Mar 7, 2014
Three Questions Left Unanswered by Obama’s Counterterrorism Speech
Posted on May 24, 2013
By Bill Blum
In Thursday’s speech, Obama defended past drone attacks, but backed away from the earlier white paper, declaring that he did not “believe it would be constitutional for the government to target and kill any U.S. citizen—with a drone or with a shotgun—without due process.” He also offered assurances that no president should ever deploy armed drones over U.S. soil, and indicated that principal management of drone operations would be shifted from the CIA to the Defense Department.
Left entirely unresolved by the speech, however, are the issues of exactly who would be authorized to give a kill order, how the administration will define an immediate threat, and, most important, how anyone targeted for a drone strike could be afforded due process, a term with a well-established meaning in constitutional law, embracing concepts of advance notice of pending charges and the opportunity to be heard.
In the address, Obama offered the possibility of creating a “drone court” to screen kill requests, after the fashion of the Foreign Intelligence Surveillance Court, which oversees government wiretap applications. That court, however, has proven remarkably one sided, rejecting a grand total of 11 government applications from 1978-2012, while approving more than 20,000.
Those hoping for more specifics on the administration’s new standards and processes for approving the use of lethal force in the war on terror will have to look beyond the president’s speech to Attorney General Eric Holder’s May 22 letter to Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., which alludes to yet another administration memo that will be provided to Congress. The memo, unfortunately, will remain classified and off-limits for the public at large.
Unless or until the administration declassifies the new drone warfare memo, the best hope for learning further details about the government’s redrafted counterterrorism policies will rest with investigative journalists like the AP reporters whose phone records for April and May 2012 were seized by means of subpoenas issued without judicial oversight over leaked information about a foiled terror plot in Yemen.
But any enterprising journalist nosing into the subject of drone warfare should be forewarned: Nothing in the president’s speech will insulate you from potential criminal liability should you go too far in your reporting.
To be sure, in an apparent attempt to mollify critics of the AP investigation and move beyond what could prove to be the most damaging political scandal of his career, Obama in his speech Thursday declared his support for a federal media shield law to “guard against government overreach.” He even went so far as to announce that Holder had scheduled a meeting with media organizations to re-examine government guidelines for conducting investigations involving the press.
But the president did not apologize for the AP investigation, or characterize it as an instance of overreach or back down in any manner from his commitment to “enforce consequences for those who break the law and breach their commitment to protect classified information.”
As a veteran constitutional lawyer, Obama knows the law, as Code Pink’s Benjamin insisted while being led away from the assembly. But as incredible as it may seem, the law applicable to the AP investigation is actually slanted on the administration’s side, courtesy of the Supreme Court’s 1979 decision in Smith v. Maryland, which held that the Constitution’s ban on unreasonable searches and seizures does not apply to records of the calls telephone users make and receive.
The war on terror, Obama grandly declared near the end of his address, “like all wars, must end. That’s what history advises. That’s what our democracy demands.” It’s beyond sad that it took a heckler to point out the speech’s failure to make good on those demands.
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