By: Deborah Goldman

Uncle Sam’s got a long arm, and he’s willing to extend it halfway around the world in the war on terror.

On February 4, NBC released a leaked Department of Justice (DoJ) white paper discussing the legality of targeted killings of American citizens who are “senior operational leaders” of al-Qaeda. Naturally, this has fueled the already highly-controversial discussion over the United States’ drone program.

The most important thing to note in considering this memo is its scope. While the public has been calling for more details on the government’s drone program generally, this paper is limited only to the government’s authority to target its own citizens who have been classified as senior leaders of al-Qaeda. Most famously, this was the case in the September 2011 killing of Anwar al-Awlaki, an American born Muslim cleric who became a leading member of Al Qaeda’s Yemeni affiliate. However, this program raises two major issues: the source of the government’s authority to act at all, and perhaps most importantly, considerations of the citizen’s rights under the Fourth Amendment and the Fifth Amendment’s Due Process Clause.

The white paper cites primarily to two sources for its  authority to target persons thought to be a part of al-Qaeda and its associated forces: the Authorization for Use of Military Force (“AUMF”), Pub. L. No. 107-40, 115 Stat. 224 (2001), passed in September 2001, and Article 51 of the United Nations Charter. The AUMF, passed a mere week after 9/11, gives the President the authority to use “all necessary and appropriate force” against those who “planned, authorized, committed, or aided” the attacks. AUMF §2(a). This generally has been understood to authorize action against al-Qaeda and its associated forces, and is the statutory source authorizing the non-international armed conflict (NIAC) we are currently engaged in with al-Qaeda. On the other hand, Article 51 of the United Nations Charter guarantees under international law a nations’ inherent right to self-defense. Because the so-called “war on terror” is generally justified by the United States as measures to protect its citizens and interests, these two provisions substantively give the executive branch the authority to pursue members of al-Qaeda and its affiliates.

Additionally, the United States Supreme Court has affirmatively stated in both Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004), and Ex Parte Quirin, 317 U.S. 1, 37-38 (1942), that the government can use force against its own its citizens who are a part of enemy forces, and that they may be treated as enemy belligerents under international law. Thus, the lingering question doesn’t seem to be whether or not the government can target its own citizens, but under what conditions.

Because the Fifth Amendment’s Due Process Clause (prohibiting deprivation of life or liberty without first receiving adequate legal process) attaches to citizens even while abroad (see Reid v. Covert, 354 U.S. 1, 5-6 (1957) (plurality opinion); United States v. Verdugo-Urquidez, 494 U.S. 259, 269-70 (1990)), there must be consideration of these rights before there is any deprivation thereof. The test, which must be satisfied before there is a deprivation (in this case, it would be of life), was annunciated by the Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 335 (1976). The Mathews court required the consideration of three factors: (1) the private interest affected by the official action, (2) the risk of an erroneous deprivation of such interest through procedures used, and probable value of additional or substitute procedural safeguards, and (3) the Government’s interest, including burdens that additional or substitute procedural requirements entail. Mathews, 424 U.S. at 335. This second factor is the most critical, because it weighs in favor of preventing deprivations on false identification.

The white paper mentions this test, but largely ignores the critical second factor in its due process analysis. Because the private and Governmental interests are both weighty (the individual’s interest in his life, versus the Government’s interest in protecting American lives generally), this calculus necessarily turns on the risk of erroneous deprivation. Nevertheless, the DoJ waves off this consideration by stating that while the risk of erroneous deprivation of life is real, the “realities of combat” render these uses of force necessary anyway, and that the “due process analysis need not blink at those realities.” See Department of Justice White Paper, page 6.

The memo does not entirely ignore process, stating three criteria which, when all are present, would make it clear that targeted attacks are appropriate: “(1) where an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States; (2) where a capture operation would be infeasible – and where those conducting the operation continue to monitor whether capture becomes feasible; and (3) where such an operation would be conducted consistent with applicable law of war principles.” Id.

While the DoJ delves deeper into these factors, its analysis still leaves much to be desired. It is unclear who would have the authority to make these determinations, or on what basis such a determination would be made. It is also unlikely that anyone classified as a senior operation leader of al-Qaeda who purportedly poses an imminent threat would be afforded an opportunity, let alone a meaningful one, to challenge this classification. See generally, Boumediene v. Bush, 553 U.S. 723 (2008) (holding that habeas corpus and the Suspension Clause entitles persons held at Guantanamo Bay to a “meaningful” review of their classification as an enemy combatant).

The memo then only briefly addresses the Fourth Amendment, finding that precedent upholding the use of deadly force by police officers under certain circumstances is sufficient to mollify any concerns. See generally Department of Justice White Paper, page 9. These circumstances, however, are typically limited to instances where it is clear that the officer is acting in defense of himself or another, where there is a clear imminent threat. That is not always the case in the realm of targeted killings, where a person (who admittedly may indeed be a terrorist planning an activity) could be executed off the “battlefield.”

The most thought provoking section of this entire memo, however, is the short paragraph at the top of page 10, in which the DoJ briefly dismisses any suggestion that the courts should have jurisdiction to evaluate these determinations. This position is based in the Department’s belief that matters of foreign policy and national security are not proper subjects for judicial intervention. Although it is certainly well taken that these considerations are based on sensitive intelligence information which should not be made public, as it would if determinations were made in open court, and that these cases are time-sensitive such that a protracted legal battle would render our ability to defend ourselves ineffective, there appears to be little reason for the exclusion of judges entirely. In camera proceedings, or some other closed, private determination may be appropriate in many cases.

Whatever the criticisms of this memo, it is important to understand its limited, specific context. It is a brief, vague overview of what the Department of Justice views as the government’s sources of authority to target and kill its own citizens when they are acting as a senior operational leader of al-Qaeda. It is not a defense of its drone program, which has targeted exponentially more non-citizens than American citizens (the lone instance being al-Awlaki), and is not specific about whether the killings it contemplates would be effectuated using drones at all. Truly, the only question answered by this memo is the source of authority the government is claiming. It leaves much to be desired with regards to the procedure used to make these critical determinations, and it may be a long time before this information is made available to us.


[1] The memo can be read at: