Fordham Law

Memo Lays Out Legal Rationale for Drone Strike that Killed American Citizen

Karen J. Greenberg on WNYC's The Takeaway, February 05, 2013

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A 16-page memo (pdf) obtained by NBC News outlines the legal rationale for the killing of American citizen Anwar Al-Awlaki, an Al Qaeda operative. The memo is also the clearest statement yet of American policy on the use of drone aircraft. Awlaki was killed by an American drone strike in Yemen in September 2011.

According to Karen Greenberg,  the director of the Center on National Security at Fordham University's School of Law, the memo affirms what many long have suspected: The Obama administration has adopted a broadened concept of what constitutes an "imminent threat" as it concerns American citizens involved in the war on terror. The memo states that it is not necessary for an attack to be in process when a target is found as long as the target is generally engaged in terrorist activities aimed at the United States. It goes on to say that in these cases the courts do not have the right to review or interfere with such decisions.

"In the name of self-defense, the U.S. can act in a preemptive fashion without knowing about a particular target," argues Greenberg. "The problem is, who do you want to give these powers to? While the Obama administration trusts itself to be judicious in its temperament and its judgement, what about others who come along?"

According to Greenberg, there are still unknowns about the document, which appears to be a briefing of the real, classified legal memorandum: "Are there threshold considerations in the longer memo? What exactly does qualify a person for killing an American citizen?"

"The idea that process is taken off of the table is deeply disturbing," says Greenberg.