April 3 6pm to 8pm Rep Ellison panel discussion on Drones.

[annm4peace]

Everyone should be ready to participate on Wednesday night in a meaningful way in the important drone policy forum that Keith Ellison has organized (details below). (It should be noted that one of the panel members, former assistant CIA Legal Counsel John Radsan, while charming and a good speaker, has been consistently pro-war and is an avowed drone proponent.)

It helps that Leah Bolger’s recent presentations on “Living Under Drones” was excellent and educated large numbers as to the FACTS of US drone bombing and the killing of civilians as “collateral damage” etc. But it occurred to a couple of us that most people here are not nearly as prepared with the truth about the specious legal arguments being made and put forth. In fact at this moment, there are lawyers in the Obama Administration and the Pentagon who are preparing to issue an official manual governing drone bombing, the purpose of which is to legalize and normalize the practice.

Notre Dame Law Professor Mary Ellen O’Connell (see articles below) is amongst those highly credible law professors who have been furnishing the strongest legal critiques, from the very beginning. She described her colleague (former Yale Law School Dean Harold Koh) as engaging in “legalistic word play” when he totally switched his prior opinions and started promoting drone warfare and war on Libya as State Department General Counsel under Hillary Clinton.

The term I use to describe the process of duping people to make them believe what was illegal is now legal is “legalizing” (always in quotes). Terms are hijacked, wordsmithed and corrupted in the legalizing process which serves to normalize otherwise highly illegal, immoral actions (torture, assassination, wars of aggression, etc) So torture became known as “enhanced interrogation;” assassination is euphemistically called “targeted killing” and Koh eviscerated the importance of launching an illegal, unconstitutional bombing war on Libya by terming the bombing as “mere hostilities”. Lawyers are good at duping people this way! Essentially US officials working with certain “Lawfare” MIC-oriented think tanks and revolving doors between academic institutions (Yale Law School Dean Harold K. Koh becoming Hillary’s State Dept’s General Counsel and then going back to his supposedly unbiased “human rights” and international law position furnishes a keen example, mirrored in his recent talk entitled: “International Law as Smart Power” (twisting the law to serve US’ national interests in getting and holding power---just as Suzanne Nossel’s constantly going through revolving doors between serving US’ national interests working for Clinton and Holbrooke, including promotion of their wars, to writing for Council of Foreign Relations to serving as Director of Amnesty Int’l-USA and other human rights organizations).

So if you have time before Ellison’s forum, it would be good to glance at the articles below (and attached) featuring O’Connell’s and Rosen’s legal analysis of drone assassination issues to understand how this is happening, to be aware of the legal sophistry and deceit involved in misleading US citizens to “normalize” and approve of the Pentagon Manual currently being written to legalize US assassination on a “global battlefield.”

You are invited to a panel discussion with
Congressman Keith Ellison
on U.S Drone Policy
Panel members include:
Robert Naiman Policy Director, Just Foreign Policy
John Radsan Founder/Director, National Security Forum at William Mitchell School of Law
Wednesday, April 3
6:00-8:00PM
Location: U of M’s Urban Research and Outreach-Engagement Center (UROC)
2001 Plymouth Avenue North Minneapolis , MN 55411
Please join us for a discussion on the proliferation of drone usage in military conflicts

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Interview With Mary Ellen O'Connell, International Law Expert, on US Drone Policy
Drone Predator
In this interview with the IPI's Global Observatory, Mary Ellen O'Connell criticizes the US 's legal justifications for its drone policies. The Obama administration, she argues, is "playing at making law" and undermining internationally accepted rules.
By Andrea Ó Súilleabháin for International Peace Institute (IPI)
[Two weeks ago], reports about US government documents on drone use—including this memo outlining the legal rationale for the practice—added new fire to an already heated debate over its lawfulness.
In a telephone interview with the Global Observatory international law expert Mary Ellen O’Connell discussed the US rules governing the use of drones and the soon-to-be-approved government manual on the practice which she called "very disturbing."
