NBC News reports [11]:
Legal experts expressed grave reservations Tuesday about an Obama administration memo concluding that the United States can order the killing of American citizens believed to be affiliated with al-Qaida — with one saying the White House was acting as “judge, jury and executioner.”
“Anyone should be concerned when the president and his lawyers make up their own interpretation of the law or their own rules,” said Mary Ellen O’Connell, a law professor at the University of Notre Dame and an authority on international law and the use of force.
***
“This is a very, very dangerous thing that the president has done,” she added.
Glenn Greenwald, a constitutional lawyer who writes about security and liberty for the British newspaper The Guardian, described the memo as “fundamentally misleading,” with a clinical tone that disguises “the radical and dangerous power it purports to authorize.”
“If you believe the president has the power to order U.S. citizens executed far from any battlefield with no charges or trial, then it’s truly hard to conceive of any asserted power you would find objectionable,” he wrote [12].
Senator Wyden said [13]:
Every American has the right to know when their government believes that it is allowed to kill them.
Top constitutional law expert Jonathan Turley notes [14]:
In plain language, [the Obama administration memo] means that [any Americans can be assassinated if] the President considers the citizens to be a threat in the future. Moreover, the memo allows killings when an attempt to capture the person would pose an “undue risk” to U.S. personnel. That undue risk is left undefined.
I think I've seen that movie before [15] ...
Given that drones are being deployed in the American homeland [16], some fear that the war is coming home [17].
Indeed, the military now considers the U.S. homeland to be a battlefield [18]. The U.S. is already allowing military operations within the United States [19]. The Army is already being deployed on U.S. soil [20], and the military is conducting numerous training exercises on American streets [21]. (For more background, see this [22], this [23], this [18], this [24], and this [16].)
Similarly, the White House has claimed the unilateral power to launch pre-emptive cyber-strikes [25] against foreign nations. As FireDogLake notes [26]:
Like with the drone program, President Barack Obama is presiding over the creation and development of a power that previous presidents never imagined having. The national security state is effectively appointing him and all future presidents the proverbial judge, jury and executioner when it comes to cyber warfare.
As Greenwald makes clear, virtually all of the U.S. efforts regarding so-called "cyber-security" are actually efforts to create offensive attack [27] capabilities.
And given that the government may consider normal Americans who criticize any government policy to be terrorists [28] - and that the military is fighting against dissent on the Internet [29] - it is obvious that the cyber-attack capabilities are coming home to roost.
Of course, indiscriminate drone strikes are war crimes [30] (and here [31] and here [32]) , and cyber-attacks are a form of terrorism [33]. But that won't stop the U.S. [34] ... because it's only terrorism when other people do [35] what we do.
As Greenwald noted [36] last year:
We supposedly learned important lessons from the abuses of power of the Nixon administration, and then of the Bush administration: namely, that we don’t trust government officials to exercise power in the dark, with no judicial oversight, with no obligation to prove their accusations. Yet now we hear exactly this same mentality issuing from Obama, his officials and defenders to justify a far more extreme power than either Nixon or Bush dreamed of asserting: he’s only killing The Bad Citizens, so there’s no reason to object!
Greenwald notes [12] in an article today:
The core distortion of the War on Terror under both Bush and Obama is the Orwellian practice of equating government accusations of terrorism with proof of guilt. One constantly hears US government defenders referring to "terrorists" when what they actually mean is: those accused by the government of terrorism. This entire memo is grounded in this deceit.
Time and again, it emphasizes that the authorized assassinations are carried out "against a senior operational leader of al-Qaida or its associated forces who poses an imminent threat of violent attack against the United States." Undoubtedly fearing that this document would one day be public, Obama lawyers made certain to incorporate this deceit into the title itself: "Lawfulness of a Lethal Operation Directed Against a US Citizen Who is a Senior Operational Leader of al-Qaida or An Associated Force."
