Anyone with a conscience who has read the Department of Justice White Paper released this week by NBC was no doubt horrified by what can only be described as the Obama administration’s most brazen usurpation of power so far during his tenure as President. This paper, a justification of the President’s claimed authority to kill American citizens at his order and without court review, has turned traditional ethical and legal constraints against such power on their heads. This article will aim to substantiate these claims. The white paper, by any ethical analysis, is an abomination.
First, the paper justifies citizen assassination on the basis of an “informed” government source. But this term undefined and unclear in its context. There is no method, procedure, or test for when an official is properly or sufficiently informed; only that such a person “has determined” the person to be targeted as an imminent threat. Given the contextual lack of meaning as well, it would seem to imply that any government official whom the President deems “informed,” is ipso facto informed. This makes for an incredibly flimsy reason for assassination.
Second, the paper defends assassination of American citizens when their capture is “indefeasible.” Again, as happens so often in the paper, the term “indefeasible” is undefined. Again we are forced to determine the meaning of the term from the context. In this case, the contextual implication seems to be that when it is “inconvenient” for the U.S. to capture a citizen, they can kill him or her. For example, the paper appeals to “indefeasible capture” when “the relevant window of opportunity” is does not match the U.S. timetable, or if the country in which the U.S. wants to target someone declines permission for the U.S. to enter the country to capture the person. Basically then, the paper defines “indefeasible” so broadly that it says “we’ll define it and use it as justification as we want.”
Arguably the most important shift away from traditional ethical and legal understanding is the DOJ’s definition of “imminence.” This term, used quite frequently throughout the white paper to describe the alleged threat that needs to be assassinated by the President, is defined so widely in the paper that it has lost all meaning. The traditional meaning, closely associated with the ethics of war and now codified in international law, is that another nation must be observed to be physically planning an immediate attack, such as lining its troops on a border, or preparing its fighter jets for immediate flight. However, in this paper, the Obama administration defines “imminent” as “al Qaeda leaders who are continually planning attacks.” If that wasn’t instructive enough, the document adds two further draconian elements to its new definition of imminence: first, it “does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future;” second, that because the U.S. government “cannot be confident that [no attacks] are about to occur,” it gives itself permission for assassination of individuals on the basis of that lack of confidence. Thus, without any concrete evidence, and in the face of a complete lack of evidence of a coming attack, the U.S. may still assassinate its citizens, on the grounds that it knows that al Qaeda is “continually planning” attacks, even if they are never intended or factually carried out. This issue of imminence, taken singly, is symptomatic of what this paper does regarding all categories of its attempted justification for assassination of U.S. citizens: define the terms so broadly that the President and his fellow-assassinators are permitted free reign to target and kill. In this case, the evidence required for “imminent threat” that justifies a pre-emptive strike—knowledge of an attack “in the making” as it were—is lowered so much that it has no impact at all on limiting the Obama administration and its successors from killing citizens.
Next, there is a continual assumption in the paper that al Qaeda has the same legal standing as nations in the application of international law. Several times, al Qaeda operatives are referred to as “enemy forces,” which gives them an immediate standing in international law. Yet, the paper denies that international law applies to U.S. treatment of these “enemy forces.” Further, the paper assumes in some instances, and directly states in others, that al Qaeda is still potent as a serious threat to the U.S., notwithstanding evidence to the contrary (See Aspen Security Forum, June, 2012. See also the CNN reports on this during the same time period. Also, Peter Bergen, Manhunt: The Ten Year Search for bin Laden, from 9/11 to Abbottabad).
Over and again in the paper, Eric Holder, the presumed author, interprets Supreme Court rulings, especially the Hamdi v.Rumsfeld and Hamdan v. Rumsfeld cases, as giving a green light to the President to assassinate American citizens on the basis of their being perceived by the government as “a continual threat” because they “continually plan” attacks. Once again, as in other Presidential proclamations and policies, there is no foreseeable end in this process. It is a recipe for eternal assassination of American citizens who are deemed by the amorphous “informed source” to be “imminent threats.”
Sixth, Holder maintains that the U.S. is “at war” with al Qaeda, even though: a) no war has been declared by Congress (Holder erroneously states that Congress did declare a war on al Qaeda, by what can only be described as a twisted interpretation of the congressional “Authorization of Military Force” [AUMF] in 2001), and ignores that al Qaeda is often treated in this document as if it was the legal equivalent of a nation. Further, the author of this paper shifts back and forth between describing the attacks of al Qaeda as “crimes” and as “war.” But they can’t have it both ways. If it’s a war, the limits of international law apply, and cannot be dismissed by broadly construing their terms so as to allow one party (the U.S. government) to escape their mandates. If it is a crime, then the proper action is not action by the CIA or the President, and certainly not an assassination before they are formally, publicly charged and arrested.
