Leaked DOJ document sheds light on US drone policy
MOSCOW, February 6 - RAPSI, Ingrid Burke. A US Department of Justice (DOJ) white paper leaked to NBC News and subsequently uploaded for the whole of the Internet to see lays out what appears to be the Obama administration’s legal framework for justifying the targeting US citizens in lethal attacks abroad.
Until now, official US policy on drone strikes has remained somewhat elusive. Prior to the leak, public knowledge of these policies was composed of a patchwork of public statements by government officials from various branches of the federal government.
The white paper thus provides both cohesion and detail that were previously lacking, but provides little in the way of vital new information.
The white paper’s key takeaway – that “in defined circumstances, a targeted killing of a US citizen who has joined [al-Qaeda] or its associated forces would be lawful under [US] and international law” – had already been made clear in both the words and actions of the US government.
According to a complaint filed by the American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR) against various high-ranking US defense and intelligence officials, in a period spanning slightly more than two weeks in the fall of 2011, drone strikes killed US citizens Anwar al-Aulaqi and Samir Khan along with at least two other individuals in Yemen. Shortly thereafter, a nearby open-air restaurant was hit by another drone strike, killing several people including 16-year-old US citizen Abdulrahman al-Aulaqi, son of Anwar al-Aulaqi.
Amidst the fallout of these much-publicized strikes on US citizens abroad last March, US Attorney General Eric Holder laid out the legal framework for targeting US citizens abroad. Explaining that “[T]here are people currently plotting to murder Americans, who reside in distant countries as well as within our own borders,” Holder urged that the Obama administration’s top priority is to keep its people safe.
After exploring the international and domestic legal bases for drone strikes, Holder argued that the targeted killing of a US citizen abroad - one who happens to be a senior al-Qaeda of affiliate leader, and who is “actively engaged in planning to kill Americans” - is legally justifiable if: the US government has determined that the citizen poses an imminent threat of violence to the US; successful capture is unlikely; ant the operation is likely to be consistent with the law of war principles described above: Necessity, Distinction, Proportionality, and Humanity.
In this context, the contents of the white paper should come as no surprise.
The white paper does, however, lay out a set of concrete elements that must be met before the targeted killing of a US citizen abroad can be justified. If all of the following conditions are met, a lethal strike can be carried out against a US citizen in a foreign country who is a senior operation leader of al-Qaeda or an associated force:
1. “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;
2. capture is infeasible, and the United States continues to monitor whether capture becomes feasible; and
3. the operation would be conducted in a manner consistent with applicable law of war principles.”
With regard to the legality of drone strikes under US and international law, Central Intelligence Agency (CIA) General Counsel Stephen W. Preston described during a lecture at Harvard Law School last year a simple matrix that can be used to determine the legality of the use of force in a covert action.
The DOJ echoes this sentiment in providing domestic legal justification for drone strikes, not in terms of the matrix, but in terms of the sources of legal authority: congressional authorization, the president’s constitutional authority to protect the nation, and the inherent right to self-defense.
It then expands further into the implications of such strikes under domestic and international law.
While the US recognizes that the Constitutional protections of US citizens extend beyond America’s national borders, “[t]he US citizenship of a leader of al-Qaeda or its associated forces… does not give that person constitutional immunity from attack.”
The white paper further dismantles the following provision of the US Code in order to prove that targeted killings are not necessarily at odds with federal law: “person, being a national of the United States, kills or attempts to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country shall be punished…”
This decision is read as extending only to unlawful killings, as it references the federal murder and manslaughter statutes in discussing punishment options. The DOJ then advances the theory that the provision “is best construed to incorporate the ‘public authority’ justification, which renders lethal action carried out by a government official lawful in some circumstances.”
The white paper then establishes that under US case law, the public authority justification can extend to the killing of enemy combatants within the rules of war, and further that “[t]he fact that an operation may target a [US] citizen does not alter this conclusion.”
Thus the DOJ white paper expands on and streamlines the preexisting patchwork of US drone strike policy, but doesn’t appear to introduce any fundamental legal breakthroughs.
Still, critics of US drone policy are on high alert. Hina Shamsi, director of the ACLU’s National Security Project issued the following statement with regard to the white paper: “This is a profoundly disturbing document, and it’s hard to believe that it was produced in a democracy built on a system of checks and balances. It summarizes in cold legal terms a stunning overreach of executive authority – the claimed power to declare Americans a threat and kill them far from a recognized battlefield and without any judicial involvement before or after the fact.”