A 'profoundly disturbing' memo? DOJ white paper outlines legal basis for targeted killings
Overseas targeted killings of top al-Qaida leaders who are U.S. citizens don’t need to be approved by U.S. courts, according to a U.S. Justice Department white paper. Nor do courts have the authority to block the actions, the document asserts.
NBC News obtained a copy of the 16-page memo (PDF), which states that “an informed, high-level official of government” may order the killings when senior operational leaders of al-Qaida pose “an imminent threat of violent attack against the United States.” The document appears to be a briefing paper prepared for some U.S. lawmakers, the New York Times reports.
Read all the articles in the Patriot Debate series:
WAR POWERS
- • Constitutional Dilemma: The Power to Declare War Is Deeply Rooted in American History by Richard Brust
- • War Powers Belong to the President by John Yoo
- • Only Congress Can Declare War by Louis Fisher
TARGETED KILLINGS
- • Uneasy Targets: How Justifying the Killing of Terrorists Has Become a Major Policy Debate by Richard Brust
- • Targeted Killing Is Lawful If Conducted in Accordance with the Rule of Law by Amos N. Guiora and Monica Hakimi
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- • What Is the Role of Lawyers in Cyberwarfare? by Stewart A. Baker and Charles J. Dunlap Jr.
COERCED INTERROGATIONS
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- • Should We Create Exceptions to Rules Regarding Coerced Interrogation of Terrorism Suspects? by Norman Abrams and Christopher Slobogin
DOMESTIC TERRORISM
- • Insider Threats: Experts Try to Balance the Constitution with Law Enforcement to Find Terrorists by Richard Brust
- • The Threat from Within: What Is the Scope of Homegrown Terrorism? by Gordon Lederman and Kate Martin
THIRD-PARTY DOCTRINE
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- • The Data Question: Should the Third-Party Records Doctrine Be Revisited? by Orin Kerr and Greg Nojeim
NATIONAL SECURITY LETTERS
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DETENTION POLICY
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The DOJ adopts an elastic meaning of “imminent threat,” the Times says. As long as the al-Qaida figure is generally involved in planning terrorist activities against the United States, there is no need for “clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”
Besides the need for an imminent threat, the white paper requires that the capture of the al-Qaida leader be “infeasible” and that the strike be carried out in accord with the laws of war.
The white paper states that there is no appropriate judicial forum to evaluate constitutional issues of due process and seizure. “Were a court to intervene here,” the white paper says, “it might be required inappropriately to issue an ex ante command to the president and officials responsible for operations with respect to their specific tactical judgment to mount a potential lethal operation against a senior operational leader of al-Qaida or its associated forces. And judicial enforcement of such orders would require the court to supervise inherently predictive judgments by the president and his national security advisors as to when and how to use force against a member of an enemy force against which Congress has authorized the use of force.”
Hina Shamsi, director of the American Civil Liberties Union’s National Security Project, called the white paper “a profoundly disturbing document” in an interview with the Times. “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,” she said.
Related coverage:
ABAJournal.com: “White House agrees to provide classified drone-strike memo to some lawmakers”
ABA Journal: “Insider Threats: Experts Try to Balance the Constitution with Law Enforcement to Find Terrorists”
Patriots Debate articles on national security topics are available here.
Updated at 9:25 a.m. to correct gender reference. Updated at 11:20 a.m. to add additional information about the type of official who can order the killings.
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