The Obama administration believes it can kill American citizens if it suspects that they are involved with al-Qaida, even if there's no evidence suggesting the suspects are participating in an active terrorist plot.
What's more, the decision to lethally target U.S. citizens can be made by "high-level officials" outside of the President.
The information comes from a confidential Justice Department memo obtained by NBC News' Michael Isikoff. The report outlines the administration's thought process regarding the use of drones and extrajudicial killings.
Here are grounds on which the government can target Americans:
- The target is a "senior operational leader" of al-Qaida or "an associated force."
- The target poses "an imminent threat of violent attack" against the United States.
- Capture is "infeasible."
Though the report states that extrajudicial killings of U.S. citizens can only be carried out should these three conditions be met, it then goes on to soften the parameters of each condition.
For example, the government does not require conclusive evidence that a target is actually engaged in a terrorist scheme before determining that they pose "an imminent threat."
"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 will take place in the immediate future," read the memo.
Additionally, the administration's conception of a feasible capture will be colored by circumstance.
"Capture would not be feasible if it could not be physically effectuated during the relevant window of opportunity or if the relevant country were to decline to consent to a capture operation. Other factors such as undue risk to U.S. personnel conducting a potential capture operation also could be relevant. Feasibility would be a highly fact-specific and potentially time-sensitive inquiry."
These caveats raise a number of questions. What kind of evidence does the administration require before deciding a citizen constitutes an imminent threat? What does a "relevant window of opportunity" mean exactly? If there's "undue risk" to U.S. personnel involved and no clear evidence of an imminent threat, can the administration still kill its target?
The report isn't an official legal outline, but it reportedly reflects the legal arguments made in other, undisclosed classified documents. Those classified documents are written by the Justice Department's Office of Legal Counsel, which does offer legal advice to the president as well as every agency in the executive branch. As NBC notes, President Obama has neither released those classified memos to Congress nor even acknowledged their existence.
This is the first substantial look into the administration's legal argument in favor of the extrajudicial killing of U.S. citizens, but it will likely only cause skeptics to demand more information.
"This is a chilling document," said Jameel Jaffer, deputy legal director of the American Civil Liberties Union. "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 ACLU, as well as numerous other newspapers and media outlets, is suing the Obama administration for access to the confidential memos concerning targeted killings.
For its part, the administration considers these operations self-defense.
"A lawful killing in self-defense is not an assassination," reads the memo. "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."