by Jeremy Leaming
The increasingly disturbing use of Reaper and Predator drones to kill suspected terrorists, and too often civilians alongside them, was apparently given the green light by some DOJ lawyers in the Office of Legal Counsel (OLC). But that’s not for certain since the Obama administration rarely talks about the drone war.
But a leaked white paper apparently crafted by lawyers in the OLC may be a summary of a more expansive document – the ACLU is suing to find out. The paper, however, as The New York Times and others have quickly noted advances convoluted and radical arguments for an outrageous expansion of executive power.
Constitutional law scholar and Georgetown University law school professor David Cole, in a piece for NYR blog explores, “how we made killing easy.” And Cole notes by the way that the Obama administration is battling “tooth and nail” the ACLU’s effort to force the release of the entire legal document.
The white paper argues that an informed, high-ranking government official can order the killing of a U.S. citizen integral to or associated with Al-Qaeda abroad if the person poses an “imminent threat of violent attack” against the country, the person is unlikely to be captured and that the killing operation would be conducted in accordance with laws governing war.
The brief paper tosses aside due process in a strained effort to justify executive branch power, with essentially no oversight, to order the killing of terrorist suspects, even U.S. citizens.
And as Cole notes the wobbly white paper greatly expands the definition of imminence:
There need be no showing, the paper claims, that an attack will ‘take place in the immediate future.’ Instead, it coins what it euphemistically calls a ‘broader concept of imminence.’ On this view, an al-Qaeda leader by definition poses an imminent threat, no matter what he is doing – because al-Qaeda is continually plotting attacks against the United States, will undertake them whenever it can do so, and we may not be aware of all such plots. In such a case, all that is required is a ‘window of opportunity,’ not an immediate threat.
The reasoning directly contradicts the central purpose of the ‘imminence’ requirement – to ensure that lethal force is used only as a last resort. If there is no evidence of an immediately pending attack, it is possible that some alternative way of countering the threat – in particular, by capture – may become available. And if so, then killing the suspect is neither necessary nor legal under domestic or international law. Is it any coincidence that the Obama administration has killed hundreds of suspected terrorists with drones outside Afghanistan, but captured almost none?
Cole concludes that “drones have made it possible for the US government to do something that was unthinkable before, and should be unthinkable still – to kill its own citizens in secret. In short, drones radically reduce disincentives to killing.”
The white paper beyond drawing derision for its sweeping claims of legality for killing American citizens has provoked members of Congress to consider action.
Sen. Chris Coons (D-Del.) said, “It has to be in the agenda of this Congress to reconsider the scope of action of drones and use of deadly force by the United States around the world because the original authorization of use of force, I think, is being strained to its limits,” CBS News reports.
The prior administration was upfront, to a degree, about operating within the “dark side” of war. The Obama administration has gone to great lengths to keep secret its push to expand the use of drones. But when too many of those drone strikes wipe out scores of innocent people and takes out a U.S. citizen, it becomes increasingly difficult for the administration to keep under wrap its outlandish view of executive power.
[image via Wikimedia Commons]