Michael Isikoff, a National Investigate Correspondent with NBC News, has leaked a confidential Justice Department "white paper" providing harrowing insight into the Obama administration's controversial aerial drone policy.
The 16-page memo, available here [.pdf], lays out the conditions by which "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." It's tempting to want to emphasize certain terms here ("in a foreign country," "against a U.S. citizen," "associated force," "lawful") to call attention to how distressing the report is. But really the whole thing could be double-bolded, italicized, all CAPS'd and underlined.
The report comes in the wake of drone strikes abroad, like the Predator drone attack in Yemen on September 30, 2011 that killed Anwar al-Aulaqi, an American citizen alleged to be a senior recruit and agitator for Al Qaeda. The constitutionality of such strikes - especially against American citizens - has become an increasingly hot-button issue as their frequency has increased in recent years. The memo makes clear that "[w]ere the target of a lethal operation a U.S. citizen who may have rights under the Due Process Clause and the Fourth Amendment, that individual's citizenship would not immunize him from a lethal operation."
The memo states that an American aerial strike against one of its own citizens is "lawful under U.S. and international law" provided that:
(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; (3) the operation would be conducted in a manner consistent with applicable law of war principles.
A niggling issue here is the broad, vaguely demarcated definition of imminence. The memo states that "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." [emphasis added] So the imminence of the threat doesn't have to qualify as immediate, even though a common synonym for "immediate" is "imminent."
Basically, because of the "realities" of the "War on Terrorism," the U.S. government has deemed itself free to act against Al Qaeda operatives (or suspected Al Qaeda operatives or such an "associated force") even without specific details or where or when an alleged attack may take place. That a high-level U.S. official deem that a target is "involve[d] in al-Qa'ida's continuing terrorist campaign against the United States" would be enough justification for
assassination "legitimate act of national self-defense" - even if the target were an American citizen.
Again, you can read the report in its entirety here, and Isikoff's more involved analysis, which contextualizes the white paper in light of previous comments made by top-U.S. government brass like White House counterterrorism adviser John Brennan and Attorney General Eric Holder, right here. Scary stuff.