- The Washington Times - Thursday, October 6, 2011

Somewhere deep in the National Security Council, a death panel is operating without known legal basis, without recognized rules, without clear oversight and without public record or knowledge of its actions.

According to Reuters news agency, a committee composed of midlevel National Security Council staffers is in charge of compiling the “death list” of terrorists to be targeted by the CIA for killing. Their recommendations are sent to a principals committee for approval. The president then has the option of objecting to the names on the list, but if he remains silent, he gives his consent. This system reportedly was intended to “protect” President Obama but instead has created a growing political predicament.

The political question of whether the United States can wage a clandestine war against terrorists through the use of deadly force seems to have been settled. The type of CIA covert actions that shocked the conscience of the nation when they were revealed in the 1970s are now taken for granted, even lauded. It is a reflection of the dangerous times in which we live. But the question of whether these same deadly techniques may be used against American citizens has never even been debated. The matter has become acute since the CIA killed al Qaeda leader and U.S. citizen Anwar al-Awlaki in Yemen last week.

Even under the more permissive legal framework established by the Patriot Act and post-Sept. 11 policy directives, the due-process rights of American citizens, even those abroad and actively involved with terrorism, were supposed to be sacrosanct. This issue was debated and adjudicated from the first months of the war, beginning with the question of whether American citizen John Walker Lindh, captured in Afghanistan while serving with the Taliban, was given an adequate Miranda warning. The Obama administration even has taken steps to extend constitutional due-process rights to noncitizens captured overseas, such as low-level Somali terrorist Ahmed Abdulkadir Warsame, who was arraigned in a federal court in New York in July simply to establish the precedent.

The question of Awlaki’s due-process rights remains a mystery. The Justice Department reportedly produced a memo justifying the killing, but it is classified. Even if the White House has a rationale for the killing, it will not be conclusive on its own merits. The decision must be vetted by the public, Congress and perhaps the courts before a conclusion can be reached.

The public has a right to know what is being done in its name. During the Reagan era, members of the National Security Council engaged in far less controversial activity that led some to murmur about impeachment. Arguments that the activities of this committee must be classified for reasons of national security ring hollow from an administration that entered office propelled by fresh winds of openness and promises of transparent government. The same president who sent the moral high horse galloping on questions of torturing terrorist suspects and closing the detainee facility at Guantanamo Bay, Cuba, cannot now hide behind blank walls and cipher locks while secretive functionaries compile lists condemning Americans to death.

The American people should know by what right, under what law and by whose hand their fellow citizens are being marked for termination.