Back in December 2005, John Yoo was asked if any law or treaty could prevent the President of the United States from torturing someone, "including by crushing the testicles of the person's child." Yoo, then head of President Bush's Office of Legal Counsel at the Department of Justice, responded, "I think it depends on why the president thinks he needs to do that." To put it another way, the American people just have to take the President's word for it.
That's what makes the revelations in the Obama DOJ's white paper on lethal strikes targeting American members of Al Qaeda so disappointing--and so disturbing. President Obama or an unspecified "informed, high-level government official" will decide if an American citizen anywhere in the world represents an "imminent" threat to the United States, even if no evidence of a planned attack exists. With no oversight from Congress or review from the equivalent of a FISA court, the President and his team will act as judge, jury and executioner. Trust, but don't verify.
Voices as diverse as the Center for American Progress, former Bush assistant attorney general Jack Goldsmith and a bipartisan group of Senators have called for a new legal regime to govern America's expanding campaign of clandestine drone strikes and special operations. The concern arises not because the targeting of the enemy's operational leaders is a violation of U.S. or international law. (As Attorney General Eric Holder explained in his March 5, 2012 speech which first hinted at the existence of the DOJ guidelines, the killings of Japanese Admiral Yamamoto during World War II and Osama Bin Laden in Pakistan provide ample precedent for the President to exercise his powers as Commander-in-Chief under Article II of the Constitution.) Still, drones are rapidly transforming American national defense itself, with potential surveillance at home and the rising number of deadly strikes abroad altering the very definition of warfare. (It is worth noting that American drone warfare has not only triggered a probe by the United Nations, but more importantly is producing blowback in Pakistan, Yemen and other battlefields in the war against Al Qaeda and its affiliates.) But the targeting of American citizens is new territory altogether. And in the wake of this week's disclosures, Attorney General Holder's pledge to guarantee Americans' due process rights under the Fifth Amendment in March seems woefully insufficient: