This week's confirmation hearing of John Brennan, the president's current counterterrorism adviser, to be the next CIA director focused needed attention on the administration's targeted killing of Americans suspected of terrorism. The hearing comes after the release of a disturbing Justice Department document that tries to legally justify giving President Barack Obama virtual carte blanche when using drone strikes against Americans suspected of being al-Qaida operatives. Obama may be careful in carrying out these killings, but this is too much discretion in the hands of the nation's president.
Americans have been targeted by the controversial drone strikes since the Justice Department's Office of Legal Counsel approved the practice in a classified memo in 2010 that supported the killing of U.S. citizen Anwar al-Awlaki, a radical Muslim cleric. He was killed in a U.S. drone strike in Yemen in 2011 without any judicial oversight or review. U.S. law guarantees citizens due process before the government takes their life. The administration is inexcusably refusing to release the memo to the public, or even the sections that put forth the legal arguments. The 16-page white paper is thought to be a summary of it.
That document lays out three conditions that must be met before Americans suspected of being senior operational leaders of al-Qaida or an association force can be summarily killed. First, an "informed, high-level official" (not just the president) has to determine that an individual poses an imminent threat of a violent attack against the United States. Second, the capture of the target must be "infeasible." Third, the killing must be done in accordance with "law of war principles" which say it must be necessary and proportional, among other factors.
Despite the use of the term "imminent threat," this is not emergency authority giving the president the green light to act against a ticking time bomb. It stretches the meaning of the term to justify targeted killings of Americans in places far from current battlefields if they are deemed an active enemy. They don't have to be demonstrably engaged in an unfolding plot to take American lives. In another example of the paper's elastic use of terminology, a capture is "infeasible" if it would put U.S. personnel at "undue risk," which is presumably almost always the case.
The report rejects judicial oversight. Kill targets are limited to senior members of al-Qaida or its allies, but there are no procedural safeguards to ensure that the American citizen suspected is actually a high-ranking terrorist. As Jameel Jaffer, deputy legal director of the ACLU says, "This is a bit like assuming that the defendant is guilty and then asking whether it's useful to have a trial."
Brennan's circumspect answers before the Senate Intelligence Committee didn't shed much more light on the program. But the hearing did spur the committee's chairwoman, Sen. Dianne Feinstein, D-Calif., to promise to consider proposals to create a new court to review classified information and provide oversight for targeted killings. This is an essential step to reining in the excess powers that the president expropriated to himself. Our system of checks and balances does not allow for the execution of Americans on the president's say-so alone.