The Memo

Ken AshfordConstitution, Obama Opposition, War on Terrorism/TortureLeave a Comment

NBC got a hold of a white paper which provides the legal justification for assassination of an American not on American soil, without the constitutional protections of due process.  You can read the original here (as a PDF), or read the wiki transcription.

The nub of the white paper is this:

[t]he Department of Justice concludes only that where the following three conditions are met, a U.S. operation using lethal force in a foreign country against a U.S. citizen who is a senior operational leader of al-Qa’ida or an associated force would be lawful: (1) 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 ; (2) capture is infeasible, and the Unites States continues to monitor whether capture becomes feasible; and (3) the operation would be conducted in a manner consistent with applicable law of war principles.

If this sounds a lot like the Yoo memo, which the Bush administration used to support extra-constitutional torture, that's not surprising.  Both memos basically are designed to do an end run around the Constitution.

There are a number of serious problems with what this memo says.

First of all, there are no checks and balances.  The entire decision about whether the U.S. government can kill an American citizen is left to only one branch of government.  If the DOJ determines that the three criteria mentioned about are met, then it is a fait accompli.  The American is killed without due process.

Secondly, and this is probably obvious on it face, it makes an accusation into a verdict.  Normally, when the DOJ — or any government body — says that somebody is doing something illegal, those accusations are brought before a jury.  There is a trial (due process) and punishment is given if a guilty verdict is reached.  Here, the mere accusation of being a terrorist is enough to get you killed.

Most troubling to me is the requirement that an attack be "imminent".  Greenwald explains:

The memo claims that the president's assassination power applies to a senior al-Qaida member who "poses an imminent threat of violent attack against the United States". That is designed to convince citizens to accept this power by leading them to believe it's similar to common and familiar domestic uses of lethal force on US soil: if, for instance, an armed criminal is in the process of robbing a bank or is about to shoot hostages, then the "imminence" of the threat he poses justifies the use of lethal force against him by the police.

But this rhetorical tactic is totally misleading. The memo is authorizing assassinations against citizens in circumstances far beyond this understanding of "imminence". Indeed, the memo expressly states that it is inventing "a broader concept of imminence" than is typically used in domestic law. Specifically, the president's assassination power "does not require that the US have clear evidence that a specific attack . . . will take place in the immediate future". The US routinely assassinates its targets not when they are engaged in or plotting attacks but when they are at home, with family members, riding in a car, at work, at funerals, rescuing other drone victims, etc.

So the legal memo has an imminence requirement, but "imminent" doesn't really mean "imminent" in the way you or I might use that word.

This is all very Bushian — the kind of thing you would expect from the Bush Administration.  It is fitting indeed that the memo expressly embraces two core Bush/Cheney theories to justify this view of what "due process" requires. First, it cites the Bush DOJ's core view, as enunciated by John Yoo, that courts have no role to play in what the president does in the War on Terror because judicial review constitutes "judicial encroachment" on the "judgments by the President and his national security advisers as to when and how to use force". And then it cites the Bush DOJ's mostly successful arguments in the 2004 Hamdi case that the president has the authority even to imprison US citizens without trial provided that he accuses them of being a terrorist.

The goofy right wing thinks this means that Obama has given himself permission to kill Americans here and aborad willy-nilly.  And typical of their hysteria, they are gathering their guns and dehydrated foot and stocking the bunker in preparation for the doomsday that this memo foretells.  Obviously, that's not what worries me.  

But it is a chipping away at the Constitution, and that should always be condemened.  Even if the slippery slope is a paranoid fantasy.

Shame on Obama.