Analysis of the 'Drone Memo'

The killing of Anwar Al-Awlaki in 2011 has sparked a necessary debate about the use of unmanned drones to kill enemy combatants and the lawfulness of the President's "kill lists." Recently, NBC News obtained a copy of a Justice Department white paper outlining the legal rationale for the targeted killing of enemy combatants. In a timely post at firstthings.com, Matthew Franck explores the legal argument constructed by the anonymous authors at the Justice Department. He exposes two major errors:

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."

The second problem Matthew Franck exposes is that the white paper

"...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."

Franck finds fault with treating drone strikes and other targeted killings in a similar legal framework to murder. He rightly explains that killing enemies in combat is "by definition not murder," Thus much of the white paper is irrelevant. What is relevant are the criteria prescribed by the paper for targeted killings:

“(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].”

Matthew Franck concludes that these criteria should be used when conducting all targeted killings. The rest of the ‘white paper’ he says, “is a distraction, a legal error, and a moral confusion.”