February 6, 2013

Who Can the President Kill?


Last night, NBC’s Michael Isikoff disclosed a 16-page memo that laid out the Obama administration’s legal justification for targeted killings of U.S. citizens abroad. Roughly speaking, the memo claims that the Authorization for Use of Military Force, passed after 9/11, gives the president the power to wage war against al-Qaeda, and he thus has authority to take action against any “senior al-Qaeda leader” who poses an imminent threat to the United States. Adam Serwer has the details here.

In the past, most of the anger over this, including from me, has centered on the idea that the president can order the killing of an American citizen who hasn’t been provided with any kind of due process. But Scott Lemieux says this is misguided:

Much of the coverage of the memo, including Isikoff’s story, focuses on the justifications offered by the Obama administration for killing American citizens, including Anwar al-Awlaki and Samir Khan (two alleged Al Qaeda operatives killed by a 2011 airstrike in Yemen.) In some respects, this focus is misplaced. If military action is truly justified, then it can be exercised against American citizens (an American fighting for the Nazis on the battlefield would not have been entitled to due process.) Conversely, if military action is not justified, extrajudicial killings of non-Americans should hardly be less disturbing than the extrajudicial killing of an American citizen. The crucial question is whether the safeguards that determine when military action is justified are adequate.

The more I’ve thought about this, the more I’ve come to agree with this position: If we’re at war, and if targeted killings of enemy combatants are legal, then U.S. citizenship is irrelevant. If you’ve joined up with enemy forces, you’re fair game. Conversely, if the justification in the memo is inadequate, that means the justification for targeted killings in general is inadequate. Either the entire program is justified, or none of it is.

But….even if this makes sense, I’m not sure it feels right. Comments?

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