A white paper from US Department of Justice (PF) providing legal justification for the US government's targeting of US citizens believed to be members of Al Qaeda is leaked and is greeted by our elected representatives with deafening silence. (Given this administration's aggressive posture on leakers, I would not be surprised if whoever released this document is vigorously hunted down and prosecuted.)
Before I delve into the memo, let me present some background information. Three days after the Sep 11 attack, Congress passed the Authorization to Use Military Force Against Terrorists granting broad authority to the President.
That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
The authorization also states:
Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.
It's important to note that the authorization applies anywhere in the world and does not expire. Let's have a look at Section 5(b) of the War Powers Act:
Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces.... (bolding mine)
Congress satisfied the requirements of the War Powers Resolution with the Authorization to Use Military Force. While you are reading this blog, shopping at the mall, or swearing at the driver who just cut you off, our country remains in its self-defined global war against terrorism. One aspect of this war is our government's ability to kill American citizens deemed a threat. The white paper addresses that specific aspect.
This white paper sets forth a legal framework for considering the circumstances in which the U.S. government could use lethal force in a foreign country outside the area of active hostilities against a U.S. citizen who is a senior operational leader of al-Qa'ida or an associated force of al-Qa'ida--that is, an al-Qa'ida leader actively engaged in planning operations to kill Americans.
Check out this paragraph:
By its nature, therefore, the threat posed by al-Qa'ida and its associated forces demands a broader concept of imminence in judging when a person continually planning terror attacks presents an imminent threat, making the use of force appropriate. In this context, imminence must incorporate 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. Thus, a decision maker determining whether an al-Qa'ida operational leader presents an imminent threat of violent attack against the United States must take into account that certain members of al Qa'ida (including any potential target of lethal force) are continually plotting attacks against the United States; that al-Qa' ida would engage in such attacks regularly if it were able to do so; that the U.S. government may not be aware of all al-Qa'ida plots as they are developing and thus cannot be confident that none is about to occur; and that, in light of these predicates, the nation may have a limited window of opportunity within which to strike in a manner that both has a high likelihood of success and reduces the probability of American casualties.
First of all, if something is imminent, it is likely to occur at any moment. A "broader concept of imminence" renders the concept of imminence meaningless. But even more striking is the self-serving deceptive logic with the paragraph.
- Al Qaeda is always plotting attacks against the US.
- Al Qaeda would attack on a regular basis if they could.
- We may not be aware of the plots and one could happen at any time.
- Just to make sure because we can't be sure, we can kill Americans.
Those statements justify our administration's position (and practice) of killing an American citizen whom it claims is a senior operational leader of Al Qaeda or an associated force. Reminiscent of former Vice President Cheney's One Percent Doctrine, we're saying that if there's a slight chance an American is a terrorist,we should treat it as a certainty. Not only that, the designation of an American as a member of Al Qaeda or an associated force--What is that besides a catch all?--is done in secret. All of this is done in secret by "an informed decision maker" who has been given carte blanche by Congress.
Remember our shameful justification of torture which we redefined as enhanced interrogation? Presumably we stopped that, but we never prosecuted those who violated the law. This administration did nothing about those who authorized or administered torture. The only person prosecuted by the Obama administration was a whistleblower.
Extrajudicial killings through the use of missile-laden unmanned aircraft continue today. We get away with it because we're doing it in countries where we can get away with it. Countries who don't have enough power or a strong enough government to demand that we stop. We're the ones determining which of the dead are militants. Conveniently, all of the dead are unless proven otherwise.
The mission to kill Osama bin Laden proved we have the ability to capture--we could have captured him if we wanted to--senior operational leaders of Al Qaeda. The lazy way is to send missiles. Everyone who witnesses the attacks know where the missiles can from and who to hate for sending them. We shall reap what we sow.
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