Analysis of the 'Drone Memo'
|MQ-1 Predator (en.wikipedia.org)|
"First, the tight focus on whether American citizens can ever be the target of a “lethal operation” is under-inclusive. Much of the white paper is taken up with discussions of whether citizens are protected by the principles of due process ... But as a glance at the Constitution reveals, the due process clause of the Fifth Amendment (like the one later added in the Fourteenth) does not protect “citizens”; it protects “any person” without regard to whether he or she is a citizen or not. Thus, if the due process clause bears at all on the use of lethal force in wartime, it bears on the use of such force against anyone, not just citizens."
"...is overly solicitous. The authors seem entirely innocent of the fact that where we are not contemplating the use of the law’s authority over persons (as we do in our criminal justice, immigration, or administrative-law systems), but are instead contemplating the use of military force against enemies in a war, the question whether we are affording those persons “due process” is an absurdity. The question, properly speaking, does not even arise."
“(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 United States continues to monitor whether capture becomes feasible; and (3) the operation is conducted in a manner consistent with the four fundamental principles of the laws of war governing the use of force [necessity, distinction, proportionality, and avoidance of unnecessary suffering].”