Grand birds eye view of the Great East River Suspension Bridge. “Connecting the cities of New York & Brooklyn showing also the splendid panorama of the bay and part of New York.” Currier & Ives.
Where to start with the current wave of controversy over when, who and where the President ( current or in the future) can use drone strikes to kill enemy combatants, including Americans suspected of being enemy combatants. This somewhat breathless report from Michael Isikoff lays out most of the details, Justice Department memo reveals legal case for drone strikes on Americans
A confidential Justice Department memo concludes that the U.S. government can order the killing of American citizens if they are believed to be “senior operational leaders” of al-Qaida or “an associated force” — even if there is no intelligence indicating they are engaged in an active plot to attack the U.S.
The 16-page memo, a copy of which was obtained by NBC News, provides new details about the legal reasoning behind one of the Obama administration’s most secretive and controversial polices: its dramatically increased use of drone strikes against al-Qaida suspects abroad, including those aimed at American citizens, such as the September 2011 strike in Yemen that killed alleged al-Qaida operatives Anwar al-Awlaki and Samir Khan. Both were U.S. citizens who had never been indicted by the U.S. government nor charged with any crimes.
The memo is news, but the issue has been the same since 2009. While I generally side with Glenn Greenwald and the ACLU on civil liberty issues, I thought they jumped the shark on Anwar al-Awlaki and Samir Khan. That is not to say they do not bring up some important legal/constitutional issues – which Scott Lemieux gets into, License to Kill..
Much of the coverage of the memo, including Isikoff’s story, focuses on the justifications offered by the Obama administration for killing American citizens, including Anwar al-Awlaki and Samir Khan (two alleged Al Qaeda operatives killed by a 2011 airstrike in Yemen.) In some respects, this focus is misplaced. If military action is truly justified, then it can be exercised against American citizens (an American fighting for the Nazis on the battlefield would not have been entitled to due process.) Conversely, if military action is not justified, extrajudicial killings of non-Americans should hardly be less disturbing than the extrajudicial killing of an American citizen. The crucial question is whether the safeguards that determine when military action is justified are adequate.
If some Americans fought on the side of the Nazis during WW II ( it does seem there were a few and they were killed) they would have been considered fair targets. There was a German American Bund, but they were more domestic thugs than enemy combatants. We do know that many of the French were allies (Free French), but the Vichy Regime sided with the Nazis so they were fair game in enemy combat. Though at the time the only equivalent to using drones would have been carpet bombing, which was much more indiscriminate in killing civilians than the current use of drones. And certainly the use of atomic weapons against the Imperialist Japanese was far less discriminant than drones. So the use of such tactics has been well established for use against declared enemies. al-Qaida suspects abroad would fall under that heading. Kevin Drum at Motherjones, who is certainly not known as a war monger, read the Prospect piece and wrote,
The more I’ve thought about this, the more I’ve come to agree with this position: If we’re at war, and if targeted killings of enemy combatants are legal, then U.S. citizenship is irrelevant. If you’ve joined up with enemy forces, you’re fair game. Conversely, if the justification in the memo is inadequate, that means the justification for targeted killings in general is inadequate. Either the entire program is justified, or none of it is.
But….even if this makes sense, I’m not sure it feels right. Comments?
Call this a bridge if you will. What the executive branch is doing is probably legal in light of past precedents. That said many of us would like the legal boundaries to be less vague. I’ll refer to the lawyers at Balkinization, Legal Justification for Drone Attacks on Citizens
The White Paper says that a citizen is eligible for death-by-drone when “an informed, high-level, official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States.” In my opinion, this threshold is too low. First, who counts as a high-level official? The CIA Director? The Ambassador to Pakistan? An analyst at Langley? This is not clear at all. Second, suppose that the majority view in the intelligence community is that someone does not pose an imminent threat. The standard for death, I gather, is met so long as ONE informed, high-level person thinks that a suspect poses an imminent threat. I submit that the President can always find one “senior-enough” person in his Administration with that view, so in reality the DOJ standard just gives the White House carte blanche.
Personally, I would prefer that Congress create a statutory regime for such decisions that would require the National Security Council to sign off on each of these citizen attacks before the President can proceed. But until then, the President is, I think, acting within his constitutional authority to conduct such attacks.
As though he read my mind. Until Congress spells out some hard and fast rules, certainly including who can give the green light to killing an American, the president seems to be acting within his legal boundaries. It please me to no end to see Congress act as soon as possible. Though that is unlikely to happen. Because recent history tells us that if conservative presidents are comfortable with torture and finding flimsy legal reasoning to break torture statues, there is no reason to believe that Republicans would not now be supporting a McCain or Romney ordering drone strikes and accusing anyone who even mildly disagreed as being a traitor. So Republicans might see some political gain now in using drone strikes as a gudgeon, but it all rings like typically hollow posturing from the Right.