Former Justice Department attorney Martin Lederman – a leading critic of George W. Bush's policies on torture, black sites, and rendition – was one of the authors of the legal memo justifying the assassination of American radical cleric Anwar al-Awlaki without due process. Though the memo is still secret and Obama administration officials refuse to answer for it on-the-record, the New York Times reported on the memo's content in detail based on sources who had read it. The memo's authors used a lot of the same flawed Bush-logic used to justify the programs Lederman once condemned.
My organization– the Government Accountability Project – was the first to publicly file a request for the memo under the Freedom of Information Act.
I pointed out the flawed rationalizations for the assassination in my Kos diary Sunday:
1) Al-Alwaki was taking part in the war between the United States and al Qaeda and posed a significant threat to Americans--though he never picked up arms against the U.S.;
2) Yemeni authorities were unable or unwilling to stop him--which is contradicted by Yemen's bragging that they gave us information to geo-locate him that was precise enough for a drone attack;
3) Al-Alwaki had evolved from being a "propagandist" to playing an "operational role" in al Qaeda--an assertion made for the first time ever by Obama after we killed him;
4) he was a "co-belligerant" (another Bush term for "enemy combatant"); and, taking a page directly from John Yoo,
5) the Authorization to Use Military Force against al Qaeda that Congress enacted shortly after 9/11 allowed this because al-Awlaki was a lawful target in the armed conflict.
Let us also look at what Bush critics Lederman and State Department legal advisor Harold Koh (who reviewed the al-Awlaki memo) said about this logic when Bush-era officials relied on it to authorize torture.
Lederman told TIME Magazine in 2008 that a Bush-era torture memo
. . . will be seen as one of the most extreme deviations from the rule of law and from the President's obligation to take care that the law is faithfully executed.
Also in 2008, Lederman wrote in Slate about the unprecedented levels of Executive power Bush lawyers asserted:
There is nothing like it in our long legal history, as far as I know. After all, how often is it that a Department of Justice memo is issued that matter-of-factly argues that the commander in chief can authorize pouring corrosive acid on a detainee — can authorize cutting out a tongue and poking out an eye — nothwithstanding a statute that would prohibit that very conduct?
Koh was equally critical of the flawed reasoning during the Bush-era. In 2004, Koh
called the [torture] memorandums ''embarrassing'' and ''abominable.''
When it came to the legal theory that the President's commander-in-chief power permits ignoring laws against torture, Koh said:
If the president has commander-in-chief power to commit torture . . . he has the power to commit genocide, to sanction slavery, to promote apartheid, to license summary execution.'
A summary execution is exactly what President Obama authorized for al-Awlaki.
Lederman used to say legal prohibitions on government conduct actually matter:
But whatever the results of such a debate would or should be, it remains the case that under current law, torture and cruel treatment are categorically prohibited. And yet the lawyers and doctors nevertheless approved the techniques . . . .
Lederman conveniently forgot that assassination is similarly prohibited. As New York Times journalist Charlie Savage points out, there exists
an executive order banning assassinations, a federal law [that prohibits Americans from murdering other Americans abroad], protections in the Bill of Rights [the Fourth Amendment’s guarantee that a “person” cannot be seized by the government unreasonably, and the Fifth Amendment’s guarantee that the government may not deprive a person of life “without due process of law”], and various strictures of the international laws of war . . .
The Supreme Court has weighed in on the rights of so-called "belligerents" and has held that they must receive some measure of due process. In Hamdi v. Rumsfeld, Justice Sandra Day O-Connor eloquently explained:
. . . a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens . . .
As for accountability, the Obama administration refused to refer to architects of torture to their respective bar associations, let alone for criminal investigation. Their careers have prospered. Torture memo author John Yoo is now a tenured professor and co-author Jay Bybee enjoys a lifetime appointment to the federal bench. The precedent is set. Lederman and Koh need not worry about the consequences of justifying a "summary execution." The next administration can follow Obama's precedent of "looking forward."
Jesselyn Radack is National Security and Human Rights Director for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.