Get Download Lawfulness of a Lethal Operation Directed Against a U.S. Citizen who is a Senior Operational Leader of Al-Qa'ida Or an Associated Force Book
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Published on: 2013
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Pages: 16
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Category:Executive privilege (Government information)
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|This white paper sets forth a legal framework for considering the circumstances in which the U.S. government could use lethal force in a foreign country outside the area of active hostilities against a U.S. citizen who is a senior operational leader of al-Qa'ida or an associated force of al-Qa'ida that is, an al-Qa'ida leader actively engaged in planning operations to kill Americans. The paper does not attempt to determine the minimum requirements necessary to render such an operation lawful; nor does it assess what might be required to render a lethal operation against a U.S. citizen lawful in other circumstances, including an operation against enemy forces on a traditional battlefield or an operation against a U.S. citizen who is not a senior operational leader of such forces. Here the Department of Justice concludes only that where the following three conditions are met, a U.S. operation using lethal force in a foreign country against a U.S. citizen who is a senior operational leader of al-Qa'ida or an associated force would be lawful: (1) 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) capture is infeasible, and the the United States continues to monitor whether capture becomes feasible; and (3) the operation would be conducted in a manner consistent with applicable law of war principles. This conclusion is reached with recognition of the extraordinary seriousness of a lethal operation by the United States against a U.S. citizen, and also of the extraordinary seriousness of the threat posed by senior operational al-Qa'ida members and the loss of life that would result were their operations successful. The president has the authority to respond to the imminent threat posed by al-Qa'ida and its associated forces, arising from his constitutional responsibility to protect the country, the inherent right of the United States to national self defense under international law, Congress's authorization of the use of all necessary and appropriate military force against this enemy, and the existence of an armed conflict with al-Qa'ida under international law. Targeting a member of an enemy force who poses an imminent threat of violent attack to the United States is not unlawful. It is a lawful act of national self defense ... Certain aspects of this legal framework require additional explication. First, the condition that an operational leader present an |imminent| threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interest will take place in the immediate future ... Second regarding the feasibility of capture, capture would not be feasible if it could not be physically effectuated during the relevant window of opportunity or if the relevant country were to decline to consent to a capture operation ... Third, it is a premise here that any such lethal operation by the United States would comply with the four fundamental law of war principles governing the use of force: necessity, distinction, proportionality and humanity (the avoidance of unnecessary suffering). For example, it would not be consistent with those principles to continue an operation if anticipated civilian casualties would be excessive in relation to the anticipated military advantage ... Relatedly, |there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict -- such as pilotless aircraft or so-called smart bombs as long as they are employed in conformity with applicable laws of war ... Finally, the Department notes that under the circumstances described in this paper, there exists no appropriate judicial forum to evaluate these constitutional considerations. It is well established that |[m]atters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention ... because such matters |frequently turn on standards that defy judicial application,| or |involve the exercise of a discretion demonstrably committed to the executive or legislature.||This white paper sets forth a legal framework for considering the circumstances in which the U.S. government could use lethal force in a foreign country outside the area of active hostilities against a U.S. citizen who is a senior operational leader of al-Qa'ida or an associated force of al-Qa'ida that is, an al-Qa'ida leader actively engaged in planning operations to kill Americans. The paper does not attempt to determine the minimum requirements necessary to render such an operation lawful; nor does it assess what might be required to render a lethal operation against a U.S. citizen lawful in other circumstances, including an operation against enemy forces on a traditional battlefield or an operation against a U.S. citizen who is not a senior operational leader of such forces. Here the Department of Justice concludes only that where the following three conditions are met, a U.S. operation using lethal force in a foreign country against a U.S. citizen who is a senior operational leader of al-Qa'ida or an associated force would be lawful: (1) 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) capture is infeasible, and the the United States continues to monitor whether capture becomes feasible; and (3) the operation would be conducted in a manner consistent with applicable law of war principles. This conclusion is reached with recognition of the extraordinary seriousness of a lethal operation by the United States against a U.S. citizen, and also of the extraordinary seriousness of the threat posed by senior operational al-Qa'ida members and the loss of life that would result were their operations successful. The president has the authority to respond to the imminent threat posed by al-Qa'ida and its associated forces, arising from his constitutional responsibility to protect the country, the inherent right of the United States to national self defense under international law, Congress's authorization of the use of all necessary and appropriate military force against this enemy, and the existence of an armed conflict with al-Qa'ida under international law. Targeting a member of an enemy force who poses an imminent threat of violent attack to the United States is not unlawful. It is a lawful act of national self defense ... Certain aspects of this legal framework require additional explication. First, the condition that an operational leader present an |imminent| threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interest will take place in the immediate future ... Second regarding the feasibility of capture, capture would not be feasible if it could not be physically effectuated during the relevant window of opportunity or if the relevant country were to decline to consent to a capture operation ... Third, it is a premise here that any such lethal operation by the United States would comply with the four fundamental law of war principles governing the use of force: necessity, distinction, proportionality and humanity (the avoidance of unnecessary suffering). For example, it would not be consistent with those principles to continue an operation if anticipated civilian casualties would be excessive in relation to the anticipated military advantage ... Relatedly, |there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict -- such as pilotless aircraft or so-called smart bombs as long as they are employed in conformity with applicable laws of war ... Finally, the Department notes that under the circumstances described in this paper, there exists no appropriate judicial forum to evaluate these constitutional considerations. It is well established that |[m]atters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention ... because such matters |frequently turn on standards that defy judicial application,| or |involve the exercise of a discretion demonstrably committed to the executive or legislature.|
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