We, the Presumed Guilty

            This month’s publication of the Justice Department’s memo justifying the targeted killing of U.S. citizens in other countries raises many questions, the most important of which strike right to the heart of legal problems created by the so-called “War on Terror.”  The memo defines itself as only discussing the legality of the U.S. government killing its own citizens suspected of joining al-Qa’ida and attempting to launch terrorist attacks.  It is a long read (16 single-spaced pages) that uses complex legal terminology.  It is therefore necessary to break the memo down in the most important questions: Who is being targeted?  Why are they being targeted?  How is the decision made to target them?  Where can they be targeted?  How long can they be targeted?  Understanding the government’s statements on these specific points can allow the American population to decide if they want to continue supporting these policies.  The Justice Department appears to give clean and consistent definitions that are reasonable under the threat of terrorist attack; however, a closer analysis reveals that the government has actually expanded its powers to kill U.S. citizens without any real restrictions.


Who is a target?


            The memo immediately tells which American citizens are being targeted.  The memo’s first sentence says “This white paper sets forth a legal framework for considering the circumstances in which the U.S. government could use lethal force in a foreign country outside the area of active hostilities against a U.S. citizen who is a senior operational leader of al-Qa’ida or an associated force of al-Qa’ida—that is, an al-Qa’ida leader actively engaged in planning operations to kill Americans.” (United States Department of Justice, “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qa’ida or An Associated Force,” page 1, published at http://msnbcmedia.msn.com/i/msnbc/section/news/020413_DOJ_White_Paper.pdf)  The U.S. government clearly states that it is only targeting senior leaders of al-Qa’ida, then conveniently avoids defining what “senior” or “leader” means.  We are therefore left with the combined ideas of “al-Qa’ida” and its “associated forces.”  An immediate footnote at the bottom of the memo’s first page defines “associated forces” as a “co-belligerent as that term is understood under the laws of war.” (Department of Justice, page 1)  Those “laws of war” are never further defined, which leaves “associated forces” extremely vague.  History has shown us that the U.S. government does whatever it wants when the people do not hold it to strict definitions, so we must face the likelihood that any of us can be labeled as “associated forces” and therefore made into a target. 


Why are they targeted?


            The memo quickly gives a reason for targeted such people, regardless of how badly defined those people are.  The government argues that such people plan terrorist attacks that are an imminent threat to the American population.  “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.” (Department of Justice, page 1)  This also sounds reasonable until we examine how the government decides that an imminent threat exists.  The memo argues that targeted killings are not to be used in all instances against all American enemies, and tries to create three rules that must be followed to permit such killings.  “(1) where an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States; (2) where a capture operation would be infeasible—and where those conducting the operation continue to monitor whether capture becomes feasible; and (3) where such an operation would be conducted consistent with applicable law or war principles.”  (Department of Justice, page 6)  By far the most important piece of here is that a “high-level” person in the U.S. government must have decided that the targeted person is somehow planning to launch an attack against the United States and therefore poses and “imminent theat.”  However, the memo refuses to define what type of position “high-level official” is, what part of the government they may work within, or if that “high-level official” must have first gain the agreement of other government officials.  There are perhaps millions of possible “high-level officials” in the government that have thus been given the power to kill American citizens in foreign countries. 

            The memo similarly avoids defining the word “imminent.”  In fact, the memo goes on to annihilate the common meaning of “imminent” just two paragraphs later.  Most people would assume that “imminence” means immediate, impending, or forthcoming, but the memo removes these qualities by arguing that “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 and interests will take place in the immediate future.” (Department of Justice, page 7)  The Justice Department has just argued that the U.S. government should have the ability to target people posing an “imminent” threat without needing to present evidence that the attack is about to happen!  This opens the door to many disturbing questions: Why does the government think an attack will happen without evidence to base that thought on?  What protects U.S. citizens from wrong accusations based on zero evidence?  Is there any type of review system after the targeted killing has occurred?  The government’s continuing silence on these many points is truly frightening; the government’s ability to avoid a public presentation or review of evidence allows the government to target anybody.  All Americans can be presumed guilty when nobody looks at evidence!


