Terrorism

Due Process Delivered by Drones

The contradiction at the heart of Obama's targeted killings

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When President Obama approves a drone strike against someone he identifies as a terrorist, John Brennan explained at his confirmation hearing last week, the missile fired from that unmanned aircraft is delivering prevention, not punishment. "We only take such actions as a last resort to save lives when there's no other alternative," said Brennan, the counterterrorism adviser Obama has picked to run the CIA. 

A Justice Department white paper leaked a few days before Brennan's hearing likewise describes death by drone as an "act of national self-defense," part of an "armed conflict" with Al Qaeda and its allies. Yet the white paper also speaks of due process for American citizens condemned to death by the president, a requirement it says can be met through secret discussions within the executive branch. This contradiction at the heart of Obama's "targeted killing" policy, combining the rules of the battlefield with the rules of the courtroom, makes a muddle of both. 

Last month, in a decision that upheld the president's right to keep the memos summarized in the DOJ white paper under wraps, U.S. District Judge Colleen McMahon noted that "the concept of due process of law," guaranteed by the Fifth Amendment, "has never been understood to apply to combatants on the battlefield actively engaged in armed combat against the United States." That is how the Obama administration describes members of Al Qaeda and allied groups: Regardless of nationality, they are enemy combatants who legally can be killed at will, wherever they happen to be. 

Yet in a speech last March, Attorney General Eric Holder argued not that the Due Process Clause is irrelevant in this context but that President Obama's kill orders comply with it. "The Constitution's guarantee of due process is ironclad, and it is essential," Holder said, but "due process and judicial process are not one and the same." Similarly, in an interview with CNN last September, Obama claimed the procedures for identifying people subject to summary execution by drone, though confined to the executive branch, are "extensive" enough to comply with "our traditions of rule of law and due process." 

By saying that due process applies to drone strikes on suspected terrorists in places such as Pakistan and Yemen, the administration implicitly concedes that such operations are fundamentally different from shooting an enemy soldier during a battle. In the latter case, both the identity of the enemy and the threat he poses are clear, and so is the argument for self-defense. When it comes to people marked for death by the president, however, all of these issues may be matters of dispute. 

During Brennan's confirmation hearing, Dianne Feinstein, the California Democrat who chairs the Senate Intelligence Committee, was at pains to portray Anwar al-Awlaki, one of the three Americans killed by drones so far, as "a senior operational leader" of Al Qaeda who posed "an imminent threat"—the sort of target discussed in the DOJ white paper. Feinstein herself had to testify on these points because neither Brennan nor any other administration official will discuss the evidence against people targeted by drones. 

The lack of transparency is especially troubling because the administration's definition of "imminent threat" does not hinge on plans for a specific attack. Furthermore, the white paper explicitly leaves open the possibility that the criteria it describes, while sufficient to justify a presidential death warrant, may not be necessary, and it acknowledges no geographic limit on Obama's license to kill. Brennan conspicuously dodged the question of whether the president can order hits on U.S. soil. 

Given this alarming combination of deadliness and silence, it is not hard to see why, as Judge McMahon put it, "some Americans question the power of the Executive to make a unilateral and unreviewable decision to kill an American citizen who is not actively engaged in armed combat operations against this country." The real puzzle is why so many Americans seem happy to trust the president with this power.

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36 responses to “Due Process Delivered by Drones

  1. The real puzzle is why so many Americans seem happy to trust the president with this power.

    A completely compliant and uninquisitive press corps certainly helps.

    1. I don’t think so. I mean obviously the MSM is utterly on his knob, but it’s too easy to get actual information.

      Nope, reeks to me of half the people being willingly ignorant, and the other half actually believing he can do no wrong.

      All that’s left is a big ass portion that thinks that the white guy doing the same exact thing would be fine, and an infinitessimally tiny minorty that think it’s freaking ideologically wrong.

      1. Nope, reeks to me of half the people being willingly ignorant, and the other half actually believing he can do no wrong.

        These are not mutually exclusive, WRG.

          1. Ok, in which camp do YOU fall?-)

            PWND!

            1. I think it’s perfectly moral and ideologically sound as long as I’m the one in charge of the kill list.

              I would also accept Randy Quaid.

              1. Everyone needs a jester. I, for one, would demand Gary Busey. Nonstop lulz.

                1. It would be Corbin Bernsen for me, but he would have to stay only as Roger Dorn from Major League.

                  Every time he breaks character, I break his neck.

