Tagged: drones

Second Circuit Targets “DOJ White Paper” in Sanctioned-Killings

A three-judge panel for Second Circuit Court of Appeals has recently ordered the United States Government to release portions of a Justice Department memorandum (“DOJ White Paper”) that purportedly contains classified information regarding the targeted killing of Anwar al-Awlaki. In 2011, Anwar al-Awlaki, a United States citizen alleged to have joined Al Qaeda forces, was killed during a targeted drone strike in Yemen. His killing, along with some other alleged terror suspects, were sanctioned by the United States targeted-killing program in the “War on Terror.”

In New York Times Co. v. Dep’t of Justice, the Court ruled that partial disclosure of the “DOJ White Paper,” sections setting forth the government’s reasoning as to lawfulness of its targeted killings of United States citizens carried out by drone aircraft, was justified given the government’s public statements discussing Awlaki’s death. The court observed that senior Government officials had undertaken

an extensive public relations campaign to convince the public that [the Administration’s] conclusions [about the lawfulness of the killing of al-Awlaki] are correct.

The court further concluded that such limited disclosure would not impinge upon any attorney-client privilege matters between the government and the DOJ’s Office of Legal Counsel, nor would disclosure risk “any aspect of military plans, intelligence activities, sources and methods or foreign relations.”

In a prior editorial, the New York Times noted that the “DOJ White Paper” was of monumental importance to help settle the significant legal debate that has transpired since the targeted-killing program was made public. Many legal scholars have long awaited the release of the “legal reasoning” that has been drummed up by government officials to justify the targeted-killing program. Many scholars have remained skeptical of the government’s analysis, and have wondered whether it is ever lawful for the government to conduct targeted killings of American citizens, observing that the targeted-killing of any United States citizen may inherently contravene

executive orders banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war.

Last year, U.S. District Court Judge Colleen McMahon denied the request of the New York Times and the American Civil Liberties Union to obtain an unredacted version of the Justice Department’s memorandum pursuant to the Freedom of Information Act. In response to the District Court’s ruling, the ACLU expressed that

[t]his ruling denies the public access to crucial information about the government’s extrajudicial killing of U.S. citizens and also effectively green-lights its practice of making selective and self-serving disclosures.

At the time, ACLU deputy legal director Jameel Jaffer also suggested that the “targeted killing program raises profound questions about the appropriate limits on government power in our constitutional democracy.” Jaffer advocated that the memorandum should be unsealed, because “[t]he public has a right to know more about the circumstances in which the government believes it can lawfully kill people, including U.S. citizens, who are far from any battlefield and have never been charged with a crime.”

Related Readings

Professor Tom McDonnell on the US Justice Dept. Drone Memo

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.

Click here to read the full comment by Prof. McDonnell.