Normally self defense, especially when lethal force is applied, requires an imminent and real physical threat. If you throw a punch I have the right to punch you back or if you point a gun at me, I have the right to shoot you. The US has now decided if an official “thinks” you are “planning” to throw a punch, they can kill you, in self-defense, before you even make a fist.
It is therefore a stretch of logic to say that an imminent threat exists when there is no real or tangible physical evidence to back that threat up. According to the US Department of Justice, any person deemed to be a “senior leader” of al-Qaeda or an “associated organization” is constantly planning to attack America and is a target, but soon, if this is allowed to stand, anyone deemed to be in any way connected to al-Qaeda, or an associate, will be deemed an “imminent threat” and subject to extra-judicial execution.
So basically, on a personal level, if you follow their logic: if you merely “believe” someone is planning to commit an act of violence against you or is an imminent threat to your safety, you can kill them and it’s okay.
The first paragraph of the DOJ white paper attempts to convince the reader that the scope of the findings and the paper itself only applies to “senior operational leaders of al-Qaeda or an associated force”. It also lays out the three conditions which must be met to consider the assassination of an American legal, “in a foreign country, outside the area of active hostilities”.
The attempt to explain that the paper relates to only senior leaders is obviously a distraction from the fact that such a finding can and will be easily updated and expanded to include other categories once such conditions are adopted and legalized.
The use of the words “associated force” is troubling because possibilities for interpreting that term are many and so far reaching that it could, if one wanted to, include almost anyone. For example: a journalist sympathetic to al-Qaeda, a banker who inadvertently transferred al-Qaeda funds or even a doctor who treated a supposed al-Qaeda operative. The DOJ attempts to define that term as co-belligerents under the laws of war.
In practice it would be more likely that any US citizen associated with any group anywhere in the world that the US does not like and that the US brands as “al-Qaeda associated” will be targeted for assassination. The language and conditions are so broad that almost anyone could be deemed to meet the criteria.
The three criteria that must be met for the US to carry out what is no more than an extra-judicial execution of an American citizen are as follows: 1. An informed high-level official must make the determination, 2. Capture is infeasible but the US continues to monitor whether it becomes feasible 3. The operation is carried out under applicable law of war principles.
Again problems, first of all an “informed high-level official” could be anyone from the Attorney General to the president. This is also a problem because it grants single individuals the right to issue assassination orders as opposed to a court or another body. The term “capture is infeasible” can be, again, used so broadly that almost any circumstance could fall within that category and defining such is subjective. The last is telling and troubling, troubling because there has never been a formal declaration of war against al-Qaeda and telling because the authors know the “rules or laws of war” do not apply, so they use the word “principles”.
Lastly the term “… outside the area of active hostilities” makes it legal to target Americans anywhere in the world, including in the U.S.
Paragraph 2 states the President has the authority to defend the country and that there exists an armed conflict “with” al-Qaeda under international law. Therefore they argue the assassination of a US citizen who has joined al-Qaeda is “not unlawful”. The DOJ states that such an operation would be “consistent with international legal principles of sovereignty and neutrality” with the host nation’s consent or after “a determination that the host nation is unable or unwilling to suppress the threat…”
Again the DOJ does not use the word “war” to describe its al-Qaeda-based “War on Terror” and they give the President complete authority to kill whoever he deems is a threat. The DOJ says assassinating a US citizen is “not unlawful” again avoiding the word “legal” because in reality such an act of extra judicial execution is illegal.
The DOJ stating “consistent with international legal principles” again is disingenuous and eschews the use of the term “international law”. Stating that with the consent or without if the host nation does not want to allow it, basically allows the US to now “legally” violate the sovereignty of any country (something they are already doing) in order to assassinate anyone they view as a threat.
Paragraph 3 states that citizenship and due process are not factors when they are “balanced against the United States’ interest in forestalling the threat of violence and death to other Amerticans… That arises from an individual… who is plotting against the United States.
Basically if the government says you are a threat, even if you are a citizen, they can kill you and there is nothing you can do about it. The next paragraph continues along the same vein stating that the killing of US citizens who are “senior operational leaders” is neither illegal under laws barring the killing of US citizens abroad nor a war crime.
Section I, paragraph 5 starts out by repeating “… the US is in an armed conflict with al-Qaeda and its associated forces” again the words “at war” are not used and as throughout the document the term: “The US is in an armed conflict “WITH” al-Qaeda and its associated forces” is repeated. In a cursory reading the use of the word “with” instead of, for example: “against”, might not seem important, but when one dwells on the fact that the US has been “secretly” working “with” and funding al-Qaeda in places such as Libya and Syria, as they did in Afghanistan against the Soviet Union when the USSR was asked to assist the government of Afghanistan, the term is indeed important. 9-11 is of course mentioned.
Paragraph 6 attempts to classify someone who is connected to al-Qaeda as a “part of enemy forces” and thus is subject to death.
Paragraph 7 is interesting because it seems to contradict paragraph 2 and say the US is a “non-international conflict with al-Qaeda”. Paragraph two said: “the conflict exists under international law”. But as we see it is not an international conflict. The reason for this is because the US is supposedly at war with a “transnational non-state actor”, the whole basis for the “Global War on Terror”, which means the US can attack and strike in any country where there exists the threat of al-Qaeda.
Paragraphs 8 to 10 justify the US launching attacks in any country being used as a base by al-Qaeda, which by the way, means “The Base”.
Section II Part A, paragraphs 12 to 14 give justification why assassination targets do not have the right to due process and state that if the government determines a threat and the three criteria that are stated in the beginning are met, then killing Americans is okay.
Paragraph 15 repeats the events 9-11 in detail and further seeks to justify the endless and worldwide nature of the “War on Terror” and pre-emptive assassinations by stating that terrorists plan and move and it is impossible to predict when an attack will occur. So according to the US Department of Justice, it is okay to kill them before they commit their “crime” as it is to kill Americans, “who may pose an imminent threat”.
Paragraph 16 claims al-Qaeda is “constantly planning attacks” thus they are always fair game.
Paragraph 17 says if al-Qaeda is a threat then any associate or member is a threat.
Paragraph 19 justifies the use of drones and smart bombs by saying there are no rules against them.
Part B, Paragraph 21 gives the justification for assassination when someone is attempting to escape, in short, allowing the US to shoot you in the back.
Part C Paragraph 23 states that there is no proper judicial forum to evaluate the considerations. In other words there is nowhere for the people to redress the government.
Section III, Parts A, B and C, Paragraphs 24 to 34 are sickening to read as they attempt to provide the legal justification for the government and officials to commit murder and assassinations under any circumstances when they deem necessary. The way the Department of Justice has twisted the act of cold-blooded unprovoked murder into something lawful and in self-defense is chilling and completely and totally morally reprehensible.
The conclusion of section III is that under the “public authority doctrine” and if the murder is committed “in a manner consistent with the fundamental law of war principles” such murders are “not unlawful” and do not “violate the assassination ban” and that if the person is deemed a “threat” even if they have not actually done anything “yet” then killing them is in “self-defense” and the murder is a “lawful killing” and does “not violate the assassination ban.”
The paper also concludes that even if someone is not in active combat or has removed themselves from operations but is still considered a “senior operational leader” they can be assumed to be actively planning and thus are subject to being killed, and even in this case the murder cannot be called illegal or fall under the category of assassination.
In conclusion the paper allows the United States of America to murder anyone they want, anywhere they want, whenever they want, under any circumstances, and whether the person is guilty of aggression or not. And no one who takes part in the murder will be guilty of a crime, provided of course that they deemed those murdered, to be a threat.