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Killing terrorists, then and now

Justice SystemGeorge W. BushExecutive Branch

An unsigned and undated Justice Department white paper, obtained by NBC News, reports The New York Times, "... is the most detailed analysis yet to come into public view regarding the Obama legal team's views about the lawfulness of killing, without a trial, an American citizen who executive branch officials decide is an operational leader of Al Qaeda or one of its allies."

The proviso is they must pose "an imminent threat of violent attack against the United States." If "an informed, high-level official" of the government decides they are a threat, the paper says, and if capture is not feasible, they may be killed.

There hasn't been a huge outcry from those on the left who attacked President George W. Bush for his doctrine of pre-emptive strikes against terrorists. Recall, too, the vitriol directed at Vice President Dick Cheney for defending "enhanced interrogation" techniques on suspected terrorists in order to obtain information that might prevent new attacks against Americans.

The unclassified paper comes from the Justice Department's Office of Legal Counsel, which, according to the Times, provided justification for killing the radical Muslim cleric Anwar al-Awlaki. Awlaki, born in New Mexico, was killed in an American drone strike in Yemen in September 2011.

The white paper cites a national right to self-defense in wartime, but goes a step further. As summarized by The New York Times: "(It) emphasizes that the decision to kill a citizen in certain circumstances is not one in which courts should play any role, asserting that judges should not restrain the executive branch in making tactical judgments about when to use force against a senior al Qaeda leader."

Weren't some conservatives who made the same argument during the Bush administration criticized in certain newspaper editorials, and by liberal commentators and the Hollywood elite?

The white paper says that if a target poses an imminent threat to the U.S., and cannot be captured, the strike "would be conducted in a manner consistent with applicable law of war principles." It goes on to read, "A lawful killing in self-defense is not an assassination. In the Department's view, a lethal operation conducted against a U.S. citizen whose conduct poses an imminent threat ... would be a legitimate act of national self-defense that would not violate the assassination ban."

The American Civil Liberties Union has been consistent with both the Bush and Obama administrations. It strongly -- and wrongly in my view -- criticized President Bush for his anti-terrorism policies. Reacting to the publication of the white paper, Hina Shamsi, director of the ACLU's National Security Project, called it "a profoundly disturbing document." "It's hard to believe," she added, "that it was produced in a democracy built on a system of checks and balances." She characterized it as "... a stunning overreach of executive authority."

She may have a point. One that should be debated in Congress. Appropriate committees should invite or, if necessary, subpoena the person or persons, who wrote the document. U.S. citizens should know what kind of action constitutes "imminent threat." At present, the government's definition is a little cryptic.

Given the way some criminal lawyers have "gamed" the U.S. court system to free hardened criminals, the president might be justified in this approach, but the larger question of how much authority he should be allowed to have in these circumstances and whether U.S. citizenship alone should be enough to guarantee due process when there is substantial evidence someone is involved in plots to kill other Americans, is a subject worthy of congressional consideration.

Cal Thomas is a syndicated columnist. Readers may email him at tmseditors@tribune.com.

Copyright © 2014, The Baltimore Sun
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