DOJ white paper lays legal basis for drones targeting US citizens

The Department of Justice has developed a white paper outlining the specific circumstances under which the United States can conduct a lethal drone strike against an American citizen, a copy of which was obtained Monday by NBC News.

The paper provides the first detailed look at the criteria the Obama administration uses to judge if it can legally kill American citizens traveling abroad without the benefit of due process. The release of the administration's legal rationale comes days before CIA nominee John Brennan is scheduled to testify before the Senate Intelligence Committee. Panel members, including Senate Intelligence Committee Chairwoman Dianne Feinstein (D-Calif.) and Sen. Ron Wyden (D-Ore.), have been pressing the administration on the issue for more than a year.

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In the document, the Justice Department concludes that a lethal strike against a senior operational leader of al Qaeda — or an affiliated terrorist group — can occur if a three-part test is met: that a high-level American intelligence official has determined the individual poses an imminent threat, that capture is infeasible, and that the strike is conducted according to the laws of war governing use of force.

"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 Qaeda members and the loss of life that would result were their operations successful," the memo reads.

The memo does not carry legal weight, although administration officials told the network the document is similar to classified guidance developed by the Justice Department’s Office of Legal Counsel.

It also provides a legal justification for the killing of cleric Anwar al-Awaki in Yemen in 2011. Al-Awlaki, a senior leader in al Qaeda born in the United States, was linked to multiple terrorist attacks, including those of Maj. Nidal Malik Hasan, the Army psychiatrist charged in the 2009 Fort Hood shootings, and Faisal Shahzad, who tried to set off a car bomb in Times Square last year.

Al-Awlaki's killing drew pronounced criticism from civil libertarian groups, who argued his constitutional rights to due process had been violated. In 2010, al-Awlaki's father — with assistance from the American Civil Liberties Union — attempted to sue the United States government after his son was placed on the CIA's targeted kill list. The White House invoked state secrets privilege to have that case dismissed from courts.

The lawsuit also sought to compel the government to disclose the guidelines under which a U.S. citizen would be put on a kill list. While the memo revealed Monday does not outline the criteria under which a senior American official can declare a citizen to be an imminent threat, it does illuminate the process under which the Justice Department believes a lethal strike could be constitutionally justified.

In an interview with NBC, Jameel Jaffer, deputy legal director of the ACLU, called the document "chilling."

“Basically, it argues that the government has the right to carry out the extrajudicial killing of an American citizen. … It recognizes some limits on the authority it sets out, but the limits are elastic and vaguely defined, and it’s easy to see how they could be manipulated," Jaffer said.

In November, the New York Times reported that the White House was working to codify rules to govern the targeted killing of terrorists by unmanned drones. The codification work was begun during last year's presidential election. According to the report, the Obama administration wanted to provide Mitt Romney with a clear set of procedures and standards for the use of drone strikes, were he to be elected.

The president himself has spoken publicly about the need to better codify the use of drone strikes.

“One of the things we’ve got to do is put a legal architecture in place, and we need Congressional help in order to do that, to make sure that not only am I reined in but any president’s reined in terms of some of the decisions that we’re making,” Obama said during an appearance on "The Daily Show with Jon Stewart" shortly before the election.

This article was updated on Feb. 5 at 8:05 am.