John Yoo and the Obama White Paper and Killing Americans in America and Yemen

Just for shits and giggles, compare this paragraph:

In the normal domestic law enforcement context, the use of deadly force is considered a “seizure” under the Fourth Amendment. The Supreme Court has examined the constitutionality of the use of deadly force under an objective “reasonableness” standard. See Tennessee v. Garner, 471 U.S. 1, 7, 11 (1985). The question whether a particular use of deadly force is “reasonable” requires an assessment of “the totality of the circumstances” that balances ‘”the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.'” Id. at 8-9 (quoting United States v. Place, 462 U.S. 696, 703 (1983)). Because “[t]he intrusiveness of a seizure by means of deadly force is unmatched,” id. at 9, the governmental interests in using such force must be powerful. Deadly force, however, may be justified if the danger to the officer’s or an innocent third party’s life or safety is sufficiently great. See Memorandum to Files, from Robert Delahunty, Special Counsel, Office of Legal Counsel, Re: Use of Deadly Force Against Civil Aircraft Threatening to Attack 1996 Summer Olympic Games (Aug. 19, 1996).

With this one:

The Fourth Amendment “reasonableness” test is situation-dependent. Cf Scott, 550 U.S. at 382 (“Garner did not establish a magical on/off switch that triggers rigid preconditions whenever an officer’s actions constitute ‘deadly force.”‘). What would constitute a reasonable use of lethal force for purposes of domestic law enforcement operations differs substantially from what would be reasonable in the situation and circumstances discussed in this white paper. But at least in circumstances where the targeted person is an operational leader of an enemy force and an informed, high-level government official has determined that he poses an imminent threat of violent attack against the United States, and those conducting the operation would carry out the operation only if capture were infeasible, the use of lethal force would not violate the Fourth Amendment. Under such circumstances, the intrusion on any Fourth Amendment interests would be outweighed by the “importance of the governmental interests [that] justify the intrusion,” Garner, 471 U.S. at 8-the interests in protecting the lives of Americans.

The first paragraph comes from this October 23, 2001 Office of Legal Counsel Memo authored by John Yoo. The second comes from the Obama Administration’s November 8, 2011 White Paper on targeted killing.

The Yoo paragraph was a bit of an odd diversion in a memo otherwise laying the groundwork to allow DOD to conduct searches in the US; as far as I know, it was primarily used to enable the National Security Agency (which, after all, is part of DOD) to conduct warrantless searches of US person communications collected within the US. But along the way, Yoo threw in deadly force — within the US — because he had already suspended the Fourth Amendment in the memo and so why not?

The White Paper paragraph would be a relatively uncontroversial paragraph among other more controversial ones authorizing the President to kill an American with no due process. Except that it collapses the distinction between laws that apply to the military and laws that apply to the CIA.

And then, perhaps unsurprisingly, the Fourth Amendment discussion in paragraph 21 (the first in section IIB) only applies to those targeting the US, not members of an AUMF enemy per se.

Similarly, assuming that a lethal operation targeting a U.S. citizen abroad who is planning attacks against the United States would result in a “seizure” under the Fourth Amendment, such an operation would not violate that Amendment in the circumstances posited here.

But wait! The passage goes on to cite two domestic law enforcement cases, Tennessee v. Garner and Scott v. Harris. That’s a problem, because Article II authorities are going to be a covert operation, and therefore the CIA, which is prohibited from serving as a law enforcement agency.

Nevertheless, these respective paragraphs — insofar as they apply domestic law enforcement precedents to purported real threats — are somewhat reasonable expansions of the authority, confirmed in Tennessee v. Garner, to kill an American in hot pursuit, within the context of more controversial memos.

There are two reasons to look further than that, however.

The Posse Comitatus Question

First, there’s Yoo’s analysis, which was treated as law for 7 years, that in the War on Terror, the Posse Comitatus Act did not apply.

