Archive for February, 2013

Assassination of U.S. Citizens

Wednesday, February 6th, 2013

A Department of Justice memo, leaked yesterday to NBC News, details the Obama administration’s justifications for assassinating U.S. Citizens. The memo begins by stating the conditions required for a legal assassination:

 [W]here the following three conditions are met, a U.S. operation using lethal force in a foreign country against a U.S. citizen who is a senior operational leader of al-Qa’ida or an associated force would be lawful: (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 would be conducted in a manner consistent with applicable law of war principles. (pg 1)

Although the memo only outlines the administration’s assassination policy in broad strokes, even the few details available give many reasons for concern. In this post I present my top three reasons.

Due Process

Simply put, the first criteria listed in the DOJ memo relies on the danger of imminent threats to justify assassination of U.S. citizens. If this were a totalitarian regime, that might be acceptable, but this is the United States of America. Our Constitution was written to limit government power to do just this sort of thing: “No person shall be … deprived of life, liberty, or property, without due process of law.” U.S. Constitution, Amendment V. This language seems to directly prohibit what the DOJ assassination memo proposes. You can’t just kill people without due process of law. But the legal minds at the DOJ find wiggle room in the phrase “due process,” referencing the case of Matthews v. Eldridge, 424 U.S. 319 (1976).

In this case, the Supreme Court decided that the government could terminate disability benefits without conducting a hearing first, so long as a hearing was held later to review whether the decision was appropriate. In explaining why Mr. Eldridge lost, the Court expounded its theory of due process:

identification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and, finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Id. at 335.

Ignore for a minute the troubling sensation you may feel from knowing that the DOJ relied on reasoning designed for disputes about disability benefits to justify assassination. That isn’t the real problem. What should bother you is that a fair application of this balancing test should not result in a green light for assassinations. Plug the criteria listed by the DOJ memo into the Supreme Court’s test. The private interest at stake is a person’s life—the strongest interest recognized by law. The procedure used is determination by a “high-level official of the U.S. Government.” When considering the reliability of “high-level officials,” don’t forget the Bengazi debacle. How many “high-level officials” made erroneous judgments during the weeks surrounding those events? Finally plug in the government interest: prevention of imminent terrorist attacks.

The DOJ assassination memo pays lip service to the first two due process factors, noting that “the erroneous deprivation of a citizen’s life is … significant.” (pg 6) But all is justified because “the ‘realities’ of the conflict and the weight of the government’s interest in protecting its citizens from an imminent attack are such that the Constitution would not require the government to provide further process to such a U.S. citizen before using lethal force.”

It is important to point out that the “imminent attack,” that the DOJ hangs its due process analysis on, is not some scenario in which Jack Bauer has two hours to stop a nuclear apocalypse. Again from the DOJ assassination memo, “[A]n ‘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.” (pg 7) Granted, governments and other security services face a severe disadvantage: they don’t know when violent acts will happen. Criminals choose places and times when police are absent or unprepared. This doesn’t mean we can start assassinating criminals because some “high-level official of the U.S. Government” decides it’s okay! Compare the DOJ assassination policy with the gyrations that state judicial systems must go through to execute a convicted murderer. Within the federal government, only the President can pardon a death sentence. Why does it only take a “high-level official” to sentence someone to death?

In an effort to make all of this easier to swallow, the entire assassination memo overflows with false analogies to formally declared, conventional war. This leads me to my second reason for concern.

Law of War

It is not controversial that a soldier on the battlefield, engaged in a just war, commits no crime when he kills an enemy soldier in combat. But the law of war developed to regulate conflict between clearly-identifiable, uniformed combatants in a defined area of conflict. Plucking those principles out and attempting to apply them to assassination of U.S. citizens would be laughable if it weren’t so tragic. We aren’t talking about standing armies; al-Qa’ida operatives don’t wear uniforms; and there is no defined area of conflict—any foreign country is fair game.

Conventional law of war prohibits killing civilians unless in self defense. If a civilian were to attack a soldier, the attack would be considered a crime and the civilian could be prosecuted. The DOJ assassination memo is schizophrenic on whether terrorists are soldiers or civilians. Either terrorists are like soldiers and are subject to preemptive killing (aka assassination) during the course of the conflict, or they are civilians and are subject to prosecution for their criminal acts. They can’t be both, and all the dissimilarities between soldiers and terrorists urge the classification of terrorists as civilian criminals.

Language Ambiguity

Not only does the DOJ assassination memo distort the due process test and draw false analogies from the law of war, it also suffers from severe language ambiguity. As quoted in the beginning, the memo starts by stating specific circumstances in which the DOJ deems assassination of U.S. citizens legal:

[W]here the following three conditions are met, a U.S. operation using lethal force in a foreign country against a U.S. citizen who is a senior operational leader of al-Qa’ida or an associated force would be lawful: (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 would be conducted in a manner consistent with applicable law of war principles. (pg 1)

At the outset, only a “senior operational leader of al-Qa’ida or an associated force” (no definition provided) could be lawfully assassinated. But, as common sense would lead us to believe, senior operational leaders don’t usually execute the operations. They plan and send out low level operatives to do the dirty work. This makes the imminent threat idea a problem though because assassinating the senior operational leader of an organization probably wouldn’t prevent imminent attacks. It would prevent future attacks that still need planning and logistical coordination, but imminent attacks are likely past that stage. This may be why the drafters of the memo change their terminology when talking about the need to preemptively strike. “The defensive options available to the United States may be reduced or eliminated if al-Qa’ida operatives disappear and cannot be found when the time of their attack approaches.” (Pg 7) Are we targeting operatives or senior operational leaders? This may seem like splitting hairs, but the due process problems become far worse if we are targeting mere operatives because the likelihood of error is much greater when trying to accurately identify minor players in an organization. “Sorry” doesn’t cut it if you drop a hellfire missile on the wrong guy.

Another example of language slippage has to do with the type of behavior that might make one a target. At the outset of the memo, assassination was deemed permissible only when “the targeted individual poses an imminent threat of violent attack against the United States.” Later in the memo, the definition of permissible target changed to, “a U.S. Citizen whose conduct poses an imminent threat of violent attack against the United States.” (pg 15) Why the change? Maybe I’m reading too much into it, but I think that anti-American preaching would not fit the first definition but would fit the second. An anti-American cleric who never took any active role in planning terrorism but was affiliated with a terrorist organization and promoted violence against Americans in his preaching might be subject to assassination under the second definition if a high-level official determines that his “conduct poses an imminent threat.”

In summary, this memo has problems. It doesn’t represent a major policy shift on the part of the Obama administration. After all, it is common knowledge that they have assassinated U.S. citizens in the past. But a debate on this issue is long overdue. This memo reveals just how far the DOJ has stretched legal principles to justify the assassination of U.S. citizens, and it shouldn’t be left unchallenged. Don’t misunderstand. I believe that those who conspire to kill us should be captured and tried for their crimes, if possible, and killed if capture is not possible. But our Constitution does not entrust the roles of judge, jury, and executioner to the executive branch. Under the DOJ assassination memo, there is no provision for judicial review; there are no evidentiary requirements; and there is no accountability to the people. This strikes at the foundation of separation of powers as well as representative government.