The devil in the (still undisclosed) detail: Department of Justice ‘white paper’ on use of lethal force against U.S. citizens made public

Amnesty International [PDF]:

“These [drone] strikes are legal, they are ethical and they are wise.”
White House Press Secretary, press briefing, 5 February 2013

A newly released document outlining the legal framework relating to an aspect of the US administration’s “targeted killing” programme is silent on human rights and does nothing to alleviate Amnesty International’s concern that the programme as a whole allows for the use of lethal force that violates the right to life under international law.

The US Department of Justice “white paper”, which “sets forth a legal framework for considering the circumstances in which the US government could use lethal force in a foreign country outside the area of active hostilities against a US citizen who is a senior operational leader of al-Qa’ida or an associated force of al-Qa’ida”, was first made public by NBC News. The document adds little new substance to what various administration officials have already said publicly on this issue. It again ignores the USA’s international human rights obligations, and expands the notion of
“imminent attack” to which the USA might respond with lethal force. It provides no case detail, and considers the lethal force question mainly under US constitutional and statutory law.

The fact that the document makes no express reference to international human rights law is unsurprising – this has become the norm for officials outlining policy and practice under the USA’s notion of a global armed conflict with al-Qa’ida. The silence on human rights is no less regrettable by its predictability.

The Justice Department paper, “an unclassified document prepared for some members of Congress”, apparently summarizing a longer legal memorandum that remains classified and undisclosed, addresses specifically the legality of the “targeted” killing in a “foreign country” of US citizens by the USA. It should not be forgotten that the vast majority of those killed by US forces in such operations in recent years, principally in drone attacks, have been foreign nationals. While the white paper concludes that “the US citizenship of a leader of al-Qa’ida or its associated forces…does not give that person constitutional immunity from attack”, it is not clear whether the case of a US citizen assessed as the possible target for lethal force would receive a greater degree of scrutiny and caution from decision-makers than an identically placed foreign national. As outlined below, there is certainly greater domestic political pressure on the administration to make clear its full legal opinions on the “targeted killing” of US nationals. Amnesty International reminds the US government not to allow the domestic focus on US nationals to distract from a fundamental concept of universal human rights, namely that the right to life, to liberty, and to fair trial of every human being is to be respected without discrimination on the basis of their nationality.

While the White House has responded to the release of the white paper by stressing that it is an unclassified document that contains a set of “general principles” already in the public domain, Amnesty International calls on the US administration to adopt an approach of far greater transparency than it has to date in relation to its use of lethal force in policy and practice. Such an approach should be one that facilitates independent assessment of the lawfulness of particular attacks, accountability for any attacks that are unlawful, and full reparations for victims of violations and their families. [Continue reading - PDF]

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