Justice Department Memo Outlines when It’s Legal to Kill Americans Abroad

16-Page Document Gives Legal Precedent for Killing U.S. Citizens

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The U.S. Department of Justice released a memo that outlines when the military can use lethal force to kill American citizens operating within al-Qaida. The 16-page document, released Monday night by NBC News, outlines three criteria to determine what targets can be killed. The white paper has drawn criticism from human rights groups such as the American Civil Liberties Union (ACLU).

What are the three criteria?

The memo states orders to kill an American citizen operating within al-Qaida "or an associated force" must come when a "high-level official... has determined that the targeted individual poses an imminent threat of violent attack against the United States."

Further, capturing the suspect must be infeasible. Third, the operation to kill the citizen needs to be within the parameters of "applicable law of war principles." The citizen who is attacked must be a "senior operational leader" in the terror network as opposed to just a regular fighter.

Who has the final authority to authorize strikes against U.S. citizens?

The memo outlines both the president of the United States and Congress have duties to defend the country. Such a defense includes killing citizens who take up arms against the American forces. The document claims killing U.S. citizens abroad is not against international law.

What is the legal precedent for the memo?

The undated white paper uses America's war on terror as the authority to kill U.S. citizens abroad. Additionally, two Supreme Court cases are cited. One of those cases is a 2006 decision in Hamdan v. Rumsfeld, a case which defined the war on terror as a "non-international armed conflict." That means the United States isn't at war with one particular country, but instead an organization across many international borders.

Who are examples of American citizens killed using this memo?

The Associated Press cites the deaths of Anwar al-Awlaki and Samir Khan in Yemen in September 2011 as examples of the memo's legal authority. A drone strike killed both men in the small Middle Eastern country.

What did the ACLU say?

A piece by Jameel Jaffer , deputy legal director of the ACLU, decries the U.S. government's "irresponsible extravagance" of the use of "extrajudicial killing of American terrorism suspects anywhere in the world."

The rights organization also believes a lack of judicial process denies the citizen a right to a trial and automatically assumes the combatant is guilty. The ACLU states the paper sets a precedent for future presidents, not just the Obama administration.

What does the U.S. Constitution say about taking up arms against the United States?

Article 3, Section 3, of the Constitution of the United States pertains to judicial matters of treason, the gravest capital crime punishable by death. Part of the clause states, "No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. The Congress shall have power to declare the punishment of treason... except during the life of the person attainted."

William Browning is a research librarian specializing in U.S. politics.

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