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