Scarborough: Drone strike memo on Americans is 'so frightening'

>> new revelations this morning involving the u.s. drones strike program, in a six page memo obtained by nbc news the justice department makes the legal case for the killing of american citizens if they are believed to be senior operational leaders of al qaeda or associated force even if there is no intelligence indicating they are engaged in an active plot to attack the u.s. joining us now, nbc neuews national justice correspondent michael isikoff , who broke the story last night after obtaining a copy of the memo. take us through the significance of this memo.

>> of course. this memo sheds light on one of the most controversial and secretive policies of the obama administration , not just the secretive drone strike but using the right to use it against american citizens. this came up in 2007 when a drone strike killed awlaki and kahne, both u.s. citizens and neither charged with a crime. and we have extra judicial killings by the u.s. government without any judicial review and any right of the citizen to argue his or her case in court. these are very sticky issues. the legal basis for these strikes has been kept a secret by the obama administration . you may remember we had huge fights back in the bush era about the legal memos for enhanced interrogation tactics, the so-called torture memos. ultimately they became public. this is viewed by some as an analogy for that, secret memos upon which huge u.s. government policies, with grave consequences are being made. we got a copy of this memo, which is not the olc memo, the office of legal council memo but a white paper , 16 page white paper that mirrors and tracks it and gives us much more detail about what the legal basis for these strikes are.

>> you draw a great analogy with the bush administration except for the fact there you may have been giving somebody intense in t tergation of picking it up off the field. here, you have a situation where the u.s. government is killing americans without judicial review , without any crimes being charged against them. as you said, without them having the right to defend themselves. and even without a right to have any specific actionable intelligen intelligence . it's hard to say how many stop signs were blown thawing here. but for those that were shocked at the bush administration quote torture memos, they must be really stunned by this. americans can be killed, again, not charged with any crimes, no judicial review , no actionable intelligence , nothing, just suspicion.

>> right. well, what the administration will say is more than suspicion, they'll say hard intelligence . we all know hard intelligence can be hard or it can be awfully squishy and horribly wrong.

>> like wmds in iraq.

>> excellent point. if you read the document. we posted it only, on msnbc news.com now, you see that some of the definitions they lay out in this memo are open to fairly wide interpretation. i'll give you an example. the most ex-how stiff public accounting of this was given by attorney general holder last year and gave a three part test when these sorts of killings can be lawful. is when there is an imminent threat of violent attack against the united states , when the u.s. has the intelligence of such. you read the memo and see that imminent threat is subject to a some what broad interpretation. in fact, they use the phrase broader concept of eminence. it does not mean, the memo explicitly says, that there's active intelligence of an ongoing plot. it may mean they have active intelligence of what the memo calls recent activities involve ing violent plots, but no ongoing plot, no active plot against the united states .

>> and then, it says here also, that, quote, there is no evidence suggesting he has renounced or abandoned such activities.

>> right. almost as though the burden is on the target.

>> right.

>> to prove that they've renoun renounced what they might have advocated or been involved in, in the past.

>> they have to renounce something that there may be no acti actionable intelligence on. this is -- this is an absolute mess, michael. thank you so much for bringing this us to us. great work.

>> michael, thank you.

>> this is so frightening.

>> what it shows, democrats and liberals very critical and even called for extreme action to be taken against the bush administration , we're now obviously seeing some decisions the obama administration may argue differently. let me make clear, i support what the obama administration is doing here but it goes to show how difficult and messy, when the bush administration would make the point, those senior leaders would say it's difficult for perhaps some to understand what we're dealing with here when we talk about this level, all national security decisions are serious, we talk about this kind of threat we have to make at times very messy and sometimes uncomfortable and oftentimes questionable decisions. my only point is democrats need to now think back how they conducted themselves and questions they raised about bush administration tactics. i didn't raise those questions as aggressively as some of my friends did and important everybody step back and take a breather here, particularly democrats. if this was happening and his name was bush, i think there'd be a lot of criticism coming at this president.

>> if george bush had done this, it would have been stopped.

>> i think it would have been certainly a huge controversy that would have erupted. the question is how many questions will this administration face on this? i think it goes back to the point you made several years ago, when --

>> scarborough.

>> when president obama becomes president, said when he becomes president and looks at classified documents things will change and he won't close gitmo and won't do certain things he is criticizing now and this is what will happen. that is what you said when he stepped in office. noin the summer of 2008 , he was running around george bush was going to change the constitution and he was going to close gitmo.

>> and i laughed.

>> and you had the roundtable --

>> i laughed, said, no, you won't. i think we should have a constitutional lawyer, not conservative but somebody down the middle. get a group of people.

>> somebody who was very critical of the bush administration .

>> talk about how this sets new standards. bush was talking about seizing a known terrorist like khalid shaikh mohammed , pulling them out and taking them to a black site . here, we're talking about dropping drones not just on one person, as we know, killing a lot of people around it, and killing americans , who have a constitutional right to have a jury of their peers, to kill americans who are not charged with crimes, have no judicial review , no actionable intelligence , and now in this me memo, that they have the burden, the burden is on them, before they are killed, to run out and yell, i am not a terrorist, i am not a treferrorist, as if they went out and yelled, i am not a terrorist, they wouldn't get a drone dropped on their head, too. this is just dangerous.

