SALON

Tuesday, Feb 5, 2013 7:01 PM UTC

Who can’t be on Obama’s “kill list”?

A DOJ white paper reveals White House rationalization for drone strikes -- and an out of control power structure

By

Topics: Drones, Barack Obama, Department of Justice, NBC, CIA, John Brennan, Terrorism, New York Times, Editor's Picks,

Who can't be on Obama's (Credit: Wikimedia)

Last month, America saw in graphic detail how the destructive notion of Too Big to Jail means for an executive branch that refuses to prosecute a single banker connected to the financial meltdown. Today, with the release of a secret Justice Department white paper about the president’s so-called kill list, we are learning about another radical jurisprudential notion being pioneered by the Obama administration. Call it Too Big to Curtail.

That’s the most accurate label to describe the machinery of the government’s ever-expanding drone war. As the white paper asserts, that war — which is likely creating more terrorists than it is neutralizing — cannot be curtailed by laws or the Constitution. Therefore, the argument goes, the president no longer merely claims the power to detain and torture people without due process, nor does he merely claim the power to execute American citizens without indictment or trial. Those extra-constitutional powers, which only a few years ago were seen as utterly illegal, are quaint compared to the new assertion that the president can now do all of this without any concrete intelligence suggesting a citizen is linked to terrorist activity.

This is the most harrowing takeaway from the white paper, which was released as a bipartisan group of senators belatedly demands answers about the drone war. As NBC News reports (emphasis added):

It refers, for example, to what it calls a “broader concept of imminence” than actual intelligence about any ongoing plot against the U.S. homeland.

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 and interests will take place in the immediate future,” the memo states.

This new claim that evidence is not required to kill someone is the true foundation of Too Big to Curtail. To really appreciate how extreme the whole concept is, understand that it is already blatantly illegal for a president to execute an American citizen without so much as a indictment. Indeed, if the constitutional notion of “due process” means anything at all, at minimum it means at least being formally charged with a single crime.

But in the new white paper, the Obama administration isn’t just laying waste to that most basic of ideas — it is going further and insisting that even within the extra-constitutional “kill list” deliberations inside the White House, the president doesn’t actually need evidence to order someone’s death.

This, of course, creates a legal architecture to justify the administration’s heretofore shocking declaration that, according to the New York Times, “it in effect counts all military-age males in a strike zone as combatants.” It also explains why Obama’s spokesman said the president was justified in executing a 16-year-old U.S. citizen simply because the kid “should have [had] a far more responsible father.” According to the Justice Department white paper, those killings are all now perfectly legal because supposedly the law “does not require the United States to have clear evidence” in order to kill anyone, much less posthumously identify them as a threat.

In the context of the administration’s other high-profile legal moves, this is nothing short of a tectonic shift in long-term jurisprudential standards. When it comes to Obama campaign contributors on Wall Street, Too Big to Jail means no amount of overwhelming evidence can prompt a single white-collar prosecution, regardless of the scope of financial terrorism. Meanwhile, when it comes to any U.S. citizen the president unilaterally deems a terrorist, Too Big to Curtail means that not a single shred of actual evidence is needed not just to prosecute him, but to outright execute him.

Should the Congress continue to do nothing about this shift — say, for instance, by confirming the CIA nomination of one of the architects of Too Big to Curtail, John Brennan — this double standard will be the new assumed normal, one that (heads up, liberal Obama defenders!) will be exploited by Democratic and Republican presidents alike. As evidenced by its statements to the Times, the Obama administration clearly knows that to be the case — and is now doing its best to guarantee that its radical precedents are cemented for the long haul.

David Sirota

David Sirota is a nationally syndicated newspaper columnist, magazine journalist and the best-selling author of the books "Hostile Takeover," "The Uprising" and "Back to Our Future." E-mail him at ds@davidsirota.com, follow him on Twitter @davidsirota or visit his website at www.davidsirota.com. More David Sirota.

