Late Monday night, NBC news revealed a leaked Department of Justice (DOJ) memo describing the Obama administration’s legal case for killing Americans with targeted drone strikes. On Tuesday afternoon White House Press Secretary Jay Carney awkwardly attempted to calm skeptics of the program by further clarifying that the strikes “are legal, they are ethical and they are wise.”
In short, the memo concludes that the extrajudicial killing of American terrorist leaders is constitutional if 1) an informed, high-level official determines that the individual poses an imminent threat of attack (yep, just one guy); 2) capture of that individual is infeasible (it almost always is); and 3) the killing would be permitted under the traditional laws of war (meaning mostly that you can’t kill too many innocent civilians in addition to the target).
The DOJ’s explanation of these factors has civil libertarian groups like the ACLU enraged. For example, using some circular logic, the memo explains that the government can determine that an individual poses an “imminent threat” by simply concluding that they had been previously involved in terrorist planning activity and that there is no evidence they have abandoned those activities.
Put another way, if the government makes a secret determination that you belong on a secret “kill list” of active terrorist leaders, you are automatically considered an imminent threat and subject to extrajudicial killing (which is usually also kept secret).
One controversial drone strike involving the killing of a 16-year-old boy from Denver illustrates the potential problems with the policy. The outraged family of the teenager, who was killed while eating at an outdoor restaurant, claimed the boy was unjustly targeted by U.S. forces only because the boy’s father happened to be a well-known terrorist. Former White House Press Secretary Robert Gibbs didn’t help matters when he sloppily justified the killing by explaining to reporters that, “you should have a far more responsible father if they are truly concerned about the well-being of their children . . . I don’t think becoming an al-Qaeda jihadist terrorist is the best way to go about doing your business.”
Although it’s possible (and even probable) that the family’s outrage was just al-Qaeda propaganda, when American intelligence agencies can’t correctly determine whether Iraq has weapons of mass destruction prior to an invasion, why should Americans trust those same officials to draw reliable conclusions about a single individual’s terrorist activity?
Whether right or wrong, it’s clear now just how far President Obama has come from his naïve 2009 promise to do away with the “false choice between our safety and our ideals.”
Recall that waterboarding suspected terrorists to gain intelligence was “torture” and a violation of the Fifth Amendment, shutting down Guantanamo Bay was necessary to “restore the standards of due process and [our] core constitutional values,” and civilian trials for accused terrorists were required in the “interests of justice.” Now, the targeted killing of an American citizen based on the classified opinion of a single Government official is legal, wise and ethical.
As President Bush learned quickly after Sept. 11, the only easy choices in the War on Terror are made in campaign speeches.