“Instead of looking to and applying with sincerity and good faith the existing rules that have been created by the international community, fundamentally in the UN Charter, the administration is finding the actual law inconvenient and is making up its own rules," she said.
"I consider it to be the Obama administration playing at making law," said Ms. O'Connell, whose recent op-ed in The New York Times called for accountability.
“I’m not just critical of the Obama administration, but of human rights lawyers and governments throughout the world who seem to be waiting to see what these rules are that the Obama administration is drafting,” she said.
“I fully understand the outrage, anger, and sorrow in Pakistan ,” she said. “I have to point out that while the focus has been on Pakistan , I think the lawlessness of the Obama administration’s policy is underscored by what has happened in Yemen , where the very first drone attack away from an armed conflict zone occurred.” The UN concluded this killing was extra-judicial.
Ms. O’Connell also discussed the civilian impact of drones, and the new US drone base in Niger , which experts believe has implications for Mali , Libya , Algeria , and Nigeria .
Ms. O’Connell has been a professional military educator for the US Department of Defense; she chaired the Use of Force Committee of the International Law Association from 2005-2010; and recently she served as a Vice President of the American Society of International Law. She is a frequent author on international law and the use of force, including her 2012 book What is War? An Investigation in the Wake of 9/11.
The interview was conducted by Andrea Ó Súilleabháin, Visiting Fellow at the International Peace Institute.
Andrea Ó Súilleabháin (AOS): Our guest today in the Global Observatory is Mary Ellen O’Connell, a Professor of Law at the University of Notre Dame and Professor of International Dispute Resolution at Notre Dame’s Kroc Institute for International Peace Studies.
An expert on the use of force, Mary Ellen O’Connell wrote a piece in 2004 branding the first CIA drone strike unlawful under international law. She has remained a leading voice for that position throughout the last decade of debate. Welcome, Mary Ellen, and thank you for speaking with me today.
Mary Ellen O’Connell (MEO’C): Thank you, Andrea. It’s very good to speak with you.
AOS: I want to start by asking you about a recent development from the White House, a soon-to-be-approved manual of rules to govern targeted killings and the use of drones. How significant is this so-called “playbook”?
MEO’C: I think it’s been appropriately dubbed by the media a “playbook.” I consider it be the Obama administration playing at making law. It’s a very disturbing development. We know enough about the drone attacks to know that the international law governing the use of force outside of US borders is sufficient; there’s no need for a new set of rules.
It’s just not part of the method of lawmaking that a secret intelligence agency of a government can make up the rules under which they are going to go forward. This is disrespectful of the rule of law in the world. News of the “playbook” indicates that this game of creating law is going to continue. The Obama administration is apparently writing a similar “playbook” for cyber attacks. For a country that has a law professor as its president, this is particularly distressing. He and his top advisors don’t seem to realize that you do not make up rules when it comes to using force—especially lethal force, and especially outside the boundaries of your own country.
AOS: I’d like to also bring up Pakistan, which is the nation most affected by US drone operations, both in the number of strikes and number of civilian deaths. What is your reaction to reports that this CIA drone manual will exempt Pakistan from its regulations for at least the first year or two of its being in operation?
MEO’C: I think this underscores the phony nature of these purported “rules.” Again, the administration is playing at making law. No one should take any of this seriously as law. The only positive thing is that there is plainly an awareness that law is critical in how any legitimate government uses military force outside its country. But it is a truly odd recognition of respect for the law. Instead of looking to and applying with sincerity and good-faith the existing rules that have been created by the international community, fundamentally in the UN Charter, the administration is finding the actual law inconvenient and is making up its own rules. Even the rules it is making up, it finds inconvenient, and grants itself exception to its rules!
I fully understand the outrage, anger, and sorrow in Pakistan . I have to point out that while the focus has been on Pakistan , I think the lawlessness of the Obama administration’s policy is underscored by what has happened in Yemen , where the very first drone attack away from an armed conflict zone occurred. You mentioned in your introduction that I wrote about that first drone attack in 2004, saying it was unlawful. Even more importantly, the UN Special Rapporteur for Extrajudicial Killing, Asma Jahangir, from Pakistan , a very well-respected human rights lawyer, did an investigation of that 2002 Yemen attack, and said it was extra-judicial killing.
