Legal memo from Obama DOJ okays assassination of US citizens

NBC News' Michael Isikoff this week released a 16-page "white paper" (PDF) prepared by the Obama Department of Justice that effectively justifies the president's power to target even Americans for assassination without due process.

In the NYT, an analysis.

The unsigned and undated Justice Department “white paper,” obtained by NBC News, is the most detailed analysis yet to come into public view regarding the Obama legal team’s views about the lawfulness of killing, without a trial, an American citizen who executive branch officials decide is an operational leader of Al Qaeda or one of its allies.

Elsewhere, Glenn Greenwald writes in a Guardian op-ed why this is bad news for America, even those of us not on a "kill list."

• [theophrastvs]

  how do we know we’re not on the kill list?  (“well you are now“)  can we start a whitehouse petition/FOIA to have the kill list posted?   oh what street cred one would have to be on such a list!  (“glenn beck? pff…he didn’t even make the kill list!”)

  • [bryan rasmussen]

     Man, I don’t even know anyone not on a kill list.

    • [Michael Rosefield]

      You, citizen, are #343,095.

  • [Churba S]

    Well, that’s going to be pretty simple. It’s pretty much a two point checklist:

    1)Do you fall under the definition of “Combatant” as strictly defined in the Laws of war?

    2)If yes to question one, are you in the employ of or marching for a recognized force or entity that the US is officially at war with?

    If you answered No to either of those questions, you’re probably safe.

    • [anansi133]

      Maher Arar would disagree. 

      • [Churba S]

        Are you trying to tell me in a subtle way that you don’t know the difference between a direct military strike and – to use the most familiar and known term – “Extraordinary rendition”?

        See, one is covered by the laws of war and relates to what we’re talking about, ie, directly using military assets to openly attack a target.

        The other is where the CIA or another non-military organization makes an extrajudicial apprehension of a suspect and spirits them away to a deep dark hole to do what they like with them. This is not at all covered by the Laws of war, and is not a military operation – as the CIA is a Civilian organization, not a military one.

        Also, you can kinda find out if Maher Arar would disagree by asking him, because he wasn’t killed by an exploding hellfire missile, which should have been a clue that you’re not quite picking an appropriate example.

    • [Brainspore]

      1)Do you fall under the definition of “Combatant” as strictly defined in the Laws of war?

      Correction: have you been accused of falling under said definition. (Answer: most Americans could say “probably not,” but how would you know?)
      

      2)If yes to question one, are you in the employ of or marching for a recognized force or entity that the US is officially at war with?

      What does “officially at war with” even mean? The United States hasn’t declared war on any country or entity since World War II. (“Terror” doesn’t really count.)

      • [Churba S]

        “Correction: have you been accused of falling under said definition. (Answer: most Americans could say “probably not,” but how would you know?)”

        Absolute nonsense. The Laws of War are explicit about the definition of “combatant”, and there is absolutely no “Accused” about it. You are, or you are not. And that’s a definition that is out of US hands, and is very strict, and very explicit, there is practically no wiggle room in it.

        “What does “officially at war with” even mean? The United States hasn’t declared war on any country or entity since World War II. (“Terror” doesn’t really count.)”

        If a War is declared, or authorized by congress and/or the UN, or the US gets involved in an existing conflict as a recognized force, then the US is considered to be officially at War, both under US law and the Laws of War.

        Also, a formal declaration of war or the lack thereof does not mean you do not have to follow the Laws of War. The US is still bound by them, and still must follow them in any armed conflict.

        • [Brainspore]

          Absolute nonsense. The Laws of War are explicit about the definition of “combatant”, and there is absolutely no “Accused” about it. You are, or you are not.

          Good thing the U.S. State Department and military are both omniscient and infallible.
          

          …a formal declaration of war or the lack thereof does not mean you do not have to follow the Laws of War.

          Which is why suspected terrorists and combatants at Gitmo and black sites the world over enjoy the protections of the Geneva Conventions, and can expect prompt release and repatriation after the inevitable end of hostilities! (Wait, what? Oh.)

        • [jimmoffet]

          Google “Signature Strike”. 

          You are a combatant if the executive decides you are acting like one. From analysis of past strikes, pointing a video camera at a drone flying over your house is sufficient.

          No one knows exactly what criteria makes you an eligible target for a Signature Strike.

          Whatever explicit definition of combatant you may prefer, there is no way of knowing how closely it resembles the criteria for signature strikes used by the US Defense Department, because you and I do not have a right to know that information.

          This administration has determined that the military can decide you are a target and kill you anywhere in the world, without being required to provide justification of any kind to your family or your lawyer.

        • [ffabian]

          Yeah the US Gov is known to adhere strictly to the “Laws of War”. /s

          That’s why they invented the term unlawful combatant to avoid treating their prisoners (Guantanamo et al) as POWs. Probably because the Geneva Conventions forbids torturing.

          The usual US hypocrisy.

        • [chouette]

           ”The Laws of War are explicit about the definition of ‘combatant’, and there is absolutely no ‘Accused’ about it. You are, or you are not.”

          Huh? Do you know how law works? Just because the law of war has an explicit definition of combatant does not cure the need to have a fact finding process to determine if the facts fit the law in a particular case. That is the point of a trial. For example, the law is explicit about the definition of murder, but someone is only an accused murderer until there is a trial to prove or disprove it.

          Or put another way, if I call you a combatant, does that make it so? If I was a high ranking member of the administration and called you combatant, wouldn’t you want some kind of process to determine if I was right?

