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President Obama's Protocols For Deciding Whether To Kill You: A Grand Illusion Of Due Process And The Rule of Law

On August 5, 2016, President Barack Obama released a declassified May 22, 2013 document euphemistically styled Presidential Policy Guidance. It delineates the secret procedures the President has promised to employ (shielded from outside scrutiny or verification) to determine whether any person on the planet shall live or die based on his say-so alone.

The nation predictably received the alarming document with a yawn. The lead op-ed column in the New York Times on August 11, 2016, for example, was entitled, "Stop Killing Coyotes," by Dan Flores.

We long ago entered the abyss of unconstitutional, perpetual, presidential global warfare where the law is silent and government lawlessness in pursuit of professedly benign objectives encounters resistance. Just as in World War II, no opposition was provoked by President Franklin D. Roosevelt's racist concentration camps for 120,000 innocent Japanese Americans, allegedly to defeat Japan, President Obama's protocols for deciding whether he alone should decide if you live or die "to protect American lives," even if it means killing Americans, have been accepted with equanimity throughout the political spectrum. It has not even given birth to satire, unlike the earnest statement of a United States major during Vietnam War regarding the provincial capital Ben Tre: "It became necessary to destroy the town to save it."

The 18-page document creates an illusion of tight restraints on the life or death decisions of the President. That is because the protocols empower the President unilaterally and in secret conclusively to decide whether the several of thresholds of proof it establishes for a killing have been satisfied; and, even if he concludes they have not, he can secretly waive the thresholds by secretly proclaiming an emergency.

The document emphasizes, for instance, that the President's kill decisions must be lawful. But the President decides what the law is. There is no adversarial process. There is no judicial, congressional, public, or other review. And we can deduce a president's ordinary belief in presidential omnipotence from President Richard Nixon's interview with David Frost: "When the President does it, that means that it is not illegal." It took the United States Supreme Court, the Senate Watergate Committee, and the House Judiciary Committee to hold President Nixon accountable to the law. He was not about to accuse himself. For more than four centuries since Dr. Bonham's Case, a cornerstone of Anglo-American jurisprudence has been that no man can be a judge in his own case--including the President of the United States.

The document declares that operations for targeted killings will be approved only if there is "near certainty that an identified [High Value Target] or other lawful terrorist target will be present;" there is "near certainty that non-combatants will not be injured or killed;" there is an assessment that capture is not a feasible alternative to killing; the target's activities "pose a continuing, imminent threat to U.S. persons," a logical impossibility because a threat cannot be both imminent and continuing; there is an assessment that the government authorities in the countries where the killing is contemplated cannot or will not address the putative threat to U.S. persons; and, that there are no reasonable alternatives to killing that would effectively address that threat.

The President makes these key factual determinations by himself. The information the President receives from the intelligence community escapes cross-examination or scrutiny from any outside source. And cross-examination is the greatest engine ever invented for the discovery of truth according to evidence maven John Henry Wigmore. Additionally, the intelligence community is notoriously unreliable, including but not limited to the Bay of Pigs, WMDs in Iraq, and Cat Stevens, who had criticized the 9/11 terrorist murders and donated money to the families of the September 11 Fund yet was excluded from the United States as a suspected terrorist. Even the fabled Israeli Mossad errantly assassinated a Moroccan waiter, Ahmed Bouchiki, In Lillehammer, Norway in the mistaken belief that he was Ali Hassan Salameh, an operative of Black September that had perpetrated the Munich massacre of Israeli Olympians.

Even if the enumerated restraints in the president's protocols were real--any they are not-- Section 5 of the document empowers the President unilaterally to waive them all in secret in cases of "fleeting opporunit[ies]" in which he plays judge, jury, and prosecutor too like the Fury in Alice in Wonderland. And to hammer home the emptiness of the restraints, Section 8 decrees that they are "not intended to, and [do] not create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities ,its officers, employees, or agents, or any other person."

Whether or not President Obama has exercised his absolute power to kill anyone on the planet responsibly--and we have little foundation for judging because most of the relevant evidence remains secret--a precedent of limitless executive authority has been set which is truly frightening. It will lie around like a loaded weapon in the White House ready for use by any Caligula or Nero who is elected Commander In Chief. It is only a matter of time, as the 2016 presidential race portends.

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