Killing is serious business in America.
No crime bears more consequence in the US judicial system than the taking of a life. Indeed, only after a trial by peers and the exhaustive process of lengthy legal appeals, that the state is empowered to lawfully take the life of an American, through the death penalty.
It is in this context of life, the state and foundational rights that makes the latest news out of the Obama Justice Department so deeply troubling.
Thanks to NBC News, we now have a secret 16-page Justice Department memo that creates the legal framework where the US government can lawfully kill an American citizen, anywhere in the world, if that person meets conditions created and enforced by the Executive branch.
Not public debate. No legislation. No judicial review.
Because of that, the Justice Department assertions in this “white paper” easily rate as one of the most extraordinary expansions of Executive power in modern American history, breathtaking in its scope – horrifying in its implications that all Americans should take note of.
The memo’s birth was forced by the confluence of two trends; the evolution of the conflicts we fight, and the rapid innovation of the military technology used in this new combat.
We all know that sectarian and political grievance, the appearance of “failed states” and the rise of modern society have created the conditions for trans-national terrorism that has been the scourge of the 21st century. At the same time, the perfection of sensors, the integration of intelligence and the advances in drone technology have now made it possible for the US military to adapt and target those terrorist cells with unprecedented accuracy.
For the first time in American history, the Commander in Chief has the ability to target a single enemy, almost anywhere on earth, in near, real-time, without the requirement for American boots on the ground or the fall-out from massive collateral damage.
This new capability represents a revolution in warfare that has allowed the United States to decimate Al Qaeda in Pakistan/Afghanistan, while respond rapidly as new terror cells emerge in other areas of the world, all in the service of preventing new terror attacks on America and her allies.
The Justice memo attempts to reconcile the use of this new military capability when the proposed target is an American citizen, ostensibly operating with a terrorist cell; a rare, but real and present legal situation. The memo fails spectacularly in this task, as it is premised not on accommodating American legal protections and due process, but in creating an specious argument that those protections are not absolute. The memo leaves us with, at best, an unconvincing case that the guaranteed constitutional rights of Americans can be stripped away at the convenience of the Executive branch. Worse, however, left uncontested, the memo creates a frightening new precedent for a wholesale expansion of Executive power in the future, well in excess of that delineated in the Justice memo, and all to the detriment of the rights of American citizens writ large.
The problems begin in the criteria.
The Justice memo lays out three, broad criteria where the authorized killing of Americans abroad by the US government would be lawful. 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 US, 2) capture is infeasible; and 3) the operation would be conducted in a manner consistent with applicable laws of war.
Let’s take them one at a time.
“An informed high level official of the USG has determined that the targeted individual poses an imminent threat of violent attack against the US.”
You would think that “imminent threat” is fairly self explanatory, but alas it is not; at least not the way the memo defines it.
According to Justice, “imminent threat” “does not require the US to have clear evidence that a specific attack on the US and interests will take place in the immediate future.”
To highlight the absurdity of this condition, consider the Bush era debate about enhanced interrogation techniques.
The liberal critique, echoed by President Obama in 2008, was that there were no conditions when the use of those non-lethal techniques on a non-American enemy combatant would be appropriate; even if there was actionable intelligence of an imminent attack on US soil that could cost thousands of lives.
Today, those same people staffing the Obama administration are stating that the President has the authority to kill an American citizen abroad – without due process of law – even if there is no clear evidence of a pending attack.
It is surreal.
The second condition is, “capture is infeasible…”
Again, it seems pretty straight forward until Justice provides context.
With regard to capture, Justice stipulates that, “…capture would not be feasible if it could not be physically effectuated during the relevant window of opportunity or if the relevant country were to decline to consent to a capture operation.”
You might want to read that again.
According to Justice, the United States government could lawfully kill an American – without due process – if a tin-pot dictator of a failed-state did not want American troops in his country on a particular day.
So, now the rights of an American citizen are now to be determined by the whims of failed state government?
Finally, the third condition requires that, “the operation would be conducted in a manner consistent with applicable laws of war.’
