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Wednesday, June 19, 2024 | Back issues
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Targeted Killing Paper Blasted as Flawed, Vague

(CN) - Rights groups expressed outrage over a newly surfaced document that gives legal rationales for U.S. plots to kill citizens who are suspected members of al-Qaida or associated forces.

NBC News reporter Michael Isikoff uncovered the unsigned and undated document and published it Monday night.

Labeled a "white paper," the document appears to summarize legal memoranda from Justice Department justifying the abroad killings of U.S. citizens, including radical cleric Anwar al-Awlaki, his 16-year-old son Abdulrahman Al-Awlaki and al-Qaida propagandist Samir Khan.

New York Times reporters Charlie Savage and Scott Shane and the American Civil Liberties Union lost their Freedom of Information Act lawsuits seeking access to the memos last month.

"The FOIA requests here in issue implicate serious issues about the limits on the power of the executive branch under the Constitution and laws of the United States, and about whether we are indeed a nation of laws, not of men," U.S. District Judge Colleen McMahon wrote in her order to throw out the case.

She added in the decision that the documents could inform the debate on a controversial tactic in the so-called war on terror, but that a "thicket of laws and precedents" prevented her from mandating disclosure.

"More fulsome disclosure of the legal reasoning on which the Administration relies to justify the targeted killing of individuals, including United States citizens, far from any recognizable 'hot' field of battle, would allow for intelligent discussion and assessment of a tactic that (like torture before it) remains hotly debated," she wrote at the time. "It might also help the public understand the scope of the ill-defined yet vast and seemingly ever-growing exercise in which we have been engaged for well over a decade, at great cost in lives, treasure, and (at least in the minds of some) personal liberty."

The New York Times and ACLU plan to appeal that denial.

In the 16-page white paper, the Justice Department says that an "informed, high level official of the U.S. government" must determine that a targeted suspect presents "an imminent threat of a violent attack," determine that "capture is infeasible" and ensure that the strike complies with the laws of war.

Dixon Osburn, the director of the law and security program of Human Rights First, called this reasoning "flawed" and criticized the paper's vague terminology.

"The government's legal analysis redefines the meaning of an imminent threat and infeasibility of capture," Osburn said in a statement.

International law requires an "imminent threat" to require a specific threat in the near future, but that the white paper requires neither, he added.

The paper states that "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 an attack on U.S. persons and interests will take place in the immediate future. Given the nature of, for example, the terrorist attacks of September 11, in which civilian airliners were hijacked to strike the World Trade Center and the Pentagon, this definition of imminence, which would require the United States to refrain from action until the preparations for an attack are concluded, would not allow the United States sufficient time to defend itself."

ACLU lawyer Jameel Jaffer said in a blog post that Justice Department's asserted limits on its power do not have any actual restrictions because they are not reviewable by any court.

"According to the white paper, the government has the authority to carry out targeted killings of U.S. citizens without presenting evidence to a judge before the fact or after, and indeed without even acknowledging to the courts or to the public that the authority has been exercised," Jaffer wrote. "Without saying so explicitly, the government claims the authority to kill American terrorism suspects in secret."

The ACLU and Center for Constitutional Rights are suing for after-the-fact judicial review of targeted killings.

Jaffer said that the plaintiffs in the case plan to file their principal brief for that case Tuesday.

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