Chilling legal memo from Obama

Chilling legal memo from Obama DOJ justifies assassination of US citizens

The president's partisan lawyers purport to vest him with the most extreme power a political leader can seize





Barack Obama Photograph: Reuters

The most extremist power any political leader can assert is the
power to target his own citizens for execution without any charges or
due process, far from any battlefield. The Obama administration has not
only asserted exactly that power in theory, but has exercised it in
practice. In September 2011, it killed US citizen Anwar Awlaki in a
drone strike in Yemen, along with US citizen Samir Khan, and then, in circumstances that are still unexplained, two weeks later killed Awlaki's 16-year-old American son Abdulrahman with a separate drone strike in Yemen.
Since
then, senior Obama officials including Attorney General Eric Holder and
John Brennan, Obama's top terrorism adviser and his current nominee to
lead the CIA, have explicitly argued that the president is and should be
vested with this power. Meanwhile, a Washington Post article from October
reported that the administration is formally institutionalizing this
president's power to decide who dies under the Orwellian title
"disposition matrix".
When the New York Times back in April, 2010 first confirmed the existence of Obama's hit list, it made clear just what an extremist power this is, noting: "It is extremely rare, if not unprecedented,
for an American to be approved for targeted killing." The NYT quoted a
Bush intelligence official as saying "he did not know of any American
who was approved for targeted killing under the former president". When
the existence of Obama's hit list was first reported several months earlier by the Washington Post's Dana Priest, she wrote that the "list includes three Americans".
What
has made these actions all the more radical is the absolute secrecy
with which Obama has draped all of this. Not only is the entire process carried out solely within the Executive branch
- with no checks or oversight of any kind - but there is zero
transparency and zero accountability. The president's underlings compile
their proposed lists of who should be executed, and the president - at a
charming weekly event dubbed by White House aides as "Terror Tuesday" -
then chooses from "baseball cards" and decrees in total secrecy who
should die. The power of accuser, prosecutor, judge, jury, and
executioner are all consolidated in this one man, and those powers are
exercised in the dark.
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.
Last night, NBC News' Michael Isikoff released a 16-page "white paper"
prepared by the Obama DOJ that purports to justify Obama's power to
target even Americans for assassination without due process (the memo is
embedded in full below). This is not the primary OLC memo justifying
Obama's kill list - that is still concealed - but it appears to track
the reasoning of that memo as anonymously described to the New York Times in October 2011.
This
new memo is entitled: "Lawfulness of a Lethal Operation Directed
Against a US Citizen Who is a Senior Operational Leader of Al-Qa'ida or
An Associated Force". It claims its conclusion is "reached with
recognition of the extraordinary seriousness of a lethal operation by
the United States against a US citizen". Yet it is every bit as chilling
as the Bush OLC torture memos in how its clinical, legalistic tone
completely sanitizes the radical and dangerous power it purports to
authorize.
I've written many times at length about why the Obama assassination program is such an extreme and radical threat - see here
for one of the most comprehensive discussions, with documentation of
how completely all of this violates Obama and Holder's statements before
obtaining power - and won't repeat those arguments here. Instead, there
are numerous points that should be emphasized about the fundamentally
misleading nature of this new memo:
1. Equating government accusations with guilt

