Last week I wrote about the news that the Obama administration is considering whether to assassinate another American citizen in a drone strike. The Associated Press reported the target is an American citizen and member of al-Qaeda, “and the Obama administration is wrestling with whether to kill him with a drone strike and how to do so legally under its new stricter targeting policy issued last year.”
Something that was clear at the time of the report, although I failed to mention it explicitly, is that this information was obviously leaked to the press at the direction of President Obama. This leads to a troubling question, asked astutely by Noah Feldman at Bloomberg News:
White House officials are leaking to the news media that they are considering whether to use drone strikes to kill an unnamed American in Pakistan. This behavior is bizarre as a matter of national security: If a terrorist really poses an imminent threat, how exactly does the administration have time to test the political waters before taking him out?
The answer lies in the administration’s deliberately convoluted language guiding legal and policy decisions in the drone war. In a speech on drone policy in May, Obama said a drone strike is permissible if it preempts a “continuing and imminent” threat to the U.S., and if the target can not feasibly be arrested.
In reality, “continuing” is the operative word here and “imminent” is stuck in there to give the appearance of adherence to the international laws governing the use of force. According to a leaked Justice Department legal memo, the Obama administration essentially dropped the requirement of “imminence.”
“The condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future,” the memo states. All that’s necessary to decide on a target is for a high-level U.S. official to say the targets are “senior operational leaders” of al-Qaeda or “an associated force.”
The use of force – which includes dropping bombs from unmanned aerial vehicles – is prohibited by international law unless the UN Security Council approves it or it preempts an imminent attack. As Feldman notes, the Obama administration’s deliberate leaking of this wrangle over whether to kill another American without due process indicates a desire to “test the political waters” before going ahead and assassinating the suspect. By this very fact, it is evident that the suspect poses no immediate, imminent threat – which a recent Congressional Research Service report defined as an overwhelming threat that allows “no moment for deliberation.” Clearly, this doesn’t apply here and the same has been true for the vast majority of drone strikes.
It’s getting a little trite to say it, but it is not a stretch to say Obama’s view of presidential power is reiterative of Nixon’s: