I do not shed a tear for the deceased terrorist and American citizen, Anwar Al Awlaki, but his case certainly raises some very interesting and controversial issues. Does the President have the right to execute an American citizen without due process? Well, if the President is George W. Bush the answer is, “hell no!” But what about Barack Obama?
The secrecy surrounding such strikes is fast emerging as a central issue in this week’s hearing of White House counterterrorism adviser John Brennan, a key architect of the drone campaign, to be CIA director. Brennan was the first administration official to publicly acknowledge drone strikes in a speech last year, calling them “consistent with the inherent right of self-defense.” In a separate talk at the Northwestern University Law School in March, Attorney General Eric Holder specifically endorsed the constitutionality of targeted killings of Americans, saying they could be justified if government officials determine the target poses “an imminent threat of violent attack.”
But the confidential Justice Department “white paper” introduces a more expansive definition of self-defense or imminent attack than described by Brennan or Holder in their public speeches. It refers, for example, to what it calls a “broader concept of imminence” than actual intelligence about any ongoing plot against the U.S. homeland.
“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 a specific attack on U.S. persons and interests will take place in the immediate future,” the memo states.
Instead, it says, an “informed, high-level” official of the U.S. government may determine that the targeted American has been “recently” involved in “activities” posing a threat of a violent attack and “there is no evidence suggesting that he has renounced or abandoned such activities.” The memo does not define “recently” or “activities.”
As in Holder’s speech, the confidential memo lays out a three-part test that would make targeted killings of American lawful: In addition to the suspect being an imminent threat, capture of the target must be “infeasible, and the strike must be conducted according to “law of war principles.” But the memo elaborates on some of these factors in ways that go beyond what the attorney general said publicly. For example, it states that U.S. officials may consider whether an attempted capture of a suspect would pose an “undue risk” to U.S. personnel involved in such an operation. If so, U.S. officials could determine that the capture operation of the targeted American would not be feasible, making it lawful for the U.S. government to order a killing instead, the memo concludes.
The undated memo is entitled “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen who is a Senior Operational Leader of Al Qa’ida or An Associated Force.” It was provided to members of the Senate Intelligence and Judiciary committees in June by administration officials on the condition that it be kept confidential and not discussed publicly.
I understand why Obama, with John Brennan’s strong cheerleading, green lit the hit on Awlaki. Awlaki had declared war on the United States, was recruiting people to carry out attacks on us and was implicated directly in a failed attack to bomb a U.S. airliner. I love the hypocrisy of some. Democrats who condemned Bush over waterboarding are silent on this abuse of Presidential power. Not all, though. To their credit, the ACLU is condemning Obama. Appropriately so.
I suppose we must acknowledge that Abraham Lincoln was the worst offender when it came to authorizing the killing of American citizens without recourse to due process. Just stating that it ain’t the first time this issue has come up.
So, what do we do? Do we give the President power over life and death without the possibility of judicial review? What say you?