Obama's Cloak and Dagger Work
Call me a 'carping civil libertarian', but I believe the White House should not hide its decision to kill Anwar Awlaki as a state secret
Gabriel Schoenfeld took to the pages of the Wall Street Journal this week to offer backhanded praise for President Barack Obama's Oval Office conversion to enthusiastic defender of the national security state. You see, it's one thing for presidential candidates or "carping civil libertarians" (that means me) to moan about excessive secrecy, but once you have real responsibilities and become aware that there is a war on, everything changes. That's because very serious people know disclosure of classified information in courtrooms or to the press will "imperil the war effort". Very serious people like Gabriel Schoenfeld and now, unfortunately, Barack Obama.
Let's take, for example, the case of Anwar al-Awlaki. He's the American-born spiritual leader of al-Qaida in the Arabian Peninsula (AQAP), currently residing in the ungoverned spaces of Yemen and believed to have orchestrated at least two attacks against the United States – the Fort Hood shootings and the failed Christmas Day airliner plot. His actions have reportedly put him on the target list for manned aircraft or drone strikes – the only known US citizen to earn such dubious privilege.
The American Civil Liberties Union and the Centre for Constitutional Rights have, on behalf of Awlaki's father, filed suit in US district court to prevent him from being targeted by the United States. The suit claims that targeting an American citizen for execution outside of a combat zone is a violation of due process rights, unless that citizen poses an imminent threat to the security of the United States. "The right to life is the most fundamental of all rights," the suit claims, and "due process requires, at a minimum, that citizens be put on notice of what may cause them to be put to death by the state."
The Obama administration made several procedural arguments that the suit should be dismissed in addition to arguing that the courts cannot intervene in its decision to target Awlaki, because it is a tactical military decision by the commander-in-chief based on the doctrine of imminent self-defence and congressional authorisation of necessary and appropriate force against AQAP. Leaving aside the notion that congress could possibly authorise force in 2001 against an organisation that did not exist at the time, Awlaki's reported connection to those two attacks and AQAP's stated desire to conduct more operations against the United States would seem to be reasonable legal grounds to support the government's claim of imminent self-defence.
But we'll never know because the government also argued that the case should be dismissed because moving forward would require the government reveal state secrets. The state secrets privilege is designed to protect classified national security information from unauthorised disclosure during court proceedings. There must be some form of this privilege but its contemporary application to exempt entire classes of government action from legal scrutiny – such as the Bush administration's detention and interrogation policies – has sparked significant criticism that it was being used to shield government misconduct from scrutiny. And one of the leading critics was Barack Obama (and not just during his campaign).
President Obama called the state secrets privilege "overbroad" and "a blunt instrument" that "should be modified" in April 2009. But that early push for reform withered after the Obama administration's review did not meaningfully change how the state secrets privilege was being applied, as it repeatedly ratified the Bush administration's efforts to dismiss entire cases alleging torture and other detainee abuse.
It is Obama's discovery that he is a "war president" that Schoenfeld applauds. He argues that "secrecy today is one of the most critical tools of national defence", and approvingly notes a statement from the department of justice (DOJ) on the Awlaki case, claiming that:
"It strains credulity to argue that our laws require the government to disclose to an active, operational terrorist any information about how, when and where we fight terrorism."
It's hard to square these absolute claims of secrecy, however, with the totality of the actions of the US government surrounding Awlaki. It was the US government that revealed information connecting him to the Fort Hood and Christmas Day attacks. It was a government source that revealed that Awlaki was on the so-called "kill list". The DOJ itself is reportedly interested in filing a complaint against Awlaki in federal court accusing him of complicity in the Fort Hood and Christmas Day attacks, a move already made against the leader of the Pakistani Taliban for a different set of attacks. And the US treasury has designated Awlaki a terrorist leader, noting in its official press release Awlaki's role in the Christmas Day attack.
Yet, somehow, despite all of what the government has told us about Awlaki's role in terrorist attacks against the United States, it cannot support those claims in court without revealing state secrets and the case must therefore be dismissed. This is when the very serious people chime in with fears about revelations of intelligence sources and methods. Surely, the government can present some information to a judge backing up its claims with all the procedures that exist to safeguard classified information in courts.
And let's remember what we are talking about here: the government is claiming its most awesome power, the right to deprive one of its citizens of life. In a democratic republic like the United States, that power comes with equally weighty responsibility to clearly demonstrate that such action is justified.
I accept that the US government has some secrets about Awlaki worth keeping. I do not accept that as a valid reason for refusing to offer any substantive justification for its decision to kill him.
© Guardian News and Media Limited 2010