Two days before a key player in the Obama administration's drone policy begins confirmation hearings to become director of the CIA, a confidential Justice Department document has been leaked that explains the government's legal justification for drone strikes in ways never before made public.
It is not an official legal memo, which authorizes policy and remains classified, but it does summarize the "legal framework" for conducting a drone strike on any American citizen living abroad who is a "senior operational leader of Al-Qa'ida or an associated force."
The language it uses implies the government does not need "clear evidence" connecting such a person to a plot against the U.S. in order to use a drone strike.
"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 a specific attack on U.S. persons and interests will take place in the immediate future," the memo reads.
Instead, a suspect only needs to be deemed an "imminent threat" by a high-level U.S. official to be considered a target. The memo does not define what "high-level" of official is required to make the determination. It says that certain "activities" would qualify as posing a threat if done "recently," but does not specify which activities or how recently they must have occurred.
Attorney General Eric Holder and other Justice Department officials have given the legal rationale for killing American citizens abroad before, but in even less detailed terms. In a speech to Northwestern University Law School last year, Holder said that the president could "use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war—even if that individual happens to be a U.S. citizen."
Holder also intimated that such force could be used without affording such suspects legal rights, saying that "due process" does not necessarily mean "judicial process" in national security situations.
The white paper fills in many of the gaps in Holder's statements, says Bill Roggio, editor of the Long War Journal, who has been embedded in Afghanistan and Iraq.
"This is the most detailed description of the administration's policy on drone strikes that's out there," Roggio says.
The paper's leak comes just two days before the confirmation hearings of John Brennan, President Barack Obama's nominee for CIA director, who helped architect the drone program. Several senators, including Democrat Sen. Ron Wyden of Oregon, have made it clear the drone program will be brought up during the hearings.
Wyden and 10 other senators from both parties wrote a letter to Obama asking for official legal memos "outlining the President's authority to authorize the killing of American citizens during the course of counterterrorism operations."
The press release detailing the letter was released on the same day as the white paper's leak. For his part Wyden, a member of the Intelligence Committee that allegedly received the paper last June, has made no secret of wanting to know more about the subject.
Congress must be provided with the secret legal opinions on President's authority to authorize killing of Americans 1.usa.gov/WnxiXi— Ron Wyden (@RonWyden) February 4, 2013
The military actions that the white paper, and presumably the memos, explain have been going on for some time, Roggio says.
"There's some wording in [the white paper] that we can go after people who are imminent threats, while that hasn't been talked about a lot, it's been clear in operations."
At least four American citizens have been targeted by U.S. drone strikes. Perhaps the most notable was Anwar al-Awlaki, a New Mexico-born Muslim cleric believed to be affiliated with al-Qaeda who was killed in a drone strike in Yemen in September 2011. Another American, North Carolinian Samir Khan, was also killed in that strike. Al-Awlaki's 16-year-old son Abdulrahman, who was also born in America, died in a later strike.
Another American allegedly associated with al-Qaeda, Californian Adam Gadahn, could potentially be a future target, Roggio says.