On Monday, June 23, a federal appellate court released the so-called “drone memo” (Re: Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Operations Against Shaykh anwar al-Aulaqi) authored three years ago by David Barron, Acting Assistant Attorney General, on behalf of the Justice Department’s Office of Legal Counsel (OLC), which memo justifies Obama’s asserted right to kill American citizens overseas, employing drones, in violation of the Constitutionally guaranteed right to due process.
In a column on Tuesday, June 24, in the Guardian, Jameel Jaffer, the attorney who argued the case before the appellate court, pointed out, “Large parts of the memo—almost a third of it—have been redacted. The first 11 pages, which describe the government’s allegations against al-Awlaki, are redacted in their entirety. Throughout the remainder of the memo, citations, sentences and even whole paragraphs have been stripped out, in some cases to protect genuine sources and methods but in others to obscure the precedents underlying the government’s legal arguments. The redactions in the drone memo’s footnotes are perhaps the most disturbing, because they suggest the existence of an entire body of secret law, a veritable library of authoritative legal opinions produced by Justice Department lawyers but withheld from the American public. In one instance, the long sought-after drone memo references another legal memo that concluded that al-Awlaki’s American citizenship did not “preclude the contemplated lethal action.” From this reference, we can deduce that the OLC authored a separate drone memo assessing—and dispensing with—the proposition that an American citizen had the right not to be deprived of his life without some form of judicial process. But that earlier memo, treated by the executive branch as binding law, is still secret.”
The Daily Caller also posted a column, by Joseph Miller, described as the pen name of a ranking Department of Defense official, in which he points out that “the memo reveals that the president of the United States ordered the targeting killing of U.S. citizens overseas — in violation of their constitutional right to due process — sans any type of oversight outside of the executive.” This writer also points out, “The part of the memo that addresses the right to due process is redacted,” and notes that the legal justification is based on another memo that remains classified.
Specifically, the memo says: “The fact that al-Aulaqi is a United States citizen could raise distinct questions under the Constitution. As we explained in our earlier memorandum, Barron Memorandum at 5-7, we do not believe that al-Aulaqi’s U.S. citizenship imposes constitutional limitations that would preclude the contemplated lethal action under the facts represented to us by DoD, the CIA and the Intelligence Community.”
The memo then goes on to say: “Because al-Aulaqi is a U.S. citizen, the Fifth Amendment’s Due Process Clause, as well as the Fourth Amendment, likely protects him in some respects even while he is abroad.” The argument that follows is redacted.
Outrageously, however, the memo instead cites a decision by the Israeli Supreme Court (although arrest, investigation and trial “might actually be particularly practical under the conditions of belligerent occupation, in which the army controls the area in which the operation takes place,” such alternatives “are not means which can always be used,” either because they are impossible or because they involve a great risk to the lives of soldiers) as justification for violating the U.S. Constitution.
Here we have the spectacle of the Obama administration citing Israeli law to trump the U.S. Constitution!
The argument then boils down to the argument that, if the suspected terrorist poses a “continuous” and “imminent” threat, and if capture is “infeasible,” his murder is not “unlawful” if “done with proper public authority,” as in the “lawful conduct of war,” i.e., Barack Obama as judge, jury, and executioner.
The memo makes it clear that there is no judicial review provided for in this process; rather, the decision to kill is made by “a decision-maker,” i.e., Barack Obama, who decides that, in effect, that the Constitution itself is “infeasible.”
Obama’s Targeted Killing Program: A Threat to the U.S. Constitution and to International Law
A Stimson Center task force, co-chaired by retired Gen. John Abizaid, a former commander of US Central Command, and international lawyer Rosa Brooks, has found serious problems with President Obama’s killer drone program.
“We are concerned that the Obama Administration’s heavy reliance on targeted killings as a pillar of US counterterrorism strategy rests on questionable assumptions, and risks increasing instability and escalating conflicts,” the task force says in a report released Thursday. “While tactical strikes may have helped keep the homeland free of major terrorist attacks, existing evidence indicates that both Sunni and Shia extremist groups have grown in scope, lethality and influence in the broader area of operations in the Middle East, Africa and South Asia,” the report continues. “Furthermore, US targeted strikes also create new strategic risks. These include possible erosion of sovereignty norms, blowback and risks of a slippery slope into continual conflict.”
The report notes that the US relies on unmanned aircraft to carry out targeted killings because of their apparent low risk and low cost and, therefore, the technology may encourage the flying of missions that might not be considered worth pursuing with aircraft or special operations forces. “UAVs also create an escalation risk insofar as they may lower the bar to enter a conflict, without increasing the likelihood of a satisfactory outcome,” the report says. Furthermore, “The US use of lethal UAVs for targeted strikes outside of hot battlefields is likely to be imitated by other states…” and “further increase the risk of widening conflicts around the globe.”
The report goes on to note the lack of transparency of the program. The authors of the report take for granted that the US military and intelligence communities are very careful about targeting, but “the criteria used to determine who might be considered targetable remain unknown to the public,” and, “Similarly, it is difficult to understand how the US government determines the ‘imminence’ of unknown types of future attacks being planned by unknown individuals.” This lack of transparency and the unacknowledged nature of most targeted killing strikes make Congressional oversight especially difficult, a problem which is further compounded by the involvement of both the CIA and the military, which are each covered by different sets of laws and Congressional oversight committees.
The report warns that the Obama Administration has set a very dangerous international precedent with its targeted killing program. “From the perspective of many around the world, the United states currently appears to claim, in effect, the legal right to kill any person it determines is a member of al-Qaida or its associated forces, in any state on earth, at any time, based on secret criteria and secret evidence, evaluated in a secret process by unknown and largely anonymous individuals—with no public disclosure of which organizations are considered ‘associated forces’ (or how combatant status is determined or how the United States defines ‘participation in hostilities’), no means for anyone outside that secret process to raise questions about the criteria or validity of the evidence, and no means for anyone outside that process to identify or remedy mistakes or abuses,” the report says. “US practices set a dangerous precedent that may be seized upon by other states—not all of which are likely to behave as scrupulously as US officials.”
The report essentially describes an administration waging secret warfare, based on a secret body of law which is kept secret from the American people and the US Congress. Is this not an impeachable offense against the Constitution for which the President must be removed from office?