Both the express language of the PCA and its history show clearly that it was intended to prevent the use of the military for domestic law enforcement purposes. It does not address the deployment of troops for domestic military operations against potential attacks on the United States. Both the Justice Department and the Defense Department have accordingly interpreted the PCA not to bar military deployments that pursue a military or foreign policy function.


Because using military force to combat terrorist attacks would be for the purpose of protecting the nation’s security, rather than executing the laws, domestic deployment in the current situation would not violate the PCA.

Armando Llorens and Adam Serwer have debated — specifically in the context of whether the President could kill Americans within the US — whether PCA applies in this war. And while they’re staging an interesting argument (I think both are engaging the AUMF fallacy and therefore not discussing how a President would most likely kill Americans in the US), what the Yoo memo shows, at the least, is that the folks running the Executive Branch believed, for 7 years, the PCA did not apply.

To be clear, this memo was withdrawn in October 2008 (though not without some pressure from Congress). While the PCA aspect of the opinion is one of the less controversial aspects in the memo, as far as we know it has not been replaced by similar language in another memo. So while this shows that PCA was, for all intents and purposes, suspended for 7 years (as witnessed by NSA’s wiretapping of Americans), it doesn’t mean PCA remains suspended.

Update: Read this post. Bradbury didn’t withdraw the memo. He urged people to use caution before relying on Yoo’s earlier memo. And while he specifically takes apart Yoo’s language on PCA, he leaves intact the military purpose doctrine, including for the use of military force.

The Lackawanna Six and the First Dead American

The earlier Yoo memo is also interesting to review in light of the debate the Bush Administration had in 2002 about whether they ought to use it to declare the Lackawanna Six enemy combatants.

Some of the advisers to President George W. Bush, including Vice President Dick Cheney, argued that a president had the power to use the military on domestic soil to sweep up the terrorism suspects, who came to be known as the Lackawanna Six, and declare them enemy combatants.

Mr. Bush ultimately decided against the proposal to use military force.

Dick Cheney espoused doing so because, DOJ worried, the government didn’t have a strong enough case against the Six.

Former officials said the 2002 debate arose partly from Justice Department concerns that there might not be enough evidence to arrest and successfully prosecute the suspects in Lackawanna. Mr. Cheney, the officials said, had argued that the administration would need a lower threshold of evidence to declare them enemy combatants and keep them in military custody.

Call me crazy, but there’s reason to believe DOJ believed any case against Anwar al-Awlaki had similar weaknesses.

The Lackawanna Six, under pressure of being named enemy combatants, all plead guilty to material support; all have or are reaching the end of their sentence.

Which is where this comes full circle.

Because just months after Dick Cheney contemplated sending the military to capture 5 guys outside of Buffalo (the sixth was in Bahrain getting married), the US killed the first American in a drone strike in Yemen, Kamal Derwish, purportedly the recruiter for the Six.

The same impetus that first contemplated using military force in the US ended in the first drone death of an American. And now, in discussion of the memo authorizing the death of another American (or three) in Yemen, we’re back to discussing whether the President can authorize targeted killings within the US.

I’m not saying the white paper is as outrageous as the Yoo memo. In some ways it is more defensible. In others–specifically in its application to the CIA–it is more of a stretch.

But, as this relatively reasonable paragraph from less reasonable memos makes clear, we really haven’t moved that far beyond where Dick Cheney was in 2002.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

12 replies
  1. orionATL says:

    more to the point, what has really been hidden is that much of the surreptitious killing of americans has been done to keep “our muslims” under control, that is to keep angry muslims like derwish and al-awlaki from stirring up rebellion among “our” hometown little brown brothers.

    who could have imagined that federal leader types would be that worried about a relatively small (and peaceful) segment of our society and believe they were susceptible, in large enough numbers, to jihadist rhetoric.

    and so, i hypothesize, out of that probably ungrounded fear has arisen not only the issue of extra-judicial killing of american citizens, but also the yesrs of spying, vicious harrassment, and entrapment by doj/fbi of muslim-americans, mostly goofy young males.

