Not the most eye catching or inventive of post titles, but what are you going to do? NBC news published a Department of Justice memo on the killing of US citizens who are in leadership roles in Al Qa'ida (sic) and associated groups. The memo does contain some limitations on when such an act can take place; the most limiting of which is the fact that seemingly only high ranking members of Al Qa'ida actively engaged in the planning of imminent terrorist attacks against the United States of America. The memo, however, uses a rather tortured (definitely no pun intended) explanation on the definition of imminent. Essentially, because Al Qa'ida can attack at any moment, if you qualify as an operation leader engaged in the planning of attacks then it is assumed that the attacks you are planning are imminent. Further, if you have renounced your ways as an operational leader actively planning terrorist attacks against the United States which will automatically assumed to be imminent, you better do so publicly or the U.S. government will continue to consider you as a threat that can be Constitutionally eliminated without evidence to the contrary.
The memo disposed of the 4th and 5th Amendment concerns with balancing the 4th Amendment intrusion v. the reasonableness of the government action and a Matthews v. Eldridge balancing, where the required due process is determined by weighing the importance of the interest at stake and the benefits of additional safeguards through due process against the government's interest, respectively. The memo quickly argues for the government's side of the scale on the balance because of the interest in preventing an "imminent" terrorist attack that could lead to the loss of many American lives. The ole take out one to save many logic. I have no problems with such drone attacks against citizens who decide to join Al Qa'ida and are involved in the planning of attacks, but the legal reasoning seems to be a bit iffy. The definition of imminent certainly seems overly broad and although the government interest in both the 4th and 5th Amendment balances is incredibly strong, so is the concern in the intrusion brought by the loss of life and the interest in staying alive that is at stake. The Due Process argument seems particularly weak as one could easily see a situation where additional due process considerations, such as a private hearing with a military judge in a FISA Court type setting, could be beneficial in making sure everything is kosher.
Lastly, because it is only addressed in passing, determinations on the acceptable amount of collateral damage (i.e., deaths of civilians near the target) are still opaque and this is, of course, also worrisome. While few have too many issues with how the targeted drone strikes have been used so far when it comes to American citizens, the general opacity with how these decisions will be made in the future (since the DoJ deems such actions legal) is disconcerting in general. Considering the last administration's refusal to re-evaluate any of it's actions, including the disastrous war in Iraq and the culture of torture that stained this country, there is no telling how a future administration would use the green light this memo presents. The decisions of who is a proper target for a strike, what an acceptable amount of collateral damage is (Homeland anyone?) and what is considered imminent will all be concentrated amongst a limited amount of people set in an insular group with little threat of second guessing by any other authorities. Recent history suggests that such a setting can lead to disaster. I understand the DoJ's memo and hope for the best, but I will hardly be surprised by the worst if and when it occurs in the future.
IMAGE: scrapetv.com via Google Images
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