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4 key questions about controversial Justice Department drone memo

A law professor joins "Morning Joe" to talk about the legality of killing Americans abroad.

Published 2:05 p.m. ET: A Justice Department paper concluding that the United States can order the killing of American citizens believed to be al-Qaida leaders shed at least some light on a legal rationale that lawmakers, journalists and civil libertarians have asked about for months.

But it leaves a swarm of questions unanswered.

The document says that the government can use lethal force against its citizens under three conditions: The citizen must pose “an imminent threat of violent attack” against the country, capturing the citizen must not be feasible, and it all has to be done within “law of war principles.”

The paper, first obtained by NBC News, is expected to figure prominently in the Senate confirmation hearing Thursday for John Brennan, President Barack Obama’s pick to lead the CIA. Brennan was an architect of the administration’s controversial escalation of drone strikes to take out suspected militants.

Here are four key questions about the Justice Department paper:

1. What’s in the original Justice Department memos?

What was obtained and made public Monday by NBC News was a Justice Department white paper. It summarizes classified memos on targeted killings produced by the department’s Office of Legal Counsel, which provides legal advice to the president.

Those original memos have not been released.

The New York Times and the American Civil Liberties Union sued the Justice Department in 2011 and 2012, seeking the administration’s legal justification for the killing of Anwar al-Awlaki, an American citizen believed by the government to have directed the attempted bombing of an airliner on Christmas Day 2009.

In January, a federal judge refused to require the government to disclose the justification, but she expressed frustration.

“The Alice-in-Wonderland nature of this pronouncement is not lost on me,” wrote the judge, Colleen McMahon of Manhattan federal court. “I can find no way around the thicket of laws and precedents that effectively allow the executive branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws while keeping the reasons for their conclusion a secret.”

2. What is an imminent threat?

The paper, in requiring that the U.S. citizen must pose an imminent threat, refers to a “broader concept of imminence.” It goes on to say what an imminent threat is not: Meeting the condition “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.” 

“Everyone agrees that if the country is about to be attacked, the country has a right to defend itself,” Stephen Saltzburg, a constitutional scholar and law professor at George Washington University, said Wednesday on MSNBC. But the Justice Department paper “defines imminent threat as being nothing that’s imminent at all.”

Attorney General Eric Holder said Tuesday that he was satisfied with the definitions.

The paper says that al-Qaida is continually plotting against the United States and says that the government may determine that a citizen has been “recently” involved in “activities” posing a threat of violent attack, without defining either term. The government may also determine simply that “there is no evidence suggesting that he has renounced or abandoned such activities.”

3. Who pulls the trigger?

Outgoing Defense Secretary Leon Panetta told CBS News last year that the president makes the call when an American citizen is targeted for killing, without court oversight, when the government believes that that citizen wants to attack the country.

“The president obviously reviews these cases and reviews the legal justification and in the end says go or no-go,” Panetta said. “In the end, when it comes to, you know, going after someone like that, the president of the United States has to sign off. And he should.”

The Justice Department paper suggests that a wider circle of people could make that call, however. It permits targeted killing when an “informed, high-level official of the U.S. government” has determined that the target is an imminent threat. The memo does not say who in the government might qualify.

“It’s completely on faith,” said Naureen Shah, a lecturer at Columbia Law School and associate director of the Counterterrorism and Human Rights Project at the school’s Human Rights Institute.

“That might be something we’re willing to trust President Obama with,” she added, “but are we willing to trust the junior-level people who are actually running the show? Who are we trusting here?”

4. Could the justification apply in the United States?

The Justice Department paper explicitly refers to killing an American citizen in a foreign country. But legal experts and some lawmakers, concerned that the rationale violates the right to due process afforded Americans by the Constitution, see no reason why it couldn’t apply inside the United States.

“That should be the question on everyone’s mind. Probably the first question,” said Mary Ellen O’Connell, a law professor at the University of Notre Dame and an authority on international law and the use of force.

“If the president can make up law,” she said, “I don’t see why he would think he is stopped from making up law to apply inside the United States.”

The question was among those submitted by Sen. Ron Wyden, an Oregon Democrat, to Brennan in January when Brennan was nominated for the CIA post. Among the other details Wyden sought was clarification on when the capture of such a citizen is “infeasible,” another standard laid out by the Justice Department white paper.

“Every American has the right to know when their government believes it is allowed to kill them,” Wyden said Tuesday.

The senator sits on the Intelligence Committee and will question Brennan directly at his confirmation hearing.


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