NBC news has acquired a 16-page “white paper” that outlines why the targeted killing of a U.S. citizen is legal. It is called “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen who is a Senior Operational Leader of Al Qa’ida or An Associated Force”.
The Department of Justice memo is not legally binding, and is not the same as a similar classified document that the DOJ is withholding from public disclosure. But its deadly bureaucratic logics and rationales are of paramount importance. There are few surprises here of course: targeted killings are NOT the same as assassinations; an “immanent” threat is as immanent as the administration desires; a “feasible” capture is as feasible as the administration desires; and strikes can be directed against al-Qaeda or “associated forces” (read: anyone).
The memo was mobilized after Anwar al-Awlaki, a U.S. citizen and al-Qaeda operative, was killed in a drone strike in Yemen, September 2012.
The white paper, is, in many ways, a “blank check”, since it fails to reference legal or constitutional precedents. The document is incredibly circular – targeted killings are legal because we (the administration) say they are – and is unlikely to convince the sceptic.
Here are some examples of that deadly circular logic in action:
“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 and interests will take place in the immediate future”. Instead an “informed, high-level” official of the U.S. government may determine whether the targeted American has been “recently” involved in “activities” posing a threat of a violent attack. The memo does not define “recently” or “activities”.
The confidential memo lays out a three-part test that would make targeted killings of American lawful: In addition to the suspect being an imminent threat, capture of the target must be “infeasible, and the strike must be conducted according to “law of war principles.” But the memo elaborates on some of these factors in ways that go beyond what the attorney general said publicly. For example, it states that U.S. officials may consider whether an attempted capture of a suspect would pose an “undue risk” to U.S. personnel involved in such an operation. If so, U.S. officials could determine that the capture operation of the targeted American would not be feasible, making it lawful for the U.S. government to order a killing instead, the memo concludes.
“A lawful killing in self-defense is not an assassination,” the white paper reads. “In the Department’s view, a lethal operation conducted against a U.S. citizen whose conduct poses an imminent threat of violent attack against the United States would be a legitimate act of national self-defense that would not violate the assassination ban. Similarly, the use of lethal force, consistent with the laws of war, against an individual who is a legitimate military target would be lawful and would not violate the assassination ban.”
In short, the executive branch of the U.S. government has insulated itself in a set of legal guidelines it has written. The very notion of abiding to an external set of criteria is anathema to an Orwellian program of targeted killings fought in the shadows of law and war.