Obama’s Secret Power To Kill Anyone, Anywhere, at Any Time
Naomi Wolf—eeeeeeek! I know, I know, but bear with me, please—had a very interesting column in the Guardian about a new independent documentary called Dirty Wars, tracking the use of secret assassins by the US government. It neatly dovetails with the recent release of a DOJ memo outlining the legal case for drone strikes on Americans. Together, the two items reveal that we are living in a very different world, one where the American president has unlimited power to kill anybody, without any sort of legal repercussions whatsoever.
The film Dirty Wars, which premiered at Sundance, can be viewed, as Amy Goodman sees it, as an important narrative of excesses in the global “war on terror”. It is also a record of something scary for those of us at home – and uncovers the biggest story, I would say, in our nation’s contemporary history.
Though they wisely refrain from drawing inferences, Scahill and Rowley have uncovered the facts of a new unaccountable power in America and the world that has the potential to shape domestic and international events in an unprecedented way. The film tracks the Joint Special Operations Command (JSoc), a network of highly-trained, completely unaccountable US assassins, armed with ever-expanding “kill lists”. It was JSoc that ran the operation behind the Navy Seal team six that killed bin Laden.
Scahill and Rowley track this new model of US warfare that strikes at civilians and insurgents alike – in 70 countries. They interview former JSoc assassins, who are shell-shocked at how the “kill lists” they are given keep expanding, even as they eliminate more and more people.
Our conventional forces are subject to international laws of war: they are accountable for crimes in courts martial; and they run according to a clear chain of command. As much as the US military may fall short of these standards at times, it is a model of lawfulness compared with JSoc, which has far greater scope to undertake the commission of extra-legal operations – and unimaginable crimes.
JSoc morphs the secretive, unaccountable mercenary model of private military contracting, which Scahill identified in Blackwater: The Rise of the World’s Most Powerful Mercenary Army, into a hybrid with the firepower and intelligence backup of our full state resources. The Hill reports that JSoc is now seeking more “flexibility” to expand its operations globally.
I was initially skeptical of this description of JSOC. The Joint Special Operations Command is really just an administrative command that brings together the special operations units of each service—Army, Navy, Air Force, and Marines. (Do the Coast Guard have special operations units? I don’t know.) But then on second thought, is this really so outlandish? When we have kill lists and secret memos already, the NDAA and drone strikes? And particularly, this?
A confidential Justice Department memo concludes that the U.S. government can order the killing of American citizens if they are believed to be “senior operational leaders” of al-Qaida or “an associated force” — even if there is no intelligence indicating they are engaged in an active plot to attack the U.S.
The 16-page memo, a copy of which was obtained by NBC News, provides new details about the legal reasoning behind one of the Obama administration’s most secretive and controversial polices: its dramatically increased use of drone strikes against al-Qaida suspects abroad, including those aimed at American citizens, such as the September 2011 strike in Yemen that killed alleged al-Qaida operatives Anwar al-Awlaki and Samir Khan. Both were U.S. citizens who had never been indicted by the U.S. government nor charged with any crimes.
The secrecy surrounding such strikes is fast emerging as a central issue in this week’s hearing of White House counterterrorism adviser John Brennan, a key architect of the drone campaign, to be CIA director. Brennan was the first administration official to publicly acknowledge drone strikes in a speech last year, calling them “consistent with the inherent right of self-defense.” In a separate talk at the Northwestern University Law School in March, Attorney General Eric Holder specifically endorsed the constitutionality of targeted killings of Americans, saying they could be justified if government officials determine the target poses “an imminent threat of violent attack.”
But the confidential Justice Department “white paper” introduces a more expansive definition of self-defense or imminent attack than described by Brennan or Holder in their public speeches. It refers, for example, to what it calls a “broader concept of imminence” than actual intelligence about any ongoing plot against the U.S. homeland.
That’s right, folks—we now have a federal government which can kill you with a drone at any point, without any real justification. It needs no intelligence or reason to do so, just a broad sense that you might do something bad really soon. This is literally “That guy is looking at me funny, so I’m going to drone strike his rear.”
Is that a mature way to run a government? No—this is a government of childish schoolyard bullies and junior high dropouts who beat their wives after they come home from what passes for “work.” This is not the kind of governing our leaders are supposed to do. This is not how one leads a republic.
