Leaked Drone Memo Creates More Questions Than Answers

BY P.J. Tobia  February 5, 2013 at 2:00 PM EST

Yemeni Attack AftermathTribesmen stand on the rubble of a building destroyed by a U.S. drone air strike, that targeted suspected al-Qaida militants in southeastern Yemen. Abdulrahman al-Awlaki, the son of slain U.S.-born cleric Anwar al-Awlaki, and six al Qaeda militants, were killed in a strike on this building on Oct. 14, 2011, tribal elders said. Photo by Khaled Abdullah/Reuters

The drone is a radical departure from traditional warfare.

It allows the United States, using either its civilian spy agency or military, to reach out and kill someone who may be standing in a country that the U.S. isn’t even at war with.
That includes American citizens.

In the fall of 2011, Anwar al-Awlaki, an American citizen who was an operational planner and key propagandist for al-Qaida in the Arabian Peninsula, was killed by a drone-launched Hellfire missile in Yemen. Samir Khan, another American citizen and al-Qaida affiliate, was with al-Awlaki and died alongside him. A month later, al-Awlaki’s Colorado-born, 16-year-old son, was also killed in Yemen by a drone-fired missile.

Until now, it was not known what legal or procedural framework the U.S. government operated under when ordering the killing of its citizens. The al-Awlakis and Khan were never indicted or formally charged with crimes by a judge or grand jury. Meanwhile the ACLU, U.S. Congress and others have been demanding the release of documents surrounding the administration’s legal analysis on the use of lethal force against U.S. citizens and others for years.

President Obama has admitted that such a framework is still a work in progress. His administration has resisted the demand for explanations.

Last month, a federal judge in New York rejected a suit brought by The New York Times that sought the administration’s legal justifications for killing U.S. citizens on foreign soil.

But last night, NBC News published a secret but unclassified Justice Department memo that outlines the administration’s legal case for some of these killings.



Photo by Wikimedia Commons.

The memo does not actually lay out the minimum requirements necessary to make such a killing lawful. It merely states three conditions that, when 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-Qaida or an associated force would be lawful.”

Here are the three conditions that must be met for a lawful killing:

  • 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 captures becomes feasible

  • the operation would be conducted in a manner consistent with applicable law of war principles.

The memo says 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 …”

Statements like this one, which seems to expand the meaning of the word “imminent,” mean that this memo creates more questions than answers.

Many of those questions will likely be asked of John Brennan, who helped design and implement the Obama administration’s targeted killing policy. On Thursday, he’ll go before Congress to begin his confirmation hearings as CIA director.

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