          Article 5 of the 3rd Geneva Convention (the one dealing with POWs) specifically contemplates a trial to determine someones status in an armed conflict (that is, whether they are entitled to be treated as a POW). That in turn depends on whether or not they are a lawful combatant.

          I could also refer you to “Combatant Status Review Tribunals,” created at Gitmo to determine whether or not someone was an “enemy combatant.” The CSRTs were widely criticized, but their very existance indicates that even the Bush administraiton admitted there could be legitimate questions as to who is and is not a combatant.

          Furthermore, the definition of “combatant” is probably not as explicit as you believe. For an International Armed Conflicrt (see common Article 2 of the Geneva Conventions) the definition is pretty much spelled out. But for a Non International Armed Conflict (which is what the “War on Terror” is, see Hamdan v. Rumsfeld) there is no agreed upon defintion of “combatant.” Furthermore, colloquial use of the word to describe any participant in an armed conflict has muddied the waters quite a bit.

        • [Churba S]

          “Huh? Do you know how law works? Just because the law of war has an explicit definition of combatant does not cure the need to have a fact finding process to determine if the facts fit the law in a particular case. That is the point of a trial. For example, the law is explicit about the definition of murder, but someone is only an accused murderer until there is a trial to prove or disprove it”

          Do you? “Combatant” is not a criminal charge, it’s a status conveyed by one’s actions. You tick the appropriate metaphorical boxes, you’re a combatant. You don’t, and you’re not.

          “Or put another way, if I call you a combatant, does that make it so?”

          Well, I’m not taking direct part in the hostilities of an armed conflict, so No. It absolutely doesn’t, and since you’re trying to convey that you made at least a cursory reading of the laws of war, you should already know that. Call me a purple-handled teapot for all I care, it’s going to have exactly as much legal weight and change exactly as much.

          “Article 5 of the 3rd Geneva Convention (the one dealing with POWs) specifically contemplates a trial to determine someones status in an armed conflict (that is, whether they are entitled to be treated as a POW). That in turn depends on whether or not they are a lawful combatant.”

          You don’t actually understand how this set of laws works at all.

          Yeah, that’s the article that specifically mentions a tribunal(not trial – those are two different things, though I’ll grant you they’re similar, it’s an easy mistake to make), once. They don’t contemplate at all, they just say “This is what you do if you’re unsure” and that’s that.

          Of course, what it’s actually about when you take the time to read the damned thing is about treatment of POWs ONCE THEY’RE ALREADY CAPTURED.

          It has literally fucking nothing to do with what we’re talking about, unless you’ve got this mad idea to invent hellfire missiles that capture people instead of detonating. Refer me to it all you damned well like, it’s completely irrelevant to the topic at hand.

          “Furthermore, the definition of “combatant” is probably not as explicit as you believe. For an International Armed Conflicrt (see common Article 2 of the Geneva Conventions) the definition is pretty much spelled out.”

          According to the Asser Institute – The Center for International and European law – and the RULAC project(who take great pains to accurately explain the relevant laws) both point out that Article 3 does. Therefore it must be assumed that the definition laid out elsewhere in the document must hold by necessity, otherwise there is no standard upon which Article 3 can work.

          On top of that – Hamdan v. Rumsfeld was regarding the legality and constitutionality of military tribunals and war crimes tribunals, specifically finding that the president in that case did not have the authority to set up the war crimes tribunals in question and that to do so was illegal according to the Geneva conventions and military justice. I’m impressed you know of it, but I’m pretty sure it doesn’t apply in this instance.

          “Furthermore, colloquial use of the word to describe any participant in an armed conflict has muddied the waters quite a bit.”

          On this, we agree totally.

        • [chouette]

          In response to Churba’s reply: My point in mentioning article 5 is to give an example of how there is fact finding process to determine the status of someone participating in an armed conflict. Sometimes, as you put it, “you’re unsure.” I did not mean to suggest that it is the appropriate article in this situation – Article 5 deals with POWs in an international armed conflict and the “war on terror” is not an international armed conflict – but merely to point out that whether or not someone is a combatant is not always self evident and that the law provides for some kind of hearing to sort it out.

          As you correctly point out, combatant is a status, not a criminal charge (and I nowhere said it was a criminal charge). However, it’s a status that impacts legal rights. It’s not unusual in law (whether law of war, criminal, civil, what have you) that when there is a question as to someone’s legal status there is some kind of fact-finding process to determine status (whether you call it a tribunal, hearing, trial, etc. is of no particular moment). One could draw an analogy to a sanity hearing. While it is not a criminal charge to be crazy, it certainly impacts legal rights. Sometimes, someone’s status is obvious. But not always. The way you presented your argument made it seem as though whether or not somone is a combatant is clear cut and obvious. I am only saying that this is not always the case, and gave Article 5 and CSRTs as examples of how this is addressed.

          Furthermore,  there is no “combatant” status in non-internationl armed conflicts (see, for example, the ICRC’s study of customary IHL). Thus the language you use is inexact. And while you are correct as to the key holding of Hamdan v. Rumsfeld, I mentioned that case for its finding that the war on terror is such a conflict, a determination that the court had to make before it could reach its key holding. I nowhere said nor did I mean to imply that the key holding of Hamdan was relevant to this issue, I merely cited the case for the proposition that the war on terror is not an “International Armed Conflict” for purposes of the law of war.

    • [aikimoe]

      So, you’re saying that all the non-combatants who have been killed by drones were probably safe?

