And Obama didn’t just kill one American citizen, but three! But one of those was unintended collateral damage and one was a complete mistake. So he’s got that going for him.
But Lindsey Graham wants to know why we didn’t ask these questions about Boooooooooooooosh!
This New York Times article about the killing of Anwar al-Awlaki, which was published over the weekend, is well worth your time. Many of the facts outlined in the article are no surprise to people who have followed these issues closely — but there are those (including me) who are busy in their lives and can learn a lot from this informative piece. For those of you who aren’t going to read the whole thing, I’ll summarize the parts that captured my attention.
First, there is the point made in the headline of this post. Remember how Lindsey Graham chided his Republican colleagues for supporting Rand Paul?
To my Republican colleagues: I don’t remember any of you comin’ down here suggesting that President Bush was going to kill anybody with a drone. I don’t even remember the harshest critics of President Bush on the Democratic side. They had a drone program then. So what is it all of a sudden that has this drone program has gotten every Republican so spun up? What are we up to here?
The New York Times article answers that question, and here is a big part of the answer: President Bush never deliberately killed an American as an enemy combatant without trial.
It was the culmination of years of painstaking intelligence work, intense deliberation by lawyers working for President Obama and turf fights between the Pentagon and the C.I.A., whose parallel drone wars converged on the killing grounds of Yemen. For what was apparently the first time since the Civil War, the United States government had carried out the deliberate killing of an American citizen as a wartime enemy and without a trial.
Another fun part of the article was the discussion about Marty Lederman’s participation in the justification for killing an American. Those of you who followed blogs about these issues during the Bush years will remember Lederman as one of the harsher critics of Bush’s assertion of executive powers. He was brought into the Office of Legal Counsel as a symbol from Obama that Things Would Be Different — and all of a sudden he was drafting memos saying sure, you can kill an American citizen without trial.
But my favorite part is where his Careful Research was (temporarily) undercut by something he read . . . on a legal blog:
And while the Constitution generally requires judicial process before the government may kill an American, the Supreme Court has held that in some contexts — like when the police, in order to protect innocent bystanders, ram a car to stop a high-speed chase — no prior permission from a judge is necessary; the lawyers concluded that the wartime threat posed by Mr. Awlaki qualified as such a context, and so his constitutional rights did not bar the government from killing him without a trial.
But as months passed, Mr. Barron and Mr. Lederman grew uneasy. They told colleagues there were issues they had not adequately addressed, particularly after reading a legal blog that focused on a statute that bars Americans from killing other Americans overseas. In light of the gravity of the question and with more time, they began drafting a second, more comprehensive memo, expanding and refining their legal analysis and, in an unusual step, researching and citing dense thickets of intelligence reports supporting the premise that Mr. Awlaki was plotting attacks.
Their labors played out against the backdrop of how some of their predecessors under President George W. Bush had become defined by their once-secret memos asserting a nearly unlimited view of executive authority, like that a president’s wartime powers allowed him to defy Congressional statutes limiting torture and surveillance.
Indeed, Mr. Barron and Mr. Lederman had produced a definitive denunciation of such reasoning, co-writing a book-length, two-part Harvard Law Review essay in 2008 concluding that the Bush team’s theory of presidential powers that could not be checked by Congress was “an even more radical attempt to remake the constitutional law of war powers than is often recognized.” Then a senator, Mr. Obama had called the Bush theory that a president could bypass a statute requiring warrants for surveillance “illegal and unconstitutional.”
So, the President and lawyers who had said Bush could not ignore a statute outlawing wiretapping were faced with President’s desire to ignore a statute outlawing killing Americans. What an inconvenience!
Luckily, they found a way around it! Although the prohibition on killing Americans overseas was definitive and lacked exceptions (unlike a statute on domestic killings), a judge had ruled that the exceptions to the domestic killings prohibition necessarily applied to the prohibition on overseas killing. Pesky legal obstacle, you go squish now!
Anyway, the other takeaway from the article — which, again, is nothing new, but it helps to have the fact handy — is that Obama has now killed three American citizens with the drone program. One was al-Awlaki, whose classification changed from annoying propagandist for jihad (who somehow seemed to have talked to every terrorist in history just before their crimes, from 9/11 hijackers to Nidal Hasan) to enemy combatant based on the word of the underwear bomber, who told the feds al-Awlaki had explicitly encouraged him to commit his act of terror. The second was Samir Khan, who was still classified as annoying propagandist but was with al-Awlaki when the drone struck. The third was al-Awlaki’s son, who was at an eatery when bad intelligence caused a drone to fire a missile at a terrorist who wasn’t there.
Meaning we’re 1 for 3 with Americans who Lederman says it’s OK to kill without trial.
It amazes me how little the details of this appear to have been discussed on blogs.
I still remember the intense debates over FISA. Bloggers dove into the details of the justification for Bush’s decision to ignore the law. I never bought into Bush’s Article II justifications, which struck me as too much of an assertion of kingly powers, but for a while, I bought the argument that FISA authorized Bush to conduct the wiretaps. I ultimately changed my mind in 2008, because FISA explicitly provided for a declaration of war, meaning the AUMF could not implicitly authorize what the statute had already expressly prohibited.
The details of the legal discussion aren’t particularly relevant to this post — but what is relevant is that legal blogs were actively discussing these issues.
While there are certainly blogs that must be discussing the legal underpinnings of the authority to kill Americans, it seems to me that these discussions have not been as prevalent. This seems wrong to me. We’re talking about killing Americans, not wiretapping them. Shouldn’t the legal reasoning involved be at least as much at the forefront of our minds?
I, for one, pledge to try to dive into this further as time permits.