The core distortion of the War on Terror under both Bush and Obama is the Orwellian practice of equating government accusations
of terrorism with proof of guilt. One constantly hears US government
defenders referring to "terrorists" when what they actually mean is:
those accused by the government of terrorism. This entire memo is
grounded in this deceit.
Time and again, it emphasizes that the
authorized assassinations are carried out "against a senior operational
leader of al-Qaida or its associated forces who poses an imminent threat
of violent attack against the United States." Undoubtedly fearing that
this document would one day be public, Obama lawyers made certain to
incorporate this deceit into the title itself: "Lawfulness of a Lethal
Operation Directed Against a US Citizen Who is a Senior Operational
Leader of al-Qaida or An Associated Force."
This ensures that
huge numbers of citizens - those who spend little time thinking about
such things and/or authoritarians who assume all government claims are
true - will instinctively justify what is being done here on the ground
that we must kill the Terrorists or joining al-Qaida means you should be killed.
That's the "reasoning" process that has driven the War on Terror since
it commenced: if the US government simply asserts without evidence or
trial that someone is a terrorist, then they are assumed to be, and they
can then be punished as such - with indefinite imprisonment or death.
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 people secretly 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.
(Indeed,
membership in al-Qaida is not even required to be assassinated, as one
can be a member of a group deemed to be an "associated force" of
al-Qaida, whatever that might mean: a formulation so broad and
ill-defined that, as Law Professor Kevin Jon Heller argues,
it means the memo "authorizes the use of lethal force against
individuals whose targeting is, without more, prohibited by
international law".)
The definition of an extreme authoritarian is
one who is willing blindly to assume that government accusations are
true without any evidence presented or opportunity to contest those
accusations. This memo - and the entire theory justifying Obama's kill
list - centrally relies on this authoritarian conflation of government
accusations and valid proof of guilt.
They are not the same and
never have been. Political leaders who decree guilt in secret and with
no oversight inevitably succumb to error and/or abuse of power. Such
unchecked accusatory decrees are inherently untrustworthy (indeed, Yemen experts have vehemently contested the claim that Awlaki himself was a senior al-Qaida leader posing an imminent threat
to the US). That's why due process is guaranteed in the Constitution
and why judicial review of government accusations has been a staple of
western justice since the Magna Carta: because leaders can't be trusted
to decree guilt and punish citizens without evidence and an adversarial
process. That is the age-old basic right on which this memo, and the
Obama presidency, is waging war.
2. Creating a ceiling, not a floor

The
most vital fact to note about this memorandum is that it is not
purporting to impose requirements on the president's power to
assassinate US citizens. When it concludes that the president has the
authority to assassinate "a Senior Operational Leader of al-Qaida" who
"poses an imminent threat of violent attack against the US" where
capture is "infeasible", it is not concluding that assassinations are permissible only in those circumstances.

To
the contrary, the memo expressly makes clear that presidential
assassinations may be permitted even when none of those circumstances
prevail: "This paper does not attempt to determine the minimum
requirements necessary to render such an operation lawful." Instead, as
the last line of the memo states: "it concludes only that the stated
conditions would be sufficient to make lawful a lethal operation" - not that such conditions are necessary
to find these assassinations legal. The memo explicitly leaves open the
possibility that presidential assassinations of US citizens may be
permissible even when the target is not a senior al-Qaida leader posing
an imminent threat and/or when capture is feasible.
Critically,
the rationale of the memo - that the US is engaged in a global war
against al-Qaida and "associated forces" - can be easily used to justify
presidential assassinations of US citizens in circumstances far beyond
the ones described in this memo. If you believe the president has the
power to execute US citizens based on the accusation that the citizen
has joined al-Qaida, what possible limiting principle can you cite as to
why that shouldn't apply to a low-level al-Qaida member, including ones
found in places where capture may be feasible (including US soil)? The
purported limitations on this power set forth in this memo, aside from
being incredibly vague, can be easily discarded once the central theory
of presidential power is embraced.
3. Relies on the core Bush/Cheney theory of a global battlefield

