The rules of cyberwarfare, including the acceptable lethal use of drones, are being worked out in secret amongst President Obama and a very close group in the executive branch. These rules are to be the marching orders for several agencies that report to the president, yet they are intended to remain secret in the name of national security.
Most executive orders, even the controversial ones, are made public. The public nature of executive orders helps to maintain the balance of powers by giving Congress the opportunity to limit them through legislation and the courts the opportunity to throw the unconstitutional ones out. These days, they are even posted on the official White House site to let us know what our president is up to.
But, what about that other kind of executive order – the secretive kind that is not posted on the web site or even released to Congress. Secret executive orders cannot be checked by legal authority, limited by Congress or overturned by the courts until they are known – until they are carried out and their consequences become tangible. These are the kind of executive orders currently in the making.
There are some hints of what these orders will contain in the leaked Department of Justice white paper obtained by NBC news. The white paper examines the legal framework under which the US government can kill its own citizens without due process. At the beginning of the paper, it appears to concern Al-Qa’ida connected individuals who place an imminent threat on Americans, but upon further reading, the meanings of Al-Qa’ida connected and imminent threat become extremely loose and manipulable. By the end of the paper, it’s apparent that the burden of proof of the citizen’s guilt is exceptionally light and non-specific.
For example, the paper states that one of the conditions for targeting a US citizen is that an “informed, high-level official of the US government has determined that the targeted individual poses an imminent threat of violent attack against the United States.” Nowhere is it explained what sort of proof or oversight process the high-level official must adhere to. The phrase Al-Qa’ida connected becomes watered down to mean a leadership person who is connected to a group that is connected to a group suspected of terrorist notions. The paper states that such a person is assumed to be guilty of actively planning an attack on the United States and claims that that assumption is evidence enough. The point is re-iterated with the explanation that an imminent threat of violent attack does not require clear evidence that any such attack will take place in the near future or ever. So, an imminent threat can simply be an assumption based on connections.
Secrecy concerning military operations certainly has precedence and may even be strategically necessary, but apparently I am not the only one who is left feeling less safe and secure by our president claiming new power to kill US citizens. Senator Ron Wyden(D-Or) and ten other senators wrote the president yesterday:
“….if individual Americans choose to take up arms against the United States, there will clearly be some circumstances in which the President has the authority to use lethal force against those Americans, just as President Lincoln had the authority to use force against the Confederate Army during the Civil War. At the same time, it is vitally important for Congress and the American public to have a full understanding of how the executive branch interprets this authority, so that Congress and the public can decide whether the President’s power to deliberately kill American citizens is subject to appropriate limitations and safeguards. Every American has the right to know when their government believes that it is allowed to kill them.”