Obama drone memo reveals war of laws in Washington

All is fair in love and war, some say. But there is very little love lost in Washington, so let’s just talk about what’s fair in war.

As a society, we often equate fairness with adherence to a common set of rules. “[A] strong middle class can only exist in an economy where everyone plays by the same rules, from Wall Street to Main Street,” President Obama has often said, with some variation. The rule of law is fundamental to our country’s self-conception, and when people perceive it to be under attack—whether by Democrats, Republicans, or faceless bureaucracy—an alarm will sound.

On February 4, the Department of Justice leaked a white paper on the legal use of lethal force against Americans in foreign countries “outside the area of active hostilities”. NBC News’ Michael Isikoff, who obtained the document and shared it with the world, did so at a uniquely interesting moment. As the memo has caught fire over the past week, we have seen the media and Congress react in such a way as to demonstrate that the conjoined issues of administrative secrecy, drone strikes, and extra-judicial killing, have leapt to the top echelon of contested areas in American politics. As many observers would say, it’s about time.

A HuffPost/YouGov poll taken during the week after Obama’s second inauguration found that nearly half of Americans—45%—approved of Obama’s handling of his duties of commander-in-chief, while 40% disapproved. This measure split cleanly along party lines, with 76% of Democrats approving and 76% of Republicans disapproving. The same poll asked whether Americans approved of the administration’s use of unmanned aerial drones to kill high-level terrorism suspects in foreign countries. Here still substantial majorities in both parties (66% of Democrat and 57% of Republicans) approved. Embrace of drones waned, however, when voters learned these suspects could be American citizens. 51% of Democrats and 43% of Republicans supported these strikes. There is a clear split in opinion that must be discussed, and recent developments are finally making this possible.

The white paper seems to give the administration latitude to carry out drone attacks anywhere it sees fit; “The Department [of Justice] has not found any authority for the proposition that…in a new nation, an operation to engage the enemy in that location cannot be part of the original armed conflict, and thus subject to the laws of war governing that conflict.” In other words, the sorts of drone strikes we have seen in Pakistan, Somalia, and Yemen could occur anywhere else where the administration believes Al Qaeda or an affiliate may be operating. While the white paper justifies taking such steps with Supreme Court cases and a raft of literature on international law, it broadens its reach too far by asserting its right to conduct operations “with the consent of [a] host nation’s government or after a determination that the host nation is unable or unwilling to suppress the threat posed by the individual targeted.” In other words, consent is only consent at the administration’s convenience.

Then there’s the effort to divest “imminent” of any significant meaning. A drone strike can be carried out, according to the memo, if “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.” But this official need not “have clear evidence that a specific attack…will take place in the immediate future.” The administration cites 9/11 as reason to discard a definition of “imminent” that allows preparations for an attack to conclude. Al Qaeda “demands a broader concept of imminence” because its operatives are “are continually plotting attacks against the United States.”

John Brennan, President Obama’s chief counter-terrorism advisor who is currently awaiting Senate confirmation as the next Director of the CIA, was among the most influential architects of this administration’s drone policy, and his confirmation hearings have tested his ability to defend them. Some of the rhetoric displayed by members of the Senate Intelligence Committee showed the kind of apprehension stirring up in the halls of Congress. “Every American has the right to know when their government believes it’s allowed to kill them,” said Sen. Ron Wyden (D-OR) to Brennan last Thursday. The Committee’s chair, Sen. Dianne Feinstein (D-CA), argued that the CIA’s drone strikes should at least be reviewed by an independent agency or secret court. This would reincorporate some shadow of checks and balances into the executive’s pursuit of drone warfare, and, for liberals, take some of the sting out of confirming Brennan, a man deeply connected to policy on drone strikes as well as interrogation techniques during the past decade.

But Sen. Lindsay Graham (R-SC) has vowed to block Brennan’s confirmation (along with that of Chuck Hagel, nominated for Secretary of Defense), not owing to doubts about administrative secrecy regarding drone policy and belligerent engagement with other countries, but to his and other GOP members’ fixation on last year’s terrorist attack on Americans in Libya. The GOP has also devoted its energies to blocking Robert Cordray, the long-embattled nominee for (and current) director of the Consumer Financial Protection Bureau (CFPB). What makes all of these nomination fights related?

Republicans loathe many aspects of President Obama’s agenda, as well as the prospect of appearing weak to the most conservative elements of their party. Filibustering confirmations, from this perspective, is a great way to make a stand. Republicans are using Cordray’s nomination as leverage to revamp the CFPB’s regulatory powers and structure and put it under congressional oversight. Political scholars such as Thomas Mann and Norman Ornstein have called such tactics a form of “new nullification” that removes the executive’s ability to implement law—a hostage-be-damned chokehold on the federal government. (Not much of an exaggeration in my view.)

Mann & Ornstein’s, however, is not the only kind of “new nullification”. The Obama administration has been extraordinarily successful at realizing its vision for war, but this has come at the expense of nullifying traditional checks on the executive, and is facilitated by forms of technology that the framers of the Constitution could never have seen coming. The low cost of drone warfare, in dollars and in American lives, has made it a resoundingly popular option among Americans, and the government’s secrecy has protected it from becoming a mature issue in the mass media. These conditions have allowed it to flourish.

No objective value judgment could weigh the nullification of war power limits against nullification of domestic policy initiatives, but both should be deeply concerning for those who regard the rule of law as key priorities at home and abroad. It is unlikely that anyone in Congress will publicly associate these issues with each other, or act on them as such, but they go hand in hand. Simply put: The executive needs more latitude in this country, and less overseas. If the fights against Cordray and Brennan were to be considered in the same terms, then they might no longer be lopsided, but fair contests. A broad re-allotment of political power might be made possible, and the rule of law—whether having force in an agency trying to hold down credit card interest rates or in a dark room housing a control panel attached to a flying drone—might find itself on more solid ground.


—Lane Kisonak ‘13 is a Political Science major. He is Opinions Editor of The Miscellany News.

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