President Obama has been lucky in many ways, but no more so than in not having a Senator Barack Obama to assail his use of Presidential war powers. For surely Senator Obama would now be denouncing the ways that President Obama has embraced the unilateral, even pre-emptive powers that George W. Bush used in prosecuting the war against al Qaeda.
The latest example is the leak to NBC News of a Justice Department "white paper" that summarizes the legal justification for using drones to kill al Qaeda operatives, including American citizens. The white paper summarizes a more detailed legal explanation from Justice's Office of Legal Counsel (OLC) that remains classified—again, like the habits of the supposedly too secretive Bush Administration.
You may recall that Mr. Obama and Eric Holder, before he became Attorney General, denounced the OLC memos that explained why waterboarding and other "enhanced interrogation" techniques were legal. Once he became Attorney General, Mr. Holder ostentatiously made four of those memos public on April 16, 2009, along with plenty of moral preening about how the new Administration had banned that sort of barbarism.
Yes, this crowd doesn't arrest and interrogate suspected terrorists. It merely blows them away with missiles from the sky.
Hypocrisy aside, the Justice Department makes an adequate legal case. If John Yoo or Dick Cheney had written it, the document would no doubt be less defensive in asserting executive powers. There might be less talk about "balancing analysis" and more of Constitutional prerogatives. But the Obama paper gets to the correct legal conclusion.
The white paper is naturally being denounced on the anti-antiterror left, which only shows how out of this world these critics are. They claim the Administration has no legal basis for drone strikes, but that ignores the Authorization for Use of Military Force passed by Congress after 9/11 and various National Defense Authorization Acts. Both explicitly give the President the power to capture and kill members of al Qaeda and its allies who have taken up arms against the U.S.
Critics shout that the white paper is a license to kill anyone, anywhere, but that is also false. The memo limits the targets to "a senior operational leader" of al Qaeda "or its associated forces." Congress deliberately included the latter phrase because al Qaeda is a loose network that can strike in many places. It recognizes that this is a long conflict that will be fought in many places and that jihadists will seek new sanctuaries. But the white paper is not a justification to start targeting Tamil Tigers or Karen rebels in Burma.
As for the alleged lack of judicial review, a sure way to lose a war is to require that judges approve a list of enemy targets on the battlefield. In its Bush-era rulings, the Supreme Court merely allowed detainees the right of habeas review once they are in custody. It did not say a judge should have to approve drone strikes or determine who could or couldn't be attacked in battle.
Thursday, February 7, 2013
There's no mention here of the killing of Awlaki's 16-year-old son (who I doubt was a "senior operational leader" of al Qaeda), but other than that, a great editorial, "King of Drones":