      I’m confused.

      • [Churba S]

        You’re also not terribly clever, if you’re relying on intentionally mistaking what I said. But, I’ll reply in good faith – Yes, they’re safe from being specifically targeted for or during military action, if they are truly non-combatants in accordance to the laws of war.

        So, in other words, civilians not taking part in the hostilities, people who are taking part in the hostilities but whom are protected by their specific role(ie, chaplains or other religious figures, medical personnel) and combatants who are out of the fight(ie, sick, wounded, or otherwise disabled and unable therefore to take part in the hostilities.)

        • [aikimoe]

          Is it possible to “intentionally mistake” what someone says?  Weird.

          You said…

          “If you answered No to either of those questions, you’re probably safe.”

          If you meant, “safe from being targeted,” you should have said so.

          You would still be incorrect, not that it matters at all.  First responders are targeted. It doesn’t matter if they are not taking part in hostilities.  Funerals are targeted.  It doesn’t matter if some mourners are not taking part in hostilities.

          When you’re in the proximity of a target, even if it’s for the purpose of opposing the target…

          http://www.nytimes.com/2013/02/06/world/middleeast/with-brennan-pick-a-light-on-drone-strikes-hazards.html?pagewanted=all&_r=1&

          …it doesn’t matter if you’re “safe from being targeted.”  You are not safe.

    • [Thebes42]

      Go promote your Police State ideals elsewhere… like N Korea.

      • [Churba S]

        A well reasoned and thought out reply. I’m sorry that reality does not conform to your expectations, but that’s the nice thing about reality, I guess.

• [Cowicide]

  I look forward to the day when the lesser evil doesn’t act so evil.

  • [IamInnocent]

    Better look backward and even so… don’t squint.

  • [Thebes42]

     If we keep (s)electing the lesser of two evils, we should not be surprised when our entire Political Class becomes evil.

    • [Cowicide]

      Nor should we be surprised when it becomes less evil over time. It’s evolution, not revolution. It’s going to take decades. I’ve never had any illusions about that.

• [Nick Weaver]

  At least that war criminal John Yoo had the courage to sign his own name to a similar analysis to justify torture.  

  That none of Obama’s minions are unwilling to sign their own name to such a repugnant justification for extra-judicial assassination says that at least Bush’s minions had the stones to stand by the crap they wrote.

  • [Thebes42]

    Obomber’s minions have noted that some people seriously suggested prosecuting Bush’s minions.

• [anansi133]

  I would love it if there could be a carefully reasoned public conversation about who is and who isn’t a terrorist. It seems to me right now that it’s a hopelessly murky designation, and says more about the person using it than about the person it’s used to describe.

   I flinched a bit when I read about Ed Koch’s gravestone containing Daniel Pearl’s last words- because while there’s wide consensus that his death was a terrorist act, the US helicopter crew who killed Namir Noor-Eldeen are *not* regarded as terrorists. The choice of weapon seems to have a lot to do with it.

  In fact, I think the best thing that could happen to the word, “Terrorist” is that it go into the same dustbin of colloquialism that currently contains the word “nigger”. They are equally loathsome to me.

• [efergus3]

  I though that it was simplier: “Kill them all and let God sort them out.”

• [Boundegar]

  1: Astronomical budget deficits are fine when a Republican does it.
  2: Horrifying human rights abuses are fine when a Democrat does it.

• [Brainspore]

  Wait, he’s not torturing them first? OBAMA, SOFT ON TERROR.

  • [class_enemy]

    Well, it’s certainly interesting that waterboarding confessed terrorists was right up there in the major league of war crimes, while remotely killing possible terrorists and those who happen to be near them is OK with about 90% of those who had weekly aneurysms about what Bush was doing.

• [dmc10]

  As someone nauseated by Bush’s post 9/11 moves (The Patriot Act, invading Iraq for no real reason, etc)… I had hopes come Obama’s election. But sadly I’ve been horribly disappointed by his record on human rights and civil liberties during his time in office, he really is no better — in some ways worse, because though I detested Bush-Cheney, they were fairly open about their opinions and right wing attitudes. Obama sounds like he’s a lefty, but his actions have been the exact opposite (GITMO, leaving the Patriot Act essentially untouched, taking forever to disengage from these wars, and now this unbelievable document) 

  • [Ladyfingers]

     The secret is to never listen to the things politicians say.

    • [class_enemy]

      Speaking of paying attention to politicians’ deeds rather than their words….

      When do we get to hear an “oopsie” from the Nobel Prize committee??

      • [Lithi]

        Considering we’re still waiting for the “oops” in Joseph Stalin’s nominations, (twice) not anytime soon. 

        • [class_enemy]

           It just occurred to me that what Obama is doing is not essentially different from what Uncle Joe had done to Trotsky.

  • [jimmoffet]

    He’s the president of the United States, I hate to inform you but he doesn’t have a choice about this. If he were opposed to this behavior, he couldn’t have gotten this far.

    • [aikimoe]

      So, if he had done all the things he said he was going to do if elected president, all the things that made people elect him to be president, if had actually done those things he promised to do, then he wouldn’t have been elected?

      I’m confused.

      • [jimmoffet]

        If Obama had decided to vehemently oppose the Department of Defense assassinating people, or even just oppose assassinating US citizens, he would have found himself on the fringe of the Democratic party and would not have been able to win the nomination. 

        There are plenty of current policies that you can’t forcefully act to oppose without losing the opportunity to become president. 

