Clifford May - Targeted-killing memos should be open to public

Published:

"Think about the mothers!"

That was the anguished cry of a protester from Code Pink, the left-wing women's group that four times interrupted John Brennan's confirmation hearing last week. She was apparently referring to the mothers of such al-Qaida leaders as Anwar al-Awlaki -- killed by a drone strike ordered by President Barack Obama, counseled by Brennan, his White House counterterrorism adviser and now his nominee for director of the Central Intelligence Agency.

Doing as the protester demanded, two possibilities occur: (1) Al-Awlaki's mom shares her son's ideology/theology and is therefore proud that he died a martyr waging jihad against satanic infidels, or (2) she loves America, her adopted homeland, has a tempered reading of Islam, and is mortified that her sweet little boy grew up to become a terrorist blown to smithereens by his fellow countrymen.

Let me put my drone cards on the table: Al-Qaida and other self-described Jihadist groups have declared war on America, and are waging war against America. Congress has passed an Authorization for Use of Military Force that gives the president the power to capture and kill members of AQ and allied groups. He should do so aggressively and unapologetically.

Drones are useful because they don't expose American combatants to danger, and they have the potential for pinpoint accuracy. Enemy belligerents, including those who hold American passports, should not be mistaken for criminal defendants. Judges should not be confused with generals.

I do think there ought to be congressional review and oversight of drone operations and "kill lists." And members of Congress -- and the public, too, I believe -- should be allowed to consider the process the administration has in place for targeted killings, not least those involving American citizens.

I've been trying to stay focused on these substantive issues, but it's hard not to get at least a little distracted by the hypocrisy of those who called President George W. Bush and Vice President Dick Cheney "war criminals" for using such "enhanced interrogation techniques" as sleep deprivation on about a hundred terrorists, but who have been loath to criticize Obama for sending thousands of terrorists to the Big Sleep. Remember the brouhaha that erupted in 2009 when it was revealed that the Bush administration had merely considered setting up "hit squads" to kill al-Qaida operatives?

Bush tasked his Justice Department to determine which coercive interrogation techniques were legal and which were not. The mainstream media derisively called these analyses "torture memos." It was on the basis of these legal opinions that, again, about a hundred detainees were subjected to sleep deprivation, stress positions and similar techniques in an effort to elicit from them life-saving information about al-Qaida's plans and planning. "Waterboarding" was used on exactly three individuals: Khalid Sheikh Mohammad, the mastermind behind the original 9/11 attacks, and two other senior al-Qaida commanders. All had information vital to America's national security. None was giving it up easily.

In 2009, Obama declared the previous administration's practices abhorrent, prohibited future coercive interrogations -- not just waterboarding -- and ordered the release of the classified Bush DOJ memos. Since then, Obama has used drones to kill terrorists with a frequency I doubt his predecessor ever imagined: more than 2,500 individuals eliminated in Pakistan and Yemen, according to Bill Roggio, a senior fellow at the Foundation for Defense of Democracies who carefully tracks drone operations. Obama also charged the Justice Department to provide secret legal opinions. Let's call them the "targeted-killing memos." In response to a demand from senators of both parties, the White House announced that it would release the memos to the congressional intelligence committees. Thanks to the leak of a Justice Department "white paper" to NBC News, however, we know that Obama's lawyers believe that lethal force can be used only if a terrorist attack is "imminent" and if capture of the targeted individual is "infeasible." Both terms are defined with astonishing elasticity.

These are only some of the issues that would benefit from a more vigorous debate. The conflicts of the 21st century are different from those of the past -- they involve different enemies, different battlefields and different technologies. As former federal terrorism prosecutor and legal expert Andrew C. McCarthy has long argued, "a new, hybrid legal framework for the modern realities of international terrorism" is needed -- if we are to fight effectively, lawfully and morally. Creating such a structure is the responsibility of the White House and the Congress. Perhaps it's time they got started.

(Clifford May is president of the Foundation for the Defense of Democracies, a policy institute focusing on terrorism.)

Want to leave your comments?

Sign in or Register to comment.