DOJ Drone Memo: Obama Is Judge, Jury, And Executioner

Since Barack Obama swept to office running against the abuses of the Bush Administration, the Bush policy of indefinitely detaining accused enemy combatants has largely been replaced with targeted killings. One wonders whether supporters of Senator Barack Obama’s broadsides against the Bush detention policy quite understood what they were getting in its place. The Obama administration’s drone war is controversial for a variety of reasons, not the least of which is the fact that several American citizens have been killed in such strikes. That tally includes at least one American, Anwar al-Awlaki, who was explicitly targeted for death by the U.S. government.

This week the Second Circuit Court of Appeals released a heavily redacted copy of the Obama administration’s legal rationale for the killing of Mr. al-Awlaki in 2011. The memo is signed by Acting Assistant Attorney General David Barron, who was recently appointed to the First Circuit Court of Appeals by Barack Obama over considerable outcry from civil liberty advocates around the country. While much of the rationale has been redacted, there is enough in the memo to demonstrate once and for all the shocking lack of respect this administration has for the rule of law, the U.S. Constitution, and basic human rights. The memo purports to justify a system under which every relevant determination of both law and fact is made by the executive branch. In effect, the administration’s legal argument makes Barack Obama judge, jury, and executioner, with the power to unilaterally declare any American a terrorist without a hint of process.

Much of the memo deals with whether targeted government killings of Americans run afoul of any of several U.S. laws against the killing of American citizens abroad, as well as a discussion of the international treaties governing such killings. To avoid clouding the issue with pages of “law-talking” about obscure U.S. statutes and the intricacies of international jurisprudence, let’s focus on the government’s case for these killings under the U.S. Constitution which, funny enough, seems to be the most heavily redacted part of the memo.

Before we get to the legal analysis, there is one crucially important detail to note: the U.S. government has provided absolutely none of the evidence it purports to have used to make the factual determinations in this case. Where a legitimate legal brief would contain specific references to pieces of evidence that would then be weighed by the judge and jury at trial, the Obama administration’s memo contains nothing but hearsay references such as “the facts represented to us,” or “as we understand the facts,” or “high-level government officials have concluded that…” At no point was Mr. al-Awlaki charged with a crime. At no point was he alleged to have engaged in or even threatened any act of violence against another person. At the time of his death (and as far as we know at all times before it) he was hundreds of miles from any active warzone. His incendiary rhetoric was his “crime,” along with whatever secrets “high-level government officials” still refuse to tell us about him.

If you’re the type of person who thinks the Obama administration would never lie or get anything wrong, that may not seem like a huge problem. For the rest of us, however, a legal regime in which the facts at issue are simply stated by the government rather than proven smacks of abject totalitarianism. In our American system a jury of citizens, not the government, is the trier of fact. By relying exclusively on the statements of “high-level officials” within his own administration, Barack Obama has usurped the authority of the jury.

For a legal refresher, the Fourth Amendment to the U.S. Constitution guarantees protection from unreasonable searches and seizures, and demands that no warrants shall be issued but upon probable cause. The Fifth Amendment guarantees due process of law before a person can be deprived of life, liberty, or property. Considering the rights deprivations inherent in being hit with a missile fired by the U.S. government, the memo is conspicuously brief in its constitutional arguments.

As to the due process concerns, the Obama administration cites only a single case for support: that of Yasser Hamdi. Hamdi was an American citizen captured by the Northern Alliance in Afghanistan in 2001. He was kept at Guantanamo Bay until the government realized he was an American citizen, at which time he was moved to a naval brig in South Carolina and held without charges for three years. Hamdi challenged his indefinite detention as an “enemy combatant” all the way to the Supreme Court, which ruled on his case in 2004.

In Barron’s memo, the Hamdi case is cited (very sparsely) for the proposition that due process considerations for Americans considered enemy combatants depend on the particular circumstances of the situation. That citation is followed by the Obama administration’s mere declaration that the (secret) facts (according to unnamed government officials) of the al-Awlaki case justify the complete absence of process from the government’s decision to kill him.

In first-year Constitutional Law at any law school in America, that argument earns an F. I would like to cite the very same Hamdi case for a few more propositions, none of which the Obama administration even bothered to mention:

First, the U.S. government lost the Hamdi case. The Supreme Court ruled that Yasser Hamdi was entitled under the Fifth Amendment to some process by which he could challenge his detention before a neutral arbiter. That ruling directly led to the creation of the military tribunal system at Gitmo, which is directly at odds with the idea that Anwar al-Awlaki is entitled to no process at all.

Second, Yasser Hamdi was only being detained, not targeted for assassination. It should go without saying that detaining someone for three years is much less an infringement on their life and liberty than blowing them up with a missile. If anything, one must conclude from the Hamdi ruling that an American who is being targeted for assassination is entitled to more process than someone being detained, not less.