The Drone Memo: More Comedy About the Death of Freedom

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Face Melt

It’s so beautiful!

NBC News has released a copy of a DOJ “white paper” (PDF) (source: Glenn Greenwald) that is said to summarize the super-double-top-secret memo that, we are told, sets forth the legal rationale for the President’s asserted power to blow up U.S. citizens. You still aren’t allowed to see the memo itself, probably because the power and brilliance of the legal thought shining forth from it would melt your face off like in Raiders of the Lost Ark. So, for your safety, DOJ wrote a memo about the memo and is letting you read that.

This version is still painful to read, but not immediately fatal.

I’ve written about this before (see For Christmas, Your Government Will Explain Why It’s Legal to Kill You” (Dec. 21, 2011) “AG Sort of Explains When and Why the President Could Drop a Bomb on You” (Mar. 6, 2012); and “Professor: Maybe Secret Legal Memos Are Secret Because They Suck” (July 30, 2012)) so let’s just cut straight to the new memo. Hold onto your faces!

Here are the conditions under which the Department of Justice—and again, this is the U.S. DOJ, not one in Bazorkostan or wherever—has concluded that the President can have a U.S. citizen killed even though that person is not engaged in “active hostilities”:

  1. the citizen is a senior operational leader of al-Qa’ida or an associated force;
  2. an informed, high-level official of the US government has determined that the targeted individual poses an imminent threat of violent attack against the United States;
  3. capture is infeasible (and we continue to monitor whether capture becomes feasible); and
  4. the operation would be conducted in a manner consistent with applicable law of war principles.

The memo actually says there are three conditions (2, 3, & 4 above), but assumes for purposes of the argument that the target is a “senior operational leader” as described. So let’s call that a fourth condition.

Here I’m just going to mock the first two.

To begin with, it seems to me that the memo necessarily admits that blowing up Anwar al-Alwaki’s 16-year-old son (also a citizen) was illegal, unless al-Qa’ida is using 16-year-olds as “senior operational leaders.” Maybe that one was an accident, though. Here’s the bigger problem (unless you’re that kid): who will decide who is a “senior operational leader,” and is there any check on or review of that decision? (Answers: none of your business; and none of your business, but no.) Those of you comfortable with having one person or a small group of people decide which citizens will be executed, with no judicial review whatsoever, please raise your hands and then go out behind the chemical shed.

Second, “imminent threat.” At least this supposedly will be determined by “an informed, high-level official,” not the ignorant flunky who I guess can make the other decisions in this list. But does that person know what “imminent” means? The Oxford English Dictionary thinks it means “impending threateningly, hanging over one’s head, ready to befall or overtake one, close at hand in its incidence; coming on shortly,” but that’s just its opinion. For bomb-dropping purposes, a threat may be “‘imminent” even if there is no evidence that it “will take place in the near future.” You see, today’s world “demands a broader concept of imminence,” and this is where you should be saying, at the very least, “uh oh.”

Under this broader view, “imminence” is a more flexible concept, one that “incorporates considerations of the relevant window of opportunity, the possibility of reducing collateral damage to civilians, and the likelihood of heading off future disastrous attacks on Americans.” I think we can all agree that those are important considerations, but we should also all agree that they have nothing to do with what “imminent” means. This is a perfectly good English word meaning “coming on shortly” or in American, “about to happen.” Of course, this is the whole reason they are using that word: they want to make it sound like something’s “about to happen” and so we really had no choice. But their definition of the term has nothing to do with its English meaning.

The memo then gives examples making this even more clear. A citizen could pose an “imminent threat of violent attack” where he is a “[senior?] operational leader of al-Qa’ida or an associated force and is personally and continually involved in planning terrorist attacks.” I actually don’t have much of a problem with such a person being blown up (assuming there is any such person), but there’s nothing “imminent” about sitting around and planning, and so I don’t see the issue with at least getting a warrant before you kill him, for God’s sake.

“Moreover,” it continues, causing another “uh-oh” moment, if an al-Qa’ida member “has recently been involved in activities posing an imminent threat of violent attack … and there is no evidence suggesting that he has renounced or abandoned such activities, that member’s involvement in al-Qa’ida’s continuing terrorist campaign … would support the conclusion that the member poses an imminent threat.” Well, no, it wouldn’t. It would support the conclusion that he recently posed an imminent threat. If he still in fact poses one, that’s one thing. But I mean, are you guys not clear on the difference between past and future?

Just to be clear, what they are saying there is that if they deem a citizen to be an al-Qa’ida operational leader (senior, of course), and he has ever been “involved in activities posing an imminent threat,” then they can kill him whenever they get around to it because he will always be an imminent threat. Again, we could argue about some facets of that, but not about the meaning of “imminent.”

The memo also concludes that, “assuming a lethal operation targeting a U.S. citizen … would result in a ‘seizure’ under the Fourth Amendment”—and gosh, it kind of seems like it would—said operation would not be unconstitutional. The memo rightly points out that the legal test balances “the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” Here, the intrusion involves blowing the person up, so the governmental interest needs to be relatively important. In a two-sentence analysis, the memo says that if the other conditions were met—e.g., an informed, high-level official has determined he poses an imminent threat to someone—bombs away.

The memo compares the situation to one where an officer has probable cause to believe a suspect is dangerous and may hurt someone or may escape. But in that situation, the officer’s decision will be reviewed by somebody, so there are at least some checks and balances. Here, the President decides. There is no review and no appeal. The family can’t even sue. Also, the manipulation of the word “imminent” is an inherent problem here as well. If their definition applied, if someone had “recently posed an imminent threat” and might do so again someday, any cop who ran across him later could just kill him, just to be safe. Comfortable with that?

Finally (and sorry for the long post, though its ending is imminent), the memo considers whether killing a U.S. citizen might violate certain laws against killing U.S. citizens. No bonus points will be given for correctly guessing its conclusion, but you might not guess the rationale. Because there isn’t one, really. Those laws only apply to unlawful killings, it says. We just got done saying these killings are not “unlawful,” and therefore they are not against the law. Questions?

Here’s one (really) final thought: although the first paragraph of the memo says that it is considering whether the government can use lethal force against a U.S. citizen “in a foreign country,” there is no discussion—none—of whether it could do so in the United States, or if not, why not. And as you may have noticed, “in a foreign country” is not one of the four required conditions.

Stephen Colbert saw through this a long time ago, saying that in the government’s view, “due process just means that there is a process … that you do.” That’s hilarious, but I wish it were only comedy.