A YEAR ago, Attorney General Eric Holder first spoke in public about the Obama administration’s program to target and kill US citizens overseas. At the time, it seemed an extraordinary assertion of power, and certainly one that no president had previously dared to make. Holder’s speech was intended to reassure skeptics that the White House took this power very seriously. He explained to his audience in somber tones that targets would have to be deemed an “imminent threat” whose capture “was not feasible.”
To some, such vague terms were cause for even greater alarm. For Congress, however, they calmed the waters — at least for a year. With the exception of a few steady critics like Democratic Senator Ron Wyden, most elected officials have quietly gone along. In fact, neither the Senate Intelligence Committee nor its House counterpart has ever held a public hearing on the drone programs — let alone the targeted assassination of US citizens.
So when investigative reporter Michael Isikoff got his hands on a Justice Department memo intended to justify the policy, it put the spotlight on the program just in time for John Brennan’s confirmation hearing to be CIA director. The hearing brought out criticism from all sides about the secretive nature of the program, the lack of due process, and what Brennan admitted was a “trust deficit” between the intelligence agency and Congress.
Why is there a trust deficit? Just consider the way the 16-page memo tortures the word “imminent”: “The condition that an operational leader presents an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on US persons and interests will take place in the immediate future.”
That’s right: Imminent does not mean immediate.
Instead, the memo argues that a “high-level” official needs to determine that the targeted American has been “recently” involved in “activities” posing a threat of violent attack. What is a high-level official? How recently? Which activities? None of these terms is defined.
The upshot of such legal obfuscation is this: Unspecified US officials can approve the killing of American citizens who have been involved in undefined activities that the officials believe to pose a threat of violent attack — even in the absence of any evidence the attack will occur anytime soon.
And none of this is subject to review by anyone outside the White House.
That point was brought home by Brennan’s evasive answer when Wyden asked how much evidence the president needed “to order an American killed without trial.” Providing no detail, Brennan tried his own hand at reassuring the public. Americans, he insisted, “would be pleased to know that we’re very disciplined, very judicious in how we use these authorities.”
But Americans can’t possibly know that, because there is no transparency to the process. Congress doesn’t know because it isn’t consulted and hasn’t been given full access to the classified legal rationale. And our judicial system doesn’t know because no judge — not even the Intelligence Surveillance Court trained to deal with America’s most sensitive secrets — has been allowed to review the names of US citizens targeted for assassination.
Supporters defend the policy by drawing analogies to German-Americans who were killed while fighting alongside Nazis during World War II. But that was a case of Americans fighting in uniform alongside the nation’s enemies under a congressional declaration of war. None were targeted by name for assassination. Congress may have passed a “use of force” resolution after 9/11, but it was not an invitation to violate the Constitution.
The issue isn’t the morality of drone strikes per se. Like aircraft carriers or land mines, drones are a tool of war. We may question the policies for their use, but few if any members of Congress would deny that they have value within a modern defense arsenal.
What’s at issue is the administration’s policy of naming names. Even without drones, the White House still claims the right to order the killing of Americans by other means. It allows President Obama to target a specific US citizen for death, and to do so without oversight.
In the history of American armed conflict, no president has ever claimed — let alone acted upon — such power. To date, this administration has targeted and killed American citizens on four separate occasions.
Would then-Senator Obama have ever condoned such a program under President George W. Bush? Of course not. This is a program as breathtaking in its hypocrisy as it is devoid of respect for due process and the constitutional principle of checks and balances. And it’s one tragedy that the president can’t blame on someone else.
John E. Sununu, a former Republican senator from New Hampshire, writes regularly for the Globe.