Back in December 2005, John Yoo was asked if any law or treaty could prevent the President of the United States from torturing someone, "including by crushing the testicles of the person's child." Yoo, then head of President Bush's Office of Legal Counsel at the Department of Justice, responded, "I think it depends on why the president thinks he needs to do that." To put it another way, the American people just have to take the President's word for it.
That's what makes the revelations in the Obama DOJ's white paper on lethal strikes targeting American members of Al Qaeda so disappointing--and so disturbing. President Obama or an unspecified "informed, high-level government official" will decide if an American citizen anywhere in the world represents an "imminent" threat to the United States, even if no evidence of a planned attack exists. With no oversight from Congress or review from the equivalent of a FISA court, the President and his team will act as judge, jury and executioner. Trust, but don't verify.
Voices as diverse as the Center for American Progress, former Bush assistant attorney general Jack Goldsmith and a bipartisan group of Senators have called for a new legal regime to govern America's expanding campaign of clandestine drone strikes and special operations. The concern arises not because the targeting of the enemy's operational leaders is a violation of U.S. or international law. (As Attorney General Eric Holder explained in his March 5, 2012 speech which first hinted at the existence of the DOJ guidelines, the killings of Japanese Admiral Yamamoto during World War II and Osama Bin Laden in Pakistan provide ample precedent for the President to exercise his powers as Commander-in-Chief under Article II of the Constitution.) Still, drones are rapidly transforming American national defense itself, with potential surveillance at home and the rising number of deadly strikes abroad altering the very definition of warfare. (It is worth noting that American drone warfare has not only triggered a probe by the United Nations, but more importantly is producing blowback in Pakistan, Yemen and other battlefields in the war against Al Qaeda and its affiliates.) But the targeting of American citizens is new territory altogether. And in the wake of this week's disclosures, Attorney General Holder's pledge to guarantee Americans' due process rights under the Fifth Amendment in March seems woefully insufficient:
Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces. This is simply not accurate. "Due process" and "judicial process" are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.
White House press secretary Jay Carney says the additions of American citizens to President Obama's secret kill list "are legal, they are ethical and they are wise." But for today, you'll have to trust President Obama on that. And in the future, you may need to have that same faith in President Rick Perry or President Mike Huckabee or President Marco Rubio or President Chris Christie.
Despite the claims of John Yoo and former Bush UN ambassador John Bolton, President Obama drone program targeting U.S. citizens is not "consistent with and really derived from the Bush administration approach to the War on Terror."
Yoo, after all, argued that the President's war powers under the Constitution trump any law or treaty. As he explained in defending President Bush's illegal regime of domestic surveillance by the National Security Agency (a program only later codified in August 2007 by Congress and renewed by President Obama in December 2012):
"I think that there's a law greater than FISA, which is the Constitution, and part of the Constitution is the president's commander-in-chief power. Congress can't take away the president's powers in running war. They are given to him by the Constitution, in the same way that Congress couldn't pass laws saying you can't invade Normandy or you can't place Europe first in World War II. There are some decisions the Constitution gives the president, and even if Congress passes a law, they can't seize that from him."
When it came to the Bush administration's use of so-called "enhanced interrogation techniques," Obama and Holder couldn't have disagreed more. After all, the notorious Bybee memo of August 1, 2002 stated that "this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions." The new paradigm for the likes of John Yoo? Tortured would now be defined as "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." In contrast, during his confirmation hearings Eric Holder declared simply, "waterboarding is torture." The Obama administration was adamant that the Geneva Conventions and Convention on Torture signed by Ronald Reagan were the law of the land.
Or, mostly the law of the land. After all, as Scott Horton pointed out, "Section 2340A of the federal criminal code makes it an offense to torture or to conspire to torture." Under its treaty commitments, the government of the United States is obligated to prosecute it. Nevertheless, even before his confirmation Attorney General Holder adopted a tried and untrue Republican talking point, promising "we don't want to criminalize policy differences that might exist" with the outgoing Bush White House. As President Obama put it after releasing the four "torture memos" in April 2009:
"In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution...
This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past."
But as the controversy over the Obama administration's white paper on lethal strikes against U.S. citizens, a great deal will be lost if the unprecedented expansion of executive power under presidents Bush and Obama is not checked. Having escaped prosecution in the wake of the February 2010 findings of the DOJ's Office of Professional Responsibility, John Yoo crowed in the Wall Street Journal about "my gift to the Obama presidency."
Barack Obama may not realize it, but I may have just helped save his presidency. How? By winning a drawn-out fight to protect his powers as commander in chief to wage war and keep Americans safe.
John Yoo isn't right. Barack Obama can't let him have even the appearance of being right. And that's why President Obama must act now to create a new framework for clarifying war powers in the 21st century.
Obama's decision to provide the Justice Department's classified memo on lethal drone strikes to the House and Senate intelligence committees is a good start, but it's hardly enough. Like the torture memos he released in 2009, President Obama should make the DOJ memo public. Congress should not only hold hearings, but institutionalize its oversight and require regular updates to the top Democratic and Republican members on both the Intelligence and Judiciary Committees. Given the proliferation of Al Qaeda franchises in North Africa and elsewhere, President Obama may need to consider a new authorization of military force (AUMF) to update or replace the post-9/11 approval from Congress in October 2001. In addition, an analog to the FISA courts may be needed to regularly review the legality and processes of the "kill list" program. (Prior review and approval of specific targets is neither feasible nor in keeping in keeping with the Commander-in-Chief's powers over war strategy and tactics.)
The U.S., as Goldsmith argues, "needs rules of engagement for secret warfare."
If not, a future presidents and a future John Yoo could make his or her dystopian view of unchecked presidential power the new normal. As Yoo explained when investigators from the Office of Professional Responsibility asked him if a president could legally order a "village of resistants to be massacred":
"Yeah," Yoo replied, according to a partial transcript included in the report. "Although, let me say this: So, certainly, that would fall within the commander-in-chief's power over tactical decisions."
"To order a village of civilians to be [exterminated]?" the OPR investigator asked again.
"Sure," said Yoo.
President Obama, don't be Yoo, too.
(This piece also appears at Perrspectives.)