I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.
When a Hellfire missile fired from a drone aircraft operated by the Central Intelligence Agency struck ground in Yemen last month, it killed two American citizens. One was New Mexico-born Anwar al-Awlaki, 40; the other was Samir Khan, 25, who publishes media for Al Qaeda promoting terrorism.
Al-Awlaki, says the American government, is a terrorist. Officials say he had crossed the line between propagandist and operations planner. That earned him a spot on a kill-or-capture list nearly two years ago. Is he a bad guy? Probably. Did he deserve to die? Perhaps. But neither “probably” nor “perhaps” is the standard for conviction in American criminal trials — beyond a reasonable doubt.
So, reports Charlie Savage of The New York Times, the Justice Department’s Office of Legal Counsel more than a year ago crafted a 50-page memorandum. It justified the killing of an American citizen without benefit of trial, reports Savage. According to the unnamed sources quoted by Savage, the document provided steps to bypass the Fourth and Fifth amendments regarding unreasonable seizure and due process of law. Such extralegal acts, coupled with the American military’s global reach, raise troubling questions few in power — or seeking power — are willing to address publicly.
The Obama administration has refused to detail its role in the killing of al-Awlaki. The memorandum itself is secret. Savage’s reporting, using sources who refuse to go on the record, notes that the document lays out only the case for capturing or killing the charismatic propagandist — no one else. That is, perhaps, until another American citizen is labeled a terrorist. And Khan? No secret memorandum permitted his killing. Merely collateral damage, reports Savage.
If the Obama administration believes it has a legally sufficient case for killing an American citizen without due process, then it ought to make it public. Now. Release the memorandum for inspection. After all, wouldn’t that be the change toward transparency we were told we could believe in?
The American Constitution, it seems, is caught between a rock — the threat of terrorism on American soil — and a hard place — the rule of law. We have seen how the previous administration treated due process using a contorted legal argument for enhanced interrogation, or what many argue is torture. The Obama administration has trumped that, using a secret memorandum to justify the killing of an American citizen.
As a nation, we are wading into an increasingly dangerous, ambiguous moral quagmire. At home, we have watched as the Patriot Acts have traded privacy for security. Abroad, we have begun to demonstrate a willingness to forsake our centuries-old value system embodied in the Constitution. Writes John Farmer Jr., dean of the school of law at Rutgers:
Moreover, the killing of Awlaki illustrates just how far the government has come over the past decade in its willingness to depart from prior legal and military doctrine to battle al Qaeda. In virtually every respect, the action taken against Awlaki — the targeted killing of an American citizen by a CIA-fired missile outside the battlefield zones of Iraq or Afghanistan — would have been unthinkable a decade ago.
We have the ability to kill whomever we wish. (It may take some time. But we got bin Laden.) We spend as much money on the American military as the rest of the world combined spends on theirs. According to Andrew Bacevich in his book “Washington Rules: America’s Path to Permanent War”:
The United States currently has approximately 300,000 troops stationed abroad, again more than the rest of the world combined (a total that does not include another 90,000 sailors and marines who are at sea); as of 2008, according to the Department of Defense, these troops occupied or used some 761 “sites” in 39 foreign countries, although this tally neglected to include many dozens of bases in Iraq or Afghanistan; no other country comes even remotely close to replicating this “empire of bases” — or to matching the access that the Pentagon has negotiated to airfields and seaports around the world.
Don’t mistake my comments for a pacifist’s rant. It is time to reflect on military actions taken in our collective name that offend the Constitution. But that won’t happen in a climate in which a presidential candidate proclaims that in his administration, America’s military will reign supreme. Here’s the GOP’s Mitt Romney last week:
The United States should always retain military supremacy to deter would-be aggressors, and to defend our allies and ourselves.
I’d like to believe that the United States will always be able to defend itself at home and abroad. But if Mitt wants more for the military, we have to ask: Don’t we have enough already? Is more the wisest use of money given so many pressing domestic needs?
Something important is missing in the plethora of presidential candidate debates past and future. Where is the intelligent reflection on the costs of American extra-constitutional actions and the size and function of its military? Where is the discussion of whom we have become — and why — and how, if possible, we can return to whom we once were?
But such discourse is unlikely. We have a president who faces a struggling economy and the conduct of two wars while pretending not to be a Republican. He has challengers who believe opposition to gay marriage, adherence to tax pledges, protection of the “job creators” in high income brackets, and whether Romney is a Christian should trump any other issues.
No one wants to talk about the erosion of privacy and the rule of law. Keeping America secure no matter the cost is the ticket to staying in or obtaining power. These issues surrounding America’s military might and presidentially condoned, extralegal actions taken with that might are ugly and complicated. It may well be there are no angels anywhere — merely demons of necessity on the one side and weaklings on the other, as a friend told me. But politicians, the public, the press, and pundits should raise the issues much higher on the national radar — or we might remain in James Forrestal’s state of semiwar permanently.
h/t: Dr. Sam Smith, Andrew Bacevich