I’m not just critical of the Obama administration, but of human rights lawyers and governments throughout the world who seem to be waiting to see what these rules are that the Obama administration is drafting. Many are saying that we need more information before we can assess drone strikes far away from armed conflict zones and determine whether or not they are lawful. This is simply incorrect. We’ve had a very good report on the basics of the law involved, and that was reported to the UN in January 2003.
We don’t need any more analysis of the rules. We don’t need to wait for the Obama administration to make public their playbook. Under the UN Charter the use of major military force, such as the kind of force that drones deploy (missiles and bombs weighing up to 500 pounds), is lawful only in three situations: First, where a country has been the victim of an armed attack—as provided for under Article 51 of the UN Charter; second, when authorized by the Security Council; and, third, where a state is assisting at the request of a government in an armed conflict zone, such as the civil war that’s being fought in Afghanistan.
The US and other countries, in particular NATO allies, are involved in an armed conflict, a civil war, at the invitation of the elected authorities of Afghanistan , in particular Mr. Karzai. There’s no other situation in the world where the US is involved that meets those criteria—Article 51 self-defense, Security Council authorization, or express invitation from the legitimate authorities of a country to be involved in suppressing a civil war.
AOS: I’d like to ask you what this means for international law—that we can have such a prolonged and ongoing, systematic set of violations. As these strikes continue, is there a broader danger that this practice will erode the force of international law, or have a more permanent impact?
MEO’C: I am very glad that you are interested in that question, and I’m sure your readers and listeners will be. I’m extremely unhappy that it appears President Obama and his top advisors are not concerned about the impact on international law of a country as important as the United States , purporting to write its own rules or to act in clear contravention of the existing and well-known rules.
International law is not like the law of nation-states. We don’t have regular governmental institutions; there is no world government. International law is made primarily though treaties, and through the development of customary international law. Treaties are subject to interpretation that can evolve and change over time. Customary international law follows the state practice of states when they are carrying out certain actions in the clear belief that it’s obligated by law.
These are unusual forms of lawmaking for the average person, but very important. They have governed the international community since 1648; they are much older than the law of most nation-states in the world. We have worked hard to get the rules of the UN Charter and other rules to at least mitigate the resort to and the conduct of armed conflict. These rules should be held as very precious, especially to the United States : the core UN Charter rule against the use of force, except in self-defense, or with Security Council authorization, or with the consent of a government as I explained regarding Afghanistan . These rules were primarily drafted and supported by the United States , because the United States knew after World War II how important it was to move away from military force, as technology increased and the harm caused to people everywhere increased.
Instead of supporting that trend, supporting the rules as they exist, and understanding the nature of customary law--that it needs to be reinforced and not detracted--the Obama administration has not looked for effective alternatives to the problem of terrorism. It has, in fact, exacerbated the problem by undermining the very rules against violence and the use of force, that should prevail in the world today and that should be used as a standard against which we prosecute those who would carry out terrorist bombings or invasions of other countries. The United States is making the world less safe because it is undermining the very law that should create order and peace on Earth.
AOS: I think that history is so important for us to remember. Also for me it brings up, again, the civilian impact, because so much of that work and legal development was focused on protecting civilians during conflict. I’ve noticed there’s a big divide in the debate over drones on this question. Human rights groups and international law scholars object to the numbers of civilian deaths, but others insist that drone technology and the so-called “targeted, surgical” operations can be seen as major step to changing conflict and making it less harmful to civilians. I wonder if you could share your analysis of the civilian impact of drones—both inside and outside the zone of war?
MEO’C: Andrea, so many people in this debate jump right to this question of civilians, and the civilian impact. President Obama has stressed that these drone strikes are precise, and he seems to suggest that because they’re precise that makes them lawful. He has eased his listeners into thinking only about the comparisons between, for example, high aerial bombardment of the kind we saw in the Kosovo conflict versus a drone strike against a house in Western Pakistan , but this is a wrong orientation from which to view this question.