Moreover, the paper states repeatedly that the “targets” are “leaders of al Qaeda,” but: a) no definition of “leader” is given; b) it ignores that in battle as well as in drone attacks, it is not only leaders who are targeted and die. In this regard, the paper ignores entirely the killing of Anwar al-Awlaki’s son. Third, there is no proof required in this paper that it is a “leader” that has been assassinated. Geographical proximity to al Qaeda cells seems to be all the “proof” that is needed for an “informed” government official to recommend assassination.
Next, in this paper, “self-defense” of the U.S. (defined by the vaguely worded “imminent threat” above) really means “aggression” in any other understanding of this Obama doctrine, because the evidence of a specific and truly imminent attack on the U.S. is not required for assassination of a citizen, only the fact that there is an amorphous “ongoing planning” that may or may not be used in an attack on the U.S., as noted above.
Again, the paper defines “realities of combat” as “planning an attack,” and concludes that the latter is sufficient to suspend the normal right of due process to a citizen. But since when does “planning” mean that one is actually “in combat”? Again, this stretches the moral and legal definitions to cover all contingencies from the Obama administration’s point of view.
The paper also makes the brazen claim that the President killing American citizens “is not murder if [we define] it as justified.” It’s only murder, says the author of the paper, if it is “unlawful killing.” But since this paper has redefined the terms so that assassinations are not included in their actions, they are in effect saying “it’s not murder if we say it’s not.”
This bears repeating, since it is repeated in the white paper: the “inherent right to national self-defense” is defined as responding to any “imminent threat,” which itself is defined as “ongoing planning” which in turn is defined as “active hostilities.” The argument blurs all rational and definitional boundaries: one who “plans” is simultaneously and automatically one who is actively engaged in attacks on the U.S. This widens the definition of an “enemy force” so widely that suspicion of planning makes a suspect susceptible to direct attack by a drone. That this is an egregious violation of human rights, if not civil rights as well, almost goes without saying. But not to the author of this paper.
Finally and perhaps most horrifyingly, the paper straightforwardly states that no judicial oversight is permitted, that there are no geographical boundaries for this practice of assassination of U.S. citizens, and that “punishment” for the offense of associating with al Qaeda on the testimony of “an informed government source,” means killing by government order. But of course, if you a priori exclude the judicial system from involvement or even oversight of this process, then of course, the only options are secret arrest and detention, or killing. This is a recipe for near-dictatorial powers, and because the paper is written in such a broad, overarching fashion, a coldblooded leader would not hesitate to use it as such.
In conclusion, this paper, in defining its terms so widely and vaguely, is in fact a dragnet whose net is not intended to collect information or suspects, but to kill, and this alleged right of the President to assassinate the citizens of this country is based on the widest conceivable definition of terms that could be used in legal circles to justify a state killing. Make no mistake about it: a President who is willing to kill American citizens under such broad and vague terms, will not in the future limit his or her actions to foreign soil. Thus, this white paper should sound its own alarm about what our future government might hold for citizens domestically.
After one reads this paper, it is natural to ask: “Who terrorizes America more: a few individual American citizens, or the U.S. government?”
Dr. Robert Abele holds a Ph.D. in Philosophy from Marquette University and M.A. degrees in Theology and Divinity. He is the recipient of numerous scholarships and fellowships, including the National Endowment for the Humanities Fellowship to the U.S. Naval Academy for the study of war and morality (2004), the United States Federal Government Title IV Fellowship for International Studies for the study of Islam (2004), and the Illinois Council of Humanities Scholarship in, for his work on the issues of freedom and democracy (2003).
He is the author of three books: A User’s Guide to the USA PATRIOT Act (2005); The Anatomy of a Deception: A Logical and Ethical Analysis of the Decision to Invade Iraq (2009); and Democracy Gone: A Chronicle of the Last Chapters of the Great American Democratic Experiment (2009). He has also written eleven articles for the International Encyclopedia of Philosophy: Global Justice, and numerous articles on politics and U.S. government foreign and domestic policies.
Dr. Abele is an instructor of philosophy at Diablo Valley College, located in Pleasant Hill, California in the San Francisco Bay area.