This past week a secret white paper outlining legal justifications for the targeted killing of a U.S. citizen came to light. The brief, titled "Lawfulness of a Lethal Operation Directed Against a U.S. Citizen who is a Senior Operational Leader of Al Qaida or an Associated Force" discusses how the Obama administration might find legal support for what appears on first glance as a patently illegal act.
The paper argues that the extrajudicial killing of US citizens does not violate citizens' 5th Amendment rights to due process, nor does it violate 4th Amendment rights to unreasonable searches and seizures. What's more, the paper even goes so far as to claim that the policy of targeted assassination of suspected members of Al-Qa'ida (AQ) does not violate US federal bans on unlawful killings in Title 18 or Executive Order 12333, which bans assassinations. In other words, the policy denies that government does any sort of wrong by acting outside of a body of constitutional and federal law that states the contrary.
Yet how does this happen? The magic bullet in the Department of Justice's argument is its definition of "imminence." Because most law states that in cases where the state's interest is in tension with the individual rights holder's interest, a "balancing" test should occur. This balancing ought to weigh things like national interest, defense, public welfare, etc., against the individual's claims to freedom, protection under the rule of law, and justice. In the case of extrajudicial killing of American citizens identified as "senior operational leaders of Al Qa'ida or an associated force", the government argues that the state's interest outweighs that of the individual because the state is in a publicly declared state of war with the group and its affiliates. Therefore, the US is acting in self-defense, and under commonsense and legal reasoning, if one is facing an imminent threat, one may act in self-defense pre-emptively to thwart that attack.
This all seems like a tidy legal argument to make. However, upon closer examination it is at best a legal farce and at worst detrimental to the rule of law in the US (and possibly elsewhere). The government's definition of "imminence" in this instance is not the normal usage, where we typically mean something temporally impending. The DoJ actually denies that the temporal element should even be part of the definition of "imminence' in this matter.
Rather, the DoJ argues that "imminent "is a matter of three features: continually planning to attack the US, the feasibility of capture, and the value of deterrence. That a US citizen abroad is determined to be part of AQ and its affiliates means, therefore, that he automatically satisfies the first condition, for the argument runs that AQ has declared war on the US. This might hold some (though little) traction, but the two other features are bizarre additions.
The "feasibility" of capture means that it is impractical to enter into a foreign country and extract the person for legal trial. This is for two reasons. The first is that the foreign country denies its consent to allow US troops into its sovereign territory to engage in a capture operation. The second is that such an operation, even if consented to, might be too risky to the operatives. How then might the US kill such a person if it is unfeasible to capture him (assuming all of the legal arguments are sound)? Enter the drones.
While the DoJ's white paper does not explicitly claim that unmanned aerial vehicles are the weapons of choice to assassinate these targets, it does state that it is not "impermissible" to use them. In other words, when a foreign state, like Pakistan or Yemen, harbors "senior operational leaders" of AQ, the US reserves a right to act in self-defense by killing those individuals because those individuals, at some point, plan to attack the US. If the foreign country denies access to US forces, the US believes it can send drones into the country's air space (and thus sovereign territory), and carry out a kill operation. Which is somewhat odd, as if the foreign state denies consent to put boots on its ground, then how would it feel about violations of air space? Moreover, by continually engaging such threats with lethal force, the "imminence" argument goes, there will be a deterrent effect (but for whom is left unclear).
But who determines whether an individual is a senior operational leader of AQ or its affiliates? Who decides whether a caption mission is unfeasible? Who decides to send in the drones? Again, the paper is rather vague, using only the language of "an informed high level official of the US government." This "high level official" is able to act outside of judicial review, as involving the courts would be onerous and threaten to encroach upon the Executive's power and judgment in performing his tasks as the Commander in Chief.
But such an argument tears away the very bedrock of US constitutional law. This "high level official" acts as judge, jury and executioner of US citizens. The rule of law becomes nothing more than something convenient to justify such acts, but when the law contradicts executing individuals without trial, evidentiary procedures or protections, then the law is overridden with a justification of "state's interests." What's more, if this white paper is any indication of the Obama administration's viewpoint on the legal justification of a targeted killing program, then it views its actions as fully congruent with US legal principles. Because the government is a "public authority" it can, basically, do no wrong. Anyone it decides to target automatically becomes the subject of a lawful killing.
What does all this ultimately mean? It means that if you find yourself in the unfortunate position to be deemed a "senior operational leader", you have no recourse through the rule of law, no protection from execution, and even your status as an "enemy force" offers you no protection (for belligerents in conflict also have rights). Moreover, the US saddles up its moral high horse and claims that its actions do not threaten the bedrock of individual rights and freedoms, but are done for the greater good.
If constitutional law can be stretched to such an extreme, if the executive can amass even more power into its hands, then there is a risk that such power can be used in the future to further erode the rights of US citizens -- perhaps not abroad but at home -- if the "high level official" deems it so. The result? This "high level official" starts more and more to look like an authoritarian monarch rather than a person representing one function in a system designed to guard against such despotism.
The drafters of the US constitution constructed a federated system with checks and balances to guard against this result. It seems now, with an increase in executive power and a new technology that attempts to sanitize war (on our side), such constructions might no longer be sufficient to guard rights.