What If a Drone Attacked in the US? A White Paper Justification

“This just in: Iran has utilized its newly developed drone capability to execute three members of the Mujahedeen e-Khalq (MEK), aka the People’s Mujahideen of Iran, a terrorist organization responsible for killing and injuring many hundreds of Iranians, including Mostafa Ahmadi Roshan and four other civilian university professors and scientists. The strike took place early Tuesday morning in a suburb outside Cleveland, Ohio. The Iranian intelligence agency reports that the three targeted individuals killed in the attack were senior MEK operational leaders. Sources on the ground report that in addition to three adult males, 10 American civilians, four women and six children were also killed. While Iranian officials have not acknowledged the civilian deaths, they do recognize that despite due care, precision weaponry and the best of intentions, the reality of war is such that sometimes collateral damage is unavoidable.

“US officials have, for many years, recognized MEK as a terrorist organization responsible for numerous acts of terrorism including the murder of Americans in Iran and the attack on the American Embassy in Benghazi. Yet for reasons still unclear, MEK has recently been delisted from the terror list (curiously soon after the assassination of Professor Roshan) thanks to the efforts of “dignitaries” like former New York City Mayor Rudy Giuliani, former Vermont Governor Howard Dean, former Secretary of Homeland Security Tom Ridge, US Homeland Security Advisory Council member Lee Hamilton and Israeli apologist Alan Dershowitz. Further, given our strained relations with Iran, the US has refused to discontinue its support for MEK nor will it grant the Iranian Government’s request that MEK terrorists be arrested and extradited to Iran to stand trial for their terrorist activities.

“President Barack Obama has condemned the Iranian attack and killings as an act of war, a violation of International law, of America’s territorial sovereignty, and of the United Nations’ Universal Declaration of Human Rights. The president warns that all options, including a military response, have not been ruled out. Senators John McCain and Lindsey Graham have criticized the president’s handling of the crisis and are demanding an immediate shock and awe retaliatory attack against the Islamic Republic of Iran.

“In response to America’s criticism and threats, moral and legal scholars from Iran’s Council of Guardians (loosely equivalent to the US Department of Justice) have released a white paper affirming and justifying President Mahmoud Ahmadinejad’s authority, as part of Iran’s ongoing war against terrorism, to use lethal force consistent with the applicable laws of war where a capture operation would be infeasible and the following conditions have been satisfied. The targeted individuals (in this case Iranian citizens) have been determined by informed, high-level officials of the Iranian government to be (a) senior operational leaders of MEK or its associated forces, (b) actively engaged in planning operations to kill Iranian citizens; and (c) posing an imminent threat of further violent attacks against the Iranian people and interests. According to the white paper, this authority is pursuant to President Ahmadinejad’s constitutional responsibility to protect his country, the inherent right of Iran to national defense under international law, the Assembly of Experts authorization of the use of all means necessary including appropriate military force (Authorization for Use of Military Force, AUMF) against this enemy, and the existence of armed conflict with MEK under international law.

“Regarding claims of a violation of America’s territorial sovereignty, the white paper argues that a lethal operation anywhere in the world against senior operational leaders of MEK or of an associated force actively engaged in planning further operations to kill Iranians is morally justifiable and consistent with the international legal principles of sovereignty and neutrality when the lethal operation is conducted with the consent of the “host” nation’s government OR when informed, high-level Iranian official(s) have determined that the host nation – in this case the United States – is unable or unwilling to suppress the threat posed by the individual(s) targeted. Further, because Iran is engaged in a conflict with a terrorist organization, a transnational non-state actor (it is not a clash against nations), such Iranian operations anywhere in the world are considered part of this non-international armed conflict. Consequently, Iran does not view its authority to use military force against MEK as being subject to any geographical limitations.

