The George W. Bush administration took a lot of heat for condoning various forms of torture against suspected terrorists, and rightfully so, in my opinion. So where is the general outrage against the Obama administration now that Attorney General Eric Holder has laid out his legal case for killing America citizens suspected of terrorism?
The basic idea is this: If the executive branch determines that a U.S. citizen poses an imminent threat to the nation, that there is little chance the citizen could be captured and that killing this person would not violate the basic rules of war, the president can order the hit.
At issue is the killing of Anwar al-Awlaki, who died in a targeted drone strike in Yemen in September. Awlaki was born in New Mexico but became a high-ranking al-Qaida leader.
“Some have argued that the president is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al-Qaida or associated forces. This is simply not accurate,” Holder said.
Yes, the Constitution’s Fifth Amendment protects people from being deprived of life “without due process of law.” Holder says if the executive branch reviews the matter before making a decision, that is all the due process needed. (Read an account of the statement here.)
Critics say that isn’t how things are supposed to work in a nation run by laws under a Constitution of checks and balances.
Andrew Rosenthal of the New York Times argues here that “the president must receive some kind of judicial input before ordering the death of an American citizen. Even if that happens in secret, the American people should know that someone who doesn’t work for the president looked it over and weighed the evidence.”
After all, if the Founders had wanted a government where the head guy could do whatever he wanted and just say, “Trust me,” they would have anointed a king.
I try to look at both sides of this argument clearly. Fighting terrorism is a difficult task. President Obama has had to learn this the hard way, which is why Guantanamo is still around.
But the argument that it would be too clumsy for the administration to have to seek judicial review before carrying out a hit against an American-turned-terrorist living abroad just doesn’t ring true. At the least, there ought to be a process whereby the administration can seek judicial review in general terms for striking a target, should the opportunity arise. Awlaki probably didn’t pose an imminent threat to the U.S. at the very moment he was hit. There was time to lay out the case, in secret, to a judge or panel of judges ahead of time.
Drone strikes against U.S. citizens and the idea of a pre-emptive attack sound very George W. Bush-ish to me. Personally, I think Bush was overly criticized for how he approached this difficult struggle against terrorism. At the least, however, his critics should acknowledge that Obama has now taken things to a new, and more disturbing, level.