Through chilling legal jargon and a patchwork of legal citations from prior case law, a Justice Department white paper leaked to NBC News provides one of the clearest indication yet that the administration of President Barack Obama has claimed the power to kill people and there are few checks on this claimed executive power.
As it lays out:
A lethal operation against an enemy leader undertaken in national self-defense or during an armed conflict that is authorized by an informed, high-level official and carried out in a manner that accords with applicable law of war principles would fall within a well established variant of the public authority justification and therefore would not be murder.
It would not technically be murder to kill a US citizen because, as the white paper coldly lays out, sometimes the government has the public authority to do things that are normally considered illegal.
An informed, high-level official is better equipped to authorize the execution of a US citizen suspected of ties to al Qaeda or its affiliates because, “There exists no appropriate judicial forum to evaluate these constitutional considerations.” Matters involving foreign policy or national security should not be subject to “judicial intervention.”
The white paper contradicts the ACLU, which tried to challenge the government’s authority to kill US citizens suspected of terrorism through targeted killings away from the battlefield through its case, Al-Aulaqi v. Obama. It argued that Anwar Al-Awlaki deserved to be put on notice that he was placed on a “kill list” and be informed of the criteria that led to his placement, as he had not been convicted or charged with a crime:
The government’s refusal to disclose the standard by which it determines to target U.S. citizens for death independently violates the Constitution: U.S. citizens have a right to know what conduct may subject them to execution at the hands of their own government. Due process requires, at a minimum, that citizens be put on notice of what may cause them to be put to death by the state.
It outlines how due process and the Fourth Amendment would not apply by stating, “We recognize that there is no private interest more weighty than a person’s interest in his life. But that interest must be balanced against the United States’ interest in forestalling the threat of violence and death to other Americans that arises from an individual who is a senior operational leader of al Qaida or an associated force of al Qaida and who is engaged in plotting against the United States.”
The claimed authority to kill a person from the US who is suspected of ties to al Qaeda or its affiliates is further disturbing when one considers how easy the Justice Department thinks it should be for the government to claim a person poses an “imminent threat.”
Here is the section that should be considered one of the more alarming parts of the white paper:
…By its nature, therefore, the threat posed by al Qaida and its associated forces demands a broader concept of imminence in judging when a person continually planning terror attacks presents an imminent threat, making the use of force appropriate. In this context, imminence must 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. Thus, a decision maker determining whether an al Qaida operational leader presents an imminent threat of violent attack against the United States must take into account that certain members of al Qaida (including any potential target of lethal force) are continually plotting attacks against the United States; that al Qaida would engage in such attacks regularly to the extent it were able to do so; that the US government may not be aware of all al Qaida 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 casualties…
Implicit in this analysis is the concept that the US government cannot at any one time know all the plots being planned by members of al Qaeda and, therefore, it must execute persons on the mere suspicion of involvement in al Qaeda or ties to the organization because that person may be involved or plan a plot at some point in the future.
Furthermore, the white paper claims, “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 US persons and interests will take place in the immediate future.”
But, what constitutes an “operational leader”? What if one is in countries where counterterrorism operations are ongoing and just happens to be in the vicinity of covert operations on a regular basis? What if one chooses to engage in humanitarian work or is a journalist? Might they become someone considered as an “operational leader”? Might they get their own baseball card that senior officials pass around when considering whether they should be killed?
As the ACLU’s Jameel Jaffer reacted after his analysis, “Even if the Obama administration is convinced of its own fundamental trustworthiness, the power this white paper sets out will be available to every future president—and every “informed high-level official” (!)—in every future conflict.”
Finally, this is a 16-page white paper that is essentially a summary of a much longer 50-plus page memo from the Justice Department, which the Obama administration has refused to allow to be released. The content of this white paper shows the targeted killing memo itself should be public.