  2. Frank33 says:

    The war on terror has been very useful. First, assassinate terrorists, then label Americans as terrorists, who threaten fascist corporations. The assassins in the DOJ and Pentagon will be able to assassinate environmentalists, or Occupy or any dissenters against the billionaires and their criminal wars. These are “associated forces”. The reason we have assassinations is to increase the wealth of billionaires who steal the world’s resources.

    Some Senators have forgotten that they need to remain silent and support wars forever.. The Senate has been designed to be puppets and shills. Senators cannot be trusted with the secrets of the psychpathic Elites. If the Senate keeps interfering, maybe some Senators will get Droned or get sent Anthrax.

    The white paper concludes, controversially, that the U.S. government can order the killing of American citizens if they are believed to be senior leaders of al-Qaida or “an associated force,” even if there is no evidence of an imminent plot against the U.S…

    The President and his sycophants are “miffed” that the Senate would try to reverse engineer their genocide. Plus, the attempt to get the Assassination memos is delaying the confirmation of Spymaster/Assassin Brennan. But stopping Brennan is a delighful unintended consequence. I thank the Teabagger Republicans. Benghazi Forever.

    White House was miffed at efforts by the senator and her staff to obtain all the memos at once, because such efforts play into the Republican strategy of using the dispute to delay the confirmation of John Brennan, Obama’s nominee to head the CIA and the main architect of the drone program, as well as Chuck Hagel as Defense secretary.

    “These guys don’t even know what the hell they’re asking for,” the official said. “They think they can ‘reverse-engineer’ the [drone] program by asking for more memos, but these are not necessarily things that exist or are relevant…. What they’re asking for is to get more people read into very sensitive programs. That’s not a small decision.”

  3. allan says:

    ” … killed the first American in a drone strike in Yemen, Kamal Derwish, purportedly the recruiter for the Six”

    and who, if taken alive, might have provided exculpatory testimony for the six, who claimed they had been misled by him. Funny how that worked out.

  4. What Constitution? says:

    Watching the current administration and its synchophantic enablers line up on this wrong side of history, so soon again after Yoo’s last round of shameful “analyses” were “rescinded”, is truly disgusting. Gee, makes you wonder if, just maybe, there’s some significance to the administration’s refusal to release the other OLC memos. Could it be the criminal ramifications of the insufficiency of the purported justifications? Waiting for “look forward, not back” as the next layer of drone support.

  5. orionATL says:

    this is so puzzling.

    i’d love to know what entity or persons were behind this persistent push to destroy any line or limit in domestic affairs that the military, or even the paramilitary, can not cross over.

    this seems to me to be such an unnecessary and potentially dangerous expasion of presidential military.power within america borders. what is to prevent a future president from declaring an opposition group say like a “tea party” a threat to security and invoke the military, or the paramilitary spy agencies, e.g., nsa.

    it’s as if david addington were still hard at work in the whitehouse turning the president into the generalissimo.

  6. orionATL says:

    @What Constitution?:

    “… Could it be the criminal ramifications of the insufficiency of the purported justifications? Waiting for “look forward, not back” as the next layer of drone support…”

    in response to your question: yes

    in response to your comment: :>)

  7. beowulf says:

    @What Constitution?: @orionATL:
    “… Could it be the criminal ramifications of the insufficiency of the purported justifications? Waiting for “look forward, not back” as the next layer of drone support…”

    My suspicion is there’s a govt memo (I dunno, from Air Force lawyers) the Admin wants to bury because it makes the case that assassinating US citizens is exactly as illegal as it sounds.

    The criminal ramifications of this case are enormous. What the Administration really REALLY should have factored in are 1. There’s only a couple of crimes with no statute of limitations, and they’ve tripped over one of them; & 2. A future GOP Attorney General (and “future” is a long time with no SOL)) will gleefully prosecute former Democratic officials in any event. If it happens they’re actually guilty of something, well, like Tony Montana and his green card, that’s just a bonus.

