- The Washington Times - Thursday, February 7, 2013

President Obama’s practice of killing purported terrorists with airborne drone strikes overseas has ventured into uncharted legal territory. The maneuver is likely to trigger pointed questions when White House counterterrorism adviser John O. Brennan faces a Senate confirmation hearing Thursday as CIA director nominee.

A supporter of the drone war, Mr. Brennan should be asked to make transparent the process by which Americans are marked for assassination on foreign soil.

In anticipation of the Brennan hearing, a bipartisan group of 11 senators wrote to Mr. Obama on Monday asking him to make public the legal opinions that serve as the basis for his authorization of this extreme action. “It is vitally important … for Congress and the American public to have a full understanding of how the executive branch interprets the limits and boundaries of this authority so that Congress and the public can decide whether this authority has been properly defined, and whether the president’s power to deliberately kill American citizens is subject to appropriate limitations and safeguards,” write the senators, including Mark Udall, Colorado Democrat, and Mike Lee, Utah Republican.

The targeted killing of Americans abroad by drone strikes is a new development in the art of warfare resulting from technological advances that allow unmanned aircraft to fire missiles at individuals. More than 2,300 persons have been killed by drones — primarily in Afghanistan and Pakistan. Scrutiny has intensified following the 2011 killings of al Qaeda leaders Anwar al-Awlaki and Samir Khan in Yemen.


It is unlikely a coincidence that an internal Justice Department memo surfaced at nearly the same time the senators’ letter was released. The 16-page document, first reported by NBC News, presents three conditions for the use of lethal force against a U.S. citizen serving as an al Qaeda leader abroad: “An informed, high-level official … has determined that the targeted individual poses an imminent threat of violent attack” on the United States, “capture is infeasible” and the strike is “conducted in a manner consistent with applicable law of war principles.”

Attorney General Eric H. Holder Jr. sought to allay concerns over the strikes, saying Tuesday he is “confident that we’re doing so in a way that is consistent with federal and international law.” For skeptics, though, his reassurance wasn’t not good enough. Rep. Trey Gowdy, South Carolina Republican and a former assistant U.S. attorney, told Fox News on Wednesday that the practice could violate the Constitution’s 5th Amendment right to due process and the 14th Amendment’s guarantee of equal protection under the law.

The White House could be setting legal precedent for unintended consequences on a broader scale. It’s not hard to imagine a future when the nation’s commander in chief could extend the same reasoning to justify the targeting of dissident Americans on U.S. soil. All it would take is the labeling of groups as “domestic terrorists” who pose an imminent threat. That’s easy to do in a process that has no oversight.

Moreover, as advanced drone technologies become cheaper and proliferate, today’s operations could invite a future enemy to employ similar justification for sending its own drones into American skies to take out persons — Americans or otherwise — considered hostile combatants.

It is essential that Congress demand transparency to ensure valued liberties do not become collateral damage in the Obama drone war.

The Washington Times