The concept of the Executive Branch considering, and the Justice Department approving, the killing of US citizens is a chilling thought. It's the kind of accusation one might expect from a conspiracy extremist, yet that thought is exactly what NBC News has found a memo detailing.
As has been reported, the Obama Administration sought the Justice Department opinion on the case of killing, via drone strike and otherwise, American citizens that are "in a foreign country outside the area of active hostilities" who is a "senior operational leader of al-Qa'ida or an associated force of al-Qa'ida". This is essentially the example of the September 2011 drone attack in Yemen which killed Anwar al-Awlaki and Samir Khan - each an American citizen without indictment or even charged in a crime but were alleged al-Qa'ida members.
The memo, titled Lawfulness of a Lethal Operation Directed Against a U.S. Citizen who is a Senior Operational Leader of Al Qa’ida or An Associated Force, goes over several issues that could allow a drone or other attack against an American citizen in league with al-Qa'ida; including the 4th Amendment and the Due Process Clause, and details how they do not apply.
But there is a troubling thought that comes from the undated memo. It does not clarify what level of threat is necessary to justify a lethal action against an American overseas. What is a "senior operational leader"? If an American, in say Italy, were to unkowingly aid al-Qa'ida, as an example in a series of financial transactions via a dummy corporation the citizen neither has the means nor reason to question, does that qualify?
According to the memo, if a "high level official" - how high and what department of the Government is undefined - believes the citizen poses an "imminent violent threat" - also defined vaguely as such a threat need not be active or current - then the first requirement is satisfied. The second requirement is that capture is "infeasible", which could be true for a host of reasons. The third condition is that the operation must be done "consistent with applicable law of war principles", which a drone strike is considered.
Therefore, yes an American citizen could be killed without knowledge of a crime or aid to al-Qa'ida under these circumstances. Time to duck in Italy.
As troubling as that realization is, the memo brings up another chilling thought, what other memos and conditions have been sought? What if the American citizen in question is not a member of al-Qa'ida but Hezbolla? Or some other group, or an organization that might tomorrow become a threat? What about an American under any of these conditions on American soil?
The reality is that if this relatively specific set of conditions have been considered, and found legal, what other scenarios have been considered and what are the legal ramification that were determined? The memo clearly states
"The paper does not attempt to determine the minimum requirements necessary to render such an operation lawful; nor does it access what might be required to render a lethal operation against a US citizen lawful in other circumstances..."
What are those "other circumstances"? The paper seems to imply that other memos have been written detailing those circumstances, where are they? How far has the Justice Department advised the Executive Branch they can go? How much power is being vested in this one branch of the Government, that has yet to be disclosed to the other Government branches and the public - even as both request more information?
Taken in concert with the latest news reported by the New York Times that the President has authority to use pre-emptive cyberattacks and initiate military action in domestic incidents of cyberattack - but the exact details of the limits on Executive use of cyberattacks and defense are secret and unknown - there seems to be a large increase in the power the President weilds over citizens, abroad and potentially stateside, as well as in general.
The answer to these nagging questions all reside in the Executive Branch. But as stated by Politifact,
"PolitiFact has tracked [President Obama's] transparency promises on the Obameter and found mixed success. Of his 14 core promises, PolitiFact rated four Kept, five Compromise, and five Broken."
The outlook for a clear answer is murky at best. Which does nothing to resolve the situation.