Will the author of the Obama-administration white paper on killing U.S. citizens please report for his war-crimes trial right away? If he served in the George W. Bush administration, someone would already be agitating for his extraordinary rendition to The Hague. The white paper outlines why the Obama administration believes that it can kill U.S. citizens involved in al-Qaeda without due process. This is not a merely theoretical question, as Anwar al-Awlaki found out from the business end of a Hellfire missile a couple of years ago in Yemen.
The left is still furious that the Bush administration waterboarded three captured terrorists after September 11, 2001. Yet, with a few exceptions, it has blithely accepted the Obama administration’s extrajudicial assassination policy, which has killed about 1,000 times as many people.
During the Bush years, a small army of former Democratic officials, law professors, op-ed writers, and bloggers blasted the Bush administration as dangerous and un-American for asserting the executive branch’s war powers, a.k.a. “trampling the Constitution.”
Barack Obama was going to be different. We had this on the highest possible authority: Barack Obama. As a senator in 2007, he set out his contrasting vision: “We will again set an example for the world that the law is not subject to the whims of stubborn rulers, and that justice is not arbitrary.”
In a speech as president in 2009, he said we must fight al-Qaeda. “But,” he added, pointedly, “we must do so with an abiding confidence in the rule of law and due process; in checks and balances and accountability.”
The white paper outlines what that looks like in practice. If an “informed, high-level official” of the Obama administration determines that a U.S. citizen is one of the “senior operational leaders” of al-Qaeda and “recently” involved in “activities” related to a violent attack against the United States, well then, he can be terminated with extreme prejudice.
Note that the high-level official has to be “informed.” This must be what Obama meant when he insisted his policies would respect “due process” and “checks and balances.”
The white paper has ignited not quite a firestorm (again, this isn’t the Bush administration), but at least a smoldering ember of brow-furrowed consternation among the president’s supporters and journalistic sympathizers.
They rarely say what their alternative would be. Does a U.S. citizen get an exemption from targeting if he becomes a high-level al-Qaeda operative? Should his status be litigated before he can be targeted, and if so, by whom, for how long, and on the basis of what evidence? Can he show up in court to confront his accusers, a basic element of the Anglo-American system?
It is self-evidently absurd. Civil libertarians lament that the argument of the white paper parallels the reasoning of the Bush administration. No kidding.
It’s not for nothing that the author sounds like he could have worked for Dick Cheney. The Obama administration’s approach reflects the logic of the laws of war, the structure of American government, and the exigencies of the fight against al-Qaeda.
It is well-established by the courts that an American citizen who is an enemy combatant can be treated as an enemy combatant. It is also well established by the courts that it is not the role of the judiciary to interfere in the executive branch’s conduct of a war. When an American citizen joins a shadowy band at war with America and operating in areas beyond the reach of law enforcement, he is a legitimate target.
This is not to say that the white paper is beyond reproach, or that it should have been kept secret for so long, but the basic point would seem obvious.
Democratic partisans might be confused. They considered Bush a threat to America’s liberty because of his defense of his war powers, yet their hero now stands on similar ground. How to resolve the contradiction? Easy. Conclude that they were wrong the first time.