On Monday, NBC journalist Michael Isikoff published a document, known as the Department of Justice White Paper, which summarizes the Obama administration's arguments in favor of the murdering of American citizens via drone strikes. The longer version, which is 50-60 pages in length and was written in 2010 by the Justice Department's Office of Legal Counsel to justify the addition of U.S. citizen Anwar Al-Awlaki to the government's "kill lists." That legal memo is one of the documents currently being sought by the American Civil Liberties Union in an ongoing Freedom of Information Act lawsuit.
The main conclusion of the paper is that "it would be lawful for the United States to conduct a lethal operation outside the United States against a U.S. citizen who is a senior, operational leader of al-Qa'ida or an associated force of al-Qa'ida without violating the Constitution or...federal statutes...under the following conditions: (1) 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 States; (2) capture is infeasible, and the United States continues to monitor whether capture becomes feasible; and (3) the operation is conducted in a manner consistent with the four fundamental principles of the laws of war governing the use of force"—i.e., "necessity, distinction, proportionality, and humanity."
This and other conclusions within the paper present several major ethical problems. First, the determination of whether someone is "a senior, operational leader of al-Qa'ida or an associated force of al-Qa'ida" is made entirely within the executive branch, with no legislative oversight or judicial review. The right to a fair trial before being found guilty of a capital crime, sentenced to death, and executed has been part of American and English legal tradition for centuries. The matter is exacerbated by the fact that who makes this determination could very well be the same person who determines "that the targeted individual poses an imminent threat of violent attack against the United States" and that "capture is infeasible." Add to this the fact that the paper claims that the government has the authority to murder U.S. citizens without presenting evidence to a judge before the fact or after. While the paper says so implicitly, the government is claiming the authority to kill American citizens who are suspected of terrorism in complete secrecy.
Second, the paper bends the word "imminent" until it breaks. "Where the al-Qa'ida member in question has recently been involved in activities posing an imminent threat of violent attack against the United States, and there is no evidence suggesting that he has renounced or abandoned such activities, that member's involvement in al-Qa'ida's continuing terrorist campaign against the United States would support the conclusion that the member poses an imminent threat...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," which means that not only is the word "imminent" so vague in this context as to be essentially meaningless, and not only does the government claim the authority to murder U.S. citizens without presenting evidence to a judge before the fact or after, but that there is not even a requirement to have clear evidence at all.
Third, the paper claims to justify expanded foreign interventionism, saying, "None of the three branches of the U.S. Government has identified a strict geographical limit on the permissible scope of the AUMF's authorization," and bending Common Article 3 of the Geneva Conventions to say that a conflict between a state and a transnational non-state actor is "not of an international nature" because it is not a "clash between nations." The paper says, "a lethal operation in a foreign country would be consistent with international legal principles of sovereignty and neutrality if it were conducted, for example, with the consent of the host nation's government or after a determination that the host nation is unable or unwilling to suppress the threat posed by the individual targeted." This is a complicated way of saying that the state murdering someone on foreign soil is acceptable, regardless of what the owners of that property have to say about it. This is one of the grossest imaginable violations of property rights. There is also the implication that such an operation performed by another nation on American soil would be justifiable.
Fourth, the ideology promoted by the paper could perpetuate the War on Terrorism. The paper describes al-Qa'ida as "a terrorist organization engaged in constant plotting" against the U.S. While this may be true at the moment, there will come a time when this is no longer the case, as all organizations created by man eventually fail. This means that if the U.S. government outlasts al-Qa'ida, then its leaders could claim that such a threat still exists, allowing the executive branch to continue murdering American citizens using a fabricated pretext.
Fifth, the words "armed" and "violent" are never defined within the paper, presumably so that government officials can define them as needed for any situation. This means that anti-government protesters, members of Anonymous, or others deemed undesirable by government officials could be defined as targets and murdered.
Finally, there may be other situations in which the president believes he has the authority to order the murder of someone whom he perceives as an enemy. As the Justice Department repeatedly warns, "This paper does not attempt to determine the minimum requirements necessary to render such an operation lawful, nor does it assess what might be required to render a lethal operation against a U.S. citizen lawful in other circumstances." This means that the spectrum of use for the power of the executive branch to murder American citizens is broader than stated above, and is probably currently undefined.
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