Obama’s dicey license to kill

By Jack Shafer
February 5, 2013

Last night, NBC News investigative reporter Michael Isikoff published a revelatory article based on an undated 16-page Department of Justice “white paper,” representing the arguments contained in classified memos produced by the Obama administration that describe the criteria that must be met before the administration plans the killing of a U.S. citizen.

Who would have surrendered such a sensitive document about the president’s “kill list” to NBC News?

It’s a valid question, and a little bit silly at the same time. Not to diminish the intrepid reporting of Isikoff — who should be made the grand marshal of the next Tournament of Roses Parade for his scoop — but Washington often leaks in directions to further stoke policy fires that are already burning. (See this taxonomy of leaks compiled by Stephen Hess.) Such a Washington fire has been burning for many months, with Congress demanding that the Obama administration explain its targeted killings of U.S. citizens. Yesterday, before the Isikoff story broke, 11 senators sent the president a formal request that any and all legal opinions devised by the White House about the targeting of citizens be forwarded to the Judiciary and Intelligence Committees.

This request makes the senators, or members of their staffs, prime suspects of the leak. Isikoff’s story does not discourage that interpretation. He reports that the leaked white paper was given to “members of the Senate Intelligence and Judiciary committees in June by administration officials” and that a “source with access to the white paper, which is not classified, provided a copy to NBC News.” Like any good journalist, Isikoff squirts ink in the water to help camouflage a possible source by quoting the boilerplate outrage of the deputy legal director of the ACLU about the white paper. The ACLU has sued the administration for the memos, Isikoff reports, leaving the careful reader to speculate that perhaps the ACLU obtained the white paper and gave it to him.

The timing of the leak inspires further speculation. President Obama’s nominee for CIA director, John Brennan, goes to Capitol Hill on Thursday for his confirmation hearing before the Senate Intelligence Committee. Depending on how you torque it, the leaked white paper arguably gives drone-architect Brennan a little breathing room by blunting the demands for the classified documents. That’s the sentiment behind a statement issued by Senator Dianne Feinstein (D-Calif.) today, in which she says the white paper (and other documents and briefings) have allowed the Intelligence Committee, which she chairs, “to conduct appropriate and probing oversight into the use of lethal force.” Or, the leak could enrage other senators who feel that the administration hasn’t been sufficiently candid with them, and prompt them to draw Brennan and the administration into a memo showdown. As Josh Gerstein reported yesterday in Politico, Senator Ron Wyden (D-Ore.), a member of the Intelligence Committee, had previously promised to press Brennan on the targeted killing policy.

If Wyden decides to make good on the promise, he has plenty of ammunition. The leaked white paper, titled “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen who is a Senior Operational Leader of Al Qa’ida or An Associated Force,” cannot and should not be read as the complete operating instructions for the kill list. But it portrays an administration prepared to justify the killing of U.S. citizens on gut feelings. Here’s the language from the white paper, emphasis added:

[I]t 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 the federal statutes discussed in this white paper 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 …

Who are these “informed, high-level officials”? What constitutes a determination? What is an “imminent threat of violent attack”? “Infeasible”? Isikoff highlights other squishy language in the white paper, noting that it fails to define such crucial terms as “recently” or “activities” when arguing that an informed, high-level official can determine when a targeted American has been “recently” involved in “activities” posing the threat of a violent attack. U.S. Judge Colleen McMahon similarly objected to the administration’s lack of rigor last month, as Isikoff notes, in her ruling to a lawsuit filed by the New York Times and the ACLU. The administration, she wrote, has discussed the killings “in cryptic and imprecise ways, generally without citing … any statute or court decision that justifies its conclusions.”

If the white paper accurately describes how the administration adds a U.S. citizen to the kill list, the Intelligence Committee would be wise to ask Brennan if the Sept. 30, 2011, targeted killing of U.S. citizen Anwar al-Awlaki in Yemen conformed to these standards. It probably doesn’t. As my colleague Mark Hosenball reported in an Oct. 5, 2011, Reuters piece, “officials acknowledged that some of the intelligence purporting to show Awlaki’s hands-on role in plotting attacks was patchy.”

If U.S. citizens can be whacked based on hunches, suspicions, belief and patchy fragments of intelligence by unnamed, high-level officials, let Brennan say so. Or assign him to write a more explicit white paper defending the policy.

******

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PHOTO: U.S. Secretary of State Hillary Clinton holds a small U.S.-made drone that the Ugandan military uses in Somalia to fight al-Qaeda linked militants, during a demonstration and briefing at Kasenyi Military Base in Kampala August 3, 2012. REUTERS/Jacquelyn Martin/Pool

11 comments

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It should be pretty obvious by now that the US can do what it wants, since when did civilians or justice matter. A sign of the end of a superpower is paranoic insecurity which eventually turns on a countries own citizens.

