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 statutes 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 statutes, 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.