David Shipler writes:
The Obama administration should release the secret Justice Department memo justifying the placement of an American citizen, Anwar al-Awlaki, on the CIA’s kill list. The legal questions are far from clearcut, and the country needs to have this difficult discussion. A good many Obama supporters thought that secret legal opinions by the Justice Department—rationalizing torture and domestic military arrests, for example—had gone out the door along with the Bush administration.
But now comes a momentous change in policy with serious implications for the Constitution’s restraint on executive power, and Obama refuses to allow his lawyers’ arguments to be laid out on the table for the American public to examine. Shakespeare’s line in Hamlet on the “insolence of office” comes to mind.
The questions are legion. If U.S. government officials are being accurate and truthful in both their attributed and anonymous statements, Awlaki was placed on the list only in April 2010, after he had “gone operational” and had crossed the line between speech and action. Did the lawyers think that the First Amendment protected even his fiery rhetoric, easily available to potential jihadists by Internet, which had inflamed a few wannabe terrorists? Did they require that he actually take a hand in some planning before he could be considered worthy of the drone strike that killed him in Yemen? Hours after his death, President Obama awarded him a posthumous promotion, calling him for the first time “the leader of external operations for al-Qaeda in the Arabian Peninsula.”
What is the basis for this grand title? There is no doubt about his words—anybody can still hear and read them—but the picture of his actions is sketchy, derived from unverified intelligence. Given how wrong the CIA was about weapons of mass destruction in Iraq, is it really sufficient to base a death warrant on intelligence operatives’ untested assertions? How can their accuracy be checked? Does the Fifth Amendment’s right to due process extend to Americans overseas? Due process, after all, was the Framers’ effort to enhance the accuracy of the criminal justice system. Is there another way that an independent review can be done before a missile is sent in the direction of some named person who is not on a battlefield? Isn’t it strange that under Obama’s reasoning, the president can’t order torture but can order death, that he needs a judge’s authorization to listen to an American’s phone overseas but needs no such judicial approval to end the citizen’s life?