Complaints about the government's policy of killing suspected terrorists has been rumbling along mostly out of public view for years, but Monday's leak of a constitutionally rickety administrative memo detailing justification for killing Americans abroad has added kindling to the objections. So much so that the American Civil Liberties Union and Center for Constitutional Rights filed a lawsuit in the matter Tuesday night.
The drone war, the use of pilot-less aircraft controlled by joystick via satellite from thousands of miles away to search out and kill suspected terrorists, did not begin with the Obama administration. But it has been expanded in the past four years. This has meant that "collateral damage"—the rancid euphemism for civilian deaths caused by military action—has also grown. Actual figures of such deaths are hard to come by because the government has chosen not to keep count. Some critics have put the ratio of civilian bystanders to targeted individuals at 10-1. But there is just no way to know.
So far, drone attacks have been confined to Afghanistan, Pakistan, Yemen and Somalia. But there are hints that these might be expanded to take in al Qaeda-affiliates in Saharan North Africa from bases in Niger.
The leaked "white paper" memo, which members of two congressional committees received in secret last June, raises three big concerns. It redefines an "imminent" attack in such a way as to make the term meaningless. It states that judicial review is out of the question—impractical and unnecessary. And it implies that the president's inherent powers under Article II of the U.S. Constitution give him pretty much carte blanche in ordering targeted killings against Americans outside the country suspected of being high-level Al Qaeda operatives. The government killed three U.S. citizens in two attacks in Yemen in 2011.
While the leaked memo is mostly devoted to arguing that the president has targeted killing powers under the September 2001 congressional authorization to use military force (AUMF) against terrorists, it's not clear whether the administration is also claiming the president—any president—has assassination powers under Article II. If that is the claim, then Congress could not stop the executive branch from killing U.S. citizens unless it rewrote the Constitution. Repealing the AUMF would not be enough.
Democratic Sen Ron Wyden of Oregon is one of a double-handful of senators who have repeatedly challenged the administration's failure to make its legal position on targeted killings clear. He is a member of the Senate Select Committee on Intelligence that will be hearing Brennan's confirmation testimony. Continue reading about criticism of the administration's targeted killing policy and its legal justification below the fold.
Wheeler-Sack Army Air Field.
[I]t is vitally important for Congress and the American public to have a full understanding of how the executive branch interprets this authority, so that Congress and the public can decide whether the President’s power to deliberately kill American citizens is subject to appropriate limitations and safeguards. Every American has the right to know when their government believes that it is allowed to kill them.The senator added that he will continue to raise questions about targeted killings and pointedly noted that he had not yet received a reply from Brennan to a letter on the subject he sent three weeks ago.
The Justice Department memo that was made public yesterday touches on a number of important issues, but it leaves many of the most important questions about the President’s lethal authorities unanswered. Questions like "how much evidence does the President need to decide that a particular American is part of a terrorist group?," "does the President have to provide individual Americans with the opportunity to surrender?" and "can the President order intelligence agencies or the military to kill an American who is inside the United States?" need to be asked and answered in a way that is consistent with American laws and American values. This memo does not answer these questions.
Meanwhile, the ACLU and CCR have sued. Noa Yachot, the ACLU's communications strategist, writes:
Our lawsuit charges that U.S. citizens Anwar Al-Aulaqi, Samir Khan, and 16-year-old Abdulrahman Al-Aulaqi were killed in violation of the Constitution's fundamental guarantee against the deprivation of life without due process of law. In December, the government filed a motion to dismiss the case, arguing, in essence, that the courts should not be involved in determining the lawfulness of the targeted killing of U.S. citizens. [...]At the Danger Room, Spencer Ackerman cites University of Notre Dame professor Mary Ellen O’Connell, who said:
The targeted killing program is conducted in near-total secrecy. In our lawsuit, the defendants argue, in essence, that the government can kill citizens without presenting evidence to any court before or after a killing is carried out and without even acknowledging to any court that their claimed authority to kill has been exercised.
The Justice Department’s legal arguments purportedly defending targeted killing fundamentally misconceive the nature of self-defense. It is a right to use military force against a state that has or is about to launch a major military attack on the United States. The 9/11 attacks led to a war of self-defense in Afghanistan. That had all the hallmarks of legality. Contrast that use of force with the CIA firing of missiles from drones at a single individual and innocent bystanders in Yemen. You do not need to be an expert in international law to understand the enormous violation of law involved and the egregious conduct involved in attempting to exploit lack of knowledge of the law to achieve political cover for targeted killing.Critics seeking to end or even just curtail the drone war clearly face an uphill battle. Few in Congress have been willing to challenge the administration. Some Republicans who are doing so have a partisan as opposed to constitutional ax to grind. Constitutional scholars are divided over the legal issues involved. And grassroots Democrats are also divided. Many supporters say the administration's policy is measured, not breaking any new legal ground and better than invading or carpet-bombing the areas where the suspected terrorist targets are located.
There's little doubt the drone war as it is currently being carried out would be getting far more opposition if a Republican president were running it, and the legal and tactical precedents being set now by the Obama administration could very well make it easier for future presidents of either party to expand it. That's particularly frightening and infuriating in a world where the "global war on terror" appears to be a permanent feature of our existence.