In a secret 16-page “white paper” leaked to NBC, Justice Department lawyers have laid out an argument attempting to justify the president’s decision to launch drone attacks even against overseas terrorist leaders who are U.S. citizens.
According to authors of that memo, that presidential authority is derived from “his constitutional responsibility to protect the country, the inherent right of the United States to national self-defense under international law, Congress’s authorization of the use of all necessary and appropriate military force against this enemy, and the existence of an armed conflict with al-Qaida under international law.”
The document also explains the standards implemented by the current administration in using that authority. It concludes that such strikes are legal when:
– The targeted individual is “a senior operational leader of al Qaida or an associated force of al Qaida — that is, an al Qaida leader actively engaged in planning operations to kill Americans.”
– “… an informed, high-level official of the US government has determined that the targeted individual poses an imminent threat of violent attack against the U.S.”
– The capture of the individual located in a foreign country is deemed “infeasible.”
It’s important to point out that this is not a theoretical exercise. President Obama has used this life-and-death authority to order a successful drone strike against Anwar al-Alwaki, a U.S. citizen who became a top regional leader for Al Qaida in Yemen, where arresting him was impossible.
Among other plots, Al-Awlaki helped plan the attempted airliner bombing on Christmas Day in 2009, as well as two attempted cargo-plane bombings using plastic explosives. As a recruiter for al Qaida, he also encouraged the attack by Major Nidal Hasan that killed 13 U.S. soldiers at Fort Hood, Texas.
In the video below, Al-Awlaki makes his loyalties and his intentions quite clear:
“We have chosen the path of war in order to defend ourselves against your oppression,” he says, in one of many damning statements. “God willing, we will continue in this war and you will find us persistent.”
In his particular case, God was not willing. Al-Alwaki died in a drone attack in Yemen on Sept. 30, 2011.
Personally, I have no problem whatsoever with launching such an attack. His citizenship does not outweigh the threat that he clearly posed to the security of this country. Others, however, have expressed deep concern about what they see as a violation of al-Alwaki’s right to legal due process, and about an unconstitutional, even radical expansion of executive powers.
You will sometimes run across a half-hearted version of that critique coming from conservatives, but it is hard to take such complaints seriously. If you doubt that conclusion, imagine what conservative critics would be saying if the Obama administration had announced that it would NOT target known al Qaida leaders out of deference to due process concerns.
The howling would be epic.
On the other hand, those liberals who take issue with the policy tend to be sincere and serious about it, to the point of near-hysteria.
In Salon, for example, columnist David Sirota claims that in the leaked white paper, the White House has asserted the radical power to kill citizens “without any concrete intelligence suggesting a citizen is linked to terrorist activity” (emphasis original). It is a claim that he repeats throughout the column, asserting that “evidence is not required to kill someone,” that “the president doesn’t actually need evidence to order someone’s death” and that “not a single shred of actual evidence is needed not just to prosecute (the target), but to outright execute him.”
Here’s the section of the memo on which Sirota bases that charge:
“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. Given the nature of, for example, the terrorist attacks on September 11, in which civilian airliners were hijacked to strike the World Trade Center and the Pentagon, this definition of imminence, which would require the United States to refrain from action until preparations for an attack are concluded, would not allow the United States sufficient time to defend itself.”
The memo states that the president doesn’t need evidence of a particular, specific plot being hatched in the immediate future in order to take action against an al Qaida leader. That’s a far cry from “not a single shred of actual evidence is needed.”
And again, the case of al-Alwaki offers a useful example. Given what we already knew about his actions, and given his own public testimony, we did not need evidence of a specific new plot in the immediate future to justify taking action against him. We knew more than enough already.
Glenn Greenwald, writing in The Guardian, takes a tack similar to Sirota, accusing the administration of obviating a citizen’s constitutional right to due process before his life can be taken by his government.
Like Sirota, he writes:
“Specifically, the president’s assassination power ‘does not require that the US have clear evidence that a specific attack . . . will take place in the immediate future’. The US routinely assassinates its targets not when they are engaged in or plotting attacks but when they are at home, with family members, riding in a car, at work, at funerals, rescuing other drone victims, etc. ”
I’m not sure what that last sentence is intended to communicate. Are bank robbers only to be arrested in the actual act of robbing the bank?
That aside, here’s the most basic problem with the criticisms raised by Sirota, Greenwald and others: What is the cure?
If you do not want “an informed, high-level official of the US government,” i.e., the president and commander in chief, to determine whether a “targeted individual poses an imminent threat of violent attack against the U.S.,” to whom would you give that authority?
By casting it as a question of due process, you necessarily invest that full power in the judiciary. You would require a judge or panel of judges to decide from the bench whether it is operationally plausible to capture rather than kill this particular terrorist in this particular country. A judge or judges would have to balance a citizen’s right to due process against the threat of an attack imminent enough to justify military intervention.
No judge is capable of such a decision. On what legal basis could such judgments be based? The answer is none. No reasonable judge would want the power or responsibility to make such national security judgments.
This is not wiretapping, a field in which judges have years of legal training, decades of experience and centuries of constitutional precedent to fall back upon. This cuts to the core of the commander in chief’s duty, and I do not believe for one second that the Founding Fathers envisioned giving judges the power to make such decisions. Giving judges that kind of power and responsibility would make a joke of the separation of powers and seriously damage the security of this country.
– Jay Bookman