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Executive Power and Targeted Assassinations

White Paper, Dark Deeds

by VINCENT WARREN

What timing.  Just as President Obama’s nominee for CIA director, John Brennan, was poised to go before the Senate Intelligence Committee for confirmation, someone leaked a white paper that shows he may be just a tad too trigger-happy for the job.

Currently the president’s chief counterterrorism advisor, Brennan has been the lead architect of Obama’s controversial targeted killing program, in which he has claimed authority to kill people far from any battlefield and without capture, charge, or trial—indeed, without any judicial oversight whatsoever.  The paper focuses on the president’s authority to do this to an American citizen—a fate that has befallen at least three Americans, including a 16-year-old boy—and argues that the United States may kill in “self-defense” when the person targeted poses “an imminent threat of violent attack.”  After all, when faced with such dangers, timing is everything.

The assertion of national self-defense as a basis for these killings is legally problematic for different reasons, including that “imminence” according to the white paper doesn’t mean what it the law says it means.  Nor, apparently, does it mean what the dictionary says it means.  The memo explicitly says that the U.S. can kill its own citizens even if it has no clear evidence that an attack will take place “in the immediate future”—in other words, “imminence” doesn’t mean imminence.

Instead, according to the memo, the president may kill an American who has merely been “recently” involved in “activities” posing a threat of violent attack as long as “there is no evidence suggesting that he has renounced or abandoned such activities.”  Neither “recently” nor “activities” is defined.

Meanwhile, former and current military and CIA officials responsible for the targeted killing program are asking a federal judge to dismiss a lawsuit filed by the Center for Constitutional Rights (CCR) and the American Civil Liberties Union (ACLU) on behalf of the families of three Americans already killed by President Obama.  Their Department of Justice lawyers argue that the courts should stay out of it because the Executive Branch knows best.

The targeted killing program isn’t John Brennan’s only problem.  Back in 2008, when Obama first nominated him for director, Brennan was driven to withdraw his name from consideration amid controversy over his support for “enhanced interrogation techniques”—Bush-speak for torture.  As the Senate now considers Brennan’s nomination, and as the courts weigh the president’s claims of executive prerogative, the Bush era is instructive.

We are reminded of a time when many thought that detention of alleged terror suspects at Guantánamo beyond the reach of law was necessary and legal.  The Bush administration argued that the courts had no role in overseeing such detentions, that they should just trust the president.  The Supreme Court roundly rejected that notion. And when faced with President Bush’s attempt to imprison a U.S. citizen without fair judicial review, the Supreme Court famously responded,  “A state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.”

When the Torture Memos were finally revealed – by the same President Obama who refuses to make the legal memos or the “playbook” justifying and outlining his targeted killing program public – they underscored the wisdom of this decision not to trust the executive alone—the executive was doing reckless things on twisted legal footing.

The white paper released Monday bears a chilling resemblance to the torture memos.  Here, too, the president insists that he knows best and that we—the public, the courts, the citizens he claims the right to kill—should trust him.  Here, too, the executive has fashioned a legal analysis to justify practices that are clearly illegal under the law, not to mention immoral and dangerous.  And here, too, the courts should reject the demand that they turn a blind eye to unconstitutional practices in the hopes that, behind closed executive doors, the president is doing the right thing.  This white paper certainly shows he is not.

Vincent Warren is executive director of the Center for Constitutional Rights.