Every normal man must be tempted, at times, to spit on his hands, hoist the black flag, and begin slitting throats. –H.L. Mencken
A Department of Justice white paper titled “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qa’ida or An Associated Force” has been leaked to the public via NBC News.
This 16-page paper purports to provide a legal reason why it’s OK for the president to order the drone murder of US citizens in foreign countries.
It is flawed in a number of ways, not the least of which is morally.
The paper’s conclusion is:
In view of these interests and practical considerations, the United States would be able to use lethal force against a U.S. citizen, who is located outside the United States and is an operational leader continually planning attacks against the US. persons and interests, in at least the following circumstances: (1) where an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United Sates; (2) where a capture operation would be infeasible — and where those conducting the operation continue to monitor whether capture becomes feasible; and (3) where such an operation would be conducted consistent with applicable law of war principles. In these circumstances, the “realities” of the conflict and the weight of the government’s interest in protecting its citizens from an imminent attack are such that the Constitution would not require the government to provide further process to such a U.S. citizen before using lethal force.
This is obviously not intended to be a reasoned legal opinion. Rather, it is a “get out of jail free card” for the president and anyone else involved in the murder of Americans without due process should the issue ever really get pressed.
The phrase “senior operational leader” is used repeatedly, referring to the leaders of terrorists groups, but “senior” is never defined, so presumably it could mean anyone.
The DOJ also says that as long as the murder is authorized by an “informed, high-level official”, then it’s OK. Again, there’s no definition for what “informed” or “high-level” mean.
One of the criteria to make murder OK is that capturing the American citizen is “infeasible”. Again, no definition of what that means.
The paper states that all such “operations” (the government loves euphemisms for murder) should comply with the principles of war including necessity, distinction, proportionality, and humanity. (If someone knows how you can wage a war humanely, please let me know.) They go on to state that these murders should not be conducted if there will be “excessive civilian casualties”. Apparently whoever order the drone murder of Anwar Al-Awlaki didn’t read this memo, or doesn’t consider 16-year old children to be excessive.
And just to make sure no one gets to question this, the DOJ states that there exists “no appropriate judicial forum” for reviewing these murders. In other words: “You can’t see our drone murder list, it would compromise national security, and that’s more important than your life.”
The paper is clear to distinguish between lawful and unlawful killing, telling us that as long as it’s written on a piece of paper that it’s OK to murder people without charges, prosecution, trial, or appeal, there’s no need to worry.
The paper also states that killing people who are “taking no active part in the hostilities” or are hors de combat, is OK if they’ve been labeled as a “senior operational leader”. In other words: “We take no prisoners and no one will be given a chance to surrender.”
It’s worthy to note that virtually all of the legal decisions cited in favor of this opinion were rendered since 2001. One that is repeatedly quoted is Hamdi v. Rumsfeld, in which the court ruled in favor of Rumsfeld. How convenient.
If an American citizen can be murdered in another country based on the say-so of a few or even one man, then anyone, anywhere, at anytime can be murdered, and there will be no recourse. If killing someone along with their children because capture is “infeasible” is OK now, how long before the FBI uses a bomb to kill someone who’s taken his children hostage because it’s “infeasible” to apprehend them?
Anyone who thinks there is no cause for alarm here, as this only applies to terrorists in other countries, is in denial or naive.
In effect, this paper tells us that the president can be judge, jury, and executioner, with no review or oversight.
If that isn’t totalitarian, I don’t know what is.