February 6, 2013 / 2:05 PM / 5 years ago

COLUMN - Obama's dicey license to kill

(Jack Shafer is a Reuters columnist but his opinions are his own.)

By Jack Shafer

Feb 6 (Reuters) - On Monday night, NBC News investigative reporter Michael Isikoff published a revelatory article based on an undated 16-page Department of Justice “white paper,” representing the arguments contained in classified memos produced by the Obama administration that describe the criteria that must be met before the administration plans the killing of a U.S. citizen.

Who would have surrendered such a sensitive document about the president’s “kill list” to NBC News?

It’s a valid question, and a little bit silly at the same time. Not to diminish the intrepid reporting of Isikoff - who should be made the grand marshal of the next Tournament of Roses Parade for his scoop - but Washington often leaks in directions to further stoke policy fires that are already burning. (See this taxonomy of leaks compiled by Stephen Hess.) Such a Washington fire has been burning for many months, with Congress demanding that the Obama administration explain its targeted killings of U.S. citizens. Yesterday, before the Isikoff story broke, 11 senators sent the president a formal request that any and all legal opinions devised by the White House about the targeting of citizens be forwarded to the Judiciary and Intelligence Committees.

This request makes the senators, or members of their staffs, prime suspects of the leak. Isikoff’s story does not discourage that interpretation. He reports that the leaked white paper was given to “members of the Senate Intelligence and Judiciary committees in June by administration officials” and that a “source with access to the white paper, which is not classified, provided a copy to NBC News.” Like any good journalist, Isikoff squirts ink in the water to help camouflage a possible source by quoting the boilerplate outrage of the deputy legal director of the ACLU about the white paper. The ACLU has sued the administration for the memos, Isikoff reports, leaving the careful reader to speculate that perhaps the ACLU obtained the white paper and gave it to him.

The timing of the leak inspires further speculation. President Obama’s nominee for CIA director, John Brennan, goes to Capitol Hill on Thursday for his confirmation hearing before the Senate Intelligence Committee. Depending on how you torque it, the leaked white paper arguably gives drone-architect Brennan a little breathing room by blunting the demands for the classified documents. That’s the sentiment behind a statement issued by Senator Dianne Feinstein (D-Calif.) today, in which she says the white paper (and other documents and briefings) have allowed the Intelligence Committee, which she chairs, “to conduct appropriate and probing oversight into the use of lethal force.” Or, the leak could enrage other senators who feel that the administration hasn’t been sufficiently candid with them, and prompt them to draw Brennan and the administration into a memo showdown. As Josh Gerstein reported yesterday in Politico, Senator Ron Wyden (D-Ore.), a member of the Intelligence Committee, had previously promised to press Brennan on the targeted killing policy.

If Wyden decides to make good on the promise, he has plenty of ammunition. The leaked white paper, titled “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen who is a Senior Operational Leader of Al Qa‘ida or An Associated Force,” cannot and should not be read as the complete operating instructions for the kill list. But it portrays an administration prepared to justify the killing of U.S. citizens on gut feelings. Here’s the language from the white paper, emphasis added:

“ t would be lawful for the United States to conduct a lethal operation outside the United States against a U.S. citizen who is a senior, operational leader of al-Qa‘ida or an associated force of al-Qa‘ida without violating the Constitution or the federal statutes discussed in this white paper under the following conditions: (1) an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States; (2) capture is infeasible, and the United States continues to monitor whether capture becomes feasible ”

Who are these “informed, high-level officials”? What constitutes a determination? What is an “imminent threat of violent attack”? “Infeasible”? Isikoff highlights other squishy language in the white paper, noting that it fails to define such crucial terms as “recently” or “activities” when arguing that an informed, high-level official can determine when a targeted American has been “recently” involved in “activities” posing the threat of a violent attack. U.S. Judge Colleen McMahon similarly objected to the administration’s lack of rigor last month, as Isikoff notes, in her ruling to a lawsuit filed by the New York Times and the ACLU. The administration, she wrote, has discussed the killings “in cryptic and imprecise ways, generally without citing  any statute or court decision that justifies its conclusions.”

If the white paper accurately describes how the administration adds a U.S. citizen to the kill list, the Intelligence Committee would be wise to ask Brennan if the Sept. 30, 2011, targeted killing of U.S. citizen Anwar al-Awlaki in Yemen conformed to these standards. It probably doesn‘t. As my colleague Mark Hosenball reported in an Oct. 5, 2011, Reuters piece, “officials acknowledged that some of the intelligence purporting to show Awlaki’s hands-on role in plotting attacks was patchy.”

If U.S. citizens can be whacked based on hunches, suspicions, belief and patchy fragments of intelligence by unnamed, high-level officials, let Brennan say so. Or assign him to write a more explicit white paper defending the policy.

(Jack Shafer is a Reuters columnist covering the press and politics. Email to Shafer.Reuters@gmail.com. )

Jack Shafer

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