A bipartisan group of three former White House ethics chiefs today urged the Department of Justice’s Office of Professional Responsibility (OPR) to investigate whether the Office of Legal Counsel (OLC) manipulated the law in a secret legal memo that has been used to justify U.S. military strikes that killed civilians on boats from Venezuela in international waters.

The ethics experts warn that OLC may have written that analysis to justify the Administration’s  unprecedented expansion of presidential authority and provided a shield for the president to authorize the murder of  civilians outside any recognized armed conflict.

The complaint—submitted by Norm Eisen, Richard Painter, and Virginia Canter, who served as ethics advisers to Presidents Obama, Bush, and Clinton, respectively—explains that the Administration’s justification has been widely dismissed by national security experts across the political spectrum. News reports indicate that OLC’s still-classified memo asserts that the United States is engaged in a “non-international armed conflict” with drug cartels, a claim that would permit the use of wartime lethal force. But leading authorities on the law of armed conflict have stated that no credible interpretation of the facts supports such a determination. Cartels, the complaint states, are criminal enterprises, not armed groups engaged in hostilities against the United States. Even if the United States were engaging in a "non-international armed conflict" with a cartel, the lethal strikes would be illegal.

“Experts have been unequivocal: the legal and factual predicates for these strikes do not withstand basic scrutiny,” said Eisen, who is the executive chair of Democracy Defenders Fund. “If the administration’s foundational premise is wrong, then the use of lethal force has no basis in domestic or international law.”

The complaint notes that recharacterizing ordinary criminal narcotrafficking activity as armed hostilities without evidence of cartel attacks on the United States is inconsistent with international legal standards. Similarly, the invocation of “self-defense,” despite the absence of an actual or imminent armed attack, is contrary to international law, not to mention longstanding U.S. practice.

The complaint argues that the memo’s legal flaws require OPR to determine whether OLC attorneys actively constructed a pretext to authorize killings and shield decisionmakers from liability.

“The role of OLC is to provide unvarnished legal advice to the president to ensure that the laws are ‘faithfully executed’ as is required by the Constitution,” Painter said. “Unfortunately, all signs point to OLC’s opinion being nothing but a legal fig leaf to justify the president’s attacks on foreign civilians.”

The complaint argues that OPR’s intervention is urgently needed. At least 22 strikes have been carried out and 87 individuals killed, and the president has publicly indicated that more lethal actions may follow.

“OPR must determine whether OLC offered an honest assessment of the law or a justification designed to enable extrajudicial killings under the guise of war,” Canter said. “The integrity of the Justice Department, and the preservation of life, require immediate action.”

The complaint also calls for the declassification of the OLC memo and the release of video evidence from the strikes, including the Sept. 2 attack that is under scrutiny, to allow the public and Congress to understand the legal premise for the attacks.

Read the full complaint HERE

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Democracy Defenders Fund brings together a nonpartisan team to work with national, state, and local allies across the country to defend in real-time the foundations of our democracy.