President Obama's nomination of John Brennan to head the CIA succeeded despite questions about the administration's lethal drone program. There are growing bipartisan Congressional demands for Obama to publicly release all the legal memos justifying targeted killings of suspected terrorists, including Americans and noncitizens.
During a recent hearing on drones, Bob Goodlatte (R-Virginia), chairman of the House Judiciary Committee, insisted that the "American people deserve to know and understand the legal basis under which the Obama administration believes it can kill US citizens, and under what circumstances." The committee's ranking member, Democrat John Conyers of Michigan, urged that it is not clear that "Congress intended to sanction lethal force against a loosely defined enemy in an indefinite conflict with no borders or discernible end date."
Obama's legal justification for targeted drone killings of Americans and noncitizens is one of the most important national security questions facing our country. The Bureau of Investigative Journalism reports that from 2002 to 2013, in Pakistan, Yemen and Somalia, CIA drones killed between 556 and 1128 civilians, including as many as 216 children, and deliberately targeted people showing up after attacks, including rescuers and mourners at funerals. Journalist Jeremy Scahill reports in The Nation that US drone strikes in Yemen are the primary source for al-Qaeda's presence in the Arabian Peninsula.
So far, we know of at least three Americans who have been killed by US drones, all during Obama's first term. Anwar al-Awlaki and Samir Khan were targeted and killed in Yemen on September 30, 2011, while al-Awlaki's 16-year-old son, Abdulrahman, was killed there a few weeks later. Al-Awlaki, born in New Mexico, became well known for his fiery anti-American sermons posted on the Internet. Khan, who lived in New York and Charlotte, North Carolina, produced a magazine called Inspire which is accused of spreading extreme jihadist views. Family of the Denver-born teenager Abdulrahman say he had no ties to terrorist organizations and was unjustly targeted and killed because of his father.
Last year, The New York Times assessed the president's record on national security and concluded that "nothing else in Mr. Obama's first term has baffled liberal supporters and confounded conservative critics alike as his aggressive counterterrorism record." Georgetown University law professor David Cole has written that "Obama has radically escalated drone strikes, continued military detention without charge and military commissions for trying terrorists, prosecuted more government officials for leaks than all prior presidents combined, maintained the discretion to render suspects to third countries, and opposed efforts to hold US officials accountable for authorizing torture of terror suspects."
Was it all cynical electioneering six years ago when candidate Obama told The Boston Globe that he rejected "the view that the president may do whatever he deems necessary to protect national security, and that he may torture people in defiance of Congressional enactments"?
If Obama releases his drone memos, will we discover that they have grossly distorted the law the same way the Bush torture memos did? If, in fact, Obama's lawyers seriously considered what the Supreme Court has recently said about the limits on presidential authority, even during the war on terror, they could not in good conscience have approved Obama's systematic targeted killing of suspected terrorists, including Americans and noncitizens.
In 2001, Shafiq Rasul and Asif Iqbal, British citizens, and David Hicks, an Australian, were captured in Afghanistan and transferred to Guantanamo Bay. The government claimed they had fought for the Taliban, but the men claimed they took up arms only in self-defense after being attacked. In April 2004, the Supreme Court ruled that, despite the mens' status as noncitizens captured in a foreign country, they were entitled to habeas corpus review. Remarkably, a month before the court decision, the United States transported Rasul and Iqbal to the United Kingdom; their government released them the next day. Hicks was also released and returned to Australia.
Yaser Esam Hamdi was born in Louisiana and as a child moved to Saudi Arabia with his family. In November 2001, while living in Afghanistan, he was captured by the Northern Alliance and was handed over to the US military. The government accused him of fighting with the Taliban against the United States, labeled him an "illegal enemy combatant," and claimed the right to hold him indefinitely without trial, without charges and without lawyers.
In 2004, the Supreme Court disagreed. In an opinion by Justice Sandra Day O'Connor, the court repudiated the government's unilateral assertion of executive authority to suspend constitutional protections for individual liberty. "An interrogation by one's captor, however effective an intelligence-gathering tool, hardly constitutes a constitutionally adequate fact-finding before a neutral decision-maker," wrote Justice O'Connor. The court opinion asserted the rule of law in American society: "It is during our most challenging and uncertain moments that our nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad." Justice O'Connor added, "[w]e have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the nation's citizens."
The decision in Hamdi did not say that the government cannot detain enemy combatants; however, they must be afforded due process to determine their status as enemy combatants. The Hamdi decision reaffirmed the importance of separation of powers among the branches of the government, and, in particular, the role of the judiciary in reviewing actions of the executive branch infringing the rights of citizens even in emergencies.
In a partial concurrence and dissent, Justice David Souter (who would have afforded greater constitutional protection against indefinite detention), recalled that "we are heirs to a tradition given voice 800 years ago by Magna Carta, which, on the baron's insistence, confined executive power by 'the law of the land.'" And from the other end of the judicial spectrum, Justice Antonin Scalia insisted that "[w]here the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime." Absent suspension of habeas corpus by Congress (which has never happened since 9/11), "the Executive's assertion of military exigency has not been thought sufficient to permit detention without charge."
After being held for three years, less than three months after the court told the government to put up or shut up, Hamdi was released and returned to Saudi Arabia. As scholar Eric T. Kasper has noted, once "the Supreme Court required that some basic, minimal due process guarantees be honored in his case, the government decided to release him, effectively demonstrating that Hamdi never had been any real risk to national security."
