Pace Law Professor Thomas McDonnell comments on the recently released U.S. Justice Department legal memorandum authorizing drones strikes in the International Law Professors’ Blog:
Professor McDonnell writes that
[t]he Justice Department’s legal memorandum authorizing drone strikes to kill American citizens in foreign countries establishes vague and overbroad standards and creates a dangerous precedent for unchecked executive power. The memo impliedly approves hit lists, including targeting American citizens, whom “an informed, high level official of the U.S. government” concludes to be “a senior operational leader of al-Qa’ida or an associated force.” “An informed, high level official” presumably may include a senior official in the Central Intelligence Agency—which has carried out over 300 drone attacks in the Pakistan tribal areas since 2004, not to mention attacks in Yemen and Somalia.
Written by the Justice Department’s Office of Legal Counsel, the memo implicitly adopts the questionable global-war-on-terrorism theory, contending that the exceptional law of war regime applies outside of armed conflict to any foreign state on the planet if that state is unable or unwilling to “suppress” (arrest, capture or kill) individuals whom the executive believes to be terrorists. The exceptional law of war regime permits deliberately killing (1) combatants, (2) civilians who directly participate in hostilities, and (3) non-combatants—civilians who fall into the expansive category of collateral damage—as long as the requirements of military necessity are met.