NBC News [corporate website] on Monday released [NBC report] a Department of Justice (DOJ) [official website] confidential "white paper" [text, PDF] that reveals details of the legal justifications for the Obama administration's unprecedented use of lethal drone strikes [JURIST news archive] against al Qaeda suspects who are US citizens abroad. The 16-page memo explores the legal questions surrounding the use of lethal force against a US citizen who is a "senior operational leader of [al Qaeda] or an associated force" outside an area of active hostilities, concluding that the president has the authority to employ lethal measures in response to the imminent threat to the US posed by the operations planning of such an individual. The memo sets forth a three-prong test under which the DOJ would conclude that such force could be legally authorized:
[W]here the following three conditions are met, a U.S. operation using lethal force in a foreign country against a U.S. citizen who is a senior operational leader of al-Qa'ida or an associated force would be lawful: (1) an informed, high-level official of the U.S. 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.The memo goes on to determine that such a lethal operation would be consistent with Fifth Amendment Due Process [Cornell LII backgrounder] principles, satisfied by the "imminence" and "feasibility" concepts under "applicable law of war principles" as set out in the three-prong test. The memo also specifies that the Fourth Amendment's unreasonable seizure [Cornell LII backgrounder] prohibition is not offended, as are neither certain statutory provisions prohibiting the killing of US nationals abroad, nor the longstanding prohibition against assassinations under Executive Order 12333.
The use of drone strikes by the US has come under scrutiny in recent months. Last month UN Special Rapporteur on human rights and counterterrorism Ben Emmerson announced that he will begin investigating the legality [JURIST report] of the use of drone strikes. Emmerson said that after asking the US to allow an independent investigation [JURIST report] of its use of targeted killings last year, there is still no consensus among the international community as to the legality of the conduct. Also last month Pakistan's Foreign Affairs Minister Hina Rabbani Khar condemned US drone attacks [JURIST report] as a violation of Pakistan's sovereignty and international law. Last month the DOJ filed a motion to dismiss [JURIST report] a lawsuit challenging the US government's targeted killing of three US citizens in drone strikes. In July Pakistan's Ambassador to the US called upon the US to end the practice [JURIST report] of using drone strikes in targeted killings. That same month US lawmakers expressed concern [JURIST report] over the use of drone strikes. Samar Warsi [corporate profile] of the Muslim Civil Liberties Union recently argued that Obama administration's drone policy sets a dangerous precedent [JURIST comment] and undermines national security.