5. This logic poses no threat to international legal principles of sovereignty because it's okay to use force inside a foreign sovereign state if that state either consents or is "unwilling or unable to suppress the threat posed by the individual being targeted." This sounds reasonable until you realize it's completely circular. I'll restate the principle to demonstrate the circularity: Using force inside the borders of a foreign sovereign state is acceptable if the foreign state consents. If the state doesn't consent to a U.S. strike but "an informed, high level official" of the U.S. government believes an individual in the non-consenting state poses an imminent threat of violent attack, then -- by definition! -- the foreign sovereign state can be deemed "unwilling or unable" to suppress the threat itself, in which case, you guessed it, the use of force is also acceptable.
6. Checks and balances are for your bank statement, not for the U.S. government. After raising -- and quickly rejecting -- potential constitutional arguments against the targeting of U.S. citizens overseas, the DOJ paper concludes happily that "there exists no appropriate judicial forum to evaluate these constitutional questions." That's because "matters intimately related to foreign policy are rarely proper subjects for judicial interventions," and such matters "frequently turn on standards that defy judicial application."
This is restating the problem nicely: the standards put forth in the memo are effectively standardless. They consist of sweeping generalizations about legality, but offer no criteria for actually determining legality (or necessity, or strategic wisdom, needless to say).
But that's not a reason to reject any notion of judicial review -- it's the very reason some sort of review outside the executive branch is essential. When you have a secret, standardless process that may result in the killing of U.S. citizens, it would be comforting to have some sort of review mechanism. Ideally, it would be good to have some disinterested , informed people looking at the evidence before kill decisions are made -- and this is far from unfeasible. A judicial warrant procedure like that put in place by the Foreign Intelligence Surveillance Act could be established by Congress. Failing that, an ex post review could at least highlight abuse and error, and reduce the likelihood of further error or abuse.
I've written before about strategic and rule of law problems posed by targeted killings (some might say I'm droning on about them). I won't reiterate those concerns here in detail, but let's review the bottom line: This Justice Department memo tells us that our government believes itself legally justified in secretly killing any person (citizen or not), at any time, anywhere, based on a concept of imminence that includes distant and speculative threats and also appears to include even relatively trivial threats, rather than only grave or existential threats. The definition of "enemy" is squishy, and kill decisions can be made by unidentified officials who need not reveal their information, its sources, or the criteria used in their decisions. Sovereignty poses no barriers to U.S. strikes, and no one outside the U.S. executive branch can review any killings before or after they take place. Oh, yes -- and the administration officially won't even acknowledge the existence of the targeted killing program.
I'm not inherently opposed to drone strikes or other targeted killings. I'm ready to believe that some targeted killings can be justified, legally, morally, and strategically, and I'm inclined to think that when a practice is exceptional and genuinely rare, issues of legality and the rule of law may be less urgent. But U.S. targeted killings long ago ceased to be exceptional -- they've now become the norm, part of the new American way of war, and we can't afford to let them remain in the legal and moral shadows.
So here's what I want the Obama administration to tell me:
Tell me if this shadow war has any limits, and how those limits will be enforced. Tell me what safeguards there are against abuse. Tell me how I can be confident that the targeted killing process isn't rife with error and abuse. Tell me how many targeted killings equal a war. Tell me if we'll be expanding our shadow war into additional foreign states. Tell me if there's any limit at all on who we can target, and when, and where. Tell me our objectives in this shadowy war. Ending the operational effectiveness of al Qaeda? Ending terrorism? Reducing anti-American violence? Tell me how we'll know if we're achieving our objectives. Tell me if our shadow war is making us safer, or just making our world less stable.
Tell me how this ends.