Quietly, under the radar, the Obama administration has been generating an impressive success rate in using federal courts to put away a number of terrorist suspects, many for life.
Take Nazih Abdul-Hamed al-Ruqai, for example.
Known as Abu Anas al-Libi, this suspected al-Qaeda operative was believed to have helped plan and conduct surveillance for the 1998 bombings of US embassies in Africa. Indicted more than a decade ago, al-Libi was captured during a military raid in Libya in October 2013 and then questioned aboard a US warship. Following that initial questioning, he was summarily handed over to the Justice Department for trial, like so many of his terrorist colleagues who have been captured abroad.
Lisa Monaco, the president’s homeland security adviser, explained the administration’s strategy to PBS at the time of al-Libi’s capture and eventual transport to the US:
“I think what it shows is a very clear strategy by the U.S. government to use all the tools, frankly, in our toolbox to disrupt threats, to go after — consistent with the rule of law — individuals who pose a threat, to get intelligence and then ultimately to make a decision about what the best disposition is.” (emphasis mine)
The Associated Press continued:
So far, in every instance that the Obama administration has had a terrorist suspect in custody, it has found the best disposition was the federal court system.
Nice and neat, legal and proper, right?
While the focus of the AP article was the administration’s success in using federal courts to prosecute terrorist suspects versus the Guantanamo military commission’s inertia and inability to dispose of any cases regarding suspects currently being held at the U.S. military prison there, the White House’s attempt to paint its actions as strictly “by the book” is suspect.
Why does this administration – which has wanted try foreign-born terrorist suspects in federal court since the president took office – so eager to kill American citizens abroad who are only suspected of engaging in terrorist activities aimed at the U.S., and then obfuscate its rationale for doing so?
It’s a query that a federal court has now said the White House must answer.
On April 21, The New York Times reported:
A federal appeals panel in Manhattan ordered the release on Monday of key portions of a classified Justice Department memorandum that provided the legal justification for the targeted killing of a United States citizen, Anwar al-Awlaki, who intelligence officials contend had joined Al Qaeda and died in a 2011 drone strike in Yemen.
The three-judge panel, which ruled unanimously in overturning a lower federal court decision, noted that the administration waived its right to keep its legal analysis secret following a number of public statements by federal officials, as well as the Justice Department’s release of a “white paper” that offered a detailed accounting of why such targeted killings were considered legal.
“Whatever protection the legal analysis might once have had has been lost by virtue of public statements of public officials at the highest levels and official disclosure of the DOJ White Paper,” Judge Jon O. Newman wrote for the panel of the United States Court of Appeals for the Second Circuit.
In January 2013, Judge Colleen McMahon of Federal District Court had expressed her own doubt about the legality of such killings and the secrecy surrounding them, but nevertheless held that the government had not violated the law in refusing to turn over materials sought by the Times and two of its reporters via the Freedom of Information Act. The Justice Department’s white paper, as well as public comments made by Attorney General Eric Holder, Jr., and John O. Brennan, when he was Obama’s top counterterrorism advisor, negated the administration’s claims that its legal justifications must remain classified.
A matter for the courts?
Shortly after becoming president, Barack Obama made the pledge that his administration would be “the most transparent” in the nation’s history:
Only, it’s not. In fact, as noted by the Cato Institute’s VP, Gene Healy, this administration is actually the least transparent, willing only to release requested information upon court order:
In fact, the Obama administration has driven state secrecy to new levels of absurdity. We’re not even allowed to know who we’re at war with, apparently, because letting that secret slip could cause “serious damage to national security.”
In the president’s version of “transparency,” the Americans have no right to debate even the most basic public questions — like the legal standards for spying on or killing American citizens — unless, of course, that information leaks, at which point the administration “welcomes” the debate.
Needless to say, it is troubling that the “most transparent” Obama administration is doing its level best to keep its justification for killing American citizens a secret.
One of the most basic inalienable rights afforded citizens and acknowledged in our Constitution is the right to a fair trial – one that results from an arrest upon “probable cause” and following the issuance of a warrant by proper judicial authority. In times of war or armed domestic insurrection, however, the president has the authority to act in a manner conducive to protecting the country by whatever means necessary.
But these scenarios represent direct threats to the country. Are we certain that the citizens Obama has ordered killed so far qualified as such?
In bolstering its case for targeting Americans abroad, the administration has couched its actions as “legal,” “necessary,” “ethical,” and “wise,” and well within the interests of national security. Non-citizens are being targeted in the same manner, and for the same reason. But there is a distinct difference in rights recognized by our Constitution regarding citizens and non-citizens. In modern times, the Executive Branch has had wide latitude in taking measures to protect the country, but the basic premise of those actions were constitutional in that the actions were taken as a result of a direct threat to the country.
Now, the administration appears – at least on the outside looking in – to be making arbitrary decisions about who lives to face trial and who doesn’t, though ostensibly these decisions are being made on the same constitutional basis of “protecting the country.” For all the world it looks as though Obama is making his decisions based on convenience and cost-effectiveness, rather than on whether there is any hard evidence that the target is actively involved in plotting against the United States.
Which brings us back to the Americans who were targeted and killed: Was there any real evidence they were plotting against their own country? Or were they merely al-Qaeda “operatives” in the sense that they were plotting something against someone? Al-Awlaki’s son, Abdulrahman Anwar al-Awlaki, was also killed in the drone strike. He was a 16-year-old American citizen from Denver.
While we may never know, the Obama administration, as per its modus operandi, will likely challenge the appeals court decision by appealing to the full court and perhaps even the Supreme Court. Somewhere along the way another court could rule that the president’s authority to act in the interests of national security should not be questioned.
In most cases I would likely agree. But when it comes to killing American citizens without trial and, really, without substantial evidence they are posing a direct threat, our Constitution – not a drone – should have the last word.