Which means that minute 16 is the sweetest minute of all.

With regard to the DOJ Kill List Memo, Pepperdine Law Prof. Greg McNeal focuses on Six Key Points Regarding the DOJ Targeted Killing White Paper, of which one is of particular interest, the issue of “war crimes”:

(6) The white paper discusses at page 16, potential war crimes liability for improper targeting decisions/criteria.  It is notable that while the white paper cites the ICRC DPH study, the reasoning of the white paper and the sentence that follows the cite to the DPH study do not seem to comport with the ICRC’s views on direct participation in hostilities or continuous combat function, rather the U.S. view seems to be a membership only based approach.  The white paper states “An operation against a senior operational leader of al-Qa’ida or its associated forces who poses an imminent threat of violent attack against the United States would target a person who is taking an ‘active part in hostilities’ and therefore would not constitute a ‘grave breach’ of Common Article 3.”  I don’t think the ICRC would subscribe to the U.S. view of “active part in hostilities” as articulated in this white paper, unless the argument is that a “senior operational leader” has a continuous combat function, but that would require sufficient levels of organization for al-Qaeda as an armed group, something that is not mentioned let alone explained in the white paper.

I wrote about the possibility of war crimes charges back in December 2009, Drone Strikes Put Obama Admin Officials At Risk, and again in May 2010, Can War Crimes Charges Be Far Off?

Of course, the context there was to wonder if Obama would be held to the same standard as Israeli officials, with a full court press by American leftists and Palestinian/Islamist  lawfare activists working through European “universal jurisdiction” countries.

The obvious answer then and now is the same:  There will not even be attempts to prosecute Obama the way there were (and still are) attempts to go after Israelis and Bush administration officials, because he is Obama.  That is the right outcome, for the wrong reasons.

Update:  Glenn Greenwald has been almost alone among liberals in speaking up against the Obama administration on the targeted killing of U.S. citizens and other usurpation of power.  While I disagree with him on this under the unique circumstances of al Qaeda (and we still disagree on the Israel lobby), it is worth a read, Chilling legal memo from Obama DOJ justifies assassination of US citizens.  I do agree with him, however, on the issue of transparency:

In fact, The Most Transparent Administration Ever™ has been so fixated on secrecy that they have refused even to disclose the legal memoranda prepared by Obama lawyers setting forth their legal rationale for why the president has this power. During the Bush years, when Bush refused to disclose the memoranda from his Office of Legal Counsel (OLC) that legally authorized torture, rendition, warrantless eavesdropping and the like, leading Democratic lawyers such as Dawn Johnsen (Obama’s first choice to lead the OLC) vehemently denounced this practice as a grave threat, warning that “the Bush Administration’s excessive reliance on ‘secret law’ threatens the effective functioning of American democracy” and “the withholding from Congress and the public of legal interpretations by the [OLC] upsets the system of checks and balances between the executive and legislative branches of government.”

But when it comes to Obama’s assassination power, this is exactly what his administration has done. It has repeatedly refused to disclose the principal legal memoranda prepared by Obama OLC lawyers that justified his kill list. It is, right now, vigorously resisting lawsuits from the New York Times and the ACLU to obtain that OLC memorandum. In sum, Obama not only claims he has the power to order US citizens killed with no transparency, but that even the documents explaining the legal rationale for this power are to be concealed. He’s maintaining secret law on the most extremist power he can assert.


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