The answer is basically, 'When they're terrorists.' Who gets to decide who qualifies? The president.
Says Attorney General Eric Holder, explaining when the United States can engage in the extrajudicial assassination of an American citizen abroad:
Let me be clear: an operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances: First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.
I thought I'd rewrite the speech to better reflect reality:
An operation using lethal force in a foreign country, targeted against a U.S. citizen who intelligence agencies say is a senior operational leader of al Qaeda or associated forces, and who intelligence agencies say is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances: First, the U.S. government claims it has determined, after a review that it says is thorough and careful, that the individual poses an imminent threat of violent attack against the United States; second, intelligence agencies say that capture is not feasible; and third, the operation would be declared to be conducted in a manner consistent with the presidential interpretation of applicable law of war principles.
No sane country would ever operate under the language in the second paragraph. Yet that is effectively what we're doing if all these supposed legal standards aren't actually upheld by anyone - if the executive branch can just decide what to do for itself without any checks or balances. Its essence is, "We're only empowered to kill terrorists, but we decide who is a terrorist."
Or as Glenn Greenwald sardonically puts it:
...the President and his underlings are your accuser, your judge, your jury and your executioner all wrapped up in one, acting in total secrecy and without your even knowing that he's accused you and sentenced you to death, and you have no opportunity even to know about, let alone confront and address, his accusations; is that not enough due process for you?
Said Hina Shamsi, director of the American Civil Liberties Union's National Security Project:
Few things are as dangerous to American liberty as the proposition that the government should be able to kill citizens anywhere in the world on the basis of legal standards and evidence that are never submitted to a court, either before or after the fact. Anyone willing to trust President Obama with the power to secretly declare an American citizen an enemy of the state and order his extrajudicial killing should ask whether they would be willing to trust the next president with that dangerous power.
Finally, I give you my colleague Andrew Cohen:
Anyone who cares about this issue at all understands that what matters first is the legal rationale for the administration's drone-strike policy. We need to know what the legal arguments are for such proclamations by the executive branch that, for example, the due process clause of the Constitution does not guarantee "judicial process" when a citizen's life is on the line. What Holder delivered instead was what we already know -- the political rationale for the "targeted killing" program. The New York Times told us that years ago.
It's just not good enough to offer general platitudes about adherence to the Constitution. Everybody says that. The scoundrels who drafted the "torture memos" said that. It means nothing without specifics. And the memo was short on legal specifics. For example, only two federal statutes were cited, both having nothing to do with the drone-strike program. On that we got from Holder phrases like this: "This is an indicator of our times -- not a departure from our laws and our values." Honestly, it's both, right?
Image credit: Reuters