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.
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.