How did legal memos under the Obama administration justify targeted drone strikes?
Executive summary
The Obama administration’s legal memos argued that targeted drone strikes — including against U.S. citizens abroad — were lawful because those individuals could be treated as members or operational leaders of an “enemy force” in an ongoing non‑international armed conflict with al‑Qaeda, and therefore lethal force could be used when capture was not feasible and the individual posed an imminent threat; the administration publicly released a 2011 “white paper” and related memos after litigation and pressure [1] [2] [3]. The administration later codified interagency procedures in a Presidential Policy Guidance (“playbook”) requiring presidential approval for strikes on U.S. citizens outside recognized battlefields, while critics said the memos blurred due‑process safeguards and relied on executive self‑definition of the law [4] [1] [5].
1. How the memos framed the core legal claim: war‑not‑crime
The Obama Justice Department memos treated targeted killings as part of an ongoing non‑international armed conflict with al‑Qaeda and “associated forces,” which allowed the executive to apply the law of armed conflict rather than ordinary criminal law when justifying lethal force abroad. That framing permitted the government to classify an American like Anwar al‑Awlaki as an “operational leader” of an enemy force and therefore a lawful target under the administration’s view [1] [2].
2. Imminence, feasibility of capture and who decides
The memos asserted the legal threshold was an “imminent” threat of violent attack, but defined imminence more flexibly than traditional criminal law — the government said imminence did not require proof of a specific, immediately scheduled plot [2]. The memos also emphasized that capture must be infeasible; the administration’s internal processes and intelligence judgments — ultimately up to senior executive officials and, for U.S. citizens, presidential sign‑off under later guidance — determined feasibility and imminence [4] [2].
3. Constitutional due process: asserted but limited
Officials argued that U.S. citizens targeted abroad received “due process,” but the memos and subsequent reporting show the administration rejected a role for judicial review in approving a strike. Legal critics — and scholars cited in reporting — argue that framing due process without affording courts a role effectively diluted judicial protections and placed final authority inside the executive branch [1] [5].
4. Secrecy, litigation and partial disclosures
The memos were long secret and released only after litigation by news organizations and civil‑liberties groups; key documents — including a 2011 DOJ “white paper” — emerged after court pressure and congressional disputes over oversight [1] [3] [2]. Journalists and NGOs have since compiled critiques using those releases to argue the administration relied on its own internally generated legal framework rather than statutes or judicial precedents [6] [7].
5. Bureaucratic “playbook” and attempts at restraint
In response to controversies and several high‑profile strikes that killed U.S. citizens and minors, the Obama White House issued Presidential Policy Guidance in 2013 that created a more formal nomination and review process — often called the drone “playbook” — and required higher‑level approvals for strikes on Americans outside traditional battlefields [4] [8]. Supporters said these steps institutionalized checks; critics said they were still opaque and insufficiently protective of rights [4] [7].
6. Competing perspectives and stated motivations
Administration officials framed the memos as necessary to protect Americans and preserve counterterrorism effectiveness; allies’ cooperation, intelligence sharing, and battlefield realities influenced legal posture, according to congressional testimony and reporting [9] [3]. Civil liberties groups and many legal scholars countered that the memos represented an expansive executive claim of power with minimal outside review and potentially broad future application [10] [5].
7. What the available sources do not settle
Available sources do not provide full text of every internal OLC opinon the administration relied on; reporting documents key memos and a “white paper” but also notes additional classified opinions and details still withheld from public view [10] [2]. Sources do not uniformly quantify all civilian casualties attributable to the policy in a single authoritative tally [10] [6].
Context matters: the memos remade legal categories to fit a global counterterrorism program, the administration sought to balance national‑security claims with some procedural guardrails, and critics warned the result centralized lethal decisions inside an unreviewed executive apparatus [1] [4] [5].