Michael Isikoff of NBC News got his hands on a Justice Department white paper that contains the Obama administration’s legal framework for extrajudicial killings of US citizens abroad. The 16-page white paper expands on the rationale put forward by Attorney General Eric Holder last year in a speech at Northwestern University. If you thought that argument was disturbingly unconstitutional, then this one is going to make your blood boil.
According to the paper, the US government can kill you without due process if an “informed, high-level official of the US government” concludes that you “pose an imminent threat of violent attack against the United States.” At first sight this may sound like a limit on extrajudicial killings, but don’t be fooled because the government has redefined the meaning of “imminence”:
“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 ACLU’s Jameel Jaffer points out that the paper similarly redefines what it means for “capture [to be] infeasible”:
It initially sounds like a real limitation but by page 8 it seems to mean only that the government won’t use lethal force if capture is more convenient. It’s the language of limits—but without any real restrictions.,It’s the language of limits—but without any real restrictions.
And don’t think for one second that your constitutionally protected right to due process can save you because the Obama administration has determined that they can never be challenged in a court. “There exists no appropriate judicial forum to evaluate these constitutional considerations,” says the paper.
It also reaffirms the US government’s belief that the entire globe is a legitimate battlefield even when the targeted person is not engaged in hostilities. Legitimate targets are consistently referred to as senior members “of al-Qa’ida or its associated forces”, though the US government has yet to define what constitutes “associated forces.” Jaffer writes “the government has the authority to carry out targeted killings of U.S. citizens without presenting evidence to a judge before the fact or after, and indeed without even acknowledging to the courts or to the public that the authority has been exercised. Without saying so explicitly, the government claims the authority to kill American terrorism suspects in secret.”
Jaffer’s critique goes on to tackle the legal jargon used in the paper in defense of extrajudicial killings of Americans:
Some of the white paper’s key legal arguments don’t stand up to even cursory review. The paper omits crucial language from Mathews v. Eldridge, a case in which the Supreme Court held that the question of what process must be afforded to a person before he is deprived of life or liberty must take into account “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards.” The white paper skips over this language, like the attorney general’s speech did. While the white paper does acknowledge “the risk of erroneous deprivation of a citizen’s life,” it doesn’t grapple with the possibility of additional procedural safeguards. And when the white paper dismisses the possibility of judicial review, it does so in a single paragraph that fails even to acknowledge the possibility of after-the-fact judicial review of the kind that our courts routinely provide in other contexts.
(Incidentally, this after-the-fact judicial review is what the ACLU and CCR are seeking in Al-Aulaqi v. Panetta, a case now pending before the district court in D.C. We’ll be filing our principal brief in that case tomorrow).
The white paper also suggests, incorrectly, that the courts have endorsed the view that there is no geographic limitation on the government’s exercise of war powers. In fact all of the cases in which the D.C. Circuit has upheld the detention of a prisoner held at Guantanamo involved a connection of some kind to Afghanistan. And, more important, the Supreme Court case on which the white paper relies most heavily involved an American who was detained in Afghanistan. You can’t reasonably read a case that permitted the military detention of an American on an actual battlefield to supply a green light for the extrajudicial killing of American terrorism suspects anywhere in the world.
Finally, the white paper assumes a key conclusion: It takes as a given that the target of the strike will be a “senior operational leader of al-Qa’ida or an associated force of al-Qa’ida,” and it reasons from that premise that judicial process is unnecessary. This is a little bit like assuming that the defendant is guilty and then asking whether it’s useful to have a trial. Perhaps the white paper omits analysis that appears in the Justice Department’s legal memos, but again the legal memos are, inexcusably, still secret.
A significant portion of Obama supporters and self-defined Democrats will probably ignore this and continue to defend the administration from criticism simply because it’s their team recklessly abusing their power. But they fail to understand that targeted killings of Americans, as codified by their dear President Obama, will continue long after he leaves office. So even if Obama can indeed be trusted to carry out due-process free executions of US citizens abroad, these powers will be passed down to all future presidents, including republicans.
Anyone who defends this practice today is essentially declaring that they’re comfortable with a future President Palin killing Americans in secret.