While fairly straight forward, the memo’s context is thick with irony.
To support its case, the Justice Department relies on memos prepared by the George W. Bush administration. If that wasn’t enough to rile liberals, the memo further justifies its actions under international law by stating what the Hague convention” does not explicitly prohibit.”
A downright “Bushian” construct and a fairly eye-popping premise for this Administration, at least in terms of what was promised to the American people in 2008.
Honestly, does anyone in the Justice Department remember candidate Obama’s campaign in 2008, and his specific assertions regarding US conduct in the War on Terror and adherence to international conventions?
Do any Americans remember?
From a broader perspective, the memo cannot stand scrutiny structurally as Justice must premise its new targeting regime on statutes, laws and opinions that were never intended to target a single individual, let alone an American.
Justice is necessarily forced to rely on a suspect causation argument to try and achieve legitimacy.
Yes, in 2001, Congress did authorize the use of necessary and appropriate force to deal with Al Qaeda. And yes, an American who joined Al Qaeda would fall into a basket of those who risked attack – and death – at the hands of US forces because of that authorization of force.
But there is a crucial distinction between attacking an enemy compound in pursuit of a strategic/tactical military advantage, where an American sympathizer might be part of the unknown collateral damage of battle (John Walker Linh the “American Taliban” comes to mind), and pro-actively selecting an American and targeting that individual for death because of that association.
Justice never recognizes the difference; nor the inescapable due process requirement inherent in it.
While it is true, as Justice states, that, “The US citizenship of a leader of Al Qaeda or its associated forces…does not give that person constitutional immunity from attack,” it is equally true that this lack of immunity does not confer upon the US government an immunity from its constitutional responsibility to due process for American citizens.
Yet Justice explores no middle ground solution that provides for national security as well as due process.
Indeed, Justice assumes dubious absolutes as when the memo states, “”the intrusion of any Fourth Amendment interests [for the individual] would be outweighed by the importance of the governmental interests that justify the intrusion.”
Did the Justice Department just say that the US government can decide if and when the Fourth amendment applies, based on its own criteria?
It would make one wonder what SCOTUS might have to say about that. But the enterprising Obama Justice Department proffers a quick and easy answer here as well.
”Finally the Department notes that under the circumstances described in this paper, there exists no appropriate judicial forum to evaluate these constitutional considerations.”
Take that, SCOTUS.
So, here is where the memo leaves us.
The weighty, foundational constitutional questions involved with the US government killing its citizens without due process are so complex and intricate, the balance between individual rights and government action is so precarious, that only the Executive has the ability to make judgment calls.
That is arrogant presumption on a level rarely attempted let alone achieved. It is at odds with over 200 years of recorded history and judicial precedent
It is both an offense and offensive.
And it need not be this way.
We do not need to make a choice between our guaranteed liberties and our national security.
Congress can authorize a process, not unlike that created for non-American detainees in Gitmo. Evidence against an American working with terrorist entities could be provided to a type of grand jury. If the grand jury returns an indictment, a tribunal could be impaneled to consider the conditionalities and remedies available to the US government along the lines laid out by the Justice Department in the memo (though vastly more specific).
It is only an idea. Probably one idea of multitudes.
Let us all get a conversation going.
There will be those who will see no merit in attempting to preserve the legal rights of an American traitor. If you go over to the other side, you get what you had coming.
But the fact remains that the loss of inalienable rights by one American at the hands of their government, is a loss of rights for all Americans.
And no matter what the offense, as evil and malicious as it may be (think Timothy McKee here); every American is entitled to due process of law. Nobody, least of all some unnamed officials in the Executive Branch gets to arbitrarily decide who is protected by the Constitution and who isn’t.
The Declaration of Independence spoke of natural rights that come from God, not governments. The US Constitution was the fullest expression of guaranteed rights and enumerated powers, limiting government.
At the end of the day, it means something to be an American.
That is both a gift and a responsibility.
It is also fleeting if left unprotected.