U.S. citizen and alleged al-Qaeda terrorist Anwar al-Awlaki was killed by a drone strike in Yemen September 30, but the Obama administration has decided to keep the legal rational behind his assassination a secret. Conor Friedersdorf of The Atlantic magazine summarized the situation as follows:
The actual legal reasoning the Department of Justice used to authorize the strike? It's secret. Classified. Information that the public isn't permitted to read, mull over, or challenge.... Obama hasn't just set a new precedent about killing Americans without due process. He has done so in a way that deliberately shields from public view the precise nature of the important precedent he has set.
The controversy played out in a vigorous September 30 exchange in the White House Press Room between ABC News' Jake Tapper and White House Press Secretary Jay Carney:
Jake Tapper: You are asserting that he [Awlaki] had operational control of the Cargo plot and the Abdulmutallab plot. He's now dead. Can you tell us, or the American people — or has a judge been shown —
Jay Carney: Well, again Jake, I'm not going to go any further than what I've said about the circumstances of his death and —
Tapper: I don't even understand how they're tied.
Carney: — the case against him, which, again, you're linking. And I think that —
Tapper: You said that he was responsible for these things.
Carney: Yes, but again —
Tapper: Is there going to be any evidence presented?
Carney: I don't have anything for you on that.
Tapper: Do you not see at all — does the administration not see at all — how a President asserting that he has the right to kill an American citizen without due process, and that he's not going to even explain why he thinks he has that right, is troublesome to some people?
Carney: I wasn't aware of any of those things you said actually happening. And again, I'm not going to address the circumstances of Awlaki's death. I think, again, it is an important fact that this terrorist who was actively plotting — had plotted in the past, and was actively plotting to attack Americans and American interests, is dead. But I'm not going to — from any angle — discuss the circumstances of his death.
Obama's White House website continues to boast that "My Administration is committed to creating an unprecedented level of openness in Government.... Government should be transparent. Transparency promotes accountability and provides information for citizens about what their Government is doing."
Indeed, Obama issued a memorandum to federal department heads on the day after taking office demanding openness in government that read in part:
A democracy requires accountability, and accountability requires transparency. As Justice Louis Brandeis wrote, "sunlight is said to be the best of disinfectants."... The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.
The most open government in history is apparently making life and death decisions for its citizens in deep secrecy. The New American reported in June 2010 that several dozen U.S. citizens were then on the Obama administration assassination list, though Awlaki remains the only person publicly named to the list. Friedersdorf of The Atlantic asks of secrecy on the Awlaki assassination:
Why? What justification can there be for President Obama and his lawyers to keep secret what they're asserting is a matter of sound law? This isn't a military secret. It isn't an instance of protecting CIA field assets, or shielding a domestic vulnerability to terrorism from public view. This is an analysis of the power that the Constitution and Congress' post September 11 authorization of military force gives the executive branch. This is a president exploiting official secrecy so that he can claim legal justification for his actions without having to expose his specific reasoning to scrutiny.
Friedersdorf concludes that "It's time for the president who promised to create 'a White House that's more transparent and accountable than anything we've seen before' to release the DOJ memo." But Obama's secrecy and new assassination policy has won some surprising new allies: former Bush administration Vice President Dick Cheney. Cheney told CNN's Candy Crowley October 2 that:
I think it was a very good strike. I think it was justified. I think it's a very effective use of our drone technology. The thing I'm waiting for is for the administration to go back and correct something they said two years ago when they criticized us for, quote, "overreacting to the events of 9/11." They, in effect, said that we had walked away from our ideals or taken policy away from our ideals when we had taken enhanced interrogation techniques. They clearly have moved in the direction of taking robust action when they feel it's justified.
Cheney noted the irony that candidate Obama had criticized the Bush administration for using torture (Cheney called it "enhanced interrogations") and secrecy to deny due process, while President Obama uses assassination and secrecy. Crowley asked Cheney: "Two Americans were killed. Two American terrorists that were associated with al Qaeda on the Arabian peninsula, that were killed without due process — clearly — without a court, so what you are saying that if they can do that, they owe us an apology for going after what some people call torture, what you call enhanced interrogation techniques. Is that what you are saying?" Cheney replied:
Exactly. He said in his Cairo speech, for example, that he had, quote, "banned torture." Well, we were never torturing anybody in the first place. He said that we had walked away from our basic fundamental ideals. Now, that simply wasn't the case. That is to say that what he said then was inaccurate, especially in light of what they are now doing with respect to policy.
While the Bush administration sent many people to prison for torture without due process, including innocent American citizens such as Donald Vance and Nathan Ertel who were detained and tortured with food and water denial and beatings called "walling," the Obama administration is condemning American citizens to death without a trial or due process rights guaranteed by the Fifth and Sixth Amendments to the U.S. Constitution. And in that blatantly unconstitutional policy, Obama has a fan. Cheney added in his interview with Crowley that he believes that the President has a license to kill American citizens, just as Obama has claimed: "I think the President ought to have that authority to order that kind of strike, even when it involves an American citizen, if there's clear evidence that he's part of al Qaeda, planning, cooperating and supporting attacks against the United States."