President Obama took office convinced that his predecessor had adopted immoral national security policies. He was determined not to make the same mistakes.
"[F]aced with an uncertain threat, our government made a series of hasty decisions," Obama said in May 2009. "Instead of strategically applying our power and our principles, too often we set those principles aside as luxuries that we could no longer afford. And during this season of fear, too many of us -- Democrats and Republicans, politicians, journalists and citizens -- fell silent."
Obama's expansion of the drone strike program developed during the Bush years suggests either that the righteous rhetoric of 2009 was an unfair smear of previous national security efforts, or that the president has entered his own "season of fear" in asserting a right to kill American citizens without trial or notice, without any immediate threat, and in nations where we are not at war.
Last week, NBC's Michael Isikoff obtained a Justice Department white paper outlining how the administration decides whether it can kill an American citizen with a drone strike, as it has already done twice. White House press secretary Jay Carney responded by telling reporters that Obama "takes his responsibility in conducting the war against al Qaeda as authorized by Congress in a way that is fully consistent with our Constitution and all the applicable laws."
It should come as a relief to the president that our political system does not place the full burden of balancing national security interests with American civil liberties on his shoulders. Congress also has a significant role in advising and even holding back the president, even about such sensitive issues. But Obama, who has shown unseemly contempt for both government transparency and Congress, is being characteristically stingy with information pertaining to the drone program. So far, he has only allowed members of the intelligence committees to see the legal analysis justifying such strikes.
The lawmakers evaluating the analysis may do so only within very strict parameters. "Our staff were banned from seeing it this morning," Sen. Dianne Feinstein, D-Calif., said during a congressional hearing. "We have lawyers and very good staff. This is upsetting to a number of members. We depend on our staff because you can't take material home. You can't take notes with you, so the staff becomes very important."
Obama is also refusing to allow the House and Senate Judiciary Committee members to review the Justice Department drone strike legal memos, even though they have direct oversight of the Justice Department.
"We know that in some instances where the government has released its legal analysis, it gets it wrong," Judiciary Committee member Sen. Mike Lee, R-Utah, told The Washington Examiner. He cited the D.C. Circuit Court of Appeals' recent repudiation of the Justice Department's justification of Obama's January 2012 "recess" appointments, undertaken when Congress was in session. Lee said the white paper outlined such a broad exception to the requirement that Americans get a fair trial as to "swallow the rule."
When asked about the killing of Abdulrahman al-Awlaki, a 16-year-old Colorado native whose al Qaeda operative father had already been killed in a separate drone strike, former White House press secretary Robert Gibbs said that the younger al-Awlaki "should have [had] a far more responsible father."
That's not a constitutional principle. If Obama claims powers to kill Americans without trial, and without producing evidence to justify the action, he must at least consult with Congress to identify clear limits. Transparency demands, at the very least, that the intelligence and judiciary committees be given full access to information on how he is "applying our power and our principles."