The Washington Post reports this morning on the leaked Justice Department document laying out the Obama administration’s rationale justifying the targeted killing of American citizens who betray their country and fight for al-Qaeda:
The United States can lawfully kill a U.S. citizen overseas if it determines the target is a “senior, operational leader” of al-Qaeda or an associated group and poses an imminent threat to the United States, according to a Justice Department document published late Monday by NBC News.
The document defines “imminent threat” expansively, saying it does not have to be based on intelligence about a specific attack since such actions are being “continually” planned by al-Qaeda. “In this context,” it says, “imminence must incorporate considerations of the relevant window of opportunity” as well as possible collateral damage to civilians.
It says that such determinations can be made by an “informed, high-level official of the U.S. government.”
The leaked document appears to be an unclassified summary of an opinion from the Justice Department’s Office of Legal Counsel laying out the legal justification for the drone strikes. I asked Steve Engel, Deputy Assistant Attorney General for the Office of Legal Counsel in the Bush administration, for his reaction to the disclosure. Here is what he told me:
Little in the opinion is surprising at first glance. The opinion tracks the plurality opinion in Hamdi [Hamdi v. Rumsfeld], which holds that the president has the authority to use military force against an American citizen during wartime, under circumstances where it would be necessary to protect the country.
The opinion genuflects to the president’s constitutional authority to use military force, but – consistent with the Obama DOJ approach in the GTMO litigation – seeks to avoid expressly relying upon it, instead emphasizing the AUMF [authorization for the use of military force]. One difference in tone is that the opinion in places relies on certain selected international law review articles, a move that is consistent with the background of some in Obama’s DOJ, but is probably not something you would have seen at the Bush DOJ.
In terms of its history, my educated speculation would be that the relevant senate committees were demanding the OLC opinion on Awlaki, and Obama’s DOJ generated this unclassified white paper as an alternative accommodation. The timing of this disclosure is a bit suspicious, raising the question whether the leakers waited until after the election, for fear the issue might backfire on the administration.
Bottom line seems to be that while the Obama team took a slightly different legal path to get there, they arrived at about the same destination as the Bush administration on the president’s authority to conduct military operations in what was once known as the war on terror.
Let’s see if all those who excoriated Bush as a “war criminal” who ran an “imperial presidency” now give Obama the same treatment.
Don’t hold your breath.