David Cole offers a chilling analysis of the Justice Department white paper on drones. The news reports have highlighted the fact that the document endorses killing US citizens who are deemed by “an informed, high-level official” to be “an imminent threat” against the US, provided the person cannot be captured and provided the operation minimizes collateral damage.

But Cole claims that “the paper offers no guidance as to what level of proof is necessary: does the official have to be satisfied beyond a reasonable doubt, by a preponderance of the evidence, or is reasonable suspicion sufficient? We are not told. Nor does the paper describe what procedural safeguards are to be employed. It only tells us what is not required: having a court determine whether the criteria are in fact met.”

He acknowledges that “the Constitution has long recognized that unilateral executive action may be necessary in ‘exigent circumstances,’” but points out that the Constitution requires “ex post judicial review.” The white paper has no provision for review: “the administration rejects out of hand any judicial check whatsoever—before or after the fact, whether there is time to get an independent assessment or not. It wants the power to kill Americans unilaterally—and in secret.”

The “most disturbing feature of the paper,” Cole suggests, is the elasticity of its use of “imminence”: “it . . . defines ‘imminence’ so broadly that it effectively eliminates the requirement altogether. There need be no showing, the paper claims, that an attack will ‘take place in the immediate future,’” which is what most of think “imminence” means. Rather, “it coins what it euphemistically calls a ‘broader concept of imminence,’” under which an al-Qaeda leader by definition poses an imminent threat, no matter what he is doing—because al-Qaeda is continually plotting attacks against the United States, will undertake them whenever it can do so, and we may not be aware of all such plots.”

The purpose of “imminence” as a criterion is “to ensure that lethal force is used only as a last resort.” If the threat is not likely to take place in the immediate future, some other response might be found. The white paper undermines this logic entirely, and Cole asks “Is it any coincidence that the Obama administration has killed hundreds of suspected terrorists with drones outside Afghanistan, but captured almost none?”

Articles by Peter J. Leithart

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