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Administration Appoints Itself Judge and Jury on Death by Drone

February 8, 2013 ·

Not to mention executioner.

Not to mention executioner.

A Department of Justice memorandum leaked by NBC News has garnered considerable controversy this week, renewing the ongoing discussion over the legality—and morality—of the Obama administration’s targeted killing program. The disclosure comes as John Brennan goes before the Senate as President Obama’s nominee to head the CIA.

The sixteen-page legal memo—a white paper composed by the DOJ for Congress—outlines the supposedly “lawful” justifications for the targeted killing of U.S. citizens: reasons which, as many commentators have observed, are disturbingly vague. The memo states that first, the citizen must be a senior member of Al-Qaeda; second, that this person must pose an “imminent threat” to the U.S.; and third, that the capture of the individual in question must be “infeasible.”

However, as Glenn Greenwald of The Guardian aptly observes:

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.

Peter Grier of the Christian Science Monitor elaborates on this problem:

All that’s required, under the memo’s wording, is for a well-informed top official of the US government to decide that the person in question is a top terrorist. As for “imminent,” that does not mean “about to happen” in this case. It means only that the alleged terrorist must have recently been involved in activities posing a threat of violent attack and that there is no evidence they’ve renounced those activities.

Other criticisms of the memo have primarily repeated the unlawful and immoral nature of the drone strike program in general, namely that there is no judicial process involved for the target; that the president acts as judge, jury, and executioner in this matter; that such strikes completely violate sovereignty and international law; and that the very notion of drone strike killings, for many of the reasons above, is forthrightly unconstitutional.

Essentially, as Juan Cole explains on his blog Informed Consent, the president derives the power for the drone strike program from a 2001 legislative act, specifically the Congressional Authorization for the Use of Military Force (AUMF.) However, Cole asserts that this act fits the description of a “bill of attainder,” which is a “legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial.” The framers of the Constitution rather smartly decided to forbid bills of attainder for this very reason in Article I, Section 9, paragraph three of the Constitution, which states, “No Bill of Attainder or ex post facto Law will be passed.”

Thus, the AUMF “in singling out all members of al-Qaeda wherever they are and regardless of nationality or of actual criminal action, as objects of legitimate lethal force,” Cole explains, makes it precisely a bill of attainder—and therefore, explicitly unconstitutional.

The leaked memo, in the very least, has placed more public pressure on the Obama administration to address the drone strike program transparently, an issue it has so far avoided or ignored. Yet the administration cannot hope to conceal the program indefinitely: already, the United Nations is conducting an inquiry into both the U.S. and U.K. drone programs, and—since the release of the leaked DOJ memo—President Obama’s nominee for the CIA director, John Brennan, will likely be grilled on the subject as well in his confirmation hearing.

One can only hope that holding the administration’s feet to the fire on this issue will prompt meaningful, lawful change to the drone strike program—yet the United States’ poor track record of respecting the judicial process and international law perhaps makes such expectations altogether too optimistic to hold.

Leslie Garvey is an intern at Foreign Policy in Focus.


Leslie Garvey
Newman Fellow