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Legality of Obama Drone Policy in Question

Legality of Obama Drone Policy in Question

This is the show that a lot of the conservative Republicans who follow Fox News have been waiting for me to put up. If you followed me through with my piece called, “Hubris: the Selling of the Iraq War” by the Bush Administration, you’ll find that this commentary I have today follows in line with the fact that in the wake of 9/11, Congress has given far too much authority or Executive Power to the office of president.

This blog is taken from “The Joan Jerkovich Show” radio transcript and edited for easier reading. Listen to the Podcast and post your COMMENTS at http://joanjerkovich.com/2013/04/20/criticism-of-obama-drone-policy-local-doctor-responds-to-elected-official-using-n-word-420-weed-day-chill-musician/

As President Obama promised, in his State of the Union address in January, that he was going to engage with Congress on the targeting of terrorists, to make sure that our efforts are even more transparent to the American people and to the world. So, has he kept true to his promise?

As reported by Albert R. Hunt, a Bloomberg columnist, back in 2008, then presidential candidate, Barack Obama was unsparing in his criticism of President George W. Bush’s antiterrorism policies. He condemned the torture and the infamous detention center at Guantanamo Bay, and certainly the lack of transparency and congressional oversight, calling it something of a dubious legal framework and the blow-back that was spawning more terrorists and diminishing US standing in the world.

Yet, here we are under Obama’s administration, and there are serious questions on these very same issues… the same issues he was critical of the Bush administration for.

The one area in the Obama administration that is being most closely scrutinized, over the transparency issue, is under his drone policy.  Since his administration, the use of drones has increased seven-fold and caused the deaths of thousands of suspected terrorists and at least hundreds of civilians in Pakistan and Yemen. In most other countries, there is an overwhelming opposition and resentment toward the United States for these drone strikes.

We may have a monopoly on these weapons at the time being, but it’s being said that this is not going to last, because dozens of other countries, including Russia and China, are rushing in to develop armed drones. The Council on Foreign Relations Report warns that if the US doesn’t establish a coherent legal and policy rationale for its use of drones, they could become an unregulated, unaccountable vehicle for states to deploy lethal force with impunity. Kind of scary…

I know that some of you are critical of Rachel Maddow and MSNBC, and the reporting that she does. Michael Isikoff was the one that talked about the last piece I did on, “Hubris, the Selling of the Iraq War.” On her show, Michael Isikoff shared some breaking news that he’d had at NBC, where he revealed a leaked white paper from the Department of Justice outlining the legal case for using drones to kill American citizens, if they are senior operational leaders in Al Qaeda or in another terrorist organization, even if they have not been convicted of a crime.

This 16-page memo provides new details about the legal reasoning behind one of the Obama Administrations, as he calls it, most secretive and controversial policies. One of the reasons I wanted to put up a show about this is because some of my liberal friends have privately talked to me about their very concerns on how Obama is handling this…

In my research, one of the most compelling pieces I saw on this, was an interview that Bill Moyers did with, “Moyers and Company,” with Vicki Divoll and Vincent Warren. These are two experts on civil liberties during wartime. They talked about the ethics and the legality of drone strikes, and these very targeted killings that we’re seeing happening, in countries we’re not even at war with. This interview went up on February 1, 2013 and I’m going to embed that in a video at JoanJerkovich.com. I have to encourage you to watch the full interview because I’m going to be paraphrasing and hitting some highlights of this interview. I don’t want you to take anything out of context:


Bill Moyers is asking both of them, “Do you think that President Obama is fighting the War on Terror within the rule of law?” Vincent Warren replied, “I do not. In fact, I know that he is not.” Vicki DiVoll said, “I’m concerned that he may not be, but I’m not going to go quite so far as to say that he is not following the rule of law. I think his lawyers have told him that he is and he believes them.”

Divoll goes on to tell us how this actual program of targeted killing works. The Pentagon and the CIA nominate people to be on the list and it goes through what the White House promises is a very rigorous process of review to determine if those people should or should not be on the list. Finally, it makes it to the president, and President Obama has the final say on who or who is not on the list.

In talking about the concerns over this transparency issue, Vincent Warren was saying that the problem is that the only thing we ever know about the counter-intelligence that they’re collecting, has been what the government has been forced to say, or what journalists have been able to find out, or maybe even forced, through litigation work, from humans rights organizations such as his.

This is frightening because Vicki says there are US citizens who have been put on the same hit lists… the same targeted killing list of high value target lists that foreigners have.

So far, that we know of, three US citizens have been killed. With regards to the killing of US citizens, our drones did kill a United States citizen, born in Mexico, Anwar al-Awlaki. Then two weeks later, his 16-year-old American-born son was also killed by a drone while having dinner in an outdoor café with his cousin. In that attack, the person they were actually looking to target, reportedly was not found among the dead.

Like Vincent Warren said, the 16-year-old was a US citizen, born in Colorado. He went to Yemen with his family in 2002. As a US citizen, don’t we all have a right not to be summarily killed by our government without a trial? Without due process? He goes on to say that under international law there is no legal justification for targeting people without any meaningful purpose. There are rules that have been established in terms of the “law of war” that keep governments from just dropping bombs randomly in different countries… countries that are not even at war.

The second piece that he mentions is the constitutional issue and they talk quite a bit about this in the interview… that we certainly cannot and should not, live in a country where the US is targeting it’s own citizens for killing, without any due process at all. So as he says, we’ve simply moved from the Bush Administration, where we started out with detention in Guantánamo, without charge or trial, and now we’re in the Obama Administration “era of killing,” without charge or trial.