Outside of an armed conflict zone, everyone is a civilian. Persons in uniform are still governed by the regular criminal law and peacetime rules apply. We don’t allow our police outside of an armed conflict to have rocket propelled grenade launchers. They don’t have drones that can drop bombs on homes. They are not allowed to shoot missiles at wanted terror suspects. And so it’s really a false premise to start with whether or not the weapon is precise; you have to ask where it’s being used. Outside of an armed conflict zone, all of these weapons are extremely imprecise and unlawful compared to what the law requires, and that’s peacetime policing rules.
The use of lethal force by government authorities is permissible only in situations of clear necessity, where for example a human life is at stake, but we don’t have a rule that civilians who are in the area may be killed in a police operation as collateral damage. We don’t have a collateral damage rule in peacetime civilian policing. You may not kill bystanders. One example is the escaping fugitive case. In the United States, if an escaping fugitive who is known to be highly dangerous does not stop when called upon by the police, he may be killed in the resistance of arrest—but not if bystanders are going to be killed. This is why it’s so important that your audience understand that international law makes it clear what a zone of armed conflict is, where armed conflict is going on, and where the rules with respect to the use of armed force (the Geneva Conventions and their additional protocols and customary rules) apply.
Today, the United States is involved in only one such conflict and that’s Afghanistan . And yes, in Afghanistan , it is going to be preferable for the lives of civilians, people who are not involved in the fighting, if the US uses unmanned drones rather than high aerial jet bombers. We know 20,000 people died in the Kosovo conflict. NATO has agreed, for purposes of argument, that at least 500 civilians who were not part of the fighting, who should not have died even in collateral attacks, is the likely number of deaths in the Kosovo conflict. I’m hoping that the use of drones in Afghanistan has led to far fewer civilian deaths. And so for those situations where the US has resorted to military force lawfully, the drone is a preferable weapon to the alternative.
On the other hand, we will soon be leaving Afghanistan , and for anyone to die in these coming months makes little sense to me. Civilians may never be intentionally targeted under the rule of distinction in the fighting of armed conflicts, but we also have the rule of military necessity. In a military operation involving killing and the possible killing of civilians as collateral damage, you must weigh the cost of those lives against the military objective. That calculation is becoming more and more questionable as the US and its allies withdraw from Afghanistan .
I am increasingly critical of any use of military force by the United States today, whether by drones or by other means, in Afghanistan or outside Afghanistan . It’s time to conclude that the reasons for resort to military force in today’s highly complex, socially-intricate disputes are very, very limited. And I’m sorry, for example, to see that the French resorted to force in Mali . We’ll see how that turns out over time, but it was a direct result of having used military force in Libya , and not followed up with the aftermath of that conflict.
We know so many counterterrorism experts have said that the use of drones and military force outside armed conflict zones is exacerbating terrorism, not having a long-term positive impact on suppression. Under any set of rules you want to bring to bear on the use of drones, with the exception of the CIA’s own self-written, self-important playbook, all the rules should really have led the United States, its President, and its top officials to reject the use of drones.
AOS: Finally, I want to follow-up since you’ve mentioned Mali and Libya , and those are two countries in a region where a recent announcement of a new drone base in Niger makes many predict that the program is likely to expand to Mali , Libya , Algeria , and Nigeria . I also want to ask you about the use of unmanned drones as surveillance, because the agreement with Niger is limited at this point to using US drones for intelligence in the region. What is your opinion on that, and what do you think the wider implications could be?
MEO’C: You’re absolutely right. I think it would be a terrible mistake to start expanding the use of military force to yet more non-armed conflict situations.