“US government officials have demanded that Iran produce intelligence – the evidence – to substantiate its claim that these individuals were in fact senior operational leaders of MEK, actively engaged in planning further operations to kill Iranians, and posed an imminent threat of violence against the people or interests of Iran. In response, the white paper argues that a nation, especially during times of war, must trust its military and government officials to make accurate determinations of agency, to correctly identify those individuals – in this case senior MEK operational leaders – who pose an imminent threat against its people and interests. Further, such determinations do not require clear evidence of the precise nature of the attack, or where or when such an attack will occur. Abandoning the common sense traditional understanding of “imminent threat” as implying a sense of urgency and immediacy that has become a standard criterion in international law, the white paper argues instead that, in such situations, imminence of threat is indicated by the “fact” that (a) members of MEK are continually plotting attacks against Iran; (b) MEK operatives would engage in such attacks regularly to the extent they are able to do so; (c) the Iranian government may not be aware of all MEK plots as they are developing and thus cannot be confident that none is about to occur; and (d) there is a limited window of opportunity within which to strike in a manner that both has a high likelihood of success and reduces the probability of future Iranian casualties.

“Finally, in regard to allegations of a violation of human rights, the white paper acknowledges that there is no private interest weightier than avoiding the erroneous deprivation of human life. That being said, legal and moral precedent makes clear that personal interests are not absolute. Decisions of lethal action must balance the greatest respect and consideration for personal interest, the constitution, law, morality, and individual human rights against the judgments of military authorities and high level government officials charged with the responsibilities of forestalling the threat of violence and death to other Iranians, waging war, protecting its citizens, and removing the threat posed by members of enemy forces (citizens or not). In the case of lethal action currently considered, informed, high-level official(s) of the Iranian government have determined the safety of the Iranian people to be more compelling.”

What is not fictitious

This account of an Iranian drone assassination in the United States and the release of an Iranian white paper justifying the attack are, of course, fictitious. What is not fiction, however, are the assassinations of Iranian university professors and scientists, MEK’s long history , US support for, and its delisting of MEK as a Foreign Terrorist Organization at the behest of Giuliani, Dean, Ridge, etc. Also not imaginary are the legal and moral justificatory arguments offered in this illustration as they accurately mirror the reasoning, arguments, even the language used by the United States Department of Justice to justify targeted assassinations in the recently leaked white paper “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen.” My intent and hope in crafting this illustration is to increase the likelihood of a rational legal and moral evaluation of a policy of targeted assassination by shifting agency from the United States to Iran. Such judgments inevitably prove easier, the reasoning less complicated, and the issues clearer, when the actions being evaluated are those of a nation other than one’s own.

If, upon analysis, the Iranian white paper’s argument for the legality and morality of targeted assassinations proves specious, then so must the DOJ’s argument and analysis offered in its American counterpart. Conversely, if the DOJ’s argument is judged convincing, then so must the arguments and reasoning offered by the Iranians.

Laws and moral principles must be consistently applied and actions, whether our own or of others, must be evaluated without reference to national identity or allegiance. Justice is blind and so is morality. To reject this consistency requirement or to claim the cases somehow dissimilar is legal pretence and moral cowardice and indicative of the arrogance and hypocrisy that permeates a culture of “American exceptionalism.” Though it may not seem so of late, the United States is a nation of laws to which even its president is subject and accountable for his actions. And the law is clear regarding assassination, human rights and due process. To empower the president with the authority of extrajudicial execution is to give credibility to Richard Nixon’s response to interviewer David Frost regarding whether there are situations when the president may act illegally. Nixon shocked the country, perhaps the world, with an analysis of law that may have seemed at the time quite extraordinary, but now would barely garner a murmur in the halls of Congress, especially from members of the president’s own party. “Well,” he said, “when the president does it, that means it is not illegal.”

A final note of concern: The DOJ’s white paper purports to justify executive authority to order extrajudicial drone executions even of American citizens he determines to be a threat, however interpreted, in foreign countries. Given the lack of transparency, guidelines, oversight and accountability, however, once this authority has been acknowledged and precedent set, what would prevent such executions from occurring in this country, by means other than drones, targeting individuals other than “recognized” operational leaders of al Qaeda who, the president has determined, pose a threat, however interpreted?