Department of Justice White Paper on Targeted Killings of Americans

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American citizen Anwar al-Awlaki was targeted and killed by the U.S. government. Image by Greg A L

American citizen Anwar al-Awlaki was targeted and killed by the U.S. government. Image by Greg A L

Can the President legally order targeted killings of American citizens overseas – or even here in the U.S.?

On February 4, 2013, NBC released a Department of Justice White Paper that was given to them by a source. Entitled “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 document sets out the conditions under which a citizen of the United States can be targeted for assassination without due process.

Targeted Killing: The Origins of the White Paper

The White Paper is not an official document prepared by the Justice Department’s Office of Legal Counsel (OLC) that provides legal advice to the administration and various departments. It is believed, however, that the White Paper is a summary of classified opinions prepared by the OLC. The Obama administration has refused to release these classified memos to Congress or make them public, and has denied some of them even exist.

This White Paper, however, was given to the Senate Intelligence and Judicial committees in June 2012. Senators on those committees were given the memos on condition they keep the information confidential and not discuss them publicly.

According to NBC, the White Paper is not classified and was provided to the network from a source.

The White Paper is undated but it is believed to have been prepared prior to the death of Anwar al-Awlaki. Al-Awlaki and Samir Khan were killed in a targeted drone strike in Yemen on September 30, 2011. Both men were American citizens and neither of them had been indicted nor charged with a crime by the United States.

Assassination of Americans by the United States Government: Criteria For Drone Attack

An important part of the White Paper sets out when the government considers it appropriate to target and kill U.S. citizens who are believed to be involved in terrorist activity abroad. Three conditions must be satisfied in order, in the opinion of the author or authors, to make the intentional killing of an American citizen lawful.

  • First, the targeted American must be a member of Al Qaeda or an associate group. A group will be considered associated with Al Qaeda if Al Qaeda and the other organization would be considered co-belligerents under the recognized laws of war.
  • Secondly, an informed high-level government official must have determined the American in question poses an imminent threat of a violent attack upon the U.S. The memo makes it clear to qualify as an imminent threat, it is not necessary to make the determination that a specific operation against the U.S. has been planned and is in the process of being carried out. Officials must have determined that capturing the individual is not feasible. It would not be feasible if the attempted capture is likely to result in the significant loss of either American lives or the lives of innocent civilians.  The targeted subject must be monitored as to the feasibility of capturing the American alive.
  • The third requirement for the lawful killing of an American citizen without trial is that operations conducted against a U.S. citizen must be considered appropriate under the applicable laws of war.

A significant acknowledgement made in the White Paper is that the document does not attempt to provide minimum standards that would make the intentional killing of an American citizen lawful. Much of the criticism levelled at the White Paper is for the failure to define the exact terms that purport to give the administration the legal right to intentionally kill a citizen of the United States.

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