Death by drone: Obama's elastic legalities
President Obama's death-by-drone strategy is a political winner. Most Democrats are fine with it because Obama is one of them, and most Republicans have been loathe to criticize it because there's no percentage in assailing him for being too tough on terrorism. But based on what little we know - and on what we've just learned - the policy of killing via remote control is quite worrisome. Especially when American citizens are targeted.
Last autumn, in rare remarks about the drones, Obama said that the goal is to target suspected bad guys who pose "an imminent threat to the United States" - echoing counter-terrorism adviser (and current CIA director nominee) John Brennan, who told the press last May that one key criteria for launching a drone was "the imminence of the threat."
But according to a 16-page Justice Department document, leaked early this week to NBC News, the government's definition of "imminent threat" is very elastic. Turns out, an American citizen can be targeted for a drone hit if or when he's strongly suspected of having ties to terrorists. For that reason alone, according to document, the Obama administration believes it has sufficient legal basis to act as judge, jury, and executioner.
This document (officially a "white paper," entitled "Lawfulness of a Lethal Operation Directed Against a U.S. Citizen who is a Senior Operational Leader of al Qaeda or An Associated Force") basically summarizes the government's rationale, as detailed in confidential legal memos authored by Obama's lawyers. Those legal memos remain secret - the Obama team has refused to release them - so for those of us who believe in transparency, the leaked white paper is the next best thing.
The white paper says that "a lethal operation conducted againsr a U.S. citizen whose conduct poses an imminent threat of violent attack against the United States would be a legitimate act of national self-defense." But here's the key loophole, which is wide enough for a fleet of Humvees: "The condition that an operational leader present an 'imminent threat' of violent attack against the United States does not require the United States to have clear evidence that specific attack on U.S. persons and interests will take place in the immediate future."
In other words, says the white paper, Obama has adopted a "broader concept of imminence."
If an American citizen has been "recently" affiliated with bad guys, and has engaged in threatened violent "activities," that's deemed to be sufficient reason to kill the American via drone. The paper doesn't bother to define "recently" (an affiliation two weeks ago? two months ago? two years ago?), nor does it define how serious those "activities" need to be.
No judicial oversight
And even though the U.S. Constitution's Fifth Amendment states that "no person shall be...deprived of life...without due process," the Justice Department document says that the Obama team should be free to pursue its drone strategy without any judicial branch oversight. As the paper put it, judges should not attempt "to supervise inherently predictive judgments by the president and his national security advisers."
Apparently, the Obama team used an elastic definition of "imminent threat" to justify the 2011 drone strike in Yemen that killed two American citizens, Anwar al-Awlaki and Samir Khan, both of whom allegedly had ties to al Qaeda. Neither had ever been indicted by the U.S. government , or charged with any crimes. Nor had 16-year-old Abdulrahmen al-Alwaki, son of Anwar, who was killed in a drone strike two weeks later.
Did these American citizens deserve to die? Were they planning an imminent attack (as we traditionally understand the term), or was it imminence as far more broadly defined (as Attorney General Eric Holder contended in a speech last March, "The Constitution does not require the president to delay action until some theoretical end-stage of planning"). We'll probably never know, and that's what seems most worrisome. If the Obama team has unfettered power to make "inherently predictive judgments" about American citizens, where are the constitutional checks and balances?
Some of these issues may surface on Thursday, when CIA director nominee Brennan gets his Senate confirmation hearing. He was a key player in developing the drone strategy. Several members of the presiding Intelligence Committee wrote to Obama yesterday, asking him to release the legal opinions. Yes, they said, the president has the authority to use lethal force in certain circumstances. However, "it is vitally important...for Congress and the American public to have a full understanding of how the executive branch interprets the limits and boundaries of this authority, so that Congress and the public can decide whether this authority has been properly defined, and whether the president’s power to deliberately kill American citizens is subject to appropriate limitations and safeguards."
Eight Senate Democrats signed that letter, and some civil libertarians have long echoed the letter's concerns. This is encouraging, because all presidents regardless of party need to be held accountable. Yet most grassroots Obama supporters remain mute on this issue. Here's what I would say to them:
If George W. Bush was whacking American citizens on the basis of secret legal memos, and reserving for himself the right to whack more, with no judicial oversight, Senate liberals would be conducting hearings and any Democrat with vocal chords would be stampeding to MSNBC.
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