Department of Justice 'White Paper' Full of Contradictions

About Alexa Koenig:

Alexa Koenig is the executive director of the Human Rights Center at the University of California, Berkeley, School of Law..

Protecting the U.S. from terrorist attacks is critical but so too is the rule of law

President Obama has repeatedly confirmed that taking the lives of Americans—even those affiliated with terrorist organizations—is subject to constitutional due process protections. The recent white paper justifying drone strikes against U.S. citizens is therefore a troubling contradiction.

First, the paper provides few objective limits on the government's ability to use drones against purported al Qaeda members—even U.S. citizens—other than requiring an "imminent" threat. Yet the government need not provide "clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future." Without proof of truly imminent danger, this nominal check on unfettered executive authority becomes baseless.

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Second, the paper stresses that an individual involved in recent threatening activities remains an imminent threat if "there is no evidence suggesting he has renounced or abandoned such activities." Suddenly, a lack of evidence becomes evidence in a disturbing example of guilty until proven innocent.

Third, the paper problematically uses two Supreme Court cases—Hamdi and Hamden—to help argue that a U.S. citizen abroad can be killed if deemed an al Qaeda leader or "associated force." However, only Hamdi concerned the rights of a U.S. citizen, and it did not address the right to take a citizen's life. Instead, the court found citizen-detainees have the right to bring habeas claims to challenge their detainment before a neutral authority. And in Hamdan, the Supreme Court held that military commissions (as then constituted) were insufficient alternatives to federal trials because they violated the Geneva Conventions' Common Article 3 and the Uniform Code of Military Justice. Both cases affirm the importance of meaningful due process and external oversight.

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Our detainee-related experiences also offer precedent of a very different sort. When so many Guantanamo detainees—once declared the very "worst" terrorists by our executive branch—have subsequently been found to not be a risk, why should we be willing to trust that branch to make unchecked culpability determinations, especially when the stakes are higher?

Protecting the United States from terrorist attacks is critical but so too is the rule of law, which safeguards our democratic rights and freedoms. Even President Obama has noted the potential for a slippery slope when using lethal force against U.S. citizens. When the means for checking decision-making powers are ill-defined, when there is little to no external oversight, and when full and transparent debate has yet to occur, that slippery slope proves perilously steep.

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Tags:

national security,

Supreme Court,

terrorism,

Barack Obama,

drones

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