        I’m not sure what this has to do with his campaign, or his campaign promises. I’m pretty sure he didn’t promise not to kill Arab-American citizens who seem suspicious.

        To become president, you have to be willing to refrain from opposing certain policies, even those that would seem completely impossible for any person with a sense of justice to accept.

        • [aikimoe]

          There was zero talk of assassinating U.S. citizens in 2008 because Obama is the first President to ever have a policy allowing it.

          Obama campaigned on the promise of a law-abiding, transparent administration.  This is well documented.
          He was elected, in large part, because of his explicit opposition to the foreign policies of the Bush Administration.  This is well documented.

          There is no political excuse for him to be supporting programs designed to kill people without trials while targeting first responders and funerals.

          Similarly, he was elected while explicitly promising to protect whistleblowers, but has prosecuted them more than all Presidents combined.  He was elected while explicitly promising to leave medical marijuana alone, but has raided more dispensaries than Bush.

          He was able to become President while promising, explicitly, not to behave in the way he has behaved.

          So I really have no idea what you’re talking about.

        • [jimmoffet]

          Can you name a president that did not campaign on having a transparent, law-abiding administration? Can you name a president that has? Yes, he broke all of his most important campaign promises. This may shock you, but the vast majority of presidents have. That’s why sane people hate politicians…

          The things you’re talking about, The War on Terror, The War on Drugs, are much, much larger than a president and the policies that surface during one’s administration are the result of the slow drift of white papers over decades, not years.

          You assume he has far more power than he actually has, for the folks actually at the controls, writing these whitepapers and choosing which dispensaries to raid it’s the new boss, same as the old boss. 

          If you think that George Bush, the man, was actually spearheading the changes that took place during that administration, then I really have no idea what you’re talking about, don’t think that the same doesn’t apply equally to Obama. He’s a figurehead, and a beautiful one at that.

        • [aikimoe]

          I am not assuming “he has far more power than he actually has.”

          I believe you are assuming that he has far LESS power than he actually has.  He went to war in Libya against the advice of his lawyers, for God’s sake.

          When it comes to drug and foreign policy, he, in fact, has much, much more power than he does in economics and healthcare.  He could easily issue executive orders to change the war on drugs and the drone program so that fewer innocent people are harmed.

          This is not on opinion, but an objective fact.

        • [jimmoffet]

          The relevant framework here isn’t actual constitutional authority, it’s political expediency.

          It wasn’t terribly politically difficult for the president to go to war in Libya, in spite of his lawyers.

          An executive order ending drone strikes is completely and totally impossible, not constitutionally, but politically.

          It’s purely magical thinking to believe that we live in a world where people hide, from the entire political community that they are the center of, the fact that they are actually morally opposed to US policies like drone and drug wars, until they become president whereupon they wield their theoretically immense power to restructure the moral position of the nation within the world.

          That’s an opinion, but I’m pretty sure it’s a lot more useful for predicting the future than your fact.

        • [aikimoe]

          “An executive order ending drone strikes” is a ridiculous and unconstructive strawman.

          No one is suggesting this.  What people are suggesting is transparency and oversight.  People are arguing for changing the rules that allow for the targeting of funerals and first responders.  Are you suggesting that it wouldn’t be “politically expedient” for the President to announce an end to using terrorist tactics like that?

          Your arguments have already been used in opposing Truman’s ending segregation in the military and Lincoln’s fight for the 13th Amendment, as neither position was “politically expedient.”

          Suggesting that it’s “magical thinking” that the President can make changes in policies which are unpopular with the majority of Americans like marijuana prohibition and our occupation of Afghanistan (instead of doubling down on them); suggesting that it’s not the President who controls his Justice Department or the DEA or foreign policy; these suggestions indicate that either you haven’t really investigated the history of the office of the President and/or that we have very different perceptions of objective reality.  

          Your “beautiful figurehead” comment also indicates that your arguments are more based in faith and reflexive admiration than history and reality.

        • [jimmoffet]

          Whoa, somewhere we crossed trains here.

          When I talk about political expediency, the bile has reached the top of my throat. It’s a completely disgusting and fully insufficient justification for anything. 

          Also, I didn’t vote for Barack Obama in 2012 and I damned sure don’t admire him. I don’t have any more respect for him than I do for the previous president. He’s a beautiful figurehead in the sense that everything about him is nearly flawlessly designed to suit the task. It’s a beautiful and terrible thing to behold.

          Maybe in the light of that information you can see how I might believe that a world in which choosing to end drone strikes or the drug war are considered such ridiculous options as to be strawmen, might not be a world worth living in. 

          At least in the case of a conversation between two ordinary human beings.

        • [IamInnocent]

           The fault in your reasoning is that the Obama administration does not reluctantly apply this politic, it embraces it.

        • [jimmoffet]

          I don’t think there’s any reluctance about it. Obama is a constitutional scholar and that makes him a good asset to this administration, aiding its ability to subvert the spirit of all the laws and treaties that have been passed since the great world wars.

          My larger point is that this administration is a direct continuation of past administrations and using Obama, the man, as a proxy for this administration is a really misleading way to think about how we end up with the policies we have.

          The fact that this administration is embracing these policies at this time has relatively little to do with Obama the man (he’s an asset sure, but not an incredibly crucial one) and much more to do with the way that policy has been drifting over a very long period. 

          What happened after 9/11 was the result of policy that had immediately come before. Before we were worried about Russia at the helm of world energy supplies, now it’s non-compliant middle-eastern governments we’re worried about. You replace Communism with Islamic Populism and continue protecting your strategic interests (and no, I don’t think this is okay because I called them “strategic interests”).

