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Last night Rachel Maddow had her first segment discuss a white paper that discusses the administration's legal justification for killing people, including Americans, without trial, by executive fiat, if you will.  For while President Obama ended the use of torture on his first day in office, for years the administration hid the legal grounds for suing our military to kill suspected terrorists primarily using automated drones.

Last year, Secretary Holder, finally addressed the issue, claiming the President employed a three part test before issuing an order to the military or CIA to "kill a U.S. citizen who poses a terrorist threat."

Holder outlined a three-part test for determining when a targeted killing against a U.S. citizen is legal. He said the government must determine after careful review that the citizen poses an imminent threat of violent attack against the U.S., capture is not feasible and the killing would be consistent with laws of war. [...]

 Holder rejected the suggestion that the Constitution's due-process protections require permission from a federal court before taking lethal action.

"The unfortunate reality is that our nation will likely continue to face terrorist threats that at times originate with our own citizens," Holder said. "When such individuals take up arms, ... plotting attacks designed to kill their fellow Americans, there may be only one realistic and appropriate response."

The administration has never released the alleged memorandum that stands behind the claim the these actions are not illegal under existing law.  However, NBC reporter, Michael Isikoff, has obtained a 15 page "white paper" that discusses the administration's legal basis for these killings (the document can be found online here.  The implications it reveals, not only for the current use of drones and other military operations to kill Americans, is very troubling, the moreso when one realizes that future administrations may consider it as precedent for expanding the power of the executive branch's use of the military to act as the proverbial "judge, jury and executioner" despite the provisions in our constitution (primarily Article III and the fourth, fifth and sixth amendments) that require due process and prohibit one branch of the government from acting unilaterally to deprive "persons" of their right to life.

How so? Consider that the term "imminent threat" the first prong of the administration's test stands the term imminent on its head.

“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,” the memo states.

Instead, it says,  an “informed, high-level” official of the U.S. government may determine that the targeted American  has been “recently” involved in “activities” posing a threat of a violent attack and “there is  no evidence suggesting that he has renounced or abandoned such activities.” The memo does not define “recently” or “activities.”

The use of language such as this leaves the door wide open for interpretation.  What activities are included?  Does writing a manifesto calling for violent action meet the standard?  And what is the meaning of "recent" under this test>  We simply don't know.  As for the claim that "no evidence" exists that said person has renounced or abandoned these activities, well, how easy is it to for an "informed, high level official" (and how many people fall within that category?) to claim he or she have no evidence of any renunciation by the proposed "target?"  That is no burden at all, in my view.

The problem with re-defining the words "imminent threat" and "activities posing a threat of a violent attack" so vaguely is that it opens the door to future Presidents expanding this power to include anyone they determine poses a threat, not just Islamist terrorists.  Even those of us here who frequently document and warn of the threat of domestic terrorism from the right do not extend to the government the right to unilaterally kill such individuals without providing them with a trial and appeals through access to our justice system.  Timothy McVeigh, Ted Kaczynski and Eric Rudolph all received fair trials at which they were represented by counsel.  We certainly hope that the Obama administration is exercising its power to kill Americans without arresting them first by employing the most exacting, restrictive definition of these terms but we have no way of knowing that.  For the administration has kept the process under which these decisions are made secret and only gave members of the Senate Intelligence and Judiciary Committees this white paper summary of its legal justification for last summer.

[T]he white paper was represented by administration  officials as a policy document that closely mirrors the arguments of classified memos on targeted killings by the Justice Department’s  Office of Legal Counsel, which provides authoritative legal advice to the president and all executive branch agencies. The administration has refused to turn over to Congress or release those memos publicly -- or even publicly confirm their existence.
This is essentially the claim of power by the executive branch under a Democratic President that was made by the Bush administration to employ torture, i.e., the power of a unitary executive to act in certain matters without any review by the courts of its actions.  The white paper does not list the laws or legal theories on which the Obama administration has relied and presumably continues to rely upon to justify these killings, though it hints at some of them by referring to "conducting operations in a manner consistent with applicable principles of war."   Now that's a finely tuned phrase if I ever read one, as well.

The white paper refers to the armed conflict with "Al Quaida," a stateless enemy' but it does not restrict its interpretation of its power based on that alleged conflict.  It specifically says that it has the power to override a US Citizen's right to due process under the Constitution and kill him or her without arrest or trial if it determines, under its sole discretion, that the need to protect the country is great enough.  I quote the paper directly here:

Were the target of a lethal operation a US citizen who may have rights under the Due Process Clause and the Fourth Amendment, that individual's citizenship would not immunize him from a lethal operation. ... That interest must be balanced against the United States' interest in forestalling the threat of violence or death ... by one who is engaged in plotting against the United States.

That is a broad and bold claim, particularly when one considers that what the administration defines as an imminent threat is so open to interpretation as to be essentially meaningless.  President Bush justified his wars against Afghanistan and Iraq on the same claim of an imminent threat.  One can argue the legitimacy of that case with respect to Afghanistan, but with Iraq?  Imminence as defined by the "principles of war" referred to in this paper has always previous meant the threat of an impending, immediate attack on the sovereign territory or citizens of a nation state.  Now it appears imminence is whatever the current occupant of the White House and his advisers and the military leadership claim it to be.  These are dangerous waters to be sailing into.

We already know that thousands of individuals, many of them innocent civilians,  were tortured and abused by the Bush administration under its determination of what constituted an imminent threat.  Likewise, thousands of innocent civilians have been killed in US drone strikes because of faulty intelligence on simply being in the wrong place at the wrong time.  All of these atrocities have been justified as the unfortunate consequences of war, in this case the war on terror, or as the Obama administration has framed it, the threat of terrorism.

The ultimate issue at stake isn't whether "terrorist threats" originating overseas justifies the actions taken by the last two President of the United States.  The ultimate issue is one that we may face in the future: the use of force unilaterally by one branch of the government against anyone, anywhere, US citizen or not, which it determines poses a threat to the United States.  In essence, it is the danger of the Executive Branch becoming the sole arbiter of who lives or dies based on a unilateral decision that is not reviewable by the Courts, nor expressly authorized by Congress.  We may believe we can trust President Obama and his administration to make those decisions wisely. However, the overriding question that President Obama's policy reveals is whether we should allow any President and any administration, now or in the future, to claim, much less exercise such unrestrained and broad power, i.e., the power to determine when Constitutional prohibitions against the use of executive authority, and/or the rejection of individual rights guaranteed by that same Constitution, as amended, do not apply when it comes to the taking of human lives.  


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