5 Disturbing Aspects of the DOJ White Paper on the President's License to Kill

The Justice Department white paper on "The 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," noted earlier tonight by Mike Riggs, fills in the fine print of the license to kill claimed by President Obama in several ways, none of them reassuring. The main conclusion of the paper, which was obtained by NBC News, 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." Here are five points worth highlighting:

1. There may be other situations in which the president believes he has the authority to order the death of someone 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."

2. The determination of whether someone is in fact "a senior, operational leader of al-Qa'ida or an associated force" is made entirely within the executive branch, presumably by the same "informed, high-level official" who decides whether the target is an imminent threat.

3. The "imminent threat" determination is not really a distinct step in the process of authorizing summary execution by drone. "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 paper explains. For example, "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." In other words, identifying someone as a current or past operational leader is pretty much the same as deciding he poses an imminent threat.

4. Although the requirement that capture be "infeasible" could be read as ruling out targeted killings within the United States or in friendly countries willing and able to assist in the apprehension of suspected terrorists, the paper identifies no geographic limit on lethal strikes against people deemed to be imminent threats. It explicitly rejects the notion that attacks should be limited to "the zone of active hostilities." (Hence the drone strikes in Pakistan and Yemen.) As for obtaining permission from the government of the country where the target is located, 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." In other words, firing missiles at a suspected terrorist is permissible under international law only if the host nation's government 1) agrees to allow the attack or 2) refuses to allow the attack.

5. Although permission from the host nation's government clearly is not required for a drone attack, the white paper says capture may be deemed "infeasible" if "the relevant country were to decline to consent to a capture operation." The president also may decide to kill rather than capture if he believes the latter would pose "undue risk to U.S. personnel." And lest you think that the determination of whether death by drone is justified would benefit from a second opinion, the white paper notes that "feasibility would be a highly fact-specific and potentially time-sensitive inquiry"—i.e., not the sort of thing anyone outside the executive branch should be second-guessing.

More generally, the white paper fleshes out the Obama administration's argument that U.S. citizens killed by drones are getting all the process that is appropriate in the circumstances; hence the Fifth Amendment, though implicated, is not violated. And since these targeted killings are lawful acts of self-defense, the Justice Department says, they do not violate the law against killing U.S. nationals in foreign countries or the executive order banning assassination. After all, "A lawful killing in self-defense is not an assassination." Duh.

The problem is that to accept this position, you have to put complete trust in the competence, wisdom, and ethics of the president, his underlings, and their successors. You have to believe they are properly defining and inerrantly identifying people who pose an imminent (or quasi-imminent) threat to national security and eliminating that threat through the only feasible means, which involves blowing people up from a distance. If mere mortals deserved that kind of faith, we would not need a Fifth Amendment, or the rest of the Constitution.

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  • Archduke Pantsfan||

    Have the squirrels been drone-striked tonight?

  • Archduke Pantsfan||

    Have the squirrels been drone-striked tonight?

  • Archduke Pantsfan||

    Have the squirrels been drone-striked tonight?

  • Harborseal||

    Obama's justification for having the authority to kill US citizens: "Because I feel like it."
    It might have taken 16 pages, but that's pretty much what it means.

  • DaveAnthony||

    Fuck you, that's why?

  • RightNut||

    Subpoena the fucking president. I think we deserve some explanation on why American lives are forfeit at his will.

  • Heroic Mulatto||

    It's Obama's America, the rest of us are just living in it.

  • C. Anacreon||

    I guess someone had to fill Sinatra's void.

  • Agammamon||

    ". . . conduct a lethal operation outside the United States against a U.S. citizen. . . "

    Personally, I'm of the opinion that if federal government can apply US law to the actions of US citizens outside its borders then it should be bound to provide the *protections* of US law.

  • ||

    In other words, firing missiles at a suspected terrorist is permissible under international law only if the host nation's government 1) agrees to allow the attack or 2) refuses to allow the attack.

    I think not one but three one-trillion-dollar platinum coins should have been minted: one with two heads, one with two tails and a regular one which could be displayed to show that all three are fair coins.

  • Gray Ghost||

    OT:

    Not sure if we've talked about this yet, but Ron Paul, bless his sweet heart, decided to opine on the Chris Kyle shooting. FTA, Ron Paul tweeted:

    Chris Kyle’s death seems to confirm that ‘he who lives by the sword dies by the sword.’ Treating PTSD at a firing range doesn’t make sense.

    Even if the good Dr. is right---and I don't believe that it's as open and shut as he seems to think---WTF?!

    A Ron Paul Presidency certainly would have been entertaining...