• [otterhead]

  Seriously, folks?

  Ask yourself this: Are you a known terrorist who’s been a top operative for Al Qaeda for the past few years, operating on foreign soil?

  If not, no, you’re not on the “kill list”.

  • [Brainspore]

    Or a suspected terrorist. Or someone who might have been confused with a suspected terrorist. Or someone unlucky enough to be standing near someone who was confused with a suspected terrorist.

    • [otterhead]

      That’s not what the document says, is it?

      • [Conan Librarian]

        did you read it? It clearly says ‘suspect’, not ‘convict’. 

      • [retchdog]

        was this 16-year old boy a “top operative for al-qaeda”? http://www.businessinsider.com/alwaki-son-yemen-16-drone-2012-10

        edit: oops. i see several people have already asked you about this below. i would apologize, except for the fact that you’ve ignored all of them.

  • [Graham]

    I think you may be missing the larger picture here.

    • [otterhead]

      Please, enlighten me.

      • [Conan Librarian]

        okay:
        http://amanpour.blogs.cnn.com/2012/12/05/grandfather-grieves-teenage-grandson-killed-by-u-s-drone/

      • [Graham]

        The larger picture being the ever increasing habit of administration-approved lawyers telling the President what he wants to hear, such as extra-judicial killings are perfectly legal provided they can retrospectively debate the meanings of purposefully vague phrases like “imminent”, “associated force” or “informed, high-level official”. It’s just “enhanced interrogation techniques” on “enemy combatants” all over again but with, y’know, more death.

        • [Antinous / Moderator]

          The larger picture being the ever increasing habit of administration-approved lawyers telling the President what he wants to hear

          I wouldn’t characterize it that way because I don’t necessarily believe (based on the I’m-not-omniscient theory) that President Obama wants to hear that and is looking for reinforcement. I do believe that some people in government, and probably more people in industry, arrange for ‘facts’ that fit their agendas to seep into the Presidential eardrums.

          Leaders of large political entities are inevitably cozened by their advisers, but not necessarily to their benefit or natural inclinations.

    • [Brainspore]

      I think otterhead is adopting the “it’s unlikely this will violate MY rights, so it’s not really an issue” attitude. Kind of like all those SB-1070 supporters in Arizona who don’t have brown skin.

      • [otterhead]

        That’s not true in any possible way. And equating me to being a racist because I think people are taking this document and equating it with things it has nothing to do with is very foolish. But feel free to assume I’m an ignorant racist.

        • [Brainspore]

          I’m not accusing you of being a racist. I’m saying that your “this isn’t a human rights/due process issue because it only targets suspected terrorists” reasoning isn’t far off from “this isn’t a human rights/due process issue because it only targets suspected illegal immigrants.”

          Many American citizens have been, and continue to be, falsely branded “terrorists.” Kill lists that circumvent due process are a serious human rights issue that all Americans who care about due process should be concerned about.

        • [EH]

          That otterhead has been reduced to pure denials indicates her/his position is without substance. “Nuh uh!”

  • [Aurvondel]

    So, how does that explain Abdulrahman al-Aulaqi, the 16-year-old son of Anwar and a full American citizen, who was assassinated in a separate airstrike two weeks later? No one has ever accused him, on or off the record, of being a terrorist, though the US government has said that as a 16-year-old male, he meets the definition of a militant.

    • [Brainspore]

      He was killed in a U.S. airstrike, therefore he was a terrorist. Q.E.D.

      • [otterhead]

        You said it, not I.

        • [Brainspore]

          You (apparently) believed it, not I.

        • [Brainspore]

          @otterhead:disqus 
          If you do believe it you’re exceptionally gullible. If you don’t believe it then your previous statement about who is and is not at risk from this policy has just been disproven.

          Take your pick.

  • [guest]

    IIRC, kicking a u.s. mail box can be construed as a ‘terrorist’ act under current federal law.  the point is we now have a star chamber, under the direction of  a political leader…. i seem to remember a bit of bother about that in the late 1700s or so.

    • [class_enemy]

       Go check all the post-Newtown gun threads here.  It’s especially interesting to read all the elegantly phrased snark directed at those who think that “domestic tyranny” is something they want to protect against.

      • [Nick Harvey]

        Without examining the specific comments you’re referring to, I am only generalizing. But I suspect most of them are less dismissive of domestic tyranny as a concept than they are of one’s ability to defend against with with a rifle.

  • [EH]

    Define “top operative,” especially as concerns a non-hierarchical phenomenon like Al Qaeda.

  • [Al Billings]

     You mean like a teenager killed by the US government was?

• [Pip_R_Lagenta]

  Please recall that in Herrera v. Collins (1993) the U.S. Supreme Court has ruled that the government may execute any citizen who has not committed any crime if “Due Process” is intact. This white paper now informs us that “Due Process” is no longer required.

• [Conan Librarian]

  How odd, the White House calls it a ‘Crime Against Humanity’ when other countries do it. 

