If he thinks you’re a terrorist, that is — and he doesn’t think a court should review the evidence before he orders your assassination either. Here’s Jeffrey Rosen analyzing the Obama administration’s drone strike memo:
The Justice Department white paper released on Monday by NBC News is the public’s first direct glimpse at the legal reasoning that the Obama administration relied on in using a drone strike to kill Anwar al-Awlaki, a U.S. citizen living in Yemen. The memo’s arguments are troubling on many levels. Although the Obama administration’s brief is directed at the assassination of Americans abroad, the arguments it offers could apply with equal force to the assassination of Americans at home; lawyers for the Bush administration who tried to justify lesser outrages have been pilloried for supporting torture. But perhaps most troubling is the administration’s attempt to redefine the idea of the kind of “imminent threat” that can justify a targeted assassination.
The U.S. Supreme Court has previously held that the police can only use deadly force against fleeing, dangerous suspects when killing the suspect is “necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” But, in a vast expansion of this narrow precedent, the Obama administration says that the U.S. is not required “to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future” in order to assassinate U.S. citizens whom the government believes are Al-Qaeda leaders. Instead, the memo argues a “decision maker determining whether an al-Qaeda operational leader presents an imminent threat of violent attack against the United States must take into account that certain members of al-Qaeda …. are continually plotting attacks against the United States; that Al-Qaeda would engage in such attacks regularly to the extent it were able to do so; that the U.S. government may not be aware of all al-Qaeda plots as they are developing and thus cannot be confident that none is about to occur.”
In light of the government’s possible ignorance of plots that may or may not exist, the memo concludes, when an al-Qaeda leader “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-Qaida’s continuing terrorist campaign against the United States would support the conclusion that the member poses an imminent threat.”
This is an extraordinary conclusion.
When officials conclude that “capture is infeasible,” the memo continues, “the intrusion of any Fourth Amendment interests would be outweighed by …. the interest in protecting the lives of Americans.” But of course, the question of whether American lives are, in fact, imminently threatened by a particular suspect is precisely the determination that the administration claims the right to make on its own—without an opportunity for an independent judge to examine the factual basis for the claim. “There exists no appropriate judicial forum to evaluate these constitutional considerations,” the Justice Department insists.
There you have it. Look, I’m not sorry Anwar al-Awlaki has joined the choir invisible, but this is unnerving. If I’m reading this correctly, then the President reserves the right to assassinate American citizens abroad without judicial oversight, not because he knows they’re planning to do something, but even if he suspects they’re up to no good.
Gosh, it’s like Dick Cheney never left. Here’s James Joyner on the memo:
American citizens should nonetheless be wary of granting the president the power to single out citizens for killing based simply on his own judgment. Aside from being plainly unconstitutional, it’s simply too much trust to place in a single individual. At the very least, the rules ought to be spelled out in legislation that has passed both Houses of Congress and survived judicial scrutiny for constitutionality rather than made internally.
Further, in addition to checks and balances, there has to be more transparency. The notion that the government can compile a list of citizens for killing, not tell anyone who’s on it or how they got there, is simply un–American. Surely, a modern version of a WANTED: DEAD OR ALIVE notice could be publicly circulated, with a listing of the particulars. Maybe the named individual would turn himself in rather than wait for the drones to find him. Or maybe he’d hire an attorney to present evidence he’s not actually an imminent threat to American citizens.
For centuries, civilized societies have understood that even wars must be fought according to rules, which have developed over time in response to changing realities. Rules are even more important in endless, murky wars such as the fight against Islamist terror groups. Currently, we’re letting whomever is in the Oval Office pick and choose from among the existing rules, applying and redefining them based on his own judgment and that of his advisors. We can do better.