>> for all the concerns about due process on guantanamo, i share a lot of those, people being held there for a decade without charge, this goes several steps further, this says, we can kill you without due process , we can kill you on suspicion you're a bad guy , we're not going to bother to take you somewhere and offer possibility eventually there will be a trial, we'll just take you out of the game with a drone.

>> at that point, i remember padilla reading the americans supposedly had the dirty bomb , i remember reading that, he had been locked up without a lawyer, i remember being shocked at that saying the guy has a right to a lawyer.

>> right.

>> here, they have a right to nothing, the right to be killed by an indiscriminate drone strike if somebody's suspicious in the u.s. government .

>> michael isikoff mentioned the guy in yemen taken out, the american citizen who renounced his citizenship. a couple years later his 16-year-old son was killed in a drone strike. at the time, the obama campaign , this was robert gibbs , when asked why this young man was killed, an underaged u.s. citizen said quote he should have had a far more responsible father, talking about al awlaki's father. because of his suspicion of his father and where he was in yemen, he was killed with god knows how many people who should not have been killed.

>> by the way, this happens, mark, if you are in -- forever you are in the company of somebody that the united states government suspects, and you are a young male, you are, in this world, now presumed guilty. you could be killed, again, for having quote the wrong father. this is so chilling.

>> it is not being weak on the war on terror to not find this to be chilling and a real threat to our civil liberties . there's some united states senators asking questions about it with no judicial review , i think it's incumbent upon of senators with michael isikoff getting this memo, what else do we need to know about this program? the standard is brand new. it involves killing americans without any safeguards we suspected pre-9/11.

>> by the way, some people, and i think you said it, harold, was it john yoo .

>> y-o-o teaches at berkeley.

>> some people on the left owe an apology.

>> the criticism ramped up --

>> that's what i'm saying, his torture memos, i was not fan of, didn't like a lot of conclusions they drew because they thought they were fog fagoing fast and loose in some cases, those things are child's play compared to what the federal government can do now and who they can kill without, again, let me say it again, no evidence, no judicial review , no ability to confront your peers.

>> you want to pick a moderate to liberal, whomever, constitutional scholar who may have been against some of that. we are talking about people hanging out with terrorists. the question should be asked of the administration how many americans have been tashtd. if you happen to have a known terrorist on the cia's department watch list in your living room , perhaps you have some issues, too. don't get me wrong.

>> no, you don't, harold. did you go to law school ? if you're an american, are you telling me if you're an american overseas and you happen to stumble into the wrong zip code , you could be killed because somebody is sitting in the living room of a guy who is a terrorist?

>> i've never had one in my living room .

>> but you may not know the guy is a terrorist. maybe you know him from the mosque you're going to. maybe you're the only two americans . i don't know how to play this.

>> all these questions have to be answered.

>> just because you're in the same proximity with a suspected terrorist, who has not been charged with any crimes, then you may be killed.

>> call me old-fashioned, i like checks and balances on the executive branch , even during war.

>> i agree with you. the senate should ask these questions, i don't disagree with that.

>> here's my question. i get the hip poxcracy of it or disconnect previous administrations have received and this policy. do you think this policy is their potential and might be necessary?

>> no. you have to have standards.

>> hmm.

>> you have to have some standards. i thought that's what everybody was screaming and yelling about as far as the bush enhanced interrogation program when those things were going on. they went in and seized one person who they actually had actionable intelligence on. then took that one person out, and interrogated them and got information they felt would lead to the saving of other lives. you have to have standards there. you just can't grab an american citizen , like we said, and, willie, throw him into jail and keep him there for years without seeing a lawyer.

>> in fairness.

>> it's wrong.

>> there is a group of progressives and have been for some time adamantly against this drone program and now their voices are getting louder and louder especially after this report comes out today.

>>> coming up, we'll get to these other stories and talk to house majority leader eric cantor ahead of his public re-branding speech today and congressman elijah cummings and peter orszag and frank bruni . up next, the top stories in the political playbook. first, weasel bright national weather person day.

>> big holiday!

>> what?

>> balloons and everything.

>> that's not true, is it?

>> it is. national weatherman's day, february 5th , every year.

>> wow.

>> wonderful. wonderful support system i have here. good morning, everyone. we are watching a little bit of light snow across long island, new york city , coastal connecticut , not going to cause issues on the roads, dusting on the roads about a half-inch. new york city you can see it about a half inch. today is a good day for travel but new england is frigid. 2 in burlington and very cold in maine and new hampshire. the rest of the northeast is starting to warm up a little bit. above freezing today. and d.c. you could sneak up to 47 much warmer than you've been lately and a warming trend in the middle of the country. still cold in chicago but we're heading near 30 in chicago but look to your south, what a beautiful day . kansas city , 51. still very warm from denver to dallas and much of the west. that will continue as we go throughout this week, washington d.c. , looks like we hold on to this war, 35 to 50 all the way through a sunny saturday, good things ahead in this morning's capitol. you're watching " morning joe " brewed by starbucks. [