Imagine that the president of the United States could legally order the preemptive killing of any American citizen he deemed a potential threat to the country. A Justice Department white paper that was recently obtained by NBC News comes close to making that claim, if not in quite those words.
The white paper—which reportedly summarizes a secret memo containing the department’s official position—lays out rules governing when the United States can kill American members of al-Qa’ida away from the battlefield. The paper’s key claim is that an American citizen who is a “senior operational leader of al-Qa’ida” can be killed if “an informed, high-level official has determined that the targeted individual poses an imminent threat of violent attack against the United States.” On its face, this language is fairly uncontroversial. Most legal scholars agree that the president can use force to thwart foreign threats that are so pressing that neither Congress nor the courts have time to consider a course of action.
If the language is uncontroversial, the way the white paper uses that language is not. In international law, the “imminent threat” criterion derives from Secretary of State Daniel Webster’s argument in the 19th century Caroline Case that countries can act preemptively in their own defense where a threat is “instant, overwhelming, leaving no choice of means, and no moment for deliberation.” But the white paper argues that the threat posed by al-Qa’ida requires what it calls “a broader concept of imminence.” Because the government can’t be certain that there won’t be an attack, a senior operational leader of al-Qa’ida can pose an “imminent threat” even if the United States has no “clear evidence that a specific attack on U.S persons and interests will take place in the immediate future.” In other words, the United States doesn’t have to know there is any actual imminent threat to the country.
CIA drones targeted and killed at least one American outside a war zone since President Obama first took office: al-Qa’ida propagandist Anwar al-Awlaki, who was born in New Mexico. Al-Awlaki was on a secret list of “High Value Targets”—along with several other Americans—for more than a year before he was killed. Experts outside the administration differ on al-Awlaki’s importance as an operational leader of al-Qa’ida. There is some evidence he was involved in “Underwear Bomber” Umar Farouk Abdulmutallab’s attempt to blow up a plane bound for Detroit in 2009. But what isn’t in dispute is that al-Awlaki was an American citizen and had not been convicted of any crime.
Few Americans will have much sympathy for Anwar al-Awlaki. A recent CBS poll found that 49% of Americans support using drones against American citizens suspected of terrorism. But Americans should be concerned about the precedent al-Awlaki’s killing sets. Although the Justice Department white paper considers only whether the president can order the killing of al-Qa’ida leaders, there’s no clear legal reason why the same expansive logic that justified the killing of al-Awlaki—that he might at some point attack the United States—could not be applied to anyone the president deems a threat. And if the president has the power to order the death of one American without any judicial due process, he has the power to do the same to any of us.