Earlier this week, the government sent a summary of its legal memos
on presidential use of drones to kill persons overseas — even Americans —
to an NBC
newsroom. This was done after more than a year of stonewalling federal
judges and ordinary citizens who sought the revelation of the
government’s secret legal research justifying the president’s use of
drones. The administration claimed the research was so sensitive and so
secret that it could not be revealed without serious consequences.
This revelation will come as a great surprise, and not a little annoyance, to U.S. District Court Judge Colleen McMahon,
who heard many hours of oral argument during which the government
predicted gloom and doom if its legal research were subjected to public
scrutiny. She very reluctantly agreed with the feds, but told them she
felt caught in “a veritable Catch-22,” because the feds have created “a
thicket of laws and precedents that effectively allow the executive
branch of our government to proclaim as perfectly lawful certain actions
that seem on their face incompatible with our Constitution and laws,
while keeping the reasons for their conclusion a secret.”
She was
writing about President Obama killing Americans and refusing to divulge
the legal basis for claiming the right to do so. Now we know that basis.
The undated and unsigned 16-page document leaked to NBC refers to itself as a Department of Justice
white paper. Its logic is flawed, its premises are bereft of any
appreciation for the values of the Declaration of Independence and the
supremacy of the Constitution, and its rationale could be used to
justify any breaking of any law by any “informed, high-level official of
the U.S. government.”
The
quoted phrase is extracted from the memo, which claims that the law
reposes into the hands of any unnamed “high-level official,” not
necessarily the president, the power to decide when to suspend
constitutional protections guaranteed to all persons and kill them
without any due process whatsoever. This is the power claimed by kings
and tyrants. It is the power most repugnant to American values. It is
the power we have arguably fought countless wars to prevent from
arriving here. Now, under Mr. Obama, it is here.
This came to a boiling point when Mr. Obama dispatched CIA drones to kill New Mexico-born and al Qaeda-affiliated Anwar al-Awlaki while he was riding in a car in a desert in Yemen in September 2011. A follow-up drone, also dispatched by Mr. Obama, killed Awlaki’s 16-year-old Colorado-born son and his American friend. Awlaki’s American father sued the president in federal court in Washington, D.C., trying to prevent the killing. Justice Department
lawyers persuaded a judge that the president always follows the law,
and besides, without any evidence of presidential law-breaking, the
elder Awlaki
had no case against the president. Within three months of that ruling,
the president dispatched his drones and the Awlakis were dead. This
spawned follow-up lawsuits, in one of which Judge McMahon gave her reluctant ruling.
Then
the white paper appeared. It claims that if an American is likely to
trigger the use of force 10,000 miles from here, and he can’t easily be
arrested, he can be murdered with impunity. This notwithstanding state
and federal laws that expressly prohibit non-judicial killing, an
executive order signed by every president from Gerald Ford to Mr. Obama
prohibiting American officials from participating in assassinations, the
absence of a declaration of war against Yemen,
treaties expressly prohibiting this type of killing and the language of
the Declaration, which guarantees the right to live, and the
Constitution, which requires a jury trial before the government can deny that right.
The
president cannot lawfully order the killing of anyone, except according
to the Constitution and federal law. Under the Constitution, he can
only order killing using the military when the United States has been
attacked, or when an attack is so imminent that delay would cost
innocent lives. He can also order killing using the military in pursuit
of a declaration of war enacted by Congress.
Unless Mr. Obama knows that an attack from Yemen
on our shores is imminent, he’d be hard-pressed to argue that a guy in a
car in the desert 10,000 miles from here — no matter his intentions —
poses a threat so imminent to the United States that he needs to be
killed on the spot in order to save the lives of Americans who would
surely die during the time it would take to declare war on the country
that harbors him, or during the time it would take to arrest him. Under
no lawful circumstances may he use CIA agents for killing. Surely, CIA
agents can use deadly force defensively to protect themselves and their
assets, but they may not use it offensively. Federal laws against
murder apply to the president and to all federal agents and personnel in
their official capacities, wherever they go on the planet.
Mr.
Obama has argued that he can kill Americans whose deaths he believes
will keep us all safer, without any due process whatsoever. No law
authorizes that. His attorney general has argued that the president’s
careful consideration of each target and the narrow use of deadly force
are an adequate and constitutional substitute for due process. No court
has ever approved that. Moreover, his national security adviser has
argued that the use of drones is humane since they are “surgical” and
only kill their targets. We know that is incorrect, as the folks who
monitor all this say that 11 percent to 17 percent of the 2,300
drone-caused deaths have been those of innocent bystanders.
Did
you consent to a government that can kill whom it wishes? How about one
that plays tricks on federal judges? How long will it be before the
presidential killing comes home?
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