Daily Archives: February 11, 2013
If Bush and Cheney had commissioned the white paper and used its justifications there would’ve been an outcry about Darth Vader and his minion perpetrating evil throughout the land. But Obama can have a “kill list” and no one says much. Nevertheless, the document is about as anti-democratic as you can get.
Here is the White paper on drones. It is used as a justification for targeted assassinations. I must say this issue taxes one’s ability to support broader political concepts, important as they may be, over a gut reaction. What I mean is that killing Al Qaeda operatives who are racist, sexist, anti-democratic, and potential threats to the United States doesn’t bother me much. But a couple of chief White House officials sitting in a room making the decision by themselves – essentially being judge, jury, and executioner – with no political or democratic oversight does bother me. The white paper focuses mainly on when lethal operations against a US citizen are justified. The paper makes for interesting reading because it seeks to clarify the issues but actually underscores their ambiguity and problems. Let’s take a look at a few of the issues of interest.
1. It is assumed that the President of the United States can respond to Al Qaeda on the basis of his constitutional responsibility to protect the country. The president can act quickly and on his own regard even in the case of an American citizen if that citizen is deemed to pose a threat or considered a member of an armed force challenging the safety of the United States. The legal question becomes whether or not a lethal operation against the US citizen is protected by the Fifth Amendment’s due process clause.
The issue includes the matter of where the US citizen is located such as on a battlefield or in another country and if he or she is afforded any special constitutional protection. The paper concludes that killing a US citizen can be justified even if it is outside the United States.
2. The strongest defense of immediate violent action is the concept of “imminence.” Imminence is a well understood concept in the literature on politically protected speech. That is, one has many freedoms of speech available but cannot create a clear and present danger, cannot create danger that is imminent or about to happen immediately. The old tried-and-true example of yelling “fire” in a crowded theater is applicable here. I can advocate aggressive action against the collective group (e.g. the police) in the political theory or hypothetical sense but I can’t tell someone to go get a gun and kill the person next to them. I cannot create with my speech or my symbolic behavior imminent danger.
This issue of imminence has been a conundrum for the government and the white paper solves the problem by redefining imminence because it is too difficult a standard to meet. It is just too difficult to show that an Al Qaeda operative whether he or she is a citizen or not is posing an immediate and imminent danger to the United States. Thus the white paper argues that the president or high-level official only needs to decide that the person of interest is a “continuing” threat to the US. This is a much easier standard to reach. In fact it is extremely vague and means that the target of interest does not have to be posing any genuine immediate threat, perhaps has never been charged with a crime, and may not even be in the United States or nearby. But they are a “continuing” threat if they are simply known to be an associate of Al Qaeda.
3. The absolute worst thing about the white paper is its claim that the government need not ask anyone’s permission, is required to make its case to no court, before carrying out a targeted assassination of US citizen. Again, a couple of governmental officials can make this decision on their own, can create a kill list, without acknowledging any additional authority. They can kill American citizens and don’t have to answer to anyone. This is dangerous business and clearly a direction contrary to the history and development of the United States.
In one opinion (see http://www.aclu.org/blog/national-security/justice-departments-white-paper- targeted- killing) court cases are clearly cited that require the government to afford a citizen due process before depriving him or her of life or liberty. This due process seems to evaporate even when explaining that some sort of due process might reduce the errors and mistakes that result in taking innocent lives. The white paper argues that it is not subject to judicial review, and even argues that review “after the fact” is not legally required. Hence, one cannot question the government’s decision about targeting a citizen even after the fact. One can at least imagine the security problems associated with getting a priori permission but these did not describe the importance of at least after-the-fact judicial review.
These justifications for targeted killing seem extravagant and potentially dangerous. Moreover, some sort of a priori judicial or congressional oversight is not difficult to establish.