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Can the President Kill an American Anywhere in the World? Drone Memo Raises Troubling Questions

The memo explains the Obama administration's legal reasoning for killing a US citizen in a 2011 drone attack.

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HINA SHAMSI: Well, Amy, this memo’s release is long overdue. It’s critically important for transparency. But as we see from reading the memo itself, it’s by far from enough. And there are a couple of things that I think are most important. One is both what’s in the memo, and, two, what’s surprisingly not in the memo.

With respect to what’s in the memo, as you said earlier, the justification for the killing of a U.S. citizen largely relies on the 2001 Authorization for Use of Military Force. Now, that authorization has to be read alongside the international law that regulates when the United States and any other country is or is not in an armed conflict. And one of the key things that this memo does is that it says that some of the limitations on when an armed conflict exists don’t have to apply. So it says that the things that we think of and that the law recognizes—you know, a certain level of duration of hostilities, a certain level of intensity of hostilities—those don’t have to be present. In essence, it reads away any kind of territorial limitation or temporal limitation for when war exists. And this has been one of the things we and others have been so long concerned about, which is the Obama administration’s broad interpretation of law of war authority, even when that does not exist.

AARON MATÉ: Can you talk about what the memo says about imminence? That’s such a key issue, is whether or not the target constitutes an imminent threat to the U.S.

HINA SHAMSI: And that’s one of the surprising aspects of the memo, because the concept of imminence, or what we’ve heard of earlier as a continuing imminent threat, is barely discussed in it, at least in the versions that have been made public. And this is critically important for at least a couple of reasons. First of all, the white paper that was earlier released, or leaked, that talked about the administration’s definition of a continuing imminent threat, said that the threat did not have to include specific evidence of a plot that was actually about to take place in the immediate future. So, the real-world meaning of imminence is read away. And the memo itself—again, at least in the parts that have been disclosed—does not discuss this controversial, novel interpretation, nor does it discuss how that interpretation could possibly be lawful.

AMY GOODMAN: Can you talk about the redaction in the footnotes? Why is this so significant?

HINA SHAMSI: There are multiple redactions in this memo. The largest chunks of redactions are, we know from reading the court’s opinion, with respect to the factual basis for the administration’s determination that it could carry out this killing. There’s also a set of redactions in the footnotes that appear to be about the legal justifications. And two key aspects again here. One is that without knowing the factual basis for why these killings are lawful, we don’t know whether they are in fact lawful. Repeatedly, the memo’s authors say that the legal conclusions are based on factual representations made by the CIA, by the Department of Defense and the intelligence community. It also says that senior intelligence officials can make the determination about whether facts are justified to permit the killing. And this shows you just how dangerous it is not to have any independent judicial review before or after the fact, which is what the administration has argued and what this memo seeks to justify.

AMY GOODMAN: Are there secret laws?

HINA SHAMSI: You know, I think that there are still secret interpretations of the law. One of the aspects we’ve thought has long existed is multiple legal memos. We know from Senate Intelligence Committee disclosures that there are approximately 11 legal memos governing the targeted killing program. Four of those apparently relate to citizens; the others apparently relate to noncitizens. This is a body of legal interpretation by the administration about when it can exercise perhaps the most consequential authority of all—killing of people, including its own citizens. And we do not yet have access to this body of information.

 
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