This was going to be the most transparent administration in history. It was going to roll back executive over-reach and put warfare against terrorism within a constitutional framework that could defend the country against Jihadist mass murder without sacrificing our values. And yet on a critical issue – the killing of allegedly treasonous citizens who have joined forces with al Qaeda to kill and threaten Americans – we were first given a memo that isn’t actually the real memo which contains no meaningful due process at all.
Now, the administration has given the Congress the actual memo, which, one hopes, does less damage to the Constitution and the English language. But why can “we the people” not see the actual memo? That phrase came up a lot in his recent Inaugural address. Funny how in practice in this respect, Obama is showing such contempt for the concept. And the “memo” Mike Isikoff procured 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 of the policy is: trust me.
No, Mr president. It is not our job to trust you; it is our duty to distrust you.
This isn’t personal. I don’t doubt that sincere reflection and careful decision-making went behind the decision to kill Anwar al-Awlaki. And I defended the action, and still would. But, with all due respect, that’s irrelevant.
The issue here could not be more profound in principle, or more basic to American democracy. It is about the government having the right to kill a citizen without any due process even in America. (Before I go any further, may I just rebut the phony comparison with the Bush policy of torture of terror suspects? Killing an enemy in wartime is permissible and legal under the laws of war. Torture is illegal and immoral in all circumstances under every law of war.) More to the point, it is utterly uncontroversial that the military can kill a US citizen abroad if he is waging a treasonous war against the United States (see: Ex parte Quirin ). Killing an enemy is routine on a battlefield in wartime or, domestically, in a hostage situation. If a cop had had a chance to kill Adam Lanza in the middle of his rampage, not only could he have done so; he should have. And if an American traitor is embedded in an al Qaeda terror training camp and that camp is targeted, there’s no way to read him his Miranda rights separately before we engage the enemy. Treason, in other words, is not the government’s fault. It is the traitor’s. And make no mistake: Anwar al-Awlaki was a traitor.
And I do believe that in a global war against Jihadists, like Awlaki, who have made clear threats of death against other Americans, are in al Qaeda camps, and propagating enemy propaganda to encourage even more violence, the executive branch does need to kill our enemies. I believe, for example, that the US had every right to invade another country’s airspace and kill Osama bin Laden as swiftly as possible. He posed no “imminent threat”. But he was an integral, central part of a network actively planning such attacks. Moreover, capturing him was entirely feasible. But we killed him in cold blood in his own home. Were we wrong to do so? Of course not. If we are at war with al Qaeda, which wears no uniform and treats homes and sky-scrapers as the battlefield, and if US soldiers are in a compound/bunker at night full of unforeseen dangers, they have to retain a capacity to defend themselves – and the right to approve that is assigned, especially in urgent, emergency, narrow-window opportunities, to the executive branch.
But the equation obviously shifts when it comes to an American citizen fighting for the enemy and not in an emergency. And it shifts again when the battlefield remains defined as anywhere in the world, including the US, and when the window of opportunity is much, much wider because the war has been defined as permanent. This means that there is no time-limit on this power – say, the conclusion of hostilities with a treaty. And look: treasonous citizens can and have been executed (the Communist traitors, the Rosenbergs rightly were). But even suspected traitors are entitled to due process. And due process seems to have gone out the window in this case.
One way to improve this power would be to limit it legislatively, by the Congress passing a new version of the 2001 AUMF in 2001 to mean merely al Qaeda in Afghanistan and its neighbors. It may, in other words, be time to declare an end to formal hostilities when the last troops return home in 2014, and return to a more criminal-based campaign against terrorism with less blowback. I have long felt that a permanent state of war against an amorphous enemy – anyone who wants to call himself a member of al Qaeda – is incompatible with the survival of a democratic republic. At the very least – now that bin Laden and much of the operational leadership of al Qaeda in Afghanistan and Pakistan have been eliminated – the Congress could narrow the boundaries of this war-without-end.
But more vital, it seems to me, is the establishment of a genuine judicial check on the selection of terror suspect targets – a secret FISA-type court that has real power to veto, and real access to the intelligence being used. The awesome power to kill an American citizen cannot be entrusted to one person alone, with no constitutional check, and no legal transparency. If we are defining “imminent threat” as the existence of a terror cell that could at some point in the future attack Americans, then at the very least, there must be a check on how that definition is implemented, and push-back against the rationale for killing a US citizen without any due process of law.
Obama always promised to fight the war against al Qaeda with energy, vigor and relentlessness. In my view, his policies have been immensely more successful than his predecessor’s clumsy, crude and incompetent management of national security. But Obama also promised real change in the war on terror, especially with respect to Iraq, torture and the laws of warfare. He promised much more transparency. He promised to unravel the unlimited powers granted to the executive by the legal hacks who did Cheney’s criminal bidding.
If this Obama still resides in the White House, he must release the full memo to the full public, now. Just as DiFi should release the full Senate Intelligence Committee’s report on torture now. We have a right to know and see what our government is doing and has done with respect to core constitutional rights and the rule of law. Yes, we have to fight a war that was initiated by an enemy. But we have to fight that war as Americans, under our Constitution, with prudence and as much transparency as possible.
Come back, Mr Obama. The nation turns its lonely eyes to you.
(Photo: Brendan Smialowski/Getty.)