On Monday, the U.S. Court of Appeals for the Second Circuit released a previously secret Justice Department memo which the Obama administration used as legal justification for the targeted drone killing of Anwar al-Awlaki in 2011. Awlaki was a U.S. citizen who had gone to Yemen after 9/11 where it was alleged he became a propagandist for al Qaeda. Although the White House thinks the assassination of U.S. citizens can be a constitutionally acceptable remedy for combating terrorism, there are two especially troubling aspects about the justification behind it, one of which is exemplified in this excerpt from the memo:
"In the present circumstances, as we understand the facts, the U.S. citizen in question [Awlaki] has gone overseas and become part of the forces of an enemy with which the United States is engaged in an armed conflict; that person is engaged in continual planning and direction of attacks upon U.S. persons from one of the enemy's overseas bases of operation; the U.S. government does not know precisely when such attacks will occur; and a capture operation would be infeasible."
Baked into this rationale is a very dangerous idea -- namely, that the whole world is a battlefield on which the U.S. can operate in perpetuity. The "enemy" in question here isn't a state, but a terrorist organization that isn't all that well defined, and one that operates in multiple countries. It was the 2001 Authorization for the Use of Military Force that gave the Bush administration wide latitude for pursuing those who were involved in the planning of the September 11 attacks, and President Obama has taken this to mean not only al Qaeda, but "associated forces" as well.
But since al Qaeda is not a state, the U.S. cannot officially declare war on it, and for the same reason, al Qaeda cannot legally surrender. So for all intents and purposes, as long as there's an al Qaeda (however defined), this "armed conflict" will exist and continue to serve as a justification for the expansion of executive power, as is wont to happen during times of "war."
The other troubling part of this is the utter lack of transparent due process involved, which Attorney General Eric Holder tried to explain away by maintaining that even though Awlaki wasn't given judicial process, he was given due process, which involved a secret panel placing him on a kill list. So while the White House believed Awlaki was a threat to the U.S., at no point did the administration feel as if it should be burdened with having to prove it a court of law, which is a founding principle of American justice. Not only did the administration marshal no evidence in a court, but its revelations about Awlaki's alleged terror ties came in the form of anonymous leaks. That means what we knew of Awlaki's al Qaeda connections came from unnamed accusers in the Obama administration.
This isn't to say that Awlaki was innocent of the claims against him; nor is it to say he shouldn't have been punished. But fundamentally the executive branch is not constitutionally equipped or even sanctioned to pass judgment on the guilt of American citizens as judge, jury, and executioner.
You might think Obama is a great president and has never and will never use his power nefariously. But he will not be president forever. The precedents he has set will be looked to, followed, and even expanded by future presidents -- ones you may not like or even hate. If you're prepared to give one president sweeping powers in the name of fighting terrorism, you need to be prepared to give it to all of them.
Including this guy.