The Obama administration is clearly anxious to ensure that Americans feel comfortable about killing people with drones – because, yet again, Obama sources are trying to put some favorable spin on the strategy. Witness this Sunday New York Times opus, where “three dozen current and former legal and counterterrorism officials and outside experts” endeavor to defend the 2011 death of an American, alleged terrorist Anwar al-Awlaki, who was fatally droned without a trial.
Problem is, their spin doesn’t work.
Way down in the article, for instance, the Times recounts how two Justice Department lawyers, David Barron and Martin Lederman, were tasked to determine whether it would be lawful to summarily kill Awlaki despite his American citizenship – seemingly no easy task, because the U.S. Constitution says that American citizens are guaranteed due process, and Article III says that anyone accused of treason must be tried in “open court.” Barron and Lederman soon decided that the government had sufficient wiggle room.
“But as months passed, Mr. Barron and Mr. Lederman grew uneasy. They told colleagues there were issues they had not adequately addressed, particularly after reading a legal blog that focused on a statute that bars Americans from killing other Americans overseas.”
Wait, what? There’s a federal law that bars Americans from killing other Americans on foreign soil? Do tell:
“Mr. Barron and Mr. Lederman were being asked whether President Obama’s counterterrorism team could take its own extraordinary step, notwithstanding potential obstacles like the overseas-murder statute. Enacted as part of a 1994 crime bill, it makes no exception on its face for national security threats.”
Well, this is a whole new wrinkle, is it not? The Obama team told the Times about this law, for the sole purpose of brushing it aside. Barron and Lederman ultimately concluded that Obama was free to ignore the law. But the Times, indulging the Obama team’s spin, never bothered to tell us what the law actually says. So here it is, from 18 U.S.C. 119. Entitled “Foreign murder of United States nationals,” the ’94 law explicitly says that a crime has been committed when a “national of the United States kills or attempts to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country.” There are no exemptions for any American killer, much less the president or the citizen CIA officials under his command.
But Obama’s sources say that Barron and Lederman found a way around this law, citing a ’97 federal court case, in which an American woman in Japan killed her American child, apparently under mitigating circumstances. Therefore, the lawyers concluded, Obama had an exemption for the use of drones. But that Japan case isn’t relevant. It didn’t touch on the issue of whether a government can act as judge, jury, and executioner by targeting for death one of its own citizens living abroad. The Times’ reporters should have noted that, but their story is in thrall to the Obama spin.
Indeed, the Times story fails to mention that a federal judge assailed the death-by-drone policy in a ruling just two months ago – and she did so, in part, by invoking that 1994 law.
Judge Colleen McMahon’s ruling was ostensibly narrow; she was compelled to reject a freedom-of-information request for memos and documents about the targeting of Awlaki. But she took a five-page detour to whack the drone policy. She said that any attempt by the government to kill an American without trial “is still subject to any constraints legislated by Congress.” Then she cited the ’94 law – “the statute contains no exemption for the president (who is, obviously, a national of the United States) or anyone acting at his direction” – and Article III of the Constitution, which, in her reading, “suggests that the Founders contemplated that traitors woiuld be dealt with by the courts of law, not by unilaterial action of the Executive.”
All told, McMahon – a Clinton appointee – rebuked the administration for defending its drone policy “without citing any statute or court decision that justifies its conclusions…(It) has gone so far as to mount an extensive public relations campaign in order to convince the public that its conclusions are correct.”
The Sunday Times story was just the latest phase of the public relations campaign. But it probably won’t help the administration. Legal issues aside, the story says that the drone that killed Awlaki also killed another American, Samir Kahn. One month later, another drone killed Awlaki’s 16-year-old son. Neither Kahn, nor the younger Awlaki, were on the administration’s kill list; Kahn was collateral damage, and the teenager was mistakenly whacked due to bad intelligence.
So, the Obama administration was, at best, one for three. If you bat .333 in baseball, you’re a star. If you bat that in the drone game, there’s no way you can spin it. And you’ve got a lot more questions to answer.
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