Due Process Delivered by Drones
When President Obama approves a drone strike against someone he identifies as a terrorist, John Brennan explained at his confirmation hearing last week, the missile fired from that unmanned aircraft is delivering prevention, not punishment.
“We only take such actions as a last resort to save lives when there’s no other alternative,” said Brennan, the counterterrorism adviser Obama has picked to run the CIA.
A Justice Department white paper leaked a few days before Brennan’s hearing likewise describes death by drone as an “act of national self-defense,” part of an “armed conflict” with al-Qaida and its allies. Yet the white paper also speaks of due process for American citizens condemned to death by the president, a requirement it says can be met through secret discussions within the executive branch. This contradiction at the heart of Obama’s “targeted killing” policy, combining the rules of the battlefield with the rules of the courtroom, makes a muddle of both.
Last month, in a decision that upheld the president’s right to keep the memos summarized in the DOJ white paper under wraps, U.S. District Judge Colleen McMahon noted that “the concept of due process of law,” guaranteed by the Fifth Amendment, “has never been understood to apply to combatants on the battlefield actively engaged in armed combat against the United States.” That is how the Obama administration describes members of al-Qaida and allied groups: Regardless of nationality, they are enemy combatants who legally can be killed at will, wherever they happen to be.
Yet in a speech last March, Attorney General Eric Holder argued not that the Due Process Clause is irrelevant in this context but that President Obama’s kill orders comply with it.
“The Constitution’s guarantee of due process is ironclad, and it is essential,” Holder said, but “due process and judicial process are not one and the same.” Similarly, in an interview with CNN last September, Obama claimed the procedures for identifying people subject to summary execution by drone, though confined to the executive branch, are “extensive” enough to comply with “our traditions of rule of law and due process.”
By saying that due process applies to drone strikes on suspected terrorists in places such as Pakistan and Yemen, the administration implicitly concedes that such operations are fundamentally different from shooting an enemy soldier during a battle. In the latter case, both the identity of the enemy and the threat he poses are clear, and so is the argument for self-defense. When it comes to people marked for death by the president, however, all of these issues may be matters of dispute.
During Brennan’s confirmation hearing, Dianne Feinstein, the California Democrat who chairs the Senate Intelligence Committee, was at pains to portray Anwar al-Awlaki, one of the three Americans killed by drones so far, as “a senior operational leader” of al-Qaida who posed “an imminent threat” – the sort of target discussed in the DOJ white paper. Feinstein herself had to testify on these points because neither Brennan nor any other administration official will discuss the evidence against people targeted by drones.
The lack of transparency is especially troubling because the administration’s definition of “imminent threat” does not hinge on plans for a specific attack. Furthermore, the white paper explicitly leaves open the possibility that the criteria it describes, while sufficient to justify a presidential death warrant, may not be necessary, and it acknowledges no geographic limit on Obama’s license to kill. Brennan conspicuously dodged the question of whether the president can order hits on U.S. soil.
Given this alarming combination of deadliness and silence, it is not hard to see why, as McMahon put it, “some Americans question the power of the executive to make a unilateral and unreviewable decision to kill an American citizen who is not actively engaged in armed combat operations against this country.” The real puzzle is why so many Americans seem happy to trust the president with this power.
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