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Leaked: a White Paper summarizing one of the DOJ’s extrajudicial killing memos

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The ACLU and the Center for Constitutional Rights are suing the US government over the extrajudicial killing of 16 year old US citizen Abdulrahman al Aulaqi in Yemen on October 14, 2011. The government has resisted all efforts to gain some insight into the official legal justification for the killing program.

But someone leaked a piece of that legal justification in February 2013 to NBC news' Michael Isikoff. On February 4, NBC news posted a document entitled "DEPARTMENT OF JUSTICE WHITE PAPER: 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" on its website. The white paper is reportedly a summary of one or more of the Department of Justice's Office of Legal Counsel memos laying out the administration's official legal arguments for the due process-less killings.

I've compiled the best analysis on the kill list white paper to date, below.

  • The ACLU's Jameel Jaffer's overview of what the white paper means in the context of ongoing litigation and constitutional norms:

The paper's basic contention is that the government has the authority to carry out the extrajudicial killing of an American citizen if "an informed, high-level official" deems him to present a "continuing" threat to the country. This sweeping authority is said to exist even if the threat presented isn't imminent in any ordinary sense of that word, even if the target has never been charged with a crime or informed of the allegations against him, and even if the target is not located anywhere near an actual battlefield. The white paper purports to recognize some limits on the authority it sets out, but the limits are so vague and elastic that they will be easily manipulated.

Obama once believed — or purported to believe — in courts and Congress. Apparently not anymore.

  • Law professor Kevin John Heller on the question of who is al Qaida and who isn't. This is a particularly important question because, like the imminence question, it plays a major role in determining whether or not strikes against people the government says are enemies are lawful.

 The White Paper simply assumes that “al-Qa’ida and its associated forces” constitute a single organized armed group for purposes of [International Humanitarian Law] — “a transnational, non-state actor” that is “one of the parties” involved in “the non-international armed conflict between the United States and al-Qa’ida that the Supreme Court recognized in Hamdan” (emphasis mine). Indeed, the White Paper must make that assumption because, by its own admission, what justifies targeting a “senior operational leader” away from an active battlefield is precisely that, as a member of “al-Qa’ida or an associated force,” he takes part in that [non international armed conflict].

In sum, Obama not only claims he has the power to order US citizens killed with no transparency, but that even the documents explaining the legal rationale for this power are to be concealed. He's maintaining secret law on the most extremist power he can assert.

Read more on targeted killing, and what the ACLU is doing to shed a light on it and stop it.

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