22 May 2013, DOJ: Office of the Attorney General: AG Holder letter to Sen. Leahy re. use of lethal force against U.S. citizens (PDF)
May 22, 2013
Obama, in a Shift, to Limit Targets of Drone Strikes
By CHARLIE SAVAGE and PETER BAKER
WASHINGTON -- President Obama plans to open a new phase in the nation's long struggle with terrorism on Thursday by restricting the use of unmanned drone strikes that have been at the heart of his national security strategy and shifting control of them away from the C.I.A. to the military.
In his first major speech on counterterrorism of his second term, Mr. Obama hopes to refocus the epic conflict that has defined American priorities since the attacks of Sept. 11, 2001, and even foresees an unspecified day when the so-called war on terror might all but end, according to people briefed on White House plans.
As part of the shift in approach, the administration on Wednesday formally acknowledged for the first time that it had killed four American citizens in drone strikes outside the battlefields of Afghanistan and Iraq, arguing that its actions were justified by the danger to the United States. Mr. Obama approved providing new information to Congress and the public about the rules governing his attacks on Al Qaeda and its allies.
A new classified policy guidance signed by Mr. Obama will sharply curtail the instances when unmanned aircraft can be used to attack in places that are not overt war zones, countries like Pakistan, Yemen and Somalia. The rules will impose the same standard for strikes on foreign enemies now used only for American citizens deemed to be terrorists.
Lethal force will be used only against targets who pose "a continuing, imminent threat to Americans" and cannot feasibly be captured, Attorney General Eric H. Holder Jr. said in a letter to Congress,  suggesting that threats to a partner like Afghanistan or Yemen alone would not be enough to justify being targeted.
The standard could signal an end to "signature strikes," or attacks on groups of unknown men based only on their presumed status as members of Al Qaeda or some other enemy group -- an approach that administration critics say has resulted in many civilian casualties. In effect, this appears to be a step away from the less restricted use of force allowed in war zones and toward the more limited use of force for self-defense allowed outside of armed conflict.
In the speech he will give on Thursday at the National Defense University, Mr. Obama will also renew his long-stalled effort to close the prison at Guantanamo Bay, Cuba. Officials said they would make a fresh push to transfer detainees to home countries and lift the ban on sending some back to Yemen. The president plans to reappoint a high-level State Department official to oversee the effort to reduce the prison population.
The combined actions constitute a pivot point for a president who came to office highly critical of his predecessor, George W. Bush, yet who preserved and in some cases expanded on some of the counterterrorism policies he inherited. Much as Mr. Bush did in 2006 when he acknowledged and emptied secret overseas C.I.A. prisons, Mr. Obama appears intent on countering criticism of his most controversial policies by reorienting them to meet changing conditions.
In his speech, Mr. Obama is expected to reject the notion of a perpetual war with terrorists, envisioning a day when Al Qaeda has been so incapacitated that wartime authority will end. However, because he is also institutionalizing procedures for drone strikes, it does not appear that he thinks that day has come. A Pentagon official suggested last week that the current conflict could continue for 10 to 20 years.
Yet even as he moves the counterterrorism effort to a next stage, Mr. Obama plans to offer a robust defense of a continued role for targeted killings, a policy he has generally addressed only in passing or in interviews rather than in a comprehensive speech. A White House official said he "will discuss why the use of drone strikes is necessary, legal and just, while addressing the various issues raised by our use of targeted action."
While Mr. Obama may not explicitly announce the shift in drones from the Central Intelligence Agency in his speech, since the agency's operations remain formally classified, the change underscores a desire by the president and his advisers to balance them with other legal and diplomatic tools. The C.I.A., which has overseen the drone war in the tribal areas of Pakistan and elsewhere, will generally cede its role to the military after a six-month transition period as forces draw down in Afghanistan, officials said.
Drone strikes have already been decreasing in the past few years as targets have been killed and opposition has grown. John O. Brennan, the new C.I.A. director, has been eager to shift the agency more toward espionage, intelligence gathering and analysis and away from the paramilitary mission it has adopted since Sept. 11.
Senator Jack Reed of Rhode Island, a top Democrat on the Armed Services Committee, said that after more than a decade of war it was time to "rebalance" the missions of the Pentagon and C.I.A. "The policy is intended to refocus the activities of the intelligence community to collection, which is crucial," he said.
But Mr. Obama's moves may provoke criticism from some Republicans who say a law enforcement approach underestimates the continuing threat from terrorism. An aide to Representative Howard P. McKeon of California, chairman of the Armed Services Committee, said his boss would insist on "concrete answers" about what Mr. Obama planned to do with "terrorists who are too dangerous to be released" from Guantanamo.
In his letter to Congressional leaders, Mr. Holder confirmed that the administration had deliberately killed Anwar al-Awlaki, a radical Muslim cleric who died in a drone strike in September 2011 in Yemen. Mr. Holder also wrote that United States forces had killed three other Americans who "were not specifically targeted."
The American involvement in Mr. Awlaki's death has been widely reported, but the administration until now had refused to confirm it. Likewise, Mr. Holder confirmed the government's role in the deaths of Samir Khan, who was killed in the same strike, and Mr. Awlaki's son, Abdulrahman al-Awlaki, who died in another strike. The letter disclosed the death of a fourth American named Jude Kenan Mohammad but gave no further details.
Mr. Holder defended the actions, saying they were consistent with American law and taken only after careful consideration. "Based on generations-old legal principles and Supreme Court decisions handed down during World War II, as well as during the current conflict, it is clear and logical that United States citizenship alone does not make such individuals immune from being targeted," he wrote.
Critics were not assuaged. "The Obama administration continues to claim authority to kill virtually anyone anywhere in the world under the 'global battlefield' legal theory and a radical redefinition of the concept of imminence," said Zeke Johnson of Amnesty International. "President Obama should reject these concepts in his speech tomorrow and commit to upholding human rights, not just in word but in deed."
The lifting of the veil of official secrecy over the Awlaki killing could have broad legal ramifications. The Justice Department on Wednesday afternoon dropped an effort  to throw out a California lawsuit seeking documents related to the killing, while a judge here ordered the government to address the disclosure in a wrongful-death lawsuit brought by Mr. Awlaki's family.
Mr. Holder, in a speech at Northwestern law school  last year, laid out the administration's basic legal thinking that it could target American citizens deemed to be operational terrorists who pose an "imminent threat of violent attack" and where capture is not feasible.
Mr. Holder's letter expanded the rationale for the killing of Mr. Awlaki. Mr. Holder said Mr. Awlaki not only had "planned" the attempted bombing of a Detroit-bound airliner on Dec. 25, 2009, a claim that has been widely discussed in court documents and elsewhere, but had also "played a key role" in an October 2010 plot to blow up cargo planes bound for the United States, including taking "part in the development and testing" of the bombs. He added that Mr. Awlaki had also been involved in "the planning of numerous other plots."
"The decision to target Anwar al-Awlaki was lawful, it was considered, and it was just," Mr. Holder said.