Department of Justice White Paper
By Mary Grinman – Edited by Laura Fishwick
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 (hosted by NBCNews)
On Monday, February 4, NBC made public an unsigned and undated Department of Justice (“DOJ”) White Paper, which concludes that the United States can lawfully use lethal force in a foreign country against a senior operational leader of al-Qa’ida or an associated force who is a U.S. citizen if the following three conditions are met: First, the individual must “pose an imminent threat of violent attack against the United States.” Second, capture must not be possible. Third, any U.S. action must be consistent with the law of war. 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 [hereinafter “White Paper”], at 1. While the White Paper presents legal analysis separated from any factual scenario, it resembles the legal justification advanced for the 2011 drone strike against Anwar al-Awlaki and could be the basis for future drone attacks.
The New York Times summarizes the DOJ’s argument and describes its current political environment. Wired criticizes the legal rationales behind the document’s conclusions. Lawfare comes down against the media hype generated by the document, and suggests that it is only a more fleshed out version of Attorney General Eric Holder’s speech at Northwestern University last March.The paper begins by discussing three general sources of authority for the use of lethal force against al-Qa’ida and associated forces: (1) the Authorization for Use of Military Force (“AUMF”), which states “that the President is authorized to use all necessary and appropriate force against those . . . he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons,” (2) the President’s constitutional responsibility to protect the United States, and (3) the right to national self-defense, which the DOJ asserts is recognized in international law. White Paper at 2.
Addressing whether such force can be used “outside the area of active hostilities,” the DOJ looked to analogous contexts because neither the AUMF nor any judicial precedent sets express boundaries for the conflict with al-Qa’ida. Id. at 3–4. The DOJ found that extending the original armed conflict to an operation to engage the enemy in a new nation where it plans and executes operations was historically permitted. Id. at 4–5.
Having established the general authority for using lethal force, the DOJ then addresses the relevant constitutional issues, emphasizing that though Fifth and the Forth Amendments continue to protect U.S. citizens when they are abroad, U.S. citizenship is not a constitutional grant of immunity. The DOJ cites Hamdi v. Rumsfeld, 542 U.S. 507 (2004), in which the plurality of the Supreme Court invoked the Mathews v. Eldridge, 424 U.S. 319 (1976), balancing test for evaluating Fifth Amendment Due Process claims between private interest and government interest. In the case of lethal force against senior operational leaders of al-Qa’ida, the paper concludes that the government’s interest in protecting its citizens from imminent attacks will outweigh the target’s interest in avoiding “erroneous deprivation of [his] life.” White Paper at 6.
Relevant factors that play a role in the Due Process balancing test include the imminence of the threat, the feasibility of capture, and the application of law-of-war principles.
The DOJ argues that imminence in this situation “does not require . . . clear evidence [of] a specific attack . . . in the immediate future.” Id. at 7. Instead, evidence that al-Qa’ida is “continually plotting attacks” coupled with the fact that “the U.S. government may not be aware of all al-Qa’ida plots as they are developing” leads the DOJ to conclude that an operational leader of al-Qa’ida who is “personally and continually involved in planning terrorist attacks” poses an imminent threat. Id. at 8. The DOJ suggests that feasibility of capture will require a very fact-specific analysis, and will include evaluating the risk that a capture operation poses to U.S. personnel. Finally, they state that any lethal operation will have to observe the four law-of-war principles for using force: (1) necessity, (2) distinction, (3) proportionality and (4) humanity. Id. at 8.
Like the Fifth Amendment, Fourth Amendment protection against unreasonable seizures is also subject to a balancing test. Tennessee v. Garner, 471 U.S. 1 (1985). The DOJ argues that the government’s interest in protecting American lives will outweigh the target’s Fourth Amendment interests. White Paper at 9.
Additionally, the White Paper also emphasizes that “there exists no appropriate judicial forum to evaluate these constitutional consideration” because national security matters are more appropriately dealt with by the legislative and executive branches. Id. at 10.
Finally, the DOJ argues that using lethal force against U.S. citizens abroad who are operational leaders of al-Qa’ida or associated forces would not violate 18 U.S.C. § 1119(b), 18 U.S.C. § 956(a)(1), or Executive Order No. 123333 § 2.11. In each of these statutes, the paper states, the relevant prohibition applied only to unlawful killings. The DOJ suggests that the term “unlawful” incorporates common law justifications and excuses, including the “public authority justification” that permits otherwise criminal conduct if it is done by authorized public officers. White Paper at 10–15. Use of lethal force also does not violate 18 U.S.C. § 2441 (2006) (The War Crimes Act), which prohibits killing someone who is “taking no active part in the hostilities” since the DOJ considers operational leaders “active” in the hostilities. White Paper at 15–16.
As the New York Times notes, the White Paper hews closely to the legal rationale reported to have been the basis for the drone strike against Anwar al-Awlaki. Although the White Paper itself is technology neutral, drone strikes appear to be the most likely mechanism by which the United States would attack a U.S. citizen allied with al-Qa’ida, and the release of this White Paper has already prompted further discussion about the uses of this controversial military technology.
Mary Grinman is a 1L at Harvard Law School.