President Obama Continues to Refuse to Release Legal Justifications for Drone Murder — Did Someone Crown Him King?

© 2013 Peter Free

 

21 February 2013

 

 

As a former constitutional issues lawyer, I continue to be astonished at the level of the President’s malevolent hypocrisy regarding the constraints on the Executive Branch that are contained in the document that he once taught

 

From the New York Times:

 

 

The White House is refusing to share fully with Congress the legal opinions that justify targeted killings, while maneuvering to make sure its stance does not do anything to endanger the confirmation of John O. Brennan as C.I.A. director.

 

Rather than agreeing to some Democratic senators’ demands for full access to the classified legal memos on the targeted killing program, Obama administration officials are negotiating with Republicans to provide more information on the lethal attack last year on the American diplomatic compound in Benghazi, Libya, according to three Congressional staff members.

 

The strategy is intended to produce a bipartisan majority vote for Mr. Brennan in the Senate Intelligence Committee without giving its members seven additional legal opinions on targeted killing sought by senators and while protecting what the White House views as the confidentiality of the Justice Department’s legal advice to the president.

 

© 2013 Scott Shane and Mark Mazzetti, White House Tactic for C.I.A. Bid Holds Back Drone Memos, New York Times (20 February 2013)

 

 

There are three exceedingly obvious problems with the White House’s legal reasoning regarding the secrecy of these drone opinions

 

These are:

 

(1) Killing American citizens and foreigners in America’s name directly concerns the Congress and People.

 

(2) Legal opinions supporting (or rejecting) drone murder can be constructed hypothetically and in the absence of classified specifics.

 

(3) Legal advice directed to the President, which justifies official U.S. policy, should not be confused with legal advice that concerns the President in his potential capacity as personal defendant.

 

 

First — killing American citizens and foreigners in America’s name directly concerns Congress and Public

 

When the American government:

 

(a) is killing U.S. citizens, without the application of conventionally understood due process,

 

and

 

(b) is casually eliminating “foreigners,” whenever expedient and apparently in disregard of the existing Laws of War,

 

then the American Congress and People are entitled to know under what legal authority this is all taking place.

 

 

Second — legal opinions supporting (or rejecting) drone murder can be constructed hypothetically and in the absence of classified specifics

 

It is easy to construct hypothetical scenarios that highlight the legal conundrums under scrutiny.

 

 

Third — legal advice directed to the President, which justifies official U.S. policy, should not be confused with legal advice that concerns the President in his potential capacity as personal defendant

 

It is disingenuous to pretend that legal justifications for drone murder constitute a private communication between Administration attorneys and the President.

 

The President is using those justifications to employ Government apparatuses to kill citizens and “foreigners” in the American People’s name.  That is hardly a private matter.

 

Confidentiality arguably does not apply to generic justifications for drone murder in the same way that it would if Government lawyers had already:

 

(a) told the President that his drone murder program is illegal

 

and

 

(b) their subsequent legal advice to him revolved around how to defend himself against:

 

(i) impeachment proceedings

 

or

 

(ii) international efforts to brand him a war criminal.

 

 

In essence, the President is acting as if he is King of America

 

President Obama is essentially maintaining that he can use America’s military and intelligence apparatuses to kill people outside the confines of existing law.

 

 

I am not singling President Obama out — I had the same complaints about some of his predecessors

 

Our most recent presidents laid the groundwork for America’s war-waging monarch.

 

The last American Commander in Chief to act more or less constitutionally was President George H. W. Bush.  Everyone since has sneaked more and more quasi-monarchical power into the Executive Branch.

 

President Obama has, admittedly, escalated the regal prerogative beyond what the worst transgressor, George W. Bush the Second did.

 

 

The moral? — When Congress and Public go to sleep, the Commander in Chief surreptitiously grabs more and more monarchical power

 

We are living in an age in which the American Presidency corrupts itself with unprecedented levels of military might.

 

And the American People corrupt themselves with the ethical complacence that accompanies being invulnerable to the comeuppances that usually accompany a nation’s moral wrongdoing.

 

The quarrel over the withheld drone opinions is a battle for the ethical heart of America.