An official Justice Department “White Paper” has been released to the media detailing (or failing to detail) the White House’s justification for drone strikes on American citizens. While this is not an official legal memo, the actual memos remain classified, it represents the official logic used by our government in hunting down American citizens and killing them without trial, after concluding they are senior Al-Qaeda leaders.
It is about time.
Years have now passed since the U.S.’s drone attack on natural born American citizen, Anwar al-Awlaki, which left him dead without due process of law. That act, which this site has long viewed as the single most important act of the Obama presidency, is without a doubt an impeachable offense, assuming Obama’s actual discretion could be clearly linked to the assassination.
The memo also lays out the long discussed three-part test used to justify American assassinations.
1.) The American citizen must present an imminent threat;
2.) Capture of the American citizen must be infeasible, and
3.) The attack must be achieved using “law or war principles.”
If you think that is arbitrary, it gets worse.
The memo states in part:
“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 . . . “
That’s right. Imminent doesn’t mean, “likely to occur at any moment” or “impending” in the dictionary sense. It means the American has “recently” been involved in “activities” posing a threat of violent attack and “there is no evidence suggesting that he has renounced or abandoned such activities.”
As the NBC.com points out, the memo neglects to define “recently” or “activities.” Nor is a clear criteria and justification used for replacing a jury trial as demanded by the U.S. Constitution with bureaucratic research in order to convict citizens.
The AG opinion also provides officials with discretion to consider whether an attempted capture of a citizen would pose an “undue risk” to U.S. personnel. An undue risk could present the opportunity for the government to order an assassination rather than a capture.
Holder recently stated in a speech at Northwestern University earlier this year, that “[t]he Constitution does not require the President to delay action until some theoretical end-stage of planning, when the precise time, place and manner of an attack become clear.”
This policy of the Obama Administration goes far beyond any extrajudicial justice our first 43 presidents pursued. Arbitrary, vague and capricious, this policy sets a precedent that is dangerous not only to the Fourth Amendment that guarantees Due Process of law, but to our entire cache of rights embodied in the Constitution.
I am proud of both Democrats and Republicans bucking the party line in order to pursue more answers from the Obama Administration and specifically, their request to release the entire series of memos. This is a line in the sand kind of issue.
Haha, I know that I’m supposed to be the liberal and you’re supposed to be the conservative, but try as I might I just can’t get myself worked up over this. I fully understand your argument, and correct me if I’m wrong, but it’s my understanding that so far these drone attacks against American citizens have only been carried out against those who were outside of our national borders and were known to be cooperating with terrorist organizations. So long as these strikes are confined to those parameters, I say good riddance. As far as I’m concerned traitors are estopped from asserting constitutional defenses. I think that when it comes to war and national security there is always a balancing act that has to struck between lofty consitutional theory and nitty gritty on-the-ground reality, and this to me just doesn’t tip the scales.
That being said, I do share your concerns about the use of drones in general – I think that it’s becoming very Orwellian and I fear where it might lead. I share Robert E. Lee’s sentiment that “it is well that war is so terrible, otherwise we should grow too fond of it,” and I fear that that robots and drones make war far too easy for governments to pursue.
But to the extent a drone is used to kill an American citizen who is actively working with America’s enemies, I just can’t sympathize, any more that I can sympathize with the traitors that they used to hang during the Revolutionary and Civil Wars. I guess if you could show me any evidence that an innocent American citizen had been killed, or that drone attacks were being used against political dissidents as opposed to blatant traitors, then I might be more sympathetic to your argument. Until then, this just sounds like run-of-the-mill ACLU whining to me. While remaining cognizant of Benjamin Franklin’s admonition that “they who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety,” I view current governmental efforts directed at gun control to be much more of a threat to civil liberties and constitutional rights than this.
Mr. B.,
I can’t believe you!! This is one of the most important issues we face!
You are correct that SO FAR, drone attacks have only taken place outside the U.S. However, there are no national boundary prerequisites laid out in Eric Holder’s White Paper.
You know as well as I do that you can’t just call people a “terrorist” anymore than I can call you a joyist or a angerist. Terror is an emotion or a fighting technique. And you are right, if someone is found to be a criminal through due process, they lose their rights. However, they must be given due process. Even traitors are given trials before military tribunals.
You want evidence of an innocent American citizen that has been killed?
Abdulrahman al-Awlaki was the 16 year old son of al-Awlaki. Unlike his father, he wasn’t a professed terrorist, he hadn’t renounced his American citizenship and most importantly — he was a minor. Even with a trial, we don’t kill minors.
If you are on the same side of a debate as Sean Hannity, you may want to rethink your position. lol.
P.S. – I consider any thought process a success that can drop in some REL.
Haha, I concede that it is a somewhat ironic position that I find myself in, but it is my position nevertheless, arrived at by a method of logic which I call “keeping it real.” We live in a time when “conservative” and “liberal” are becoming increasingly vague distinctions. I mean, what would you have us do? Send Seal Team 6 into Afghanistan and risk God knows how many soldier’ lives to extract this guy just so we can bring him back here and try him? And what if he launches an attack while we are in the process of doing that? Would the president not surely be blamed then?
As far as the word “terrorist” is concerned, your tortured attempt at a definition is unnecessary in this case, because Mr. Al-Awlaki was a member of Al-Qaeda, a group whose stated purpose is to, among other things, destroy the United States and its allies in Israel and Europe. Simply belonging to such an organization is ipso facto treason. It’s much more than simply being a Muslim disgruntled with U.S. policy. It’s much more than mere political dissidence. And the penalty for treason which endangers innocent American lives is, or at least should be, death. When you cut through the theoretical fat and get to the meat of the issue, it’s that simple.
Obviously, under ideal conditions traitors can be tried or court-martialed. But hiding out in caves and mud huts in the Middle East is far from ideal. And while the Government is wasting precious time searching for such a person, he is busy developing weapons of mass destruction, endangering potentially millions of American lives, so both the circumstances and the stakes are categorically different from anything that our Founders could have imagined.
I reject slippery slope arguments in general because pretty much anything can in theory be a slippery slope. Maybe the memo doesn’t explictly limit itself to the parameters of Al Qaeda affiliation outside U.S. borders, but unless and until the policy is applied differently, I have no reason to believe that it will be, for the same reason that I have no reason to believe that gay marriage will lead to beastiality.
The problem with theoretical absolutism is that it becomes very easy to put oneself in such a political straightjacket that it becomes impossible to effectively conduct a war or protect American lives. Abraham Lincoln, to give one example, suspended habeas corpus during the Civil War and admitted a new state into the Union on constitutional footing which was shaky, at best. Yet I don’t believe that most Americans, if asked, would say that Abraham Lincoln abused his power. My point is that there’s a very big difference between sitting in Professor Harris’s Con Law class in Grundy and sitting in the Oval Office or the Pentagon or Langley. And until I see more evidence of abuse of power than simply droning down some Al Qaeda traitor, I’m simply not willing to pass that kind of judgment.
With regard to the man’s son, all I can say is that actions have consequences, and the boy’s blood is on his father’s hands, not this Government’s.