It appears the Obama administration has another whistleblower to prosecute after someone leaked a memo to NBC’s Michael Isikoff that provides a partial justification for President Obama’s claimed — and practiced — authority to order the assassination of American citizens. The reaction from civil libertarians is what one might expect, and accurate as well. You can read the memo here (PDF). Greenwald points out something very important:
In fact, The Most Transparent Administration Ever™ has been so fixated on secrecy that they have refused even to disclose the legal memoranda prepared by Obama lawyers setting forth their legal rationale for why the president has this power. During the Bush years, when Bush refused to disclose the memoranda from his Office of Legal Counsel (OLC) that legally authorized torture, rendition, warrantless eavesdropping and the like, leading Democratic lawyers such as Dawn Johnsen (Obama’s first choice to lead the OLC) vehemently denounced this practice as a grave threat, warning that “the Bush Administration’s excessive reliance on ‘secret law’ threatens the effective functioning of American democracy” and “the withholding from Congress and the public of legal interpretations by the [OLC] upsets the system of checks and balances between the executive and legislative branches of government.”
But when it comes to Obama’s assassination power, this is exactly what his administration has done. It has repeatedly refused to disclose the principal legal memoranda prepared by Obama OLC lawyers that justified his kill list. It is, right now, vigorously resisting lawsuits from the New York Times and the ACLU to obtain that OLC memorandum. In sum, Obama not only claims he has the power to order US citizens killed with no transparency, but that even the documents explaining the legal rationale for this power are to be concealed. He’s maintaining secret law on the most extremist power he can assert…
But of course, when this memo refers to “a Senior Operational Leader of al-Qaida”, what it actually means is this: someone whom the President – in total secrecy and with no due process – has accused of being that. Indeed, the memo itself makes this clear, as it baldly states that presidential assassinations are justified when “an informed, high-level official of the US government has determined that the targeted individual poses an imminent threat of violent attack against the US”.
This is the crucial point: the memo isn’t justifying the due-process-free execution of senior al-Qaida leaders who pose an imminent threat to the US. It is justifying the due-process-free execution of peoplesecretly accused by the president and his underlings, with no due process, of being that. The distinction between (a) government accusations and (b) proof of guilt is central to every free society, by definition, yet this memo – and those who defend Obama’s assassination power – willfully ignore it.
Those who justify all of this by arguing that Obama can and should kill al-Qaida leaders who are trying to kill Americans are engaged in supreme question-begging. Without any due process, transparency or oversight, there is no way to know who is a “senior al-Qaida leader” and who is posing an “imminent threat” to Americans. All that can be known is who Obama, in total secrecy, accuses of this.
Conor Friedersdorf focuses on another important question, the definition of “imminent,” and wonders why this document wasn’t released to the public long ago:
On reading the unredacted document, ask yourself, why wasn’t this released to the public by the Obama Administration? Which part of its legal reasoning could jeopardize national security in any way? Since it reveals no national-security secrets, what possible justification could there be for willfully keeping its contents from Americans, who have a compelling interest in understanding, scrutinizing and debating the legal framework that surrounds extrajudicial killing?…
But the part of the memo worth dwelling on most, at least until legal experts offer deeper analysis than I confidently can, is the portion that deals with “an imminent threat of violent attack.”
On reading the document, that clause is sort of reassuring. After all, there aren’t that many circumstances when an attack is imminent. It would seem to severely constrain extrajudicial assassinations.
As it turns out, however, the memo reassures the reader with the rhetorically powerful word “imminent,” only to define imminence down in a way that makes it largely meaningless — so much so that it’s actually reminiscent of George W. Bush’s misuse of imminent to characterize the threat posed by Iraq. It’s difficult to adequately emphasize how absurd this part of the document becomes. What does it mean, for you personally, when you hear that someone poses “an imminent threat of violent attack against the United States”? Do you have an answer in your head?
I certainly do. An “imminent” attack on the United States is one that is going to happen, in short order, unless we stop it. Now here is the passage he refers to in the memo:
Certain aspects of this legal framework require additional explication. First, 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 will take place in the immediate future.
So in order to qualify as an “imminent attack” under the terms of this memo, it need not be imminent at all. Very convenient. Adam Serwer nails it in one succinct sentence:
The government needs the approval of a judge to detain a suspected terrorist. To kill one, it need only give itself permission.
This is exactly the sort of thing that liberals were outraged at when practiced by the Bush administration and we should be equally outraged now. Thankfully, some still are. But not the ones with any power and influence, like most Democratic legislators. Ron Wyden is one of the few who gives a damn.