A leaked Justice Department white paper published Monday night by NBC News gave some hints as to the legal rationale behind the Obama administration’s killing of American citizens who are suspected of being leaders in al-Qaida or other terrorist organizations overseas. The Washington Post reported:
The document defines “imminent threat” expansively, saying it does not have to be based on intelligence about a specific attack since such actions are being “continually” planned by al-Qaeda. “In this context,” it says, “imminence must incorporate considerations of the relevant window of opportunity” as well as possible collateral damage to civilians.
It says that such determinations can be made by an “informed, high-level official of the U.S. government.”
NBC said the document was given to members of the Senate Intelligence and Judiciary committees by the Obama administration as a summary of a classified memo from the Justice Department’s Office of Legal Counsel. Importantly, this means it is not the actual legal justification in use by the administration; it is only a description of it.
The white paper changes the extent to which the U.S. government has to attempt to use capture as an alternative means. NPR reported:
The memo also makes the case that the U.S. government “doesn’t have to try all that hard to capture someone” if they are in another country and trying to grab them would be an “undue burden.”
In September 2011 U.S. citizen Anwar Awlaki was killed in a drone strike in Yemen as was US citizen Samir Khan. Two weeks later Awlaki’s sixteen year-old son Abdulrahman was killed in another drone strike attack.
The American Civil Liberties Union called the document “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 before or after the fact.”
What little due process is involved here is flimsy in the extreme. The person deciding whether someone poses an imminent threat worthy of death is only the aforementioned “informed, high-level official” operating in total secrecy—and, it should also be emphasized, accusation is not the same as proof. No judicial or congressional oversight is involved.
The white paper redefines imminent threat as something that is vague to the point of meaninglessness. The traditional definition of an immediate threat of violence that most would think of is abandoned and replaced with a much broader definition; an imminent threat “does not require the United States to have clear evidence that a specific attack on U.S. persons will take place in the immediate future.” This strategy is similar to the Bush administration’s use of imminent threat as a justification of the threat presented by Iraq. The question becomes what is an “imminent threat” and how broadly can it be used?
The arbitrary and sweeping nature of the powers described in the white paper are neither new or surprising. They have already been applied to American citizens like Anwar Awlaki and his 16-year-old son. It is just a new development in a long-standing history of increasing executive power to commit violence, this time applied to American citizens.