On the DOJ Justifying the “targeted Killings” of US Citizens
Previously published on Feb 13, 2013
Since the September 11th, 2001 terrorist attacks and the inception of the "War on Terror," the US government has struggled to balance the need to respond to the threat of globalized terrorism and the need to restrain the oppressive hand of government. The use of unmanned aerial drones for "targeted killings" of al-Qa'ida operatives, including US citizens, serves as a prime example of both the George W. Bush and Obama Administrations' failures to answer fundamental questions on how to achieve this balance. The Obama Administration Department of Justice "White Paper" on the lawfulness of killing US citizens serving outside of the US as senior, operational al-Qa'ida officials, which was leaked to NBC News, attempts to offer justification and guidance for such targeted strikes, yet provides little more than a meandering rational of legal technicalities that better serves the abuse of power.
The aforementioned memo, which reads like an ill-conceived and poorly written undergraduate paper despite its significance, affords Americans a glimpse into the thought processes that our trusted officials are using to circumvent legal and Constitutional restrictions designed to protect the lives and freedoms of all US citizens. The document, in fact, fails to support essential arguments, such as the proclamation that Judicial, as well as Congressional, oversight, Due Process, and other rights of citizenship do not apply when dealing with threats to national security, while legitimizing the unchecked use of police/military force whenever the Executive Branch singlehandedly deems it necessary. The document even attempts to extend the historic tendency of the Executive Branch to undertake the responsibility of foreign affairs, which the Supreme Court recognizes though the Constitution does not afford the President sole discretion over foreign matters, to include "targeted killings" of Americans. To be blunt, the lives and rights of American citizens are never simply foreign policy issues; therefore, the Executive Branch has no innate privilege to act without oversight, transparency, or limits. Instead of respecting the Constitution and the protections it affords US citizens, the document indulges the natural impulse of national security and military officials to ignore restraint in the pursuit of national security interests.
The memo offers three seemingly reasonable conditions for authorizing lethal force against a US citizen acting outside of the US as a senior, operational official of al-Qa'ida and/or its associates:
1. "… an informed, high-level official of the US government has determined that the targeted individual poses an imminent threat of violent attack against the United States…"
2. "… capture is infeasible, and the United States continues to monitor whether capture becomes feasible…"
3. "… the operation would be conducted in such a manner consistent with applicable law of war principles…." (The four principles include necessity, distinction, proportionality, and humanity.)
It is reasonable to conclude the second and third criteria serve as necessary and proper safeguards for protecting US citizens. That said, what constitutes as an "infeasible" capture under the second criterion needs to be clarified as the requirements set forth in the memo also seek to limit US casualties; this includes US military personnel. Because capture of an enemy combatant in a war zone is likely to present a serious threat to military personnel, the requirement can easily be dismissed as a formality when proper oversight is lacking and a capture mission is deemed hazardous/unnecessary.
Meanwhile, the third criterion hints at fundamental faults in how the US is attempting to address the threat of globalized terrorism. In the past, terrorism has been treated more as a violent criminal element; whereas, the George W. Bush and Obama Administrations have primarily treated them as military threats. Because globalized terrorist organizations, such as al-Qa'ida, are stateless organizations, which do not maintain governing authority nor seek such responsibilities, the threat of terrorism cannot be properly addressed militarily or criminally. More importantly, this means the threat of terrorism must be addressed by a coalition of willing governments that can coordinate policing and military efforts to disrupt terrorist operations. This requires diplomacy, explicit actions by international organization like the UN, and revisions to existing treaties. Quite frankly, a "legal" framework originating from the Executive Branch of the US government, which unilaterally justifies military action against groups like al-Qa'ida on foreign soil, only weakly legitimizes such actions for outsiders at best. In other words, the Obama Administration can academically legitimize unauthorized attacks within the territories of foreign bodies, as it does with this document, but such justifications for unilateral actions undermines international cooperation and ongoing efforts to stop global terrorism as well as other threats.
Furthermore, the first criterion for authorizing lethal force against US citizens on foreign soil would be acceptable, except for the fact that the DOJ document thoroughly dismisses the Constitutional requirement for Congressional and/or Judicial oversight before it redefines the meaning of "imminent threat" to include any potential threat to US interests. The memo justifies the need to redefine the meaning of imminent threat in order to "incorporate considerations of the relevant window of opportunity, the possibility of reducing collateral damage to civilians, and the likelihood of heading off future disastrous attacks on Americans." Because the "imminent threat" condition, originally offered by the Supreme Court, currently serves as a standard to guide the actions of law enforcement when snap judgments are required, these considerations are already part of the "imminent threat" concept; therefore, it does not need to be redefined.
