The paper concludes that targeting an American citizen would be lawful, based on three specific conditions, summarized in the NBC article:
As in Holder’s speech, the confidential memo lays out a three-part test that would make targeted killings of American lawful: In addition to the suspect being an imminent threat, capture of the target must be “infeasible, and the strike must be conducted according to “law of war principles.” But the memo elaborates on some of these factors in ways that go beyond what the attorney general said publicly. For example, it states that U.S. officials may consider whether an attempted capture of a suspect would pose an “undue risk” to U.S. personnel involved in such an operation. If so, U.S. officials could determine that the capture operation of the targeted American would not be feasible, making it lawful for the U.S. government to order a killing instead, the memo concludes.To reiterate, the proposed target--if an American citizen--must be seen as an imminent threat (a very subjective standard), capturing the target must be infeasible or otherwise overly difficult (also subjective), and the strike must adhere to basic principles of warfare (which again can involve a great deal of subjectivity), at least according to this white paper.
Thus, a little less than a year and a half after being named on the CIA target list, al-Aulaqi was located via intelligence measures in northern Yemen and--with the permission of the Yemeni government--two Predator drones fired missiles that killed al-Aulaqi, along with Khan (who was not on the target list, but certainly knew of his companion's situation). There was outrage--again, from various political "sides"--over this; the action was cast as an assassination of a U.S. citizen ordered by the President that lacked any legal justification, whatsoever.
The ACLU was up in arms over the action--particularly with regard to Khan, who was characterized by most as a journalist, not a terrorist, albeit one who specialized in an al Qaeda publication--as were Glenn Greenwald of left-leaning Salon and Andrew Napolitano of right-leaning FoxNews, along with many others. And now, with the release of the white paper, they're all starting up again. Here is an article at Reason that lays out the "disturbing aspects" of the arguments in the brief, which all basically amount to the issue of subjectivity I noted above. Indeed, almost all of the arguments against these strikes can boiled down to the issues of subjectivity in making the decision to order them, to justify them.
Here is Judge Andrew Napolitano on the use of these drone strikes:
Part of what he says:
A fair interpretation of this 16-page document and of Jay Carney’s interpretation of it is that the president or, quote, ‘a high-ranking U.S. government official,’ can kill anyone he wants no matter what the laws say, no matter what the Constitution says, no matter what this president himself has said.
That is nowhere justifiable under the Constitution, nowhere justifiable under federal law. In fact, federal law and the Constitution are to the opposite. Unless you’re actually pulling a trigger or within moments of pulling that trigger or dropping a bomb, the government has an obligation to do its best to arrest you charge you with a crime and prosecute you before they can indiscriminately killed you.He continues on, claiming such strikes also violate the Supremacy Clause and the spirit of the Declaration of Independence.
Meanwhile, former U.N. Ambassador John Bolton weighed in on the issue, as well:
Former U.N. ambassador John Bolton says President Obama's drone program "appears to be consistent with the policies of the Bush administration."
"If you assess the threat of international terrorism to be the equivalent of war, then you're in the 'law of war' paradigm. This is not like robbing the local 7-Eleven, where you resort to the law enforcement paradigm," said Bolton, who added that Article II of the Constitution gives this power to the president in a time of war.Now if I were a card-carrying Democrat or leftist, I'd be pretty worried that the Obama Administration's decisions are legal and acceptable because they're consistent with the Bush Administration's opinions. After all, Obama pushed the Presidential power envelope further than Bush, when it came to recess appointments, so it's becoming steadily more difficult--if not impossible--to argue that Bush was some kind of autocrat, as compared to Obama.
Regardless, who has the right of it here: Napolitano, Greenwald, and company or Bolton and Obama?
Well in my opinion, this is all much ado about nothing. Warfare is not what it was in 1776, nor what it was in 1940, nor in 1970. Drones represent an effective tool for combat operations. Is there collateral damage? Sure, but there's collateral damage from any missile strike, from any bombardment. Should U.S. citizens--like the two above--be afforded special protections from being killed in a military operation, even though they are actively engaged in treason? No, of course they shouldn't.
Imagine it is the time of World War II. Imagine a Japanese-American--a U.S. citizen with Japanese origins--who decides to leave the U.S., travel to Japan, and assist that nation in its war with the U.S. Does this theoretical citizen enjoy special protection not afforded to the rest of the Japanese military? Assume, for instance, that he is not actually fighting, assume he is a pilot and is flying reconnaissance missions in the Pacific theatre. Can he be shot down--and thus killed--by U.S. forces, or not?
We all know the answer. Greenwald and Napolitano know the answer. Of course he can be shot down; he is a threat to U.S. interests, even if he is not actively trying to kill Americans. Trying to capture him would be silly and needlessly put many Americans in harms way. And shooting him down certainly adheres to the Law of War. All of this is true of al-Aulaqi and Khan; these are the tests in the brief and they are all easily met in these very different situations. Because there are two relevant commonalities here: our military leadership judges them to be legitimate threats and they have openly sided with avowed enemies of the United States.
And that's enough. I may not like many of the current President's policies or objectives. I may think he is largely clueless on economic matters, but like pretty much every past President, I accept that he very much does want to protect the nation, to minimize military casualties, and to achieve positive results against our avowed enemies.
The hand-wringing over these drone strikes is pointless, in my opinion.