Nigeria has not yet descended to armed conflict. There’s a very serious problem of intercommunal violence. But if you study the history of peace, you know that using military force as opposed to creating a peaceful political resolution in which all parties are represented and work out how they’re going to live together with their differing perspectives is the only way to get long-term peace. It’s heartbreaking that the Obama administration would consider these “willy nilly attacks,” to use President Obama’s term, against suspected persons in Nigeria, or Mali, or anywhere else that the US is purporting to attack and use military force against terror suspects. It’s the wrong policy from so many perspectives.
I do not know what Niger agreed to in exchange for the US to place on a new drone base on its territory. While the agreement may currently say "surveillance only," the officials in Niger should look at how the US has kept any promises made to Pakistan in terms of limiting its military presence in Pakistan .
The other issue is an article some of your audience may be interested in called “Seductive Drones,” published in the Journal of Law, Information and Science [by Mary Ellen O’Connell]. It talks about how technology of drones draws political leaders, especially US political leaders, into using military force where they are perhaps bound by an agreement with a country that hosts a base or other international law to not using lethal force. Something about being able to say publicly, we have done all this damage to terrorism suspects, and this constant announcement of the kill list and how many people have been killed may show great dramatic results where no US personnel are endangered in any way. Sadly, this seems to have lured two of our presidents into using military forces in places where it’s quite unlawful to do so. If I were an official in any country where the US has asked to base drones, I would look at the nature of this technology, and the impact it seems to have on American political leaders.
AOS: Mary Ellen O’Connell, thank you for speaking with the Global Observatory today. We’ll continue to follow this issue.
MEO’C: Thank you, Andrea.
Andrea Ó Súilleabháin is a Visiting Fellow at the International Peace Institute.
Editor's note: This interview was originally published by the Global Observatory.
International Peace Institute (IPI)
Why Obama's 'targeted killing' is worse than Bush's torture
Both are legally prohibited but speciously justified by the White House. The difference? Obama's policy kills innocent bystanders Mary Ellen O'Connell guardian.co.uk, Friday 20 January 2012 11.11 EST

An unmanned Predator drone of the type operating along the Afhanistan-Pakistan border. Photograph: Rex Features/Sipa Press
By June 2004, it was confirmed that the US was using torture at secret detention sites and at Guantánamo Bay, Cuba . It was in that month that piles of "torture memos" were released to the public. Torture did not officially end until President Obama took office in January 2009.
A similar story is emerging with respect to targeted killing. The Obama administration has produced its own infamous memo; like many of the torture memos, it was written by lawyers in the Department of Justice's Office of Legal Counsel. It concerns something that many consider worse than torture: the memo apparently seeks to justify "targeted killing".
Calls have gone out for the release of the memo, but there really is no need. We did need to see the torture memos, but not because anyone with legal expertise on the subject would be enlightened by the analysis – torture is absolutely prohibited. The legal analysis could only be specious. Rather, prior to mid 2004, the use of torture, rendition and secret detention were only rumored. The fact of the memos gave credence to speculation.
In the case of targeted killing, the world can see what is happening. The memo need not be published to confirm the fact. And, as with torture, the memo will not contain a persuasive legal argument respecting the fundamental human rights and humanitarian law at issue.
"Targeted killing" is the killing of certain individuals away from battle zones using military means, including missiles, bombs and commando raids. The missiles and bombs are often delivered by drone aircraft. Given the munitions, it is the rare attack that spares the lives of bystanders – over 2,200 persons are estimated to have been killed in the three years of the Obama administration in Pakistan alone. We have no estimates for deaths in Yemen or Somalia , the other scenes of relentless attacks.
"Targeted killing" has become the euphemism du jour. Remember "harsh interrogation"? The conduct discussed in the killing memo was once simply referred to as assassination.
More and more people are pushing back against the policy. They are reacting, no doubt, to the fact that President Obama has authorized many times the killings that President Bush did. Obama apparently authorized the killing of an American in Yemen, and he is now engaged in the building of drone bases to continue the campaign of assassination. Greg Miller of the Washington Post notes that "no president has ever relied so extensively on the secret killing of individuals to advance the nation's security goals."
