NBC 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 be 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.