To the Editor:
I search in vain through the Barron memo for a distinction that permits on the one hand the killing of the al-Awlakisbut, on the other hand, protects mr. Obama's political rivals, or nosy journalists, or me from a similar death. It is not there. Perhaps, characteristically, it is a secret, lost in the redaction.
But as I sit here, the precedent seems clear. This administration claims the power to kill anyone on secret (not to say fictive) evidence, without due process of law. That has no place in the rule of law, and should have none in the United States.
Barry Haskell Levine
The Opinion Pages | TODAY'S EDITORIALS
A Thin Rationale for Drone Killings
The Obama administration on Monday reluctantly released its justification for killing an American citizen, Anwar al-Awlaki, whom it considered a terrorist, in a 2011 drone strike in Yemen. But the rationale provides little confidence that the lethal action was taken with real care.
Under orders from a federal appeals court, the Justice Department made public a 2010 memo explaining why the drone strike was legal. Considering how long the administration fought the release, which was sought by The New York Times and the American Civil Liberties Union, one might have expected a thoughtful memo that carefully weighed the pros and cons and discussed how such a strike accords with international and Constitutional law.
Instead, the memo turns out to be a slapdash pastiche of legal theories — some based on obscure interpretations of British and Israeli law — that was clearly tailored to the desired result. Perhaps the administration held out so long to avoid exposing the thin foundation on which it based such a momentous decision.
The main theory that the government says allows it to kill American citizens, if they pose a threat, is the “public authorities justification,” a legal concept that permits governments to take actions in emergency situations that would otherwise break the law. It’s why fire trucks can break the speed limit and police officers can fire at a threatening gunman. But it’s a dangerous concept if expanded because it could be used to justify all kinds of government misdeeds, especially since Congress has never explicitly authorized an exception for official killing in this kind of circumstance, as the memo acknowledges.
The sheer power of drone strikes, several of which have killed many innocent bystanders, is in no way comparable to the kind of police shootings that the memo cites as precedent. (And, in most cities, police shootings are carefully investigated afterward, and officers face punishment if they exceed their authority. Has that ever happened with an errant drone strike?)
There’s no explanation given in the memo for how the United States knew Mr. Awlaki was planningimminent” mayhem, as the memo claims. It’s possible that this information was contained in the dozen or so pages that were redacted from the 41-page memo, which was written by David Barron, then an assistant attorney general who was recently appointed to a federal appellate court. The memo says only that Mr. Awlaki had joined Al Qaeda and was planning attacks on Americans, but that the government did not know when these attacks would occur.
Mr. Awlaki’s due-process rights are dealt with summarily. The “realities of combat” meant that no serious due process was possible, the memo said, citing the 2001 Authorization for Use of Military Force that allows antiterror measures anywhere. And the memo never questioned whether the Defense Department and the Central Intelligence Agency, which operate the drone programs, would properly follow international law. “We understand,” Mr. Barron wrote, that the two agencies “would conduct this operation in a manner that accords with the rules of international humanitarian law governing this armed conflict.”
Blithely accepting such assurances at face value is why these kinds of killings are so troubling, and why we have repeatedly urged that an outside party — such as the Foreign Intelligence Surveillance Court — provide an independent review when a citizen is targeted. How did the Justice Department know that capturing Mr. Awlaki was not feasible, or that the full force of a drone strike was necessary? This memo should never have taken so long to be released, and more documents must be made public. The public is still in the dark on too many vital questions.