On the constitutionality of drone strikes

There are growing bipartisan demands in Congress for President Barack Obama to publicly release all the legal memos justifying targeted drone killings of suspected terrorists, both Americans and noncitizens.

During a recent hearing on drones, Bob Goodlatte, R-Va., chairman of the House Judiciary Committee, insisted that the "American people deserve to know and understand the legal basis under which the Obama administration believes it can kill U.S. citizens, and under what circumstances." The committee's ranking member, John Conyers, DMich., urged that it is not clear that "Congress intended to sanction lethal force against a loosely defined enemy in an indefinite conflict with no borders or discernible end date."

The Bureau of Investigative Journalism reports that from 2002 to 2013, in Pakistan, Yemen and Somalia, CIA drones killed between 556 and 1,128 civilians, including as many as 216 children, and deliberately targeted people showing up after attacks, including rescuers and mourners at funerals.

At least three Americans were killed by U.S. drones during Obama's first term. Anwar al-Awlaki and Samir Khan were killed in Yemen on Sept. 30, 2011, while al-Awlaki's 16-year-old son, Abdulrahman, was killed there a few weeks later. Al-Awlaki, born in New Mexico, became well known for his fiery anti-American sermons posted on the Internet. Khan, who lived in New York and Charlotte, N.C., produced a magazine called Inspire which is accused of spreading extreme jihadist views. Family of the Denver-born teenager Abdulrahman say he was unjustly targeted and killed because of his father.

Was it all cynical electioneering six years ago when candidate Obama told The Boston Globe that he rejected "the view that the president may do whatever he deems necessary to protect national security, and that he may torture people in defiance of Congressional enactments"? If and when Obama releases his drone memos, will we discover that they have grossly distorted the law the same way the Bush torture memos did?

Yaser Esam Hamdi was born in Louisiana and as a child moved to Saudi Arabia with his family. In November 2001, while living in Afghanistan, he was captured by the Northern Alliance and was handed over to the U.S. military. The government accused him of fighting with the Taliban against the U.S., labeled him an "illegal enemy combatant," and claimed the right to hold him indefinitely without trial, without charges and without lawyers.

In 2004, the Supreme Court disagreed in Hamdi v. Rumsfeld, 542 U.S. 507 (2004). In an opinion by Justice Sandra Day O'Connor, the court repudiated the government's unilateral assertion of executive authority to suspend constitutional protections for individual liberty. "An interrogation by one's captor, however effective an intelligence-gathering tool, hardly constitutes a constitutionally adequate fact-finding before a neutral decision-maker," wrote Justice O'Connor. The court opinion asserted the rule of law in American society: "It is during our most challenging and uncertain moments that our nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad." Justice O'Connor added, "[w]e have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the nation's citizens."

Hamdi did not say that the government cannot detain enemy combatants; however, they must be afforded due process to determine their status as enemy combatants. The decision reaffirmed the importance of separation of powers among the branches of the government, and, in particular, the role of the judiciary in reviewing actions of the executive branch infringing the rights of citizens.

In a partial concurrence and dissent, Justice David Souter indicated the he would have afforded greater constitutional protection against indefinite detention. And from the other end of the judicial spectrum, Justice Antonin Scalia insisted that "[w]here the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime."

After being held for three years, Hamdi was released and returned to Saudi Arabia. As scholar Eric T. Kasper has noted, once "the Supreme Court required that some basic, minimal due process guarantees be honored in his case, the government decided to release him, effectively demonstrating that Hamdi never had been any real risk to national security."

Salim Ahmed Hamdan, a citizen of Yemen who was accused of being a bodyguard and chauffeur for Osama bin Laden, was captured by militia forces during the invasion of Afghanistan in the fall of 2001 and was turned over to the U.S. He was sent to Guantanamo Bay, and in July 2004, the Bush administration claimed the right to try him before a military commission on charges of conspiracy to commit terrorism.

