Obama and the Justice Department Memo

Whether a person gives up his due process rights when he joins an enemy army is a more complicated question than many want to admit.

I’ve always written about politics with part of my brain focused on the question of what I would do if I were in Politician X’s position. This line of thought came so naturally to me that I imagined everyone did this. But I guess everyone doesn’t.

I've now read the DoJ white paper unearthed by Michael Isikoff (nice job! And by the way, who leaked that one, eh?) that justifies the killing of US citizens. You can read it for yourself here. It’s certainly not something that makes the breast swell with pride. But it does make me wonder what I would do in this situation, and I can’t honestly come up with easy answers. While I don’t condone what the Obama administration is doing here, I’m also suspicious of high-horse denunciations, because I think the question of whether an American forfeits his due process rights when he joins an enemy army is a complicated one.

The logic of the paper goes like this. The US is at war with Al Qaeda. If American citizens have become operational leaders of Al Qaeda, they have in effect made themselves enemies of the United States. In cases where the capture of said person is "infeasible," killing the person does not deprive him of his constitutional rights, provided that "the targeted individual poses an imminent threat of violent attack against the United States."

It's the paper's definition of the word "immiment" that is new here. Isikoff writes:

But the confidential Justice Department “white paper” introduces a more expansive definition of self-defense or imminent attack than described by Brennan or Holder in their public speeches. It refers, for example, to what it calls a “broader concept of imminence” than actual intelligence about any ongoing plot against the U.S. homeland.

“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 U.S. persons and interests will take place in the immediate future,” the memo states.

Instead, it says, an “informed, high-level” official of the U.S. government may determine that the targeted American has been “recently” involved in “activities” posing a threat of a violent attack and “there is no evidence suggesting that he has renounced or abandoned such activities.” The memo does not define “recently” or “activities.”

At one point the paper argues that a restrictive definition of immiment would make any action impossible and could let an attack on the United States happen. See page 7 of the document. It argues that Al Qaeda is more or less continually plotting against the United States; that finding these people is hard; that waiting until the government has evidence of a specific imminent attack would severely limit our options; and given all this, "imminent" just means that such people can be assumed to be in a pretty constant state of imminent preparation.

Well, either this makes a certain sense to you, or you just think that a state can't be in the business of killing its own citizens and that's all there is to it. There's no doubt that a sentence like "the president has the power to order the assassination of American citizens" sounds positively despotic. However, these are people who have gone off and joined Al Qaeda (the white paper also mentions "associated groups," and one definitely wonders where that line is drawn, precisely). If an American citizen of German descent had gone back to heimat Germany in 1934 and joined the Nazi Party and worked his way up such that he was involved in the plotting of attacks against American soldiers, and Roosevelt had order him killed, no one would have batted an eye in 1940s America. Frank Capra might have made a movie celebrating it.

Of course it's not 1940s America. We didn't round up Arab Americans after 9-11 the way we once rounded up Japanese Americans. But that tells us that our mores have changes to such an extent that they can be enforcing of higher standards of behavior in and of themselves; that is to say, any administration that tried to expand its targets beyond people who had clearly declared themselves foes of America would find itself at the center of an enormous political controversy.

Therefore, to those slippery slope arguers, I think it can be said that in real life the slope isn't really that slippery. Taking out a handful of Americans who have sworn allegiance to an enemy hardly means the government is going to start targeting domestic political opponents.

This is different from torture, where I do draw a bright line. Aside from the practical issues—it doesn’t elicit solid confessions—there are clear legal and moral ones. We’ve signed international declarations that we will not torture. That’s our word to the world. When we go back on that, everyone else can, and the result is chaos, chaos we created.

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But this is an internal matter. It is definitely alarming that a president can arrogate to himself this kind of power, whoever the president is. And no, I would not be writing differently about this if the president were George W. Bush. I’ve always taken a fairly tough line on Al Qaeda, and I backed the Afghanistan war. In addition, I’ve never been a hard-line civil libertarian. My civic-republican instincts cut against that, because I feel that citizenship confers not just rights but responsibilities. The former are codified in law, as they must be, while the latter tend not to be; they are just mutual understandings that we’re all supposed to live by. Obviously, Anwar al-Awlaki, who joined an enemy army, didn’t live by them. His 16-year-old son is a more troubling case, although in that strike, that apparent target was Ibrahim al-Banna, a senior Al Qaeda in the Arab Peninsula figure.

Let’s return to this question of imminence, which is the key thing here. David Cole of Georgetown law writes in the Times:

But even if capture is not feasible at the moment, if the suspect is not about to attack us, it is possible that capture will become feasible later. Self defense requires that lethal force be used only as a last resort; the Obama administration’s redefinition of “imminence” permits it to be used as a first resort.

He’s not wrong. But it's the nature of this sordid business that it's impossible to know whether he's right. There's always the possibility of the case where we might find out too late, and a large number of Americans could die. Presidents live with that responsibility every day. If that responsibility were mine, I can't honestly say what I'd do, and I don't think anyone can.