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The Opacity of a Shadow War

by NICHOLAS SAIDEL

The Obama administration scored two victories this month, both of which expand its ability to wage its targeted killing campaign against America’s “enemies” unencumbered by checks from the Judicial Branch, Congress or the American people.  The first victory came on January 2nd in the form of a court decision in the case of the New York Times et. al. v. the U.S. Department of Justice.  In that case, Judge Colleen McMahon rejected Freedom of Information Act (FOIA) requests made by the NY Times and the American Civil Liberties Union (ACLU) to the U.S. government to disclose documents demonstrating the legal reasoning behind the decision that it is lawful to target people, and specifically U.S. citizens, under the Authorization to Use Military Force statute (AUMF) and other applicable domestic and international laws.  The Court held that any responsive documents, should they even exist, are either properly classified, fall within certain FOIA exemptions, or are otherwise undisclosable due to various privileges asserted by the government.  In so holding, the Court further cemented the veil of secrecy behind which the Obama administration is conducting its targeted killing program, suppressing from public view information critical in determining the constitutionality of the program.

Given the laws on the books and the case law precedent marshaled in favor of the government’s argument, it does not appear there was much Judge McMahon could do to make the drone program more transparent to the public.  She even stated as such, declaring:  “I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret.”  This is not the first time a court has proven either incapable or unwilling to delve into the constitutional questions raised by the government’s targeted killing program.  In Aulaqi v. Panetta, the court held that the father of Anwar al-Awlaki, whose American-born son was killed by a drone strike in Yemen in September of 2011, did not have standing to sue on his son’s behalf, and that the ACLU’s request for judicial review raised “political” questions that the court could not decide.

This judicial reticence could not come at a worse time.  Drone attacks are apparently on the rise in 2013 after a two-year downward trend since 2010.  As of January 8, 2013, there were already six strikes in eight days in Pakistan, leaving thirty-five dead.  And as America’s overt war in Afghanistan draws to a close, covert operations such as drone attacks will be America’s defining counter-terrorism strategy for the foreseeable future.  Americans have rightfully grown weary of conventional wars given the toll they take in both blood and treasure.  As shadow wars are quickly becoming the prevailing approach, controversial issues about the targeted killing program, such as its constitutionality as applied to U.S. citizens and the extent of Presidential power under the AUMF, need to be resolved now not later.

The legality of the program, which is entirely a function of the Executive Branch with no form of judicial review, has come under much scrutiny, especially since Awlaki’s killing.  As a citizen, Awlaki was entitled to due process as guaranteed by the Fifth Amendment of the U.S. Constitution, which states in relevant part: “No person shall be deprived of life, liberty, or property, without due process of law.”  In almost all cases, that right has been construed as entailing the right of the accused to have an opportunity to present his or her case before a fair and impartial tribunal, i.e. a trial.  Awlaki, who was never publicly charged with a crime and whose location in Yemen effectively rendered him removed from any “hot” battlefield, was deprived of a trial.

The Obama administration, through a number of speeches made by officials such as Holder and State Department legal advisor Harold Koh, has made a general case for their position.  The government contends that due process does not always mean judicial process, especially in the context of war.  As Attorney General Eric Holder put it:  “Where national security operations are at stake, due process takes into account the realities of combat.”  The government further argues that Awlaki’s capture was not feasible, that he posed an imminent threat of violent attack against the United States, and as such, his extra-judicial killing was, and is, constitutional.  This cosmetic analysis is less than what Americans deserve, a point driven home by the plaintiffs in the New York Times case.

Admittedly, the government’s reasoning, if backed by persuasive legal authority, might prove adequate to constitutionally circumvent due process as traditionally defined.  However, for this to happen, the government must first disclose and defend its legal analysis in a court of law (and to Congress and the American people), which can then rule with finality on the constitutional questions raised.  It is not within the purview of the White House or the Pentagon to decide the constitutionality of its own actions in circumstances of this magnitude.  Without judicial review of the due process issue, the Obama administration and its successors will have carte blanche in the targeting and killing of U.S. citizens abroad and probably at home as well, a truly bone-chilling prospect.  The Supreme Court, in Rumsfeld v. Padilla, affirmed that a U.S. citizen picked up on U.S. soil can be put into military detention pursuant to the AUMF.  Given Padilla and the government’s vague due process “standard,” there is little reason to believe the government wouldn’t kill a U.S. citizen on U.S. soil whom it determines can’t feasibly be captured and who poses an imminent threat to the United States.

That the FOIA doesn’t have explicit disclosure requirements for government documents that justify killing American citizens is outrageous and makes judicial review much more difficult to attain.  With the courts currently hamstrung, it is up to Congress to take the lead in reining in this overextension of Executive power and to investigate the due process issue more thoroughly.   Up until now, like the judiciary, Congress too has failed in this regard.  This is a fact best evidenced by Obama’s second recent victory, the passage of the National Defense Authorization Act for 2013 (NDAA 2013).

