NBC investigative reporter Michael Isikoff got another major scoop last night. He posted online a secret Justice Department memo summarizing legal opinion given the White House for carrying out drone strikes against U.S. citizens abroad, leading to their immediate death without arrest, interrogation, or concerns for their constitutional rights. The 16-page memo, which you can read yourself in its entirety, says that a drone attack can take place if any “informed, high-level official” determines that a targeted individual “poses an imminent threat of violent attack against the United States,” if capture is not feasible, and when the operation can take place “in a manner consistent with applicable law of war principles.”
I have no objection to the use of drones if necessary, but one must consider the following problems concerning their use. There is always going to be major “collateral” damage, as when the al-Qaeda leader Anwar al-Awlaki was killed — the drone also caused the death of another American who was a propagandist for al-Qaeda. In another strike, Awlaki’s 16-year-old son was killed. When asked about that at a press conference, then-White House press secretary Robert Gibbs answered: “He should have had a more responsible father.” Both were U.S. citizens abroad. Even the old Russian anarchists, ready to kill members of the czar’s entourage with a roadside bomb, stopped in their tracks when they saw that the monarch’s carriage carried not only the ruler, but his young nephews.
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.”
The legal brief, he explains, 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 memo states:
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.
To order a strike, the anonymous high-level official — in other words, not necessarily the president — could order a drone strike if there is no concrete evidence that the target has “renounced” or “abandoned” a commitment to terrorism as a tactic. It is not necessary, evidently, to have any evidence that any such activity is being planned or is in the process of being implemented. When Israel uses assassination by drones or missiles to strike at its targets, which always elicits worldwide protests, the Jewish state does so in retaliation for actual acts of terror ordered by its targets. Even then, as depicted in Steven Spielberg’s film Munich, the agents who took part in assassination are shown as recalcitrant and morally compromised for their actions, and the Israeli Mossad is portrayed as an entity that does not take into consideration morality and justice when it carries out such hits.
Pause for a moment and ask what the liberal community and the political Left would be saying if such a memo had been released during the administration of George W. Bush and Dick Cheney.
There would have been consistent cries of condemnation for justification of murder, for violation of the civil liberties of American citizens, for the use of dark tactics that harm the image and strength of the United States as a country committed to justice, etc. etc. etc. Remember the cries of horror when counsel John Yoo’s memo on the use of “enhanced interrogation techniques” was released to the press? Yoo was roundly condemned as being a hired gun ready to violate the Constitution in order to provide the White House justification for such violations of our legal code and the administration’s willingness to supposedly go beyond ethical conduct that clearly violated the laws of just war.
Compared to enhanced interrogation, which many regard as torture but which did not lead to death, the drones actually kill people, including innocents in the area near the targeted individual. The newly released memo also goes beyond the criteria cited by Eric Holder in his public statements. “For example,” Isikoff points out, “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.”
One may not like the ACLU, but at least it is consistent. Its spokesman has called it a “chilling document.” Jameel Jaffer, its deputy legal director, told Isikoff that “it argues that the government has the right to carry out the extrajudicial killing of an American citizen,” using criteria that are “elastic and vaguely defined,” and which he thinks can be easily manipulated.
Where is the Center for American Progress, the Brookings Institution, the left-wing Institute for Policy Studies, as well as the rest of the mainstream media that was calling for the scalps of Bush and Cheney every time they learned of would-be horrors occurring at Gitmo, or the use of torture, or the practice of rendition?
Up to this moment, I have not heard these usual sources giving Barack Obama the same cries of outrage when the drone attacks are more than likely a constitutional violation, giving the administration extensive powers that very well might exceed those any chief executive of our country should have (especially when delegated to anonymous “high-level” officials). As the Washington Post reported, a bi-partisan group of senators has already asked the administration for “access to secret legal memos outlining the administration’s case for the targeted killing of U.S. citizens in counterterrorism operations overseas. The letter from eight Democrats and three Republicans contained the most forceful warning to date that lawmakers were considering blocking Obama’s nominees to run the CIA and Pentagon unless the memos are turned over.”
Coming just a few days before Brennan is scheduled to appear before the Senate IntelligenceCommittee, this demand along with the leaked Justice Department summary report of the legal memos that are still classified put great pressure on Brennan, who is largely considered to be the major advocate of and architect of increased use of drones by the administration. Senator Ron Wyden, a Democrat from Oregon, told the paper that “the idea that the president has this extraordinary power that can be utilized in secret without any oversight or accountability, I think is wrong and detrimental to the public interest.” In addition to Wyden, the letter was signed by Senator Charles E. Grassley of Iowa, the ranking Republican on the intelligence committee. In an age in which bi-partisanship is rare, this unity from both sides of the aisle puts great pressure on the White House, as well as on Brennan.