In 2001, the US ambassador to Israel , Martin Indyk, stated on Israeli television in connection with Israeli targeted killing of suspected terrorists:
"The United States government is very clearly on the record as against targeted assassinations. They are extrajudicial killings, and we do not support that."
The US did not support such killing for fundamental reasons of law and morality. Fundamental principles of law protect the human right to life and due process of law. Unlike torture, which is never permitted, states are permitted to allow designated authorities to carry out the use of lethal force in certain limited situations. In situations of armed conflict hostilities, lawful combatants will not be prosecuted for killing that complies with international humanitarian law. Today, under the international legal definition of armed conflict, the United States is involved in such hostilities in one country only: Afghanistan.
Beyond Afghanistan , any use of lethal force by designated authorities of the United States must follow the normal human rights limits on peacetime resort to lethal force. Authorities may engage in lethal force when necessary to save a human life immediately, if there is no alternative. In other cases, an attempt to arrest is required, followed by a fair trial within a reasonable period.
These restrictive international legal rules on killing are derived from moral principle, just as the rules against torture are. Torture and targeted killing have more in common, however. Neither is an effective means toward the ends sought by those who employ them: torture is an unreliable means of information gathering; targeted killing is ineffective on dealing with the challenge of non-state actor terrorist or militant groups.
But even if there was any data at all about assassination having a long-term positive impact on suppressing terrorism – which there is not – the data would not change the law and morality against it. Indeed, the president criticized the assassination of a nuclear scientist in Tehran. Drone attacks outside of armed conflict zones are committing the same wrong – though usually more bystanders are killed than was the case in Iran .
President Barack Obama's 3 January 2011 letter introducing his national security strategy for the coming decade states that America's overriding goals are "security", "prosperity" and a "just and sustainable international order where the rights and responsibilities of nations and peoples are upheld, especially the fundamental rights of every human being." Impressive, even inspiring – but for the fact that the president's campaign of assassination is denying many hundreds of individuals their right to life. The security strategy looks set to dramatically ramp up the number and deployment of attack drones from new permanent bases around the world.
Neither torture nor targeted killing will accomplish the goal of a "just and sustainable international order where the rights and responsibilities of nations and peoples are upheld". Human rights advocates, legal scholars, religious leaders, occupiers and voters are again pushing back against a practice carried out in our names that must end.
NATIONAL SECURITY FEBRUARY 6, 2013
Drone Strike Out The Obama administration's drone strike memo is unconstitutional BY JEFFREY ROSEN
The Justice Department white paper released on Monday by NBC News is the public's first direct glimpse at the legal reasoning that the Obama administration relied on in using a drone strike to kill Anwar al-Awlaki, a U.S. citizen living in Yemen . The memo's arguments are troubling on many levels. Although the Obama administration's brief is directed at the assassination of Americans abroad, the arguments it offers could apply with equal force to the assassination of Americans at home; lawyers for the Bush administration who tried to justify lesser outrages have been pilloried for supporting torture. But perhaps most troubling is the administration’s attempt to redefine the idea of the kind of “imminent threat” that can justify a targeted assassination.
The U.S. Supreme Court has previously held that the police can only use deadly force against fleeing, dangerous suspects when killing the suspect is “necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” But, in a vast expansion of this narrow precedent, the Obama administration says that the U.S. is not required “to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future” in order to assassinate U.S. citizens whom the government believes are Al-Qaeda leaders. Instead, the memo argues a “decision maker determining whether an al-Qaeda operational leader presents an imminent threat of violent attack against the United States must take into account that certain members of al-Qaeda …. are continually plotting attacks against the United States; that Al-Qaeda would engage in such attacks regularly to the extent it were able to do so; that the U.S. government may not be aware of all al-Qaeda plots as they are developing and thus cannot be confident that none is about to occur.”
In light of the government’s possible ignorance of plots that may or may not exist, the memo concludes, when an al-Qaeda leader “has recently been involved in activities posing an imminent threat of violent attack against the United States, and there is no evidence suggesting that he has renounced or abandoned such activities, that member’s involvement in al-Qaida’s continuing terrorist campaign against the United States would support the conclusion that the member poses an imminent threat.”
