President Obama believes he has unfinished business: gay marriage, immigration reform, debt reduction, and significant changes to gun policy. While the direction of Obama's domestic agenda is unabashedly liberal, foreign policy of this administration has a far more conservative taste. And yesterday revealed precisely how far to the right the president has moved. In some instances, the president's handling of foreign problems has been on point. But yesterday revealed a disturbing concept that seems to defy logic, and the United States Constitution.
NBC News provided a copy of a leaded Justice Department memo referred to as the "White Paper." This document sets a legal framework for the federal government may use lethal force against American citizens who are senior operational leaders of al-Qaeda or an "associated force" (the definition of which remains unclear).
The White Paper asserts three criteria must be met before lethal force can be authorized. The memo states:
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 would be conducted in a manner consistent with the applicable law of war principles.
So, what precisely is wrong with eliminating a terrorist threat under these guidelines?
The killing of an American citizen, even a terrorist, potentially violates the Constitution in multiple ways. According to the Fifth Amendment, all Americans are guaranteed not to be "... deprived of life, liberty, or property without due process of law ..." Procedural due process demands citizens be afforded every step of a criminal proceeding as provided for by law and the Constitution. Many of these steps in the process lie within the Sixth Amendment, including the right to a speedy and public trial, an impartial jury, the right to confront accusers, compel witnesses to appear, and the right to legal counsel. Killing an American accused of terrorism would appear to deny those rights.
The White Paper, however, examines the issue from a different perspective. The argument from the federal government proclaims the president has a constitutional duty to protect the citizenry (in this instance, from terrorist attacks) and thus, American citizens abroad are not immune from attack.
Legal precedent (see: Mathews v. Eldridge) requires that private interest must be weighed against the government interest in determining if due process rights apply in any given situation. In this instance, the life of an American citizen is balanced against the need for safety of the nation against attack. According to the Justice Department, protection of terrorists is weightier than any one individual's rights.
Even if we were to accept the constitutional logic of the Justice Department (which is questionable), the White Paper provides other chilling statements about the acceptable use of lethal force against American citizens. For instance, the memo expounds on the first criterion, by noting:.
"... the condition that an operational leader present an 'imminent' threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. personals and interests will take place in the immediate future."
In essence, this sentence suggests that a lethal strike against an American citizen need not require they be an imminent threat at all. The White Paper defends the government position by stating the nature of terrorism in the 21st century requires reassessing the term 'imminence.' Refraining from action against terrorists would not allow the United States sufficient time to thwart any plans for harm.
Part of the argument asserted by the federal government relies on the case, Ex Parte Quirin, which determined the fate of German spies who landed on the beaches of New York under military orders. In Quirin, the Supreme Court noted,
"Citizens of the United States who associate themselves with the military arm of an enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of the Hague Convention and the law of war ..."
I cannot argue with the Court's decision from the 1940s, however the word usage in Quirin deals with the military apparatus of a sovereign nation, not a group of religious fanatics. Though despicable, terrorists do not fight for a nation or 'enemy government'. I suppose the standard set forth in Quirin recognizes terrorist groups as an enemy government.
The White Paper memo, is disturbing, to say the least. However tempting it may be to simply eliminate terrorists, the fact remains that American citizens are being deprived of their rights. Moreover, Americans also take one step further away from freedom under the guise of safety.
Furthermore, the White Paper does not specify the location of where attacks on American citizens can take place. Does this memo include strikes on American soil? Will we see drones flying overhead? And more to the point, since the word 'imminent' no longer has any meaning to the federal government, at what point can we be arbitrarily labeled a terrorist who was an 'imminent' threat to use violence?
Perhaps the strangest circumstance from this entire situation is the fact that a liberal Democrat occupies the White House. Of course, I suppose this shouldn't come as a surprise considering the trend of conservative foreign policy stances (with respect to terrorism) President Obama has adopted since he first took office in January of 2009.
Obama reneged on his 2008 campaign promise to close the Guantanamo Bay detention center. He authorized use of drones for strikes in sovereign nations without their permission. During Obama's administration, two Republicans have held the post of Secretary of Defense (Robert Gates and presumptively, Chuck Hegel).
Few Americans seem to be questioning The White Paper as they should be. And naturally so. The last 11 years has demonstrated the willingness to sacrifice nearly any freedom when weighed against the War on Terror. Some of those sacrifices, such as airport security, are warranted. But where is the saturation point for Americans? At what point do citizens say 'no more'?
When we cave in to our fears at the expense of bedrock principles, the terrorists win. This is an instance where we are allowing fear to drive policy. Can anything else explain why President Obama, whose domestic agenda couldn't be any more liberal, would be so hawkish in the face of terrorism? I suppose no one, not even a second term president, can afford to be seen as soft.