John Yoo, George W. Bush’s Assistant US Attorney General in the Office of Legal Counsel, has a real problem with Obama’s use of drones. But unlike civil libertarians, his problem isn’t that Obama claims the right to kill U.S. citizens without charge or trial—it’s that we can’t capture and torture them without charge or trial.
This is a terrifying example of how the extreme militarist fanatics on the right can make Obama’s most damaging Constitutional precedent look benign, and, in the process, put the left in the position of defending him. “Rather than capture terrorists—which produces the most valuable intelligence on al Qaeda—Mr. Obama has relied almost exclusively on drone attacks,” he wrote in The Wall Street Journal today.
Recall that Yoo—now at the neo-conservative American Enterprise Institute (see their response to the drone memo)—authored the Bush administration’s “torture memos,” the legal justification for waterboarding and the Abu Ghraib atrocities. Yoo and his Bush/Cheney conspirators attempted to keep the memos secret, but they ultimately revealed how the administration intentionally sought ways to undermine U.S. law and the Geneva Convention’s prohibition on the use of torture.
Yoo got the ball rolling in January 2002 with a legal opinion, concluding that “customary international law of armed conflict in no way binds the President or the US Armed Forces concerning the detention or trial of members of al Qaeda and the Taliban.” He reiterated the view in August of that year, “Congress can no more interfere with the President’s conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield.” Yoo applied his view to U.S. citizens, including Jose Padilla, who was tortured in Guantanamo Bay.
“Those of us in the Bush administration who worked on the response to 9/11 understood that the country was involved in a new kind of war, one that demanded the covert use of force abroad, detention of terrorists at Guantanamo Bay without criminal trials, [and] tough interrogations,” he writes in today’s Journal. How, you might wonder, has Obama undone his good work? Has he closed Guantanamo Bay, ended secret ops abroad, or given terror suspects trials?
No! The problem in Yoo’s view is that Obama has pretended to care about these things and pretended to be interested in giving them due process. “The memo [that defends the legality of drone strikes on Americans] shows that for the first time in the history of American arms, presidential advisers will weigh the due-process rights of enemy combatants on the battlefield,” he writes. It’s almost like Yoo didn’t even bother to read the memo before writing his piece. The memo does no such thing. It’s about killing Americans off of any battlefield, away from any definite threat to the safety of Americans.
“The memo even suggests that American al Qaeda leaders such as Anwar al-Awlaki (killed in a 2011 drone strike in Yemen) enjoy due-process rights,” except it redefines “due process” to mean any high-level government official determining that the individual is a threat to national security. That’s not what the Founders meant, and certainly, is not what I would want if the government targets me—or lawyers at the ACLU who have attempted to defend al-Awlaki (collaboration with “the enemy” is treason “under the laws of war,” which Yoo thinks should govern all U.S. activities overseas.)
President Obama has built on Yoo’s work, applying his tortured logic about due process in detention to due process in execution. Yoo is right, however, about one thing: Obama’s use of drones has made him “able to dodge difficult questions over detention.” Obama promised to end extraordinary rendition and torture, but he’s replaced them with something far worse: assassination.
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