By Morgan Allison || On Monday night a secret U.S. Department of Justice (USDOJ) memo was made public. The sixteen-page “white paper” was leaked to NBC News and details the “legality” of drone strikes on American citizens.
The memo reveals details, previously unknown to the public, behind the Obama administration’s increased use of drone strikes against al-Qaeda suspects overseas. The document includes those attacks resulting in American casualties, like the 2011 strike in Yemen that killed Anwar al-Awlaki and Samir Khan. Both were American citizens who had never been charged with any crimes against their country.
The memo reveals a three-part test which – in the eyes of the administration – makes the targeted assassination of an American citizen lawful. Specifically, it authorizes the U.S. government to kill its own citizens overseas if:
- An informed, high-level official of the US government has determined that the targeted individual poses an imminent threat of violent attack against the United States
- capture is infeasible, and the United States continues to monitor whether capture becomes feasible; and
- the operation would be conducted in a manner consistent with applicable law of war principles.
Current White House counter-terrorism chief and President Obama’s nominee for CIA director, John Brennan, and Attorney General, Eric Holder, have both previously acknowledged and defended the constitutionality of the drone program. However this “white paper” introduces a more expansive definition of self-defense than previously described by Brennan or Holder, referring to a “broader concept of imminence.”
While you may think “imminent threat” in this case means a forthcoming or impending future attack, the “white paper” memo makes clear this isn’t the case. The paper outlines its own variation of “imminent,” which sounds more like unilateral agreement that the person being targeted is in fact a member of a terrorist organization. The paper states,
The condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons will take lace in the immediate future.
As we all know the administration’s “kill list” is secret, so those targeted have no opportunity to challenge their designation as terrorists waiting to be killed by an “informed, high-level official.”
And if you’re just now thinking about the Fifth Amendment’s Due Process Clause, think again. USDOJ beat you to it. According to the memo the clause would not prohibit the type of operations, drone strikes, discussed in the document. Keep in mind that the government needs a judge’s approval to detain a terrorist; to kill one, even an American citizen, it need only give itself permission.
The memo isn’t law, or even final – but rather a legal framework for drone operations. However it does speak volumes about the approaches shaping the Obama administration’s drone program.
You can find the memo here.