Whom Can the President Kill?

About a third of the way into in a Department of Justice white paper explaining why and when the President can kill American citizens, there is a citation that should give a reader pause. It comes in a section in which the author of the document, which was given to members of the Senate Intelligence and Judiciary committees last year—and obtained by Michael Isikoff, of NBC, on Monday—says that this power extends into every country in the world other than the United States, well beyond those where we are engaged in hostilities. The reference is to an address that John R. Stevenson, a State Department legal adviser, gave before the Association of the Bar in New York in May, 1970, to justify the Nixon Administration’s incursion into Cambodia. Does that make everyone, or anyone, feel better about what the Obama Administration has decided it can do, or the extent to which it thought through the implications, unintended consequences, precedents, and random reckless damage it may be delivering with this policy?

The white paper is a summary of something that had long been sought: the Obama Administration’s legal analysis of its killing of Anwar al-Awlaki, an American citizen in Yemen who was hit by a drone strike in 2011. That memo has been described to reporters but never released. It needs to be. The question isn’t whether al-Awlaki, who worked with Al Qaeda, was an innocent—the question is at what point he crossed the line and became killable without any judicial proceedings, and when, by extension, the rest of us could be put on a “kill list.” John Brennan, the President’s nominee for head of the C.I.A., has been deeply involved in the drone and targeted-killing programs. His confirmation hearings are this week, and the white paper offers a guide to some of the questions Senators should ask him. (As the Washington Post notes, it may have been leaked for that purpose.) The paper pretends to lay out a careful argument,

    a legal framework for considering the circumstances in which the U.S. government could use lethal force in a foreign country outside the area of active hostilities against a U.S. citizen who is a senior operational leader of al-Qaida or an associated force of al-Qaida—that is, an al-Qaida leader actively engaged in planning operation to kill Americans.

The three conditions for killing, the paper says, are that such a person poses an “imminent threat”; that capture is “infeasible”; and that the killings are “consistent with applicable law of war principles.” But once it has defined its terms, the restraints all but disappear. There is never a strong definition of “senior operational leader,” or even—maybe especially—of what counts as an “associated force,” the affiliation that makes people who are not part of Al Qaeda eligible for assassination. (A footnote mentions “co-belligerents,” but that itself can be a flexible designation.) The paper notes that it “does not attempt to determine the minimum requirement” for killing an American, and that is certainly true.

One of the most disastrously vague terms with regard to capture is “infeasible.” David Cole, in a piece in the New York Review of Books that lists thirteen questions for Brennan’s confirmation hearing, asked whether the ease of drone killings and their safety for American service members had led to a redefinition of feasibility, to the point where any attempt to arrest a suspect would be dismissed as unreasonably risky. It is an excellent question—the white paper begs it. It says that capture might not be feasible because of time, because of the capabilities of the country where the killing takes place, because of the safety of troops, or maybe just due to “other factors.” Would political infeasibility count? Diplomatic embarrassment? Fear of what might be said at a trial? Or would it be enough to feel that an arrest was just too much trouble?

Another crucial term is “imminent threat”—which a person is supposed to pose in order to be killed. According to the paper, this does not mean that the person is imminently threatening to do a specific thing. Al Qaeda leaders are “continually planning attacks,” “continually plotting,” and “the U.S. government may not be aware of all al-Qaida plots as they are developing and thus cannot be confident that none is about to occur.” If a person has been associated with such things in the past “and there is no evidence that he has renounced or abandoned such activities,” that person “poses an imminent threat.” Judging imminence also includes “the likelihood of heading off future disastrous attacks on America.”

In short, posing an imminent threat is a matter of identity and character, not of having made any particular plans. All it means is that you strike someone—an “informed, high-level official”—as dangerous, or maybe just scary. That is what counts as due process. The paper asserts that “there exists no appropriate judicial forum to evaluate these constitutional considerations.” (Eric Holder said something similar in a recent speech at Northwestern.) Why not? Because it would involve asking a court “to supervise inherently predictive judgments”—that is, to make the White House defend its guesses about who is worth killing. It ought to be able to do that.

As is often the case, this is justified with an appeal to the special status of a new kind of war: “By its nature, therefore, the threat posed by al-Qaida and its associated forced demands a broader concept of imminence.”

Does every President think that his enemies are of a different nature than any that came before, and that his powers need to be, too? A contemporary account of Stevenson’s May, 1970, speech, in the Times, described him as saying that “the United States had chosen to invade without Cambodian consent to preserve the neutrality of that country”—pause for a moment to get your mind around that phrase—“from whose territory the North Vietnamese and Viet Cong soldiers had posed an imminent threat.” Imminent: a President’s magic word. The echoes are a reminder that what we sign onto now can be plucked decades later, thrown into a different balance in another White House, with another conception of enemies and danger. (The Times also mentions something white paper does not—that Stevenson “was promptly rebutted” by another speaker, Abram Chayes, who had worked in Kennedy’s State Department.)

A few weeks before the Stevenson speech, Nixon offered his own rationalization, in which he said that we were taking our war into Cambodia because the United States could not act “like a pitiful, helpless giant”: “My fellow-Americans, we live in an age of anarchy, both abroad and at home. We see mindless attacks on all the great institutions which have been created by free civilizations in the last five hundred years. Even here in the United States, great universities are being systematically destroyed.” (The true, tragic anarchy, of course, would come in Cambodia in the years ahead.) In our great universities, in the days that followed, there were protests and outrage at the expansion of the war. Between Nixon’s speech and Stevenson’s came the Kent and Jackson State shootings, where students who didn’t want the United States to go into Cambodia were killed, along with bystanders, by the National Guard and the police.
What if those students had been Americans at a university in, say, Paris, who formed a group to protest a war? Could a President who read the D.O.J.’s white paper tell himself that they were an “associated force” based in a foreign country, or that, if they succeeded in mobilizing Congress or public opinion against what it considered a necessary military action, that they would pose an “imminent threat”? Could he kill them then? Could he do so now?

Original Article
Source: newyorker.com
Author: Amy Davidson