On Monday, NBC News released a 2011 Department of Justice White Paper which outlined the Obama Administration’s legal defense of the use of “targeted killings” against U.S. citizens overseas believed to be members of al-Qaeda. While the American public is hotly debating the constitutional issues arising from government attempts to legislate “gun control,” it seems largely mute about those arising from the clandestine use of drones to target American citizens abroad. Yet the legal, ethical, and moral questions raised by this issue, and by the Obama Administration’s attempt to justify the practice of targeted assassination, are profound.
The White Paper lays out three conditions by which a targeted assassination of a U.S. citizen abroad would be considered legal, and hence would not violate the Fifth Amendment’s Due Process clause:
- If “an informed, high-level official” of the U.S. government has determined that the target poses an “imminent threat” of violent attack against the U.S.
- Capturing the target is infeasible
- The operation is conducted in a manner consistent with the applicable law of war principles.
Unfortunately, most of the important terms and concepts used in the paper are ill-defined or are defined in such a manner as to render the term effectively meaningless. For example, an imminent threat almost always implies an immediate, present threat. However, the DOJ argues on page 7 of the White Paper that this definition “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.”
In fact, the White Paper hardly requires the executive branch to produce any evidence at all about a number of things: demonstrating the target is a senior operational leader of al-Qaeda, that the threat of potential violent attack posed by the target merits assassination as a necessary means of redress, or that reasonable measures are being taken to try to capture a target before concluding assassination is necessary. And even if such evidence were produced, who would be responsible for evaluating it? A sole, high-level official in the executive branch? If so, where are the checks and balances against the concentration of power upon which the U.S. Constitution is founded? Could a high-ranking military officer sign off on the operation and if so, would that violate the principle of civilian control of the military?
The events of 9/11 have left the U.S. government in a difficult position. The president has a constitutional duty to defend the country, but must do so in a manner consistent with the legal, ethical, and moral constraints imposed by law and by the will of the American people. So far, government attempts to justify some of the tactics used to fight the war on terror have raised more questions than they’ve answered. If the Obama Administration has made one thing clear, it is that drone warfare and targeted assassination is going to be an integral part of the future of the American way of war. If so, then it is incumbent upon the government to demonstrate convincingly that its actions are consistent with the letter and spirit of the Constitution and the moral principles the U.S. purports to uphold. This White Paper does not do that.