I bet John Yoo had a lot of fun writing this Op-Ed, where he both faults Obama for hypocrisy on changing his position with respect for the war on terror, and at the same time faults him for giving suspected terrorists too much process.
The memo 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 against the government’s interests, judge an individual’s “imminent” threat of violence, and ponder whether capture is feasible before deciding to strike. Under these provisions, the U.S. military’s speed and decisiveness will suffer, even as the intelligence needed to identify drone targets dries up with the withdrawals from Iraq and now Afghanistan.
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. But in doing so, it dissipates the rights of the law-abiding at home.
While suggesting that al Qaeda terrorists have constitutional rights, the memo makes no room for judicial review of a strike, as would be required for any actual government deprivation of due process. All we have are scarcely believable accounts that Mr. Obama selects targets from CIA lists with the guidance of St. Thomas Aquinas’s writings on what constitutes a just war.
This approach sets a concerning precedent regarding the government’s respect for due process in future cases involving American citizens and legal residents who actually deserve the right. By including terrorists among those afforded constitutional protections, the president’s policy risks stretching those protections a mile wide and an inch deep—weakening them for all Americans.
Yoo does raise one interesting point–by killing suspected terrorists, Obama can skirt the entire detention issue.
Rather than capture terrorists—which produces the most valuable intelligence on al Qaeda—Mr. Obama has relied almost exclusively on drone attacks, and he has thereby been able to dodge difficult questions over detention. But those deaths from the sky violate personal liberty far more than the waterboarding of three al Qaeda leaders ever did.
When Obama took office, and promised to close Guantanmo, I wondered whether this would simply increase extraordinary rendition (the process of sending suspected terrorists to secret prisons) as to avoid judicial process. Nah, just kill them from the sky.
I wonder if any future Republican Administrations will be willing to release Obama’s OLC memos, in the same fashion that Yoo’s memos were released.
“I’ll be brief,” Burr said at the start of his second-round question for Brennan.
“You’re on your fourth glass of water and I don’t want to be accused of waterboarding you.”