Salim Ahmed Hamdan, a citizen of Yemen who was accused of being a bodyguard and chauffeur for Osama bin Laden, was captured by militia forces during the invasion of Afghanistan in the fall of 2001 and was turned over to the United States. He was sent to Guantanamo Bay, and in July 2004, the Bush administration claimed the right to try him before a military commission on charges of conspiracy to commit terrorism.
In 2006, the Supreme Court disagreed. The court held that a military commission lacked "the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949." Specifically, the ruling found that even alleged terrorists were protected by Common Article 3 of the Geneva Conventions. In August 2008, Hamdi was convicted, and in November 2008, he was transferred to Yemen, where he served his last month. After release, he joined his family in Sana'a. In October 2012, the US Appeals Court for the District of Columbia overturned Hamdan's conviction.
José Padilla, a US citizen, was arrested at O'Hare Airport in Chicago on May 8, 2002, on suspicion of plotting a "dirty bomb" attack. He was detained for three and a half years as an "enemy combatant" based on allegations that he was "closely associated with al Qaeda," had engaged in "war-like acts, including conduct in preparation for acts of international terrorism" and was a continuing threat to American security. On January 3, 2006, Padilla was transferred to Miami, Florida, to face criminal conspiracy charges, and in 2007, represented by counsel, he was found guilty of conspiring to kill people in an overseas jihad, and to fund and support terrorism. He was sentenced to 17 years in prison.
On the auspicious day of September 10, 2001, Ali Saleh Kahlah al-Marri, a citizen of Qatar, accompanied by his wife and children, came to the United States to pursue his master's degree at Bradley University, having previously resided here as an undergraduate. In December 2001, he was arrested and eventually charged with credit card fraud and making false statements to police. But one month before al-Marri's trial, President Bush declared him an enemy combatant for allegedly associating with al-Qaeda. The government claimed the right to hold al-Marri indefinitely, without charges, without trial and at times without contact with the outside world.
Judge Diana Gribbon Motz of the Fourth Circuit Court of Appeals disagreed. Due process "dates back to Magna Carta, which guaranteed that government would not take life, liberty, nor property without a trial in accord with the law of the land. The law of the land at its core provides that no man's life, liberty or property be forfeited as a punishment until there has been a charge fairly made and fairly tried in a public tribunal." The government indicted al-Marri on federal criminal charges, and in April 2009, with advice of counsel, he pleaded guilty to being trained by al- Qaeda and arriving in the United States as a sleeper cell terrorist under orders of Khalid Shaikh Mohammed.
Lakhdar Boumediene, an Algerian citizen, was captured in Bosnia in 2001 and transferred to Guantanamo Bay in January 2002 as an enemy combatant. Now armed with the Military Commissions Act of 2006, which a compliant Congress had passed to restrict habeas corpus, the Bush administration asserted the right to detain Boumediene indefinitely, without charges and without trial.
Again, the Supreme Court disagreed. In 2008, writing for the majority, Justice Anthony Kennedy wrote that "to hold that the political branches may switch the constitution on or off at will would lead to a regime in which they, not this court, 'say what the law is'." Boumediene was released in May 2009 and flown to France, where he lives with his wife and two daughters.
In the context of the serious constitutional issues surrounding Obama's drone policy, there is much to learn from these Supreme Court decisions. Before and after 9/11, the US military has been fully capable of capturing and detaining alleged terrorists. Even in the war on terror, the court has consistently held that before alleged terrorists, Americans and noncitizens alike, can be denied "life, liberty or property," they are entitled to due process. The court has consistently rejected the presidential claim to unilateral authority to detain suspected terrorists, without charges, without lawyers and without trial.
Since alleged terrorists - Americans and noncitizens alike - cannot be denied "liberty" without due process, surely they cannot be denied "life" without due process.
The men whom Bush detained in Guantanamo Bay, like the men whom Obama killed by targeted drones, were all accused of being dangerous terrorists who posed a grave threat to America. Yet once Rasul, Iqbal, Hicks, Hamdi, Hamdan and Boumediene were afforded due process, they were eventually released and are alive today. When Padilla and al-Marri were afforded due process, represented by legal counsel, they were duly tried and convicted in a court of law and are serving their sentences.
But al-Awlaki, his 16-year-old son, Khan and the others were NOT afforded due process. Instead, they were placed on Obama's "kill list" and were systematically targeted and summarily killed by drones.
Summary execution is illegal, as it violates the right of the accused to a fair trial before a punishment of death. Almost all constitutions or legal systems based on common law have prohibited execution without the decision and sentence of a competent judge. The UN's International Covenant on Civil and Political Rights declares that "Every human being has the inherent right to life. This right shall be protected by law. No man shall be deprived of his life arbitrarily." "[The death] penalty can only be carried out pursuant to a final judgment rendered by a competent court." (ICCPR Articles 6.1 and 6.2)
Major treaties such as the Geneva Convention and Hague Convention protect the rights of captured regular and irregular members of an enemy's military, along with civilians from enemy states. Prisoners of war must be treated in carefully defined ways which ban summary execution. "No sentence shall be passed and no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality." (Second Protocol of the Geneva Conventions (1977) Article 6.2)
Obama's use of a "kill list" and the systematic targeting and summary killing of individuals by drones is an unspeakable violation of the constitution, international law and human rights. President Obama's legacy will forever be tarnished, and our constitutional system forever diminished, unless he immediately suspends his illegal policy of targeted drone killings and subjects the entire program to open, transparent and independent review.