U.S. Department of Justice 'White Paper' addresses legal basis for use of lethal force against U.S. citizens.

• Author: Crook, John R.

The reported killing of U.S. citizen and reputed Al Qaeda leader Anwar al-Awlaki by a missile fired from a U.S. drone in Yemen in September 2011 has occasioned controversy and debate.

In early February 2013, NBC News obtained a copy of an unsigned fourteen-page U.S. Department of justice "White Paper," captioned "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." (1) The Department of justice soon after publicly released a document that appears to be identical except that it is captioned "Draft November 8, 2011" and lacks the NBC News markings. (2)

Issues related to drone strikes against suspected terrorists, including U.S. citizens, figured prominently in February 2013 Senate hearings on the nomination of John O. Brennan, the assistant to the president for homeland security and counterterrorism, to be director of the Central Intelligence Agency. (3) In April 2012, Brennan gave a widely noted speech, for the first time confirming U.S. use of drones against suspected terrorists and describing U.S. targeting principles and practices. (4) Action on Brennan's confirmation was slowed while senators from both parties sought fuller access to classified legal memoranda setting out the administration's legal bases for its policies, (5) but he was confirmed by a vote of sixty-three to thirty-four in early March 2013. Brennan's confirmation followed a filibuster by Senator Rand Paul questioning the administration's use of drone strikes and speculating about possible strikes against U.S. citizens on U.S. soil. (6)

The white paper addresses numerous issues under both international and domestic law. The domestic law issues, which generally lie outside the scope of this section, include substantial discussions of topics under the Fourth and Fifth Amendments of the U.S. Constitution, federal laws barring unlawful killings in Title 18 of the U.S. Code, and the assassination ban in Executive Order No. 12333.

Excerpts from the white paper containing the paper's conclusions and some of its analysis of international legal issues follow:

This white paper sets forth a legal framework for considering the circumstances in which the U.S. government could use lethal force in a foreign country outside the area of active hostilities against a U.S. citizen who is a senior operational leader of al-Qa'ida or an associated force of al-Qa'ida--that is, an al-Qa'ida leader actively engaged in planning operations to kill Americans.... 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-Qa'ida or an associated force would be lawful: (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; and (3) the operation would be conducted in a manner consistent with applicable law of war principles. This conclusion is reached with recognition of the extraordinary seriousness of a lethal operation by the United...