Privacy SOS

Parallel universes: the White House and Senator Ron Wyden on the kill list white paper

Above: President Obama and press secretary Jay Carney
White House press secretary Jay Carney today responded to questions about the recently disclosed DOJ white paper on targeted killings. The relevant portion of the press briefing is copied below in full. For a study in contrast, farther down the page you can read Senator Ron Wyden's response to the DOJ white paper.
February 5, 2013
Q: Thank you. How can the government determine that an American citizen is an imminent threat to the U.S. or U.S. interests without having any kind of specific evidence that that person is planning an immediate — an attack in the immediate 
MR. CARNEY: Well, the question, obviously, that you ask relates to some stories out today regarding a document prepared — an unclassified document prepared for some members of Congress — and understandable questions. And I can just say 
that this President takes his responsibilities very seriously, and first and foremost, that’s his responsibility, to protect the United States and American citizens. [Note: The US President only takes one oath of office, and it has nothing to do with protecting US citizens. The President swears to protect and defend the US Constitution.]
He also takes his responsibility in conducting the war against al Qaeda as authorized by Congress in a way that is fully consistent with our Constitution and all the applicable laws. We have acknowledged, the United States, that sometimes we use remotely piloted aircraft to conduct targeted strikes against specific al Qaeda terrorists in order to prevent attacks on the United States and to save American lives. We conduct those strikes because they are necessary to mitigate ongoing actual threats, to stop plots, prevent future attacks, and, again, save American lives. These strikes are legal, they are ethical and they are wise. The U.S. government takes great care in deciding to pursue an al Qaeda terrorist, to ensure precision and to avoid loss of innocent life.
As you know, in spite of these stories — or prior to these stories, this administration, through numerous senior administration officials, including Deputy National Security and Counterterrorism Advisor John Brennan, State Department Legal Advisor Harold Koh, and former Department of Defense General Counsel Jeh Johnson — have spoken publicly and at length about the U.S. commitment to conducting counterterrorism operations in accordance with all applicable domestic and international law, including the laws of war.
In March 2012, the Attorney General gave a speech at Northwestern University Law School in which he outlined the legal framework that would apply if it was necessary to take a strike against one of the "small number of U.S. citizens who have decided to commit violent acts against their own country from abroad." The Attorney General made clear that in taking such a strike, the government must take into account all relevant constitutional considerations, but that under generations-old legal principles and Supreme Court decisions, U.S. citizenship alone does not make a leader of an enemy force immune from being targeted.
Q: But how can the government decide that there’s an imminent threat if there’s no evidence that an attack is happening in the immediate future?
MR. CARNEY: As you know, Congress authorized in an authorization of the use of military force all necessary military force to be used in our fight against al Qaeda. And certainly under that authority, the President acts in the United States' interest to protect the United States and its citizens from al Qaeda. The nature of the fight against al Qaeda and its affiliates is certainly different from the kinds of conflicts that have involved nations against nations. But this has been discussed amply, again, in the effort that we have made through our senior administration officials to explain the process that we use, by the officials I named — by John Brennan in a speech, and he addressed this very issue about "imminent." I would point you to the now-released — it was not meant for public release, but it's not classified — the now-released white paper, which goes into some detail on that very issue.
Q: Should the American people be comfortable with the administration's definition of "imminent" if it also means that there is no specific evidence to back that up?
MR. CARNEY: Well, again, I think that what you have in general with al Qaeda senior leadership is a continuing process of plotting against the United States and American citizens, plotting attacks against the United States and American citizens. I think that’s fairly irrefutable.
What you also have is the authorization for the use of military force by Congress. You also have a President who is very mindful of the very questions that you are asking and is, in his capacity as Commander-in-Chief, taking all the necessary 
steps to ensure that he fulfills his constitutional obligation to protect the United States and its citizens, and does so in a way that comports with our Constitution and with our laws.
Q: Did he sign off on this memo and any classified documents to back it up?
MR. CARNEY: Well, I certainly have no information on any classified documents. I don’t know the specific process by which this memo was generated.

Senator Ron Wyden released a statement about the white paper today. The Oregon Democrat writes that the white paper doesn't answer the most important questions about the administration's targeting policy, and once again calls for the release of the targeted killing memos. His full statement is copied below.
Washington, D.C. – US Senator Ron Wyden, a senior member of the Senate Select Committee on Intelligence, made the following statement today regarding a Justice Department paper entitled “Lawfulness of a Lethal Operation Against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qa’ida or An Associated Force” which was made public yesterday by NBC News: 
“As I and ten other senators told the President yesterday, if individual Americans choose to take up arms against the United States, there will clearly be some circumstances in which the President has the authority to use lethal force against those Americans, just as President Lincoln had the authority to use force against the Confederate Army during the Civil War.  At the same time, it is vitally important for Congress and the American public to have a full understanding of how the executive branch interprets this authority, so that Congress and the public can decide whether the President’s power to deliberately kill American citizens is subject to appropriate limitations and safeguards.  Every American has the right to know when their government believes that it is allowed to kill them. 
“The Justice Department memo that was made public yesterday touches on a number of important issues, but it leaves many of the most important questions about the President’s lethal authorities unanswered.  Questions like ‘how much evidence does the President need to decide that a particular American is part of a terrorist group?’, ‘does the President have to provide individual Americans with the opportunity to surrender?’ and ‘can the President order intelligence agencies or the military to kill an American who is inside the United States?’ need to be asked and answered in a way that is consistent with American laws and American values.  This memo does not answer these questions. 
“I will continue to press the Administration to provide Congress with any and all legal opinions that outline the President’s authority to use lethal force against Americans, and I will not be satisfied until I have received them.  I have not yet received an official response to the letter than I sent to Deputy National Security Advisor Brennan on this topic three weeks ago, but I look forward to raising the issue with him again at his nomination hearing this Thursday.”
The letter that Senator Wyden and ten other Senators sent to President Obama regarding these legal opinions can be found here.  The letter that Senator Wyden sent to Deputy National Security Advisor Brennan, which includes detailed questions about the President’s lethal authorities, can be found here.  And the letter that Senator Wyden sent to Attorney General Holder on this topic can be found here. 

© 2021 ACLU of Massachusetts.