Today, the Post reported as well that the administration has fought hard to “keep [these memos] hidden from the public.” No wonder. I, and most Americans, have nothing but disdain and disgust for our fellow citizens who have become traitors to the country in which they were born, and work day and night to bring it to harm and kill as many of us as possible. But the great strength of our republic is that our Constitution affords us basic rights, including the right to a trial by our peers, and the right of legal counsel to present a strong defense of our actions. We are not talking about the likes of Osama bin Laden and other Islamist radicals who are not American, and who are hence not subject to the protection afforded our own citizens.
We may despise what they do, but we must realize that to allow for the violation of their rights harms not just the targeted individual but the rights of all of us. Once we make an exception to the liberties granted all U.S. citizens, a future White House can broaden the definition even further to limit more rights in the interest of national security. Moreover, although it is obviously more difficult to capture the individual U.S. citizen operating abroad who is part of a terror network, killing him by use of a drone means that he is no longer available as a source for more information, much of which could be extremely vital for gathering the kind of intelligence that would stop any future planned operation. Of course, it also means that the administration will not have to use the enhanced interrogation techniques that President Obama opposes, and which some might argue could be necessary to get the captured individual to cooperate. By killing the target instead, they have eliminated having ever to make such a judgment call.
Clearly, the memo shows a few different things. First, Barack Obama’s many campaign promises before the 2008 election were put by the wayside once he realized that the kind of actions he swore to stop were necessary in carrying out the war against terror, even though many of the measures had been implemented by the Bush administration. Second, the administration which came into power pledging to be the most transparent in our history has turned out to be no more willing to let its secrets be known by the American public than any before it. Third, Barack Obama has extended the powers of the executive and what used to be called “the imperial presidency” by liberals more than any other previous commander-in-chief, but this time his lofty rhetoric has succeeded in quieting liberal critics of past administrations, because they want him to succeed, and hence he has a green light to move forward untrammeled.
The president had a problem with Chuck Hagel after his disastrous testimony before a Senate committee. Although Hagel most likely will squeak through, albeit embarrassed and compromised, will John Brennan now face the kind of questions he cannot answer, and possibly be stopped from ascending to the post of CIA chief, which seemed to most observers at first to be a done deal? We will learn the answer soon.
Update: 11:15 a.m. EST, Feb.6, 2013
Some readers are upset to find, at a conservative website, a critique of the Obama administration’s legal reasons advanced in the cited memo for using drone attacks. They fear that it means one writer, myself, is soft on terrorism. I admonish readers to consider that this is a complicated issue, and by now, others have weighed in.
First, here is what Jim Geragthy writes in his “Morning Jolt” e-mail sent to National Review readers:
Let me throw you a curveball by quoting Adam Serwer of Mother Jones, reacting to the administration’s release of its legal justification to kill Americans believed to be involved with terror without a trial, by drone:
The Obama administration claims that the secret judgment of a single “well-informed high level administration official” meets the demands of due process and is sufficient justification to kill an American citizen suspected of working with terrorists. That procedure is entirely secret. Thus it’s impossible to know which rules the administration has established to protect due process and to determine how closely those rules are followed. The government needs the approval of a judge to detain a suspected terrorist. To kill one, it need only give itself permission.
Of course, the hypocrisy of most liberals doesn’t get us off the hook on the need to have a coherent view on this. Okay, conservatives, big question now: If this were President Romney, would we be shrugging, concerned, complaining or screaming? I think “concerned.” At the very least, you would want another set of eyes – the House or Senate intelligence committees, or some independent judges – taking a look at the presidential “kill list,” right? At least for the American citizens?
Our Charles C.W. Cooke: “In case my position isn’t obvious: I am appalled by any president possessing the unilateral power to kill American citizens extrajudicially.”
Senator Ron Wyden, Oregon Democrat, puts it rather bluntly: “Every American has the right to know when their government believes that it is allowed to kill them.”
That doesn’t seem like too much to ask.
Second, a major debate takes place at TNR. Read the two entries by its legal editor, Jeffrey Rosen, and the rebuttal by Jack Goldsmith, who served in the White House as a counsel during the Bush administration, but who resigned and who had differences with the opinions of other advisors. I find it interesting that TNR, the new very liberal TNR, has to go to someone who served in the hated Bush administration for a defense of the Obama administration’s legal arguments for use of drones.
I report, you decide. I think that Rosen has the best argument. You may disagree. But again, let’s avoid ad hominem remarks, and seriously look at the issues.
More from Scott Ott:
American Citizens Fair Game Under Obama Doctrine