Sweeping DOJ Paper Shunts Due Process, Trumpets ‘Radical’ Executive Branch Power

February 5, 2013

by Jeremy Leaming

The DOJ white paper advancing broad and opaque arguments for the executive branch to kill U.S. citizens thought to be connected with Al Qaeda is a “radical jurisprudential notion,” Salon’s David Sirota writes. He calls the jurisprudential notion “Too Big to Curtail.

That moniker, he continues, “is the most accurate label to describe the machinery of the government’s ever-expanding drone war.”

The DOJ’s white paper concludes three conditions must be met for the federal government to kill a U.S. citizen who is integral to Al Qaeda or “an associated force of” of the terrorist group without violating the Constitution. They require a high-ranking federal official who says the person targeted for killing is an “imminent threat to the country,” capturing the person is “infeasible,” and the lethal operation doesn’t violate laws governing use of force during war time.

Sirota says the “most harrowing takeaway” from the DOJ document is that the killing of a U.S. citizen abroad can be made by a high-ranking government official even if there is no “clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”

Essentially, Sirota continues, the white paper maintains that the “president doesn’t actually need evidence to order someone’s death.” 

The Dish in a post dubbed, “The Executive As Executioner,” includes comment from an array of folks, including the ACLU’s Deputy Legal Director Jameel Jaffer.

 

In a post for the ACLU’s Blog of Rights, Jaffer says the white paper is “said to summarize a 50-odd page legal memo written in 2010 by the Justice Department’s Office of Legal Counsel to justify the addition of U.S. citizen Anwar Al-Aulaqi to the government’s ‘kill lists.’” He notes the ACLU through a Freedom of Information Act request is seeking the entire document. But the 16-page white paper obtained by NBC News provides a “basic contention … that the government has the authority to carry out the extrajudicial killing of an American citizen if ‘an informed, high-level official’ deems him to present a ‘continuing threat to the country.’ This sweeping authority is said to exist even if the threat presented isn’t imminent in any ordinary sense of that word, even if the target has never been charged with a crime or informed of the allegations against him, and even if the target is not located anywhere near an actual battlefield.”

The short paper represents an outlandish call for executive branch overreach. The Constitution’s Due Process Clause, a protector of liberty, is tossed aside – no concern in these situations, the DOJ concludes.

[image via Wikimedia Commons]