The Executive As Executioner

Feb 5 2013 @ 1:27pm

Justice Department Memo on Legal Case for Drone Strikes on Americans

Greenwald analyzes the Isikoff memo (embedded above):

This is the crucial point: the memo isn’t justifying the due-process-free execution of senior al-Qaida leaders who pose an imminent threat to the US. It is justifying the due-process-free execution of people secretly accused by the president and his underlings, with no due process, of being that. The distinction between (a) government accusations and (b) proof of guilt is central to every free society, by definition, yet this memo – and those who defend Obama’s assassination power – willfully ignore it.

Friedersdorf looks at how the document defines “imminent”:

[T]he part of the memo worth dwelling on most, at least until legal experts offer deeper analysis than I confidently can, is the portion that deals with “an imminent threat of violent attack.” On reading the document, that clause is sort of reassuring. After all, there aren’t that many circumstances when an attack is imminent. It would seem to severely constrain extrajudicial assassinations. As it turns out, however, the memo reassures the reader with the rhetorically powerful word “imminent,” only to define imminence down in a way that makes it largely meaningless — so much so that it’s actually reminiscent of George W. Bush’s misuse of imminent to characterize the threat posed by Iraq.

The ACLU’s Jameel Jaffer makes related points:

The white paper purports to recognize some limits on the authority it sets out, but the limits are so vague and elastic that they will be easily manipulated. The paper initially suggests, for example, that the government’s authority to use lethal force is limited to people who present “imminent” threats, but it then proceeds to redefine the word imminence in a way that deprives the word of its ordinary meaning. The paper does something similar with the phrase “capture is infeasible.” It initially sounds like a real limitation but by page 8 it seems to mean only that the government won’t use lethal force if capture is more convenient. It’s the language of limits—but without any real restrictions.

Ambers adds:

Even if the person is not actively planning terrorist attacks against the U.S., because of the nature of terrorist attacks in general, merely his membership in an organization that is planning those attacks meets the requisite definition of imminence. So, basically, imminence does not mean imminent.

Gerard N. Magliocca would prefer “that Congress create a statutory regime for such decisions that would require the National Security Council to sign off on each of these citizen attacks before the President can proceed”:

First, who counts as a high-level official? The CIA Director? The Ambassador to Pakistan? An analyst at Langley? This is not clear at all. Second, suppose that the majority view in the intelligence community is that someone does not pose an imminent threat. The standard for death, I gather, is met so long as ONE informed, high-level person thinks that a suspect poses an imminent threat. I submit that the President can always find one “senior-enough” person in his Administration with that view, so in reality the DOJ standard just gives the White House carte blanche.

Jacob Sullum puts the executive power grab in perspective:

The problem is that to accept this position, you have to put complete trust in the competence, wisdom, and ethics of the president, his underlings, and their successors. You have to believe they are properly defining and inerrantly identifying people who pose an imminent (or quasi-imminent) threat to national security and eliminating that threat through the only feasible means, which involves blowing people up from a distance. If mere mortals deserved that kind of faith, we would not need a Fifth Amendment, or the rest of the Constitution.

Marcy Wheeler wants other government memos released:

As important as it is to see the white paper DOJ gave Congress to explain its purported legal rationale, it is just as important to make clear what this white paper is not. First, is it not the actual legal memos used to authorize the killing of Anwar al-Awlaki and who knows who else. As Michael Isikoff notes in his story, the Senators whose job it is to oversee the Executive Branch — even the ones on the Senate Intelligence Committee that are supposed to be read into covert operations — are still demanding the memosfor at least the 12th time. The release of this white paper must not serve to take pressure off of the White House to release the actual memos.

Adam Serwer’s bottom line:

The government needs the approval of a judge to detain a suspected terrorist. To kill one, it need only give itself permission.