The
primary theory embraced by the Bush administration to justify its War
on Terror policies was that the "battlefield" is no longer confined to
identifiable geographical areas, but instead, the entire globe is now
one big, unlimited "battlefield". That theory is both radical and
dangerous because a president's powers are basically omnipotent on a
"battlefield". There, state power is shielded from law, from courts,
from constitutional guarantees, from all forms of accountability: anyone
on a battlefield can be killed or imprisoned without charges. Thus, to
posit the world as a battlefield is, by definition, to create an
imperial, omnipotent presidency. That is the radical theory that
unleashed all the rest of the controversial and lawless Bush/Cheney
policies.
This "world-is-a-battlefield" theory was once highly controversial among Democrats. John Kerry famously denounced
it when running for president, arguing instead that the effort against
terrorism is "primarily an intelligence and law enforcement operation
that requires cooperation around the world".
But this global-war
theory is exactly what lies at heart of the Obama approach to Terrorism
generally and this memo specifically. It is impossible to defend Obama's
assassination powers without embracing it (which is why key Obama officials have consistently done so).
That's because these assassinations are taking place in countries far
from any war zone, such as Yemen and Somalia. You can't defend the
application of "war powers" in these countries without embracing the
once-very-controversial Bush/Cheney view that the whole is now a
"battlefield" and the president's war powers thus exist without
geographic limits.
This new memo makes clear that this Bush/Cheney
worldview is at the heart of the Obama presidency. The president, it
claims, "retains authority to use force against al-Qaida and associated
forces outside the area of active hostilities". In
other words: there are, subject to the entirely optional "feasibility of
capture" element, no geographic limits to the president's authority to
kill anyone he wants. This power applies not only to war zones, but
everywhere in the world that he claims a member of al-Qaida is found.
This memo embraces and institutionalizes the core Bush/Cheney theory
that justified the entire panoply of policies Democrats back then
pretended to find so objectionable.
4. Expanding the concept of "imminence" beyond recognition

The
memo claims that the president's assassination power applies to a
senior al-Qaida member who "poses an imminent threat of violent attack
against the United States". That is designed to convince citizens to
accept this power by leading them to believe it's similar to common and
familiar domestic uses of lethal force on US soil: if, for instance, an
armed criminal is in the process of robbing a bank or is about to shoot
hostages, then the "imminence" of the threat he poses justifies the use
of lethal force against him by the police.
But this rhetorical
tactic is totally misleading. The memo is authorizing assassinations
against citizens in circumstances far beyond this understanding of
"imminence". Indeed, the memo expressly states that it is inventing "a
broader concept of imminence" than is typically used in domestic law.
Specifically, the president's assassination power "does not require that the US have clear evidence that a specific attack . . . will take place in the immediate future".
The US routinely assassinates its targets not when they are engaged in
or plotting attacks but when they are at home, with family members,
riding in a car, at work, at funerals, rescuing other drone victims,
etc.
Many of the early objections to this new memo have focused
on this warped and incredibly broad definition of "imminence". The
ACLU's Jameel Jaffer told Isikoff that the memo "redefines the word
imminence in a way that deprives the word of its ordinary meaning". Law
Professor Kevin Jon Heller called Jaffer's objection "an understatement", noting that the memo's understanding of "imminence" is "wildly overbroad" under international law.
Crucially,
Heller points out what I noted above: once you accept the memo's
reasoning - that the US is engaged in a global war, that the world is a
battlefield, and the president has the power to assassinate any member
of al-Qaida or associated forces - then there is no way coherent way to
limit this power to places where capture is infeasible or to persons
posing an "imminent" threat. The legal framework adopted by the memo
means the president can kill anyone he claims is a member of al-Qaida
regardless of where they are found or what they are doing.
The
only reason to add these limitations of "imminence" and "feasibility of
capture" is, as Heller said, purely political: to make the theories more
politically palatable. But the definitions for these terms are so vague
and broad that they provide no real limits on the president's
assassination power. As the ACLU's Jaffer says: "This is a chilling
document" because "it argues that the government has the right to carry
out the extrajudicial killing of an American citizen" and the purported
limits "are elastic and vaguely defined, and it's easy to see how they
could be manipulated."
5. Converting Obama underlings into objective courts