The authors of the "White Paper" make the claim: the condition of an imminent threat "… does not require the United States to have clear evidence that a specific attack on US persons and interests will take place in the immediate future." They also proclaim "… the United States must take into account that certain members of al-Qa'ida (including any potential target of lethal force) are continually plotting attacks against the United States; that al-Qa'ida would engage in such attacks regularly to the extent it were able to do so; that the U.S. government may not be aware of all al-Qa'ida plots as they are developing and thus cannot be confident that none is about to occur; and that, in light of these predicates, the nation may have a limited window of opportunity within which to strike in a manner that both has a high likelihood of success and reduces the probability of American causalities." In making these poorly supported assertions, they fabricate a basis for declaring all al-Qa'ida activities to be "imminent threats."
The "White Paper" presents an argument that the US is involved in a perpetual armed conflict with al-Qa'ida that has no geographically defined borders and involves an ongoing "imminent threat" as the terrorist network is constantly plotting against America. Consequently, any given senior al-Qa'ida official represents an imminent threat by the rationale presented. Because the "battlefield" is so fluid and the potential consequences are so serious, which the document subtly extends justification for lethal action to include threats to all things declared US interests, the Executive Branch cannot be burdened by oversight and Due Process, i.e. the Constitution. Any US citizen on foreign soil suspected, or simply considered, by the Executive Branch to be a terrorist threat is, thus, subject to lethal targeting without Due Process or other legal protections, unless the current Administration deems it feasible to capture the "suspect." Plainly, this argument would never pass an honest Supreme Court challenge while Americans cannot possibly accept such an open-ended, unilateral use of Executive power.
The threat of global terrorism may be great and require a highly dynamic response, but most of al-Qa'ida's activities involve day-to-day militant activities and do not automatically present "imminent threats" to the homeland or territories of the United States. Consequently, most of al-Qa'ida's activities do not need to be addressed in such a timely fashion that the Executive Branch can justify its failure to seek oversight and some form of Due Process. In other words, unless an actual imminent threat to the United States exists or US forces are attacked by an American citizen while undertaking military operations against al-Qa'ida operatives, either a panel of judges or legislators needs to review the use of lethal force against some transparent, established standards when a known US citizen is the target of a planned overseas military strike.
Meanwhile, the Constitution demands oversight by the Legislative and Judicial Branches, including scenarios where an actual imminent threat has been addressed. Failing to do so, undermines the US Constitution and the very reasons US citizens have protections against the actions of our government. Oversight and Due Process afford citizens protection against government corruption, but they also provide our national security professionals the ability to protect our Nation from threats without undermining our democratic freedoms and human rights. Thoroughly neglecting the oversight and Due Process requirements of the Constitution means the Executive Branch is overstepping its boundaries.
It is when government most needs to violate the freedoms and rights of its citizens that we need them the most. This means national security does not automatically trump the rights of a citizen as the "White Paper" asserts, especially the right to life, even when those citizens are senior officials in a terrorist organization plotting abroad to attack our Nation. The life of an American may be taken in the interest of national security, but some form of Due Process is required to ensure the irreversible act is proper and necessary. The failure to balance the legal protections afforded to all US citizens with the need to address national security threats, as well as the shaky rationale for violating treaties and the sovereignty of other nations, by the George W. Bush and Obama Administrations is a serious problem. In fact, the manner in which the Obama Administration attempts to justify its past and present actions with the "White Paper" is far more dangerous than simply acting without legal justification as it is establishing a precedent for the Executive Branch to act independent of Congress and the Judiciary when the situation serves the interests of the President or subordinate officials.
Moreover, the DOJ "White Paper" offers readers some very troubling insights into how our national security officials are justifying their actions against US Citizens. The argument presented in the memo needs to be restructured to provide clearer guidance on what constitutes an actual imminent threats in regard to globalized terrorism while building an actual legal framework for using lethal force against US citizens when necessary due to an ongoing threat. Such a framework must require actual oversight, some form of Due Process, and transparent standards; otherwise, these "targeted killings" are simply unlawful assassinations by another name. Instead of using weakly supported, damaging rationales for acting against US citizens engaged in plotting terrorist activities, the Obama Administration and future Presidencies need to work with Congress to develop laws, oversight bodies, standards, and guidelines that meet the demands of the US Constitution. Similarly, more efforts need to be made to strengthen our relationships with our allies, so the international community can properly address the threat of global terrorism in a more cooperative fashion.