President Obama promised the most transparent White House ever. On Tuesday, a reminder surfaced about how far he has fallen short. NBC News obtained and shared a Justice Department “white paper” containing the legal reasoning behind the targeted killing of terrorism suspects, mostly by drone strikes. The document, clearly designed to put decision-making in context without risking national security, should have been made public by the president and his team.
Instead, they have fought at every turn the necessary public debate about the drone program. The white paper actually serves as a summary of a much longer, and too long secret, memo from the Office of Legal Counsel justifying the 2011 killing of Anwar al-Awlaki, an American and Muslim cleric who joined al-Qaida’s branch in Yemen.
No question, al-Awlaki vigorously aided the cause of Islamic extremism, his words seemingly crafted to spur violent acts. Does the president really have the authority to order the execution of this American citizen — without a trial, let alone a measure of oversight from the courts?
The White House answers yes. The white paper argues essentially that the killing can go forward if an “informed, high-level official” finds that a ranking al-Qaida leader poses “an imminent threat of violent attack against the United States” and his capture is not feasible. There’s no sympathy for al-Awlaki. Yet the matter isn’t about him. At stake are the country’s values, just as when the Bush White House launched its descent into torture.
The white paper makes evident the loose definition of imminence, not to mention a concept of feasibility that views war as something other than a last resort. Troubling, too, is that the document reprises the notion that oversight by the courts would get in the way of the president’s authority to conduct foreign policy and military affairs.
Yet administrations long have faced timely judicial review, notably under the Foreign Intelligence Surveillance Act, warrants obtained for wiretaps and searches involving national security. That is how drone strikes should be conducted, the courts providing the needed check and balance. At the least, such a process should be followed when the target is an American citizen.
This morning, John Brennan, the president’s counterterrorism adviser and nominee for CIA director, heads to Capitol Hill for his confirmation hearing. The White House deserves credit for its vigilance in combating terrorism. Senators would do well to spend sufficient time exploring the use of drones in the fight, asking Brennan, for instance, about the procedures and standards applied to developing the list of targets. Those items weren’t part of the white paper. Perhaps they can be found in the longer document of the Office of Legal Counsel, its release crucial to the public debate required in holding a president accountable.