David Cole writes: On Monday, NBC published a leaked Justice Department “white paper” laying out the Obama administration’s case for when the president, or indeed any “informed, high-level official” of the federal government, can authorize the secret killing of a US citizen without charges, a hearing, or a trial. The paper, which appears to summarize a still-classified internal memorandum drafted by the Justice Department’s Office of Legal Counsel to authorize the targeted killing in September 2011 of US citizen Anwar al-Awlaki, provides more detail than has yet been made public about the administration’s controversial drone program.

Consistent with the positions taken in public speeches by former State Department Legal Advisor Harold Koh, Attorney General Eric Holder, and White House counterterrorism advisor and CIA director-nominee John Brennan, the sixteen-page white paper argues that killing a US citizen with a drone and without trial is legal under domestic and international law, even if the individual is far from any battlefield, not a member of al-Qaeda, and not engaged in planning an imminent attack on the United States. To date, much of the concern about the administration’s drone program has stemmed from its largely secret character; unfortunately, the more we learn, the greater those concerns become.

It is unclear why this document had to be leaked in order to enter the public domain. It is not marked classified, and appears to be designed for public consumption — why else would a separate white paper need to be drawn up to describe legal reasoning already contained in a classified OLC memorandum? It may well have been drafted to see whether the contours of the OLC memorandum could be made public without disclosing any classified or sensitive information. But if that’s the case, why didn’t the Obama administration release the paper as an official public act? In opposing a Freedom of Information Act suit filed by the ACLU, the administration is fighting tooth and nail to keep everything about the drone program secret, but this paper suggests that much more could be disclosed — for example, the procedures and standards employed for placing someone on the “kill list,” and the general bases for and results of actual strikes — without the sky falling. If this administration is truly committed to transparency, memos like this should not have to be obtained by the media through back channels.

The white paper addresses the legality of killing a US citizen “who is a senior operational leader of al-Qaeda or an associated force.” Such a person may be killed, the document concludes, if an “informed, high-level official” finds (1) that he poses “an imminent threat of violent attack against the United States;” (2) that his capture is not feasible; and (3) the operation is conducted consistent with law-of-war principles, such as the need to minimize collateral damage. However, the paper offers no guidance as to what level of proof is necessary: does the official have to be satisfied beyond a reasonable doubt, by a preponderance of the evidence, or is reasonable suspicion sufficient? We are not told.

Nor does the paper describe what procedural safeguards are to be employed. It only tells us what is not required: having a court determine whether the criteria are in fact met. The paper asserts that this assessment is best left entirely to the executive because it involves foreign affairs and military tactics, and maintains that judicial review would impermissibly require a court to “supervise inherently predictive judgments by the President and his national security advisors.” But courts review executive predictive judgments every time they rule on a government request for a search or wiretap warrant, including those sought for national security purposes under the Foreign Intelligence Surveillance Act. If courts routinely issue warrants for arrests and searches, why are they somehow unable to issue warrants for drone strikes?

From news reports, we know that the targeted killing program involves elaborate preparation and review of “kill lists,” debated in weekly conference calls in which as many as one hundred people take part. The US citizen and radical Islamist Anwar al-Awlaki was reportedly on such a list for more than a year before he was killed. With that kind of time frame, there is no logistical reason why independent judicial review could not have taken place. [Continue reading…]

Morris Davis, a retired U.S. military officer and former chief prosecutor for the military commissions at Guantánamo Bay, writes: The disclosure Tuesday evening of the Department of Justice white paper on targeted killing (pdf) has sparked a lot of debate, much of it focused on the Obama administration’s extraordinarily broad interpretation of what constitutes an “imminent” threat that justifies lethal force as an act of self-defense. As Senator Rand Paul (Republican, Kentucky) told reporters during a conference call on Wednesday, “only a team of lawyers could define ‘imminent’ to mean the exact opposite” of what the word means in the real world.

There are, no doubt, many Americans alive today who should be thankful their healthcare providers did not apply the administration’s interpretation of “imminent” to decide if they had crossed over the line of imminent death and said pull the plug.

Some people have acquired power and profits in post-9/11 America by pandering to and perpetuating fear. As has been the case on a range of legal issues – torture, indefinite detention, warrantless surveillance, kill lists – all it takes is for someone to say “terrorism” and “threat to security” in the same breath for the vast majority of the public to handover its principles. Rather than a serious discussion on the proper law/liberty/security balance, too often the public accepts the false syllogism that whatever it takes to stop “them” from hurting “us” is obviously, as White House spokesman Jay Carney might say, “legal, ethical and wise“.

Targeted killing falls into that category. The discussion tends to glom what should be several discrete inquiries – where will the lethal operation take place; who is the imminent threat and why; who will conduct the operation; and what laws apply, among others – into one big ball that slides through with little scrutiny.

The DOJ white paper discusses the right to take military action against a US citizen who is part of the enemy forces, law of war principles that govern application of military power, judicial deference to military judgments in the conduct of warfare, and combatant immunity that gives legal sanction to a deliberate killing by a member of the armed forces acting in compliance with the law of war. In and of themselves, those are all very valid points.

What the white paper ignores, however, is that the US has both a military and a CIA drone program, each one subject to its own rules. The CIA is a civilian agency with civilian employees and civilian contractors. It is not part of the US armed forces and its drone program is not immune from liability by the law of war principles that might apply to the military drone program. [Continue reading…]