By JOHN YOO
The U.S. has dropped the clarity of the rules of war for the vague balancing tests that govern cops on the beat.
President Obama’s antiterrorism policies are drawing new fire after this week’s leak of the administration’s legal memo defending the targeted killing of Americans. According to the Justice Department white paper obtained by NBC News, the U.S. can kill a citizen who is “continually planning attacks” for al Qaeda when an “informed, high-ranking” official decides that the target “poses an imminent threat” and capture is “infeasible.”
Members of certain congressional committees will learn more about the policy after the White House announcement on Wednesday—in a move to stave off trouble on Capitol Hill—to let them see long-sought secret memos on the legal justification for targeted killings. From the leaked white paper, though, we get the drift: Americans may have constitutional rights, but the realities of war and the right to national self-defense trump individual rights when the executive branch is picking targets.
The antiwar left and right are going ballistic. “It’s hard to believe that it was produced in a democracy built on a system of checks and balances,” the ACLU said of the document, with characteristic understatement.
Sen. Rand Paul (R., Ky.) declared his concern “about having one person in the executive branch get together with some flashcards and decide who they’re going to kill around the world, particularly American citizens.”
Despite the hue and cry, Mr. Obama hasn’t issued American 007s a license to kill. The real story revealed by the memo is that the Obama administration is trying to dilute the normal practice of war with law-enforcement methods. Its approach reflects the mind-set of an administration populated with officials who spent the Bush years decrying military methods then employed and are now trying to impose a weaker law-enforcement approach to combating terrorism.
Those of us in the Bush administration who worked on the response to 9/11 understood that the country was involved in a new kind of war, one that demanded the covert use of force abroad, detention of terrorists at Guantanamo Bay without criminal trials, tough interrogations, and broad electronic surveillance. But Mr. Obama and many of those who would become his advisers never fully accepted—or credited—the Bush administration’s difficult decision to consider 9/11 an act of war.
Once elected, Mr. Obama declared in a 2009 speech: “The decisions that were made over the last eight years established an ad hoc legal approach for fighting terrorism that was neither effective nor sustainable.” The Bush policies failed, he said, “to rely on our legal traditions and our time-tested institutions” and also failed “to use our values as a compass.”
This mind-set is reflected in the leaked Justice Department white paper. It could have simply relied on precedent and stated that under the laws of war U.S. military units can kill any enemy soldiers at any time with snipers and artillery, drones and missiles, as well as at closer quarters.
U.S. citizenship doesn’t create a legal force field around Americans who treasonously join the enemy. During the Civil War, every Confederate soldier remained a U.S. citizen. In World War II, Americans joined the Axis. As the Supreme Court reaffirmed in Hamdi v. Rumsfeld (2004), “Citizens who associate themselves with the military arm of the enemy government . . . are enemy belligerents.”
But instead of relying on the traditional authority to kill the enemy, the leaked memo reveals how a legal fog threatens to envelop U.S. soldiers and agents on the front lines. The administration has replaced the clarity of the rules of war with the vague legal balancing tests that govern policemen on the beat.
The Bill of Rights establishes a careful set of rules for police conduct. Officers can use deadly force only when there is probable cause to believe a suspect will imminently cause serious bodily harm. The legal system doesn’t generally allow the government to stop the potentially dangerous before they commit crimes.
The military’s mission is quite the opposite. U.S. armed forces and intelligence agencies exist to pre-empt enemy attacks, not to apprehend the guilty afterward. Troops must have the right to use force against enemy armed forces at any time, not merely at the moment before “an operational leader” (in the Justice memo’s words) seizes a plane or places a bomb.
The memo shows that for the first time in the history of American arms, presidential advisers will weigh the due-process rights of enemy combatants on the battlefield against the government’s interests, judge an individual’s “imminent” threat of violence, and ponder whether capture is feasible before deciding to strike. Under these provisions, the U.S. military’s speed and decisiveness will suffer, even as the intelligence needed to identify drone targets dries up with the withdrawals from Iraq and now Afghanistan.
The memo even suggests that American al Qaeda leaders such as Anwar al-Awlaki (killed in a 2011 drone strike in Yemen) enjoy due-process rights. But in doing so, it dissipates the rights of the law-abiding at home.
While suggesting that al Qaeda terrorists have constitutional rights, the memo makes no room for judicial review of a strike, as would be required for any actual government deprivation of due process. All we have are scarcely believable accounts that Mr. Obama selects targets from CIA lists with the guidance of St. Thomas Aquinas’s writings on what constitutes a just war.
This approach sets a concerning precedent regarding the government’s respect for due process in future cases involving American citizens and legal residents who actually deserve the right. By including terrorists among those afforded constitutional protections, the president’s policy risks stretching those protections a mile wide and an inch deep—weakening them for all Americans.
Then there’s the question of whether Mr. Obama’s approach really uses “our values as a compass.” After he took office, the president made a great show of ending enhanced interrogation, which CIA directors say produced much of the intelligence used to locate al Qaeda leaders including Osama bin Laden. The Bush administration had subjected about 100 al Qaeda detainees to some tough methods, including three to waterboarding.
Rather than capture terrorists—which produces the most valuable intelligence on al Qaeda—Mr. Obama has relied almost exclusively on drone attacks, and he has thereby been able to dodge difficult questions over detention. But those deaths from the sky violate personal liberty far more than the waterboarding of three al Qaeda leaders ever did.
Mr. Yoo, a law professor at the University of California at Berkeley and a scholar at the American Enterprise Institute, served in the Office of Legal Counsel in President George W. Bush’s Justice Department and helped draft memos concerning the legality of CIA interrogation of terrorist detainees.
A version of this article appeared on U.S. edition of The Wall Street Journal.