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Americans Deserve an Explanation for Targeted Killings

Jameel Jaffer,
Director, Knight First Amendment Institute
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June 30, 2014

The most important parts of the drone memo are the parts you cant see.

The memo, released by a federal court on Monday in response to lawsuits filed by the 勛圖眻畦 and The New York Times, addresses the governments authority to carry out targeted killings of American terrorism suspects. Written in the summer of 2010 by the Obama administrations Office of Legal Counsel, the memo supplied the legal basis for the governments premeditated killing of Anwar al-Awlaki, an American, in the fall of 2011.

The memo sets out a legal argument based on stipulated facts that is, based on facts assumed to be true. Al-Awlaki was a leader of a group in league with Al-Qaida, the memo says. The group had a significant and organized presence in Yemen, from which it was planning attacks against the United States. Al-Awlaki himself presented a threat that was continuing and imminent. Killing him was feasible, but capturing him was not.

Once these facts are assumed, the memos ultimate conclusion if not its legal analysis follows inevitably. How could it not? No government would disclaim the authority to use force as a last resort against a serious threat that was truly imminent.

But even if we assume, against the evidence, that the memo is using words like imminence and feasible in conventional ways, what assurance do we have that the facts the memo accepts as true were actually true? What assurance do we have that Al-Awlaki was who the memo says he was, and that he was doing what the memo says he did?

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