EXCLUSIVE: Justice Department memo reveals legal case for drone strikes on Americans
As in Holderâs speech, the confidential memo lays out a three-part test that would make targeted killings of American lawful: In addition to the suspect being an imminent threat, capture of the target must be âinfeasible, and the strike must be conducted according to âlaw of war principles.â But the memo elaborates on some of these factors in ways that go beyond what the attorney general said publicly. For example, it states that U.S. officials may consider whether an attempted capture of a suspect would pose an âundue riskâ to U.S. personnel involved in such an operation. If so, U.S. officials could determine that the capture operation of the targeted American would not be feasible, making it lawful for the U.S. government to order a killing instead, the memo concludes.
The undated memo is entitled âLawfulness of a Lethal Operation Directed Against a U.S. Citizen who is a Senior Operational Leader of Al Qaâida or An Associated Force.â It was provided to members of the Senate Intelligence and Judiciary committees in June by administration officials on the condition that it be kept confidential and not discussed publicly.