  8. soryang says:

    The authority to imprison US citizens and subject them to military control without trial, or trial by military commission, in a phrase “martial law,” comes from the case Ex parte Quirin, 317 U.S. 1 (1942), which Yoo relies on to give the “unitary executive” ultimate power during “time of war.” The Quirin case, a case arising in the heat of WWII, allowed a military commission to condemn an American arrested in the US to death for participating in a nazi sabotage scheme.

    The Quirin case nonchalantly disregarded the earlier Supreme Court precedent Ex parte Milligan,71 U.S. (4 Wall.) 2 (1866). Milligan was also sentenced to death by a military tribunal for scheming against the Union and communicating with the enemy Confederacy during the civil war. Milligan was a US citizen living in southern Indiana outside the war zone. In this landmark case defining the scope of due process rights for US citizens in wartime, martial law for US citizens was rejected where the course of governance and the operations of the civil courts were not affected by the course of war and remained in session. The Quirin court unlike the previous supreme court ruling disregarded this aspect of the guarantees of liberty and due process in the 4th, 5th, and 6th Amendments. So did Lincoln during the civil war when he approved Milligan’s military execution. The Milligan court rejected military jurisdiction over US citizens and established for all time the supremecy of the civil courts over the military where US civilians were concerned. I suggest that the Quirin decision by the Supreme Court is about as disgraceful and non-authoritative a decision as the Supreme Court’s decision that it was okay to intern American citizens of Japanese extraction during WWII.

    The Defense Authorization Act attempts to codify Quirin and “the law of war” as being the law for US citizens suspected of substantial support for terrorist forces. The Milligan court stated in its reasoning that “military law is no law.”

    The idea that you can conduct warfare against US residents where the civil courts of the United States are not disrupted is another bogus legal theory from fascist la la land.

  9. orionATL says:


    “… the criminal ramifications of this case are enormous. What the Administration really REALLY should have factored in are 1. There’s only a couple of crimes with no statute of limitations, and they’ve tripped over one of them; & 2. A future GOP Attorney General (and “future” is a long time with no SOL)) will gleefully prosecute former Democratic officials in any event…”

    that’s pretty much what i think – in late 2009 when our profoundly inexperienced prez was not in charge of his falcons or their handlers – the admin made a huge error (one the bush admin had made earlier, as ew has told us (k. derwish) by authorizing the execution of al-a.

    later, after the “oh, shit” moment, they began debating and thinking up rationales. by then the falcon was out of the hood, so to speak.

    thus began the everything including the kitchen sink legal documents summarized in the white (papel hygenico) paper.

    this may be the reason obama suddenly turned so right wing – he realized that he needed the protections he extended to cheney and bush. i’ve always felt, without any confirmation, that obama was being politically “blackmailed” about something. extra-judicial killing might be that thing.

  10. orionATL says:


    thank you for this excellent, informative summary.

    if i understand your argument correctly, if the courts have been functioning within the u.s. since before 2001, and they have and continue to do so, then there should not be any need here for extra-judicial executive legal action. that would include jose padilla, guantanamo defendants, julian assange to name a few.

    thanks, and feel free to correct me and add more info.

  11. beowulf says:

    “i’ve always felt, without any confirmation, that obama was being politically “blackmailed” about something. extra-judicial killing might be that thing.”

    That’s an interesting thought. Who really fell down on the job here, of course, is Eric Holder. The Attorney General’s job is is to tell the President he’s about to do something impeachable (if not indictable) and threaten to resign if he goes through it. For example…

    “Then-Attorney General John Ashcroft, FBI Director Robert Mueller, and several other top Justice Department officials nearly resigned in March 2004 after President Bush reauthorized a warrantless surveillance program even though the department said it was illegal, the Senate was told Tuesday.”

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