When Can the President Target Americans?

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.

Check out my new blog Anthropocene or follow me on Twitter: @rdeneufville

Predator drone image courtesy of the U.S. Air Force

Big Think
Sponsored by Lumina Foundation

Upvote/downvote each of the videos below!

As you vote, keep in mind that we are looking for a winner with the most engaging social venture pitch - an idea you would want to invest in.

Keep reading Show less

Essential financial life skills for 21st-century Americans

Having these financial life skills can help you navigate challenging economic environments.

Photo by Jp Valery on Unsplash
Personal Growth
  • Americans are swimming in increasingly higher amounts of debt, even the upper middle class.
  • For many, this burden can be alleviated by becoming familiar with some straightforward financial concepts.
  • Here's some essential financial life skills needed to ensure your economic wellbeing.
Keep reading Show less

How to flirt: 7 tips backed by science

When it comes to flirting, love meters have nothing on these researchers' findings.

(Photo from Wikimedia)
Sex & Relationships
  • Flirting is an important part of life. It can be a fun, adventurous way to meet others and develop intimate relationships.
  • Many people find flirting to be an anxiety-ridden experience, but science can help us discover principles to be more relaxed while flirting.
  • Smiling and eye contact are proven winners, while pick-up lines are a flirty fallacy.
Keep reading Show less

New fossils suggest human ancestors evolved in Europe, not Africa

Experts argue the jaws of an ancient European ape reveal a key human ancestor.

Surprising Science
  • The jaw bones of an 8-million-year-old ape were discovered at Nikiti, Greece, in the '90s.
  • Researchers speculate it could be a previously unknown species and one of humanity's earliest evolutionary ancestors.
  • These fossils may change how we view the evolution of our species.

Homo sapiens have been on earth for 200,000 years — give or take a few ten-thousand-year stretches. Much of that time is shrouded in the fog of prehistory. What we do know has been pieced together by deciphering the fossil record through the principles of evolutionary theory. Yet new discoveries contain the potential to refashion that knowledge and lead scientists to new, previously unconsidered conclusions.

A set of 8-million-year-old teeth may have done just that. Researchers recently inspected the upper and lower jaw of an ancient European ape. Their conclusions suggest that humanity's forebearers may have arisen in Europe before migrating to Africa, potentially upending a scientific consensus that has stood since Darwin's day.

Rethinking humanity's origin story

The frontispiece of Thomas Huxley's Evidence as to Man's Place in Nature (1863) sketched by natural history artist Benjamin Waterhouse Hawkins. (Photo: Wikimedia Commons)

As reported in New Scientist, the 8- to 9-million-year-old hominin jaw bones were found at Nikiti, northern Greece, in the '90s. Scientists originally pegged the chompers as belonging to a member of Ouranopithecus, an genus of extinct Eurasian ape.

David Begun, an anthropologist at the University of Toronto, and his team recently reexamined the jaw bones. They argue that the original identification was incorrect. Based on the fossil's hominin-like canines and premolar roots, they identify that the ape belongs to a previously unknown proto-hominin.

The researchers hypothesize that these proto-hominins were the evolutionary ancestors of another European great ape Graecopithecus, which the same team tentatively identified as an early hominin in 2017. Graecopithecus lived in south-east Europe 7.2 million years ago. If the premise is correct, these hominins would have migrated to Africa 7 million years ago, after undergoing much of their evolutionary development in Europe.

Begun points out that south-east Europe was once occupied by the ancestors of animals like the giraffe and rhino, too. "It's widely agreed that this was the found fauna of most of what we see in Africa today," he told New Scientists. "If the antelopes and giraffes could get into Africa 7 million years ago, why not the apes?"

He recently outlined this idea at a conference of the American Association of Physical Anthropologists.

It's worth noting that Begun has made similar hypotheses before. Writing for the Journal of Human Evolution in 2002, Begun and Elmar Heizmann of the Natural history Museum of Stuttgart discussed a great ape fossil found in Germany that they argued could be the ancestor (broadly speaking) of all living great apes and humans.

"Found in Germany 20 years ago, this specimen is about 16.5 million years old, some 1.5 million years older than similar species from East Africa," Begun said in a statement then. "It suggests that the great ape and human lineage first appeared in Eurasia and not Africa."

Migrating out of Africa

In the Descent of Man, Charles Darwin proposed that hominins descended out of Africa. Considering the relatively few fossils available at the time, it is a testament to Darwin's astuteness that his hypothesis remains the leading theory.

Since Darwin's time, we have unearthed many more fossils and discovered new evidence in genetics. As such, our African-origin story has undergone many updates and revisions since 1871. Today, it has splintered into two theories: the "out of Africa" theory and the "multi-regional" theory.

The out of Africa theory suggests that the cradle of all humanity was Africa. Homo sapiens evolved exclusively and recently on that continent. At some point in prehistory, our ancestors migrated from Africa to Eurasia and replaced other subspecies of the genus Homo, such as Neanderthals. This is the dominant theory among scientists, and current evidence seems to support it best — though, say that in some circles and be prepared for a late-night debate that goes well past last call.

The multi-regional theory suggests that humans evolved in parallel across various regions. According to this model, the hominins Homo erectus left Africa to settle across Eurasia and (maybe) Australia. These disparate populations eventually evolved into modern humans thanks to a helping dollop of gene flow.

Of course, there are the broad strokes of very nuanced models, and we're leaving a lot of discussion out. There is, for example, a debate as to whether African Homo erectus fossils should be considered alongside Asian ones or should be labeled as a different subspecies, Homo ergaster.

Proponents of the out-of-Africa model aren't sure whether non-African humans descended from a single migration out of Africa or at least two major waves of migration followed by a lot of interbreeding.

Did we head east or south of Eden?

Not all anthropologists agree with Begun and his team's conclusions. As noted by New Scientist, it is possible that the Nikiti ape is not related to hominins at all. It may have evolved similar features independently, developing teeth to eat similar foods or chew in a similar manner as early hominins.

Ultimately, Nikiti ape alone doesn't offer enough evidence to upend the out of Africa model, which is supported by a more robust fossil record and DNA evidence. But additional evidence may be uncovered to lend further credence to Begun's hypothesis or lead us to yet unconsidered ideas about humanity's evolution.