CNN reports that “the Senate Intelligence Committee on Thursday morning will receive a classified document that seeks to justify the administration's policy of targeting Americans overseas via drone attacks.” Chairwoman Dianne Feinstein seems to be satisfied. We are not. We can see no justification for classifying such a document.
If the Obama administration and its successors are to be given the right to assassinate Americans abroad, we must know the legal reasoning so that we the people may judge whether such actions can be justified under U.S. and international law and so that the perpetrators themselves may be prosecuted if and when they overstep or misapply their authority. Of course, such jeopardy may be what the Obama administration is deeply afraid of. Although we are not convinced that the U.S. Constitution can be twisted to allow execution without trial, we cannot see how any such actions can ever be immune from independent judicial review. As others have noted, neither the use of lethal force by ordinary American troops nor by police confronting violence at home is beyond the reach of judicial review. In matters of life and death transparency and accountability are essential.
Even assuming we might be persuaded that assassination is constitutional and might sometimes be the best course of action, we and many others believe that the U.S. public deserves to know, in detail, ahead of time, how those targeted for assassination will be selected. The criteria must be public. For one thing, to keep these criteria secret is to put countless angry Americans in jeopardy. A legally defensible definition of terms like “imminent danger” is in order lest Americans traveling or resident abroad be unable to speak out honestly when they are critical of the U.S. This is a freedom upon which we Americans have always prided ourselves. Others have admired us for our candor. They have envied our freedom. Clear definitions of what crimes are to be punished by instant, silent, arbitrary death are absolutely essential, lest innocent people find themselves in the cross-hairs of distant drone pilots. We’ve all said stupid, violent, angry things. Many of us have allied ourselves briefly with foolish causes. Are we all to be assassinated?
Some might object that understandable definitions will make it possible for villains to go on spreading poison. Since when are Americans punished for words rather than deeds? This is a very dangerous trajectory, and its venomous results are already being felt at home in the use of manipulative entrapment targeting justifiably angry young Muslims and the compiling of don’t-fly lists which impede people’s freedom of movement without giving them expeditious access to possibly wrongly applied criteria. We might note that Ezra Pound, whose critique of U.S. capitalism was vicious in the extreme, was spared the death penalty after cooperating with the Axis during World War II, and the U.S. was stronger for it.
Others will object that targets with knowledge of the criteria may change their habits, modify their pronouncements, and thus live to rant another day. That surely would be a good thing. The goal, we would have thought, was to prevent violent acts.
We understand that the details of any properly justified operation must always be held closely. The publication of relevant legal doctrines, however, will not endanger any actual operation or any U.S. agent who acts within the bounds of the law.