David Cole

by Jeremy Leaming

The increasingly disturbing use of Reaper and Predator drones to kill suspected terrorists, and too often civilians alongside them, was apparently given the green light by some DOJ lawyers in the Office of Legal Counsel (OLC). But that’s not for certain since the Obama administration rarely talks about the drone war.

But a leaked white paper apparently crafted by lawyers in the OLC may be a summary of a more expansive document – the ACLU is suing to find out. The paper, however, as The New York Times and others have quickly noted advances convoluted and radical arguments for an outrageous expansion of executive power.

Constitutional law scholar and Georgetown University law school professor David Cole, in a piece for NYR blog explores, “how we made killing easy.” And Cole notes by the way that the Obama administration is battling “tooth and nail” the ACLU’s effort to force the release of the entire  legal document.

The white paper argues that an informed, high-ranking government official can order the killing of a U.S. citizen integral to or associated with Al-Qaeda abroad if the person poses an “imminent threat of violent attack” against the country, the person is unlikely to be captured and that the killing operation would be conducted in accordance with laws governing war.

The brief paper tosses aside due process in a strained effort to justify executive branch power, with essentially no oversight, to order the killing of terrorist suspects, even U.S. citizens.

 

The federal law that prohibits "material support" of groups that the State Department labels terrorist organizations has been upheld against constitutional challenges by the Supreme Court and defended by former Attorney General Michael Mukasey and other conservative politicos, such as Rudolph Giuliani and Tom Ridge.

But when constitutional law expert David Cole recently pointed out in an op-ed for The New York Times that Mukasey, Giuliani, Ridge and Frances Townsend, a former Homeland Security adviser to President George W. Bush, may have ran afoul of the law when then they spoke at an event supporting the Mujahedin e Khalq (MEK), which has long been designated a terrorist group by the federal government, they collectively took to the National Review's blog to reiterate their commitment to the material support law, and mount a defense of their actions on behalf of MEK.

In their NRO blog post, Mukasey, Ridge, Giuliani, and Frances essentially argue that MEK had been improperly placed and kept on the government list of terrorist organizations. "MEK, which opposes the current regime in Tehran and has provided valuable intelligence to the United States in Iranian nuclear plans, was placed on the State Department list during the Clinton administration as a purported goodwill gesture to the mullahs, in aid of furthering dialogue. Regrettably, it was kept on during the administration of George W. Bush, in part out of fear that Iran would provide IEDs to our enemies in Iraq, which of course the mullahs are doing anyway."

But in a piece for The Huffington Post, Cole, a law professor at Georgetown, notes the flimsy nature of the group's defense.

Cole writes:

Their objections to the MEK's designation might well be justified (I take no position on that issue in the original op-ed, nor here). But the material support statute expressly provides that one cannot defend one's support of a designated group by challenging the propriety of the designation in court. Indeed, ironically enough, the Justice Department under President George W. Bush successfully defended that provision against an alleged supporter o the MEK who south to challenge the group's designation in her defense. (The decision is United States v. Afshari, 427 F. 3d 646 (9 th Cir. 2005).

...

As I argued in my original op-ed, I believe Mukasey and his compatriots have every right to advocate as they did. But according to the positions Mukasey's own Justice Department advanced, his actions were criminal - and he cannot plead the MEK's wrongful designation as a defense. The law needs to be changed. The problem is not just with a single erroneous designation, but with a statute that turns speech advocating only lawful activity into a terrorist crime.