Chilling legal memo from Obama DOJ justifies assassination of US citizens
The president's partisan lawyers purport to vest him with the most extreme power a political leader can seize
Tuesday 5 February 2013 10.56 EST
The most extremist power any political leader can assert is the power to target his own citizens for execution without any charges or due process, far from any battlefield. The Obama administration has not only asserted exactly that power in theory, but has exercised it in practice. In September 2011, it killed US citizen Anwar Awlaki in a drone strike in Yemen, along with US citizen Samir Khan, and then, in circumstances that are still unexplained, two weeks later killed Awlaki's 16-year-old American son Abdulrahman
with a separate drone strike in Yemen.
Since then, senior Obama officials including Attorney General Eric Holder and John Brennan, Obama's top terrorism adviser and his current nominee to lead the CIA, have explicitly argued that the president is and should be vested with this power. Meanwhile, a Washington Post article from October
reported that the administration is formally institutionalizing this president's power to decide who dies under the Orwellian title "disposition matrix".
When the New York Times back in April, 2010 first confirmed the existence
of Obama's hit list, it made clear just what an extremist power this is, noting: "It is extremely rare, if not unprecedented
, for an American to be approved for targeted killing." The NYT quoted a Bush intelligence official as saying "he did not know of any American who was approved for targeted killing under the former president". When the existence of Obama's hit list was first reported several months earlier
by the Washington Post's Dana Priest, she wrote that the "list includes three Americans".
What has made these actions all the more radical is the absolute secrecy with which Obama has draped all of this. Not only is the entire process carried out solely within the Executive branch
- with no checks or oversight of any kind - but there is zero transparency and zero accountability. The president's underlings compile their proposed lists of who should be executed, and the president - at a charming weekly event dubbed by White House aides as "Terror Tuesday" - then chooses from "baseball cards" and decrees in total secrecy who should die. The power of accuser, prosecutor, judge, jury, and executioner are all consolidated in this one man, and those powers are exercised in the dark.
In fact, The Most Transparent Administration Ever™ has been so fixated on secrecy that they have refused even to disclose
the legal memoranda prepared by Obama lawyers setting forth their legal rationale for why the president has this power. During the Bush years, when Bush refused to disclose the memoranda from his Office of Legal Counsel (OLC) that legally authorized torture, rendition, warrantless eavesdropping and the like, leading Democratic lawyers such as Dawn Johnsen (Obama's first choice to lead the OLC) vehemently denounced
this practice as a grave threat, warning that "the Bush Administration's excessive reliance on 'secret law' threatens the effective functioning of American democracy" and "the withholding from Congress and the public of legal interpretations by the [OLC] upsets the system of checks and balances between the executive and legislative branches of government."
But when it comes to Obama's assassination power, this is exactly what his administration has done. It has repeatedly refused to disclose the principal legal memoranda prepared by Obama OLC lawyers that justified his kill list. It is, right now, vigorously resisting lawsuits from the New York Times and the ACLU to obtain that OLC memorandum. In sum, Obama not only claims he has the power to order US citizens killed with no transparency, but that even the documents explaining the legal rationale for this power are to be concealed. He's maintaining secret law on the most extremist power he can assert.
Last night, NBC News' Michael Isikoff released a 16-page "white paper"
prepared by the Obama DOJ that purports to justify Obama's power to target even Americans for assassination without due process (the memo is embedded in full below). This is not the primary OLC memo justifying Obama's kill list - that is still concealed - but it appears to track the reasoning of that memo as anonymously described to the New York Times
in October 2011.
This new memo is entitled: "Lawfulness of a Lethal Operation Directed Against a US Citizen Who is a Senior Operational Leader of Al-Qa'ida or An Associated Force". It claims its conclusion is "reached with recognition of the extraordinary seriousness of a lethal operation by the United States against a US citizen". Yet it is every bit as chilling as the Bush OLC torture memos in how its clinical, legalistic tone completely sanitizes the radical and dangerous power it purports to authorize.
I've written many times at length about why the Obama assassination program is such an extreme and radical threat - see here
for one of the most comprehensive discussions, with documentation of how completely all of this violates Obama and Holder's statements before obtaining power - and won't repeat those arguments here. Instead, there are numerous points that should be emphasized about the fundamentally misleading nature of this new memo:
1. Equating government accusations with guilt
The core distortion of the War on Terror under both Bush and Obama is the Orwellian practice of equating government accusations
of terrorism with proof of guilt. One constantly hears US government defenders referring to "terrorists" when what they actually mean is: those accused by the government of terrorism. This entire memo is grounded in this deceit.
Time and again, it emphasizes that the authorized assassinations are carried out "against a senior operational leader of al-Qaida or its associated forces who poses an imminent threat of violent attack against the United States." Undoubtedly fearing that this document would one day be public, Obama lawyers made certain to incorporate this deceit into the title itself: "Lawfulness of a Lethal Operation Directed Against a US Citizen Who is a Senior Operational Leader of al-Qaida or An Associated Force."
This ensures that huge numbers of citizens - those who spend little time thinking about such things and/or authoritarians who assume all government claims are true - will instinctively justify what is being done here on the ground that we must kill the Terrorists or joining al-Qaida means you should be killed
. That's the "reasoning" process that has driven the War on Terror since it commenced: if the US government simply asserts without evidence or trial that someone is a terrorist, then they are assumed to be, and they can then be punished as such - with indefinite imprisonment or death.
But of course, when this memo refers to "a Senior Operational Leader of al-Qaida", what it actually means is this: someone whom the President - in total secrecy and with no due process - has accused
of being that. Indeed, the memo itself makes this clear, as it baldly states that presidential assassinations are justified when "an informed, high-level official of the US government has determined
that the targeted individual poses an imminent threat of violent attack against the US".
This is the crucial point: the memo isn't justifying the due-process-free execution of senior al-Qaida leaders who pose an imminent threat to the US. It is justifying the due-process-free execution of people secretly accused by the president and his underlings, with no due process, of being that
. The distinction between (a) government accusations and (b) proof of guilt is central to every free society, by definition, yet this memo - and those who defend Obama's assassination power - willfully ignore it.
Those who justify all of this by arguing that Obama can and should kill al-Qaida leaders who are trying to kill Americans are engaged in supreme question-begging. Without any due process, transparency or oversight, there is no way to know who is a "senior al-Qaida leader" and who is posing an "imminent threat" to Americans. All that can be known is who Obama, in total secrecy, accuses
(Indeed, membership in al-Qaida is not even required to be assassinated, as one can be a member of a group deemed to be an "associated force" of al-Qaida, whatever that might mean: a formulation so broad and ill-defined that, as Law Professor Kevin Jon Heller argues
, it means the memo "authorizes the use of lethal force against individuals whose targeting is, without more, prohibited by international law".)
The definition of an extreme authoritarian is one who is willing blindly to assume that government accusations are true without any evidence presented or opportunity to contest those accusations. This memo - and the entire theory justifying Obama's kill list - centrally relies on this authoritarian conflation of government accusations and valid proof of guilt.
They are not the same and never have been. Political leaders who decree guilt in secret and with no oversight inevitably succumb to error and/or abuse of power. Such unchecked accusatory decrees are inherently untrustworthy (indeed, Yemen experts
have vehemently contested
the claim that Awlaki himself was a senior al-Qaida leader posing an imminent threat
to the US). That's why due process is guaranteed in the Constitution and why judicial review of government accusations has been a staple of western justice since the Magna Carta: because leaders can't be trusted to decree guilt and punish citizens without evidence and an adversarial process. That is the age-old basic right on which this memo, and the Obama presidency, is waging war.