This is where I agree with what Vicki Divoll says: “War is difficult under all circumstances” and she says, “They’re the ones, Presidents’ Bush and Obama, who want to call it war… because it enhances their own powers by doing so.

Vincent mentions that right now, we’ve killed almost as many people in the last 10 years with drones, as Al Qaeda killed here in New York on 9/11. There is not a country, in the world, that believes that these US drone attacks we are waging on other countries, that we are not even at war with, is the right and sustainable solution for us as a country. There’s certainly a cry of concern going out that talks about the fact that these drone strikes might be simply radicalizing people who otherwise might not of been so radical. So there’s a concern here that maybe we’re just making this problem bigger.

In his interview, Bill Moyers asked Vicki about the recently published op-ed in the New York Times titled, “Who says you can kill Americans, Mr. President?”… Pretty controversial title.

So he says, well, what are we talking about here, Vicki? She says, “The issue is that there are legal memoranda in the Department of Justice that explain in great detail the legal support that Obama believes he has for conducting this program, but the Justice Department won’t release them and he, Obama, won’t order them to be released… even though he, himself, released the very same type of memos about President Bush’s program.”

“So, Obama, tell us what your legal theory is? Congress isn’t doing anything. The courts are having trouble doing anything. You’re the only one who knows what your legal theory is. So tell us what it is. Make it transparent to all of us, so that we can decide and we can scrutinize whether it is actually right or not.”

Vincent Warren jumps in here. He talks about the democracy that we have, and the problems that can occur in saying that when we talk about the legal justifications, we’re now in an era where even the government’s interpretation of law becomes something aiken to a state secret.

That’s kind of true. How much of this should be kept secret for intelligence reasons and what is open and should be open to the public? We have to go through all these legal hurdles to get the government to articulate their legal theory, by which they have the justification for, let’s say, their drone policy. He is saying that is probably one of the deepest problems that you can find in a democracy.

Vicki weighs in saying, “So all we have, is a president interpreting his own powers and the limits on his own powers, and that is not the way it’s supposed to work. We need more oversight.”

At this part of the interview, Bill Moyers jumped in and was very critical of the Bush administration in saying, you know, isn’t Obama doing exactly the same thing? But here, Vicki jumped in and said: The Bush Administration’s actions in all of these areas was that, and his stance on it, was that the rule of law didn’t apply to him. That if Congress enacts a law and says, ‘don’t do that,’ why, he could do it anyway. She says, and of course, she’s defending Obama here, that President Obama does not subscribe to that theory. She felt that if Congress passed a law tomorrow that said, “you may not target with drones,” she believed he (Obama) would obey that law. The problem is, Congress isn’t doing that.

So who do we look to? Vicki looks to Congress but as Bill Moyers says, “Who’s going to push Congress if the Democrats are skeptical about taking on their own White House, and they want to cooperate with the White House, and the Republicans are voting on the other side?

Vicki says, “The media. The American people. The voters. It’s not a perfect system.” This is where Vincent jumps in and says, “I agree with Vicki, that there is really a fourth branch of government here, and that is the one that is probably the most important.”  He’s talking about the American people, the American voters. Vicki jumps in and says, “Yes, and they have been too quiet.”

I do think we have been too quiet on this issue. I’m going to leave you with what Vincent said. He said, “You should never ever trust that the government is being completely and totally honest about the mistakes that it’s making. And the stakes are just so high for both the law and our foreign-policy, and for civilians targeted in a killing program.”

The American citizens, that fourth branch of the government, need to speak up and need to hold this administration accountable…

I want to finish up with some of the legal concerns of the Obama drone policies. I talked about Vincent Warren who was on the Bill Moyer’s show. He said the problem we’re going to have in the next four years is narrowing the gap between what the law says and what the law should be in order for us to be safe, secure, and free citizens within this country and to treat other countries and other people around the world with the same amount of respect. Narrowing the gap between what’s legal and what’s just is the big battle.

Vickie jumps in and says we really need Congress to step up and do its job, which is to conduct oversight of this president and all presidents in the presidency, not just President Obama, in order to get some of these issues addressed. They talk about how it’s a golden opportunity because there’s a Democratic Senate and a Democratic president. It would be much harder if you had a Republican president because it looks so partisan. She must have been feeling a bit conciliatory over this interview about President Obama because she said that, in fairness to President Obama, presidents don’t like to acknowledge the giving up of power, no president does. On their watch they don’t want to be the guy that shrunk the job.

I do think that the Senate, in particular, because it’s still Democratic, has a golden opportunity to get some of these things back under control, so that when the next president comes in we’ll have some laws and some standards that we can follow.

That is my personal hope for this very process.

In closing I want to tell you what Vincent Warren said. He says, “I firmly believe that President Obama is our best chance for the foreseeable future to do exactly what Vicki’s talking about, which would be to shrink that pie of presidential power (I said this earlier) he’s inherited from George Bush and Bush took more than anybody else. If he doesn’t do that, then the next president will have more power than the previous two and we’ll be back on the show in four years about how we slipped even more and there’s more egregious policies. We’ll be looking at the ramifications for those policies. I want to see that change and it’s going to take people here in this country to be able to make that happen.”

I can see my Fox News listeners out there being those very ones to rally the cry for transparency…Thanks for joining me here on “The Joan Jerkovich Show”!