The leaked Justice Department memo detailing the Obama administration’s legal rationale for killing US citizens without charge or trial or judicial review or any publicly available evidence of their guilt has raised a lot of questions.
One of them, which doesn’t get fleshed out in the memo, is whether this kingly authority to play Judge, Jury, and Executioner and deprive Americans of their life without due process of law applies only to Americans abroad or also to citizens that are inside the United States. The memo does say that one prerequisite to putting an American on the kill list is if their capture is “not feasible.” Presumably that wouldn’t happen in the US, but since it isn’t specified in the memo, nobody has really been able to give an informed opinion on this. And even if the authority is not currently used in this way, unless there is an explicit prohibition in the current legal rendering, it could conceivably be used this way in the future.
Micah Zenko at the Council on Foreign Relations cites a really terrifying exchange with FBI Director Robert Mueller from about a year ago:
REPRESENTATIVE TOM GRAVES: So I guess from a historical perspective, does the federal government have the ability to kill a U.S. citizen on United States soil, or just overseas?
FBI DIRECTOR ROBERT MUELLER: I am going to defer that to others in the Department of Justice.
The FBI’s mission is “to protect and defend the United States against terrorist and foreign intelligence threats, to uphold and enforce the criminal laws of the United States, and to provide leadership and criminal justice services to federal, state, municipal, and international agencies and partners.” Mueller has held his position since the week before 9/11 and has been intimately involved in virtually every significant counterterrorism decision of the George W. Bush and Obama administrations. If the director of the FBI does not know—or is unwilling to testify under oath—where the U.S. government has the authority to kill its citizens, then who does? It is worth noting that Holder argued that there are no limits to the “geographic scope of our ability to use force.”
Read the whole post, which contains other relevant nuggets like the fact that “President Obama authorized the targeted killing of a U.S. citizen several months before its legal justification existed.”