This
memo is not a judicial opinion. It was not written by anyone
independent of the president. To the contrary, it was written by
life-long partisan lackeys: lawyers whose careerist interests depend
upon staying in the good graces of Obama and the Democrats, almost certainly
Marty Lederman and David Barron. Treating this document as though it
confers any authority on Obama is like treating the statements of one's
lawyer as a judicial finding or jury verdict.
Indeed, recall the primary excuse used to shield
Bush officials from prosecution for their crimes of torture and illegal
eavesdropping: namely, they got Bush-appointed lawyers in the DOJ to
say that their conduct was legal, and therefore, it should be treated as
such. This tactic - getting partisan lawyers and underlings of the
president to say that the president's conduct is legal - was appropriately treated with scorn when invoked by Bush officials to justify their radical programs. As Digby wrote
about Bush officials who pointed to the OLC memos it got its lawyers to
issue about torture and eavesdropping, such a practice amounts to:
<blockquote>"validating
the idea that obscure Justice Department officials can be granted the
authority to essentially immunize officials at all levels of the
government, from the president down to the lowest field officer, by
issuing a secret memo. This is a very important new development in
western jurisprudence and one that surely requires more study and
consideration. If Richard Nixon and Ronald Reagan had known about this,
they could have saved themselves a lot of trouble."
</blockquote>Life-long
Democratic Party lawyers are not going to oppose the terrorism policies
of the president who appointed them. A president can always find
underlings and political appointees to endorse whatever he wants to do.
That's all this memo is: the by-product of obsequious lawyers telling
their Party's leader that he is (of course) free to do exactly that
which he wants to do, in exactly the same way that Bush got John Yoo to
tell him that torture was not torture, and that even it if were, it was
legal.
That's why courts, not the president's partisan lawyers,
should be making these determinations. But when the ACLU tried to obtain
a judicial determination as to whether Obama is actually authorized to
assassinate US citizens, the Obama DOJ went to extreme lengths
to block the court from ruling on that question. They didn't want
independent judges to determine the law. They wanted their own lawyers
to do so.
That's all this memo is: Obama-loyal appointees telling
their leader that he has the authority to do what he wants. But in the
warped world of US politics, this - secret memos from partisan lackeys -
has replaced judicial review as the means to determine the legality of
the president's conduct.
6. Making a mockery of "due process"

The core freedom most under attack by the War on Terror is the Fifth Amendment's guarantee of due process. It provides
that "no person shall be . . . deprived of life . . . without due
process of law". Like putting people in cages for life on island prisons
with no trial, claiming that the president has the right to assassinate
US citizens far from any battlefield without any charges or trial is
the supreme evisceration of this right.
The memo pays lip service
to the right it is destroying: "Under the traditional due process
balancing analysis . . . . we recognize that there is no private
interest more weighty than a person's interest in his life." But it
nonetheless argues that a "balancing test" is necessary to determine the
extent of the process that is due before the president can deprive
someone of their life, and further argues that, as the New York Times put it when this theory was first unveiled: "while the Fifth Amendment's guarantee of due process applied, it could be satisfied by internal deliberations in the executive branch."
Stephen Colbert perfectly mocked
this theory when Eric Holder first unveiled it to defend the
president's assassination program. At the time, Holder actually said:
"due process and judicial process are not one and the same." Colbert
interpreted that claim as follows:
<blockquote>"Trial by jury, trial by fire, rock, paper scissors, who cares? Due process just means that there is a process that you do. The
current process is apparently, first the president meets with his
advisers and decides who he can kill. Then he kills them."
</blockquote>It
is fitting indeed that the memo expressly embraces two core Bush/Cheney
theories to justify this view of what "due process" requires. First, it
cites the Bush DOJ's core view, as enunciated by John Yoo,
that courts have no role to play in what the president does in the War
on Terror because judicial review constitutes "judicial encroachment" on
the "judgments by the President and his national security advisers as
to when and how to use force". And then it cites the Bush DOJ's mostly
successful arguments in the 2004 Hamdi case that the president
has the authority even to imprison US citizens without trial provided
that he accuses them of being a terrorist.
The reason this is so
fitting is because, as I've detailed many times, it was these same early
Bush/Cheney theories that made me want to begin writing about politics,
all driven by my perception that the US government was becoming
extremist and dangerous. During the early Bush years, the very idea that
the US government asserted the power to imprison US citizens without
charges and due process (or to eavesdrop on them) was so radical that,
at the time, I could hardly believe they were being asserted out in the
open.
Yet here we are almost a full decade later. And we have the
current president asserting the power not merely to imprison or
eavesdrop on US citizens without charges or trial, but to order them
executed - and to do so in total secrecy, with no checks or oversight.
If you believe the president has the power to order US citizens executed
far from any battlefield with no charges or trial, then it's truly hard
to conceive of any asserted power you would find objectionable.


Source:-
http://www.guardian.co.uk/commentisfree/2013/feb/05/obama-kill-list-doj-memo