(MintPress) – A confidential U.S. Department of Justice (DOJ) memo illustrates the government’s criteria for targeting American citizens in overseas drone strikes, arguing that U.S. citizens suspected of operating as terrorist organization leaders are exempt from Fourth Amendment protections and the Fifth Amendment’s Due Process Clause.
The paper, obtained and released by NBC News, show the framework put forth by the government to justify the killing of U.S. citizens, claiming lethal force can be used if it is alleged the target is a senior operational leader of al-Qaeda or an associated force.
The Justice Department argues in the paper that the president’s authority to respond to threats against the nation trumps any citizen’s constitutional rights, affording the president power to act on behalf of “national security.” This is further justified through the Justice Department’s argument that the U.S. is in an armed conflict with the enemy it targets.
“The United States is in an armed conflict with al-Qaida and its associated forces, and Congress has authorized the President to use all necessary and appropriate force against those entities,” the memo states.
The letter states the U.S. must act within international legal principles relating to sovereignty of a nation, claiming that consent of the nation in which the U.S. was acting in must be granted — unless it is determined that “the host nation is unable or unwilling to suppress the threat posed by the individual target.” This, essentially, means it can act around the rules of sovereignty.
However, a new report released by the Open Society Justice Initiative (OSJI) claims that might not be an issue, as more than 50 countries have cooperated with the CIA in its anti-terror programs throughout the world, which have included kidnap, detention and torture since 2011, according to the report.
The recently- released DOJ letter argues drone strikes against U.S. citizens suspected of terrorism are also lawful if the U.S. government exhausts or determines it to be inconvenient that capture of the target could occur.
So, how is it determined if the target has ties to al-Qaeda’s leadership? A high-ranking official of the U.S. government must conclude that the target poses a serious threat to America’s national security, according to the memo. The opinion of the court system on this argument is not considered prior to attacks.
This issue is not just a theoretical scenario, as three Americans have been killed by U.S. drone strikes overseas in the last few years.
In September 2011, a U.S. drone strikes in Yemen killed Anwar Al-Awlaki, who allegedly helped plan the underwear bomb plot intended to take down an airplane on Christmas Day, 2009. That same attack in Yemen killed Samir Khan, another American with suspected ties to the terrorist organization. In October 2011, Al-Awlaki’s 16-year-old son and Colorado native was killed in Yemen by a U.S. drone strike.
In July 2012, American relatives of the three targeted U.S. citizens filed a wrongful death lawsuit against the Central Intelligence Agency (CIA), claiming the strikes violated the individuals’ rights to not be deprived of life without due process, according to a PBS Frontline investigation.
This letter recently released essentially paints the picture of the Defense Department’s argument against such charges, although not directly.
A blog post written by Jameel Jaffer, deputy legal director with the American Civil Liberties Union (ACLU), differs with the argument put forth by the Justice Department.
“It takes as a given that the target of the strike will be a ‘senior operational leader of al-Qaeda or an associated force of al-Qaeda,’ and it reasons from the premise that judicial process is unnecessary.” Jaffer writes. “This is a little bit like assuming that the defendant is guilty and then asking whether it’s useful to have a trial.”
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