  • Calidissident||

    There was a 400+ comment thread on this earlier

  • Gray Ghost||

    Thx.

    Could have sworn I scrolled down through the old posts and didn't see it. Oh well.

  • ||

    Don't worry, I'm sure your comment can garner AT LEAST as many responses.

  • Gray Ghost||

    Just slogged through that thread, and the blind love some commenters have for Ron Paul is eerily reminiscent of the defenses for Obama that you read in, e.g., Salon. Nowhere near as dangerous---cause Ron ain't getting near power anytime soon---but the similarities are really funny to watch.

    Think Rob and Warty came the closest to deciphering just what the hell Paul was thinking: the sword of the U.S.'s immoral actions overseas led to the PTSD that causes this guy to kill two people. And it was expressed in Paul's usual convoluted manner. Christ, if there ever was a politician whose expression was completely antithetical to Twitter...

    I'm not entirely unhappy that Paul didn't win the nomination. Just too many examples during his campaign of WTF? judgement or lack of same, to make me comfortable with the idea of him as the Chief Executive. Moral conscience and chief ideologue, sure, but not the guy you'd actually trust to run the show.

    He'd have made an interesting SecTreas though.

  • Calidissident||

    "I'm not entirely unhappy that Paul didn't win the nomination. Just too many examples during his campaign of WTF? judgement or lack of same, to make me comfortable with the idea of him as the Chief Executive. Moral conscience and chief ideologue, sure, but not the guy you'd actually trust to run the show."

    As I said in the thread, I think the tweet was stupid even if Paul's intentions were not to offend or incite, and I'm not a blind follower who agrees with him on every issue (I did vote for him in the primary). And I have issues with giving any man the power we have given to our chief executive. That said, I would still much rather have Ron Paul in that office than Obama, Romney, or anyone who has occupied it in recent years. Paul's shortcomings pale in comparison to the corrupt and downright evil shit that others have done or would do if given the power.

  • Gray Ghost||

    I'd be O.K. with competent but corrupt, over incompetent and pure. Shit, just appoint competent secretaries and get out of their way (see, Reagan). Even that would be much, much better than what we have now.

    I agree Paul'd have been infinitely better than O or W or (probably) Romney. But I'd have preferred Johnson to Paul, for a position that actually requires executive experience. IIRC, I voted for Paul in the primary too, not that it mattered by the time the show got to Texas.

  • Calidissident||

    The thing is, lately, we've been getting incompotent and corrupt

  • Tulpa (LAOL-PA)||

    That said, I would still much rather have Ron Paul in that office than Obama, Romney, or anyone who has occupied it in recent years.

    Me too. Problem is you have to get elected first, which is where Paul's WTF moments, skeletons in the closet, and refusal to compromise the slightest bit would cause trouble. Obama vs Paul would have made Reagan vs Mondale look competitive.

  • ||

    So basically, if the President decides someone should be thrown under the prison, he can ask a sovereign country to arrest the accused person and deliver them to the U.S.; If the country refuses, for example due to a lack of evidence to support an arrest, then that alone justifies an assassination.

    Obama is setting all kinds of precedents in international law here. Air strikes without boots-on-the-ground is not an act of war, assassination of people you don't like is not a criminal act... but I bet if someone sent a drone after Obama, he'd be screaming about a crime being committed and declaring war...

  • ||

    According to the Obama administration, capturing someone in a country without that country's permission is illegal, but KILLING someone in a country without that country's permission is a ok.

  • Number 2||

    Correct me if I am wrong, but didn't the old Soviet Union set the precedent here - targeted assassination of nationals in foreign lands who were perceived as "threats" to the security of the people? The only difference is that the Soviets used poison-tipped umbrellas instead of drones.

  • Tulpa (LAOL-PA)||

    I was unaware we were bound by Soviet precedents.

  • Meerkatx||

    You forgot axes, in possibly their most famous killing of a Russian on foreign soil. I bet some of our current CIA operatives would enjoy using axes.

  • DEG||

    I wonder what this will mean for Kim Dotcom and Julian Assuange.

  • Jerryskids||

    If mere mortals deserved that kind of faith, we would not need a Fifth Amendment, or the rest of the Constitution.

    It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

    Sadly, I think, every day there are fewer and fewer people who see an all-powerful government as more of a danger to be feared than as a boon to be embraced.

  • Paul.||

    Free stuff.

  • sasob||

    I wouldn't put much faith in angels either - Satan was originally an angel.

  • ||

    I just clicked on a clip of Penn Jillette and Piers Morgan talking and Piers states outright that he thinks it's the government's job to take care of us (his words), and that that's why we elect them. It's terribly depressing how many people believe that.

