A confidential Justice Department memo concludes that the U.S. government can order the killing of American citizens if they are believed to be “senior operational leaders” of al-Qaida or “an associated force” -- even if there is no intelligence indicating they are engaged in an active plot to attack the U.S.

The 16-page memo, a copy of which was obtained by NBC News, provides new details about the legal reasoning behind one of the Obama administration’s most secretive and controversial polices: its dramatically increased use of drone strikes against al-Qaida suspects abroad, including those aimed at American citizens, such as the  September 2011 strike in Yemen that killed alleged al-Qaida operatives Anwar al-Awlaki and Samir Khan. Both were U.S. citizens who had never been indicted by the U.S. government nor charged with any crimes.  

Advertise | AdChoicesThe secrecy surrounding such strikes is fast emerging as a central issue in this week’s hearing of White House counterterrorism adviser John Brennan, a key architect of the drone campaign, to be CIA director.  Brennan was the first administration official to publicly acknowledge drone strikes in a speech last year, calling them “consistent with the inherent right of self-defense.” In a separate talk at the Northwestern University Law School in March, Attorney General Eric Holder specifically endorsed the constitutionality of targeted killings of Americans, saying they could be justified if government officials determine the target poses  “an imminent threat of violent attack.”


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But the confidential Justice Department “white paper” introduces a more expansive definition of self-defense or imminent attack than described  by Brennan or Holder in their public speeches.  It refers, for example, to what it calls a “broader concept of imminence” than actual intelligence about any ongoing plot against the U.S. homeland.    

Michael Isikoff, national investigative correspondent for NBC News, talks with Rachel Maddow about a newly obtained, confidential Department of Justice white paper that hints at the details of a secret White House memo that explains the legal justifications for targeted drone strikes that kill Americans without trial in the name of national security.
“The condition that an operational  leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future,” the memo states.

Read the entire 'white paper' on drone strikes on Americans

Instead, it says,  an “informed, high-level” official of the U.S. government may determine that the targeted American  has been “recently” involved in “activities” posing a threat of a violent attack and “there is  no evidence suggesting that he has renounced or abandoned such activities.” The memo does not define “recently” or “activities.”

As in Holder’s speech, the confidential memo lays out a three-part test that would make targeted killings of American lawful:  In addition to the suspect being an imminent threat, capture of the target must be “infeasible, and the strike must be conducted according to “law of war principles.” But the memo elaborates on some of these factors in ways that go beyond what the attorney general said publicly. For example, it states that U.S. officials may consider whether an attempted capture of a suspect  would pose an “undue risk” to U.S. personnel involved in such an operation. If so, U.S. officials could determine that the capture operation of the targeted American would not be feasible, making it lawful for the U.S. government to order a killing instead, the memo concludes.

The undated memo is entitled “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.”  It was provided to members of the Senate Intelligence and Judiciary committees in June by administration officials on the condition that it be kept confidential and  not discussed publicly.

Although not an official legal memo, the white paper was represented by administration  officials as a policy document that closely mirrors the arguments of classified memos on targeted killings by the Justice Department’s  Office of Legal Counsel, which provides authoritative legal advice to the president and all executive branch agencies. The administration has refused to turn over to Congress or release those memos publicly -- or even publicly confirm their existence. A source with access to the white paper, which is not classified, provided a copy to NBC News.

“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.”

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

A Justice Department spokeswoman declined to comment on the white paper. The spokeswoman, Tracy Schmaler, instead pointed to public speeches by what she called a “parade” of administration officials, including Brennan, Holder, former State Department Legal Adviser Harold Koh and former Defense Department General Counsel Jeh Johnson that she said outlined the “legal framework” for such operations.

Pressure for turning over the Justice Department memos on targeted killings of Americans appears to be building on Capitol Hill amid signs that Brennan will be grilled on the subject at his confirmation hearing before the Senate Intelligence Committee on Thursday.

On Monday, a bipartisan group of 11 senators -- led by Democrat Ron Wyden of Oregon — wrote  a letter to President Barack Obama asking him to release all Justice Department memos on the subject. While accepting that “there will clearly be circumstances in which the president has the authority to use lethal force” against Americans who take up arms against the country,  it said, “It is vitally important ... for Congress and the American public to have a full understanding of how  the executive branch interprets the limits and boundaries of this authority.”

Anticipating domestic boom, colleges rev up drone piloting programs

The completeness of the administration’s public accounts of its legal arguments was also sharply criticized last month by U.S. Judge Colleen McMahon in response to a  lawsuit brought by the New York Times and the ACLU seeking access to the Justice Department memos on drone strikes targeting Americans under the Freedom of Information Act.  McMahon, describing herself as being caught in a “veritable Catch-22,”  said she was unable to order the release of the documents given “the thicket of laws and precedents that effectively allow the executive branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws while keeping the reasons for the conclusion a secret.”

