Photo: MSGT SCOTT REED
A 16-page document recently leaked to NBC details the ‘legality’ of drone strikes on American citizens.Investigative journalist Michael Isikoff obtained the ground-breaking document through an anonymous source who had access. The administration supplied the memo to members of the Senate Intelligence and Judiciary Committees on the condition that it would be kept confidential.
From Isikoff’s piece:
The confidential memo lays out a three-part test that would make targeted killings of American lawful: In addition to the suspect being an imminent threat, capture of the target must be “infeasible, and the strike must be conducted according to ‘law of war principles.'” But the memo elaborates on some of these factors in ways that go beyond what the attorney general said publicly. For example, it states that U.S. officials may consider whether an attempted capture of a suspect would pose an “undue risk” to U.S. personnel involved in such an operation. If so, U.S. officials could determine that the capture operation of the targeted American would not be feasible, making it lawful for the U.S. government to order a killing instead, the memo concludes.The memo does not define “recently” or “activities.”
Though Isikoff notes that the memo is not meant to be a binding legal document, rather a “legal framework,” nonetheless there’s a glaring lack of legal definition for key words that act as steps in determining a citizen’s guilt and subsequent death penalty.
For clarification, Isikoff talked to Jameel Jaffer, a lawyer from the American Civil Liberties Union who recently had a drone-strike suit against the U.S. Government dropped in a somewhat perplexing context.
The judge on the case, Judge Colleen McMahon, determined that she was in a “Catch 22,” and dismissed the suit on the grounds that she could not force the government to reveal information key to the National Security of the U.S., though revealing that information would normally be tantamount to a death penalty.
From her ruling:
I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret.
Upon looking at the leaked white paper, Jaffer told NBC that he thought it was “chilling.”
“Basically, it argues that the government has the right to carry out the extrajudicial killing of an American citizen,” he told NBC. “It recognises some limits on the authority it sets out, but the limits are elastic and vaguely defined, and it’s easy to see how they could be manipulated.”
Perhaps the most chilling line — “An individual’s interest in avoiding erroneous deprivation of his life is ‘uniquely compelling'” — was paired with — “These same realities must also be considered in assessing ‘the burdens the Government would face in providing greater process’ to a member of enemy forces.”
The document also states multiple times that “citizenship” does not “immunize” and individual against “lethal” attack.
We will continue to update this report as we study the white paper.
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