Posted by on February 07, 2013 in Blog

Earlier this week, NBC News released a Department of Justice memo outlining the administration’s legal rationale for the targeted killing of American citizens. 

The white paper specifically mentions the targeting of American citizens who are believed to be “senior operational leaders of al-Qa’ida” or an “associated force of al-Qa’ida,” defined as an “al-Qa’ida leader actively engaged in planning operations to kill Americans.” The paper from the outset, however, says that it will not set out the minimum requirements necessary “to render such an operation lawful.” The memo also says that “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 memo stipulates that as commander-in-chief, the president has the constitutional authority to protect the country and has the authority to respond to imminent threats posed by al-Qa’ida. In support of presidential authority, the memo cites the Congressional authority provided by the Authorization for Use of Military Force (AUMF), passed in response to the attacks of 9/11. AUMF grants authority to the President to use all “necessary and appropriate force” against those determined to have “planned, authorized, committed or aided” in the 9/11 attacks. The statute, however, has been interpreted broadly to include the targeted killing of individuals far from any battlefield. Because of the overly broad interpretation of the statute, congressional members have since attempted to repeal the law.

The DOJ argues that the president has constitutional authority to defend the country and therefore to target these individuals because “suspected terrorists” forfeited any rights and privileges they shared as American citizens once they joined al-Qa’ida and targeted Americans. According to the memo though, no active information about specific attacks is required to justify a targeted strike.

“A lawful killing in self-defense is not an assassination,” the memo reads. “In the Department’s view, a lethal operation conducted against a U.S. citizen whose conduct poses an imminent threat of violent attack against the United States would be a legitimate act of national self-defense that would not violate the assassination ban. Similarly, the use of lethal force, consistent with the laws of war, against an individual who is a legitimate military target would be lawful and would not violate the assassination ban.”

What’s extremely troubling about this memo is the extremely expansive interpretation of the terms “imminent” and “armed conflict,” which provide the president with overarching authority to kill American citizens seemingly anywhere in the world.

Clearly stipulated in the US Constitution, outside of armed conflict zones, the use of lethal force is strictly limited when it comes to US citizens. Even with respect to an armed conflict with an armed group, targeted killings are permissible only when individuals are engaged in direct hostilities with the US. However, a CIA drone attack killed American citizen Anwar al-Awlaki, a key figure in al-Qa'ida in the Arabian Peninsula (AQAP), on September 30, 2011 in Yemen, along with US citizen Samir Khan who produced an online magazine promoting al-Qa'ida's ideology. In separate attacks, two weeks later, a drone attack killed al-Awlaki’s 16-year-old son, a US citizen, his 17-year-old Yemeni cousin, and seven other people.

“To kill a teenager is just unbelievable, really, and they claim that he is an al-Qaeda militant. It’s nonsense,” said Nasser al-Awlaki, a former Yemeni agriculture minister who was Anwar al-Awlaki’s father and the boy’s grandfather, speaking in a phone interview with the Washington Post from Sana’a following the killing of al-Awlaki's son. “They want to justify his killing, that’s all.” 

Awlaki’s teenage son was not an “imminent” threat to the US nor was he a leader of al-Qa’ida. So what constitutional or congressional authority specifically gave the administration the authorization to assassinate a teenage American far from any battlefield with no due process?

John Brennan, the White House counterterrorism adviser, is known to be the architect of US drone policy and is expected to face some grueling questions during his Senate confirmation hearing today for the top post at the CIA. Brennan has strongly defended the administration's drone policy and its level of accuracy. Leading up to the hearing, a bipartisan group of senators led by Ron Wyden (D-OR) sent a letter to the President seeking the legal opinions that give authority to the President to authorize the killing of American citizens. President Obama announced last night that he would indeed provide the congressional intelligence committees with the classified DOJ memos that authorize the use of drones to kill US citizens abroad.  

“It is vitally important, however, for Congress and the American public to have a full understanding of how the executive branch interprets the limits and boundaries of this authority,” the Senators said in the letter, “so that Congress and the public can decide whether this authority has been properly defined, and whether the President’s power to deliberately kill American citizens is subject to appropriate limitations and safeguards.”   

In addition to the constitutional implications of drone attacks, the UN is launching an inquiry into the impact that drone strikes have on civilian populations. The inquiry will specifically focus on 25 attacks, the majority of which have been conducted by the US in Pakistan, Afghanistan, Yemen, and Somalia. According to research conducted by the Bureau of Investigative Journalism, between 2004 and 2013, drone attacks by the CIA reportedly killed up to 3,461 people, 891 of whom were civilians.

It's simply chilling to accept the rationale behind this white paper giving a president authority to act as judge, jury, and executioner. Had the targeted killing of Americans been sanctioned under the Bush administration, it's highly unlikely that liberal groups would have let it go without an outcry. So why should extrajudicial killings be accepted under the Obama Administration? When has it ever been acceptable for one individual to exercise the sole authority to determine whether it’s permissible to take the life of anyone, let alone an American citizen, without the protections afforded to them in the US Constitution?