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In advance of Obama counterterrorism chief John Brennan's confirmation hearing (Thursday) to head the CIA, eleven senators are seeking--demanding--access to the secret legal memo(s) giving the legal rationale for targeted killing (assassination) of U.S. citizens.

Meanwhile, NBC News "obtained" (meaning the government leaked) a Justice Department assassination "white paper," which gives the most detailed legal analysis yet for our government's authority to assassinate U.S. citizens.

Again, however, this latest-discovered articulation of kill criteria do not match what has actually been done in the case of Al-Awlaki.

The right thing would be for the Justice Department to make these memos public--not just to Congress, but to the public.

Let's review what Brennan himself had already put out there in an April 2012: In an extensive speech defending the use of automated drones to target and kill suspected terrorists without due process, including Americans, Brennan listed the main criteria the Administration uses to unilaterally decide who to target and assassinate. Yet, the one of the Americans we know was targeted and killed by a drone, suspected Al Qaeda propagandist Anwar al-Awlaki, meets NONE of Brennan's purported criteria or those listed in the just-released "white paper." This is a fortiori as to Awlaki's son.

(1) Brennan's first criterion was that the target have some particularized plan to attack the U.S., insisting that

. . . the mere possibility that a member of al-Qa’ida might try to attack us at some point in the future
is not enough to warrant a drone strike.

The white paper is (seemingly) even stricter--that the person must pose

an imminent threat of violent attack against the United States.
Even under the elastically twisted definition of "imminent threat" in the white paper: it
does not require the United States to have clear evidence that a specific attack on U.S. persons will take place in the immediate future
. . . there is no credible evidence that al-Awlaki did anything more than generally advance propaganda and indicate a desire to support al-Qaeda. A desire to support a terrorist group is not a particularized plan of attack. None of the justifications for assassinating al-Awlaki put forth by the Obama administration, e.g., he made a martyrdom video, constitute a particularized or imminent plan to attack the U.S. In fact, all of them happened in the past, despite the fact that Brennan claimed yesterday that drones strikes are not about "punishing terrorists for past crimes; we are not seeking vengeance."

(2) Brennan also suggested that a drone assassination would be a appropriate if an

. . .individual is himself an operative—in the midst of actually training for or planning to carry out attacks against U.S. interests.
The white paper is (seemingly) even more stringent: the individual must be
a senior operational leader of al-Qu'ida or an associated force of al-Qu'ida--that is, an al-Qu'ida leader actively engaged in planning operations to kill Americans.
No one has ever asserted that al-Awlaki was himself a member of Al Quadda, much less an operative, only that he supported the organization through his propaganda.

(3) Brennan's third criterion was that

the individual possesses unique operational skills that are being leveraged in a planned attack.
Al-Awlaki fails to meet this criterion as well. Since when is producing hateful videos and advancing abhorrent principles a "unique operational skill."

There is no First Amendment exception for propaganda. If the First Amendment did not apply to propaganda, then the KKK, neo-Nazi groups and any number of detestable Americans who advance hateful messages would be devoid of First Amendment protection.  

Moreover, if propaganda videos are enough to get you on the drone target list, then the makers of Zero Dark Thirty would qualify, which demonstrates the lack of credibility of this criterion and the problem with assassinating American citizens without due process. Despite the Obama administration's constant reassurance of, "Just trust us, we are being careful," the facts speak otherwise.

The newly-released cold, calculating, chilling white paper only makes the stunning scope and reach of Executive authority even scarier. For me, it's another strike against Brennan, not in his favor.  Brennan was rejected when Obama wanted him to be CIA director during his first term--primarily because of his history with the torture program while he was Deputy Executive Director of the CIA.  Since then, although it would have been hard to fathom 4 years ago, Brennan's record of atrocities has gotten worse. He has overseen the drone program and assassination program. Yet there is far less outcry this time around, and Brennan will be confirmed. Congress should at least put a hold on his coronation until the actual memos are provided. Our democracy deserves that, even if we don't deserve him.

UPDATE: More great pieces on other aspects of this issue have been written by Jameel Jaffer of the ACLU, Marcy Wheeler, Conor Friedersdorf of The Atlantic, and Jonathan Turley.

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