The Legality of the White Paper and Summary Execution

By Ta-Nehisi Coates

Jeffrey Rosen looks at the legality of the White Paper on extrajudicial killing and finds it "troubling on many levels." Here Rosen zeroes in on the notion that execution is warranted, if capture is infeasible:

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.
Over at Wired, David Kravets's reporting finds similarly dubious legality:
Much in the white paper rests on the 2001 Authorization for the Use of Military Force, passed by Congress in the wake of the 9/11 attacks to pursue al-Qaida. Like the Bush administration before it, the Obama administration white paper rejects any geographical restriction on where it can launch its drone strikes and commando raids. But the Bush administration actually stopped short of declaring that it had the authority to kill American citizens.

Eugene R. Fidell, president emeritus of the National Institute of Military Justice and a Yale Law School military legal scholar, disputes that the AUMF is a proper legal basis for extrajudicial killings globally of U.S. citizens.

"It is not a general declaration of war on every Islamic extremist in the world," Fidell said of the AUMF. "There are limits."

He added that the Authorization for Use of Military Force was not a "global warrant" to go after every terrorist, and that Congress must change the law to comport with the Obama administration's legal theory for it to stick.
Via Conor Friedersdorf, here is something else I missed. When 16-year-old Abdulrahman al-Awlaki was killed by this administration, Robert Gibbs responded in the following manner:
ADAMSON: ... It's an American citizen that is being targeted without due process, without trial. And, he's underage. He's a minor. 
GIBBS: I would suggest that you should have a far more responsible father if they are truly concerned about the well being of their children. I don't think becoming an al Qaeda jihadist terrorist is the best way to go about doing your business. 
I find that answer unconscionable. More from Conor here.

UPDATE: Also more on the legal question from our own Andrew Cohen.

This article available online at:

http://www.theatlantic.com/national/archive/2013/02/the-legality-of-the-white-paper-and-summary-execution/272920/