The Vital Fight in Congress That Turns on a Blood-Stained Memo

The ACLU and numerous legislators want the Obama Administration to reveal the legal reasoning behind its targeted extrajudicial killing program.

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In a recent editorial, The Los Angeles Times published a sentence that everyone in America should read: "Allowing the president of the United States to act as judge, jury and executioner for suspected terrorists, including U.S. citizens, on the basis of secret evidence is impossible to reconcile with the Constitution's guarantee that a life will not be taken without due process of law," it states.

The editorial alludes to the language of the Fifth Amendment, which commands, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury ... nor be deprived of life, liberty, or property, without due process of law." It makes the basic point that the Constitution prohibits President Obama's targeted killing program. The ACLU makes the same argument in greater detail here.

What does the Obama Administration say in response? What legal reasoning does it employ to justify its conclusion that its actions are not in violation of the document the president swears to uphold?

That's the craziest thing about this case: So far, the government's legal reasoning has been deemed a secret. The memo that theoretically provides justification for this extraordinary power is being hidden. It's easy to understand why the government can't tell us where all our nuclear weapons are kept, the names of CIA agents, or the details of how the Secret Service guards the president. But what can justify its refusal to reveal its own understanding of U.S. law, especially when that legal analysis is used to justify the most extreme power that government claims?

As Emptywheel notes, it gets even worse. Two years ago, the Obama Administration claimed that judicial oversight of its targeted killing program wasn't needed in part because Congress served as a check. The relevant paragraph (citations omitted):

The nonjusticiability of the plaintiff's claims in this Court "does not leave the executive power unbounded." "The political branches effectively exercise such checks and balances on each other in the area of political questions," and "if the executive in fact has exceeded his appropriate role in the constitutional scheme, Congress enjoys a broad range of authorities with which to exercise restraint and balance." Accordingly, "the allocation of political questions to the political branches is not inconsistent with our constitutional tradition of limited government and balance of powers."

But in subsequent months the Obama Administration stymied every request from Congress for the legal memo that ostensibly justifies its targeted killing program. (See Emptywheel for all the details).

As the ACLU proceeds with its lawsuit to make the legal reasoning public, some members of Congress have launched a contemporaneous effort to force the Obama Administration to reveal its legal reasoning to Congress. Adam Serwer has a good rundown of the specifics in a piece published at Mother Jones:

Congress is considering two measures that would compel the Obama administration to show members of Congress what Sen. Chuck Grassley (R-Iowa) calls Obama's "license to kill": internal memos outlining the legal justification for killing Americans overseas without charge or trial. Legislators have been asking administration officials to release the documents for nearly a year, raising the issue multiple times in hearings and letters. But the new proposals, including one from Sen. John Cornyn (R-Texas) first flagged by blogger Marcy Wheeler and another in a separate intelligence bill, aren't requests--they would mandate disclosure. That shift shows both Republicans and Democrats are growing impatient with the lack of transparency on targeted killings ....
Cornyn's amendment would require the Obama administration to provide the Office of Legal Counsel memo justifying the killing program to legislators on several congressional committees. Democrats on the Judiciary Committee voted to shelve Cornyn's proposal, but that doesn't mean the effort is dead. Cornyn could propose his amendment again later this year, and there's also a section of a separate intelligence bill that would compel the administration to share all of the Justice Department's legal opinions on intelligence matters with the congressional intelligence committees -- unless the White House invokes executive privilege.

It is shameful that Democrats on the Judiciary Committee are helping the Obama Administration to keep this vital document secret. Expertise in the philosophy of law is hardly needed to understand how pernicious and dangerous it is to vest the government with the power to hide legal arguments so consequential that they're used to justify extrajudicial killing. Senators who defend that course are unfit for an office charged with overseeing the executive branch.