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Death By Drone, And The Sliding Scale Of Presidential Power

The controversy over President Obama's targeted-killings-by-drone policy is a reminder that the default position of presidents in times of crisis is generally to side with national security over civil liberties.

Whether it has been Great Emancipator Abraham Lincoln sidestepping Congress and suspending habeas corpus to enable the arrests of scores of Confederate sympathizers, or that great liberal Franklin D. Roosevelt placing his imprimatur on the internment in camps of hundreds of thousands of Japanese Americans after Pearl Harbor, presidents have often used their power as military commander-in-chief in ways profoundly at odds with constitutional protections of the individual.

If truth is the first casualty of war, civil liberties often come second.

A 2008 collection of essays titled Security v. Liberty, published by the Russell Sage Foundation, examines this tension throughout the nation's history. It found no shortage of times when national security concerns — as defined by a president who was sometimes abetted by Congress and the courts — infringed on civil liberties.

A Legacy Of Power Grabs

And the examples go all the way back to the start of the republic.

Daniel Farber, the University of California, Berkeley law professor who edited the book, said he came away from the project with the sense that it's more the rule than the exception that civil liberties are early casualties of a president's response to national emergencies.

In an interview, Farber said:

"My feeling, after looking at all that history in the book, is that that just goes with the office. It's part of what happens when you're sitting in the Oval Office.

"Presidents, regardless of political party, or liberal versus conservative, they just don't seem to have a lot of qualms about doing what they think is necessary for national security. So it doesn't surprise me [that Obama has allowed Americans to be targeted in drone strikes overseas]. There have been very few exceptions."

The nation had barely begun when Congress in 1798 passed the Alien and Sedition Acts, during a time when the Federalist-led government worried both about an actual French invasion and the French Revolution introducing destabilizing ideas into the new American Republic.

Among other things, the acts made it a crime for anyone to criticize the government. This was seven years after the states ratified the First Amendment, which protected the rights of U.S. citizens to make such criticisms.

President John Adams, a Federalist, signed the law, which appeared aimed at silencing his critics in the Democratic-Republican Party under the guise of safeguarding the nation. As biographer David McCullough has written of Adams and the acts: "Their passage and his signature on them were to be rightly judged by history as the most reprehensible acts of his presidency."

Fast forward 120 years to 1918. Proving the old adage that those who don't learn from the mistakes of history are doomed to repeat them, President Woodrow Wilson signed into law another Sedition Act, which made it illegal to insult the government, military or flag.

The crises at hand were World War I, which was winding down, and communism, which was on the rise. Like Adams' law, it was eventually repealed, but not before U.S. citizens had been prosecuted and imprisoned.

During the Vietnam War, Presidents Lyndon Johnson and Richard Nixon authorized large-scale government violations of the privacy of U.S. citizens.

Both men pushed the FBI and CIA, through COINTELPRO and other covert programs, to spy on and harass anti-war protesters, civil rights leaders, journalists, scholars and others considered insufficiently loyal to the government's prosecution of the unpopular Southeast Asian war.

Extrajudicial Killings

But presidential sanctioning of illegal surveillance or the locking up of critics is one thing. The U.S. government summarily killing its own citizens on the president's order is entirely different.

Americans have the expectation that fellow citizens will be afforded their constitutional right of due process, usually involving the courts, before they are deprived of their lives.

But since the Sept. 11, 2001, attacks, President George W. Bush and then Obama have overseen drone strikes on U.S. citizens as part of the war on terrorism (Bush) or al-Qaida and associated groups (Obama).

While most of those targeted by drones have been non-U.S. citizens, a few of those targeted and killed have been U.S. citizens, most famously the New Mexico-born Anwar al-Awlaki, the radical Muslim cleric who was killed in 2011 by a drone strike in Yemen. That drone attack also killed a second American, Samir Khan.

And a month later, Awlaki's Colorado-born son — 16-year-old Abdulrahman al-Awlaki — was targeted and killed by another U.S. drone strike in Yemen.

An Obama administration white paper leaked to NBC News journalist Michael Isikoff this week states that its drone attacks on Americans are limited to "senior operational" leaders of al-Qaida or associated terrorist groups.

While Obama has reversed some of the most controversial Bush "war on terror" policies like waterboarding, the current president has vastly expanded the use of drone strikes. Journalist Tom Junod dubbed Obama's tenure the "Lethal Presidency."

John Yoo, the Bush administration lawyer who became well-known for his legal memos justifying torture, also justified the use of drones in targeted killings, like one in Yemen in 2002 of a U.S. citizen, Kamal Derwish, identified by U.S officials as an al-Qaida operative.

In his 2006 book, War by Other Means: An Insider's Account of the War on Terror, Yoo argues that killings in the context of a war is what legitimizes the federal government's actions:

"When a nation goes to war, it seeks to defeat the enemy in order to prevent future harms on society inflicted by enemy attacks. Because war deals with prospective concerns, it relies less on exact information and more on probabilities, predictions and guesswork. The military bombs a building when it estimates with varying degrees of certainty that enemy soldiers or munitions are there. It does not wait to attack until it has proof beyond a reasonable doubt or probably cause."

'Whether You Like The President'

The white paper leaked this week contains very similar reasoning, and was a focus of Thursday's Senate Intelligence Committee confirmation hearing of John Brennan to head the CIA.

An aspect of the current targeted killing policy that most troubles its critics is that one branch of government — the executive — is deciding who lives and who dies.

Farber, the law professor, said he was conflicted. On one hand, he said, American citizens fighting with an enemy who threatens the U.S. can't be immune from the use of American force against them. But it makes him uneasy that there has been so little involvement of Congress.

"I'm a little bit influenced by the fact that I personally have a lot of confidence in Obama," said Farber. "But you can't make different rules depending on whether you like the president."

Obviously, the involvement of all three branches is no guarantee that civil liberties won't be eroded during times of war. History is full of examples where Congress and the courts also have been complicit.

But if checking and balancing was ever essential, it's when the lives of U.S. citizens are literally on the line, say critics, like the American Civil Liberties Union, which was founded just after World War I during a government crackdown on free speech.

In an interview, Michael Macleod-Ball, legislative chief of staff in the organization's Washington office, said:

"Even if there is some framework that you could argue would justify targeted killings, there certainly ought to be greater transparency. And there ought to be a role for the judiciary. In the Hamdi case, Justice [Sandra Day] O'Connor said in a war context, whatever the power the U.S. Constitution envisions for the executive branch, it requires a role for all three branches when individual liberties are at stake.

"And so if you are talking about a single branch acting unilaterally to take someone's life, particularly an American life, it seems as though there is good legal precedent to suggest that, at the very least, Congress should be weighing in to authorize that more specifically."

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