NBC has obtained a white paper explaining to some extent the Executive Branch's rationale for the targeted drone killing of Americans overseas. As one might expect, it's long on the president's obligation to safeguard Americans and short on definitions, explanations or legal foundation. Essentially, it boils down to "'cause we say so."
Via the New York Times:
Obama administration lawyers have asserted that it would be lawful to kill a United States citizen if “an informed, high-level official” of the government decided that the target was a ranking figure in Al Qaeda who posed “an imminent threat of violent attack against the United States” and if his capture was not feasible.
It adopts an elastic definition of an “imminent” threat, saying it is not necessary for a specific attack to be in process when a target is found if the target is generally engaged in terrorist activities aimed at the United States. And it asserts that courts should not play a role in reviewing or restraining such decisions.
The white paper states that “judicial enforcement of such orders would require the court to supervise inherently predictive judgments by the president and his national security advisers as to when and how to use force against a member of an enemy force against which Congress has authorized the use of force.”
The paper, a rhetorical exercise in drawing circles, cherry-picks aspects of American law, international law of war and the metaphysical need of protecting life, while ignoring the most basic problems inherent in the idea that one branch of government, on its own and without review by any other, can decide when an American citizen is sufficiently dangerous that he can be killed.
Targeting a member of an enemy force who poses an imminent threat of violent attack to the United States is not unlawful. It is a lawful act of national self defense.
This is war because Congress says so. The president has a duty to defend the nation because Congress says so. And if a person is deemed a threat, now or later or whenever because it's hard to say when war isn't quite war, the president has the authority to execute a "lethal operation" to take him out.
Due process?
Were the target of a lethal operation a U.S. citizen who may have rights under the Due Process Clause and the Fourth Amendment, that individual's citizenship would not immunize him from a lethaI operation. Under the traditional due process balancing analysis of Mathews v. Eldridge, we recognize that there is no private interest more weighty than a person's interest in his life. But that interest must be balanced against the United States' interest in forestalling the threat of violence and death to other Americans that arises from an individual who is a senior operational leader of al-Q'aida or an associated force of al-Q'aida and who is engaged in plotting against the United States.On the one side, there is the "weighty" interest in a person's life. On the other, there is the interest in "forestalling the threat of violence" by someone "plotting" against us. So the president gets to do his own balancing test and decide. Not that this changes the equation much, but without even the barest limitation of actual definition of who is a "senior operational leader" or how imminent the threat being plotted might be. If one was to be cynical about this, this is essentially carte blanche to wipe out anyone involved, including American citizens.
Consider whether anyone decided to hand over this degree of power to kill to the president:
This is the quintessential "might makes right" argument, justified by the government's paternalistic "trust me" rationale. If they kill them, they deserve it. Why? Because we say so.Hina Shamsi, director of the American Civil Liberties Union’s National Security Project, called the paper “a profoundly disturbing document,” and said: “It’s hard to believe that it was produced in a democracy built on a system of checks and balances. It summarizes in cold legal terms a stunning overreach of executive authority — the claimed power to declare Americans a threat and kill them far from a recognized battlefield and without any judicial involvement.”
To the extent we hold dear certain values that distinguish America, the ones we use whenever questioned as to what makes our constitutional republic a better place than other nations, this white paper renders them empty and meaningless. Either we adhere to American constitutional values, all the time and even when it's inconvenient, or it's a free for all.
The Executive Branch has spoken. It says that in the name of protecting America, we give up the values that make America what it is. And that is all they have to offer.