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Thursday, February 7, 2013

The President, Targeting Killing, and the Constitution

Previous posts have discussed the federal government's efforts to kill specific terrorists, including American citizensCNN reports:
The Senate Intelligence Committee will receive a classified document Thursday that seeks to justify the administration's policy of targeting Americans overseas via drone attacks, chairwoman Dianne Feinstein said.
"I am pleased that the president has agreed to provide the Intelligence Committee with access to the OLC (Office of Legal Counsel) opinion regarding the use of lethal force in counterterrorism operations," the California Democrat said in a statement Wednesday.
"It is critical for the committee's oversight function to fully understand the legal basis for all intelligence and counterterrorism operations."
The announcement came shortly after an administration official said President Barack Obama had yielded to demands that he turn over to Congress the classified Justice Department legal advice that seeks to justify the policy.
"Today, as part of the president's ongoing commitment to consult with Congress on national security matters, the president directed the Department of Justice to provide the Congressional intelligence committees access to classified Office of Legal Counsel advice related to the subject of the Department of Justice white paper," an administration official said Wednesday.
The 16-page white paper -- titled "Lawfulness of a Lethal Operation Directed Against a U.S. Citizen who is a Senior Operational Leader of Al Qaida or an Associated Force" -- is a policy paper rather than an official legal document. That policy paper was sent to key congressional committees last year but became public just this week.
From the text of the white paper:
The President has authority to respond to the imminent threat posed by al-Qa'ida and its associated forces, arising from his constitutional responsibility to protect the country, the inherent right of the United States to national self defense under international law, Congress's authorization of the use of all necessary and appropriate military force against this enemy, and the existence of an armed conflict with al-Qa'ida under international law. Based on these authorities, the President may use force against al-Qa'ida and its associated forces. As detailed in this white paper, in defined circumstances, a targeted killing of a U.S. citizen who has joined al-Qa'ida or its associated forces would be lawful under U.S. and international law. 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. Nor would it violate otherwise applicable federal laws barring unlawful killings in Title 18 or the assassination ban in Executive Order No 12333. Moreover, a lethal operation in a foreign nation would be consistent with international legal principles of sovereignty and neutrality if it were conducted, for example, with the consent of the host nation's government or after a determination that the host nation is unable or unwilling to suppress the threat posed by the individual targeted.
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 lethal 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.