This ensures that huge numbers of citizens - those who spend little time thinking about such things and/or authoritarians who assume all government claims are true - will instinctively justify what is being done here on the ground that we must kill the Terrorists or joining al-Qaida means you should be killed. That's the "reasoning" process that has driven the War on Terror since it commenced: if the US government simply asserts without evidence or trial that someone is a terrorist, then they are assumed to be, and they can then be punished as such - with indefinite imprisonment or death.
But of course, when this memo refers to "a Senior Operational Leader of al-Qaida", what it actually means is this: someone whom the President - in total secrecy and with no due process - has accused of being that. Indeed, the memo itself makes this clear, as it baldly states that presidential assassinations are justified when "an informed, high-level official of the US government has determined that the targeted individual poses an imminent threat of violent attack against the US".
This is the crucial point: the memo isn't justifying the due-process-free execution of senior al-Qaida leaders who pose an imminent threat to the US. It is justifying the due-process-free execution of people secretly accused by the president and his underlings, with no due process, of being that. The distinction between (a) government accusations and (b) proof of guilt is central to every free society, by definition, yet this memo - and those who defend Obama's assassination power - willfully ignore it.
Those who justify all of this by arguing that Obama can and should kill al-Qaida leaders who are trying to kill Americans are engaged in supreme question-begging. Without any due process, transparency or oversight, there is no way to know who is a "senior al-Qaida leader" and who is posing an "imminent threat" to Americans. All that can be known is who Obama, in total secrecy, accuses of this.
(Indeed, membership in al-Qaida is not even required to be assassinated, as one can be a member of a group deemed to be an "associated force" of al-Qaida, whatever that might mean: a formulation so broad and ill-defined that, as Law Professor Kevin
Jon Heller argues [37], it means the memo "authorizes the use of lethal force against individuals whose targeting is, without more, prohibited by international law".)
The definition of an extreme authoritarian is one who is willing blindly to assume that government accusations are true without any evidence presented or opportunity to contest those accusations. This memo - and the entire theory justifying Obama's kill list - centrally relies on this authoritarian conflation of government accusations and valid proof of guilt.
They are not the same and never have been. Political leaders who decree guilt in secret and with no oversight inevitably succumb to error and/or abuse of power. Such unchecked accusatory decrees are inherently untrustworthy (indeed, Yemen experts [38] have vehemently contested [39] the claim that Awlaki himself was a senior al-Qaida leader posing an imminent threat [40] to the US). That's why due process is guaranteed in the Constitution and why judicial review of government accusations has been a staple of western justice since the Magna Carta: because leaders can't be trusted to decree guilt and punish citizens without evidence and an adversarial process. That is the age-old basic right on which this memo, and the Obama presidency, is waging war.
We've previously pointed out [41] the absurdity of the government's circular reasoning in the context of indefinite detention:
The government’s indefinite detention policy – stripped of it’s spin – is literally insane, and based on circular reasoning. Stripped of p.r., this is the actual policy:
- If you are an enemy combatant or a threat to national security, we will detain you indefinitely [42] until the war is over
- It is a perpetual war [43], which will never be over
- Neither you or your lawyers [44] have a right to see the evidence against you, nor to face your accusers
- But trust us, we know you are an enemy combatant and a threat to national security
- We may torture you (and try to cover up the fact that you were tortured [45]), because you are an enemy combatant, and so basic rights of a prisoner guaranteed by the Geneva Convention don’t apply to you
- Since you admitted that you’re a bad guy (while trying to tell us whatever you think we want to hear [46] to make the torture stop), it proves that we should hold you in indefinite detention
See how that works?
The Founding Fathers are rolling in their graves, as the separation of powers they fought and died for is being destroyed. We’ve gone from a nation of laws to a nation of powerful men making laws in secret [47], where Congressional leaders themselves aren’t even allow to see the laws [48], or to learn about covert programs [49]. A nation where Congressmen are threatened with martial law [50] if they don’t approve radical programs.
Indeed, Bush and Obama have literally set the clock back 800 years ... to before the signing of the Magna Carta [51].