Posted by Striving-Young | Report as abusive

The US has lost any claim to a mantle of moral superiority. With vague phrases used, an American citizen can be killed, without due process, because someone doesn’t like their ideas. We are not discussing an actual armed attack by the person on a battlefield in the midst of war, but a dislike of the person.

And each President builds on the powers taken by their predecessor, so this allows the next President to expand the killings even further.

What is the standard for a cold blooded murder by the government? A hunch? An inkling? Convenience?

Posted by pavoter1946 | Report as abusive

The US may have adorned itself with the mantle of moral superiority, but it’s never been true. In the past these things would have been secrets, so in some sense we are more honest about the reality. However, we have never been free, never had liberty, and never been just. It is not in the best interest of our wealthy masters to allow these things. On the other hand, we still attempt to brainwash people to believe in many of these and really, just like religion offers people a way of easing their minds so they can sleep at night, the american belief that we are a free and just society is just that, a belief. There is no evidence that we really are those things.

Posted by brotherkenny4 | Report as abusive

Does this mean other nations can kill their citizens when on US soil? Who is responsible if we kill the wrong person and might doing so be considered an act of war on the country that we droned attacked?

Posted by Slammy | Report as abusive

I am puzzled by any 5th Amendment claim to due process by an American-turned Al Quida operative, operating out of Yemen or the vast Afganistan territory. Arguing that such individual retains his/her substantive due process, how does the procedural precept stacked? Am I ignorant or just a bed-wetting liberal

Posted by 0okm9ijn | Report as abusive

Every system of laws has the potential for abuse of process. The ‘rule of law’ is a doctrine, not a code of morals. Killing is contrary to God’s law, and immoral (“Thou shalt not kill”). Nevertheless, killing is conducted even under the ‘rule of law’ when and where sanctioned, such as in the United States of America for example. The question at issue is not the definition of terms, as the author of this article would have us focus on, but whether or not the sanctions that gave rise to the extra-judicial killings were proper under a ‘rule of law’ doctrine. It is specious for Congress to take on the mantle of high moral authority when by its own actions it has effectively given ‘carte blanche’ to the Administration to wage covert war on al Qa’ida by virtue of resolutions of Congress. What difference does it make whether the members of al Qa’ida and its associates are U.S. citizens or not? It should make no difference, U.S. citizen or not. The only proper inquiry is whether the sanctioned killings were properly sanctioned according to the scope and intent of Congressional resolutions. If Congress wishes to alter the terms of its resolutions, it is free to do so at any time. It is up to Congress to make that determination. For those who would criticize the individuals charged with carrying out Congress’s intent, let them walk a mile in Daniel Pearl’s shoes and then let us see whether or not they still hold to their utopian ideals. Al Qa’ida has chosen War over Peace, and it has chosen War on civilians, which by our doctrine of the ‘rule of law’ is a crime of the first order. Al Qa’ida and its associates are outlaws, declared outlaws by Congress, and as such they are beyond all protection under our doctrine of ‘the rule of law’.

Posted by Braemar | Report as abusive

The memos were released ONLY to two committees and Brennan can refuse to answer any questions deemed to be on matters of “national security”. How can Congress make an informed and intelligent decision without the facts of his involvement and what the memos actually mean for the future of drone attacks? Is there anything in the memos regarding “targeting” of American citizens on American soil? That is a big question.

Posted by AZreb | Report as abusive

Regardless of the content of this opinion, the title is absolute outrageous. It is not President Obama’s license to kill and making such statements is just irresponsible and shows the disgusting level our media industry now stoops too. The president is a temporary politician that get to bless the shot for responsibility reasons only. He, nor any near future president, would get to just say “kill so and so” as this tile would make most people believe.
Shame on you Reuters.
Also, no matter what you think of the person in office at the moment please respect the office of the President of the United States and address him as such. Again, shame on you Reuters.

Posted by tmc | Report as abusive

This is a very serious topic that will be discussed in depth around the world as the technology continues to become more and more deadly. Before you know it we will have untraceable drones that can reach thousands of miles and kill silently. But wait! There’s More! If you call in the next twenty minutes, we’ll throw in a FLIR that can count hairs through walls! For just three easy payments of $29.99 plus shipping & handling.
That kind of changes the playing field a bit eh?

Posted by tmc | Report as abusive

Obama would’ve made a great Nazi. Maybe this will finally wake up the legions of sheep, but I doubt it.

Posted by sjfella | Report as abusive

Braemar – And how many people did god kill in the OT? Yeah, that’s what I thought.

Posted by Cptnmikey | Report as abusive