat, capturing them must be considered "infeasible," and the actual attack must be conducted according to "law of war principles."

Such kill orders can be legally given, the undated "white paper" memo explains, even if there is no intelligence saying the targeted individuals are actively preparing an attack and even if they have never been indicted or otherwise charged with any crimes. Two such U.S. citizens, Anwar al-Awlaki and Samir Khan, were killed in a drone strike in Yemen in September 2011. The memo also expands the definition of what constitutes "imminence."

“In the Department’s view, a lethal operation conducted against a U.S. citizen whose conduct poses an imminent threat of violent attack against the United States would be a legitimate act of national self-defense that would not violate the assassination ban. Similarly,  the use of lethal force, consistent with the laws of war, against an individual who is a legitimate military target would be lawful and would not violate the assassination ban.”
The memo, "Lawfulness of a Lethal Operation Directed Against a U.S. Citizen who is a Senior Operational Leader of Al Qa’ida or An Associated Force," argues against judicial intervention, stating flat out "that the Department notes that under the circumstances described in this paper, there exists no appropriate judicial forum to evaluate these constitutional considerations." Below the fold, you can read further analysis.

You must enter an Intro for your Diary Entry between 300 and 1150 characters long (that's approximately 50-175 words without any html or formatting markup).

The memo was provided to members of the Senate Intelligence and Judiciary committees in June 2012 with the proviso that it be kept secret. It goes beyond what Attorney General Eric Holder and counter-terrorism adviser John Brennan have said publicly. Brennan has been nominated to head the Central Intelligence Agency, which carries out U.S. drone strikes:

“This is a chilling document,” said Jameel Jaffer, deputy legal director of the ACLU, which is suing to obtain administration memos about the targeted killing of Americans. “Basically, it argues that the government has the right to carry out the extrajudicial killing of an American citizen. … It recognizes some limits on the authority it sets out, but the limits are elastic and vaguely defined, and it’s easy to see how they could be manipulated.”

In particular, Jaffer said, the memo “redefines the word imminence in a way that deprives the word of its ordinary meaning.”

The memo is not, as blog-analyst Marcy Wheeler points out, one of the actual legal memos behind the targeting of suspects that Democratic and Republican senators have been seeking. Eleven of them, in fact, asked for those memos for at least the 12th time in a letter they sent to President Obama on Monday. Even though nine of the 11 signers sit on the committees to which the memo was sent eight months ago, their Monday letter clearly shows they are not satisfied with its explanations. They asked once again in their letter for legal documentation "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."

Wheeler, who has closely followed intelligence matters for years, notes that the administration's argument in the memo leans heavily on the broad authority given to the president in the congressional Authorization for the Use of Military Force approved on Sept. 14, 2001, in the immediate aftermath of the terrorist attacks on the World Trade Center and the Pentagon. But the memo also says, almost in passing, that the president could order the killing of Americans based on his inherent Article II powers. "[T]his paper does not attempt to determine the minimum requirements necessary to render such an operation against a U.S. citizen lawful in other circumstances."

In other words, the actual still-secret memos from the Justice Department's Office of the Legal Counsel, Wheeler opines, may lay out "other circumstances, other lesser requirements fulfilled, that would still allow the President to kill an American citizen."

But unless and until the memos are released, we won't know.


Kevin Jon Heller at Opinio Juris goes into detail about the reasoning in the memo and speculates on why it may have been written the way it was.


Steven D has a discussion on the subject here.

Extended (Optional)

Originally posted to Meteor Blades on Tue Feb 05, 2013 at 08:07 AM PST.

Also republished by Daily Kos.

Your Email has been sent.