This week the Obama Administrations released a white paper from the Department of Justice outlining the legal justifications for killing a U.S. citizen suspected of being a terrorist. He also released more detailed classified document to the Senate Intelligence Committee, outlining the justification of the administration’s policy of targeting Americans overseas via drone attacks. CIA head nominee John O. Brennan is set to discuss this policy at his confirmation hearing.
In the document, a targeted killing is considered lawful when:
- An informed, high level official of the U.S. has determined that the targeted individual poses an imminent threat of violent attack against the United States,
- Capture is infeasible, and the United States continues to monitor whether capture becomes feasible; and
- The operation would be conducted in a manner consistent with applicable law of war principles.
The rules apply to U.S. citizens in a foreign country, outside the area of active hostilities. The document goes on to state, “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.”
The question is whether or not this policy is a violation of the 5th Amendment’s guarantee of due process. The Fifth Amendment states that “No person shall be… deprived of life, liberty, or property, without due process of law.”
Notably, it is unclear whether the Administration’s definition of “imminence” passes the standard required for defensive executive action as a matter of law, making the issue the province of the executive branch. This authority is derived from the President’s constitutional authority to defend the nation against imminent threats of attack. If this definition of imminence is not met, then the President would have to rely on the authority of the Authorization for Use of Military Force (2001), which limits authority to
Furthermore, the legal standards for designating a target for killing are not public. The standard may require proof “beyond a reasonable doubt” or a lesser standard, such as a “preponderance of evidence.” Simply stating that an informed, high level official of the U.S. believes the person to be a threat says nothing of what evidence was used to reach this conclusion. The answers to these questions make the difference between a person being a legitimate target of war, or a person that a government official has decided to kill.
Cornell University Law School, Fifth Amendment: http://www.law.cornell.edu/constitution/fifth_amendment
Department of Justice White Paper, 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: http://msnbcmedia.msn.com/i/msnbc/sections/news/020413_DOJ_White_Paper.pdf
The Washington Post, Justice Dept. Documents Justifies Killing Americans Overseas If They Pose ‘Imminent Threat’: http://www.washingtonpost.com/politics/justice-dept-memo-justifies-killing-americans-overseas-if-they-pose-imminent-threat/2013/02/05/44e90920-6f5a-11e2-8b8d-e0b59a1b8e2a_story.html
The Washington Post, Former FBI Official Questioned on Role in Abuse of Intelligence-Gathering Tools: http://www.washingtonpost.com/world/national-security/former-fbi-official-questioned-on-abuse-of-intelligence-gathering-tools/2013/02/04/b228c4dc-6eef-11e2-aa58-243de81040ba_story.html?wp_login_redirect=0
The Washington Post, Senators Demand Secret Memos on Targeted Killings: http://www.washingtonpost.com/world/national-security/senators-demand-secret-memos-on-targeted-killing/2013/02/04/be3d1652-6f16-11e2-8b8d-e0b59a1b8e2a_story.html
Govtrack, Authorization for Use of Military Force: http://www.govtrack.us/congress/bills/107/sjres23#overview
The Week, Your Government Can Kill You If…: http://theweek.com/article/index/239671/your-government-can-kill-you-if
CNN, Obama to Release Document on Targeted Killings to Congress: http://www.cnn.com/2013/02/07/us/drones-classified-document/index.html
Council on Foreign Relations, Targeted Killings: http://www.cfr.org/counterterrorism/targeted-killings/p9627
New America Foundation, The Year of the Drone: http://counterterrorism.newamerica.net/drones
The Atlantic, How Obama Decides Your Fate If He Thinks You’re a Terrorist: http://www.theatlantic.com/international/archive/2013/01/how-obama-decides-your-fate-if-he-thinks-youre-a-terrorist/266419/
Columbia Law School, The Civilian Impact of Drones: http://web.law.columbia.edu/sites/default/files/microsites/human-rights-institute/files/The%20Civilian%20Impact%20of%20Drones.pdf
The New York Times, Trial Judge to Appeals Court: http://www.nytimes.com/2012/07/17/opinion/trial-judge-to-appeals-court-review-me.html?_r=2&
The New York Times, The Right to Appeal is an Issue of Fairness: http://www.nytimes.com/roomfordebate/2012/08/19/do-prosecutors-have-too-much-power/having-the-right-to-appeal-is-an-issue-of-fairness
Vanderbilt, Due Process Rights and the Targeted Killing of Suspected Terrorists: http://www.vanderbilt.edu/jotl/manage/wp-content/uploads/mckelvey-pdf.pdf