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Document Friday: Draft Memorandum of Law, Subject: Assassination

January 15, 2010

MQ-1 Predator. Air Force photo.

In 1975 President Ford acknowledged that the government of the United States had previously plotted and attempted to assassinate foreign nationals (The infamous CIA “Family Jewels” document obtained by the Archive confirms that Fidel Castro was targeted). In 1976 Ford condemned these actions and issued Executive Order 11905 which prohibited employees of the United States from “engag[ing] in, or conspir[ing] to engage in, political assassination.” Does this Executive Order –still on the books– make it illegal to spy, follow, and then use drones to kill suspected Al-Qaeda and Taliban members in countries not at war with the United States? Nope, according to today’s hot doc entitled, “Draft Memorandum of Law, Subject: Assassination.

While this 1989 memo is a draft (other legal justifications remain classified), it is safe to assume that its historical and legal analysis remain the basis for the US policy allowing covert strikes on enemies in sovereign states. Its conclusion states that “the employment of military force against a terrorist or terrorist organization to protect U.S. citizens or the national security of the United States is a legitimate exercise of the international legal right of self defense and does not constitute assassination.” The memo’s arguments –which cite the Barbary pirates, Pancho Villa, and Che Guevara– likely provide the legal framework for current Predator drone strikes.

The draft rings of John Yoo’s meticulously argued endorsement of “the facial slap,” “walling,” and “water boarding” on prisoners held in Guantanamo Bay. Indeed, the crux of this memo’s legal argument has been echoed in many post- 9/11 legal decisions. Terrorists, the draft states, “are not lawful combatants, and are not protected by the law of war.” Therefore, killing them “in self defense is lawful killing rather than assassination,” and can be done in any country.

Though the memo offers no fewer than five different definitions of the term “assassination,” it never defines the term “terrorist,” leaving substantial wiggle-room as to who can be designated a legal target and who cannot. The memo also makes no effort to analyze whether the collateral deaths of innocent civilians during these “lawful killings” are justified.

There you have it. According to this draft memo’s logic, the United States does not conduct nor conspire to conduct political assassinations; Reagan’s bombing of Muammar al-Gaddafi’s home, Clinton’s cruise missile strikes on Bin Laden’s camps, W. Bush’s “termination” of Al-Zarquawi, and Obama’s “taking out” of Baitullah Mehsud notwithstanding.

5 Comments leave one →
  1. the_matt permalink
    January 15, 2010 12:47 pm

    Reminds me of a quote (that I can’t remember all of anymore… something about the power to define though…) that seems to run through a lot of history. Terrorists or freedom fighters? Depends on where (and when) you stand…

  2. January 29, 2010 1:59 am

    I have just read the Memo linked above and it is an appalling document. It is not worthy of the term legal memorandum. The final two pages are rife with conclusory definitions.. Not only is terrorist not defined nor is continuing action and continuing threat.. Did your FOIA request reveal that the Major General signatory actually wrote this ? Did the DOD not reveal the other legal justifications relied upon besides this farcically incomplete document ? This so-called memorandum would be thrown back in the face of any 3L who wrote this for her Research and Writing requirement… It is too short and woefully inadequate in legal analysis based on case law and statutory law.. Is anyone actively pursuing the actual legal basis for Predator/Reaper strikes ? Having served in the Marine Corps during the Cold War there are undoubtedly other means being used besides Hellfire missiles disintegrating cars and rooms filled with “terrorists.” Who are these terrorists — apparently the term is universally self-defining and it is not necessary to cite case law or actually employ legal analysis for even law school R/W purposes to engage these ” continuing threats.” I do not know how your researchers can stomach this response and the continuing arrogance of what can only be seen as an Imperial imperative that mocks the word Republic as used by Our Framers of the United States Constitution. Please advise if you know that the DOD or White House Counsel Office actually admit that this pathetic draft memorandum is relied upon as part of an ongoing legal rationale for what is loosely reported as “Predator strikes.” Sincerely and sadly submitted, Thomas Barton, JD UMKC School of Law, Class of 1992

  3. Nate Jones permalink*
    January 29, 2010 12:26 pm

    Thanks for your great points! With the information available to us, I can only confirm what the last page of the document shows: that W. Hays Parks (of the International Affairs Division) prepared the document and that there the Major General’s name and title is printed but not signed. Actually, this draft was published in full, verbatim, in the December 1989 journal, The Army Lawyer. The magazine states that the memo was drafted during the process of rewriting U.S. Army Field Manual 27-10, “to explain the term in the context of military operations across the conflict spectrum.”

    And as far as I can tell, this is the only legal justification released on the subject of US assassinations. (Of course it is very possible I missed something… if so, let me know!!)

    As for Predator drone strikes, I am aware of no legal justification that has been released. (Again, if anyone knows of any, tell me). However, after the Bombing of the US base in Khost, the CIA released a statement saying, “The agency’s counterterrorism operations — lawful, aggressive, precise and effective — continue without pause.” Notice the word lawful. Earlier this month, the ACLU filed a FOIA suit asking for the release of the “legal basis” for the drone strikes. Keep your eyes pealed for the release and/or court battle. Only then can we compare the current legal rational to this 1989 memo.

    Finally, as upsetting as some of the docs we come across are, it is always rewarding to remove “the self-serving veils of government secrecy” and present them to the public.

  4. John Bauer permalink
    February 1, 2010 11:09 pm

    Hays Parks was a Marine himself, but went to work for Army and is considered by many to be “the” expert on the law of armed conflict. He is the guy that blessed off on new weapons to show that they met the rule of proportionality.

    Our Framers dealt with the “savages” much like we have historically dealt with threats.

    The mistake that is being made is that the analysis is not one of a criminal law investigation, but of one that transcends our borders and is beyond the powers of Barney Fife’s investigatory skills.

  5. Nate Jones permalink*
    April 2, 2010 10:43 am

    Here are two more interesting (if contrasting) pieces about Predators.

    http://www.newyorker.com/reporting/2009/10/26/091026fa_fact_mayer

    http://www.ndu.edu/press/jfq_pages/editions/i57/etzioni.pdf

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