  2. …due process for American citizens condemned to death by the president, a requirement it says can be met through secret discussions within the executive branch.

    How easy Ruby Ridge and Waco would have been if Bush and Clinton had realized they had the power to provide due process wholly contained right there in the Oval Office.

    1. Didn’t they basically delegate due process to the FBI/ATF in those cases?

      1. well, Randy Weaver’s wife was holding a weapon of mass destruction… what else were they supposed to do?

        1. Did you SEE what was in that diaper?

  3. Future targeting deliberations:

    This political group is an enemy, and even though they’re in the US budget cuts make it impossible to capture them, so…

    1. “It would be legal, ethical and wise.”
      /Carney

  4. Sometimes dude you jsut have to deal with it man.
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  5. Edmund:
    Why, this piece of paper that Your Majesty has just signed turns out to be some sort of death warrant!

    Elizabeth:
    Oops. ?and I can’t go back on it without destroying the whole basis of the British Constitution?

    Edmund:
    I fear not!

    Elizabeth:
    Is there a name on it?

    Edmund:
    Well, yes, there is, actually? It says, “Lord”? er, I can’t read this terrible childish writing? er, “Lord?Mel?chett” ? “Lord Melchett”; that’s it.

    Melchett:
    [trying to grab the paper from Edmund] Ma’am! Ma’am! Ma’am! It’s a trick! You’ve been tricked!

    Elizabeth:
    Oh, good! Christmas is a time for tricks and japes and larks of all kinds. Tell you what, Blackadder: that’s so brilliant, I’ll execute Melchett instead!

      1. One of the bestest, I agree. Say what you want about Limey dentition and submission, but they can write some pretty good sarcastic, biting wit and comedy.

        1. Absolutely. The Blackadder series and the Yes, Minister/Yes, Prime Minister series are two of my all-time favorites.

          1. I have a soft spot in my heart for, “The Vicar of Dibley.” “Waiting for God” is also drenched in sarcasm.

            1. Yeah, “Waiting for God” is a good one. Haven’t seen “Vicar of Dibley”.

          2. In the Loop seems to me the pinnacle of it all. Although even though I work and live with Brits 24/7 I still have to watch it with the damn subtitles on.

  6. The real puzzle is why so many Americans seem happy to trust the president with this power.

    The operable word is “seem”. The answer is that so many Americans are simply oblivious.

    1. “Let be be finale of seem.
      The only emperor is the emperor of ice-cream.”

      1. Mr. Devoid of Glucose,

        Your Wallace Stevens allusions are wasted on these unread toilers in the crude mechanical arts. They are not deserving your learned wit.

        Next time, just post boobs.

          1. Make them bigger.

  7. I find the headline, “Due Process Delivered by Drones,” to be unnecessarily verbose. I recommend shortening it to “Drone Process.”

  8. The real puzzle is why so many Americans seem happy to trust the president with this power.

    It’s not a puzzle at all. TEAM BLUE = GOOD. TEAM RED = BAD. That’s all it comes down to really.

    1. Team Red will pick up that torch right where Obama drops it.

      How about no teams at all?

  9. “The real puzzle is why so many Americans seem happy to trust the president with this power.”

    Human nature. As Nietzsche succinctly put it “Men submit from habit to anything that wants to have power.”

    It is in the organic and wider nature of a collective to submit. I’ve studied enough dictatorships (both large and small) to finally understand that humanity can tolerate injustice as long as it partially informs their obedience.

    Humanity has conditioned itself to perpetually remain beholden to authority and deity. This weakens the human resolve to seek answers outside conventional and pre-designed routes.

    In fact, to investigate outside the crowd source is to reject the crowd- hence the scarlet letter affect one finds commonly within many cults, groups, organizations, and social cliques.

    So, if one is a self-important scribbling little fuck in the mainstream media and you wish to have a happy crooning career in the bowels of the white-wash factories it is best that you resist deviating from the prescribed vector outlined in your crowd initiation manual.

    1. ^This. Well put.

  10. So let me get this straight, anybody that’s an “imminent” threat to American’s, it’s okay to blow away? “Imminent threat” being the key factor, Obama fits right in that category. And the legislative, and judicial branches are okay with king obama doing their jobs? What do we need them for, think of the money we can save if we outsource them.

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