In an interview in 2007, then-senator Barack Obama said, "The president does not have power under the constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation." He went on to say, "I reject the Bush administration's claim that the president has plenary authority under the constitution to detain US citizens without charges as unlawful enemy combatants." In 2013, Americans are facing a president with a different mindset.
A recently leaked white paper is providing insight into the legal justifications for the Obama administration's "targeted killing" program. The paper asserts that "high-level" government officials can "use lethal force in a foreign country ... against a US citizen who is a senior operational leader of al-Qa'ida or an associated force ... actively engaged in planning operations to kill Americans." This legal framework also explains how lethal force can be used even if the "high-level" government officials do not have "clear evidence that a specific attack on US persons and interests will take place in the immediate future."
In September 2011, the administration used drone strikes to kill alleged al-Qaeda operatives Anwar al-Awlaki and Samir Khan. Al-Awlaki's 16-year-old son Abdulrahman al-Awlaki was also killed by a drone strike. All three were US citizens, and none of them had been indicted by the US government for any crimes. According to The Guardian, "the drone program now is run out of the White House, where [nominee to head the CIA John] Brennan, the president's most trusted counterterror adviser, helps Obama pick the targets."
The rationale behind the administration's "assassination by drone" program sounds eerily reminiscent to former VP Dick Cheney's "1 percent doctrine." Cheney believed the so-called war on terror empowered the Bush administration to invade sovereign countries and violate Americans' civil liberties without the need for evidence or extensive analysis. The facts did not matter. According to Cheney, "If there's a 1 percent chance that Pakistani scientists are helping al-Qaeda build or develop a nuclear weapon, we have to treat it as a certainty in terms of our response."
"It's not about our analysis," he said. It's about our response."
The Obama administration's rationale for targeted killings of American citizens contradicts some of the basic framework of American democracy. Due process, habeas corpus, checks and balances, and a prohibition on discriminatory laws known as bills of attainder are civil liberty protections guaranteed by the constitution.
Due process is such an important protection that it is referenced in the Fifth and Fourteenth Amendments to the Constitution. The due process clause acts as a safeguard from arbitrary denial of life, liberty or property by the government. For the president or other "high-level" government officials to act as judge, jury and executioner irrespective of "clear evidence" of any immediate wrongdoing is the clearest example of arbitrarily denying life and liberty that one can imagine.
Habeas corpus requires a person under arrest to be brought before a judge in order to determine whether an individual's detention is warranted. Article 1, Section 9 of the constitution states, "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." Understand the issue is assassinations, not arrest, but theoretically, summarily executing American citizens before they can even be detained is a contradiction of the highest order.
The concept of checks and balances is an important part of the constitution. Each of the three branches of government can limit the powers of the others - preventing any one branch from becoming too powerful. Under no circumstance should members of the executive branch be allowed to condemn American citizens to death, even in times of war (or a "war" on terror) without the review of an impartial judge. This also violates Article 1, Section 9 of the constitution, "No Bill of Attainder … shall be passed." A Bill of Attainder is an act of a legislature or executive declaring a person or group of persons guilty of some crime and punishing them without privilege of a judicial trial.
The DOJ white paper also concludes that the use of drone strikes for targeted killings would not be justified if it violated the fundamental law-of-war principles "if anticipated civilian causalities (collateral damage) would be excessive in relation to the anticipated military advantage." The administration has presented and defended drone strikes as an "antiseptic" use of technology. Brennan defended drone strikes as a more humane form of warfare. He said that "extraordinary care" is taken to ensure they conform to "law of war principles" - but stopped short of saying they are in compliance.
The Bureau of Investigative Journalism says it has identified 213 people killed by drones in Pakistan who were reported to be middle- or senior-ranking militants, along with 331 civilians, 87 of whom were children. The Bureau says its research indicates a minimum of 2,629 people have died so far in CIA drone strikes and that 475 of them were probably civilians.
The administration has championed the use of drones as making Americans safer by killing terrorists when in fact, killing innocent people in foreign countries creates more terrorists.
President Obama signed the 2012 National Defense Authorization Act (NDAA) containing sweeping worldwide indefinite detention provisions and signed into law a four-year extension of post-9/11 powers (the PATRIOT Act) to search records and conduct roving wiretaps in pursuit of terrorists. The rationale behind the Obama administration's approach to civil liberties and warfare sounds eerily like a Dick Cheney moment.