The John Brennan confirmation hearings are the biggest showdown yet on extrajudicial killing and executive branch secrecy.
For once, the Obama Administration's drone policy is much in the news. Kill-list overseer John Brennan starts confirmation hearings today to determine whether he'll get to be the next CIA director. Everyone is abuzz about a confidential memo that describes some of the scenarios in which President Obama believes that his underlings are empowered to extrajudicially kill Americans. And it looks like the Senate Intelligence Committee will finally going to see the Office of Legal Counsel opinion that sets forth the legal justification invoked to kill Anwar al-Awlaki (though the Obama Administration intends to keep hiding the legal analysis from the public, as well as Congressional committees that oversee the Pentagon and the Department of Justice).
How is everyone reacting to the unprecedented attention being paid to drone strikes?
Some neoconservatives have suddenly begun defending the president. John Bolton, former ambassador to the UN, says the drone program "appears to be consistent with the policies of the Bush administration," in which he served. Max Boot of Commentaryinsists Obama's drone memo is a "careful, responsible document." I'd half expect John Yoo to start praising Obama if he weren't busy "turning away in disgust" at the McRib's disappearance from his local McDonald's.
Meanwhile, Obama is taking more criticism than usual from normally friendly quarters. The Huffington Post, a sprawling landscape of content, has published criticism of the president on many occasions, but I don't know that I've ever seen its home page go after him like this:
It was U.S. District Court Judge Colleen McMahon who first compared Team Obama's legal positions to Alice in Wonderland. I'm glad the phrase has taken told. Here's what the Huffington Post's front page looked like in the wee hours of Thursday morning, having been updated to reflect the fact that Senator Ron Wyden and friends finally get to see the legal opinions:
It took until President George W. Bush's second term for the press to become sufficiently adversarial in the realm of foreign policy, where journalists parroted misinformation and implausible arguments for some years and too frequently gave officials the benefit of the doubt. I hope the Huffington Post's tough treatment is remembered as one of the moments when the press stopped trusting Obama too much.
For years, Mr. Obama has stretched executive power to claim that the
2001 Congressional authorization to use military force against Al Qaeda
gives him the unilateral authority to order people, including American
citizens, killed away from any battlefield without judicial oversight or
public accountability. He took a step in the right direction on
Wednesday when he directed the Justice Department to give Congressional committees its classified legal advice on targeting Americans.
Officials say they only target belligerents covered by the 2001
legislation, but the public has no way of knowing under what criteria
these targets are chosen. Nor does it know, absent publicly stated
rules, how the 2001 law would be interpreted by future presidents. The
confirmation hearing provides an opportunity for Mr. Brennan to explain
his view on whether there is any check on presidential decision-making,
especially when American citizens are targeted, and whether targeted
killings are creating more militants than they are eliminating.
But the criticism of Obama's transgressions against the rule of law still aren't nearly as harsh as what the newspaper wrote in 2008, when it endorsed Obama and looked back at Bush:
Under Mr. Bush ... the Constitution, the Bill of Rights, the justice
system and the separation of powers have come under relentless attack.
Mr. Bush chose to exploit the tragedy of Sept. 11, 2001, the moment in
which he looked like the president of a unified nation, to try to place
himself above the law. Mr. Bush has arrogated the power to imprison men
without charges and browbeat Congress into granting an unfettered
authority to spy on Americans. He has created untold numbers of "black"
programs, including secret prisons and outsourced torture. The president
has issued hundreds, if not thousands, of secret orders. We fear it
will take years of forensic research to discover how many basic rights
have been violated.
Note that imprisonment without charges, the ability to spy on Americans without warrants, black sites, and secret orders all persist in the Obama era, along with something Bush never managed: the actual, extrajudicial killings of at least two American citizens, one of them just 16 years old. It's too bad that the Times editorial board still isn't able to muster as much outrage for Obama's transgressions as for Bush-era steps that were no more ruinous to the rule of law. But at least the trend seems to be toward greater realization of the need to rein in Obama.
As Human Rights First put it, "Only
complete public disclosure of the legal justifications behind the U.S.
targeted killing program can assure Americans that the United States is
complying with the law and established rules. The United States targeted
killing program is setting a precedent for the rest of the world. We
have to get this right."
