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

Adam Bates Policy Analyst, Cato Institute Project on Criminal Justice
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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.

Lastly and most importantly, Yasser Hamdi was, like al-Awlaki, accused by “high-level government officials” of being an imminent threat to Americans when his case went up the judiciary in 2004. He was such a threat, in fact, that four months after the Supreme Court ruled on his case, Yasser Hamdi was released from U.S. custody and granted permission to live in Saudi Arabia after agreeing to surrender his U.S. citizenship and to obey a few travel restrictions. Either the Bush administration knowingly released an imminently dangerous terrorist out into the world, or those high-level government officials severely overstated their case. Fortunately for Mr. Hamdi, those secret accusations were only used to imprison him; Mr. al-Awlaki was not so fortunate.

The Obama administration’s Fourth Amendment analysis is just as tortured. Essentially the administration argues that just as police have the authority to use deadly force in pursuit of a seizure when they have probable cause to believe a suspect is an imminent threat to the officer or others, the U.S. government has the authority to use deadly force against Americans it accuses of being imminent threats. The kinks in this logic are legion.

When a police officer is in a situation that arguably justifies the use of deadly force, the officer himself is on the scene assessing the threat first hand. He’s not calling in an airstrike months after he’s decided the threat exists; he’s pulling the trigger with danger staring him in the face. The officer is also not relying on “high-level government” rumors or “facts” that someone else “represented” to him. Such hearsay does not constitute probable cause for the use of deadly force in any jurisdiction in this country.

Further, in that context “imminent threat” implies an element of immediacy. The officer has to act immediately or else people die. In that situation, courts are loath to retrospectively “armchair quarterback” life and death decisions, and for good reason.

The Obama administration, on the other hand, stretches the idea of an “imminent threat” to include threats with no immediate implications (the memo itself is dated more than a year before al-Awlaki was killed) and threats that are only thought to exist because “high-level officials” have alleged that a given American constitutes such a threat. Under the framework advanced by the Barron memo, once the Obama administration has deemed you a terrorist you are automatically and perpetually an “immediate threat to the United States,” without any evidence to confront or any opportunity to challenge the designation.

In short, the constitutional rationale for the targeted killing program is utterly incoherent. But because these decisions are made on “Terror Tuesdays” in the White House rather than in front of an impartial judge, Barack Obama’s incomprehensible interpretation of the law is the one that governs. By usurping the authority to make legal rulings from the judiciary, Barack Obama has made himself the judge.

The memo also tries unsuccessfully to source Obama’s authority in a 9/11-era terrorism law. The post-9/11 Authorization for Use of Military Force (AUMF) purports by its own terms to make the president the sole arbiter of fact when it comes to prosecuting the War on Terror. That gives Barack Obama the power to determine that al-Qaeda in the Arabian Peninsula (AQAP) aided in the 9/11 attacks despite the fact it didn’t exist at the time and its supposed leader was too busy having dinner at the Pentagon to launch a global jihad. It gives Barack Obama the power to posthumously promote al-Awlaki to “operational” status.

You don’t need a law degree to know that statutes can’t supersede the U.S. Constitution. In fact, if the maneuvers of President Obama and Judge Barron are any indication, a law degree may hopelessly confuse even the simplest matters of law and morality. Congress can’t simply legislate away the Fourth and Fifth Amendments. Insofar as the Obama administration believes that the AUMF delegates to Barack Obama the power of judges to determine law and the power of juries to determine fact, that belief is dangerously unacceptable.

We have reached a point in this sham “war” where a court tells a father he can’t contest his son’s killing because to ask the government to explain itself would jeopardize government secrecy, and then has the gall to imply that whether the government gets to kill an American citizen is a “political question” not fit for judicial review. We’ve reached a point where the president of the United States fashions himself the sole judge of the law, the sole jury of the facts, and the sole executioner of any American he unilaterally names “terrorist.”

When the Founding Fathers framed the U.S. Constitution, they made an explicit provision for Americans accused by the government of supporting the enemy. Contrary to what Barack Obama would have you believe, that provision guarantees such people more process than regular criminals, not less, and certainly not none. Americans once understood the immense power the government wields when it brands someone an enemy of the state, but I fear we may have lost our understanding amidst a neverending onslaught of warmongering propaganda from both sides of the aisle.

Anwar al-Awlaki is not the only American to die in an Obama drone strike (his 16-year old American son was killed two weeks later at a family outing, prompting the ever-compassionate Obama administration to respond with “maybe he should have had a more responsible father”), and if this precedent is tolerated he’ll be far from the last. The power Barack Obama usurped when he killed Anwar al-Awlaki is a power that no American official can ever be allowed to possess. You may think Anwar al-Awlaki was a bad person. A terrorist. A traitor. But he was also a human being entitled to the protections of the U.S. Constitution. If that has come to mean nothing, then someone will have to remind me what the point of this war ever was.