As the number of U.S. drone attacks has climbed since President Obama took office, lawmakers and human-rights groups have demanded legal justification for a program that sometimes kills suspected al-Qaida leaders with American citizenship. This week, the Obama administration is offering a glimpse into the legal rationale for the strikes.
On Tuesday, NBC News published a leaked 16-page white paper from the Justice Department that outlines how the U.S. determines when to kill one of its own citizens. The department argues that the president has the constitutional authority to order the attacks and that the rights and privileges of an American citizen are forfeited when they become an al-Qaida militant targeting Americans. On Tuesday, the American Civil Liberties Union condemned the paper, calling it "profoundly disturbing."
It's likely to form a major part of Thursday's confirmation hearing for John Brennan, Obama's counterterrorism director, who has been nominated to serve as head of the Central Intelligence Agency. Brennan has been instrumental in formulating the administration's drone policy and is almost certain to face questions on it when he appears before the Senate Intelligence Committee this week. Committee chairwoman Dianne Feinstein, D-Calif., said in a Wednesday statement that her committee and the Senate Judiciary Committee received this legal brief last June and would continue to ask for further legal analysis for the attacks.
In the white paper, the Justice Department tries to answer several key questions concerning attacks on American citizens abroad:
Who are these targeted Americans? The U.S. cannot kill just any one of its citizens. The targeted American has to be a senior-level leader in al-Qaida or an affiliated militant group, who is "actively engaged in planning operations to kill Americans." From the start of the memo, however, it says the militant does not necessarily have to be directly attacking U.S. soldiers at the time they are killed.
How does the U.S. decide to kill the al-Qaida militant? The Justice Department outlines three different factors that play into the final decision to kill the militant:
- "An informed, high-level official in the U.S. government" has to determine if the militant leader poses "an imminent threat" of violence against the United States. The Justice Department clarifies that they are not required to have clear evidence that a specific attack will happen in the immediate future, since planning is continuous and the U.S. often has small windows of opportunities to strike. Nor does it clearly distinguish what makes an "informed, high-level" official. Is it the CIA director? The president? A senior staffer?
- All other efforts to capture the militant must be "infeasible." The government also weighs the possible risk to U.S. personnel in an operation to capture or kill the militant.
- Any operation the U.S. would conduct must fall in line with the four "law-of-war" principles: necessity, distinction, proportionality, and humanity. These principles are used to avoid excessive civilian casualties, but do not prevent the use of surprise or stealth attacks.
What about their Fourth and Fifth Amendment Rights? Since the U.S. citizen in question is considered to have joined a force that is actively seeking to kill Americans, the Justice Department argues that it can kill that person and forgo his or her constitutional rights. Even though the government weighs the individual's rights against the broader rights of a government to protect its citizens from attack, the paper concludes that "the realities of war" allows the government to use "necessary and appropriate" force to protect its citizens — even from one of their own.
Why can Obama order these attacks? As the commander in chief, U.S. officials argue that the president has the constitutional right to protect the country against an "imminent threat" from militant groups. Additionally, Congress passed the Authorization for Use of Military Force bill after the 9/11 attacks, and gave the president authority to use force against al-Qaida and other militant groups that target Americans. The white paper does not define "imminent," however.
Where can the U.S. launch drone attacks? One of the examples the white paper offers for using force in another country outside of a "hot" battlefield — in this case Afghanistan — is the U.S. engagement in Cambodia during the Vietnam War. In order to stop the planning and execution of military activities against Americans, the U.S. was briefly involved in a different country. The paper argues that as long as the conflict in the new nation does not become larger, U.S. engagement is justified. This is particularly relevant, the paper argues, because al-Qaida and other militant groups do not have one singular base. The paper also says the U.S. doesn't necessarily need permission from another country to conduct such an operation.
Is there room for judicial review of these attacks? Not really. The Justice Department says "there exists no appropriate judicial forum to evaluate these constitutional considerations" with regard to intimate foreign policy matters. If the courts were to get involved with these matters, it could hinder the president's ability to carry out military operations, the paper argues.
The white paper also cited three key cases. Here's why their findings matter:
- Hamdi v. Rumsfeld: The U.S. cannot permanently detain one of its own citizens. The Supreme Court, however, said that militants do not need to receive due process immediately following their detainment, but only when the U.S. has decided to continue detaining them.
- Hamdan v. Rumsfeld: The U.S. is not fighting a traditional war on a battlefield or against a defined enemy, but is fighting al-Qaida and other militant groups globally. This allows the U.S. to pursue suspected militants outside of "hot" war zones, such as Afghanistan.
- Bensayah v. Obama: A militant could be detained by the U.S. in a foreign country if the federal government demonstrated that he or she was associated with al-Qaida.
This article is from the archive of our partner National Journal.