Foreign and Defense Policy

Obama, drones, and the ‘imperial presidency’

Photo Credit: The White House/Flickr

Photo Credit: The White House/Flickr

The Washington Post reports this morning on the leaked Justice Department document laying out the Obama administration’s rationale justifying the targeted killing of American citizens who betray their country and fight for al-Qaeda:

The United States can lawfully kill a U.S. citizen overseas if it determines the target is a “senior, operational leader” of al-Qaeda or an associated group and poses an imminent threat to the United States, according to a Justice Department document published late Monday by NBC News.

The document defines “imminent threat” expansively, saying it does not have to be based on intelligence about a specific attack since such actions are being “continually” planned by al-Qaeda. “In this context,” it says, “imminence must incorporate considerations of the relevant window of opportunity” as well as possible collateral damage to civilians.

It says that such determinations can be made by an “informed, high-level official of the U.S. government.”

The leaked document appears to be an unclassified summary of an opinion from the Justice Department’s Office of Legal Counsel laying out the legal justification for the drone strikes. I asked Steve Engel, Deputy Assistant Attorney General for the Office of Legal Counsel in the Bush administration, for his reaction to the disclosure. Here is what he told me:

Little in the opinion is surprising at first glance. The opinion tracks the plurality opinion in Hamdi [Hamdi v. Rumsfeld], which holds that the president has the authority to use military force against an American citizen during wartime, under circumstances where it would be necessary to protect the country.

The opinion genuflects to the president’s constitutional authority to use military force, but – consistent with the Obama DOJ approach in the GTMO litigation – seeks to avoid expressly relying upon it, instead emphasizing the AUMF [authorization for the use of military force]. One difference in tone is that the opinion in places relies on certain selected international law review articles, a move that is consistent with the background of some in Obama’s DOJ, but is probably not something you would have seen at the Bush DOJ.

In terms of its history, my educated speculation would be that the relevant senate committees were demanding the OLC opinion on Awlaki, and Obama’s DOJ generated this unclassified white paper as an alternative accommodation. The timing of this disclosure is a bit suspicious, raising the question whether the leakers waited until after the election, for fear the issue might backfire on the administration.

Bottom line seems to be that while the Obama team took a slightly different legal path to get there, they arrived at about the same destination as the Bush administration on the president’s authority to conduct military operations in what was once known as the war on terror.

Let’s see if all those who excoriated Bush as a “war criminal” who ran an “imperial presidency” now give Obama the same treatment.

Don’t hold your breath.

6 thoughts on “Obama, drones, and the ‘imperial presidency’

  1. drones vs necon boots-on-the-ground and forever US military presence…..

    hmm… tough choice, eh?

    Bush, bless his pea-picking soul had no problem with slicing and dicing thousands of our young folks in a futile necon effort to “nation-build” any/all countries that we dislike nor did he seem to have a problem torturing people to death but god forbid he’d use a drone on them.

  2. Are you KIDDING me Larry? Seriously. You ‘re sitting there hearing that our president has claimed the right to kill whoever he wants without even finding out facts or going through due process or trying a person or anything, and you’re going to just jump on how evil bush is? Seriously? We are living a NIGHTMARE. These men, BUSH AND OBAMA, and all the other politicians are claiming the right to kill you anytime, anyplace, for any REASON because they just have to say you’re doing something against the United states and that can be as little as disagreeing with its elected officials who “know what’s best for you” and you are arguing about how much worse this other one was? Don’t you at ALL think that if ANYONE is sitting around claiming a right to murder you in cold blood, that they are BOTH BAD EVIL MEN who think they own your LIFE?!?!? Is it somehow more dignifying to be murdered by a Democrat president than a Republican one? Seriously? There IS no debate about who is worse. These men want to kill you, the answer is to DO SOMETHING ABOUT IT. Forget if they are Democratic and “mostly” agree with how you think. They wan to KILL YOU if you don’t AGREE with them. That’s a PROBLEM. NOTHING ELSE that they can POSSIBLY claim to believe matters if they believe they own your life. NOTHING.

    • Did Bush NOT USE drones AND torture people AND kidnap them and hold them incognito?

      so Obama is only 1/3 as bad as Bush?

      but seriously, do you think the CIA never assassinates people – even before drones?

      when you put boots on the ground, how many innocents get killed ? how many in Iraq?

  3. Let’s see if all those who excoriated Bush as a “war criminal” who ran an “imperial presidency” now give Obama the same treatment.

    Don’t hold your breath.

    It works both ways. Let us see if those on the right who cheered Bush for his illegal and aggressive acts give Obama the same benefit of doubt.

  4. I think Larry does not realize that the point of this post is not to argue (with or without facts) the merits of a strategy. It is to highlight the risks of having a President’s action go unchallenged. The Bush Presidency was characterized by constant and vigorous challenges from the media and the anti-war movement. The Obama Presidency demonstrated that these two checks on Presidential power are really other words for…”Democrats”. Surely there must be some liberals out there who do not think this is good for liberty.

    • I do believe Obama should be challenged on this. But wasn’t it Bush that told the SCOTUS they had no jurisdiction over stuff down outside the US?

      just asking…

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