NBC has obtained a New York Times :
Obama administration lawyers have asserted that it would be lawful to kill a United States citizen if “an informed, high-level official” of the government decided that the target was a ranking figure in Al Qaeda who posed “an imminent threat of violent attack against the United States” and if his capture was not feasible.
It adopts an elastic definition of an “imminent” threat, saying it is not necessary for a specific attack to be in process when a target is found if the target is generally engaged in terrorist activities aimed at the United States. And it asserts that courts should not play a role in reviewing or restraining such decisions.
The white paper states that “judicial enforcement of such orders would require the court to supervise inherently predictive judgments by the president and his national security advisers as to when and how to use force against a member of an enemy force against which Congress has authorized the use of force.”
The paper, a rhetorical exercise in drawing circles, cherry-picks aspects of American law, international law of war and the metaphysical need of protecting life, while ignoring the most basic problems inherent in the idea that one branch of government, on its own and without review by any other, can decide when an American citizen is sufficiently dangerous that he can be killed.
Targeting a member of an enemy force who poses an imminent threat of violent attack to the United States is not unlawful. It is a lawful act of national self defense.
This is war because Congress says so. The president has a duty to defend the nation because Congress says so. And if a person is deemed a threat, now or later or whenever because it’s hard to say when war isn’t quite war, the president has the authority to execute a “lethal operation” to take him out.
Due process?
Were the target of a lethal operation a U.S. citizen who may have rights under the Due Process Clause and the Fourth Amendment, that individual’s citizenship would not immunize him from a lethaI operation. Under the traditional due process balancing analysis of Mathews v. Eldridge, we recognize that there is no private interest more weighty than a person’s interest in his life. But that interest must be balanced against the United States’ interest in forestalling the threat of violence and death to other Americans that arises from an individual who is a senior operational leader of al-Q’aida or an associated force of al-Q’aida and who is engaged in plotting against the United States.On the one side, there is the “weighty” interest in a person’s life. On the other, there is the interest in “forestalling the threat of violence” by someone “plotting” against us. So the president gets to do his own balancing test and decide. Not that this changes the equation much, but without even the barest limitation of actual definition of who is a “senior operational leader” or how imminent the threat being plotted might be. If one was to be cynical about this, this is essentially carte blanche to wipe out anyone involved, including American citizens.
Consider whether anyone decided to hand over this degree of power to kill to the president:
This is the quintessential “might makes right” argument, justified by the government’s paternalistic “trust me” rationale. If they kill them, they deserve it. Why? Because we say so.Hina Shamsi, director of the American Civil Liberties Union’s National Security Project, called the paper “a profoundly disturbing document,” and said: “It’s hard to believe that it was produced in a democracy built on a system of checks and balances. It summarizes in cold legal terms a stunning overreach of executive authority — the claimed power to declare Americans a threat and kill them far from a recognized battlefield and without any judicial involvement.”
To the extent we hold dear certain values that distinguish America, the ones we use whenever questioned as to what makes our constitutional republic a better place than other nations, this white paper renders them empty and meaningless. Either we adhere to American constitutional values, all the time and even when it’s inconvenient, or it’s a free for all.
The Executive Branch has spoken. It says that in the name of protecting America, we give up the values that make America what it is. And that is all they have to offer.
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Absolutely Disturbing. As time goes by, the US [that gold standard of Democracy and individual rights], follows in the steps of [Ed. Note: deleted per rules]. The US must be really annoyed by a small band [probably less than 20K].
With LIBERTY and JUSTICE for ALL [undefined].
Lou
The TomDispatch site (no link per rules) observes that as Americans, we now live in a ‘post-legal’ world, where the laws only apply to the average citizen, and then only when those laws do not interfere with the ‘lockdown State’. The only surprise is that the Administration is still clinging to any pretense of legality of its actions, rather than simply admitting the facts.
For the sake of context, we’ve been through dubious constitutional usurpations in the past, and come out the other side. Some think the government is deliberately flaunting the Constitution, playing a game with us where they claim legal authority but know they’re shooting blanks.
Based upon the people I know in government, I suspect that’s not the case; they believe they are right and are so blinded by the combination of power and righteousness that they are incapable of seeing the error of their reasoning. Hard as it may be to imagine, they believe what they say. They’re just wrong.
This seems to be the “he needed killing defense”.
I was saving that for the next Prez from Texas, but yeah.
And Obama taught con law. We’d flunk his exam I guess.
