Leaked Memo Says U.S. Has Right To Kill Americans Acting As Al-Qaida Operatives

A white paper from the Justice Department says the U.S. has the right to kill Americans who are al-Qaida operatives, even if they are not actively working on a terrorist plot. The memo leaked a few days before the confirmation hearing of John Brennan to head the CIA.

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ROBERT SIEGEL, HOST:

From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.

AUDIE CORNISH, HOST:

I'm Audie Cornish.

And we begin this hour with new details about one of President Obama's most controversial programs to fight terrorism. A leaked Justice Department memo says the U.S. has the right to kill Americans who are al-Qaida operatives, even if they're not actively working on a specific plot.

As NPR's Carrie Johnson reports, that legal justification isn't going over well with the civil liberties community.

CARRIE JOHNSON, BYLINE: The targeted killing program has been underway for years. Three American citizens - including a radical cleric named Anwar al-Awlaki - are known to have died in Yemen in 2011 after U.S. drone strikes. But Attorney General Eric Holder kept to generalities at the Justice Department podium today.

(SOUNDBITE OF SPEECH)

ATTORNEY GENERAL ERIC HOLDER: We say that we only take these kinds of actions when there's an imminent threat, when capture is not feasible, and when we are confident that we're doing so in a way that's consistent with federal and international law.

JOHNSON: A newly leaked 16-page memo fills in some important details. Hina Shamsi's a lawyer at the American Civil Liberties Union.

HINA SHAMSI: It appears to start off placing limits on the government authority. But as you read further, it turns out that those limits fade away and are redefined.

JOHNSON: Here's an example.

SHAMSI: So the government says that it will only target people who present imminent threats, but then defines the word imminent in such a way that it has - it's robbed of its ordinary meaning.

JOHNSON: In other words, the new memo says the U.S. government can strike without clear evidence the operative's engaged in an active plot. There's another source of friction about the new memo - how the government decides whether an American can be captured instead of killed. The document says capture may not be feasible if there's not enough time, or difficult conditions overseas. In all cases, high-ranking administration officials - not a judge or a jury - make those calls. Hina Shamsi.

SHAMSI: It is a deeply chilling and disturbing document. It is difficult to believe that this document was produced in our democratic system, which is built on checks and balances.

MATTHEW WAXMAN: Some might criticize this legal memo as a blank check. This is not a blank check. This is actually, I think, quite careful.

JOHNSON: That's Matthew Waxman, a law professor at Columbia University. Waxman, who worked at the Pentagon in the Bush years, has some sympathy for this administration.

WAXMAN: One of the challenges that lawyers and policymakers face is: How do you translate rules, laws that were designed for other kinds of conflicts and apply them to an ongoing conflict with a transnational terrorist organization?

JOHNSON: Waxman says figuring out the balance between transparency and secrecy about ongoing operations can be a big problem. Just ask Attorney General Holder. His Justice Department is fighting several lawsuits by the ACLU and the Center for Constitutional Rights. There's pressure from Congress, too. Just yesterday, 11 senators demanded secret documents about the operation against Anwar al-Awlaki, threatening to complicate the president's nominations for CIA director and Defense secretary.

Notre Dame law Professor Mary Ellen O'Connell has been a frequent critic of the drone program.

MARY ELLEN O'CONNELL: Unimpressed is not the word I'd use. Shocked, dismayed that our government would carry on this kind of legal analysis and try to keep it secret.

JOHNSON: O'Connell says the leaked document reminds her of some dark moments in the Bush years.

O'CONNELL: This is a targeted killing memo that does for targeted killing what the Bush administration tried to do with respect to torture.

JOHNSON: For his part, the attorney general says the administration is trying to be open, but it doesn't want to compromise sources and methods and its ability to protect U.S. interests. Nobody thinks the leaked memo will be the end of this story. CIA nominee John Brennan is expected on Capitol Hill Thursday for his confirmation hearing. Carrie Johnson, NPR News, Washington.

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