In the wake of the leaked Department of Justice memo detailing the legality of targeted killings by drones on American citizens, the PBS NewsHour found it fitting to have the ACLU defend its position in why these strikes are troubling, and why American-born al-Qaeda leader Anwar al-Awlaki should’ve been kept alive to plan acts of terror against the United States.
Of course, this is maddening to the progressive wing of the Democratic Party. Liberal publications, like The Nation, detail the dark future of drone warfare, and some anti-drone journalists, like Conor Fierdorsdorff of The Atlantic, have compared Obama to Bush. However, even with the media either criticizing, or ignoring, this development, last night’s broadcast of the PBS NewsHour didn’t take into account the hypocrisy of liberals who were on the warpath a few years prior after release of Bush memos related to enhanced interrogation techniques.
For example, The New York Times published an op-ed today calling the memo “disturbing,” but:
Going forward, he [Obama] should submit decisions like this one to review by Congress and the courts. If necessary, Congress could create a special court to handle this sort of sensitive discussion, like the one it created to review wiretapping. This dispute goes to the fundamental nature of our democracy, to the relationship among the branches of government and to their responsibility to the public.
It’s odd since when the Bybee memos were published, The New York Times called for his impeachment.
You may recall that Jay Bybee, in his capacity as an assistant attorney general,signed off on a 2002 secret memo which laid out a justification for enhanced interrogation techniques. That memo, once leaked to the press, became tagged as a "torture memo." In 2003, Bybee was confirmed for a seat on the Ninth Circuit Court of Appeals. The Times found Bybee's legal counsel worthy of removal from office, harumphing in a 2009 editorial that:
These memos make it clear that Mr. Bybee is unfit for a job that requires legal judgment and a respect for the Constitution. Congress should impeach him. And if the administration will not conduct a thorough investigation of these issues, then Congress has a constitutional duty to hold the executive branch accountable. If that means putting Donald Rumsfeld and Alberto Gonzales on the stand, even Dick Cheney, we are sure Americans can handle it.
Also, during the broadcast, there were no questions about how this memo differs from the Bybee memo, which outlined the legal justifications for waterboarding (aka simulated drowning). In fact, one could argue that defending this memo, as this administration has done, which details how to legally kill an American abroad – if they posed a clear and imminent threat to the United States – is even more disconcerting.
There was a lack of acknowledgment of the sense of irony when Obama released the Bush-era interrogation memos in 2009, and this one by his administration, which gives more insight into Obama’s secret “kill lists.”
The comparisons are not equal. One memo outlines how an interrogator could simulate drowning in a controlled environment in such a way as to aid interrogation without lasting physical harm to the subject -- with the aim of collecting intelligence that SAVES lives -- while the other details how to kill an American civilian with a hellfire missile – and make it look legitimate.
How do Obama supporters, the anti-war Left, and this administration justify their position, when they were so vociferous in ending what they considered as torture at the hands of American intelligence personnel?
That's the inherent hypocrisy of the Left that wasn’t examined during Ifill’s interview. Perhaps that's too much to expect from the liberal taxpayer-subsidized Public Broadcasting System.
GWEN IFILL: Well, let me ask you this, Professor Waxman. If this only applies to Americans on foreign soil, why wouldn't this reasoning apply to Americans on U.S. soil at home?
MATTHEW WAXMAN: Well, what one of the things that the lawyers -- the drafters of this memo do is try to explain that this is an analysis of a limited set of facts, a set of facts that were probably provided by senior officials to deal with situations that confront them in the real world.
And I think one of the important points that the article makes -- I'm sorry -- that the memo makes is that we are engaged in an ongoing war, an ongoing armed conflict with al-Qaida, and this is a conflict that is not contained to traditional battlefields abroad, places like Afghanistan.
That's a position, by the way, that now two presidents of both parties, Congress and the courts have all essentially embraced.
GWEN IFILL: Let me ask Hina Shamsi about that.
If this indeed is a brave new day and that there ought to be more latitude given to governments to protect themselves, how do you argue against them taking that latitude and running with it?
HINA SHAMSI: Well, first of all, I think it's an overstatement to say that these are standards that are narrow and restricted. They're not if you read the memo.
Secondly, these are standards that -- this claimed authority is one that virtually no other government in the world accepts, because they're so broad as to be virtually meaningless. And if you think about it, it's the authority to declare a citizen an enemy of the state and kill that person, even when they don't present a truly imminent threat, even when they are far from any battlefield, and without any kind of review by any court before or after the fact.
And I think that's one of the main things about this memo that is so disturbing and the government's position in general, which is that no court should have any role in determining whether the government's actions, including killing an American citizen, is lawful before or after the fact.
If the government is as convinced of the lawfulness of its position, then there should be no reason not to go to fight judicial review as much as they have.