In her ruling, McMahon noted that administration officials “had engaged in public discussion of the legality of targeted killing, even of citizens.” But, she wrote, they have done so “in cryptic and imprecise ways, generally without citing … any statute or court decision that justifies its conclusions.”

In one passage in Holder’s speech at Northwestern in March,  he alluded – without spelling out—that there might be circumstances where the president might order attacks against American citizens without specific knowledge of when or where an attack against the U.S. might take place.

“The Constitution does not  require the president to delay action until some theoretical end-stage of planning, when the precise time, place and manner of an attack become clear,”  he said.

But his speech did not contain the additional language in the white paper suggesting that no active intelligence about a specific attack is needed to justify a targeted strike. Similarly, Holder said in his speech that targeted killings of Americans can be justified  if “capture is not feasible.” But he did not include language in the white paper saying that an operation might not be feasible “if it could not be physically effectuated during the relevant window of opportunity or if the relevant country (where the target is located) were to decline to consent to a capture operation.” The speech also made no reference to the risk that might be posed to U.S. forces seeking to capture a target, as was  mentioned in the white paper.

The white paper also includes a more extensive discussion of why targeted strikes against Americans does not violate constitutional protections afforded American citizens as well as   a U.S. law that criminalizes the killing of U.S. nationals overseas.

Advertise | AdChoicesIt  also discusses why such targeted killings would not be a war crime or violate a U.S. executive order banning assassinations.

“A lawful killing in self-defense is not an assassination,” the white paper reads. “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.”

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No need for Drone Strikes or a justification for using them.

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I am not a fan of the drone strikes honestly. A 50 to 1 casualty rate of civilian to terrorist rate is not an acceptable casualty number and does NOTHING to help our international image.



I also have a tough time defending the use of a covert team and putting our guys in harms way just to take the terrorists alive vs just a drone strike... So I have mixed feelings, more negative vs positive though.

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The document specifically concerns lethal force on foreign soil. Let's get it right. it does not cover domestic use yet.

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The document specifically concerns lethal force on foreign soil. Let's get it right. it does not cover domestic use.

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Just close your eyes for a second and place this story in 2007 with Bush as president...can you imagine the outrage and calls for impeachment fromt he left and media.

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Soooo you publically speak out against the Government, Government classifies you as a low-level terrorists without you knowing, go on vacation somewhere outside of the US, and it's instantly ok to hit you with a drone strike?

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I am not a fan of the drone strikes honestly.   A 50 to 1 casualty rate of civillian to terrorist rate is not an acceptable casualty number and does NOTHING to help our international image.

I also have a tough time defending the use of a covert team and putting our guys in harms way just to take the terrorists alive vs just a drone strike...  So I have mixed feelings, more negative vs positive though.

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The specific language isn't there but, if you read between the lines the article stops short of saying the President thinks he has the power to target "ALLEGED" or "SUSPECTED" terrorist opratives even on American soil.  Anyone who "takes up arms against America"   This is dangerous stuff...  Can we shit-can Holder yet? Please?

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My point is if they want to assassinate American Citizens on American soil there are ways of doing it so it doesn't even look like an assassination and all it requires is the one thing gov does best, fucking up. Only those heavily invested in aluminum foil would second guess it.

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You get that from that paper?

What part?

“A lawful killing in self-defense is not an assassination,” the white paper reads. “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.”

Instead, it says, an “informed, high-level” official of the U.S. government may determine that the targeted American has been “recently” involved in “activities” posing a threat of a violent attack and “there is no evidence suggesting that he has renounced or abandoned such activities.” The memo does not define “recently” or “activities.”

“The condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future,” the memo states.

In one passage in Holder’s speech at Northwestern in March, he alluded – without spelling out—that there might be circumstances where the president might order attacks against American citizens without specific knowledge of when or where an attack against the U.S. might take place.

“The Constitution does not require the president to delay action until some theoretical end-stage of planning, when the precise time, place and manner of an attack become clear,” he said

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What is that rate based on?

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The document specifically concerns lethal force on foreign soil. Let's get it right. it does not cover domestic use.

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 However, as of now, there are NO armed drones flying over the states.  Put the tin foil away, for now.

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I just became a paying member...y'all are beginning to make me regret it.  The memo makes absolutely ZERO mention of strikes on U.S. soil.  Am I concerned about drone strikes on American citizens in foreign lands?  Sure, but the one asshole they eliminated abso-fucking-lutely had it coming.  If anybody can confirm for me that the U.S. Government is flying armed drones over the U.S., perhaps I'll change my tune.  However, as of now, there are NO armed drones flying over the states.  Put the tin foil away, for now.

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You mean like heart attacks and one car accidents?

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You probably missed the Solicitor General finding that the President can prosecute the WoT within and without the borders of the US, without restriction.    