When can they be killed?


            The memo further rejects limitations on government presentation and review of evidence by arguing that “the United States is likely to have only a limited window of opportunity within which to defend Americans in a manner that has both a high likelihood of success and sufficiently reduces the probabilities of civilian casualties.” (Department of Justice, page 7)  The government here implies that it will not have time to review evidence when an attack is imminent; however, their annihilation of the common meaning of “imminent” reveals their true intent of enhancing government power by shrinking the window of time in which they should be studying the case.  In essence, the U.S. government’s policy appears to be to shoot first and maybe ask questions later.  This problem is made even worse when we realize that the U.S. government considers al-Qa’ida to be a permanent threat, which leads the government to demand the power to kill virtually whenever it wants.  “… [T]he U.S. government may not be aware of all al-Qa’ida plots as they are developing and thus cannot be confident that none is about to occur….” (Department of Justice, page 8)  This essentially means that al-Qa’ida seeks to launch terrorist attacks against the United States and will do so whenever possible, so the U.S. government can never assume that al-Qa’ida has stopped planning attacks.  Therefore, the government argues for the ability to launch targeted killings of U.S. citizens at any time.  Also, the government assumes that anyone it has labeled an al-Qa’ida member will continue being a member until that person gives evidence of their quitting the terrorist organization.   “Moreover, where the al-Qa’ida member in question has recently been involved in activities posing an imminent threat of violent attack against the United States, and there is no evidence suggesting that he has renounced or abandoned such activities, that member’s involvement in al-Qa’ida’s continuing terrorist campaign against the United States would support the conclusion that the member poses an imminent threat.” (Department of Justice, page 8)  The memo clearly shows that the U.S. government assumes that any person accused of joining al-Qa’ida will remain a permanent member by default and is therefore open to assassination at any time.  Such statements should send chills through anybody that knows how poorly the American government keeps lists of no-fly suspects, gun-owners, and registered voters!  This only reinforces the system of government claims on the right to kill U.S. citizens at any time and with little study of evidence.


Where can the be killed?


            The hunting of American citizens stretches beyond the limits of time and equally over great spans of distance.  The memo spreads this murderous agenda over the entire globe.  “Any operation of the sort discussed here would be conducted in a foreign country against a senior operational leader of al-Qa’ida or its associated forces who poses an imminent threat of violent attack against the United States.”  (Department of Justice, page 2)  This means that the Global War on Terror also permits a Global Hunt of American Citizens Supporting Terror (whatever “support” actually means!).  This so-called “War on Terror” was announced when Congress passed the Authorization to Use Military Force in 2001, which the memo argues “does not set forth an express geographic limitation on the use of force it authorizes.” (Department of Justice, page 3)  The memo argues that Congress refused to define where this War on Terror could be fought, so today’s U.S. leaders can kill American citizens literally anywhere in the world.  The memo does not make it clear if this overrides the previous claims of only killing American citizens in foreign countries, which opens the possibility of the government killing its own citizens in the United States itself.

            Taken in totality, the Justice Department’s memo attempts to give the U.S. government extraordinary powers of killing its own citizens without any major legal penalties.  In fact, the overwhelming majority of the memo is dedicated to arguing how such targeted killings do not break federal law, the Constitution, or internationally recognized laws of war.  The memo begins by giving vague definitions of al-Qa’ida members plotting against the United States, and that problem is made far worse by the memo’s demand that the U.S. government can kill its citizens without presenting or reviewing evidence against that person.  This opens the obvious possibility that the government can target innocent citizens and kill them without ever facing any punishment.  Americans should be truly frightened of these statements when they realize that their government wants the power to kill American citizens at any time and in any place.  The total result is an obvious assassination program that demands the power to kill anyone, anytime, anywhere.


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