In 2006, the Supreme Court disagreed. The court held that a military commission lacked "the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949." In August 2008, Hamdi was convicted, and in November 2008, he was transferred to Yemen, where he served his last month. In October 2012, the U.S. Court of Appeals for the District of Columbia overturned Hamdan's conviction.

JosÃ(C) Padilla, a U.S. citizen, was arrested at O'Hare Airport in Chicago on May 8, 2002, on suspicion of plotting a "dirty bomb" attack. He was detained for 3 Â1/2 years as an "enemy combatant" based on allegations that he was closely associated with al Qaida, had engaged in "war-like acts, including conduct in preparation for acts of international terrorism" and was a continuing threat to American security. On Jan. 3, 2006, Padilla was transferred to Miami, Fla., to face criminal conspiracy charges, and in 2007, represented by counsel, he was found guilty of conspiring to kill people in an overseas jihad, and to fund and support terrorism. He was sentenced to 17 years in prison.

On the auspicious day of Sept. 10, 2001, Ali Saleh Kahlah al-Marri, a citizen of Qatar, accompanied by his wife and children, came to the U.S. to pursue his master's degree at Bradley University. In December 2001, he was arrested and eventually charged with credit card fraud and making false statements to police. One month before al-Marri's trial, President George Bush declared him an enemy combatant for allegedly associating with al-Qaida. The government claimed the right to hold al-Marri indefinitely, without charges, without trial, and at times without contact with the outside world.

Judge Diana Gribbon Motz of the 4th U.S. Circuit Court of Appeals disagreed. Al-Marri v. Wright, 487 F.3d 160 (2007). The government indicted al-Marri on federal criminal charges, and in April 2009 he pleaded guilty to being trained by al- Qaida and arriving in the U.S. as a sleeper cell terrorist under orders of Khalid Shaikh Mohammed.

Lakhdar Boumediene, an Algerian citizen, was captured in Bosnia in 2001 and transferred to Guantanamo Bay in January 2002 as an enemy combatant. Armed with the Military Commissions Act of 2006, which a compliant Congress had passed to restrict habeas corpus, the Bush administration asserted the right to detain Boumediene indefinitely.

Again, the Supreme Court disagreed. Boumediene v. Bush, 553 U.S. 723 (2008). Writing for the majority, Justice Anthony Kennedy wrote that political branches cannot "switch the constitution on or off at will." Boumediene was released in May 2009.

There is much to learn from these Supreme Court decisions. Before and after 9/11, the U.S. military has been fully capable of capturing and detaining alleged terrorists. The court has consistently held that before alleged terrorists, Americans and noncitizens alike can be denied "life, liberty or property," they are entitled to due process. The court has consistently rejected the presidential claim to unilateral authority to detain suspected terrorists.

Although accused of being dangerous terrorists, once Rasul, Iqbal, Hicks, Hamdi, Hamdan and Boumediene were afforded due process, they were eventually released. When Padilla and al-Marri were afforded due process, they were duly tried and convicted. But al-Awlaki, his 16-year-old son, Khan and the others were not afforded due process. Instead, they were systematically targeted and summarily killed by drones.

Summary execution violates the right of the accused to a fair trial before a punishment of death. Almost all constitutions or legal systems based on common law have prohibited execution without the decision and sentence of a competent judge. The UN's International Covenant on Civil and Political Rights declares that "No man shall be deprived of his life arbitrarily." "[The death] penalty can only be carried out pursuant to a final judgment rendered by a competent court." ICCPR Articles 6.1 and 6.2.

The Geneva Convention and Hague Convention protect the rights of captured regular and irregular members of an enemy's military, along with civilians from enemy states. Prisoners of war must be treated in carefully defined ways which ban summary execution. Second Protocol of the Geneva Conventions (1977) Article 6.2.

Obama's systematic targeting and summary killing of individuals by drones is an unspeakable violation of the constitution, international law and human rights. President Obama's legacy will forever be tarnished, and our constitutional system forever diminished, unless he immediately suspends his policy of targeted drone killings and subjects the entire program to open, transparent and independent review.