I mentioned that last week, too.

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Post it here, I would like to read that.  

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Post it here, I would like to read that.  

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Lays the groundwork for claiming a US citizen who poses an imminent threat of violent attack can have lethal force use against him/her.



Earlier the memo states









and









and









So now we have state sponsored assassinations outside of US soil defined as legitimate, and we have that an "imminent" threat of violence can be any threat the US Government feels MIGHT happen but, needs no specific evidence that the attack on U.S. Persons or interests needs to be an immediate risk. All they need to do is FEEL you might be an imminent threat at any point in your life time. There is very little evidence needed or an actual definition of that "threat of violence”



All you need to say one time in any public forum is something like "These jokers need to be removed from office now!” or something that is anti-government and you have the potential to be on their "imminent threat” list. Anyone who says "Come and Take ‘em” can now be viewed as a threat to any Federal agent as you now have defined you will not comply with any laws and will in fact pose a threat to a "U.S. Persons or interests”.



Go on vacation somewhere and you are no longer on American soil, therefore have the possibility of being subject to a drone strike if they see fit.



Now the real possibility of the Government going after someone who simply states "I will not comply, come and take ‘em”? Very very unlikely. But the Government has retained that power should they see it necessary, and THAT’s the argument.

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I am not a fan of the drone strikes honestly.   A 50 to 1 casualty rate of civillian to terrorist rate is not an acceptable casualty number and does NOTHING to help our international image.

I also have a tough time defending the use of a covert team and putting our guys in harms way just to take the terrorists alive vs just a drone strike...  So I have mixed feelings, more negative vs positive though.

Really, what rate would you be interested in?   I grow tired of people bitching about a very effective method of "hot pursuit" of terrorists and not allowing them any rest or quarter, always looking behind or overhead, forcing them to live in caves, move about only at night, and doing it on an asymmetric basis with none of our personnel endangered.

It is called asymmetric warfare, but believe or not, some of our so called protagonists are for throwing out this baby with the bathwater.  To which I say, BS.  So you want our sons and daughters to dress up like jihadists and approach the enemy with AK47s and little or no active intel just to make the confrontation symmetric?  Well, please use your sons and daughters, not mine, thank you.

My approach would be to go much more asymmetric and "Nuke them from Orbit".  So, be thankful for little things.

Maybe our drone ROI needs some fine tuning to assure the Kenyan or his minions does not use it on US soil, against US citizens, but modifications beyond that....no!

I don't WANT our special forces to "dress up like jihadists and approach the enemy" but we have no right to dump missiles into another country just because we THINK they are terrorists. This is the airspace of another country. If some other country flew armed drones into our airspace without US permission they would be terminated. No questions asked. If these countries deny us the opportunty to go get these guys (whether it be drone or on foot) then we don't have the right to shoot anyway just because we are America. Just the same as no country has any right to fire off into our land after someone they THINK is their enemy.

I don't want to see a single American soldier die, period. And I don't want to see this type of armed drone technology used on US soil against US citizens.

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Really?  What about 9/11?  Who did we nuke?  Japan?   No, that was WWII.

We have the right to hot pursuit exactly because we are America and this is our foreign policy.  People who wage war or plot mayhem against America are not sheltered just because they step over a border somewhere in the world.   This policy was true even when Nixon diverted over into Laos and Cambodia to intercept the Ho Chi Min Trail during the Vietnam War.   Just because it appears we THINK a terrorist is in your territory, does not mean we do not have proof.

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Wow are you making this stuff up as you go along?  We blew the shit out of France, Morocco, North Africa, etc. during WWII.  We did not declare war on France.  Currently, we are at World War with Islamofascist Terrorists all over the world, in spite of  fevered mental machinations to the contrary.

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We all know The Obama has little regard for the Constitution or America, but I don't think this drone thing is as horrible as its made out to be.  I believe it simply is a "fast track" option to take out a major terrorist as soon as he is found and identified, without the government red tape normally necessary to get permission to take him out.  After all, these terrorists tend to be pretty mobile and disappear a lot.

I personally could care less if that terrorist is Paki, Afghan or American.  If they are trying to harm this country, they can all die equally.

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We all know The Obama has little regard for the Constitution or America, but I don't think this drone thing is as horrible as its made out to be.  I believe it simply is a "fast track" option to take out a major terrorist as soon as he is found and identified, without the government red tape normally necessary to get permission to take him out.  After all, these terrorists tend to be pretty mobile and disappear a lot.

I personally could care less if that terrorist is Paki, Afghan or American.  If they are trying to harm this country, they can all die equally.

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The specific language isn't there but, if you read between the lines the article stops short of saying the President thinks he has the power to target "ALLEGED" or "SUSPECTED" terrorist opratives even on American soil.  Anyone who "takes up arms against America"

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Due process for Americans is just as important as our 2nd amendment.