This past Monday, the Justice Department released a document that outlines the legal basis for the Obama administration’s notorious use of the extrajudicial drone program. Although this memo provides the most detailed reasoning for the administration’s secretive policy to date, the memo is not official documentation and contains serious loopholes.
For example, one of the loopholes concerns what the administration considers to be an imminent threat. On one hand, the memo asserts that no one can be targeted unless he is an operational leader and poses an imminent violent threat to the nation. But if you read further into the document, the definition of “imminent” is infinitely broadened to the point that it loses any real meaning: The United States is not required “to have clear evidence that a specific attack will take place in the immediate future.” So the legal threshold for carrying out a drone attack is very weak because the target does not have to be in the process of planning a specific attack on United States — he must simply be suspected of involvement in general terrorist activities, whatever that means.
Moreover, not only is the power on what constitutes an imminent threat expanded but also limits on this power cannot be enforced in any court: “the Department notes that under the circumstances described in this paper, there exists no appropriate judicial forum to evaluate these constitutional considerations.” There is no way to check the constitutional legality of this issue. How convenient. This self-authorization sets a dangerous precedent for future administrations. The number of people killed by drone strikes is about 4,000 — the official number is not released by the administration — and this includes four Americans.
Of course, there may be a context in which the government can use legal force for an imminent threat, but this should only be done under very narrow circumstances. For example, if a police officer sees someone with a gun on the street, the officer should not seek to obtain a warrant from a court. Obviously, the threat is imminent in that case.
The release of this document is also relevant in light of John Brennan’s nomination to become the head of the CIA since Brennan has been closely involved with the drone program. The vote for his confirmation will take place later this week. Hopefully the Senate Republicans and Democrats will pose constructive questions about this memo to Brennan. Given the recent confirmation hearing with Chuck Hagel, however, this hope is unfounded.
A version of this article appeared in the Feb. 6 print edition. Email the WSN Editorial Board at firstname.lastname@example.org.