Quasi-Legal Drones in the Game of Obamarama

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ConstitutionAmericans have lots of questions about the current situation in Iraq: How did it get so bad, so quickly? Who’s to blame? Why didn’t we see this coming? And, most important: What is the best U.S. response? I hope we soon have a clearer answer to the last question — other answers I leave to those who would rather play the blame game than work toward the best solution. I have listened with interest over the last week and if there is any consensus it is that there are no good or clear solutions — and whatever option we choose, only time will tell if we made the right one.

It is also finally being acknowledged that our aggressive policies in Middle East affairs don’t sit well with most who live there.

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President Obama and Secretary of State John Kerry have made abundantly clear that one option on the table is targeted airstrikes inside Iraq, not ground troops. Who and what we will strike is currently unanswered, however. Setting aside the lawyer in me asking on what authority we have a right to take sides in another country’s civil war, it certainly seems inevitable that our fleet of drones, armed with missiles, will once again take to Iraqi skies. Which renews ethical and legal questions surrounding the use of drones to wage war, especially against American citizens overseas.

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On the latter question the administration’s position was made clear, if it wasn’t already, by the release of a redacted version of an Office of Legal Counsel memorandum authorizing the 2011 killing of cleric Anwar al-Awlaki, Awlaki’s son Abdulrahman al-Awlaki, and Samir Khan — all U.S. citizens. You can read it here. The memo was the subject of an Freedom of Information Act lawsuit by the ACLU and New York Times, and last week the 11th Circuit ordered its release.

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The memorandum details what the administration believes is the legal cover it needs to assassinate American citizens abroad under certain circumstances. But the requirements and standards that must be met before the President can authorize such a strike are as squishy as a wet washrag and so full of loopholes one can drive a Mack truck through them. For example, the administration says they have legal authority to kill an American if a “continued and imminent” threat to the U.S. or its interests exists. But the memo does not explain what “continued and imminent” actually means, nor does it explain the evidentiary standard officials must meet to satisfy the requirement. Is it evidence beyond a reasonable doubt? Or is it something far less than the famous standard of proof that the CIA used to justify the invasion of Iraq: “a slam dunk.”

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The memo also fails to address what is meant by “circumstances that would make capture infeasible” and thus make killing permissible; why judicial review of the evidence against the individual is not a viable option; and why the Constitutional protections of trial by jury and due process, which are afforded to all U.S. citizens, do not apply because a U.S. citizen is abroad. The memo relies heavily on the argument that there is no legal authority to prohibit such actions and ignores the fact that we have never before used drones to kill Americans — or, if we did engage in assassinations, that no one knew about it or was in a position to complain about it.

I recognize terrorism is a different type of enemy and the “war on terrorism” a different type of war. But I worry that this new enemy and new kind of war have made us or allowed us, depending on your point of view, to look at individual rights in a new light, without any form of public debate. The Obama administration has been unapologetic about the fact that the rules, as they see it, have changed, that just about anything in the name of “national security” is fair game. Is it okay for the American government to spy on and collect data on all of its citizens? Is it okay, under very vague standards, for the U.S. government to kill Americans overseas? Is it okay to interfere in another country’s affairs if we don’t like their regime? Will it be okay to take sides in another country’s civil war without Congressional approval — or to invade that country?

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If all this doesn’t give you pause, let me take you back to the rise of Fascism in the 1930’s. American citizens traveled to Spain to fight along with Communists in the Spanish Civil War. Later, American citizens fought with the British against Hitler long before the U.S. declared war on Germany. What if President Roosevelt had decided that Communism, more than Fascism, constituted a “continuing and imminent threat” to the U.S. and did so without seeking Congressional approval, sending planes to kill the fighters as well as the Communists? It didn’t happen, thank God, but there were those who supported that view. Given the administration’s standards for drone attacks on Americans and for intervening in the affairs of other countries, it’s a real possibility. Whatever decisions are made needs to be the right ones.

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The American public is only just starting to understand the legal and factual basis for the government’s targeted-killing program and the reasons for sending troops and planes into other countries even as a great deal of information crucial to the public debate remains secret. We must demand of our elected officials and those running for public office greater transparency and more than just a legal memo to justify assassination. Due process is our last wall of defense for each and every one of us. We must completely understand from every Presidential candidate what will his or her position is on targeted killing and intervention in civil wars. Otherwise we are as responsible as they are for the demise of the freedoms and ethical standards set forth in our Constitution.