It is time for President Barack Obama to reconnect with his inner Constitutional scholar and release all internal documents that could illuminate his legal rationale for the killing of an American citizen suspected, but never convicted, of terrorism.
U.S. District Court Judge Colleen McMahon all but begged the Obama Administration this week to explain more fully why a policy that targets suspected militants, including Americans, for “extrajudicial killing” is not a violation of U.S. and international law. She stopped short of ordering the Justice Department to release its internal memos because, she wrote, her hands were tied by “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.”
Judge McMahon’s exasperation was evident throughout her decision denying requests under the Freedom of Information Act by The New York Times and the American Civil Liberties Union for information about the “targeted killing” by a drone missile in Yemen on Sept. 30, 2011 of Anwar al-Awlaki, a radical Muslim cleric born in New Mexico. Samir Khan, a naturalized American citizen and Al Qaeda propagandist, died in the same strike.
The decision by the plaintiffs to appeal is an invitation for a vigorous and long-overdue public debate about the covert and deadly use of unmanned drone attacks as part of the U.S. war on terror, especially against American citizens.
Foreign-policy-by-assassination might make for compelling plot-lines on Showtime but more considered discussion ought to precede any decision to make “Homeland” the blueprint for U.S. anti-terrorism tactics. Otherwise, we risk the collective hangover we suffered under President George W. Bush when we surrendered our critical judgment and our principles to the visceral appeal of Jack Bauer’s taste for torture on “24.”
Only by examining the internal legal research memos from which the Obama Administration constructed its policy can the public truly assess whether such executions are really measures of last resort or the dawn of a new legal doctrine redefining the Fourth and Fifth amendments’ guarantees of due process. Obama’s assurances alone do not suffice in a democracy founded on open and spirited public debate.
Awlaki’s incendiary rhetoric certainly defined him as a foe of the U.S. Whether he was also an active Al Qaeda operative central to the botched attack by the so-called “underwear bomber” who tried to bring down a Detroit-bound plane on Christmas Day in 2009 was a question better resolved by trial in a U.S. courtroom than by missile in a Yemen street. At the very least, the American people are entitled to know exactly why the Obama Administration chose the latter course.
Relatives of the deceased men filed a wrongful death suit against the U.S. earlier this year so the demand for these memos are sure to resurface in federal court. Releasing them voluntarily on the eve of his inauguration to a second term would restore the promise of Obama’s first full day in office in 2009 when he vowed that “transparency and rule of law will be the touchstones of this presidency.”
It has been a pledge he has too often honored in the breach. The candidate who castigated George Bush for his reliance on secrecy to hide questionable covert activities became the president who hoisted the same shield to deny the public full access to information about the Bush Administration’s use of extraordinary rendition and the secret wiretapping of American citizens. His promise to err on the side of transparency in reviewing Freedom of Information Act requests has fallen far short of full accountability.
There are, to be sure, state secrets that must be kept. There is, however, no justification for the reflexive invocation of “national security” to keep the American people in the dark when their liberty, if not their very lives, hang in the balance.