The DOJ white paper, obtained by NBC's Michael Isikoff last night, confirmed some of our worst fears about the targeted drone strike system. First, that it indeed allowed for the killing of American citizens (as previously reported here and here), but second, and more scarily so, that the rationale for doing so is broad. It uses a definition of "imminent" that no dictionary would recognize, and that the due process rights of a citizen do not preclude them from being attacked. Yet the left has been surprisingly quiet and/or supportive of this policy, something that would be inconceivable if this took place under George W. Bush's administration. That bothers me, and I'm going to explain why.
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I'm not a lawyer. My major was polisci and history, and I took two prelaw courses, including one on constitutional law. That is the extent of my legal knowledge. But I can still see that the administration's citations in this white paper are dubious at best. First of all, citing the Nixon administration's defense of its actions in Cambodia as part of your justification for your actions in ANY nation in which terrorists are acting from or believed to be acting from is politically stupid and morally defunct.
Furthermore, the citing of Hamdi is rather interesting. The Bush administration LOST that case. Yet the Obama administration is relying on it as a tentpole of this policy, because the court acknowledged certain rules about combat, such as the inability in most situations to subdue an adversary versus killing them. However, in Hamdi's case, he was subdued and imprisoned, and his case came about because A: he was challenging his detention and seeking habeas corpus rights, and B: because he was alive to even file a case!
The policy that the Obama administration has switched to is one of proactive killing, a decision to eliminate people before they have the chance to do harm to Americans. It sounds like a great idea, until you realize that Americans themselves can get caught up in it, or that someone could be mistaken for another person, or that a 16-year-old boy searching for his father is killed because they suspect he's in collusion with his terrorist-supporting father (that support being more of a spiritual than material sense, as Anwar al-Awlaki helped goad Nidal Hasan into his massacre at Fort Hood). And by suspect, I mean lines like this...
I would suggest that you should have a far more responsible father if they are truly concerned about the well being of their children. I don't think becoming an al Qaeda jihadist terrorist is the best way to go about doing your business.Now, if Abdulrahman al-Awlaki had been killed alongside his father, one could argue it was unfortunate collateral damage. But that isn't the case. An American citizen, 16-years-old, in search of his father (who's already dead at this point), was separately targeted and killed two weeks later. What justification could be given, other than his father was a terrorist, so by association, he's a terrorist too? If that's the case, how come we didn't kill bin Laden's brother at the Carlyle meeting on 9/11?
--Robert Gibbs, October 2012
Moving along, the definition of an American as an enemy combatant that is allowed to be killed by the rules of warfare is strained here. If you preemptively kill someone when they have yet to engage in an act of warfare, can you legitimately claim they are at war with you? Or are they simply in political disagreement with you? Isn't an enemy combatant someone who is fighting you physically, not with words? And what do you consider to be a "senior Al-Qaida or affiliated forces leader?" Is it someone who's senior on a state level, say in Al-Qaida in Yemen, or part of the worldwide leadership? Is it the commander of the small group inside a village in Pakistan? His/her deputy? What is "senior?"
The fact is, because the government leaves so many of these definitions vague, because it continues to shroud the whole process in secrecy, because it doesn't say who puts the lists together or how good the intelligence is, because it says that its decision to kill certain Americans cannot be challenged in a court of law because no court has the proper jurisdiction or authority to judge a "foreign policy decision," because it says Congress has no oversight authority on this, we are relying on the word of ONE elected official, the President, and his unelected cadre of advisers.
Well, you might say, Barack Obama is a sober man, a reasonable man, who isn't given to rash decisions and who would never abuse his power. Fine. But who is to say that his successor wouldn't be rash? Eric Cantor? Rick Santorum? Marco Rubio? Paul Ryan? Would you trust THEM with this power? If the answer is no, then you cannot support this policy, because it is NOT something that leaves with Barack Obama. It becomes inherent in the office of the President. It becomes an Executive Branch power, and that means any successor can use it as they like, or modify it in even more draconian ways, for when you say it's okay to kill an American citizen before they've committed a crime, you've opened the door for greater violations of our due process rights.
The War on Terror™ has done some awful, insidious damage to our republic. It has inured us to the slow militarization of our everyday lives. It has turned SWAT teams into small military units, replete with tanks. It has brought us perpetual war in which we can't say when we're leaving, because it'll embolden the enemy. It has led our nation to torture, to preemptively wage war, to launch faceless robots and kill by remote control. It has let us develop all sorts of twisted legal rationales to support this behavior, and now it has led us to this: the idea that if the proper "high-ranking government official (left conveniently undefined)" says you are a senior member of Al-Qaida or an affiliated force (again, left conveniently undefined), it does not matter if you are an American citizen, nor does it matter if you have not committed any actual crime or fought any battle against your fellow citizens. You can, and likely will be, killed by a missile launched from a remotely controlled drone, without any due process or oversight from another branch of government.
Ah, oversight. Congress found it compelling enough to spend millions of dollars investigating whether President Clinton did some shady land deal ten years before being elected, or whether he lied about getting a blowjob, and even impeached him for it. They claimed they were doing their constitutional duty. Yet their real constitutional duty, that of being a check and balance on executive power, has not been utilized in any meaningful manner since 9/11. The few hearings that take place are more about posturing for political advantage than getting any meaningful answers. Congress has not once threatened an impeachment hearing, nor instituted contempt of Congress proceedings, against any member of the Bush or Obama administrations, least of all the President themselves. They have willfully gone along with the executive branch's exercise of power that is the most total since Abraham Lincoln's during the Civil War, and that was a far more imminent threat of danger to America than any terrorist.
Congress has backed down on signing statements, and torture, and indefinite detention, and wiretapping, and endless extensions of war that should've ended long ago, and drone killings, and is now backing down on the executive branch's asserted right to preemptively kill an American citizen. They are not willing to do oversight, and they are not willing to fulfill their Constitutional oaths. That is another sad legacy of the War on Terror™.
In our current gun control debate, the fringe right that is so savagely fighting any gun control because of the day the government might come take their guns has missed the boat. It doesn't matter now if you have an AR-15 and an extended-capacity magazine for it. You can argue about that until you're blue in the face. You might even win. It doesn't matter. Every minute spent fighting gun control is a minute that the more devastating threat to our democracy, that of a government with unchecked authority to kill its own citizens preemptively, is not being argued, or even better, stopped.