In a major reportorial coup, NBC's Michael Isikoff has uncovered the "white paper" that the Obama administration used to internally justify extrajudicial killings in the "war on terror." Not only has Isikoff performed a valuable service by making the memo available to the public, this will also be the first time it had been made available to most members of Congress. The memo, unfortunately, will not reassure anyone who thinks that the Obama administration has continued much of the Bush administration's overreaching.
The document lays out three conditions justifying killings ordered by the executive branch. First, an "informed, high-level official" in the United States government must determine that an individual poses an "imminent threat of violent attack against the United States." Second, the capture of the individual must be "infeasible." And, third, the operation must be conducted in a "manner consistent with applicable law of war principles." When these conditions are met, the memo argues, military action that is not bound by the due-process requirements that would constrain an ordinary police operation is justified.
Much of the coverage of the memo, including Isikoff's story, focuses on the justifications offered by the Obama administration for killing American citizens, including Anwar al-Awlaki and Samir Khan (two alleged Al Qaeda operatives killed by a 2011 airstrike in Yemen.) In some respects, this focus is misplaced. If military action is truly justified, then it can be exercised against American citizens (an American fighting for the Nazis on the battlefield would not have been entitled to due process.) Conversely, if military action is not justified, extrajudicial killings of non-Americans should hardly be less disturbing than the extrajudicial killing of an American citizen. The crucial question is whether the safeguards that determine when military action is justified are adequate.
On this crucial point, the framework laid out by the memo is very much inadequate. Several of the key terms laying out the conditions—what counts as an "informed" official? What levels of evidence are necessary?—are frustratingly vague. Particularly crucial is the question of what constitutes an "imminent threat." If a threat is genuinely "imminent," military action is more justifiable. If it isn't, however, it becomes less plausible to argue that capture is "infeasible," and treating a suspected terrorist as a police operation would be more important. It is damning, then, that the definition of what constitutes an "imminent threat" has very little bite. Charlie Savage and Scott Shane explain:
It adopts an elastic definition of an “imminent” threat, saying it is not necessary for a specific attack to be in process when a target is found if the target is generally engaged in terrorist activities aimed at the United States. And it asserts that courts should not play a role in reviewing or restraining such decisions.
As the Atlantic's Conor Friedersdorf points out, this definition of "imminent threat" is disturbingly similar to the contortions of logic that the Bush administration used to assert or imply that Iraq posed an imminent threat to the United States when it was nothing of the kind. Based on how the memo defines an "imminent threat," the extrajudicial killing of suspected terrorists who are long-range threats could be justified. The lack of any judicial oversight further increases the risk that the requirements will not meaningfully constrain arbitrary killings.
Another continuity with the Bush administration can be found in where the memo finds the authority for the extrajudicial killings. The memo cites the Authorization to Use Military Force (AUMF) passed by Congress in 2001, but it also cites the president's inherent Article II authority. The memo's citation of the "president's constitutional authority to protect the nation" makes the elastic definition of "imminent threat" used by the memo completely disturbing; it implies the president has the inherent authority to order the killing of any suspected member of Al-Qeada not on the soil of an American ally. Admittedly, the precise source of authority claimed by the president is an academic question for now: Congress is unlikely to repeal or modify the AUMF anytime soon, so the claims of Article II authority are superfluous. In the long term, however, the parameters of the legislative branch's authority to constrain extrajudicial killings matters.
At this late date, nothing in this white paper can be considered surprising. But this doesn't mean it shouldn't be disturbing. Congress needs to start making serious efforts to exercise its oversight capacity, and the groundwork needs to be laid to withdraw or modify the excessively broad delegation of authority Congress granted in 2001.
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