The President’s Drone Memo

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Cato Institute :

February 6, 2013 1:40PM

The President’s Drone Memo

 

By

Trevor Burrus

Yesterday, a memo describing the president’s legal justifications for drone attacks against U.S. citizens was obtained and published by NBC’s Michael Isikoff. The memo is a disturbing assertion of discretionary executive power that should concern and frighten all Americans. Unfortunately, the secretive use of drone attacks is one of the few areas of bi-partisan consensus in this highly divisive town, and the public still seems to resoundingly support current counter-terrorism policies.

As always, however, the devil is in the details, and here the details are encapsulated in the broad, discretionary language of the memo. snip

When the memo is parsed out, the possibilities of error and misuse are obvious. In the most head-scratching line in the memo, the authors redefine the concept of “imminence”: “the condition that an operational leader presents 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 will take place in the immediate future.”

 

This redefines “imminence” as a mere “possibility.” In both international law and at common law, “imminence” defines the situation where an individual or a nation can justifiably use self-defense. As Daniel Webster defined it in the Caroline Affair, it is a threat that is “instant, overwhelming, and leav[es] no choice of means, and no moment for deliberation.”