Maybe we’re making an erroneous assumption when we hear “con law” and think they mean Constitutional Law?
A fine point. I’m relying only on memory.
What I find so frustrating is the fact that the U.S. has been through dubious constitutional usurpations in the past. I just can’t believe that no one in the government has, with the benefit of hindsight, sat back and asked “when we have done this type of thing before before, how well did that work for us?”
I commented once before when the NDAA was signed into force as my grandfather, one of the few who fought Japanese internment, died the very next day. I find it ironic that he received the Presidential Medal of Freedom in May of this year from the same President Obama who signed the NDAA into force. He deserved the honour, as he fought for the Constitution at great personal cost, but I would have hoped the acknowledgement of his battle, of the value of fighting for and upholding the constitution even in times of war (he would say most importantly during times of war), was more than just lip service. Shouldn’t this lesson have been learned by now?
First, for anyone who may not be clear what you’re referring to, your grandfather was Gordon Hirabayahshi, a true American hero. I’m glad that you still come around.
Your question is absolutely right. Not only did it not work out well, but it turned out to be a historic disgrace, in retrospect a blight on our nation. And if insanity is doing the same thing over and over and expecting a difference result, they’re just nuts.
Jus ad bellum, ad infinitum, ad absurdum.
Thank you again for your kind comments about my grandpa. At risk of sounding like a sycophant, I had been coming around for years before I made that first comment and you’re still almost always my first stop when I get online in the morning. I just generally keep quiet because I can’t think of much to add to the conversation. Thanks for writing.
I have hope that people will start realizing the parallels between this and past constitutional breaches; Hirabayashi was recently cited in a decision out of the Southern District of New York on the constitutionality of the NDAA and an amicus curiae brief was filed on behalf of the children of Hirabayashi, Korematsu, and Matsui in the Appeal. However, it seems that in general the populace is as blind to the historical precedent as the government and is willing to trust the executive branch implicitly. The number of people who believe “the government won’t really do it” (uh, they already did), or “the government would only do it if they had really good proof” (if they had really good proof, why not let it stand up to public scrutiny?) is astounding. I guess for the most part those people are lucky enough that they will always be part of the “greater” demographic in the “greater good” justification.
Finally, I thought I’d make one minor point (not that it really matters)in response to your tweet today-I’m actually Gordon Hirabayashi’s granddaughter.
Oops. Gender assumption. My apologies. And thanks for reading, and always feel free to comment.
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Here’s the deal: IMO, adherence to constitutional values by the government and Wheeze the People™ runs in cycles, kinda like the economy or the moon . . .
We happen to currently be in a DOWN cycle; will we eventually come out of it?? Probably, but not certainly. Until then, hang on to your jockstrap, or whatever it is you like to hang on to . . .
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Hello all.. I don’t comment a lot but I do read.. No, I’m not a lawyer, I’m a truck driver & I went survived the Ga. Public school system.. (I can hear the ‘joke machines revving up now…:) But I just have to wonder, is this line of thinking being used on a more local scale, say.. to justify a shooting during a SWAT raid for ‘Officer Safety’ where no evidence is found or wrong address or even shooting of pets.. just a thought..
Nothing wrong with being a truck driver. Being from Georgia, well, that’s another story.
As to your question, it’s a bit too vague to answer. Bad logic and paternalism is used all the time by government to justify it’s conduct, but when the stakes are high, such as the justification for the murder of Americans, empty rhetoric such as this isn’t going to go unnotice or unchallenged.
Welp! Juss Kozz I ain’t frum out yonder.. LOL.. I was gonna to keep it going, but it made my head hurt.. it’s hard typin with an accent..
My point is this, the Exec Branch is claiming the right to defend itself against ‘anyone it suspects as a threat to the Fed Govt or its interests’.. with little or no oversight or accountability to its taxpayers
On a local level, the Govt basically is claiming the same priviledge.. The Executive Branch detects ‘Lawbreakers/threats’, & does so with little or no oversight & if there is accountability, it’s only after the fact, is in the form of $$$, & paid with the taxpayers $$$.. they tend to justify their actions however they see fit..
Ah nevermind I’m gonna go play the World War #2 game, ‘Call of Duty’.. ;]
Well, yeah, in a very broad, non-detailed, squinty sort of way, sure. But details are everything, and if we’re just going to discuss things in their broadest, most gross fashion, lots of stuff can be easily analogized. It doesn’t tend to help anyone, however, since it sheds little light and just feeds the generalized anger toward bad government conduct.
Y’all.