Yesterday, John Brennan, President Obama’s nominee to be CIA Director, testified before the Senate Select Committee on Intelligence. It was the first time that Members of Congress have had the opportunity to question a senior Administration official on the use of drones against terrorists since a Justice Department memo was leaked, detailing the specific conditions when American citizens could be targeted – without any provision for judicial due process.
Thankfully, voices of reason did prevail.
Senator Ron Wyden (D-OR), rather caustically pointed out to Brennan that, “Every American has the right to know when their government believes it’s allowed to kill them.”
Newly minted Senator, Angus King (I-ME) took a leadership role on the issue of targeting Americans without due process.
Senator King quoted former SCOTUS Justice Sandra Day O’Connor from the case of Hamdi v. Rumsfeld (2004), where the Court upheld the requirement of due process for an American citizen held as an “enemy combatant” at Gitmo.
In Hamdi, O’Connor stated, “We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens….Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.”
King then urged Brennan to consider an independent court to review drone-targeting decisions regarding Americans, just as the Foreign Intelligence Surveillance Act court reviews secret intelligence eavesdropping warrants. “Having the executive be the judge, prosecutor and the jury all in one is very contrary to the laws of this country,” King said.
After the hearing, Intelligence Committee Chair Diane Feinstein (D-CA) also lent support to the notion of creating a judicial mechanism to review the case for Americans that might be targeted under the drone program.
This is all promising.
For it stands that King’s use of O’Connor’s opinion in Hamdi is both meaningful and ironic.
The memos and legal arguments prepared by the Bush Justice Department in the lead-up to the SCOTUS Hamdi argument, formed the basis for the Obama Justice Department’s justification for the lawful killing of Americans without judicial review.
In Hamdi, SCOTUS rejected the Administration’s argument that the Executive alone had authority under Article II of the Constitution to decide the status of an American citizen under the conditions off war. That rationale applies equally to the Obama administration, indeed, any future Executive, as Justice O’Connor’s opinion notes:
“Striking the proper constitutional balance…is of great importance to the Nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad. The imperative necessity for safeguarding these rights to procedural due process under the gravest of emergencies has existed throughout our constitutional history, for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with guarantees which, it is feared, will inhibit government action.”
Only by guaranteeing our foundational liberties for those American citizens who have committed the most henious crimes – or actively plotting such actions – can we be sure that those rights are protected for us all.
A FISA-like judicial review for the targeted killing of Americans meets the requirement and should be instituted without delay.