A leaked Justice Department memo says that the U.S. government can order the assassination of American citizens if they are "senior operational leaders" of Al-Qaeda or "an associated force" — even if there is no evidence indicating an imminent threat or even involvement in an active plot to attack the United States.
“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 reads.
Alternatively, the paper concludes that an "informed, high-level" government official can order the killing of a U.S. citizen if they determine that the target "recently" has been engaged in "activities" amounting to a threat of violent attack and has not "renounced or abandoned" such activities.
To order such an attack, the official must make the following three discretional conclusions, including that the target "poses an imminent threat of violent attack," "capture is infeasible," and the "operation is conducted in a manner consistent with the four fundamental principles of the laws of war governing the use of force."
Targeted drone strikes against terrorist leaders has been referred to as "consistent with the inherent right of self-defense" by counterterrorism adviser John Brennan, who is currently undergoing nomination hearings to become director of the CIA.
Building on this argument, the memo concludes that "a lawful killing in self-defense is not an assassination," and would "not violate the assassination ban."
The undated memo is not classified, but was distributed to legislators on the Senate Intelligence and Judiciary Committee under the understanding that it would remain confidential. It is titled “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.”
“This is a chilling document,” said American Civil Liberties deputy legal director Jameel Jaffer to NBC News. “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.”
Most troubling, said Jaffer, were the parts of the memo that he argued "[redefine] the word imminence in a way that deprives the word of its ordinary meaning."
Attorney General Eric Holder, speaking at an event in March, had hinted that there were circumstances in which the president may be able to order the targeted killing of a citizen without prior knowledge of an immediate attack.
"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.
This memo takes it one step further, appearing to codify a system in which no intelligence of a suspected attack is required — relying entirely upon the discretion of the unspecified U.S. official capable of ordering an attack.