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Opinion | Obama administration has no right to claim 'self-defense' in civilian assassinations

Milam's Musings

By Brett Milam
On February 7, 2013

NBC broke the story of the Department of Justice's (DOJ) "white paper" or memo Feb. 4, which covers the parameters for lawfully targeted drone assassinations of American citizens affiliated with al-Qaeda or an "an associated force." This comes ahead of the Senate confirmation hearing of John Brennan, President Barack Obama's top pick for CIA director.

Essentially, there are three conditions that the memo specifies to justify the assassination: the citizen poses an imminent threat to the United States, the citizen cannot be captured and that the strike is in accordance with "applicable law of war principles."

Brennan has stated publicly that targeted drone strikes are "consistent with the inherent right of self-defense." Moreover, Attorney General Eric Holder has said that the drone strikes are constitutional because of a potential imminent threat to the United States.

However, what is troubling is that the memo states that the United States need not have specific evidence pointing to an imminent attack, as the memo states, "an informed, high-level official" would make such a determination about continued imminence of a threat enabling extrajudicial assassination.

Such a high-level official would ascertain if the person targeted for assassination had been "recently involved in activities posing a threat of a violent attack" and "there is no evidence suggesting that he has renounced or abandoned such activities."

While this memo is not an official legal document, it is the policy framework for the drone program in the Obama administration.

There are U.S. laws and a presidential executive order banning assassinations, but the memo also has that covered; it states, "A lawful killing in self-defense is not an assassination."

The memo is clearly playing a delicate game of semantics. Words are either intentionally vague like "recently," "activities" and "associated force," or broadened or altered completely like "imminence."

This memo should rightly concern any American who worries about executive power overreach and the Constitution.

Even beyond the Obama administration continuing the Bush legacy of dubious legal frameworks that dismantle civil liberties and give the government undue power post-9/11, is the sense of hubris associated with it.

A telling example of such hubris is an exchange Oct. 23 on MSNBC's "Morning Joe" between Joe Scarborough, a former Republican Congressmen and Joe Klein, a left-leaning political columnist with Time magazine.

"This is going to cause problems in the future," said Scarborough in response to the drone program.

"If it is misused and there is a major possibility of abuse if you have the wrong people running the government..." Klein responded.

As Jameel Jaffer, deputy legal director at the ACLU, points out, "Even if the Obama administration is convinced of its own fundamental trustworthiness, the power this white paper sets out will be available to every future president..."

Oddly enough, throughout the memo the 2004 Supreme Court case Hamdi v. Rumsfeld is routinely cited as justification for the legal framework inherent therein. However, in that case, the Court decided that while the U.S. government could detain U.S. citizens thought to be enemy combatants, they must afford them due process.

Justice Sandra Day O'Connor declared, "A state of war is not a blank check for the president when it comes to the rights of the nation's citizens."

Yet, the memo clearly thinks so, as no judicial review or due process exists before deciding upon the targeted assassination of American citizens.

Some people will assert that surely no Americans are actually going to be killed under this drone program. However, in September 2011, drone strikes killed U.S. citizen Anwar al-Aulaqi in Yemen, along with U.S. citizen Samir Khan, alleged to be engaged in terrorist activities, and two weeks later killed al-Aulaqi's 16-year-old American son (born in Denver) Abdulrahman with a separate drone strike in Yemen.

The New York Times first uncovered the "hit list" the Obama administration has, which targeted individuals like Anwar al-Aulaqi back in April of 2010.

Stated in the article, "It is extremely rare, if not unprecedented, for an American to be approved for targeted killing."

The Obama administration has peddled this notion of being transparent and open. However, when it comes to the drone program and the targeted assassination of American citizens, the administration is secretive and unaccountable.

It has been over a decade since 9/11. As a country, we have yet to engage in a meaningful dialogue about governmental power, civil liberties and terrorism.

As it stands, it does appear the Congress and the American people have given the Bush administration and now the Obama administration carte blanche to do whatever is necessary in the name of the "War on Terrorism," without regard for civil liberties.

All citizens, whether Americans or not, ought to be weary of governmental power, especially if that power grants the government the legality to target its citizens for assassination.


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