Drone Strikes: Obama Administration's Dick Cheney Moment

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[The View From Washington]

an interview in 2007 then Senator Barack Obama when asked
if a U.S. president had constitutional authority to bomb Iran without
seeking a use-of-force authorization from Congress said, "The President
does not have power under the Constitution to unilaterally authorize a
military attack in a situation that does not involve stopping an actual
or imminent threat to the nation."

And elsewhere when asked if the Constitution permitted a president
to detain US citizens without charges as unlawful enemy combatants,
Obama said, "No. I reject the Bush Administration's claim that the
President has plenary authority under the Constitution to detain U.S.
citizens without charges as unlawful enemy combatants."

In 2013 Americans are facing a president with a different mindset.

President does not have power under the Constitution to unilaterally
authorize a military attack in a situation that does not involve
stopping an actual or imminent threat to the nation. A recently leaked
White Paper, prepared by the Department of Justice, is providing insight
into the legal justifications for the Obama administration’s “targeted
killing” program. 

The 16-page document outlines the circumstances under which U.S.
government officials can "use lethal force in a foreign country" against
an American citizen.

The white paper concludes that "it would be
lawful for the United States to conduct a lethal operation outside the
United States against a U.S. citizen who is a senior, operational leader
of of al-Qa'ida or an associated force of al-Qa'ida without violating
the Constitution or the federal statutes discussed in this white paper
under the following conditions: (1) an informed, high-level official of
the U.S. government has determined that the targeted individual poses an
imminent threat of violent attack against the United States; (2)
capture is infeasible, and the United States continues to monitor
whether capture becomes feasible; and (3) the operation is conducted in a
manner consistent with the four fundamental principles of the laws of
war governing the use of force."

This legal framework also explains how lethal force can be used even
if the “high-level” government officials do not have “clear evidence
that a specific attack on U.S. persons and interests will take place in
the immediate future.”

In September 2011 the administration used drone strikes to kill
alleged al-Qaida operatives Anwar al-Awlaki and Samir Khan.  Al-Awlaki’s
16-year old son Abdulrahman al-Awlaki was also killed by a drone
strike. All three were U.S. citizens and none of them had been indicted
by the U.S. government for any crimes.

According to The Guardian  "the drone program now is
run out of the White House, where Brennan, the president's most trusted
counter-terror adviser, "helps Obama pick the targets  targets.” The reference is to John Brennan who has been nominated to head the CIA.

The rationale behind the administration’s “assassination by drone”
program sounds eerily reminiscent to former Vice President Dick Cheney’s
“one-percent doctrine.”  Cheney believed the so-called “war on terror”
empowered the Bush administration to invade sovereign countries and
violate American’s civil liberties without the need for evidence or
extensive analysis.

The facts did not matter.  According to Cheney, “If there's a 1%
chance that Pakistani scientists are helping al-Qaeda build or develop a
nuclear weapon, we have to treat it as a certainty in terms of our
response. It's not about our analysis." He concluded: "It's about our
response.”  The Obama administration's rationale for targeted killings
of American citizens contradict some of the basic framework of American
democracy: due process; habeas corpus; checks and balances; and, bills
of attainder. These are civil liberty protections guaranteed by the

Due process is such an important protection that it is referenced in the Fifth and
Amendments to the Constitution. The Due Process
Clause acts as a safeguard from arbitrary denial of life, liberty, or
property by the Government.  For the President or other “high-level”
government officials to act as judge, jury, and executioner irrespective
of "clear evidence” of any immediate wrongdoing is the clearest example
of arbitrarily denying life and liberty that one can imagine. Habeas
corpus requires a person under arrest to be brought before a judge in
order to dermine if an individual’s detention is warranted.  Article 1,
Section 9 of the Constitution states, "The privilege of the writ of
habeas corpus shall not be suspended, unless when in cases of rebellion
or invasion the public safety may require it."

The here is assassinations not arrests; but theoretically, by
summarily executing American citizens before they can even be detained
is a contradiction of the highest order. The concept of checks and
balances is an important part of the Constitution. Each of the three
branches of government can limit the powers of the others preventing any
one branch from becoming too powerful.

Under no circumstance should members of the executive branch be
allowed to condemn American citizens to death, even in times of “war”
without the review of an impartial judge.  This also violates Article 1,
Section 9  of the Constitution, “No Bill of Attainder or ex
post facto Law shall be passed.”  A Bill of Attainder is an act of a
legislature or executive declaring a person or group of persons guilty of
some crime and punishing them without privilege of a judicial trial.

The Department of Justice's White Paper also concludes that the use
of drone strikes for targeted killings would not be justified if it
violated the fundamental law-of-war principles “if anticipated civilian
causalities would be excessive in relation to the anticipated military
advantage.”  This is a reference to "collateral damage."

The administration has presented and defended drone strikes as an
“antiseptic” use of technology. CIA nominee Brennan defended drone
strikes as a more humane form of warfare. He said that "extraordinary
care" is taken to ensure they conform to the "law of war principles" but
stopped short of saying they are in compliance.

According to the Center for Research on Globalization, “At
the end of January 2013, the Bureau of Investigative Journalism was
able to identify by name 213 people killed by drones in Pakistan who
were reported to be middle-or senior-ranking militants. A further 331
civilians have also now been named, 87 of them children. But this is a
small proportion of the minimum 2,629 people who appear to have so far
died in CIA drone strikes in Pakistan. The Bureau’s work suggests 475 of
them were likely to have been civilians.”  

The administration has championed the use of drones as making
Americans safer by killing terrorists. Killing innocent people in
foreign countries creates more terrorists.

President Obama signed
the 2012 National Defense Authorization Act (NDAA) containing sweeping
worldwide indefinite detention provisions and signed into law a
four-year extension of post-September 11 powers (The PATRIOT ACT) to
search records and conduct roving wiretaps in pursuit of terrorists. 

The rationale behind the Obama administration's approach to civil liberties and warfare sounds eerily like a Dick Cheney moment.

Wilmer Leon is the Producer/ Host of the nationally broadcast call-in
talk radio program “Inside the Issues With Leon,” and a Teaching
Associate in the Department of Political Science at Howard University in
Washington, D.C.  Go to www.wilmerleon.com or email: wjl3us@yahoo.com. www.twitter.com/drwleon

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