The DOJ White Paper on Killing U.S. Citizens: Sometimes the ACLU is Right

sheidayi20130124110741410NBC News has posted a Department of Justice White Paper that sets forth the justification for killing American citizens in a foreign country when they are outside an area of active hostilities. The paper concludes by saying lethal force is lawful when a U.S. citizen is a

 senior, operational leader of al-Qa’ida or an associated force…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.

If these conditions are met, the paper concludes that lethal force is justified as a matter of national self-defense.

Let’s look at more closely at the first condition, under which a threat must be imminent.  Imminence of danger sounds like a reasonable basis to support an extreme measure like killing a United States citizen.   But here’s part of the concept in the white paper:

certain members of al-Qa’ida…are continually plotting attacks against the United States; that al-Qa’ida would engage in such attacks regularly to the extent they were able to do so; that the U.S. Government may not be aware of all al-Qa’ida plots as they are developing and thus cannot be confident that none is about to occur

“Imminence,” which usually implies the need to halt a known action just before its occurrence, here includes intervening in something that may not even beeric_holder occurring. Moreover “cannot be confident that none is about to occur” is a presumption that they are continuing to occur, effectively a presumption against a U.S. Citizen that is contrary to our domestic presumption of innocence.

Then there’s the matter of identifying the U.S. Citizen as a member of al-Qa’ida.  A man would qualify if he was “recently 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..”  If we remember that we “cannot be confident” that an attack may not be about to occur, the “imminent” threat in this criteria could be somewhat lax. But more significantly, there is another presumption against U.S. Citizens, because it is enough if there is a lack of evidence that he has abandoned an unknown imminent activity.  Be clear here: the White Paper approves of lethal force against a U.S. Citizen not based on clear evidence, as it were, to “convict” him but lack of evidence to “acquit” him.

Typically this is not the kind of story that attracts the critical attention of the Christian right.  It should, but it doesn’t. Perhaps the Christian Right is just too cozy with every military endeavor of the United States. Perhaps it’s overcome by a biblicism or worldview that hinders its ability to reason about justice, due process, and liberty.  The ACLU can see problems here – it won’t hurt to agree with them once in a while.


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6 responses to “The DOJ White Paper on Killing U.S. Citizens: Sometimes the ACLU is Right

  1. Richard

    Isn’t this something which the Soviet Union practiced against its citizens abroad who were seen as “threats” during the bad days of the Cold War? Assassinations? And you’re right–we won’t hear a peep from the Christian Right about this. Justice, equity–these are foreign concepts to those with worldview blinders.

    • Two years ago, Nasser al-Awlaki wrote a letter to President Obama. His request was simple: Please do not kill my son.

      He never got a response. Last September, his son, Anwar al-Awlaki, an American-born al Qaeda leader, was killed by a U.S. drone in a remote area of Northern Yemen. Two weeks later, his 16-year-old grandson, Anwar’s son, was also killed, in a separate U.S. strike hundreds of miles away.

      “Anwar, it was expected, because he was … targeted,” Nasser al-Awlaki told CNN’s Christiane Amanpour in an exclusive interview on Wednesday. “But how in the world they will go and kill Abdulrahman, a small boy, a U.S. citizen, from Denver, Colorado?”

  2. Richard

    I was just told by one of the guys in my church that if the ACLU is “for” something, that means he is “against” it. Sigh.

    • Richard, he might have been kidding but there also could be something there: the lack of a robust notion of liberty. From an eagle’s eye view maybe it all works out the best with the ACLU pulling one way and the Christian Right pulling the other way, but I would be extremely wary of the Christian Right ever having a lot of power. Why? It’s too much about using the power of the state to control people without much balance on the side of liberty. So there’s no peep about the various domestic intrusions on privacy ostensibly designed for our security against terrorism and there’s no peep about killing American citizens on the grounds we see here. Sure there’s religious liberty – for various Christian sects – but seemingly a very impoverished concept otherwise.

      Maybe it’s because “liberty” is part of the natural law tradition and conservative Protestants have cut themselves off from that tradition.

      • Richard

        There is also a lack of sense of such concepts as “equity” and “justice,” I think. And, no, he wasn’t kidding. I asked him to define the genetic fallacy for me.

  3. Richard, I’m pretty sure the ACLU has come to the aid of Falwell and Limbaugh in the past. So, in a manner of speaking (as in forked tongue), maybe your friend has a point.

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