Earlier this week, NBC News released a leaked Justice Department white paper which makes a legal case for drone strikes on Americans. Organizations such as the American Civil Liberties Union and the Center for Constitutional Rights have since denounced the document.
The white paper itself is 16 pages of unsurprising legal argumentation, echoing the reasoning that Obama administration lawyers, such as Eric Holder and Harold Koh, have been putting forth for years. Basically, it is a legal memo which says that the U.S. government can kill a U.S. citizen in a foreign country if:
1) the person is a senior leader of Al-Qaeda or an associated force,
2) an informed, high-level official of the U.S. government has determined that the person poses an imminent threat of violent attack against the U.S.,
3) capturing the person is continuously infeasible, and
4) the operation to kill the person is conducted consistent with applicable laws of war.
These words bring forth obvious and important questions: who qualifies as a “high-level official,” what constitutes an imminent threat, and at any stage is another branch of government involved?
While these questions remain unanswered, the memo mentions the usual suspects of national security law: the Fifth Amendment of the U.S. Constitution, the 2001 Authorization for the Use of Military Force (AUMF), Common Article 3 of the Geneva Conventions, Hamdi v. Rumsfeld, Mathews v. Eldridge, Ex Parte Quirin, etc. Thus, the arguments are not legally thin and are not wholly unfounded — which is perhaps most worrisome part of the memo.
The expanse of executive power in the field of national security can be traced back to Abraham Lincoln. And yet neither Bush nor Obama have shut down domestic newspapers (as Lincoln did) nor placed thousands of Americans in concentration camps based on no evidence whatsoever (as FDR did). However, one could reasonably argue that America has witnessed a new period of executive power in national security law since the terrorist attacks of September 11, 2001.
The past two administrations — with due credit given to the generally complicit Congress and Supreme Court — have written executive orders, pushed through legislation, and successfully argued legal cases which has created an extensive body of national security law. At times, this is partially due to practicality (as you cannot have 100 senators conducting a war) and partially due to constitutional law (the president is the commander in chief). But the result is a new legal regime which is frighteningly deferential to the judgment and sole power of the executive branch.
While I don’t think Obama will send drones into U.S. airspace or to attack vacationing Americans abroad, I feel the legal determination presented in this white paper has gone far enough to threaten the constitutional protections of due process of U.S. citizens. Remember that no court convicted U.S. citizen Anwar al-Aulaqi of any crime; he had no opportunity to appeal the predator drones which eventually took his life while he was in Yemen.
As a country of laws, we must find a way to protect our liberties without giving them away in the process.