With the passage of NDAA 2013 on January 2nd, Congress expanded Presidential authority to detain individuals, perhaps indefinitely, pursuant to the AUMF.  While the Supreme Court in Hamdi v, Rumsfeld confirmed U.S. citizens detained under the authority of the AUMF have the right to writ of habeas corpus, this is only a minimal protection when considering the full penumbra of constitutional rights that should be guaranteed under the NDAA 2013.  The NDAA 2013 erodes the limits on Executive power as originally enshrined in the AUMF, which was signed into law soon after 9/11.  The goal of the AUMF was to give the President authority to use force against those responsible for 9/11.  The AUMF states: “[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

The NDAA 2013, while not discussing targeting and killing, broadens the scope of the AUMF in the context of detention by removing the 9/11 nexus.  It redefines the enemy as “a person who was a part of or who substantially supported al-Qaeda, the Taliban, or associated forces who are engaged in hostilities against the United States…”.  More than coincidentally, the term “associated forces” has been read into the AUMF for some time now by the Obama administration, and the Bush administration before it, for targeting and killing.  The “associated forces” doctrine gives greater leeway to the Executive to detain, target and kill individuals who had no connection to al-Qaeda’s 9/11 attack, but who now support groups “associated” with those involved in 9/11, e.g. al-Qaeda Arabian Peninsula (AQAP), The Pakistani Taliban, Somalia’s al-Shabaab, and others.  In fact, Awlaki’s killing was justified under the “associated forces” doctrine, as the government never claimed he bore any responsibility for the 9/11 attacks.

The AUMF has thus evolved (read: devolved) from a backward-looking authorization of force to a forward-looking authorization with an expanded notion of the enemy and no guidance as to when the enemy is considered defeated.  The NDAA 2013, through its provision augmenting Presidential authority vis a vis detention, is setting the stage for a codification of Obama’s broad interpretation of the AUMF in the context of targeting and killing.  It should be noted that Senators Diane Feinstein and Mike Lee did try to amend the NDAA 2013, to provide some protections to American citizens.  But their amendment, which passed in the Senate, was replaced during reconciliation with  watered down language that merely reaffirmed U.S. citizens’ right to habeas corpus.  Thus, Congress has not only failed to limit this power grab by the Obama administration, but rather in a rare and tragically ironic showing of bipartisanship, it is now complicit in entrenching this Executive overreach.

Instead of sanctioning sweeping Executive power to wage a global war against an undefined enemy for an indefinite period of time, Congress should amend the AUMF to clarify and limit its scope, and to delineate whether, and if so under what conditions, it can be applied to U.S. citizens.  Perhaps Congress could codify the need for judicial or Congressional oversight as a necessary constitutional safeguard for U.S. citizens on Obama’s kill-list.  It would also be wise to reaffirm the longstanding principle that U.S. citizens charged with treason be tried in a court of law.  Additionally, Congress could subpoena documents and individuals, threaten and cajole using the power of the purse, hold hearings and investigations, and generally play a more proactive and participatory role with the Obama administration in the execution of this covert war.  At the least, such an effort would increase the transparency of the drone program and could serve to identify and hold individuals accountable.

Congress should be motivated to act.  During the Presidential election, Obama essentially admitted kill-list decisions were made on an ad-hoc basis.  The President went on record to state he was in the process of codifying the kill-list processes, a move intended to bind a future President Romney had Obama lost the election.  There has been no update on this issue since Obama’s victory.  The fact that the kill-list decisions are made ad-hoc, a valid presumption given Obama’s attempt to codify, only adds to the uncertainty surrounding the constitutionality of the program.

Moreover, Obama has appointed the architect of the targeted killing program, John Brennan, to Director of the CIA.  Such a move casts further doubt on the program being made more open to judicial or public oversight.  As background, there are actually two distinct drone programs, one run by the CIA and the other by the military.  The CIA program has been much maligned due to its inherently more secretive nature and the fact that CIA operatives are civilians whose right to kill hangs on dubious legal authority.  Furthermore, unlike their counterparts in the military drone program, the CIA operatives and their targets are oftentimes not located in countries in which America is at war.  With the forthcoming appointment of Brennan, Obama is signaling that he is not willing to discard the CIA program in favor of the less opaque military program, as many have suggested, but rather augment it.  One silver lining is that Congress will have the opportunity to question Brennan before his confirmation, which will perhaps instigate a more robust national conversation on the efficacy of the targeted killing program and the legality thereof.

The federal government is killing Americans without trial and withholding from public view the legal basis it believes grants such authority.  Moreover, the federal government has enacted laws, such as the NDAA 2013, that could lead to the indefinite detention of Americans and the further expansion of Presidential power to conduct a global shadow war only loosely related to 9/11.  Yet there is little public outcry.  Many on the left trust Obama more so than they did Bush, and therefore, show Obama more deference when it comes to the potential for infringement of civil rights.  And many on the right support a muscular foreign policy, particularly as it applies to the Islamic world.  There is unfortunately no end in sight to this toxic combination of acquiescence to the will of the Executive Branch.

Most Americans haven’t been shocked into action from the countless reports of innocent Yemenis, Somalians, and Pakistanis being killed as a result of the targeted killing program.  Most Americans don’t see how it is ruining America’s already shaky alliance with the Pakistani government, or how it is helping al-Qaeda recruit more terrorists – conceivably more than are being killed.  Most Americans don’t yet know about the drone arms-race that is now taking place around the world and specifically in countries somewhat hostile to U.S. interests such as China, Russia, Iran, and Venezuela.  And most Americans don’t grasp just how dangerous a precedent our targeted killing program is setting within the international system, one that violates longstanding principles of national sovereignty and which could one day be used to justify foreign drone attacks within the United States.

While Americans should care deeply about these significant issues, one would think they would at least care about themselves and their fate under such a legally opaque and lethal governmental program.

Nicholas Saidel can be reached at: nicksaidel@gmail.com 

 

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