Joe Scarborough rightly notes that if George W. Bush had pulled this stunt, the left would have been up in arms, and it would have ended. Meanwhile, Jacob Sullum at reason has the most terrifying details of all:
The main conclusion of the paper, which was obtained by NBC News, is that “it would be lawful for the United States to conduct a lethal operation outside the United States against a U.S. citizen who is a senior, operational leader of al-Qa’ida or an associated force of al-Qa’ ida without violating the Constitution or…federal statutes…under the following conditions: (1) an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States; (2) capture is infeasible, and the United States continues to monitor whether capture becomes feasible; and (3) the operation is conducted in a manner consistent with the four fundamental principles of the laws of war governing the use of force”—i.e., “necessity, distinction, proportionality, and humanity.” Here are five points worth highlighting:
1. There may be other situations in which the president believes he has the authority to order the death of someone he perceives as an enemy. As the Justice Department repeatedly warns, “This paper does not attempt to determine the minimum requirements necessary to render such an operation lawful, nor does it assess what might be required to render a lethal operation against a U.S. citizen lawful in other circumstances.”
2. The determination of whether someone is in fact “a senior, operational leader of al-Qa’ida or an associated force” is made entirely within the executive branch, presumably by the same “informed, high-level official” who decides whether the target is an imminent threat.
3. The “imminent threat” determination is not really a distinct step in the process of authorizing summary execution by drone. “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 paper explains. For example, “where the al-Qa’ida member in question has recently been involved in activities posing an imminent threat of violent attack against the United States, and there is no evidence suggesting that he has renounced or abandoned such activities, that member’s involvement in al-Qa’ida’s continuing terrorist campaign against the United States would support the conclusion that the member poses an imminent threat.” In other words, identifying someone as a current or past operational leader is pretty much the same as deciding he poses an imminent threat.
4. Although the requirement that capture be “infeasible” could be read as ruling out targeted killings within the United States or in friendly countries willing and able to assist in the apprehension of suspected terrorists, the paper identifies no geographic limit on lethal strikes against people deemed to be imminent threats. It explicitly rejects the notion that attacks should be limited to “the zone of active hostilities.” (Hence the drone strikes in Pakistan and Yemen.) As for obtaining permission from the government of the country where the target is located, the paper says “a lethal operation in a foreign country would be consistent with international legal principles of sovereignty and neutrality if it were conducted, for example, with the consent of the host nation’s government or after a determination that the host nation is unable or unwilling to suppress the threat posed by the individual targeted.” In other words, firing missiles at a suspected terrorist is permissible under international law only if the host nation’s government 1) agrees to allow the attack or 2) refuses to allow the attack.
5. Although permission from the host nation’s government clearly is not required for a drone attack, the white paper says capture may be deemed “infeasible” if “the relevant country were to decline to consent to a capture operation.” The president also may decide to kill rather than capture if he believes the latter would pose “undue risk to U.S. personnel.” And lest you think that the determination of whether death by drone is justified would benefit from a second opinion, the white paper notes that “feasibility would be a highly fact-specific and potentially time-sensitive inquiry”—i.e., not the sort of thing anyone outside the executive branch should be second-guessing.
Sullum concludes his piece with “The problem is that…you have to put complete trust in…the president, his underlings, and their successors.” Considering that already, Americans do not trust their government to do the right thing, this position is already on very shaky ground. And not even the left is defending Obama, if that BI link on Scarborough tells the truth. (Although, at the time of this writing, the HuffPo lead was on the Bush Administration’s rendition program.)
“A lawful killing in self-defense is not an assassination,” states the Justice Department white paper quoted by Isikoff.
Except who decides what is “self-defense,” what is “lawful,” and what is or isn’t an “assassination”? The government? The government can’t even get the trains to run on time, we expect you to be competent enough to decide that?
This is beyond madness. Americans of all political stripes need to contact the White House and their Congressional representatives and protest this. No government official, not even—and especially—the president should have the ability to just kill an American citizen on a whim, with no intelligence, judicial review, or that pesky thing known as a trial. This is an outrage. This is patently un-American. It is past time for the public to say ENOUGH and demand that the government reverse course and return to a state based on laws and the rights of individuals, and not based on the whims of whatever politician has bought his way into power.
That’s now how a republic works. That’s not how to get liberty and justice for all.