White paper explains justification for killing US citizens

Anwar al-Awlaki, an American-born Al-Qaeda operative, was killed by a drone strike in 2011.

Anwar al-Awlaki, an American-born Al Qaeda operative, was killed by a drone strike in 2011.

Yesterday, NBC news released a white paper composed by White House lawyers explaining why it is okay to kill US citizens connected to Al Qaeda in foreign countries. You can read the full memo here, where you are at zero risk of forgetting who broke the story. According to the Times, this white paper describes another, more specific brief that I can only assume is even more tedious. The occasion for all this airtight legal reasoning rationalizing was the 2011 killing of Anwar Al-Awlaki, a US citizen and general douchebag in Yemen, in a drone strike that also incinerated his 16 year-old son. Apparently they were guilty.

Traditionally, the United States government cannot order the killing of a United States citizen without some sort of trial. As Eric Holder asserted in March and this paper argues, however, “due process” does not necessarily mean judicial process. Rather, an “informed, high-ranking official” need only determine that the target is a high-ranking member of Al Qaeda or its affiliates who poses an “imminent threat of violent attack on the United States.” Judicial oversight in such circumstances would be inappropriate, since it would require courts to evaluate “inherently predictive” decisions of the executive branch.

Finally, the whole thing hinges on the concept of “national self-defense,” by which the federal government can kill American citizens who are probably engaged in planning attacks on the United States. In the case of Al-Awlaki, that determination seemed to fall under the rubric of common sense; if even half of what the feds say about him is true, he was a committed instrument of Al Qaeda. There is no “if” about his being born in New Mexico, though. That man was an American, and the president of America ordered him killed. Given that certainty, I have three questions:

  1. In what way was the threat posed by Al-Awlaki imminent?
  2. Even if you accept that we are at war with Al Qaeda, how is the targeted killing of a specific leader who has never engaged in field combat not an assassination?
  3. What does it mean to say that the United States is justified in defending itself against its own citizens?

The problem underlying questions (1) and (2) makes me insane. The dictionary definition of “imminent” is about to happen, and even such liberal uses as can be found in Kant and Heidegger take the word to mean close in space or time. If we are bound by these definitions, it’s hard to say that Al-Awlaki posed an imminent threat to American lives while riding in a car in Yemen. At best, he was planning an unstoppable attack at that very moment, enclosed in a moving vehicle far from any Americans except himself.

Still, he was thousands of miles away from the United States and not, presumably, about to press the button to explode the Washington monument. Fortunately for all of us, this problem is addressed on page 7 of the white paper. Quote:

…the condition that an operational leader present an imminent threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on US persons or interests will take place in the immediate future.

What the fudging forks could “imminent” mean, then? The white paper does not say, although the next sentence does cite September 11th as proof that such a definition of “imminent” would not allow the US time to defend itself.

For sheer elasticity, this construction of “imminent” is bested only by our new working definition of “war.” Al Qaeda is not a country. Al-Awlaki did not wear a uniform, nor did he hold a military rank. You could say that he was a civilian leader of a non-state entity against which we had somehow declared war, but then deliberately killing him on purpose would fit another established definition: assassination. That would violate Executive Order 12333, but don’t worry; the white paper says it does not. On page 15 it says that such killings are merely self-defense, foregoing an explanation because, I dunno, page limit.

Fine—let us accept that the United States did not assassinate Al -Awlaki but merely defended itself against him. Al-Awlaki was a citizen. Accepting that the United States could not defend itself against itself, are we to understand that the US is something other than its citizens?

Maybe it is all of the citizens together, and we acted as a group against that one citizen—but we have a judicial system for taking such actions, and the whole point of this memo is that the courts need not be involved. So if the US government is not us—if it is so not us that it can legally kill us to protect itself—what is it? I do not know. I am certain that it is really big and powerful, though, and this morning I am a little scared of it.

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  1. Nice post. “What the fudging forks” is the same response I had to that “imminent” construction, too. The “war” construction is less concerning to me, as the days of a nation state restricting individuals’ activity seems long gone. The Internet, destabilized regions, easy air travel, small WMDs, etc.

  2. Yeah, “imminent” in that memo is something that encompasses 1)anyone from a terrorist group, because 2)that group is always planning something. So it would seem all it takes is a high-level official to designate a group terrorist to justify lethal force, and that’s pretty alarming.

    They do specify the necessity of capture or the ongoing monitoring for capture, as well as law of war principles. But it’s easy to imagine scenarios where these flimsy buttresses are undermined.

    It’s really a pretty shitty position to be in, as one of those high level officials and/or the President. Your first and foremost duty is clearly the protection of American citizens. If you choose not to act on some opportunity because of legal ambiguity you become very culpable for the outcome. And if you overact in an area of legal ambiguity, you risk violating your duty to the law and help carry us down that 1984 path that we’re all so wary of walking.

    What would you do?

  3. As we teeter on these slippery slopes, is there some formula for forfeiting citizenship that the US might apply?

    1. You take up permanent residence in another country; AND
    2. You announce your intent to kill American citizens or state your intent to encourage and/or carry out violent acts against them; AND
    3. You have the apparent ability to carry out #2.

    A slippery slope, indeed; and the forfeiture of citizenship only eliminates the “but he’s an American!” part of our dilemma. But at least it might clearly set forth the steps by which one might tee themselves up for the long drive.

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