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Tuesday, February 5, 2013

Obama Administration Sanctions Extrajudicial Executions

Obama administration lawyers have asserted that it would be lawful to kill a United States citizen if “an informed, high-level official” of the government decided that the target was a ranking figure in Al Qaeda who posed “an imminent threat of violent attack against the United States” and if his capture was not feasible, according to a 16-page document made public on Monday.
The unsigned and undated Justice Department “white paper,” obtained by NBC News, is the most detailed analysis yet to come into public view regarding the Obama legal team’s views about the lawfulness of killing, without a trial, an American citizen who executive branch officials decide is an operational leader of Al Qaeda or one of its allies.

... It adopts an elastic definition of an “imminent” threat, saying it is not necessary for a specific attack to be in process when a target is found if the target is generally engaged in terrorist activities aimed at the United States. And it asserts that courts should not play a role in reviewing or restraining such decisions.

... It also fills in many blanks in a series of speeches by members of the Obama legal team about the use of force in targeted killings, including remarks by Attorney General Eric H. Holder Jr. at Northwestern’s law school in March. He asserted that the Constitution’s guarantee of “due process” before the government takes a life does not necessarily mean “judicial process” in national security situations, but offered little specific legal analysis.
I have to admit that I have very mixed feelings about this. The Constitution is pretty clear that executions require certain due process, including indictment by a grand jury. The U.S. Supreme Court has also held that a jury must be involved in determining whether execution is appropriate punishment. It is easy to see that this is not an issue when confronting a citizen that has taken up arms against the nation in a war. But as we start moving into greyer areas, the need for legislative or legal oversight or restrictions becomes more important. This might not be an issue except that the Administration and its supporters are so free with its use of the term "terrorist," making the "slippery slope" argument much more credible.

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