The Patriot Post® · Administration Forced to Release Drone Memo

A drone strike killed Anwar al-Awlaki, a radical al-Qaida cleric, on Sept. 30, 2011 as he tried to avoid CIA detection in north Yemen. Awlaki had been the subject of a massive two-year manhunt and several other drone attacks.

An American-born Muslim, Awlaki became virulently anti-American while in the U.S. He moved to Yemen and worked for al-Qaida as a propagandist. He inspired thousands of young Muslims to become jihadis – including Fort Hood murderer Nidal Hassan and Undi-bomber Umar Farouk Abdulmutallab – with his sermons and lectures on the Internet, along with his many columns and articles. He also made numerous YouTube videos in English, appealing to American Muslims. A slew of U.S. counterterrorism officials have testified that Awlaki played an “operational” role in al-Qaida.

Awlaki’s death, said one American official, “sets a sense of doom for the rest of them. Getting Awlaki, given his tight … security, increases the sense of fear.” But some Islamists claim that Awlaki will become a martyr and “motivate the Muslim youth to struggle harder against the enemies of Islam.”

The ACLU and The New York Times lawsuit forced publication of a previously secret White House memo from 2010. It explains the administration’s justification of lethal drone strikes on Americans. It mostly concerns the Awlaki mission, using basically the same arguments the administration successfully used in a case defending the government from lawsuits brought by families whose relatives were killed. It also outlines the legal justification for the government’s drone-targeted killing program, calling the killings justifiable acts of war. Additionally, it claims the Department of Defense and other agencies may carry out extrajudicial killings even if the targets are Americans and despite any loss of innocent life.

According to the memo, “DoD … [will] make every effort to minimize civilian casualties and … the officer who launches the ordinance would be required to abort a strike if he or she concludes that civilians casualties would be disproportionate … or that [it] … will … violate the laws of war. The CIA and Pentagon would conduct the operation [against al-Awlaki] according to international humanitarian law [emphasis added], to avoid undue suffering and make every effort to minimize civilian casualties.”

In a recent speech, Attorney General Eric Holder laid out the administration’s position: “Some have argued that the President is required to get permission from a federal … court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces. This simply is not accurate. ‘Due process’ and ‘judicial process’ are not the same, particularly when it comes to national security. The Constitution guarantees due process [emphasis added], not judicial process.”

“That is not to say,” Holder continued, “that the Executive Branch has – or should ever have – the ability to target any such individuals without robust oversight. Which is why in keeping with the law and our constitutional system of checks and balances, the Executive Branch regularly informs the appropriate members of Congress about our counterterrorism activities.” Just like in the Bowe Bergdahl deal, that is – after the fact.

The use of drone strikes raises a host of thorny issues. First, killing U.S. citizens abroad without due process is problematic. Holder’s justification is sheer double talk. Due process cannot be waived by the government despite what Holder says. Given this lawless administration, it’s no surprise they claim the authority.

Another issue is the long-term effect of international drone use. Currently, only the U.S., Great Britain and Israel are known to have used them, but experts predict that within 10 years every nation in the world will have access. Then what? The only successful arms limitation agreements were those between the U.S. and the Soviets, which were driven solely by the prospect of mutually assured destruction – something that won’t restrain jihadis. Can the U.S. develop an anti-drone defense system to protect the homeland? With the possibility of another Democrat president, we’re not betting on it.

Finally, there is the possible threat of drones used domestically. “Chilling” doesn’t quite describe Holder’s recent testimony before a congressional committee. CNN reports he didn’t completely rule out a drone strike against Americans on U.S. soil: “Holder said it was possible ‘I suppose,’ to imagine an ‘extraordinary circumstance in which it would be necessary and appropriate’ under U.S. law [emphasis added] for the president to authorize the military to ‘use lethal force’ within the United States. Holder said of course the question was ‘entirely hypothetical.’” But in the Jabberwocky world of this administration, the true meaning of Holder’s equivocation is anybody’s guess.