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The kill memo: Death-by-drone is too easy, needs checks and balances

McClatchy-Tribune News Service, St. Louis Post-Dispatch –

In April 2009, three months after his inauguration, President Barack Obama ordered the release of the last four “torture memos” that the Bush administration had used to justify harsh interrogation methods, including waterboarding, for terrorism suspects. The memos had been written by lawyers in the Justice Department’s Office of Legal Counsel.

Now Obama is refusing to release a memo written by his own Justice Department’s OLC, defending the legality of an action far harsher than waterboarding: the targeted killing of American citizens who are accused of working for terrorist organizations.

Indeed, the administration has not even formally acknowledged that the memo exists, though its contents have been described in general terms to news organizations.

The New York Times has filed a lawsuit under the Freedom of Information Act asking that the memo be released. The American Civil Liberties Union has filed a separate FOIA lawsuit seeking the memo and the specific rationale for the drone attack in Yemen last Sept. 30 that killed Anwar al-Awlaki.

Born in New Mexico, al-Awlaki held joint U.S.-Yemeni citizenship and had been identified as a leading al-Qaida recruiter and plotter. Also killed in the Hellfire missile attack was a Saudi-born U.S. citizen, Samir Kahn, an alleged al-Qaida propagandist, and two Yemeni men.

As a candidate for president, Obama repeatedly and strongly criticized the broad claims of executive powers exerted by President George W. Bush and Vice President Dick Cheney. “I taught the Constitution for 10 years,” he said at a May 18. 2008, stop in Billings, Mont. “I believe in the Constitution, and I will obey the Constitution of the United States.”

In December 2007, a reporter for The Boston Globe asked Obama, “Does the Constitution permit a president to detain U.S. citizens without charges as unlawful enemy combatants?”

His answer: “No. I reject the Bush administration’s claim that the president has plenary authority under the Constitution to detain U.S. citizens without charges as unlawful enemy combatants.”

But in 2010, after al-Alwaki had been tied to both the so-called “underwear bomber” and the Army major responsible for the Fort Hood, Texas, killings, Obama approved putting him on the Joint Special Operations Command’s “kill or capture” list. He later was added to the CIA’s kill list, too.

Thus, within two years, Obama had gone from rejecting President Bush’s claim that he could detain U.S. citizens as enemy combatants to approving the summary execution of a U.S. citizen deemed an enemy combatant.

What happened to change his mind? Obama has not explained, but presidents see intelligence reports and threat assessments that presidential candidates don’t.

You might like this president and trust him. But presidents change. The Constitution doesn’t.

Earlier this month, Obama sent Attorney General Eric Holder to Northwestern University Law School in Chicago to explain, sort of, the administration’s policies for terrorist crime and punishment. Major points:

—Suspects should be captured when possible, but Congress has authorized the president to use all necessary and appropriate force against terrorists.

—International law says that in an armed conflict, “we are authorized to take action against enemy belligerents. … The Constitution empowers the president to protect the nation from any imminent threat of violent attack. And international law recognizes the inherent right of national self-defense. None of this is changed by the fact that we are not in a conventional war.”

—In a war with a stateless enemy, this nation can take action in another sovereign nation that “is unable or unwilling to deal effectively with a threat to the United States.”

—In a war, targeting “specific senior operational leaders” of the enemy is established principle. We killed Yamamoto. We killed Osama bin Laden.

—These are not “assassinations,” because assassinations are unlawful. Killing someone who presents an imminent threat of violent attack is not unlawful.

—This applies even to U.S. citizens working for the enemy. In such cases, the government must consider the Fifth Amendment’s Due Process Clause. But Holder argued that the “Supreme Court has made clear that the Due Process Clause does not impose one-size-fits-all requirements, but instead mandates procedural safeguards that depend on specific circumstances.”

—The president doesn’t have to get permission from a judge. “‘Due process’ and ‘judicial due process’ are not one and the same,” Holder said.

This is casuistry, for which the dictionary provides two definitions: “The application of general principles of ethics to specific problems of right and wrong in conduct, in order to solve or clarify them”; and, “subtle but misleading or false reasoning; sophistry, often specifically about moral issues.”

We do not mourn Anwar al-Awlaki. We mourn the loss of judicial due process. We mourn the rule of law.

Merely to eavesdrop on a terrorism suspect takes a warrant from a Foreign Intelligence Surveillance Act court judge. They are available 24/7; the government presents its case for probable cause, and, almost without exception, the court approves the warrant.

But to kill someone? That doesn’t take a warrant? Getting a court to review of the case for the targeted killing of an American citizen would not be an undue burden on the president’s war-making powers. Death-by-drone is too easy. It needs checks. It needs balances.

Further, there should be robust debate, among scholars and experts and average citizens, on the legal rationale and case law behind the assertion that there are times and circumstances that the Constitution permits a president to be judge, jury and executioner.

That claim should be tested in court and in Congress. That’s what’s the rule of law requires. The president should give up the memo.

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