The U.S. government can target and kill U.S. citizens believed to be terrorists without due process, even if there is no evidence that they will be involved in a specific attack, according to a secret Justice Department white paper provided to some members of Congress and obtained by NBC News. The document shows a much more expansive justification for when the administration can target U.S. citizens with drone strikes than administration officials have discussed publicly.
"A lethal operation against a U.S. citizen who is a senior operational leader of al-Qa'ida or its associated forces – a terrorist organization engaged in constant plotting against the United States, as well as an enemy force with which the United States is in a congressionally authorized armed conflict – and who himself poses an imminent threat of violent attack against the United States, would not violate the Constitution," the paper states.
Later in the paper, though, it defines "imminent threat" broadly: "The condition that an operational leader present an 'imminent' threat of violent attack against the United States 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."
The memo clarifies that the Obama administration believes it has the right to target and kill U.S. citizens without due process as long as they are believed to be a leader in a terrorist organization engaged "recently" in terrorist "activities," though it does not specify the length of time that would be considered "recent" or what "activities" would qualify.
The legal justification provided by the paper for when a U.S. citizen can be killed without due process is broader than what administration officials have previously discussed. For instance, if trying to capture, instead of kill, a U.S. citizen presents an "undue risk" to the personnel who would attempt the capture, then killing the U.S. citizen is justified, according to the white paper.
The white paper is not a legal document. Rather, it was provided to senators on the Intelligence and Judiciary committees. Those senators were asked to keep the paper secret. NBC News did not reveal their source but stated that someone "with access to the white paper" provided it.
Congress has repeatedly asked the White House to hand over the Justice Department's actual legal documents justifying its use of drone strikes. The White House has ignored those requests. The American Civil Liberties Union has sued the Obama administration to obtain those legal memos.
White House counterterrorism adviser John Brennan has been a key player in the Obama administration's use of drone strikes. He has been nominated by Obama to be the next CIA director. The white paper will likely become a topic of concern during Brennan's U.S. Senate confirmation hearings this week.