• [OldBrownSquirrel]

  War is all about killing people without due process; the conventions that make this legal are mostly centered around uniforms and are part of the Western cultural tradition; they’ve since been adopted more broadly, though not universally.  The earliest “targeted killing” (which I’m defining as trying to kill one specific enemy, known by name) by US military that springs to mind is that of Isoroku Yamamoto, a senior Japanese officer in WWII whose plane was identified in advance by intelligence, targeted, and shot down.  As an enemy soldier in an enemy military aircraft in time of war, he was unambiguously a legal target.  What’s most different this time around is an enemy that isn’t wearing military uniforms, thereby creating a huge legal mess.  Another factor is the development of highly specific methods of targeting (drones, precision munitions, etc.) which make targeting possible at all.  Previous generations engaged in carpet bombing, killing civilians much more indiscriminately.

  Frankly, I’m more worried about the precedent set by the arrest of Jose Padilla.  It’s not at all unreasonable to expect due process in the case of someone arrested in an airport.

  As for citizenship status, I don’t see why it should offer any protection.  If anything, it offers less.  It’s my understanding that a US citizen captured in enemy uniform can be tried for treason and executed, whereas a foreign national in that same situation enjoys all the legal protections of the uniform.

  • [Brainspore]

    War is all about killing people without due process…

    “The War on Terror” isn’t actually a war. You can’t declare war on a noun, nor can said noun sign a peace treaty. Politicians just like using “war” rhetoric for this kind of thing because it’s a handy way to get people to dismiss due process.

    • [OldBrownSquirrel]

      Johnson’s war on poverty, Nixon’s war on cancer: purely rhetorical.

      Bush’s war on terrorism: quite literal.  The military took the lead (Afghanistan, Iraq), though domestic law enforcement (arguably paramilitary in nature) was also involved.  The CIA is for many practical purposes a branch of the military at this point.  Granted, there was no formal declaration, nor can there be a formal peace, but we haven’t had a formal state of war since Japan surrendered, and nobody describes what happened in Korea, Vietnam, or the Persian Gulf as rhetorical. 

      Reagan’s war on drugs: somewhere in the middle.  The military has been involved, most visibly in the invasion of Panama, but police have become more explicitly militarized in the process.

      The war on terror is perhaps most analogous to the Cold War, which was a long-running conflict between ideologies.

      • [Al Billings]

         Explain to me, what is the victory condition of a “War on Terror?” How do we tell, legally, that we’ve won? How do you defeat this noun or get it to the negotiation table, to sue for peace, as we have with other nations? How can we tell when we’re done, beyond when we decide to quit spending money on it?

        • [class_enemy]

          Exactly.  We seem to do much better in concluding wars which are declared against other countries than we do against wars declared against abstract concepts.

          War on terror, war on poverty, war on drugs…..wars never won, wars which remain because they provide so many sinecures and generous streams of taxpayer money for the “warriors”.

        • [OldBrownSquirrel]

           A valid question.  Arguably we’ve been fighting a war on terror, with interruptions, since the First Barbary War under the Jefferson administration.  Granted, that ended in a formal peace treaty, but it led to a Second Barbary War only a few years later.

  • [chouette]

     ”It’s my understanding that a US citizen captured in enemy uniform can be tried for treason…”

    Well, you hit the nail on the head. They can be *tried*. The constitution specifically contemplates a trial for those accused of treason (Article 3, Section 3). It also says that Congress (not the President) has the power to fix the punishment for treason.

    Obviously, on an actual battlefield it is reasonable to kill an enemy, regardless of citizenship. But the Obama administration is claiming a pretty wide definition of “battlefield,” twisting the definition of “imminent” and basically saying that nobody can review the decision making process of whether capture was feasible.

    • [OldBrownSquirrel]

      Was Yamamoto shot down over a “battlefield”? The term is increasingly obsolete; it conjures images of cavalry charges against infantry fighting in squares.

• [Shannon Larratt]

  I find it more disturbing that this is generally a non-issue for people who happen not to be US citizens.

  • [Jonathan Roberts]

    I don’t get this either. If this were some other country, the issue would be when the US started assassinating other countries’ citizens. http://www.youtube.com/watch?feature=player_detailpage&v=kpcxfsjIIbM#t=100s

• [Judonerd]

  Devil’s advocate here:

  Everybody is cool with the police shooting and killing a guy who is holding a child hostage in a bunker. Nobody is arguing that guy deserved to face trial.

  Police can shoot to kill if they believe the suspect is an immediate threat to others lives. Sometimes they turn out to be right, sometimes they turn out to be wrong. But its an accepted part of our society—if you point a gun at somebody and threaten them, the cops are going to shoot first and ask questions later. Hell, they even do it if someone is using a car as a weapon, trying to hit bystanders.

  So what is it that gets everyone so pissed off about our government basically doing the same thing to people who are joined up with AlQaeda on foreign soil, plotting to end the lives of American citizens? Thoughts?

  • [Brainspore]

    Police can shoot to kill if they believe the suspect is an immediate threat to others lives.

    Assassinations aren’t spur-of-the-moment decisions. Sending in a drone or a strike force or a sniper takes time, resources and planning. “I think he was probably planning to do something bad” is not an analogous situation to “he pulled a gun on me.”

  • [Conan Librarian]

    Probably because the process which leads to and from a strike, isn’t as imminent as you present it in your colorful analogy. Even the Una-bomber had a trial, not an ‘assassination’.  

    • [Al Billings]

      He wouldn’t today.

  • [KeithIrwin]

    The difference is imminence, a word rounded abused in the memo.  None of us would object to shooting someone in the process of carrying out a terrorist attack.  A terrorist has built a car bomb and is driving it towards a city, drone attack away.  But blowing someone up because at some indeterminate point in the future, they might commit a terrorist act, I’m not going to support.  We shouldn’t execute people for the crimes that they might commit some day.

