Obama Legal Theory on Targeted Killing Cribbed From Clarence Thomas?


According to a legal analysis by the Congressional Research Service, the Obama administration’s legal reasoning for the form of “due process” required to target and kill a US citizen suspected of terrorism may have been inspired by an unlikely source: Supreme Court Justice Clarence Thomas.

Attorney General Eric Holder gave a speech last March outlining the administration’s legal rationale for when the US is justified in killing its own citizens without charge or trial. “‘Due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security,” Holder said at the time. “The Constitution guarantees due process, not judicial process.”

Well that legal argument, according to the CRS report first obtained by Steven Aftergood at Secrecy News, “seem[s] to conform more with Justice Thomas’s dissenting opinion in Hamdi, in which Justice Thomas argued that in the context of wartime detention for non-punitive purposes, ‘due process requires nothing more than a good-faith executive determination.'” Hamdi was the case in which the Supreme Court ruled that the US government had the authority to detain American citizens captured fighting for the enemy on foreign battlefields, but that those captured citizens still had the right to challenge their detention. The administration, while publicly defending its targeted killing program, has thus far refused to share the legal memo that justified targeting American citizens suspected of terrorism with the public or even members of Congress.

In 2008, while running for president, Barack Obama told an audience at Pastor Rick Warren’s Saddleback Church in California that “I would not have nominated Clarence Thomas… I don’t think that he was a strong enough jurist or legal thinker at the time for that elevation. Setting aside the fact that I profoundly disagree with his interpretations of a lot of the Constitution.” Well, maybe he doesn’t profoundly disagree with all of his interpretations.

Hat Tip: The CRS report was also flagged by Andrea Stone at Huffington Post.

One More Thing

And it's a big one. Mother Jones is launching a new Corruption Project to do deep, time-intensive reporting on the corruption that is both the cause and result of the crisis in our democracy.

The more we thought about how Mother Jones can have the most impact right now, the more we realized that so many stories come down to corruption: People with wealth and power putting their interests first—and often getting away with it.

Our goal is to understand how we got here and how we might get out. We're aiming to create a reporting position dedicated to uncovering corruption, build a team, and let them investigate for a year—publishing our stories in a concerted window: a special issue of our magazine, video and podcast series, and a dedicated online portal so they don't get lost in the daily deluge of headlines and breaking news.

We want to go all in, and we've got seed funding to get started—but we're looking to raise $500,000 in donations this spring so we can go even bigger. You can read about why we think this project is what the moment demands and what we hope to accomplish—and if you like how it sounds, please help us go big with a tax-deductible donation today.

We Recommend


Sign up for our newsletters

Subscribe and we'll send Mother Jones straight to your inbox.

Get our award-winning magazine

Save big on a full year of investigations, ideas, and insights.


Support our journalism

Help Mother Jones' reporters dig deep with a tax-deductible donation.