President Obama has gone the Bush-Cheney gang one better, with his claim to possess a dictatorial right to kill American citizens without any legal process, judicial review, or Congressional oversight. The "legal" rationalization for these targeted assassinations — a process the United States condemns when carried out by other countries — has been oozing out in various speeches and leaks over the past couple of years; now more of this sophistry has been exposed, with the leaking of a Justice Department "White Paper" on assassinations, entitled "Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who is a Senior Operational Leader of Al-Qa'ida or An Associated Force."
The confidential White Paper, reportedly given to the Senate Intelligence and Judiciary Committees last June, was disclosed to NBC's Michael Isikoff, on the same day that a bi-partisan group of eleven Senators demanded to see the Administration's full legal justification for targeted killings, believed to be contained in a 50-page memo prepared by the Justice Department's Office of Legal Counsel (OLC).
What the White Paper exposes, is the absolutely flimsy and fraudulent nature of Obama's claim to the right to kill U.S. citizens accused of involvement in terrorism. Obama claims the right to execute an American citizen under three, virtually meaningless, conditions:
(1) That "an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States." Who this official is, what his or her qualifications are, what is the quality of the evidence or intelligence required — is nowhere spelled out. On the contrary, the White Paper states, astoundingly, that meeting this condition "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 concept of "imminent threat" is thus stretched beyond all recognition.
Jameel Jaffer, deputy legal director of the American Civil Liberties Union (ACLU), characterizes this as follows: "The paper's basic contention is that the government has the authority to carry out the extrajudicial killing of an American citizen if 'an informed, high-level official' deems him to present a 'continuing' threat to the country. This sweeping authority is said to exist even if the threat presented isn't imminent in any ordinary sense of that word, even if the target has never been charged with a crime or informed of the allegations against him, and even if the target is not located anywhere near an actual battlefield."
(2) That "capture is infeasible." This condition is allotted one short paragraph in the 16-page White Paper, which comes down to whether it is convenient or expedient, or not, to attempt to capture the target rather than just killing him.
(3) That the killing is conducted in a manner consistent with the laws of war. That's easy: isn't this what hired-gun lawyers are for — to come up with a legal justification for what you are going to do anyway? Ask any Wall Street banker, mafia boss — or Dick Cheney, for that matter.
Making the Star Chamber Look Good
While much of the Administration's arguments for extra-judicial killing have been previously made public in speeches by John Brennan, Eric Holder, and Harold Koh, and were also reported in the description of the 50-page OLC memo that was leaked to the New York Times in October 2011, what is new here, is the explanation of how the Administration expands the idea of "imminent" threat, using what the DOJ calls "a broader concept of imminence" — so that no specific, current evidence is even needed, other than that the target is said to be associated with al Qaeda or an "associated force," which is "continually plotting attacks against the United States." No less of an authority is cited for this proposition that Tony Blair's Attorney General Lord Goldsmith in testimony to the British Parliament. (Well, that settles that!)
It boils down to this: if Obama or his designee unilaterally decides that an individual, even a U.S. citizen, is a "senior, operational leader" of al Qaeda or a related group, the guy can be whacked. The memo adds the proviso that this is allowed, unless there is specific evidence to the contrary. Where's that supposed to come from, when Obama or Brennan is the prosecutor, judge, and executioner — and no one but them is privy to the "trial" and judgment against the target? Nonetheless, the DOJ concludes that there is no violation of the Fourth or Fifth Amendments to be found in this procedure, which makes the Star Chamber look like a model of due process. (The reviled Star Chamber at least allowed the accused, and his lawyer, to be present during its otherwise secret proceedings.)
As to the federal assassination ban, or federal laws against murder, the Justice Department says not to worry, because these only apply to "unlawful" killing. These targeted killings can't be "unlawful," argues the White Paper, because Obama and the Justice Department SAY SO. As Dick Nixon famously said, "If the President does it, it's not illegal."
As for the quaint notions of separation of powers, and checks-and-balances — they have no place in this scheme. This is war, don't you understand, war without any limitations of boundaries, time, or rules of law. The White Paper is explicit: there is no role for the courts or judicial review in Obama's world. (As the D.C. Circuit Court of Appeals showed recently, as well as on other occasions, they would strongly disagree, as did the U.S. Supreme Court, when presented with similar claims of unfettered, unilateral authority by the Bush Administration.)
Columnist and constitutional lawyer Glenn Greenwald draws the obvious parallels, as do a number of other commentators, with the Bush-Cheney torture memos, writing that the White Paper "is every bit as chilling as the Bush OLC torture memos in how its clinical, legalistic tone completely sanitizes the radical and dangerous power it purports to authorize."
Greenwald, writing in the London Guardian, also points out that the "world-is-a-battlefield" theory — where the President has unbounded power — was at the heart of the Bush-Cheney "war on terror," and, he notes, "This new memo makes clear that this Bush/Cheney worldview is at the heart of the Obama presidency."
