DOJ Prepared Secret Memo Enumerating “Legal Arguments” for Assassinating U.S. Citizens

In April of 2009, President Obama released the secret “torture memos” prepared in 2002 and 2005 by the Bush Justice Department. From Huffpo:

President Barack Obama says the release of legal opinions governing harsh questioning of terrorism suspects is required by the law and should help address “a dark and painful chapter in our history.”

Obama issued a statement accompanying Thursday’s release of four significant memos written by the Bush administration in 2002 and 2005. The president said that the interrogation techniques outlined in the memos “undermine our moral authority and do not make us safer.”

Now we learn that Obama’s Justice Department has produced a secret memo to authorize the killing of American citizens by order of the President.

The Justice Department wrote a secret memorandum authorizing the lethal targeting of Anwar al-Aulaqi, the American-born radical cleric who was killed by a U.S. drone strike Friday, according to administration officials.

The document was produced following a review of the legal issues raised by striking a U.S. citizen and involved senior lawyers from across the administration. There was no dissent about the legality of killing Aulaqi, the officials said.

“What constitutes due process in this case is a due process in war,” said one of the officials, who spoke on the condition of anonymity to discuss closely held deliberations within the administration.

So if this is all on the up and up, no violations of the Constitution involved, why can’t we see the legal arguments?

The operation to kill Aulaqi involved CIA and military assets under CIA control. A former senior intelligence official said that the CIA would not have killed an American without such a written opinion.

A second American killed in Friday’s attack was Samir Khan, a driving force behind Inspire, the English-language magazine produced by al-Qaeda in the Arabian Peninsula. An administration official said the CIA did not know Khan was with Aulaqi, but they also considered Khan a belligerent whose presence near the target would not have stopped the attack.

But if they needed a legal opinion in order to target Aulaqi, then why didn’t they need one of Khan? None of this makes any sense to me, and frankly, I’d like the ACLU lawyers to review this Justice Department memo.

At the Atlantic, Conor Friedersdorf writes:

What justification can there be for President Obama and his lawyers to keep secret what they’re asserting is a matter of sound law? This isn’t a military secret. It isn’t an instance of protecting CIA field assets, or shielding a domestic vulnerability to terrorism from public view. This is an analysis of the power that the Constitution and Congress’ post September 11 authorization of military force gives the executive branch. This is a president exploiting official secrecy so that he can claim legal justification for his actions without having to expose his specific reasoning to scrutiny. As the Post put it, “The administration officials refused to disclose the exact legal analysis used to authorize targeting Aulaqi, or how they considered any Fifth Amendment right to due process.”

Obama hasn’t just set a new precedent about killing Americans without due process. He has done so in a way that deliberately shields from public view the precise nature of the important precedent he has set. It’s time for the president who promised to create “a White House that’s more transparent and accountable than anything we’ve seen before” to release the DOJ memo.

What I’d most like to know is who is making these decisions? I’m still slogging through the Suskind book, and again and again I’m learning that Obama had the right instincts–at least about economics–but then was thwarted by his supposed underlings. Is that happening in the area of counterterrorism as well?

We need to know, and that is why this memo must be released. Obama has shown that he has no ability to lead or even to stand up to his own “advisers” when they ignore his orders. We need to understand who really made the decision that American citizens must be murdered, rather than arrested, charged, and given fair trials. And that person needs to be fired immediately.