All Should See Legal Reasoning behind Targeted Killings

February 8, 2013

by Jeremy Leaming

The Obama administration is bending very little to accommodate the mounting calls for the release of legal reasoning for targeted killings of U.S. citizens abroad. So far the president has only agreed to provide legal documents regarding the use of drones and targeted killings to a couple of congressional intelligence committees.

But Senate Judiciary Committee leaders, Chairman Patrick Leahy (D-Vt.) and Ranking Member Chuck Grassley (R-Iowa) in a Feb. 7 letter to President Obama are calling for more information.  

The white paper leaked earlier this week, apparently providing a summary of a document crafted by a few attorneys in the Department of Justice’s Office of Legal Counsel (OLC) advanced wobbly -- some have said shoddy -- arguments that the administration’s counterterrorism policy, especially its use of drones, does not subvert constitutional principles. The white paper, in part, concluded that the president could order a targeted killing if the suspected terrorist posed an “imminent threat to the country,” capture would prove “infeasible,’ and that the operation “would be conducted in a manner consistent with applicable law of war principles.”

Constitutional law experts, like Georgetown’s David Cole blasted the white paper, concluding it allows for the federal government to “kill its own citizens in secret.” The drone war, he explained has significantly reduced “disincentives to killing.

Leahy and Grassley are not terribly impressed with the white paper either, saying in their letter, that it “was not an adequate substitute for the underlying legal analysis that we believed had been prepared by the Department’s [DOJ] Office of Legal Counsel (OLC) ….”

The senators also note that the legal arguments in the white paper centered on core constitutional concerns, such as the Fourth Amendment (bars government from “unreasonable searches and seizures” and the Fifth Amendment (the Amendment’s Due Process Clause provides or is supposed to provide for a fair hearing before government can “deprive a person of life, liberty, or property.")  The Senate Judiciary Committee also has “direct oversight jurisdiction over the Department, including OLC.”

For a president who came to power promising a more transparent government – Obama had been a sharp critic of the prior administration’s proclivity for secrecy – it seems that the legal analysis apparently calling for an outlandish extension of executive power should be made public for all, not just a few senators.

 

At The Dish, Andrew Sullivan argues that the white paper “is so legally shoddy and its corruption of the English language so perverse it almost demands we all see the real thing. To use the word “imminent” to describe something that is in the indefinite unknowable future is like calling torture ‘enhanced interrogation.’ To lean on the word ‘infeasible’ without any serious definition of what feasible would be is surreal. Underneath its absurd language and twisted rationales, the memo comes perilously close to the equivalent of ‘Because I said so.’ And the core message is trust me.”

The president eloquently articulated a liberal vision in his second Inaugural Address, calling for collective action and taking on the economic policies that have coddled the superrich and diminished the middle class. Such rhetoric is a sharp departure from Obama’s predecessors.

But the administration’s counterterrorism policies are a different story, especially its liberal use of drones. The president’s counterterrorism tactics, some might argue, are as poor if not worse than his predecessor’s. One might justifiably wonder how much more hatred and distrust of the U.S. are the administration’s counterterrorism policies, especially the drone war, cultivating?   

[image via WikimediaCommons]