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Are We Living in a Post-Constitutional America?

Last week, the Obama administration leaked information on a potential drone target—a US citizen in Pakistan—raising questions about the legality of the President's drone killings.

| Tue Feb. 18, 2014 1:20 PM EST

This story first appeared on the TomDispatch website.

Terrorism (ter-ror-ism; see also terror) n. 1. When a foreign organization kills an American for political reasons.

Justice (jus-tice) n. 1. When the United States Government uses a drone to kill an American for political reasons.

How's that morning coffee treating you? Nice and warming? Mmmm.

While you're savoring your cup o' joe, imagine the president of the United States hunched over his own coffee, considering the murder of another American citizen. Now, if you were plotting to kill an American over coffee, you could end up in jail on a whole range of charges including—depending on the situation—terrorism. However, if the president's doing the killing, it's all nice and—let's put those quote marks around it—"legal." How do we know? We're assured that the Justice Department tells him so. And that's justice enough in post-Constitutional America.

Through what seems to have been an Obama administration leak to the Associated Press, we recently learned that the president and his top officials believe a US citizen—name unknown to us out here—probably somewhere in the tribal backlands of Pakistan, is reputedly planning attacks against Americans abroad. As a result, the White House has, for the last several months, been considering whether or not to assassinate him by drone without trial or due process.

Supposedly, the one thing that's held up sending in the drones is the administration's desire to make sure the kill is "legal." (Those quotes again.)

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Last May, Obama gave a speech on the subject. It was, in part, a response to growing anger in Pakistan, Yemen, and elsewhere over the CIA's ongoing drone assassination campaigns with all their "collateral damage," and to the White House's reported "kill list." In it, he insisted that any target of the drones must pose "a continuing and imminent threat to the American people." At the time, the White House also issued a fact sheet that stated: "Lethal force must only be used to prevent or stop attacks against US persons, and even then, only when capture is not feasible and no other reasonable alternatives exist to address the threat effectively." While that sounds like a pretty imposing set of hurdles to leap, all of the "legal" criteria are determined in secret by the White House with advice from the Justice Department, but with no oversight or accountability.

Even then, it turns out that the supposedly tortured deliberations of the administration are not really necessary. Despite the president's criteria, according to an unnamed administration official quoted by the Associated Press, Obama could make an exception to his policy and authorize the CIA to strike on a one-time basis, no matter what the circumstances. One way or another, it is Obama who decides who to kill and when.

Short-Term Questions

At this point, it's unclear just why the Obama administration leaked its plans in reference to this errant American abroad. After all, official after official has insisted that Edward Snowden's revelations of secret NSA documents have caused terrorists to change their communication tactics, yet the one American up to no good somewhere in the terrorist world apparently has not done so in response to the leak about his potential fate, and will remain locatable whenever needed as a target. And yet giving notice of a possible attack in advance in the media would, on the face of it, seem both counterproductive and an invitation to the very barrage of criticisms leveled by key officials at Snowden. After all, under the circumstances, an American connected with al-Qaeda wouldn't exactly have to be a Bond villain to decide to change his behavior and his location, stay indoors or outdoors more, keep off his phone for a while or trade it in for another.

Could the administration leak have been a trick to flush the bad guy out, causing him to panic and run? Was it an elaborate ruse designed to induce widespread concern in al-Qaeda about the liabilities of having American compatriots? Was it a bone thrown to Republicans otherwise eager to paint the president as weak? Could it have been some kind of geopolitical muscle tussle with once compliant but now more assertively anti-drone Pakistan? Or could the leak have been a PSYOP on the American people, an attempt to manipulate us into feeling better about government decisions to kill American citizens by revealing the deliberative and heart-wrenching process Obama goes through? Or could it simply have been an attempt to normalize such acts for us, to make them part of the understandable everyday background noise of a dangerous world?

The answer is: we don't know. Not yet anyway.

Not the First Time

The Obama administration admits to killing four Americans as part of its war on (or is it "war of"?) terror. We'll pause here a moment for you to contemplate whether there could have been other, undocumented killings of the same sort awaiting the revelations of some future Edward Snowden or Chelsea Manning.

On May 7, 2011, a US drone fired a missile in Yemen aimed at American citizen and key terror suspect Anwar al-Awlaki. The missile blew up a car with two other people in it, quickly labeled "al-Qaeda operatives" after we killed them.

Such collateral killings should be no surprise. The inaugural article by Glenn Greenwald and Jeremy Scahill at their new media venture notes that the National Security Agency regularly identifies targets for CIA assassinations based on metadata analysis and cell-phone tracking. Rather than confirming that target's identity, the CIA is evidently ready and willing to blow a suspect away based on the location of a mobile phone he assumedly is using. In other words, people can be killed because they borrowed the wrong cell phone. (So much for a deliberative process.)

The US had tried to kill al-Awlaki before, including in the Bush years—and missed. In justifying one of these assassination attempts, Obama's counterterrorism chief, Michael Leiter, claimed that al-Awlaki actually posed a bigger threat to the US "homeland" than Osama bin Laden, albeit without explanation. No matter, they finally got their man. A follow-up strike killed al-Awlaki, and another soon after obliterated his teenage son, also in Yemen. Though no one argues that the boy was in any way linked to terrorism and no administration official has bothered to explain just why he was targeted, former White House press secretary Robert Gibbs did comment that the killing was justified as he "should have had a more responsible father."

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