  • Alan||

    I see a comedy in our future, about an American citizen abroad who is mistaken for a leader of Al Qaeda.

    Bonus points if he's identified by agents who are torturing an innocent arab and mistake the arabic equivalent of "ouch! that hurts!" for his name.

  • James Anderson Merritt||

    "I see a comedy in our future, about an American citizen abroad who is mistaken for a leader of Al Qaeda."

    Sort of like "Born in East L.A." but for Mesopotamian-Americans, 'eh? "Born in East Lansing," perhaps. I'll be looking for it on Netflix.

  • ||

    I just had an idea... how about a comedy movie about a movie cast shooting in the mountains of Afghanistan that gets mistaken for a bunch of terrorists by a drone bomber? Could be kind of a mix of "The Party" and "Tropic Thunder", although hopefully funnier than the latter.

  • Archduke Pantsfan||

    weekend at Osamas?

  • ||

    We can throw around titles once the script is written, the first thought I had was some play on words like "Jihad To Be You". But I've gotta get finished with the Dan Marino/Einhorn love child movie first, "Ace Ventura: Two Minute Drill"

  • Tulpa (LAOL-PA)||

    Better hope the producer doesn't have anything the feds can arrest him for first.

  • Anonymous Coward||

    The problem is that to accept this position, you have to put complete trust in the competence, wisdom, and ethics of the president, his underlings, and their successors.

    Given the last four Presidents, I don't know if I should be planning my escape route, or making my reservation for the re-education camp.

  • Archduke Pantsfan||

    I recommend expedia

  • ||

    ???

    Is that some sort of expatriate wikipedia?

  • John C. Randolph||

    The fifth amendment is not ambiguous. The operative phrase is "due process OF LAW".

    Whatever kind of circle-jerking the president does with his minions as they decide to kill someone, it is NOT the process of LAW. The process of law is a matter for a grand jury or a courtroom. Without an indictment or a conviction, a letter of marque issued by the congress, or a declaration of war, blowing somebody up by remote control is a murder.

    -jcr

  • Number 2||

    So where is all the outrage from the civil rights groups, newspaper editorialists, legal community, the anti war movement, etc., who went ballistic over George W. Bush merely tapping phone calls?

    And the reformers from the 1970s who considered targeted assassination by the CIA to be the first step toward undermining the Constitution?

    Need I really ask?

  • ||

    They're still trying to figure out their Obamaphone and count their free shit.

  • Tulpa (LAOL-PA)||

    ACLU has been suing to get the full legal justification, of which this is a summary, for years, but has been stonewalled by the administration and its highly deferent pals in the courts.

    The other groups you mention have been shamefully silent.

  • Government Hack||

    The New Yorker had a piece on this:

    http://www.newyorker.com/onlin.....pture.html

  • wlion||

    til I saw the check which said $7346, I have faith ...that...my best friend was like actually bringing in money parttime on-line.. there sisters roommate haz done this 4 less than 13 months and a short time ago repayed the mortgage on their apartment and got a top of the range Citroën 2CV. we looked here, http://xurl.es/wiu4z

  • waaminn||

    Well we all know they have nothing but spare time on their hands at the DOJ!

    www.ImAnon.tk

  • JW||

    For example, "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."

    He's imminent! He could go off within several years!

  • MOFO.||

    If this is being reported by NBC, we should take it with a huge grain of salt. Lets not forget that this is a 'news' organization that has a less than stellar reputation for fact checking.

  • MFMars||

    It's ironic isn't it? The biggest thing going on right now is the gun control debate about banning certain firearms. The second Amendment provides us the ability to protect against a tyrannical government, but the gun control advocates say we would never need to worry about this in this day and age.

    With this idea, that we don't need the second amendment, in mind, what is to stop the administration from using this SOP to start targeting people in the states. The fact that it is written so vaguely allows them to make any claims they want about anybody they want.

    Kind of a scary thought, huh...

  • Capt Ace Rimmer||

    They take medals back for doping they might want to take that Nobel Peace prize back for tyranny.

  • Capt Ace Rimmer||

    These presidents always talk about their legacy. Here's your legacy assholes (Bush & Obama).

  • Gamblorr||

    I propose an alternative alternative text. "Would you trust me? I would trust me..."

  • Thogek||

    Pretty much regardless of why,...
    Does the fact that the current occupant of the office of the President has assumed authority to conduct a "Lethal Operation Directed Against a U.S. Citizen" smell a bit of an undeclared state of Martial Law?

  • Neville3||

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