    Sure, when the crazy guy tried to strangle someone we’re fine with attacking him to get him to stop, but that isn’t the same as reasoning that we should lock up everyone with mental health issues in case they later attack someone.

    If you can’t see the difference between actual attacks and imagined potential attacks, then you’re probably in the camp which is in favor of suspending the kid for throwing the pretend hand grenade.

    • [Judonerd]

      Well, I’m not in that camp. I’m in the “philosophical discussion” camp. But thanks for getting all personal on me.

  • [Snowlark]

    True, the police have a standing order to disarm (using potentially lethal force) anyone who is a clear, imminent, and deadly threat to others. I can think of two reasons that might explain why folks are so upset over this proposal:

    1) This would be a federal-level standing order, effective anywhere on Earth. No municipal-level organization (e.g., the police) has such reach or jurisdiction.

    2) This white paper suggests a much higher degree of premeditated use of lethal force, as opposed to incidental use of lethal force. I’ll explain.

    In your example, the police have a standing order which emphasizes incidental use. The officer on-duty, while armed and trained for life-threatening situations, was most likely not vigilantly seeking to kill this person. This is not to say that municipal policing doesn’t involve meticulous tracking of suspects and plans to disarm such suspects (just consider the recent raid of a hostage situation in Alabama where the suspect was killed on site). It’s just that the emphasis on premeditated vs incidental use of lethal force is different.

    That’s my impression. I hope that makes sense. It’s been a long day. If anyone with actual policing experience is reading this, please feel free to amend/revise/dismantle what I’ve just written.

    • [Al Billings]

       What gives the US the legal right to project power anywhere it wants on the planet without repercussions? What happens when we try to do a drone strike in Russia? Oh wait, we’re not that dumb. We only do it where people can’t strike back and, if they do, we call them “terrorists” and use it to justify more strikes.

      • [Antinous / Moderator]

        What gives the US the legal right to project power anywhere it wants on the planet without repercussions?

        This is a relatively new doctrine.  We used to protect ourselves.  Over the last couple of decades we decided that we should identify potential threats and neutralize them wherever they are.  In short, our foreign policy is a hyperactive immune system.

        • [Tynam]

          I’m been saying for years that terrorism is an immune system disease.  It doesn’t do any real damage by itself; it’s your own immune system overreacting that kills you.

      • [Snowlark]

        That was the very first thing I wondered, even before I finished reading the first sentence of this proposal. (By sentence I mean ‘paragraph’. Yeeks. So glad I’m not a lawyer.)

        To your point: the White House appears to be arguing for a “legal framework” for such power based on the precedent of…nothing. No, really. From page four:

        “There is little judicial or other authoritative precedent that speaks directly to the question of the geographic scope of a non-international armed conflict in which one of the parties is a transnational, non-state actor and where the principal theatre of operations is not within the territory of the nation that is a party to the conflict.”

        From what I’ve read so far, their entire argument for the validity of such operations is whether the afflicted nation either (a) gains consent of the host nation, or (b) determines that the host nation is “unable or unwilling to suppress the threat” posed by the targeted suspect. Acting under either of these conditions, the writers claim, is within the bounds of current “international legal principles of sovereignty and neutrality”.

        Exactly who determines whether a nation is “unable or unwilling”? These guys sound like they’re more interested in writing international law, not following it.

  • [blissfulight]

    Because some of those ‘terrorists’ killed by drones are US citizens (three so far).  
    Because US citizens still enjoy some civil liberty protections no matter what country they’re in, just by virtue of being US citizens.  
    Because no one gave Obama this power–he just arrogantly took it upon himself to decide that he was going to do it.  
    Because Obama was elected ostensibly to overturn the policies of the last President, who used the power of his office to render, detain, torture, and murder people who sometimes were, and sometimes weren’t connected to the target group.  
    Because civilians that have nothing to do with terrorism are being killed, and their deaths are being casually dismissed as collateral damage.  
    Because there’s been no public debate about this practice, and the development of government policy should take place out in the open–no operational sources are being jeopardized discussing the legal justification for targeted assassination.  
    Because Congress and the courts have completely deferred to Obama on this issue, negating their role, which is to check the behavior the executive branch.  
    Because Obama is (ostensibly) an elected public official, not a tyrant unaccountable to the laws that govern his conduct while in office.
    Because we can’t kill everyone who has a bad thought, ever, about the US.  The Russians and Chinese would like to kill us, or at least harm us, yet no one is sending drones over to engage in targeted assassination of their officials and operatives, even when there’s been clear proof that they’ve done something to harm us, far beyond what Al Queda could ever hope to accomplish.  
    Because there’s been little evidence that this approach actually works (the CIA long history of interfering in the internal affairs of other countries would suggest otherwise).  
    Because…

    • [BlackPanda]

       ”The Russians and Chinese would like to kill us”. Please elaborate on that statement.

      • [blissfulight]

        I qualified my somewhat hyperbolic statement with ‘…or at least harm us’.  If you have a military that is aimed at counterattacking the US’s perceived power, nuclear ICMBs that are pointed at the US, and a national security complex that is both actively spying on as well as attacking the US cyber infrastructure, there is an element of harm, not ‘play’.  

  • [Antinous / Moderator]

    So what is it that gets everyone so pissed off about our government basically doing the same thing to people who are joined up with AlQaeda on foreign soil, plotting to end the lives of American citizens? Thoughts?

