Executive Power and Imminent Threat

Today's news brings a discussion of

[a] white paper [PDF] . . . which lays out when, precisely, the administration believes it is entitled to order a drone strike against an American citizen.

Ta-Nehisi Coates continues, citing Mike Isikoff:

The 16-page memo, a copy of which was obtained by NBC News, provides new details about the legal reasoning behind one of the Obama administration's most secretive and controversial policies: its dramatically increased use of drone strikes against al-Qaida suspects abroad, including those aimed at American citizens, such as the September 2011 strike in Yemen that killed alleged al-Qaida operatives Anwar al-Awlaki and Samir Khan. Both were U.S. citizens who had never been indicted by the U.S. government nor charged with any crimes.

Andrew Sullivan quotes Jacob Sullum:

The problem is that to accept this position, you have to put complete trust in the competence, wisdom, and ethics of the president, his underlings, and their successors. You have to believe they are properly defining and inerrantly identifying people who pose an imminent (or quasi-imminent) threat to national security and eliminating that threat through the only feasible means, which involves blowing people up from a distance. If mere mortals deserved that kind of faith, we would not need a Fifth Amendment, or the rest of the Constitution.

Bill Moyers interviewed Vincent Warren and Vicki Divoll on the topic of drones over the weekend. Warren noted, "the way that the Obama administration is using that [drones] is that they're dropping bombs, targeting for killing of terrorist suspects in countries in which we are not at war, including Yemen, including Pakistan, including places in Africa. ... There is no legal authority for these types of drone attacks. The U.S. cannot drop bombs on people in places that they cannot send troops." Divoll added, "There's plenty of evidence that lots of people are suspected of doing lots of things. And that doesn't mean we shoot them from the sky." (emphasis added)

What does the administration mean by what the "white paper" calls "an imminent threat of violent attack against the United States?"

Certain aspects of this legal framework require additional explication. First, 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 will take place in the immediate future.

As Conor Friedersdorf wrote, "You can't make this stuff up." 

Non-imminent imminence, extra-judicial capital punishment by the chief executive of people who have not been charged with a crime, are part of a lack of transparency concealing arbitrary exercise of power solely on the basis of the presumed decency, trustworthiness, and inerrant ability to detect guilt, of the person in power.

This is not a new theory. It was in vogue for centuries before the rise of modern liberal democracies, before the American colonies rose up against similar presumption of the English King. It is the theory of the Benevolent Despot—the fond hope that a wise and good absolute ruler might be the best form of government of all.

It should not be difficult to see what is wrong with this. The question is whether this is a free country. The question is whether we are a free people, with our freedom protected by the indispensable concomitant of freedom, the rule of law.

As Coates concluded:

I understand that on some level a democracy generally elects human leaders who will not abuse the spirit of the law. I think Barack Obama is such a leader. That is for the historians to determine. But practically, much of our foreign policy now depends on the hope of benevolent dictators and philosopher kings. The law can't help. The law is what the kings say it is.