Pentagon Official: The Obama Drone Kill Memo Is Out And Libertarians Were Right — It’s Murder

Pentagon Official: The Obama Drone Kill Memo Is Out And Libertarians Were Right — It’s Murder

by JOSEPH MILLER JUNE 25, 2014

Joseph Miller is the pen name for a ranking Department of Defense official with a background in U.S. special operations and combat experience in Iraq and Afghanistan. He has worked in strategic planning.

On Monday, the White House memo used to justify drone attacks on U.S. citizens was released, and it appears to confirm the worst suspicions of its libertarian critics. The Obama administration had sought to keep the memo secret, and now we know why: Because there are no checks and balances; there are no classified courts. Indeed, the memo reveals that the president of the United States ordered the targeting killing of U.S. citizens overseas — in violation of their constitutional right to due process — sans any type of oversight outside of the executive.

The 41-page Department of Justice memorandum outlining the administration’s attempt to justify the killing of U.S. citizens accused of plotting acts of terrorism abroad was released on Monday under order of the U.S. Court of Appeals for the Second Circuit in New York. The court did so in response to a Freedom Of Information Act request submitted by both the American Civil Liberties Union and The New York Times.

The memo, entitled “Re: The Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Operations against Shaykh Anwar al-Aulaqi,” was written by the Office of Legal Counsel at the U.S. Department of Justice and was addressed to Attorney General Eric Holder. The

Office of Legal Counsel was asked to weigh in on the matter after the Obama administration decided that it might choose to pursue a lethal operation against a U.S. citizen living in Yemen who the administration accused of conspiring to commit acts of terrorism.

It is worth noting that the Obama administration had already added al-Awkaki to target lists before the Justice Department delivered its response to the administration’s question about the legality of such operations — and despite federal statues banning the killing of Americans abroad.

The issue was how the administration could legally pursue lethal actions against its own citizens living abroad, who the administration accused of conspiring to commit acts of terrorism — but who were not actively engaged in committing an act of terrorism or fighting U.S. troops in a war zone — without a conviction in court. American citizens are afforded the right to due process under both the Fifth Amendment and 14th Amendment. And since it is illegal to murder a U.S. citizen abroad under federal statues, some question whether CIA officers involved in the targeted killings of American citizens under the legal framework the memo lays out are guilty of murder.

Instead of taking the U.S. citizens the administration accused of conspiring against the U.S. and her interests to court, the administration was looking for an easier way to solve the problem: They sought to kill them, and wanted the legal backing to do so.

But here’s an issue: Even if a U.S. citizen were to be tried in absentia and found guilty of conspiring to commit terrorism by a federal court, the punishment

for doing so is not death, and certainly not from a missile fired by a Predator drone.

That has not stopped the Obama administration from doing just that. To date, Anwar al-Awlaki is one of three U.S. citizens to have been killed abroad by the Obama administration without having received due process in a court of law. Another of those was his 14-year-old son, who by all accounts was innocent and was not accused of conspiring to commit terrorism.

None of those killed were in the midst of an act of terrorism, nor were they actively engaged in fighting U.S. troops in a war zone. At the time of his death, al-Awlaki was riding in a vehicle in the Yemeni desert. We made no attempt to capture him or arrest him, despite assurances made to the Justice Department. No one was been made to answer for these deaths, especially that of al-Awlaki’s son.

The signatory for the memo was then-Assistant U.S. Attorney General David J. Barron. In the memo, the administration contends that a U.S. citizen’s alleged leadership role in al-Qaida, and the infeasibility of capturing them, provides sufficient legal justification for either the CIA or the Department of Defense to use lethal force and deny that citizen their right to due process — all based on the authorization of force passed by the Congress after 9/11, and another memo also written by Barron that remains classified.

The problem is that the administration is making the accusations against a U.S. citizen, rendering a judgment of guilt or innocence outside of the court system, and then carrying out an extrajudicial killing of American citizens in complete and utter violation of the Constitution.

The part of the memo that addresses the right to due process is redacted.

At no point in the extralegal process outlined in the memo is the U.S. citizen in question tried or convicted in a court of law for the crimes the administration alleges the individual is guilty of. The administration is making that determination, and exactly who within the administration is still unclear.

This is a scary usurpation of power from the judicial branch — and an amazing power grab by the executive.

Finally, under the legal reasoning outlined in the memo, there is nothing to prevent the president from ordering a lethal operation against U.S. citizens inside the United States, as the memo does not stipulate that there is a geographic limitation to these operations — only a test of feasibility. Nor is there a single requirement for a federal court of judge to make the determination that a person is a member or leader of a terrorist organization.

When this country was created, the Founders may not have anticipated the dangers posed by a terrorist cell capable of killing thousands or more. But they knew well, and carefully guarded against, the dangers of a government gone wild. In this memo, finally made public, we have proof of a White House that considers itself judge, jury and executioner. And that, America, is a clear and present danger.

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