First we had legal memos purporting to authorize the torture of accused terrorists from the Bush administration. Now we have legal memos purporting to authorize the assassination of American citizens accused of terrorism but never convicted in a court of law, never charged with any crime, never armed with any weapon or occupying a place near a recognized battlefield. The latter was the only exception our courts previously recognized to justify extrajudicial killings of citizens, that is until the George W. Bush/Barack Obama era of using claims of state secrets to shut down every attempt to examine these programs, much less halt them for violating the Constitution and international law.
Now such exceptions are moot, the federal courts have become as subservient to the executive branch on national security as the media has been for many years, no longer allowing such questions to be adjudicated by anyone other than the President.
The similarity between the two administrations and their controversial foreign policy, which places national security needs above and outside of the Constitution, has not been lost on those who have been regularly covering these issues.
Last night, NBC News' Michael Isikoff released a 16-page "white paper" [PDF] prepared by the Obama DOJ that purports to justify Obama's power to target even Americans for assassination without due process (the memo is embedded in full below). This is not the primary OLC memo justifying Obama's kill list - that is still concealed - but it appears to track the reasoning of that memo as anonymously described to the New York Times in October 2011.
This new memo is entitled: "Lawfulness of a Lethal Operation Directed Against a US Citizen Who is a Senior Operational Leader of Al-Qa'ida or An Associated Force". It claims its conclusion is "reached with recognition of the extraordinary seriousness of a lethal operation by the United States against a US citizen". Yet it is every bit as chilling as the Bush OLC torture memos in how its clinical, legalistic tone completely sanitizes the radical and dangerous power it purports to authorize.
Tom Junod of Esquire recalls Obama administration press secretary Robert Gibbs' blood-chilling and nearly sociopathic response to a pool question about the targeting of Abdulrahman al-Awlaki, a 16-year-old American citizen who was successfully assassinated by an American drone two weeks after his father, Anwar al-Awlaki, was blown to pieces while hiding from his own country and begging U.S. courts to help him):
ADAMSON: ...It's an American citizen that is being targeted without due process, without trial. And, he's underage. He's a minor.
GIBBS: I would suggest that you should have a far more responsible father if they are truly concerned about the well being of their children. I don't think becoming an al Qaeda jihadist terrorist is the best way to go about doing your business.
That we normally associate the lack of respect for human life and the rule of law expressed by Gibbs for inhuman terrorists says a lot about how much worse things have gotten since this mess began during the Bush administration:
The Obama Administration has never formally acknowledged its role in either death, but it has leaked a tremendous amount of information about its decision to target Anwar al-Awlaki because its decision to target Anwar al-Awlaki has evolved into something like "an Obama doctrine" when it comes to targeted killing. The idea that American citizenship is no more a refuge against the attacks of American drones than farflung geography; the idea that the secret deliberations of the executive branch count as "due process" even when an American citizen is being considered for execution without trial; the idea, indeed, that "due process does not guarantee judicial process": all these ideas have entered the public sphere largely because the Obama administration made the extraordinary decision to target and kill an American citizen named Anwar al-Awlaki.
Here's Joan Walsh, hitting liberals for ignoring all of this:
But Tesler found that the Obama effect worked the opposite way, too: African-Americans and white liberals who supported Obama became more likely to support policies once they learned the president did.
More than once I've worried that might carry over to bad policies that Obama has flirted with embracing, that liberals have traditionally opposed: raising the age for Medicare and Social Security or cutting those programs' benefits. Or hawkish national security policies that liberals shrieked about when carried out by President Bush, from rendition to warrantless spying. Or even worse, policies that Bush stopped short of, like targeted assassination of U.S. citizens loyal to al-Qaida (or "affiliates") who were (broadly) deemed (likely) to threaten the U.S. with (possible) violence (some day).
Those ugly parentheses are made necessary by Michael Isikoff's exclusive report on the Obama administration "white paper" that justifies its unprecedented claim to the power to assassinate U.S. citizens without due process on foreign soil.
Other things worth reading: The ACLU's legal director, Jameel Jaffer; Col. Lawrence Wilkerson's appearance on Democracy Now!; Ginger Gibson for Politico quoting Lindsey Graham (R-SC) telling America's elected representatives that they all "need to get on board" with this; John Bolton, George W. Bush's recess-appointed ambassador to the United Nations, who once suggested a terrorist attack to destroy the United Nations building in New York (should we kill him with a drone too?) praises the drone assassination program for being consistent with Bush-era policies; and Glenn Greenwald also reminding us that Michelle Bachmann, Newt Gingrich, and Mitt Romney all praised the drone assassination program during the 2012 GOP primaries.
. . .
Here's MSNBC's defense of it:
@jeremyscahill . @toure said "if we have people plotting against America, they need to die," in response to a question about 16 yr old Abdulrahman Awlaki.
@MrNickDyer Wow. RT @Toure: He's the Commander in Chief. RT @kirstenpowers10: You are fine w the White House deciding who is guilty and who should die?
?@kgosztola NBC News on targeted killing white paper: "We got great scoop." MSNBC hosts: "But he's our president. Sure there's way to explain this"
And Ed Morrisey criticizing it on Hot Air:
So let's just recap. The US can target a US citizen if they believe a threat to be "imminent" even when no threat of attack is immediately present. The target must have recently been involved in activities, with no real definition of "activities" or "recently." And rather than prove that the US citizen plans to continue these "activities," it's up to the citizen to prove to a single US official that no one knows that he's renounced and/or abandoned such "activities" - activities that the government won't define, to an official the government won't name.
Awlaki was an easy case. He publicly and explicitly encouraged terrorist acts, recruited new members to carry them out, and was connected to plots that actually went into action. But this memo goes way beyond the Awlaki instance and basically gives the government carte blanche to target Americans in whatever it considers to be the battlefield for almost any kind of "threat" it imagines.
While I think the that contrast -- MSNBC leaning forward by supporting heinous and indefensible policies while a writer on Hot Air criticizes it when it's perfectly in line with neo-conservative values (many neo-conservatives have praised the Obama administration for expanding its drone program) -- is important for several reasons, it's also important to note that Anwar al-Awlaki was not an "easy case" for extrajudicial assassination.
It may come as a surprise to many people, but advocating terrorism against the United States is Constitutionally protected speech. And it should be. What one person considers terrorism could be considered a lawful uprising or revolution by another. (How would conservatives feel of Sharon Angle and her entire family where blown apart by a drone for saying that if the federal government doesn't shape up, we may need to resort to "second amendment remedies"? How would anyone honestly feel?)
When it comes to speech, it is not for government to make that distinction. If someone picks up a weapon (neither Anwar nor Abdulrahman did that nor were they ever accused of it) or their speech is "directed to inciting, and is likely to incite, imminent lawless action", that's a different story.
It's not this story.