A U.S. citizen who is allegedly a member of Al-Qaeda is actively planning attacks against Americans overseas, U.S. officials said, and the Obama administration is wrestling with the question of whether to kill him with a drone strike – and how to do so legally under its new and stricter targeting policy announced last year.
Two officials described the man as an Al-Qaeda facilitator who has been directly responsible for deadly attacks against U.S. citizens overseas, and who continues to plan attacks against them using improvised explosive devices.
He is being watched by CIA drones, but they cannot strike because President Barack Obama’s new policy says only the military could take such actions; because the country where he resides has refused to allow U.S. military action on its soil; and because the Justice Department has not yet built a case against him that shows his killing would be “legal and constitutional” under enemy combatant laws.
Meanwhile, the unnamed country where he resides is reportedly proven to be unable to capture or kill the alleged Al-Qaeda operative itself.
According to a third U.S. official, the Defense Department is divided over whether the man is dangerous enough to merit the potential domestic fallout from killing an American without charging him with a crime or trying him, and the potential international fallout from such an operation in a country that has been resistant to U.S. action.
A fourth U.S. official said the Pentagon ultimately decided to recommend lethal action.
One human rights organization, Britain-based Reprieve, denounced the idea of extra-judicial killings by drone.
"It is a very sad day when U.S. officials are squabbling in public over whether they should murder an American," Reprieve's director Clive Stafford Smith told Al Jazeera.
Under new guidelines Obama mentioned in a speech last year – in an attempt to calm anger overseas at the extent of the U.S. drone campaign – lethal force must only be used "to prevent or stop attacks against U.S. persons, and even then, only when capture is not feasible and no other reasonable alternatives exist to address the threat effectively."
The target must also pose "a continuing, imminent threat to U.S. persons" – the legal definition of catching someone in the act of plotting a lethal attack.
U.S. drones have killed four Americans since 2009, including Anwar al-Awlaki, who the administration said was actively plotting to kill U.S. citizens.
Amos Guiora, a professor of law at the University of Utah in Salt Lake City, told Al Jazeera that the doctrine outline last year “opened the door extremely broadly as to defining imminent threats and legitimate targets.”
One side of the argument holds that all American citizens, no matter where they are or what they're doing, deserve equal protection under the law, but the other side sees the matter very differently.
“The counter argument is an American citizen engaged in terrorist activities loses that protection and becomes a legitimate target in the context of operational counter terrorism — including a drone attack,” Guiora said.
Although the American citizen a U.S. drone might target is reportedly not in the U.S., Guiora said killing an American on American soil is the “bingo question” behind the drone debate.
To those used to long-standing legal guarantees of due process, killing a U.S. citizen with a drone on American soil would be “an evisceration of constitutional protections,” Guiora explained.
Guiora believes there could be several ways and reasons this information became available to the press at this time.
“Maybe it’s all a trial balloon," Guiora said. "The administration is putting this out there for public discussion to gauge public response. . . (or) somebody who’s opposed to this potential attack, by leaking it, is engendering possible opposition to this potential attack.”
Guiora also said the administration could be using the press to communicate with the individual.
“This may well be a well designed message to this individual, if he does indeed exist, that he is a legitimate target.”
The Associated Press has agreed to the government's request to withhold the name of the country where the suspect is believed to be because officials said publishing it could interrupt ongoing counterterror operations.
The officials spoke to the AP on condition of anonymity because they were not authorized to discuss the classified drone targeting program publicly.
The CIA declined to comment. When asked by Al Jazeera, the Justice Department and the Pentagon also declined comment.
Al Jazeera and The Associated Press. Wilson Dizard contributed to this report.