Next Article

Related Stories

More Related Stories

Featured Slide Shows

The week in 10 pics

close X
  • Share on Twitter
  • Share on Facebook
  • Thumbnails
  • Fullscreen
  • 1 of 11
  • Lisa Montgomery embraces her nephew Thursday after a tornado tore apart her home in Cleburne, Texas. The twister killed six people and destroyed entire swaths of the North Texas town.
    Credit: AP/LM Otero

  • Jack McMahon, the defense attorney for abortion doctor Kermit Gosnell, speaks outside the Criminal Justice Center in Philadelphia Tuesday. His client was convicted of killing three babies in his clinic, and will serve multiple life sentences.
    Credit: AP/Matt Rourke

  • A photo taken Monday captures Vice President Joe Biden's response to a Milwaukee second-grader's innovative proposal to end America's epidemic of gun violence. This guy!
    Credit: AP/Jenny Aicher

  • Sen. Rand Paul, R-Ky., flanked by a grouper-eyed Michele Bachmann, addresses the IRS' admission that it targeted Tea Party groups in advance of the 2012 election. In an op-ed for CNN Thursday, the Kentucky senator slammed the president for his faux outrage.
    Credit: AP/Molly Riley

  • Ousted IRS chief Steven Miller is sworn in on Capitol Hill Friday. Miller testified before the House Ways and Means Committee on the extra scrutiny the agency gave conservative groups applying for tax-exempt status.
    Credit: AP/J. Scott Applewhite

  • Attorney General Eric Holder pauses as he testifies on Capitol Hill before the House Judiciary Committee Wednesday. Holder is under fire, among other things, for the Justice Department's gathering of phone records at the Associated Press.
    Credit: AP/Carolyn Kaster

  • O.J. Simpson sits during an evidentiary hearing at Clark County District Court in Las Vegas, Nev., Thursday. Simpson, who is currently serving a nine-to-33-year sentence in state prison for armed robbery and kidnapping, is using a writ of habeas corpus to seek a new trial.
    Credit: AP/Las Vegas Review-Journal/Jeff Scheid

  • Major Tom to ground control: On Sunday astronaut Chris Hadfield recorded the first music video from space, a cover of David Bowie's "Space Oddity."
    Credit: AP/NASA/Chris Hadfield

  • When it rains it pours. President Barack Obama speaks during a news conference Thursday with Turkish Prime Minister Recep Tayyip Erdogan, inexplicably inspiring an #umbrellagate Twitter meme.
    Credit: AP/Jacquelyn Martin

  • A smoke plume rises high above a road block at the intersection of County A and Ross Road east of Solon Springs, Wis., Tuesday. No injuries were reported, but the the wildfire caused evacuations across northwestern Wisconsin.
    Credit: AP/The Duluth News-Tribune/Clint Austin

  • Recent Slide Shows

  • Share on Twitter
  • Share on Facebook
  • Thumbnails
  • Fullscreen
  • 1 of 11

Related Videos

Comments

 66 Comments

Comment Preview

Your name will appear as username

You may use these HTML tags and attributes: <a href=""> <b> <em> <strong> <i> <blockquote>

follow salon

Most Read

Popular on Reddit

links from salon.com

vote
Paul Krugman’s right: Austerity kills. "In an economy where we’re all in the same boat, one person’s spending is another person’s income. So when the government cuts spending, it reduces people’s income, leading to less business, more unemployment, and a vicious spiral of slowing down the economy."
369 points370 points | 361 comments
vote
FBI reportedly joins Bachmann campaign finance probe
268 points269 points | 28 comments
vote
Jon Karl makes things worse: He regrets “inaccurate” Benghazi email but says his story based on it “still entirely stands.” Really. ABC News?
232 points233 points | 32 comments
vote
Paul Krugman’s right: Austerity kills -- radical cuts destroy economies and lives, and the honest numbers and economics keep proving it
136 points137 points | 18 comments
vote
Austerity Kills: Brian McArdle, a 57-year-old man who had had two strokes and could barely walk, was found "fit for work" by a government subcontractor, and had his benefits stopped. He died the next day.
114 points115 points | 15 comments

From Around the Web

Presented by Scribol
listener_new_rect The Listener: So long, Sookie Stackhouse

Recommendations