This is an extraordinary conclusion. In Fourth Amendment cases, the Supreme Court has stressed that “the use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.” In reaching this conclusion, the Court rejected the eighteenth century rule allowing the use of whatever force is necessary to arrest a fleeing felon because “changes in the legal and technological context”—namely, the expansion of felonies to include non-violent offenses and new weapons technology (in particular, automatic guns) that make it possible for the police to kill suspects whom they previously would have had to physically subdue.
The Obama administration takes this narrow precedent and twists it beyond recognition. While the Supreme Court cited the existence of new weapons technology as a reason for narrowing the conditions under which the police can use deadly force, the Obama administration uses drone technology as an excuse for broadening those conditions. “What would constitute a reasonable use of lethal force for purposes of domestic law enforcement differs substantially from what would be reasonable in [this] situation,” the administration concludes. (In fact, the possibility of tracking suspected terrorists with drones, rather than killing them, suggests that targeted assassinations are even more constitutionally vulnerable today than they would have been at the time of the American framing.)
When officials conclude that “capture is infeasible,” the memo continues, “the intrusion of any Fourth Amendment interests would be outweighed by …. the interest in protecting the lives of Americans.” But of course, the question of whether American lives are, in fact, imminently threatened by a particular suspect is precisely the determination that the administration claims the right to make on its own—without an opportunity for an independent judge to examine the factual basis for the claim. “There exists no appropriate judicial forum to evaluate these constitutional considerations,” the Justice Department insists.
This “trust us” argument is precisely the one the Supreme Court rejected in the 2004 Hamdi, where the Court upheld the Bush administration’s power to detain enemy combatants, on the grounds that it had been authorized by Congress, but only after insisting that suspects could challenge the factual basis for their detention before a neutral decision maker. The Obama administration repeatedly invokes the Hamdi case to justify targeted assassinations, which have been specifically prohibited by Congress, and then omits the Supreme Court’s requirement that independent judges need to have the last word on whether or not suspects are, in fact, as dangerous as the administration claims.
The principle that core constitutional rights can’t be abridged unless there’s an imminent threat of violence isn’t only central to the Supreme Court’s understanding of the Fourth Amendment. It’s also the keystone of the Court’s understanding of the First Amendment protections for free speech. In his concurring opinion in Whitney v. California, the greatest opinion on free speech in American history, Justice Louis Brandeis objected to a law that made it a crime for a member of the Communist Labor Party of California to teach syndicalism, an anarchic alternative to capitalism.
Brandeis objected that “the accused is to be punished not for contempt, incitement, or conspiracy, but for a step in preparation, which, if it threatens the public order at all, does so only remotely.” Brandeis insisted that speech could only be banned if it “would produce, or is intended to produce, a clear and imminent danger of some substantive evil which the State constitutionally may seek to prevent.” He added that there must be “reasonable grounds to believe” that the danger is imminent and serious. And, in a reminder of his faith in public deliberation, he said the danger had to be “so imminent” that it was likely to occur “before there is opportunity for full discussion …. Only an emergency can justify repression.” Finally, like the Supreme Court in Hamdi, Brandeis insisted on the importance of neutral, judicial review. “It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.” Brandeis’s reasoning was adopted by the Supreme Court in a 1969 decision holding that speech can never be suppressed unless there is a serious threat of imminent violence; the Obama administration, ignoring this precedent, wants to justify not only suppressing speech but also assassinating citizens without specific and credible evidence of imminent violence.
There are other reasons to object to the administration’s justification of targeted assassinations—including its questionable claim that they are legally supported by Congress’s authorization of the use of force after 9/11. On pragmatic grounds, the administration's brief is a disaster: As the Church Commission found after studying the attempted assassinations of Castro, targeted killings are likely to produce an international backlash that threatens far more American lives than they protect. But, as a legal matter, the casual, and unpersuasive, attempt to read out of American constitutional law the principle that government can only kill citizens in order to prevent imminent death or violence in return is the most objectionable of all.