This week, the administration's legal justification for its policy of killing American citizens engaged in armed conflict with the U.S. surfaced in the form of a leaked 2011 Justice Department white paper. Writing for Foreign Policy, Rosa Brooks has a great breakdown of the core legal arguments, and the incredible discretion afforded to the administration in targeting and eliminating enemies.
The document is not a strategy paper; rather, it is a justification of the lawfulness of an array of actions the administration may take, or may have taken against U.S. citizens engaged in armed conflict against the U.S. It is a preemptive defense of a policy it knows will likely run into serious legal challenges somewhere down the line.
"The paper does not attempt to determine the minimum requirements necessary to render such an operation lawful; nor does it assess what might be required to render a lethal operation against a U.S. citizen lawful in other circumstances, including an operation against enemy forces on a traditional battlefield or an operation against a U.S. citizen who is not a senior operational leader of such forces. Here the Department of Justice concludes only that where the following three conditions are met, a U.S. operation using lethal force in a foreign country against a U.S. citizen who is a senior operational leader of al-Qu'ida or an associated force would be lawful..."It is notable for its seemingly innocuous yet vague language. The three conditions are as follows: "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; 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."
Words and phrases like "informed, high-level official," "imminent," and "applicable law of war principles" are what worry critics of the administration's justification. As Brooks points out, the document does a poor job of defining each term, thus leaving itself legal ground to which it can retroactively appeal in the face of some future legal challenge.
The administration said it will release additional classified memos expounding on the legal justification for targetting of U.S. citizens today. This comes on the heels of intense pressure from Congress and the day Senate confirmation hearings are set to begin for John Brennan's appointment to head the CIA.
