The Real Problem with the Obama Administration’s Drone Memo

by John Yoo

Monday’s release of the Obama Justice Department’s memorandum approving drone strikes to kill Anwar al-Awlaki, an American leader of al-Qaeda, presented this administration’s usual combination of political hypocrisy and constitutional aggressiveness. It should worry Americans not for the reasons offered by Senator Rand Paul — that the U.S. cannot kill citizens who join the enemy — but because it continues the Obama administration’s effort to blur the lines between war and peacetime, between combat and crime.

On the point of hypocrisy, this memo is a sharp departure from Democrat arguments attacking the Bush administration’s war on terror. Recall that Democrats claimed that the war on terror was not really a war, that al-Qaeda could not be an enemy under the laws of war, and that force — if any could be used — had to be limited to the battlefield of Afghanistan. Recall that they accused President Bush of waging a global war where the U.S. could strike any target, anywhere, without recourse.

Notice now how the Obama administration has turned 180 degrees and embraced the Bush administration’s fundamental decision that the struggle against al-Qaeda allows military measures.

First, the U.S. can use force to kill al-Awlaki, even though he is not imminently threatening harm against an American. This is the normal rule for military operations — the U.S. can attack any member of the enemy forces at any time, even if he or she is behind the lines and engaged only in planning activities. But this is not the rule for criminal suspects. Just because the police cannot arrest a suspect does not allow the police to shoot a suspect — force can only be used, reasonably, if the suspect poses a threat of imminent bodily harm or death to someone. The police cannot use a bomb to remotely kill a criminal suspect who is planning a future crime.

Second, the Obama administration easily expands the battlefield to include any location from which a member of al-Qaeda might be planning attacks on the United States. This could be present whenever three members of al-Qaeda gather. It could even be where one member of al-Qaeda has an Internet connection. Al-Awlaki, for example, was apparently in Yemen at this time, a nation at peace with the U.S. where the U.S. is not conducting combat operations.

Third, where are the courts? There is no judicial review of al-Awlaki’s selection as a target. Obama’s DOJ claims that due process applies to him — a first for a military target in wartime. This cannot be right; otherwise, the United States owed Admiral Yamamoto due process before it sent an air force mission to shoot down his plane over the Pacific in 1943. In wartime, as our presidents, Congress, and courts have long recognized, our military cannot be hamstrung by judicial notions of due process in its selection of targets and its conduct of hostilities.

But if due process were to apply, the Obama has watered down the right into a thin brew. The memorandum identifies no standard of evidence that the government must meet to show al-Awlaki is a target. It provides no process — the very point of due process — that the government must follow to identify a target. It provides no opportunity for the affected party — here al-Awlaki — to challenge the government’s evidence. It provides no role for a neutral third party — almost always the courts in any other setting — to review the government’s decision.

Again, I think it is a mistake to think that due process applies to our armed forces in conducting wartime operations against the enemy. But if our nation is to take such a momentous step, the Obama administration has weakened due process to such an extent that it harms all of our rights — because these reduced standards for due process will inevitably be taken into account by future presidents and courts in other cases. But this is what comes from President Obama’s effort to transform the war against al-Qaeda into a hybrid beast that blurs the line between war and crime.

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