    Yeah, I have a thought. We’re not omniscient. We can determine with some accuracy when someone is immediately threatening someone else with a weapon. We have almost no ability whatsoever to determine if someone is “plotting to end the lives of American citizens.”

  • [Al Billings]

     Actually, I *do* think that guy deserves a fair trial and I’m not ok with police assassination.

    The police are only allowed to kill someone when there is an imminent threat and to protect the lives of others. Otherwise, we have this whole “rule of law” thing, as inconvenient as it might be for some cops, military, or presidents.

  • [bryan rasmussen]

    Actually the answer to 
    “So what is it that gets everyone so pissed off about our government basically doing the same thing to people who are joined up with AlQaeda on foreign soil, plotting to end the lives of American citizens?”

    Is Thoughts!

• [pduggie]

  So why IS there no analysis in the piece about how to determine who is an “operational leader of Al Qaeda”

  I mean I can say “They came for the operational leaders of Al Qaeda, and I didn’t speak up, because I’m not an operational leader of Al Qaeda”

  and that’s kinda true and I’m not too worried about anyone thinking I am

  • [bryan rasmussen]

    ‘ “They came for the operational leaders of Al Qaeda, and I didn’t speak up, because I’m not an operational leader of Al Qaeda”‘

    You know, speaking as an operational leader of Al Qaeda, and considering your input on the last three Jihad meetings, I can see why you’d say that.

    Your suggestion to remove the hats of the infidels was risible.

    I for one refuse to be on any kill list if you’re on it, there, I said it.

• [Aurvondel]

  “In the Department’s view, a lethal operation conducted against a U.S. citizen whose conduct poses an imminent threat of violent attack against the United States would be a legitimate act of national self-defense that would not violate the assassination ban. Similarly,  the use of lethal force, consistent with the laws of war, against an individual who is a legitimate military target would be lawful and would not violate the assassination ban.”

  and also: “The condition that an operational  leader present an ‘imminent’ threat of violent attack against the United States 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.”

  So it’s basically the foreign policy equivalent of Florida’s stand-your-ground law.

  • [Antinous / Moderator]

    So it’s basically the foreign policy equivalent of Florida’s stand-your-ground law.

    If Florida’s stand-your-ground law allowed you to drive to Toronto and shoot people because their neighbors told you that they were out to get you.

  • [John Vance]

    …which itself is just a fancy way of saying, “Do what you like, you’ll probably face no consequences.” This is some Grade A bullshit right here.

• [bryan rasmussen]

  Being on a kill list is sooo last year, I knew this guy (he got killed) and everyone was like what a poser because you know he didn’t really deserve it. Basically when people ask me about being on the kill list, and where I am on it I tell them I don’t keep track anymore, I might even have risen so high on the list that I floated off the top of the page I wouldn’t know and I couldn’t care less.

  You know what’s really cool this year, it’s being on a good bring back to life list. They’re really tricky. Osama was on a bring back to life list, but then it turned out it was all zombies.  What a loser.

  Actually that guy I was talking about earlier, the one who got killed, was also on a bring back to life list but it was the absolutely worst one around- run by the Christians, he has to wait for an undetermined period until Christ returns.

  In programming terms its like being in an array and you can be only be shifted off, but of course you have to wait til all the other elements of the array can be shifted and the very first element of the list has all sorts of special requirements before it can ever be shifted. So basically what I’m saying is that guy is never coming back to life.

  As for me, not that I care about being on the death list because I don’t, but I’m looking to get on a really good vampire backed bring back to life list because of the cool powers upgrade.

  Anyway I’ve got to go now, there*s some irritating droning noise outside, I gotta go check what it is.

• [vetnoir]

  Remember when we were the country that fought against countries that did stuff like this?

  • [Michael Rosefield]

    but only as a coincidence

  • [Al Billings]

     That’s only when they do it to *us*. When we do it, it’s all cool.

  • [John Vance]

    That’s looking more like an historical fluke than a trend nowadays.

• [MrJM]

  Where do the students who took Barack Obama’s Constitutional Law classes go to pick up their refunds?

  • [Al Billings]

     The Bush Library?

• [jimmoffet]

  This memo is a fantastic reason to renounce one’s citizenship.

• [FoolishOwl]

  At this point, the only apparent procedural limitation on the use of violence and physical repression by the executive branch is a budgetary limitation.

• [plyx]

  I really don’t understand why this is getting so much coverage. Did anyone truly believe the policy was ever anything different, at least since Johnson? The only upgrade to policy is the use of drones, that’s it.

  • [jimmoffet]

    We didn’t use to pretend it was legal. 

    Which means that if the press made a scene it, you could expect repercussions.

    This is a big step in the wrong direction.

• [ffabian]

  Stuff like this can’t be made up: the self proclaimed “Guardian of the Free World” adopts the behavior of third world tyrants (“Just kill the dissident! Why? He was an enemy of the people!”).

  What makes me furious is the gall of the US Government (and individual USians) to criticize others in (much smaller) human rights issues. 

  Remember the issue between Twitter and the French Government? Flocks of USians posting smug comments about the US superiority regarding civil righs/freedoms (“We are more free than the rest of you”) and shouting “slippery slope”. 

  It looks like a schoolyard bully telling the victim and the bystanders he’s a white knight.

• [donovan acree]

  The truth is, this is illegal in all cases. No argument can be made that would circumvent the highest law of the land,

  Fifth Amendment – 
  No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

  And no, the exception for land or naval forces or Militia does not apply since the person is not a member of our land or naval forces or Militia