A law professor recently compared the Department of Justice’s legal memo justifying the Anwar al-Aulaqi killing to the Bush administration’s notorious torture memos. Professor Noah Feldman suggested that the OLC again twisted the law to achieve certain ends. Feldman says that critics of the torture memos believed “there was something wrong with the president acting as judge and jury in the war on terrorism.” The ACLU and others have also argued that the Obama administration’s killing of Aulaqi is unconstitutional. Meanwhile, the author of the torture memos thinks Obama’s view of executive power is too constrained.
The Obama adiministration stated that it isentirely lawful for the United States to target high-level leaders of enemy forces, regardless of their nationality, who are plotting to kill Americans both under the authority provided by Congress in its use of military force in the armed conflict with al-Qaeda, the Taliban, and associated forces as well as established international law that recognizes our right of self-defense.
An unnamed official added: “What constitutes due process in this case is a due process in war.”
Did the Obama administration afford Aulaqi his Due Process rights as an American citizen? One legal commenter, Benjamin Wittes, suggests that Due Process was satisfied because Aulaqi was on notice that the United States would kill him and capture was infeasible. Wittes emphasizes the evidence of Aulaqi’s operational role in al Qaeda. He compares the Aulaqi decision to the power of police to kill a hostage-taker.
It is unfair to criticize the OLC for its legal reasoning, at this point, because no one has seen the memo. Liberals are right to criticize the torture memos for asserting an overly broad view of executive power, but the fact remains that the OLC has a tough job. Though some might disagree with its conclusion, there is no evidence yet that the current OLC distorted the law like Yoo and his cohorts. The rules of armed conflict are tricky when fighting a stateless enemy.
Feldman’s essay begins: “Killing terrorists with drones is great politics. To the question, ‘Is it legal?, a natural answer might well be, ‘Who cares?.’” The answer is that the executive branch will continue to target persons engaged in plots to kill Americans, and no court is likely to stop it. A federal court ruled that the decision to kill Aulaqi was one for the executive branch, and it refused to enjoin the administration’s plan to kill him. Though courts would note the potential for abuse, a plaintiff suing to obtain restitution for such a decision would face enormous obstacles. The judiciary will likely not intervene, absent a conflict between the political branches. But our polarized Congress is hard pressed to agree on anything, let alone the rules of the fight against al Qaeda.